/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091029.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 29, 2009, Vol. 11, No. 214 Headlines 21ST CENTURY: Still Faces Consolidated Securities Suit in Fla. ARRIS GROUP: Contests C-COR Ex-Employees' Suit for Overtime Pay BEMIS CO: Still Awaiting Final Approval of Pa. Suit Settlement BEMIS CO: Faces Consolidated "Price Fixing" Suit in California BEMIS CO: Defends Four Labelstock "Price Fixing" State Suits BRITANNIA BULK: Shipper Wins Dismissal of Securities Fraud Case CALIFORNIA: Redevelopment Agencies Sue to Reclaim School Funding ENTERPRISE PRODUCTS: Inks Settlement Agreement in Merger Action ENTERPRISE PRODUCTS: Faces TEPPCO Unitholders' Suit in Texas HONDA MOTOR: Acura Owner Complains About Transmission Problems iPCS INC: Shareholders Want More Money from Sprint Nextel I-FLOW CORP: Shareholders Want More Money from Kimberly Clark IMPAC MORTGAGE: Inks Settlement Agreement in "Marshell" Suit KENEXA CORP: Faces Two Securities Exchange Act Violations Suits LEAP WIRELESS: Still Faces Securities Fraud Lawsuits in Calif. OCEANFIRST FINANCIAL: Continues to Defend Shareholder Suits OMNICARE INC: Sixth Circuit Says Optimistic Statements Not Fraud OPNEXT INC: In Talks to Settle Consolidated N.J. Securities Suit TREX CO: Hearing to Approve Final Settlement Set for October 30 ********* 21ST CENTURY: Still Faces Consolidated Securities Suit in Fla. -------------------------------------------------------------- 21st Century Holding Co. continues to defend a consolidated amended securities fraud complaint, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. From July 27, 2007 to Aug. 7, 2007, several securities class action lawsuits were filed against the company and certain of its executive officers in the U.S. District Court for the Southern District of Florida on behalf of all persons and entities who purchased the company's securities during the various class periods specified in the complaints. A consolidated amended complaint was filed on behalf of the class on Jan. 22, 2008. The complaint alleges that the defendants made false and misleading statements and failed to accurately project the company's business and financial performance during the putative class period. The plaintiffs seek an unspecified amount of damages and claim violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. On Nov. 7, 2008, the District Court granted in part and denied in part the company's motion to dismiss the consolidated class complaint with leave to amend by Dec. 8, 2009 or the allegations dismissed would be deemed dismissed with prejudice without further order of the Court. Lead plaintiffs did not seek to amend the consolidated complaint and the defendants have answered. The action will proceed on allegations with respect to the company's setting of loss reserves for the year ending 2006 and first quarter of 2007. The suit is Kivun Mutual Funds Ltd v. 21st Century Holding Company, et al., Case No. 0:07-cv-61057-JIC, (Fla.) (Cohn, J.). Representing the plaintiffs are: David J. George, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 120 E. Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Phone: 561-750-3000 Fax: 561-750-3364 E-mail: dgeorge@csgrr.com - and - Peter A. Binkow, Esq. GLANCY BINKOW & GOLDBERG LLP 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Phone: 310-201-9150 Fax: 310-201-9160 E-mail: pbinkow@glancylaw.com Representing the defendants is: Lewis Franklin Murphy, Esq. SQUIRE SANDERS & DEMPSEY LLP 200 S. Biscayne Boulevard, 40th Floor Miami, FL 33131-2398 Phone: 305-577-2957 Fax: 305-577-7001 E-mail: lmurphy@ssd.com ARRIS GROUP: Contests C-COR Ex-Employees' Suit for Overtime Pay --------------------------------------------------------------- ARRIS Group, Inc., is actively contesting the class-action suit filed by several former employees of a former subsidiary of C- COR, Inc., according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The company acquired C-COR in late 2008. In February 2008, several former employees of a former subsidiary of C-COR, filed a class action Fair Labor Standards Act suit against the former subsidiary and C-COR alleging that the plaintiffs were not properly paid for overtime. The proposed class could include 1,000 cable installers and field technicians. ARRIS is actively contesting the suit. The opt-in period for substantially all of the plaintiffs ended July 31, 2009. As of Aug. 7, 2009, approximately 203 people have opted-in. ARRIS Group, Inc. -- http://www.arrisi.com/-- is a global communications technology company specializing in integrated broadband network solutions that include products, systems and software for content and operations management, and professional services. It develops, manufactures and supplies cable telephony, video and high-speed data equipment. In addition, it is a supplier of infrastructure products used by cable system operators to build-out and maintain Hybrid Fiber-Coaxial (HFC) networks. It provides products and equipments to cable system operators and multiple systems operators (MSOs). Its products allow MSOs and other broadband service providers to deliver a range of integrated voice, video and high-speed data services to their subscribers. BEMIS CO: Still Awaiting Final Approval of Pa. Suit Settlement -------------------------------------------------------------- Bemis Co., Inc., is still awaiting final approval of the settlement in a national class-action lawsuit. The company and its subsidiary, Morgan Adhesives Company, have been named as defendants in thirteen civil lawsuits related to an investigation that was initiated and subsequently closed by the U.S. Department of Justice without any further action. Six of these lawsuits purport to represent a nationwide class of labelstock purchasers, and each alleges a conspiracy to fix prices within the self-adhesive labelstock industry. The first of these lawsuits was filed on May 27, 2003. In these lawsuits, the plaintiffs seek actual damages for the period of the alleged conspiracy, Jan. 1, 1996 through July 25, 2003, trebled, plus an award of attorneys' fees and costs. On Nov. 5, 2003, the Judicial Panel on MultiDistrict Litigation issued a decision consolidating all of the federal class actions for pretrial purposes in the United States District Court for the Middle District of Pennsylvania, before the Honorable Chief Judge Vanaskie. On Nov. 20, 2007, the Court granted plaintiffs' motion for class certification. On June 24, 2008, the Court in the consolidated federal class actions issued a decision dismissing the company from those actions. On Jan. 27, 2009, the defendants filed a motion to decertify the class based on new case law in the Third Circuit. On May 26, 2009, the company and Morgan Adhesives Company entered into a settlement with the plaintiff class, pursuant to which the company agreed to pay $1.25 million in return for a full and complete release of all claims in the federal class actions. The company agreed to pay this settlement amount to avoid the expense of further litigation. On June 10, 2009, Judge Vanaskie granted preliminary approval to the settlement. A hearing on final approval was set for September 2009, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Bemis Co., Inc. -- http://www.bemis.com/-- manufactures flexible packaging products and pressure sensitive materials. The company sells its products to customers throughout theUnited States, Canada, Mexico, South America, Europe, and Asia Pacific. It operates in two segments: Flexible Packaging and Pressure Sensitive Materials. BEMIS CO: Faces Consolidated "Price Fixing" Suit in California -------------------------------------------------------------- Bemis Co., Inc., intends to defend a consolidated lawsuit filed with the California Superior Court in San Francisco, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The company and its subsidiary, Morgan Adhesives Company have been named in three lawsuits filed in the California Superior Court in San Francisco. These three lawsuits, which have been consolidated, seek to represent a class of all California indirect purchasers of labelstock and each alleges a conspiracy to fix prices within the self-adhesive labelstock industry. Bemis Co., Inc. -- http://www.bemis.com/-- manufactures flexible packaging products and pressure sensitive materials. The company sells its products to customers throughout theUnited States, Canada, Mexico, South America, Europe, and Asia Pacific. It operates in two segments: Flexible Packaging and Pressure Sensitive Materials. BEMIS CO: Defends Four Labelstock "Price Fixing" State Suits ------------------------------------------------------------ Bemis Co., Inc., intends to defend various state class actions, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The company has been named in: a. one lawsuit in Vermont, seeking to represent a class of all Vermont indirect purchasers of labelstock, b. one lawsuit in Nebraska seeking to represent a class of all Nebraska indirect purchasers of labelstock, c. one lawsuit in Kansas seeking to represent a class of all Kansas indirect purchasers of labelstock, and d. one lawsuit in Tennessee, seeking to represent a class of purchasers of labelstock in various jurisdictions. All lawsuits are alleging a conspiracy to fix prices within the self-adhesive labelstock industry. Bemis Co., Inc. -- http://www.bemis.com/-- manufactures flexible packaging products and pressure sensitive materials. The company sells its products to customers throughout the United States, Canada, Mexico, South America, Europe, and Asia Pacific. It operates in two segments: Flexible Packaging and Pressure Sensitive Materials. BRITANNIA BULK: Shipper Wins Dismissal of Securities Fraud Case --------------------------------------------------------------- Jonathan Perlow at Courthouse News Service reports that a federal judge in Manhattan largely dismissed a shareholder class action accusing Britannia Bulk Holdings of deceiving investors in statements about its initial public offering. U.S. District Judge Denise Cote tossed the fraud claims against all defendants, which included Britannia, its CEO and CFO, and four underwriters. The only surviving claim is a "negligent conduct" charge against the two executives. The company's June 2008 IPO was a financial success for the company and its underwriters. They raised $125 million by selling more than 8.3 million shares of common stock to investors for $15 per share. By late October, the stock had dropped more than 98 percent to $0.27 per share after the company became insolvent. Britannia Bulk is an international provider of dry-bulk shipping and logistics services, mainly in and out of the Baltic region. Its profits soared to "historic levels" in early 2008 as demand for Russian coal and other raw materials increased the demand for dry-bulk transportation in the Baltic and Northern Europe. It earned $300 million in the first three months of 2008, compared with $60 million over the same time period a year earlier. The class claimed that the registration statement and prospectus contained misstatements and omissions, mostly surrounding its use of forward freight agreements (FFA). FFAs are contracts traded on the Baltic exchange in which shippers and ship owners hedge against the volatility of the ocean market. Parties use them to bet on the price of a particular freight-route on a particular day. The lawsuit accused Britannia of failing to disclose that it used FFAs to guard against increases and not merely decreases, effectively putting a ceiling on potential gains. Britannia was also accused of failing to enter into proper fixed- price contracts at a time when crude oil and bunker fuels were experiencing extreme fluctuation, and that it "engaged in speculative trading in FFAs . . . to 'play the market.'" The class maintained that the alleged "false and misleading" information was of considerable relevance to investors evaluating Britannia's business. But Judge Cote ruled that the documents provided to shareholders "contain an abundance of cautionary language about Britannia's use of FFAs that Plaintiff simply ignores." Also, the company's shareholder update was written in "straightforward" and "plain language" and was "entirely consistent with the Company's intervening SEC filings after the IPO," Cote wrote. She ruled that the plaintiff's claim "does not withstand meaningful scrutiny." A copy of the slip opinion in In re Britannia Bulk Holdings Inc. Securities Litigation, Master File 08 Civ. 9554 (S.D.N.Y.), is available at: http://www.courthousenews.com/2009/10/26/Britannia.pdf CALIFORNIA: Redevelopment Agencies Sue to Reclaim School Funding ---------------------------------------------------------------- Maria Dinzeo at Courthouse News Service reports that California unconstitutionally snatched $3.75 billion from city Redevelopment Agencies for schools, cities claim in a Superior Court class action. Suing on behalf of its members, the California Redevelopment Association claims Assembly Bill X4-26 violates the California Constitution, which states that the Legislature "'may not enact laws allocating tax increment revenues for purposes unrelated to development.'" ABX4-26 takes $1.7 billion from redevelopment agencies this year and $2.05 billion next year and sends it to public schools. Plaintiffs, including the cities of Union City and Fountain Valley, says the state made the money grab to try shift the burden of education funding. The Association says that the money seized for the schools had been set aside to repay bondholders and creditors who funded redevelopment projects. Without that money, the group says, cities will be forced to breach their contracts with creditors. The cities want the bill enjoined from being implemented as scheduled, on May 10, 2010. A copy of the Complaint in California Redevelopment Association, et al. v. Genest, et al., Case No. 34-2009-80000359 (Calif. Super. Ct., Sacramento Cty.), is available at: http://www.courthousenews.com/2009/10/26/CalSch.pdf The Plaintiffs are represented by: Richard E. Brandt, Esq. T. Brent Hawkins, Esq. Ann Taylor Schwing, Esq. McDONOUGH HOLLAND & ALLEN PC 500 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: 916-444-3900 - and - Steven A. Merksamer, Esq. Richard D. Martland, Esq. MIELSEN, MERKSAMER, PARRINELLO, MUELLER & NAYLOR, LLP 1415 L Street, Suite 1200 Sacramento, CA 95814 Telephone: 916-446-6752 ENTERPRISE PRODUCTS: Inks Settlement Agreement in Merger Action --------------------------------------------------------------- Enterprise Products Partners L.P., along with other defendants, entered into a Stipulation and Agreement of Compromise, Settlement and Release contemplated by the Memorandum of Understanding, in order to settle the consolidated putative class actions, according to the company's Aug. 6, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Sept. 18, 2006, Peter Brinckerhoff, a purported unitholder of TEPPCO, filed a complaint in the Court of Chancery of the State of Delaware, in his individual capacity, as a putative class action on behalf of other unitholders of TEPPCO Partners, L.P. and derivatively on behalf of TEPPCO, concerning, among other things, certain transactions involving TEPPCO and the company or its affiliates. Mr. Brinckerhoff filed an amended complaint on July 12, 2007. The amended complaint names as defendants: (i) TEPPCO, certain of its current and former directors, and certain of its affiliates, (ii) the company and certain of its affiliates, (iii) EPCO, Inc., and (iv) Dan L. Duncan. The amended complaint alleges, among other things, that the defendants caused TEPPCO to enter into specified transactions that were unfair to TEPPCO or otherwise unfairly favored us or our affiliates over TEPPCO. These transactions are alleged to include: (i) the joint venture to further expand the Jonah system entered into by TEPPCO and the company in August 2006, the plaintiff alleges that TEPPCO did not receive fair value for allowing the company to participate in the joint venture; (ii) the sale by TEPPCO of its Pioneer natural gas processing plant and certain gas processing rights to the company in March 2006, the plaintiff alleges that the purchase price we paid did not provide fair value to TEPPCO; and (iii) certain amendments to TEPPCO's partnership agreement, including a reduction in the maximum tier of TEPPCO's incentive distribution rights in exchange for TEPPCO units. The amended complaint seeks: (i) rescission of the amendments to TEPPCO's partnership agreement, (ii) damages for profits and special benefits allegedly obtained by defendants as a result of the alleged wrongdoings in the amended complaint, and (iii) an award to plaintiff of the costs of the action, including fees and expenses of his attorneys and experts. By its Opinion and Order dated November 25, 2008, the Delaware Court dismissed Mr. Brinckerhoff's individual and putative class action claims with respect to the amendments to TEPPCO's partnership agreement. On April 29, 2009, Peter Brinckerhoff and Renee Horowitz, as Attorney-in-Fact for Rae Kenrow, purported unitholders of TEPPCO, filed separate complaints in the Delaware Court as putative class actions on behalf of other unitholders of TEPPCO Partners, L.P., concerning the proposed merger of TEPPCO and TEPPCO GP with the company. On May 11, 2009, these actions were consolidated under the caption Texas Eastern Products Pipeline Company, LLC Merger Litigation, C.A. No. 4548-VCL. The complaints name as defendants the company, nterprise Products GP, LLC, TEPPCO GP, the directors of TEPPCO GP, EPCO and Dan L. Duncan. The Merger Action complaints allege, among other things, that the terms of the merger (as proposed as of the time the Merger Action complaints were filed) are grossly unfair to TEPPCO's unitholders and that the proposed merger is an attempt to extinguish the Derivative Action without consideration. The complaints further allege that the process through which the Special Committee of the ACG Committee of TEPPCO GP was appointed to consider the proposed merger is contrary to the spirit and intent of TEPPCO's partnership agreement and constitutes a breach of the implied covenant of fair dealing. The complaints seek relief: (i) enjoining the defendants and all persons acting in concert with them from pursuing the proposed merger, (ii) rescinding the proposed merger to the extent it is consummated, or awarding rescissory damages in respect thereof, (iii) directing the defendants to account for all damages suffered or to be suffered by the plaintiffs and the purposed class as a result of the defendants' alleged wrongful conduct, and (iv) awarding plaintiffs' costs of the actions, including fees and expenses of their attorneys and experts. On June 28, 2009, the parties entered into a Memorandum of Understanding pursuant to which the company, TEPPCO, EPCO, TEPPCO GP, all other individual defendants and the plaintiffs have proposed to settle the Merger Action and the Derivative Action. The Memorandum of Understanding contemplates that the parties will enter into a stipulation of settlement within 30 days from the date of the Memorandum of Understanding. On Aug. 5, 2009, the parties entered into a Stipulation and Agreement of Compromise, Settlement and Release contemplated by the Memorandum of Understanding. Pursuant to the Settlement Agreement, the board of directors of TEPPCO GP will recommend to TEPPCO's unitholders that they approve the adoption of the merger agreement and take all necessary steps to seek unitholder approval for the merger as soon as practicable. Pursuant to the Settlement Agreement, approval of the merger will require, in addition to votes required under TEPPCO's partnership agreement, that the actual votes cast in favor of the proposal by holders of TEPPCO's outstanding units, excluding those held by defendants to the Derivative Action, exceed the actual votes cast against the proposal by those holders. The Settlement Agreement further provides that the Derivative Action was considered by TEPPCO GP's Special Committee to be a significant TEPPCO benefit for which fair value was obtained in the merger consideration. The Settlement Agreement is subject to customary conditions, including Delaware Court approval. There can be no assurance that the Delaware Court will approve the settlement in the Settlement Agreement. In such event, the proposed settlement as contemplated by the Settlement Agreement may be terminated. Among other things, the plaintiffs' agreement to settle the Derivative Action and Merger Action litigation, including their agreement to the fairness of the proposed terms and process of the merger negotiations is subject to (i) the drafting and execution of other such documentation as may be required to obtain final Delaware Court approval and dismissal of the actions, (ii) Delaware Court approval and the mailing of the notice of settlement which sets forth the terms of settlement to TEPPCO's unitholders, (iii) consummation of the proposed merger and (iv) final Delaware Court certification and approval of the settlement and dismissal of the actions. Enterprise Products Partners L.P. -- http://www.epplp.com/-- is a North American midstream energy company providing a range of services to producers and consumers of natural gas, natural gas liquids (NGLs), crude oil, and certain petrochemicals. It is also engaged in the development of pipeline and other midstream energy infrastructure in the continental United States and Gulf of Mexico. The company conducts substantially all of its business through its wholly owned subsidiary, Enterprise Products Operating LLC (EPO. The company is owned 98% by its limited partners and 2% by its general partner, Enterprise Products GP, LLC (EPGP). EPGP is owned by Enterprise GP Holdings L.P. The company operates in four business segments: NGL Pipelines & Services, Onshore Natural Gas Pipelines & Services, Offshore Pipelines & Services and Petrochemical Services. ENTERPRISE PRODUCTS: Faces TEPPCO Unitholders' Suit in Texas ------------------------------------------------------------ Enterprise Products Partners L.P. faces putative class actions filed with the District Courts of Harris County, Texas, according to the company's Aug. 6, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On June 29 and 30, 2009, respectively, M. Lee Arnold and Sharon Olesky, purported unitholders of TEPPCO, filed separate complaints in the District Courts of Harris County, Texas, as putative class actions on behalf of other unitholders of TEPPCO, concerning the proposed merger of TEPPCO with us. The complaints name as defendants us, TEPPCO Partners, L.P., TEPPCO GP, Enterprise Products GP, LLC, EPCO, Inc., Dan L. Duncan, Jerry Thompson, and the board of directors of TEPPCO GP. The allegations in the complaints are similar to the complaints filed in Delaware on April 29, 2009 and seek similar relief. On April 29, 2009, Peter Brinckerhoff and Renee Horowitz, as Attorney in Fact for Rae Kenrow, purported unitholders of TEPPCO, filed separate complaints in the Court of Chancery of the State of Delaware as putative class actions on behalf of other unitholders of TEPPCO Partners, L.P., concerning the proposed merger of TEPPCO and TEPPCO GP with the company. Enterprise Products Partners L.P. -- http://www.epplp.com/-- is a North American midstream energy company providing a range of services to producers and consumers of natural gas, natural gas liquids (NGLs), crude oil, and certain petrochemicals. It is also engaged in the development of pipeline and other midstream energy infrastructure in the continental United States and Gulf of Mexico. The company conducts substantially all of its business through its wholly owned subsidiary, Enterprise Products Operating LLC (EPO. The company is owned 98% by its limited partners and 2% by its general partner, Enterprise Products GP, LLC (EPGP). EPGP is owned by Enterprise GP Holdings L.P. The company operates in four business segments: NGL Pipelines & Services, Onshore Natural Gas Pipelines & Services, Offshore Pipelines & Services and Petrochemical Services. HONDA MOTOR: Acura Owner Complains About Transmission Problems -------------------------------------------------------------- Courthouse News Service reports that a class action claims Honda Acuras with automatic transmissions "lock up" and shift into lower gear during normal use, causing skids and loss of control, in Los Angeles Superior Court. iPCS INC: Shareholders Want More Money from Sprint Nextel --------------------------------------------------------- Courthouse News Service reports that iPCS shareholders say in Cook County Court that the company is selling itself too cheaply to Sprint Nextel, for $831 million, or $24 a share. A copy of the Complaint in Hunt v. iPCS, Inc., et al., Case No. 09CH40868 (Ill. Cir. Ct., Cook Cty.), is available at: http://www.courthousenews.com/2009/10/23/CCAiCPS.pdf The Plaintiff is represented by: Marvin A. Miller, Esq. Lori A. Fanning, Esq. MILLER LAW LLC 115 South LaSalle Street, Suite 2910 Chicago, IL 60603 Telephone: 312-332-3400 - and - Nadeem Faruqi, Esq. Antonio Vozzolo, Esq. FARUQI & FARUQI, LLP 369 Lexington Ave., 10th Floor New York, NY 10017 Telephone: 212-983-9330 - and - James S. Notis, Esq. Kira German, Esq. GARDY & NOTIS, LLP 560 Sylvan Ave. Englewood Cliffs, NJ 07632 Telephone: 201-567-7377 I-FLOW CORP: Shareholders Want More Money from Kimberly Clark ------------------------------------------------------------- Courthouse News Service reports that shareholders say I-Flow Corp. is selling itself too cheaply to Kimberly Clark and Boxer Acquisition, for $276 million, or $12.75 a share, in Orange County Court, Calif. I-Flow makes "drug delivery devices." A copy of the Complaint in Lash, et al. v. Earhart, et al., Case No. 30-2009-00312968 (Calif. Super. Ct., Orange Cty.), is available at: http://www.courthousenews.com/2009/10/26/SCAIFlow.pdf IMPAC MORTGAGE: Inks Settlement Agreement in "Marshell" Suit ------------------------------------------------------------ Impac Mortgage Holdings, Inc., has entered into a settlement agreement for an insignificant amount with plaintiffs in the purported class action, Vincent Marshell v. Impac Funding Corporation, et al., according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Oct. 4, 2007, Marshell v. Impac Funding Corporation, et al., Case No. 07-cv-01290 (C.D. Calif.) -- a purported class action matter -- was filed against Impac Funding and Impac Mortgage Holdings, Inc. The action alleges violations of Truth in Lending Act, violation of California Business and Professional Code Section 17200, et seq., breach of contract, and an additional claim under Business and Professional Code Section 17200. The complaint alleges that the defendants failed to disclose pertinent information in a clear conspicuous manner as called for in the Truth in Lending Act, and that they misled the plaintiff. The action seeks to recover actual damages, compensatory damages, consequential damages, punitive damages, rescission, reasonable attorneys fees and costs, statutory damages, a disgorgement of all profits obtained as a result of the unfair competition, equitable relief including restitution and such other relief as is just and proper. In June 2009, the company entered into a settlement agreement for an insignificant amount with plaintiff. Impac Mortgage Holdings, Inc. is a Maryland corporation incorporated in August 1995 and has the following subsidiaries: IMH Assets Corp., Impac Warehouse Lending Group, Inc., and Impac Funding Corporation, together with its wholly-owned subsidiaries Impac Secured Assets Corp., Impac Commercial Capital Corporation. KENEXA CORP: Faces Two Securities Exchange Act Violations Suits --------------------------------------------------------------- Kenexa Corp. continues to defend two putative class actions filed with the U.S. District Court for the Eastern District of Pennsylvania, according to the company's Aug. 10, 2009, Form 10-Q filing with the Securities and Exchange Commission for the quarter ended June 30, 2009. On June 11, 2009 and July 16, 2009, two putative class actions were filed against the company and its Chief Executive Officer and Chief Financial Officer, purportedly on behalf of a class of the company's investors who purchased its publicly traded securities between May 8, 2007 and Nov. 7, 2007. The complaints in these actions generally allege violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder and Section 20(a) of the Exchange Act in connection with various public statements made by us. Pursuant to the Private Securities Litigation Reform Act, any member of the purported class who wished to be appointed "lead plaintiff" had until last Aug. 10, 2009, to file a motion seeking such designation. According to the Court's scheduling order: (i) a hearing regarding the appointment of lead plaintiff was scheduled last Sept. 9, 2009; (ii) whoever is appointed lead plaintiff had until Sept. 30, 2009 to file an amended complaint; and (iii) defendants had until Oct. 21, 2009 to file their response to the complaint. Kenexa Corp. -- http://www.kenexa.com/-- provides business solutions for human resources. It helps global organizations multiply business success by identifying the best individuals for every job and fostering optimal work environments for every organization. For more than 20 years, Kenexa has studied human behavior and team dynamics in the workplace, and has developed the software solutions, business processes and expert consulting that help organizations impact positive business outcomes through HR. Kenexa is the only company that offers a comprehensive suite of unified products and services that support the entire employee lifecycle from pre-hire to exit. LEAP WIRELESS: Still Faces Securities Fraud Lawsuits in Calif. -------------------------------------------------------------- Leap Wireless International, Inc., continues to defend purported securities fraud class-action lawsuits before the U.S. District Court for the Southern District of California, according to the company's Aug. 7 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for quarter ended June 30, 2009. The company and certain current and former officers and directors, and its independent registered public accounting firm, PricewaterhouseCoopers LLP, were named as defendants in a consolidated securities class action lawsuit filed in the U.S. District Court for the Southern District of California which consolidated several securities class action lawsuits initially filed between September 2007 and January 2008. Plaintiffs allege that the defendants violated Section 10(b) of the Exchange Act and Rule 10b-5, and Section 20(a) of the Exchange Act. The consolidated complaint alleges that the defendants made false and misleading statements about Leap's internal controls, business and financial results, and customer count metrics. The claims are based primarily on the Nov. 9, 2007 announcement that the company was restating certain of its financial statements and statements made in its August 7, 2007 second quarter 2007 earnings release. The lawsuit seeks, among other relief, a determination that the alleged claims may be asserted on a class-wide basis and unspecified damages and attorney's fees and costs. On Jan. 9, 2009, the federal court granted defendants' motions to dismiss the complaint for failure to state a claim. On Feb. 23, 2009, defendants were served with an amended complaint which does not name PricewaterhouseCoopers LLP or any of Leap's outside directors. The company and the remaining individual defendants have moved to dismiss the amended complaint. Headquartered in San Diego, Calif., Leap Wireless International, Inc. -- http://www.leapwireless.com/--provides wireless services in 29 states and holds licenses in 35 of the top 50 U.S. markets. Cricket offers customers a choice of unlimited voice, text, data and mobile Web services. OCEANFIRST FINANCIAL: Continues to Defend Shareholder Suits ----------------------------------------------------------- OceanFirst Financial Corp., Inc., intends to defend purported class actions complaints filed with the Superior Court of New Jersey in Ocean County, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On June 8, 2009, and July 15, 2009, purported class action complaints were filed against the company, Central Jersey Bancorp and each director of Central Jersey, except that Robert S. Vuono was not named in the second class action complaint. The actions were brought by two separate alleged shareholders of Central Jersey, each on behalf of himself and all others similarly situated. The complaints allege, among other things, that the directors of Central Jersey are in breach of their fiduciary duties to shareholders in connection with Central Jersey's entry into the merger agreement with the company. The complaints also allege that the company and Central Jersey knowingly assisted the Central Jersey directors' alleged breaches of fiduciary duty in connection with the proposed merger. The complaints seek, among other things, damages and injunctive relief to enjoin the company, Central Jersey and Central Jersey's directors from consummating the transactions contemplated under the merger agreement, along with attorneys' fees and costs. The company and Central Jersey believe that the allegations in the complaints are without merit and intend to vigorously defend against the claims and causes of action asserted in these legal matters. Headquartered in Toms River, N.J., OceanFirst Financial Corp., Inc. -- http://www.oceanfirstonline.com/--is a holding company for OceanFirst Bank (the Bank). The Bank is a Federally- chartered mutual savings bank. The Bank's principal business has been to attract retail deposits from the general public in the communities surrounding its branch offices and investing those deposits, together with funds generated from operations and borrowings in single-family, owner-occupied residential mortgage loans. OceanFirst Bank invests in other types of loans, including commercial real estate, multi-family, construction, consumer, and commercial loans. The Bank also invests in mortgage-backed securities (MBS), securities issued by the United States Government and agencies. The Bank's primary sources of funds are deposits, principal and interest payments on loans, and MBS, proceeds from the sale of loans, Federal Home Loan Bank (FHLB) advances and other borrowings and to a lesser extent, investment maturities. OMNICARE INC: Sixth Circuit Says Optimistic Statements Not Fraud ---------------------------------------------------------------- Avery Fellow at Courthouse News Service reports that the United States Court of Appeals for the Sixth Circuit largely upheld dismissal of a shareholder class action against pharmaceutical company Omnicare. "Seizing on a few vague statements from management, the plaintiffs try to turn bad corporate news into a securities class action," U.S. District Judge Richard Mills wrote. Because securities law "forbids such alchemy," the ruling states, the court affirmed the lower court's dismissal on all claims but an accounting claim. A class of investors, led by a state pension fund, accused Omnicare of publishing overly positive outlooks while the company was in a contract dispute and was unprepared to transfer to a prescription drug benefit program called Medicare Part D. But the Cincinnati-based appellate panel affirmed the lower court's dismissal, saying the plaintiffs' proof of loss causation was "thoroughly lacking." The plaintiffs had claimed that Omnicare hid a contract loss with a major drug plan supplier by continuing to say that the company was doing well. Omnicare CEO Joel Gemunder's positive, forward-looking statements were protected by safe-harbor laws, the three-judge panel ruled. Mr. Gemunder's optimistic comments "fall squarely within the realm of corporate puffery, as they do nothing more than vaguely predict positive future results, a claim so banal and ubiquitous that it cannot engender reliance by reasonable investors," Mills wrote. The appellate panel also dismissed a claim that the company misled investors by stating that it was ready to transfer to the new Medicare Part D drug coverage program in late 2005. When Part D launched in January 2006, Omnicare experienced a "rocky transition" that cost the company $9.8 million, the plaintiffs claimed. The court similarly tossed a claim based on Omnicare's assurances that it had complied with the law. Investors said Omnicare knew about drug recycling and other illegal practices, but hid them. "[N]o allegations establish when the defendants were aware of the wrongdoing or, for that matter, when the wrongdoing was occurring," Judge Mills wrote. The court mostly dismissed the case, but remanded a claim for abuses of generally accepted accounting principles to re- establish loss causation. A copy of the slip opinion issued in Indiana State District Council of Laborers and Hod Carriers Pension and Welfare Fund, et al. v. Omnicare, Inc., et al., No. 07-6379 (6th Cir.), is available at: http://www.ca6.uscourts.gov/opinions.pdf/09a0370p-06.pdf OPNEXT INC: In Talks to Settle Consolidated N.J. Securities Suit ---------------------------------------------------------------- The parties in a consolidated securities fraud class-action suit against Opnext, Inc., in the U.S. District Court for the District of New Jersey continue to engage in settlement discussions. On Feb. 20, 2008, a putative class action captioned, "Bixler v. Opnext, Inc., et al. Case No. 3:08-cv-00920," was filed against the company and certain of its directors and officers, alleging, inter alia, that the registration statement and prospectus issued in connection with the company's initial public offering contained material misrepresentations in violation of federal securities laws. On March 7 and 20, 2008, two additional putative class action complaints were filed in the U.S. District Court for the the District of New Jersey, similarly alleging, inter alia, that federal securities laws had been violated by virtue of alleged material misrepresentations in the company's registration statement and prospectus. These two additional complaints, captioned, "Coleman v. Opnext, Inc., et al., Case No. 3:08-cv-01222," and "Johnson v. Opnext, Inc., et al., Case No. 3:08-cv-01451," respectively, named as defendants the company, certain individual defendants, the company's auditor, and the underwriters of the IPO. Motions were filed by several of the company's present and former shareholders seeking: -- to consolidate the "Bixler," "Coleman," and "Johnson" cases; -- to be appointed lead plaintiff; and -- to have their counsel appointed by the Court as lead counsel for the putative class. On May 22, 2008, the court issued an order consolidating the three cases under Civil Action No. 08-920 (JAP). On July 30, 2008, the lead plaintiff filed a consolidated class action complaint with the U.S. District Court for the District of New Jersey. The underwriter defendants filed an answer to the consolidated complaint on Oct. 21, 2008. On Nov. 6, 2008, Opnext's auditor was voluntarily dismissed from the action by plaintiff without prejudice. Hitachi, which was added as a defendant in the Consolidated Complaint, filed a motion to dismiss on Dec. 22, 2008. As of Feb. 9, 2009, the date of this Form 10-Q filing, the Court had not ruled on Hitachi's motion. The court has stayed all proceedings in this matter, including discovery, as Opnext, the Individual Defendants, and plaintiff continue to engage in settlement discussions. No further updates were reported in the company's Aug. 10, 2009, Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The consolidated suit is Bixler v. Opnext, Inc., et al. Case No. 3:08-cv-00920 (N.J.) (Pisaon, J.). Representing the plaintiffs are: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, PA 236 Tillou Road South Orange, NJ 07079 Phone: 973-313-1887 E-mail: lrosen@rosenlegal.com - and - Jennifer Sarnelli, Esq. LITE, DEPALMA, GREENBERG & RIVAS, LLC Two Gateway Center, 12th Floor Newark, NJ 07102 Phone: 973-632-3000 Fax: 973-923-0858 E-mail: jsarnelli@ldgrlaw.com Representing the defendants are: John M. Falzone, III, Esq. LATHAM & WATKINS, LLP One Newark Center, 16th Floor Newark, NJ 07102 Phone: 973-639-7099 E-mail: john.falzone@lw.com - and - Gary S. Graifman, Esq. KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. 210 Summit Avenue Montvale, NJ 07645 Phone: 201-391-7000 E-mail: ggraifman@kgglaw.com TREX CO: Hearing to Approve Final Settlement Set for October 30 --------------------------------------------------------------- The U.S. District Court for the Northern District of California has set Oct. 30, 2009 to consider final approval of the settlement agreement entered into by Trex Co., Inc. and plaintiffs in a class action case, according to the company's Aug. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Jan. 19, 2009, a class action case was commenced against the company in the Superior Court of California, Santa Cruz County generally alleging certain product defects in the company's products, and that the Company has failed to provide adequate remedies for defective products. On Feb. 13, 2009, the Company removed this case to the United States District Court, Northern District of California. On July 30, 2009, a settlement of this lawsuit was preliminarily approved by the U.S. District Court for the Northern District of California. The Court has set a hearing for final approval on Oct. 30, 2009. Trex Co., Inc. -- http://www.trex.com/-- is a manufacturer of wood-alternative decking, railing, fencing products and trim, which are marketed under the brand name Trex. The company manufactures its products in a process that combines waste wood fibers and reclaimed polyethylene. Its decking, railing and fencing products are provided in a selection of sizes and lengths, and are also available with several finishes and numerous colors. The products are used primarily for residential and commercial decking and railing. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. 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