/raid1/www/Hosts/bankrupt/CAR_Public/080821.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, August 21, 2008, Vol. 10, No. 166
Headlines
AK STEEL: Court Sets Oct. 21 Hearing for Racial Bias Suit Deal
AK STEEL: Seeks Supreme Court Review of "West" Payment Order
AK STEEL: Still Faces Suit Over Anthem Insurance Demutualization
AK STEEL: Ohio Court Yet to Set Trial Date for "Patrick" Lawsuit
AK STEEL: Some Class Members Appeal Approval of $663M Settlement
ASSOCIATED ESTATES: Suredeposit Suit Still Pending in Ohio Court
ATICO INT'L: Recalls Personal Blenders Due to Laceration Hazard
BLOCKBUSTER INC: Faces Suits in British Columbia & Saskatchewan
BLOCKBUSTER INC: Continues to Face Stockholder Suit in Delaware
BLOCKBUSTER INC: Still Faces "End of Late Fees" Program Lawsuits
BLOCKBUSTER INC: ERISA Suit Pending in Texas; Plaintiff Added
BLOCKBUSTER INC: Faces Suit in Texas Over Invasion of Privacy
BUSINESS COMPUTER: Sued Over Unprovided Placement Services
COLUMBIA UNIVERSITY: Anti-feminist Sues Over Women's Studies
COSMETICS MAKERS & RETAILERS: Suit Deal Means Free Cosmetics
COUNTRYWIDE FINANCIAL: Calif. Suit Accuses Violation of Privacy
EDWARD JONES: Reaches $19MM Settlement in Wage & Hour Lawsuits
FARMERS INSURANCE: Faces Calif. Suit Over Untranslated Contracts
FIRST SITE: Former Tenants Sue Over Lost Security Deposits
FISHER-PRICE: Recalls Learning Pots and Pans Posing Choking Risk
FRANKLIN RESOURCES: N.J. Court Affirms Dismissal of "Ulferts"
FRANKLIN RESOURCES: Court Partially Dismisses Market-Timing Suit
HUMANA HEALTH: Sued in Ky. Over Sophisticated Bill Review System
ICEPAN: Faces Lawsuit Over Refusal to Redeem Icecream Coupons
INT'L CREATIVE: Age Discrimination Suit Settled for $4.5 Million
KELLOG BROWN: Negligent in Worker Deaths, Georgia Suit Claims
MEDIS TECHNOLOGIES: N.Y. Court Dismisses Putative Class Lawsuit
MONTANA POWER: Lawsuit Over Lake Levels Heads to Supreme Court
PANTRY INC: Court Considers Approval of Wage and Hour Suit Deal
PANTRY INC: Kansas Court Allows "Hot Fuel" Suits to Move Forward
PC MALL: Reaches Tentative Settlement in "Hanzy" Meal Break Suit
PC MALL: Reaches Tentative Deal in "Whitmill" Meal Break Lawsuit
RAW BLUE: Recalls Children's Hoodies Due to Strangulation Hazard
TAKE-TWO INTERACTIVE: Court Dismisses Claims in Retirees' Suit
TAKE-TWO INTERACTIVE: Court Refuses to Certify Settlement Class
THOR INDUSTRIES: Faces Ohio Suit Over Unsafe Formaldehyde Levels
UNION BANK: Money Laundering Depressed Stock Price, Suit Says
WALGREEN CO: Faces Suit Over Common Colds Prevention Products
New Securities Fraud Cases
INYX INC: Coughlin Stoia Files Securities Fraud Lawsuit in N.Y.
REDDY ICE: Howard Smith Files Securities Fraud Suit in Michigan
*********
AK STEEL: Court Sets Oct. 21 Hearing for Racial Bias Suit Deal
--------------------------------------------------------------
The U.S. District Court for the Southern District of Ohio set a
hearing on Oct. 21, 2008, to consider final approval of a
proposed settlement in the racial discrimination class-action
lawsuit filed against AK Steel Holding Corp., according to the
company's Aug. 5, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The suit, entitled "Bert, et al. v. AK Steel Corp., Case No.
1:02-cv-00467-SSB-TSH," was filed on Jun. 26, 2002, by 17
individuals. As subsequently amended, the complaint alleges
that the company discriminates against African-Americans in its
hiring practices and that it discriminates against all of its
employees by preventing them from working in a racially
integrated environment free from racial discrimination.
The plaintiffs seek various forms of declaratory, injunctive and
unspecified monetary relief, including back pay, front pay, lost
benefits, lost seniority and punitive damages, for themselves
and unsuccessful African-American candidates for employment at
the company.
On Jan. 19, 2007, the court conditionally certified two
subclasses of unsuccessful African-American candidates. On
June 15, 2007, AK Steel filed a motion to decertify one of those
subclasses.
In January 2008, AK Steel filed motions for summary judgment on
all claims. On April 9, 2008, the Court granted AK Steel's
motion for summary judgment with respect to the disparate
treatment claims of four of the named plaintiffs and those
claims have been dismissed with prejudice. In addition, the
claims of several other plaintiffs have been dismissed for
various reasons.
Currently, there remain six plaintiffs, including five with
claims as class representatives and one with an individual
claim.
The other motions referred to, including AK Steel's motion for
summary judgment with respect to the plaintiff with individual
claims, remain pending.
The trial of this matter had been originally scheduled for June
2008, but on April 23, 2008, the Court vacated the June trial
date.
On May 29, 2008, AK Steel reached a settlement with the class
representatives (on behalf of themselves and the entire classes)
and the one remaining plaintiff whose individual claim has not
dismissed.
The settlement is subject to court approval. On July 8, 2008,
the court issued an order giving preliminary approval of the
settlement and scheduling a hearing on final approval for
Oct. 21, 2008.
Under the terms of the settlement, AK Steel will no longer use
the pre-employment test at issue in the lawsuit, and will have
pre-employment tests used at its Middletown Works and Ashland
Works validated by an expert agreed to by the parties.
In addition, AK Steel also will pay $10,000 to each of five
class representatives and to the one remaining individual
plaintiff.
AK Steel will contribute to a common fund the amount of $3,400
for each class member who files a timely proof of claim, to be
distributed by class counsel. There are an estimated 154 class
members. The company will further pay to class counsel $0.75 in
attorneys' fees. None of these payments is due until after
judgment from the court dismissing all claims covered by the
settlement is final (i.e. not subject to any appeals).
The suit is "Bert, et al. v. AK Steel Corp., Case No. 1:02-cv-
00467-SSB-TSH," filed in the U.S. District Court for the
Southern District of Ohio, Judge Sandra S. Beckwith, presiding.
Representing the plaintiffs are:
David Donald Kammer, Esq. (davek@tktlaw.com)
Paul Henry Tobias, Esq. (tkt@tktlaw.com)
Tobias, Kraus & Torchia
Phone: 513-241-8137
Fax: 513-241-7863
- and -
Allison W. Lowell, Esq. (awl@wcqp.com)
Wiggin Childs Quinn & Pantazis
301 19th Street
N. Birmingham, AL 35203
Phone: 205-314-0575
Fax: 205-254-1500
Representing the defendants are:
Lawrence James Barty, Esq. (barty@taftlaw.com)
Patricia Anderson Pryor, Esq. (Pryor@Taftlaw.com)
Gregory Parker Rogers, Esq. (Rogers@Taftlaw.com)
Taft Stettinius & Hollister
1800 Firstar Tower, 425 Walnut St.
Cincinnati, OH 45202-3597
Phone: 513-381-2838
513-357-9409
513-357-9344
Fax: 513-381-0205
AK STEEL: Seeks Supreme Court Review of "West" Payment Order
------------------------------------------------------------
AK Steel Corp. is seeking a review by the U.S. Supreme Court of
a decision handed down in the class-action suit "West v. AK
Steel Retirement, et al.," wherein the company was ordered to
pay more than $46 million to plaintiffs in the case.
On Jan. 2, 2002, John D. West, a former employee, filed the
class action suit in the U.S. District Court for the Southern
District of Ohio against the AK Steel Corporation Retirement
Accumulation Pension Plan and the AK Steel Corporation Benefit
Plans Administrative Committee.
Mr. West claims that the method used under the AK RAPP to
determine lump sum distributions does not comply with the
Employment Retirement Income Security Act of 1974 and resulted
in underpayment of benefits to him and the other class members.
The District Court ruled in favor of the plaintiff class and on
March 29, 2006, entered an amended final judgment against the
defendants in the amount of $37.6 in damages and $7.3 in
prejudgment interest, for a total of approximately $44.9, with
post judgment interest accruing at the rate of 4.7% per annum
until paid.
The defendants appealed to the U.S. Court of Appeals for the
Sixth Circuit. On April 20, 2007, a panel of the Court of
Appeals issued an opinion in which it affirmed the decision of
the District Court.
On Aug. 15, 2007, the defendants filed a motion to stay the
issuance of a mandate pending the filing of a petition for
certiorari. On Aug. 28, 2007, the Court of Appeals granted the
motion.
On Nov. 16, 2007, the defendants filed a petition for certiorari
with the U.S. Supreme Court. That petition remains pending.
The company reported no further development in the matter in its
Aug. 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "West v. AK Steel Retirement, et al., Case No. 1:02-
cv-00001-SSB-TSB," filed in the U.S. District Court for the
Southern District of Ohio, Judge Sandra S. Beckwith, presiding.
Representing the plaintiffs is:
Jori Bloom Naegele, Esq. (JNaegele@gntlaw.com)
Gary Naegele & Theado
446 Broadway Avenue
Lorain, OH 44052-1797
Phone: 440-244-4809
Representing the company is:
Robert D. Wick, Esq. (rwick@cov.com)
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, DC 20044
Phone: 202-662-6000
Fax: 202-662-6291
- and -
George Edward Yund, Esq. (gyund@fbtlaw.com)
Frost Brown & Todd
2200 PNC Center
201 East 5th Street
Cincinnati, OH 45202
Phone: 513-651-6824
Fax: 513-651-6981
AK STEEL: Still Faces Suit Over Anthem Insurance Demutualization
----------------------------------------------------------------
AK Steel Holding Corp. continues to face a purported class-
action suit, which was filed before the U.S. District Court for
the Southern District of Ohio in connection with the
demutualization of Anthem Insurance Cos., Inc.
On Dec. 12, 2007, two individuals filed the purported class
action suit against AK Steel Holding, AK Steel, Anthem Insurance
and others. The suit is captioned "Green et al v. AK Steel
Holding Corporation et al., Case No. 1:07-cv-01002."
The complaint alleges that the plaintiffs are entitled to
compensation arising from the demutualization of Anthem in 2001.
On March 20, 2008, AK Holding and AK Steel filed their answer to
the complaint. No trial date has been set.
The company reported no development in the matter in its Aug. 5,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
The suit is "Green, et al. v. AK Steel Holding Corporation, et
al., Case No. 1:07-cv-01002," filed in the U.S. District Court
for the Southern District of Ohio, Judge Michael R. Barrett,
presiding.
Representing the plaintiffs are:
Eric H. Zagrans, Esq. (eric@zagrans.com)
474 Overbrook Road
Elyria, OH 44035
Phone: 440-452-7100
Fax: 440-914-9601
Representing the defendants are:
Stephanie S. Bisselberg, Esq. (Bisselberg@taftlaw.com)
Taft Stettinius & Hollister
425 Walnut Street, Suite 1800
Cincinnati, OH 45202-3957
Phone: 513-357-9367
Kent Allen Britt, Esq. (kabritt@vssp.com)
Vorys Sater Seymour & Pease
221 E Fourth Street, Suite 2100
Cincinnati, OH 45201-0236
Phone: 513-723-4000
Fax: 513-723-4054
- and -
Adam P. Hall, Esq. (ahall@fbtlaw.com)
Frost Brown Todd LLC
201 E 5th Street
Cincinnati, OH 45202-4182
Phone: 513-651-6800
AK STEEL: Ohio Court Yet to Set Trial Date for "Patrick" Lawsuit
----------------------------------------------------------------
The U.S. District Court for the Southern District of Ohio has
yet to set a trial date for a lawsuit entitled, "Patrick, et al.
v. AK Steel Corporation, et al., Case No. 1:05-cv-00681-MRB."
The purported class-action suit was filed by two individuals on
Oct. 20, 2005, against AK Steel and the AK Steel Corporation
Benefit Plans Administrative Committee.
The suit alleges that the defendants incorrectly calculated the
amount of surviving spouse benefits due to be paid to the
plaintiffs under the applicable pension plan.
On Dec. 19, 2005, the defendants filed their answer to the
complaint. The parties subsequently filed cross-motions for
summary judgment on the issue of whether the applicable plan
language had been properly interpreted.
On Sept. 28, 2007, the U.S. Magistrate Judge assigned to the
case issued a "Report and Recommendation" in which he
recommended that the plaintiffs' motion for partial summary
judgment be granted and that the defendants' motion be denied.
The defendants filed timely objections to the Magistrate Judge's
Report and Recommendation.
On March 31, 2008, the court issued an order adopting the
Magistrate's recommendation and granting partial summary
judgment to the plaintiffs on the issue of plan interpretation.
The defendants subsequently filed a motion asking the court to
certify the case for an immediate appeal to the U.S. Court of
Appeals for the Sixth Circuit and seeking a stay pending appeal.
On May 29, 2008, the court denied the defendants' motion seeking
an immediate appeal and stay.
The case will now move forward with respect to discovery on the
issue of damages. The plaintiffs have filed a motion for class
certification, which remains pending. No trial date has been
set, according to the company's Aug. 5, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
The suit is "Patrick, et al. v AK Steel Corporation, et al.,
Case No. 1:05-cv-00681-MRB," filed in the U.S. District Court
for the Southern District of Ohio, Judge Michael R. Barrett,
presiding.
Representing the plaintiffs are:
Daniel Jerome Buckley, Esq. (djbuckley@vssp.com)
Vorys Sater Seymour & Pease
Atrium Two, 221 E. Fourth Street, Suite 2000
Cincinnati, OH 45201-0236
Phone: 513-723-4000
- and -
James Delano Ruppert, Esq. (jdruppert@ruppertlaw.com)
Ruppert Bronson & Ruppert
1063 East Second Street, P.O. Box 369
Franklin, OH 45005
Phone: 937-746-2832
Representing the defendants is:
Adam P. Hall, Esq. (ahall@fbtlaw.com)
Frost Brown Todd LLC
201 E 5th Street
Cincinnati, OH 45202-4182
Phone: 513-651-6800
AK STEEL: Some Class Members Appeal Approval of $663M Settlement
----------------------------------------------------------------
Certain class members in the matter "Bailey et al. v. AK Steel
Corp., Case No. 1:06-cv-00468-MRB," are appealing to the U.S.
Court of Appeals for the Sixth Circuit a decision by the U.S.
District Court for the Southern District of Ohio that granted
final approval to a $663-million settlement in the case.
Case Background
On June 1, 2006, AK Steel notified approximately 4,600 of its
current retirees (or their surviving spouses) who formerly were
hourly and salaried members of the Armco Employees Independent
Federation that the company was terminating their existing
healthcare insurance benefits plan and implementing a new plan
more consistent with current steel industry practices (Class
Action Reporter, Jan. 25, 2008).
However, this new plan would require the retirees to contribute
to the cost of their healthcare benefits, effective Oct. 1,
2006.
On July 18, 2006, a group of nine former hourly and salaried
members of the AEIF filed a purported class action lawsuit
before the U.S. District Court for the Southern District of
Ohio, alleging that AK Steel did not have a right to make
changes to their healthcare benefits.
The named plaintiffs in the action seek injunctive relief
(including an order retroactively rescinding the changes) and
unspecified monetary relief for themselves and the other members
of the putative class.
On Aug. 4, 2006, the plaintiffs filed a motion for a preliminary
injunction seeking to prevent AK Steel from implementing the
previously announced changes to healthcare benefits with respect
to the AEIF-represented hourly employees.
AK Steel opposed that motion, but on Sept. 22, 2006, the trial
court issued an order granting the motion. Almost immediately,
AK Steel filed a notice of appeal to the U.S. Court of Appeals
for the Sixth Circuit seeking a reversal of the decision to
grant the preliminary injunction.
Settlement
However, while the appeal was pending, AK Steel announced on
Oct. 8, 2007, that it had reached a tentative settlement of the
claims asserted by the retirees.
Accordingly, on Oct. 18, 2007, the pending appeal from the
preliminary injunction was dismissed at the request of the
parties.
Under the terms of the settlement, AK Steel will transfer to a
Voluntary Employees Beneficiary Association trust all post
employment benefit obligations owed to the plaintiffs under the
company's applicable health and welfare plans.
The VEBA will be utilized to fund the future OPEB Obligations to
the Class Members. AK Steel will initially fund the VEBA with a
contribution of $468 million in cash, with three subsequent
annual cash contributions of $65 million each, for a total of
$663 million. The settlement will relieve AK Steel of any
further liability for any OPEB Obligations to the plaintiffs.
Recent Developments
On Oct. 25, 2007, the parties filed a joint motion asking the
Court to approve the settlement.
On Nov. 1, 2007, an order was issued by the Court granting the
plaintiffs' renewed motion for class certification. On Nov. 2,
2007, the Court issued an order granting preliminary approval to
the Settlement and scheduled a Feb. 12, 2008 fairness hearing to
consider final approval of the deal.
On Feb. 21, 2008, the Court issued a written decision approving
the settlement. The final judgment formally approving the
Settlement was entered on Feb. 29, and the settlement became
effective on that date.
Certain class members who opposed the settlement have filed
appeals from the approval order to the U.S. Court of Appeals for
the Sixth Circuit, Case Nos. 08-3166 and 08-3354. No briefs
have yet been filed and no hearing date has been set in those
appeals, according to the company's Aug. 5, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
The suit is "Bailey, et al. v. AK Steel Corp., Case No. 1:06-cv-
00468-MRB," filed in the U.S. District Court for the Southern
District of Ohio, Judge Michael R. Barrett, presiding.
Representing the plaintiffs are:
David Marvin Cook, Esq. (dcook@dmcllc.com)
Stephen A. Simon, Esq. (ssimon@dmcllc.com)
22 West Ninth Street
Cincinnati, OH 45202
Phone: 513-721-6500
513-721-7500
Representing the company is:
Gregory Parker Rogers, Esq. (Rogers@Taftlaw.com)
Taft, Stettinius & Hollister
1800 First Star Tower
425 Walnut Street
Cincinnati, OH 45202
Phone: 513-357-9349
Representing the objectors is:
Glenn Virgil Whitaker, Esq. (gvwhitaker@vssp.com)
Vorys Sater Seymour & Pease
Atrium Two, 221 E Fourth Street, Suite 2000
Cincinnati, OH 45201-0236
Phone: 513-723-4000
ASSOCIATED ESTATES: Suredeposit Suit Still Pending in Ohio Court
----------------------------------------------------------------
The Franklin County, Ohio Court of Common Pleas has yet to rule
on a motion for summary judgment filed by Associated Estates
Realty Corp. in connection with a lawsuit over its Suredeposit
program.
On or about April 14, 2002, Melanie and Kyle Kopp commenced the
suit against the company, seeking undetermined damages,
injunctive relief and class action certification. This case
arose out of the company's Suredeposit program.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
The plaintiffs allege that the non-refundable premium paid for
the bond is a disguised form of security deposit, which is
otherwise required to be refundable in accordance with Ohio's
Landlord-Tenant Act.
They further allege that certain pet deposits and other
nonrefundable deposits required by the company are similarly
security deposits that must be refundable in accordance with
Ohio's Landlord-Tenant Act.
On or about Jan. 15, 2004, the plaintiffs filed a motion for
class certification. The company also subsequently filed a
motion for summary judgment. Both motions are pending before
the court.
The company reported no further development in the matter in its
Aug. 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
Associated Estates Realty Corp. -- http://www.aecrealty.com/--
is an integrated multifamily real estate company engaged in
property acquisition, advisory, development, management,
disposition, operation and ownership activities.
ATICO INT'L: Recalls Personal Blenders Due to Laceration Hazard
---------------------------------------------------------------
Atico International USA Inc., of Fort Lauderdale, Fla. (for the
Crofton model) and East West Distributing Co., of Deerfield Ill.
(for the Signature Gourmet model) -- in cooperation with the
U.S. Consumer Product Safety Commission -- are recalling about
124,000 Signature Gourmet and Crofton Personal Blenders.
The company said while placing the cup on or off the base of the
blender, the blender can be inadvertently turned on, activating
the blade. This can pose a serious laceration hazard to
consumers.
The firm has received 14 reports of lacerations, including 11
that required medical treatment and stitches.
This recall involves the Signature Gourmet (item number
W14A3691) and the Crofton (model number SB-19) personal
blenders. The blenders are white and have 3 components parts --
a base containing a power button, a blade assembly, and a
blending cup. Signature Gourmet or Crofton is printed on the
front of the base of the unit. "SB-19" or "W14A3691" is located
on a label at the bottom of the unit.
These recalled blenders were manufactured in China. The
Signature Gourmet blenders were sold at Walgreens stores
nationwide from July 2006 through March 2008 for about $16. The
Crofton blenders were sold at Aldi stores nationwide from May
2007 through March 2008 for about $13.
Pictures of the recalled blenders are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08361a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08361b.jpg
Consumers are advised to stop using the recalled blenders
immediately and call Atico International USA for instructions on
returning the product for a full refund.
Consumers should call Atico International USA toll-free at
877-546-4835 between 9:00 a.m. and 5:00 p.m. ET Monday through
Friday or visit the company's Web site at
http://www.aticousa.com/
BLOCKBUSTER INC: Faces Suits in British Columbia & Saskatchewan
---------------------------------------------------------------
Blockbuster, Inc., and Blockbuster Canada, Inc., continue to
face two putative class action lawsuits that are pending in
Canadian courts.
Hazell Litigation
William Robert Hazell filed a complaint before the Supreme Court
of British Columbia on Aug. 24, 2001, against Viacom
Entertainment Canada Inc., Viacom Inc., Blockbuster Canada, and
Blockbuster.
The case asserts claims of unconscionability, violations of the
trade practices act, breach of contract and high handed conduct.
The relief sought includes actual damages, disgorgement, and
exemplary and punitive damages.
Hedley Litigation
Douglas R. Hedley filed a complaint before the Court of Queen's
Bench, Judicial Centre of Regina, in Saskatchewan on July 19,
2002.
The case asserts claims of unconscionability, unjust enrichment,
misrepresentation and deception, and seeks recovery of actual
damages of $3 million, disgorgement, declaratory relief,
punitive and exemplary damages of $1 million and attorneys'
fees.
The company reported no further development in the matters in
its Aug. 14, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 6, 2008.
Blockbuster, Inc. -- http://www.blockbuster.com/-- is a global
provider of in-home rental and retail movie and game
entertainment, with over 9,000 stores in the U.S, its
territories and 24 other countries. The company operates in the
home video and home video game industries, which include in-home
movie (such as theatrical movie, television series and direct-
to-video product) and game entertainment offered primarily by
traditional (in-store) retail outlets, online retailers, and
cable and satellite providers.
BLOCKBUSTER INC: Continues to Face Stockholder Suit in Delaware
---------------------------------------------------------------
Blockbuster, Inc., continues to face a purported stockholder
class-action suit that was filed in the Newcastle County
Chancery Court, Delaware.
On Feb. 10, 2004, Howard Vogel filed the lawsuit against the
company, John Muething, Linda Griego, John Antioco, Jackie
Clegg, Viacom Inc., and the company' directors who were also
directors and officers of Viacom.
The plaintiff alleges that a stock swap mechanism anticipated to
be announced by Viacom would be a breach of fiduciary duty to
minority stockholders and that the defendants engaged in unfair
dealing and coercive conduct.
The stockholder class action complaint asks the court to certify
a class and to enjoin the then-anticipated transaction.
The plaintiff has confirmed that Blockbuster and the other
defendants are not required to respond to the pending complaint.
The company reported no development in the matter in its
Aug. 14, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 6, 2008.
Blockbuster, Inc. -- http://www.blockbuster.com/-- is a global
provider of in-home rental and retail movie and game
entertainment, with over 9,000 stores in the U.S, its
territories and 24 other countries. The company operates in the
home video and home video game industries, which include in-home
movie (such as theatrical movie, television series and direct-
to-video product) and game entertainment offered primarily by
traditional (in-store) retail outlets, online retailers, and
cable and satellite providers.
BLOCKBUSTER INC: Still Faces "End of Late Fees" Program Lawsuits
----------------------------------------------------------------
Blockbuster, Inc., continues to face two purported class-action
suits over its "end of late fees" program, according to the
company's Aug. 14, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 6,
2008.
Galeno Litigation
On Feb. 25, 2005, Michael L. Galeno filed a putative class
action suit before the Supreme Court of New York County, New
York, alleging breach of contract, unjust enrichment, and that
Blockbuster's "no late fees" program violates New York's
consumer protection statutes prohibiting deceptive and
misleading business practices.
The suit seeks compensatory and punitive damages and injunctive
relief.
Blockbuster removed the case to the U.S. District Court for
Southern District of New York.
Creighton Litigation
On March 4, 2005, Beth Creighton filed a putative class action
suit in the Circuit Court of Multnomah County, Oregon, alleging
that Blockbuster's "no late fees" program violates Oregon's
consumer protection statutes prohibiting deceptive and
misleading business practices.
The suit alleges fraud and unjust enrichment and seeks equitable
and injunctive relief. Blockbuster removed the case to the U.S.
District Court for District of Oregon.
Blockbuster, Inc. -- http://www.blockbuster.com/-- is a global
provider of in-home rental and retail movie and game
entertainment, with over 9,000 stores in the U.S, its
territories and 24 other countries. The company operates in the
home video and home video game industries, which include in-home
movie (such as theatrical movie, television series and direct-
to-video product) and game entertainment offered primarily by
traditional (in-store) retail outlets, online retailers, and
cable and satellite providers.
BLOCKBUSTER INC: ERISA Suit Pending in Texas; Plaintiff Added
-------------------------------------------------------------
The plaintiff in a purported class action suit pending with the
U.S. District Court for the Northern District of Texas against
Blockbuster, Inc., filed an amended complaint in the matter,
adding an additional named plaintiff.
On Sept. 8, 2006, John Halaris filed a putative collective class
action complaint under the Employee Retirement Income Security
Act, purporting to act on behalf of all persons who were
participants in or beneficiaries of the Blockbuster Investment
Plan whose accounts included investments in Blockbuster, Inc.
stock, at any time, since Nov. 15, 2003.
The plaintiff asserts claims against:
-- Vicaom, Inc.,
-- the Viacom Investment Committee,
-- the Viacom Retirement Committee,
-- William A. Roskin,
-- John R. Jacobs,
-- Mary Bell,
-- Bruce Lewis,
-- Robert G. Freedline,
-- Larry J. Zine,
-- Keith M. Holtz,
-- Barbara Mickowski,
-- Dan Satterthwaite,
-- Phillipe P. Dauman,
-- Sumner M. Redstone,
-- Richard Bressler,
-- Michael D. Fricklas,
-- John L. Muething,
-- Linda Griego,
-- Jackie M. Clegg,
-- John F. Antioco,
-- Peter A. Bassi,
-- Robert A. Bowman,
-- Gary J. Fernandes,
-- Mel Karmazin,
-- Blockbuster, Inc.
-- the Blockbuster Retirement Committee, and
-- the Blockbuster Investment Committee.
The plaintiff claims that the defendants breached their
fiduciary duties in violation of ERISA.
The suit seeks declaratory relief, recovery of actual damages,
court costs, attorney's fees, a constructive trust, restoration
of lost profits to the Blockbuster Investment Plan and an
injunction.
On Sept. 21, 2007, the trial court partially granted the
defendants' motions to dismiss the complaint and dismissed the
plaintiff's claims for restitution damages and alleged omissions
by the defendants.
The trial court denied other portions of the defendants' motions
to dismiss and reserved judgment on other portions of their '
motions to dismiss.
The trial court allowed the plaintiff the opportunity to re-
plead his claims in light of the trial court's partial
dismissal.
On Nov. 5, 2007, Mr. Halaris filed an amended class action
complaint adding Dennis Conniff as an additional named
plaintiff.
The company reported no further development in the matter in its
Aug. 14, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 6, 2008.
The suit is "Halaris v. Viacom Inc., et al., Case No. 3:06-cv-
01646," filed in the U.S. District Court for the Northern
District of Texas, Judge David C. Godbey, presiding.
Representing the plaintiffs is:
Thomas E. Bilek, Esq. (tbilek@hb-legal.com)
Hoeffner & Bilek
1000 Louisiana St., Suite 1302
Houston, TX 77002
Phone: 713-227-7720
Fax: 713-227-9404
Representing the defendants is:
Kenneth P. Held, Esq. (kheld@velaw.com)
Vinson & Elkins
1001 Fannin St., Suite 2300
Houston, TX 77002-6760
Phone: 713-758-4353
Fax: 713-615-5219
BLOCKBUSTER INC: Faces Suit in Texas Over Invasion of Privacy
-------------------------------------------------------------
Blockbuster, Inc., is facing a class-action complaint before the
U.S. District Court for the Eastern District of Texas, over
allegations it invaded customers' privacy by sending information
about their movie rentals to the Facebook Web site.
This is a class action pursuant to the Video Privacy Protection
Act, 18 USC Section 2710. The plaintiffs also bring this action
pursuant to Rules 23 (b)(3) and 23(b)(2) of the Federal Rules of
Civil Procedure on behalf of each and every individual in the
United States of America who has ever been a member of Facebook
and Blockbuster on-line during the same period beginning from
Nov. 6, 2007, through the date of judgment herein whose name,
and address, or a title, description, or subject matter of any
video tapes or other audio visual materials that were rented,
sold or delivered to each individual were distributed to third
parties by defendant without the informed written consent of
such individuals or a clear and conspicuous manner to prohibit
the disclosure of such individuals name and address (Class
Action Reporter, April 14, 2008).
CourtHouse News Service reported that the plaintiffs claim
Blockbuster's cooperation with Facebook's "Beacon" system
violates the Videotape Privacy Protection Act, which Congress
passed after a newspaper obtained a list of 146 movies Robert
Bork or his family had rented, and publicized it during Bork's
failed nomination to the Supreme Court.
The plaintiffs say that Facebook launched Beacon in November
2007, in cooperation with 44 other Web sites, that automatically
fed information to Facebook. This was not just for social
purposes, but was "a core element in the Facebook Ads system for
connecting businesses with users," the plaintiffs say.
According to the complaint, Blockbuster sent information about
movie rentals to Facebook, which added it to members' Facebook
profile, something like this: "Preston added Lord of the Rings
to his queue on Blockbuster.com," the complaint states.
This was an opt-out system, in which users had to check a box to
prevent the information from being distributed, the plaintiffs
say.
According to CourtHouse, Facebook founder Mark Zuckerberg, faced
with furious criticism about privacy invasion, was forced to
issue an apology, in December, which is quoted, apparently in
full, in this filing. "To this day, however, Facebook still
receives personal identifiable information from participating
Web site with the Beacon javascript, whether the Facebook member
has chosen to distribute their information or not," Facebook
says.
The plaintiffs say that if users did not check the opt-out box
quickly enough, their information would be sent to Facebook, and
that along with "a picture of the individual who purchased the
movie and a Blockbuster ad."
They say that Blockbuster did not notify online customers that
this information was being sent to Facebook until "sometime in
December 2007. However, the summary is immediately sent to a
user's Facebook profile even before the user has a chance to
decline the distribution of his personal identifiable
information -- as long as you have not marked the privacy
feature telling Blockbuster never to send summaries. To this
day, Blockbuster online victims remain unsuspecting victims,"
the complaint states.
Blockbuster, which has 64 million "active users," is the 7th
most popular site on the Web, the complaint points out.
The plaintiffs want the court to rule on:
(a) whether defendants improperly distributed and used
"personal identifiable information" obtained from their
websites of members of the class, within the meaning of
the VPPA, 18 USC Section 2710;
(b) whether defendants' obtaining and distributing
"personal identifiable information" from the
defendants' Web sites of members of the class was done
knowingly, within the meaning of the VPPA, 18 USC
Section 2710;
(c) whether defendants' when disclosing the names and
addresses of members of the class provided members of
the class "a clear and conspicuous manner, to prohibit
such disclosure," within the meaning of the VPPA, 18
USC Section 2710;
(d) whether defendants' disclosure of the names and
addresses of members of the class disclosed the "title,
description, or subject matter of any video tapes or
other audio visual materials," within the meaning of
the VPPA, 18 USC Section 2710;
(e) whether defendants' disclosure of the names and
addresses of members of the class was for the
"exclusive use of marketing goods and services directly
to the consumer," within the meaning of the VPPA, 18
USC Section 2710; and
(f) whether defendants' obtaining and distribution of
"personal identifiable information" from the
defendants' Web sites of members of the class was
destroyed "as soon as practicable, but not later that
one year from the date the information is no longer
necessary for the purpose for which it was collected,"
within the meaning of the VPPA, 18 USC Section 2710.
The plaintiffs ask the court to enter an order:
-- declaring that this action may be maintained as a class
action;
-- granting judgment in favor of plaintiffs and the other
members of the class against the defendant in the amount
of $2,500 for each instance in which the defendant
disclosed, or used persona identifiable information
concerning the plaintiff and members of the class;
-- awarding punitive damages should the court find that the
defendants acted in willful or reckless disregard of the
VPPA;
-- awarding attorney's fees and other litigation costs
reasonably incurred; and
-- requiring the defendants to destroy any personal
information illegally distributed.
The company reported no further development in the matter in its
Aug. 14, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 6, 2008.
The suit is "Cathryn Elaine Harris, et al. v. Blockbuster,
Inc.," filed in the U.S. District Court for the Eastern District
of Texas, Judge T. John Ward, presiding.
Representing the plaintiffs is:
Jeremy R. Wilson, Esq. (jwilson@corealaw.com)
The Corea Firm PLLC
The Republic Center
325 North St. Paul Street, Suite 4150
Dallas, TX 75201
Phone: 214-953-3900
Fax: 214-953-3901
Representing the defendants is:
Michael Lawrence Raiff, Esq. (mraiff@velaw.com)
Vinson & Elkins
2001 Ross Ave.
3700 Trammell Crow Center
Dallas, TX 75201-2975
Phone: 214-220-7744
Fax: 1-214-999-7705
BUSINESS COMPUTER: Sued Over Unprovided Placement Services
----------------------------------------------------------
The Business Computer Training Institute is facing a class-
action complaint filed in the Circuit Court of the State of
Oregon, for the County of Multnomah, over allegations it closed
all of its schools in Oregon and Washington without providing
the placement services it promised to more than 100 graduates,
CourtHouse News Service reports.
BCTI closed all its schools in Oregon and Washington in January
2005, the complaint recounts.
Also sued is BCTI's the parent corporation, BCTI Community
Services, LP.
Named plaintiff Eula Gordon says she spent $12,000 for the
program at BCTI's Beaverton campus. She attended from June 2004
until she graduated in January 2005. She claims she was
"damaged in the sum of $4,800, which is 40 percent of her costs
to attend BCTI," without elucidating why she claims only the
40%.
The plaintiff brings this action pursuant to Rule 32 of the
Oregon Rules of Civil Procedure, on behalf of all individuals
who graduated from BCTI's vocational schools in Oregon after
July 1, 2004, who want job placement assistance.
The plaintiff wants the court to rule on:
(a) whether BCTI had agreed to provide its graduates with
job placement assistance pursuant to its standard
contract;
(b) whether it has failed to provide the class with the
agreed job placement assistance prior to and since its
closing in Jan. 2005; and
(c) the monetary value of the job placement assistance.
The plaintiff requests that the court grant class action status
of her claim and award her and all others similarly situated
damages of $4,800 each, plus interest from Jan. 1, 2005, plus
reasonable attorney fees and costs and disbursements.
The suit is "Eula A. Gordon, et al. v. BCTI Community Services,
Limited, et al., Case No. 0808-11799," filed in the Circuit
Court of the State of Oregon, for the County of Multnomah.
Representing the plaintiff is:
Charles Robinowitz, Esq. (chuck@crlawoffice.com)
Attorney at Law
1211 S.W. Fifth Avenue, Suite 2323
Portland, OR 97204
Phone: 503-226-1464
Fax: 503-226-6456
COLUMBIA UNIVERSITY: Anti-feminist Sues Over Women's Studies
------------------------------------------------------------
Columbia University is facing a lawsuit filed by Manhattan
lawyer Roy Den Hollander, Esq., before the U.S. District Court
in Manhattan, Corey Kilgannon writes for New York Times. The
suit alleges that the university's offer of women's studies
courses is discriminatory toward men.
The report points out that Mr. Hollander is a self-described
antifeminist. According to NY Times, over the past year, Mr.
Hollander has sued Manhattan nightclubs for favoring women by
offering ladies' night discounts and has sued the federal
government over a law that protects women from violence.
Specifically, in July 2007, Mr. Hollander filed a class-action
suit against prominent Manhattan nightclubs like Copacabana,
China Club, Lotus and Sol, claiming they discriminated against
men with their ladies' nights offering free or reduced
admission, which allegedly violates the 14th Amendment's
guarantee of equal protection under the law. In addition, in
February 2008, Mr. Hollander filed a suit against the federal
government calling parts of the Violence Against Women Act
unconstitutional. These cases are still pending.
In his latest class-action suit, Mr. Hollander accuses Columbia
University of using government aid to preach a "religionist
belief system called feminism." He also called women's studies
"a bastion of bigotry against men" and said that the
university's women's studies program "demonizes men and exalts
women in order to justify discrimination against men based on
collective guilt."
Such academic programs at Columbia and at universities
nationwide, Mr. Hollander's suit says, are "spreading prejudice
and fostering animosity and distrust toward men with the result
of the wholesale violation of men's rights due to ignorance,
falsehoods and malice."
"Federal financial aid, state funds and other assistance help
proselytize feminism at Columbia," in violation of equal
protection safeguards of the Fifth and 14th Amendments, Mr.
Hollander claims, adding "Columbia has thrown its influence and
prestige into violating the rights of men by offering a women's
studies program but no men's studies program."
NY Times relates that Mr. Hollander devotes much of his private
practice to representing men in civil cases -- "antifeminist
cases or guys'-rights cases," as he puts it -- and said his
bitter 2001 divorce from a woman he married in Russia helped
ignite his anger toward feminists and laws he sees as favoring
women.
Columbia University spokesman Robert Hornsby told NY Times that
he could not comment on the lawsuit or even confirm that the
university had been served with it.
COSMETICS MAKERS & RETAILERS: Suit Deal Means Free Cosmetics
------------------------------------------------------------
Over a decade of legal battle against cosmetics manufacturers
and department stores is coming to a close with consumers ready
to collect millions of dollars worth of free cosmetics and
perfume, Sue Kwon writes for CBS5.com.
According to the report, those who bought from a long list of
department store brands between May 1994 and July 2003 are
eligible to take part in the settlement. Eligible claimants do
not need a receipt or proof of purchase, but have to sign up if
they want to be notified of when the giveaway begins.
CBS 5 recounts that the class action lawsuit accused department
stores and manufacturers of conspiring to never offer discounts
on high end perfumes and cosmetics. Brands include Chanel,
Calvin Klein, Vera Wang, MAC, Aveda, Lancolm, and many more.
The suit settlement means that anyone who says they bought these
products at stores like Macy's, Nordstrom, Neiman Marcus can
collect $175 million in free products.
Long lines are expected to form around dozens of department
stores involved in the lawsuit starting in January, the report
says. According to CBS 5, the defendants denied any wrongdoing
but agreed to the settlement four years ago. However,
objections from San Francisco attorney William Abbott, Esq.,
delayed the payout.
"It's a publicity stunt. The giveaway will be huge at
$175 million of free cosmetics. There will be big ads. It'll
be like a horror show. And it's not going to help the consumers
who bought these products on a regular basis. The busy
professional woman is not going to stand in a long line," Mr.
Abbott had argued. He also said that the class action attorneys
get $25 million, people willing to stand in line will each
receive $25 in products, but ultimately he said consumers lose
out because it will be business as usual.
"Department stores and cosmetic companies never admitted to
doing anything wrong," Mr. Abbott had contended. "They did not
agree to stop doing anything they were accused of doing. The
settlement specifically states that the department stores and
cosmetic manual will continue their current business practices."
One of those practices, the report notes, is coordinating bonus
gift promotions so different stores each get a turn, and do not
have to compete by offering additional discounts. Mr, Abbott
said the manufacturers put pressure on stores to sell products
at a manufacturers' suggested retail price and guaranteed if
products did not move off shelves, they would buy back items
thus preventing the need to slash prices to sell.
COUNTRYWIDE FINANCIAL: Calif. Suit Accuses Violation of Privacy
---------------------------------------------------------------
Countrywide Financial Corp. is facing another class-action
complaint before the U.S. District Court for the Central
District of California accusing the subprime mortgage lender of
illegally selling customers' private financial information to
third parties, without customers' consent, CourtHouse News
Service reports.
Plaintiffs claim Countrywide sold their Social Security numbers,
names, addresses, phone numbers, credit information and other
sensitive personal and financial information to unauthorized
parties.
CourtHouse News says that the suit is a consumer class action
brought on behalf of all persons whose sensitive information,
including but not limited to, customers' and mortgage
applicants' names, social security numbers, home and office
addresses, telephone numbers, credit and bank account
information, and other financial information was intentionally
and illegally distributed and sold by employees, representatives
and agents of defendants.
The plaintiffs want the court to rule on:
(a) whether the defendants were negligent in collecting and
storing plaintiffs' and class members' Sensitive
Information;
(b) whether defendants took reasonable steps and measures
to safeguard plaintiffs' and class members' Sensitive
Information;
(c) whether defendants' conduct was reckless;
(d) whether defendants owed the legal duties discussed in
the complaint to plaintiffs and class and whether
defendants breached those duties;
(e) whether defendants breached their duty to exercise
reasonable care in storing plaintiffs' and class
members' Sensitive Information by storing that
information on its computer systems in the manner in
which it did;
(f) whether defendants breached their duty to plaintiffs
and class members by failing to keep their Sensitive
Information secure;
(g) whether defendants were negligent in failing to keep
plaintiffs' and class members' Sensitive Information
secure;
(h) whether implied contracts existed between defendants
and plaintiffs and the class;
(i) whether defendants breached the implied contracts
between it and plaintiffs and the class;
(j) whether defendants' failure to protect the personal
information of plaintiffs and the class violated their
legally protected privacy interest under the
Constitution;
(k) whether plaintiffs and the class are at an increased
risk of identity theft as a result of defendants'
failure to protect the personal information of
plaintiffs and the class;
(l) whether defendants violated Cal. Bus. and Prof. Code
Section 17200 et seq.;
(m) whether plaintiffs and the class have sustained
damages, and if so, what is the proper measure of those
damages; and
(n) whether statutory damages are proper in this matter,
and in what amount.
The plaintiffs request that the court enter an order:
-- certifying the proposed nationwide class under Federal
Rule of Civil Procedure 23(a) and (b)(3) and appointing
plaintiffs and plaintiffs' counsel of record to
represent said class;
-- finding that defendants breached their contract to
safeguard and protect plaintiffs' and the class'
Sensitive Information stored on their computer systems
and in their physical possession;
-- finding that defendants are responsible for its
employees' actions as agents of defendants;
-- enjoining defendants from action which places consumers
at a risk of future security breaches;
-- requiring defendants to identify to plaintiffs and the
class to whom their information was sold;
-- finding that defendants violated the provisions of Cal.
Bus. and Prof. Code Section 17200 et seq.;
-- awarding injunctive relief, including but not limited
to:
(1) the provision of credit monitoring and credit
card monitoring services for the class;
(2) the provision of identity theft insurance for the
class; and
(3) the requirement that defendants receive periodic
compliance audits by and third party regarding the
security of its computer systems used for processing
and storing customer data;
-- awarding compensation to anyone who suffers damages as a
result of the unauthorized release of their Sensitive
Information;
-- awarding damages to plaintiffs and class members under
the common law theory alleged;
-- awarding punitive and treble damages as provided under
relevant laws;
-- awarding declaratory relief as the court deems
appropriate;
-- awarding all costs, including experts' fees and
attorneys' fees, and the costs of prosecuting this
action;
-- awarding pre-judgment and post-judgment interest as
prescribed by law; and
-- providing for other legal and equitable relief as is
permitted by law and as justice requires.
The suit is "Edmond Moses, et al. v. Countrywide Financial Corp.
et al., Case No. CV08-05416 MMM," filed in the U.S. District
Court for the Central District of California.
Representing the plaintiffs is:
Rosemary M. Rivas, Esq.
Finkelstein Thompson LLP
100 Bush Street, Suite 1450
San Francisco, CA 94104
Phone: 415-398-8700
Fax: 415-398-8704
EDWARD JONES: Reaches $19MM Settlement in Wage & Hour Lawsuits
--------------------------------------------------------------
Edward Jones & Co., L.P., the principal operating subsidiary of
The Jones Financial Cos., L.L.L.P., reached a $19,000,000
settlement that resolves several related class-actions suits in
connection with the company and its compliance to federal and
state minimum wage and overtime laws.
In general, the putative class-action suits allege that the
company has misclassified its financial advisors as exempt from
overtime pay, improperly deducted certain business expenses and
otherwise failed to comply with certain state and federal wage
and hour laws (Class Action Reporter, April 25, 2008).
Covered in the settlement is any individual that was employed by
Edward Jones as a Financial Advisor and Financial Advisor
Trainee during these time periods:
-- In Pennsylvania, any time between March 16, 2003, and
May 14, 2008;
-- In Ohio, any time between Nov. 27, 2003, and May 14,
2008;
-- In New York, any time between Dec. 11, 2000, and
May 14, 2008;
-- In any state within the U.S. with the exception of
California, Pennsylvania, Ohio, or New York, any time
between Aug. 16, 2003, and May 14, 2008.
For more details, contact:
Weaver v. Edward Jones Claims Administrator
c/o Rust Consulting, Inc.
P.O. Box 1546
Minneapolis, MN 55440-1546
Phone: 1-888-356-0158
FARMERS INSURANCE: Faces Calif. Suit Over Untranslated Contracts
----------------------------------------------------------------
Farmers Insurance is facing a class-action complaint in Los
Angeles Superior Court over allegations it cheats Spanish-
speaking homeowners by withholding benefits and refusing to
translate contracts, Karina Brown writes for the CourtHouse News
Service.
"Though almost every other consumer contract in the state of
California requires that the party receive the contract in their
native language, the sole protection of a consumer's largest
asset, their home, has successfully evaded the same
requirements," the complaint states.
Named plaintiffs Celso and Angelica Soto say Farmers advertised
its homeowner's insurance policies on a Spanish language Web
site that lists a phone number for a purported Spanish-language
help line.
But the Sotos say that when their kitchen plumbing burst,
causing $10,000 in water damage, Farmers refused to provide a
Spanish translation of its decision to reimburse only $1,695 of
the damage, the complaint states.
According to the report, the Sotos say they had to ask their
young daughter to translate, since Farmers refused their
requests for a translator.
Farmers revised its damage estimate after the Sotos hired a
lawyer, raising it from $2,600 to $6,800, the complaint states.
They say Farmers paid the $6,800, but refused to acknowledge the
additional $3,200 in damage.
The Sotos claim Farmers discriminated against them and cheated
them.
Representing the plaintiffs are:
Richard Quintilone, Esq.
Dayna Carter, Esq.
Quintilone & Associates
22974 El Toro Rd., Ste 100
Lake Forest, CA 92630
Phone: 949-458-9675
Web site: http://www.quintlaw.com/
FIRST SITE: Former Tenants Sue Over Lost Security Deposits
----------------------------------------------------------
A class action lawsuit was filed on behalf of former tenants of
First Site Ltd. accusing the owners of unfairly refusing to
return security deposits to renters, Edith Brady-Lunny writes
for The Pantagraph.
Chicago lawyer Mark Silverman, Esq., filed the suit in McLean
County court on behalf of named plaintiff, Ashley Witt, who
lived in a unit at 404 Vernon Ave., Normal, managed by First
Site from February 2007 to January 2008. In the lawsuit Ms.
Witt contends that First Site returned $114 of a $650 deposit
because of cleaning and painting required after she moved out.
According to the suit, First Site refused to provide receipts
for the work, which Ms. Witt argues was not necessary.
Jeffrey Tinervin, the owner of one of the largest student
housing rental firms in Bloomington-Normal, is named in the
lawsuit. The 41 properties listed in the lawsuit "are owned by
a series of entities managed or controlled by Tinervin," said
court documents.
The Pantagraph relates that the number of former renters
involved in the lawsuit is described as "at least dozens" by
attorneys for Ms. Witt.
First Site is specifically accused of refusing to provide paid
receipts for work and withholding funds "beyond sums required to
remedy damage or dirtiness actually inflicted by those tenants
beyond normal wear and tear," the lawsuit states.
Ms. Witt lawyers told The Pantagraph that her claims represent
violations of the Illinois Security Deposit Return Act. First
Site also engaged in unfair business practices by charging
renters for cleaning, painting and maintenance of items that did
not involve damage to the apartments.
Work on the apartments was performed by Apartment Services of
McLean County Inc., a company that is also owned by Mr.
Tinervin.
The suit is asking for payment of the former tenants' security
deposits along with unspecified punitive damages and legal fees.
The former tenants are also seeking an injunction against First
Site to end what they consider unfair practices involving
security deposits.
Mr. Tinervin did not immediately return a call from The
Pantagraph for comment.
A Nov. 6, 2008, case management conference is scheduled, the
report says.
FISHER-PRICE: Recalls Learning Pots and Pans Posing Choking Risk
----------------------------------------------------------------
Fisher-Price, of East Aurora, NY, in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 15,000
Learning Pots & Pans Toys.
The company said missing screws in the blue toy pan can cause
the clear plastic cover to come loose and release small balls,
presenting a choking hazard to young children.
Fisher-Price has received five reports of the plastic covers
detaching and releasing the small balls. No injuries have been
reported.
This recall involves Learning Pots and Pans toy sets with
stackable pots and pans, a lid and shape-sorting blocks. The
toys have light and sound features that operate on three AA
batteries. Model number G6685 is located on the bottom of the
blue pan.
These recalled pots and pans were manufactured in China and were
being sold at discount department and toy stores nationwide from
October 2007 to August 2008 for about $20.
Consumers are advised to immediately take these recalled toys
away from children and examine the bottom of the blue pan. The
pan should contain six screws. If all six screws are installed,
no further action is necessary. If any screws are missing, the
consumer should contact Fisher-Price to arrange for the return
of the blue pan for a replacement.
For additional information, contact Fisher-Price at 888-521-0820
anytime, or visit the firm's Web site at
http://www.service.mattel.com/
FRANKLIN RESOURCES: N.J. Court Affirms Dismissal of "Ulferts"
-------------------------------------------------------------
The U.S. District Court for the District of New Jersey affirmed
its order dismissing with prejudice the purported class-action
suit captioned, "Ulferts v. Franklin Resources, Inc., et al.,
Case No. 2:07-cv-01309 WJM-MF," according to the company's
Aug. 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
Initially, the company and certain of its subsidiaries were
named in a lawsuit entitled "Ulferts v. Franklin Resources,
Inc., et al., Case No. 06-7847 SI," which was filed on Dec. 22,
2006, before the U.S. District Court for the Northern District
of California.
The suit alleges violations of federal securities laws relating
to disclosure of marketing support payments and payment of
allegedly excessive commissions. It was styled as a class
action and sought, among other relief, compensatory damages and
attorneys' fees and costs.
On March 16, 2007, the U.S. District Court for the Northern
District of California entered a stipulated order transferring
the lawsuit to the U.S. District Court for the District of New
Jersey. The transferred case in now captioned, "Ulferts v.
Franklin Resources, Inc., et al., Case No. 2:07-cv-01309 WJM-
MF."
On Sept. 25, 2007, the defendants filed a motion to dismiss the
lawsuit. On April 24, 2008, the court granted the defendants'
motion and dismissed the lawsuit with prejudice.
On May 8, 2008, the plaintiff in that lawsuit filed a motion for
leave, on reconsideration or otherwise, to file an amended
complaint. On June 30, 2008, the court denied that motion and
affirmed its April 24, 2008 order dismissing the lawsuit with
prejudice.
Franklin Resources, Inc. -- http://www.franklintempleton.com/--
is an investment management company. Through its wholly owned
direct and indirect subsidiaries, Franklin Resources provides
investment management and fund administration services to open-
end and closed-end investment companies, institutional accounts,
high-net-worth families, individuals and separate accounts in
the U.S. and internationally.
FRANKLIN RESOURCES: Court Partially Dismisses Market-Timing Suit
----------------------------------------------------------------
The U.S. District Court for the District of Maryland granted in
part and denied in part Franklin Resources, Inc.'s motion to
dismiss the consolidated amended class-action complaint in the
consolidated market timing or late trading class-action suit
filed against the company and certain of the Franklin Templeton
mutual funds, current and former officers, employees, and
directors.
The defendants have been named in multiple lawsuits in different
federal courts in Nevada, California, Illinois, New York, and
Florida. Generally, the cases alleged violations of various
federal securities and state laws.
Specifically, the lawsuits claim breach of duty with respect to
alleged arrangements to permit market timing and late trading
activity, or breach of duty with respect to the valuation of the
portfolio securities of certain Templeton Funds managed by the
company's subsidiaries, allegedly resulting in market timing
activity.
The lawsuits are styled as class actions, or derivative actions
on behalf of either the named funds or the company.
The plaintiffs are seeking, among other relief, monetary
damages, restitution, removal of fund trustees, directors,
advisers, administrators, and distributors, rescission of
management contracts and 12b-1 plans, and attorneys' fees and
costs.
The majority of these lawsuits duplicate, in whole or in part,
the allegations asserted in an administrative complaint and in
the U.S. Securities and Exchange Commission's findings regarding
market timing in the SEC Order.
To date, more than 400 similar lawsuits against at least 19
different mutual fund companies have been filed in federal
district courts throughout the country.
Because the cases involve common questions of fact, the Judicial
Panel on Multidistrict Litigation ordered the creation of a
multidistrict litigation in the U.S. District Court for the
District of Maryland entitled "In re Mutual Funds Investment
Litigation."
The Judicial Panel then transferred similar cases from different
districts to the MDL for coordinated or consolidated pretrial
proceedings.
As of Dec. 20, 2006, these market timing lawsuits are pending
against the company and certain of its subsidiaries, and in some
instances, name certain officers, directors and Funds. The
suits that have been transferred to the MDL include:
* "Kenerley v. Templeton Funds, Inc., et al., Case No.
03-770 GPM," filed on Nov. 19, 2003, in the U.S.
District Court for the Southern District of Illinois;
* "Cullen v. Templeton Growth Fund, Inc., et al., Case
No. 03-859 MJR," filed on Dec. 16, 2003, in the U.S.
District Court for the Southern District of Illinois
and transferred to the U.S. District Court for the
Southern District of Florida on March 29, 2004;
* "Jaffe v. Franklin AGE High Income Fund, et al., Case
No. CV-S-04-0146-PMP-RJJ," filed on Feb. 6, 2004, in
the U.S. District Court for the District of Nevada;
* "Lum v. Franklin Resources, Inc., et al., Case No. C 04
0583 JSW," filed on Feb. 11, 2004, in the U.S. District
Court for the Northern District of California;
* "Fischbein v. Franklin AGE High Income Fund, et al.,
Case No. C 04 0584 JSW," filed on Feb. 11, 2004, in
the U.S. District Court for the Northern District of
California;
* "Beer v. Franklin AGE High Income Fund, et al., Case
No. 8:04-CV-249-T-26 MAP," filed on Feb. 11, 2004, in
the U.S. District Court for the Middle District of
Florida;
* "Bennett v. Franklin Resources, Inc., et al., Case No.
CV-S-04-0154-HDM-RJJ," filed on Feb. 12, 2004, in the
U.S. District Court for the District of Nevada;
* "Dukes v. Franklin AGE High Income Fund, et al., Case
No. C 04 0598 MJJ," filed on Feb. 12, 2004, in the
U.S. District Court for the Northern District
of California;
* "McAlvey v. Franklin Resources, Inc., et al., Case No.
C 04 0628 PJH," filed on Feb. 13, 2004, in the U.S.
District Court for the Northern District of
California;
* "Alexander v. Franklin AGE High Income Fund, et al.,
Case No. C 04 0639 SC," filed on Feb. 17, 2004, in the
U.S. District Court for the Northern District of
California;
* "Hugh Sharkey IRA/RO v. Franklin Resources, Inc., et
al., Case No. 04 CV 1330," filed on Feb. 18, 2004, in
the U.S. District Court for the Southern District of
New York;
* "D'Alliessi, et al. v. Franklin AGE High Income Fund,
et al., Case No. C 04 0865 SC," filed on March 3, 2004,
in the U.S. District Court for the Northern District of
California;
* "Marcus v. Franklin Resources, Inc., et al., Case No. C
04 0901 JL," filed on March 5, 2004, in the U.S.
District Court for the Northern District of
California;
* "Banner v. Franklin Resources, Inc., et al., Case No. C
04 0902 JL," filed on March 5, 2004 in the U.S.
District Court for the Northern District of
California;
* "Denenberg v. Franklin Resources, Inc., et al., Case
No. C 04 0984 EMC," filed on March 10, 2004, in the
U.S. District Court for the Northern District
of California; and
* "Hertz v. Burns, et al., Case No. 04 CV 02489," filed
on March 30, 2004, in the U.S. District Court for the
Southern District of New York.
The plaintiffs in the MDL filed consolidated amended complaints
on Sept. 29, 2004. On Feb. 25, 2005, the defendants, including
the company, certain of its subsidiaries and the named Funds and
individual defendants, filed motions to dismiss those amended
complaints.
On June 26, 2008, the court issued its order granting in part
and denying in part the company's motion to dismiss the
consolidated amended class-action complaint, according to the
company's Aug. 5, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The suit is "In re Mutual Funds Investment Litigation, Case No.
1:04-md-15862-AMD," pending before the U.S. District Court for
the District of Maryland, Judge Andre M. Davis, presiding.
Representing the plaintiffs is:
H. Adam Prussin, Esq. (haprussin@pomlaw.com)
Pomerantz Haudek Block Grossman and Gross, LLP
100 Park Ave., 26th Fl.
New York, NY 10017-5516
Phone: 1-212-661-1100
Fax: 1-212-661-8665
Representing the company is:
Meredith Nelson Landy, Esq. (mlandy@omm.com)
O'Melveny and Myers, LLP
2765 Sand Hill Rd.
Menlo Park, CA 94025
Phone: 1-650-473-2671
Fax: 1-650-473-2601
HUMANA HEALTH: Sued in Ky. Over Sophisticated Bill Review System
----------------------------------------------------------------
Humana Health Plan is facing a class-action complaint before the
U.S. District Court for the Western District of Kentucky over
allegations that it promises policyholders will pay "nothing"
for ambulance services, but uses a "sophisticated bill review
system" to "nickel and dime" them and force them to pay for the
services, CourtHouse News Service reports.
The complaint is a class action suit brought by James Svenonius
on behalf of a class of others similarly situated who were or
who are Enrollees or an Enrollee's family member whose benefits
for Covered Ambulance Services were partially limited or
excluded by Humana, despite being fully covered by Humana's HMO
(health maintenance organization) health plan.
According to the complaint, Humana's HMO contract expressly
states that Enrollees, including the plaintiff and the putative
class, will pay "Nothing" for "local professional ambulance
services when ordered or authorized by a Plan doctor."
However Humana failed to disclose in the Contract that it would
unilaterally limit and partially exclude from coverage bills
submitted by the plaintiff and the class for Covered Ambulance
Service, despite the express language of the Contract, the
complaint states.
The report notes that by partially paying the plaintiff's claim,
Humana has not disputed, and cannot truthfully dispute, the
local professional character of the ambulance services at issue
in this lawsuit. Moreover, Humana also cannot truthfully
dispute that the ambulance services at issue in this lawsuit
were not ordered or authorized by a Plan doctor.
Despite its express obligation under the Plan, Humana has
wrongfully and deceptively limited policy coverage, and refused
to pay full benefits for Covered Ambulance Services, the
complaint adds.
Humana has therefore caused the plaintiff and the class to be
balance-billed by ambulance service providers for that portion
of the bill for Covered Ambulance Services which Humana excluded
from coverage, the report notes.
Humana, by the acts and omissions alleged herein, breached its
contract with the plaintiff and the class.
The plaintiff wants the court to rule on:
(a) whether the contract required Humana to pay all Covered
Ambulance Services submitted by the plaintiff and the
class;
(b) whether Humana failed to pay all Covered Ambulance
Services submitted by the plaintiff and the class;
(c) whether such failure to pay constitutes breach of
contract; and
(d) whether the plaintiff and the class were damaged, and
if so, in what amount?
The plaintiff seeks an order by the Court:
-- declaring that the Humana is required under the Plan to
pay for Covered Ambulance Services, with the plaintiff
and the class paying "Nothing;" and
-- granting such further relief as the Court deems just.
The suit is "James Svenonius, et al. v. Humana Health Plan,
Inc., Case No. 3:08CV-427-S," filed in the U.S. District Court
for the Western District of Kentucky.
Representing the plaintiff are:
William F. McMurry, Esq.
Adrienne Kim, Esq.
McMurry & Associates
5932 Timber Ridge Drive, Suite 101
Louisville, KY 40059
Phone: 502-326-9000
ICEPAN: Faces Lawsuit Over Refusal to Redeem Icecream Coupons
-------------------------------------------------------------
Icepan is facing a class-action complaint in Los Angeles
Superior Court over allegations that it refuses to redeem its
coupons for free ice cream, CourtHouse News Service reports.
The plaintiffs claim the chain sent out 50,000 coupons for
"free" ice cream in L.A. County alone, and refuses to redeem
them, but offers "two for one" or an ice cream at half price.
The class screams for punitive damages, costs and an injunction.
Representing the plaintiffs is:
A. Douglas Mastroianni
10960 Wilshire Blvd #1225
Los Angeles, CA 90024
INT'L CREATIVE: Age Discrimination Suit Settled for $4.5 Million
----------------------------------------------------------------
Ten thousand television writers penned a happy ending to their
class action age discrimination lawsuit against International
Creative Management, Inc., settling the first of 23 class
actions for $4.5 million and programmatic relief designed to
enhance work opportunities.
The ICM case is one of 12 against talent agencies and represents
about three or four percent of industry-wide exposure in the
eight-year old TV Writers Age Discrimination Litigation,
according to Paul Sprenger, Lead Counsel for Plaintiffs, of
Sprenger + Lang, Washington, DC.
The industry-wide lawsuit was instituted in federal court in
2000 and currently consists of 23 class actions in California
state court against the major TV networks and production
studios, including ABC, CBS, Disney, Fox, NBC Universal,
Columbia, Warner Brothers and talent agencies ICM, Creative
Artists, Endeavor, Paradigm and Wm. Morris.
ICM is the fourth largest talent agency in terms of
representation of TV writers with about 14% under contract. ICM
and all but one of the cases are pending before Judge Emile
Elias in Los Angeles Superior Court, who is expected to provide
notice of the settlement to class members including the
procedure for seeking monetary awards and non-monetary benefits.
Judge Elias is expected to conduct a hearing later this year at
which time she will consider the settlement terms and, assuming
she finds them fair and reasonable, grant plaintiffs' motion for
final approval. Class members may obtain claim forms from
plaintiffs' counsel upon the issuance of the settlement notice
-- monetary awards to class members will not be made until at
least thirty days after the deadline to file claims and approval
by the Court.
The settled case, "Edwards, et al. v. International Creative
Management, Inc. (ICM)," alleged that the more than 150 named
plaintiffs and others like them -- television writers who were
aged 40 and older after October 22, 1996 -- were victims of
systematic age discrimination by talent agents, who aided and
abetted networks and studios by refusing to represent and refer
older writers for work at the production studios. In the 11
cases against the networks and studios, the plaintiffs allege
systemic failure to hire older TV writers.
In addition to the $4.5 million payment, ICM agreed to establish
an independent task force to examine its representation
practices, and to participate conditionally in a job relief
program that will promote the top 25% of older television
writers based on script evaluations by a neutral panel qualified
experts.
"The settlement agreement with ICM provides these talented
television writers with a fair resolution to their claims," said
Steve Sprenger, Esq., of Sprenger + Lang, lead trial counsel for
the plaintiffs. "However, we still have a lot of work ahead of
us to get these older writers the programmatic and monetary
relief they deserve."
For more information, contact:
Steve Sprenger, Esq.
Paul Sprenger, Esq.
Sprenger + Lang PLLC
Eye Street, N.W. Suite 500
Washington, DC 20005
Phone: 202-772-1160
202-518-2021
202-363-6025
Web site: http://www.sprengerlang.com/
KELLOG BROWN: Negligent in Worker Deaths, Georgia Suit Claims
-------------------------------------------------------------
Kellogg Brown & Root, one of the biggest contractors working in
Iraq, is facing a class-action complaint filed in Fulton County,
Georgia, alleging it is responsible for more than 100 deaths
plus a much larger number of injuries to its workers as a result
of the high level of over-all negligence in the firm's
operations, CourtHouse News Service reports.
At least 110 of KBR's employees have been killed in Iraq due to
its negligence, according to the complaint.
Named plaintiff Curtis Coffey, who was hired by KBR to recover
disabled vehicles, was assigned to the Recovery Division in
Iraq.
Mr. Coffey was injured when a fellow worker, David, also known
as "Killer," negligently operated the control of a wrecker. As
a result, Mr. Coffey's finger was mangled, and although he has
undergone multiple treatments including surgery, he is still
unable to use his finger.
Mr. Coffey claims that his co-worker was not qualified to do his
job, and his lack of experience led to the plaintiff's injury.
Aside from his lack of experience, his co-worker, who was from
Kenya, was unable to understand Mr. Coffey's instructions
because of the language barrier.
Aside from his own injury, Mr. Coffey said the Recovery Division
has "failed at every stage to provide even minimal safety
precautions for its workers."
In addition, the suit says that Recovery workers have been
exposed to injuries because "the relevant equipment was not
utilized to properly simulate field conditions or actual
military equipment."
Representing the plaintiff is:
E. Adam Webb
Webb, Klase & Lemond
1900 The Exchange, N.E., Suite 480
Atlanta, GA 30339
Phone: 770-444-9325
Fax: 770-444-0271
MEDIS TECHNOLOGIES: N.Y. Court Dismisses Putative Class Lawsuit
---------------------------------------------------------------
Medis Technologies Ltd. announced that Hon. Paul A. Crotty,
United States District Judge for the Southern District of New
York, has granted the defendants' motion to dismiss a putative
class action lawsuit initiated against Medis and its CEO, among
others.
The Court also ordered the case to be closed.
Medis had vigorously denied any allegations of wrongdoing, and
is gratified by the federal court's dismissal of the action.
Medis Technologies' primary focus is on its fuel cell
technology. Its business strategy is to sell its products to
end users through branded OEM partnerships, retail outlets,
service providers and to the military and other markets. Medis'
majority-owned and publicly traded subsidiary, Cell Kinetics
Ltd., is engaged in the development and commercialization of the
CKChip, a unique cell carrier platform intended for simultaneous
fluoroscopic monitoring and analysis of thousands of individual
living cells over time.
MONTANA POWER: Lawsuit Over Lake Levels Heads to Supreme Court
--------------------------------------------------------------
After nearly nine years, a group alleging that the operation of
Kerr Dam has damaged their lakefront and riverfront properties
is set to bring oral arguments before the Montana Supreme Court
and has settled an offshoot case that will pay about $200,000 to
two local environmental groups, Flathead Beacon reports.
The report recounts that the case was originally filed against
the Montana Power Co. in 1999 by Rebecca Mattson, a local
resident who said that the utility's operation of Kerr Dam
caused severe erosion of her property at the head of Flathead
Lake.
Several years later, the report further relates, Montana Power
sold its interest in the dam and, after a series of corporate
changes, PP&L Montana, Touch America Holdings, Inc., and
NorthWestern Corporation were also added as defendants, and the
case was expanded into a class action suit that now includes
about 20 other Flathead Lake property owners. Both Touch
America and NorthWestern have since filed for bankruptcy.
The Mattson plaintiffs asked that the lake's full-pool elevation
be lowered earlier than normal in the fall to curb shoreline
erosion.
In April 2007, a Flathead County District Court judge ruled
against the plaintiffs, saying that easements on all the class
members' deeds allow the power company to erode and otherwise
cause damage to property along the lake and river. Those same
easements recently prompted Flathead County commissioners to
deny a development along the north shore of Flathead Lake.
This decision by the commissioners is currently being challenged
in local courts, Flathead Beacon notes.
In the Mattson case, the plaintiffs appealed to the Montana
Supreme Court, which recently requested an oral argument for
late September. According to lawyers, this could be a sign that
the court needs more information, but may be nearing a decision.
"We're optimistic that this will be a good thing for us," Jamie
S. Franklin, Esq., of Meites, Mulder, Mollica & Glink, a
Chicago-based law firm representing the plaintiffs, told
Flathead Beacon. "If the Supreme Court should reverse the state
court's decision and rule in our favor, we'll happily proceed
toward trial."
Meanwhile, the report says that the plaintiffs have pursued
claims against Touch America and NorthWestern Coporporation in
bankruptcy court. Last month, they were surprised to learn that
Touch America was able and willing to settle. Letters recently
went out to landowners around the lake and river, informing them
of the $350,000 settlement, which is set to be finalized later
this month.
Because the settlement amount is not enough to adequately split
between all the claimants, they have decided to give the money
to the Flathead Conservation District and the University of
Montana's Flathead Lake Biological Station. The plaintiffs felt
that these two groups served area landowners through their work
on both bodies of water. After attorney and administrative fees
are paid, Ms. Franklin said she expected each group would
receive about $100,000.
The main focus for the plaintiffs, though, remains the Supreme
Court case. "I don't want people to think they've given up or
settled anything in regard to the case against PP&L," Ms.
Franklin said. "We’re still fighting very hard to get our day
in court."
PANTRY INC: Court Considers Approval of Wage and Hour Suit Deal
---------------------------------------------------------------
The U.S. District Court for the Middle District of North
Carolina has yet to approve a tentative settlement reached in
the purported class action lawsuit entitled "Barton, et al. v.
The Pantry, Inc."
The suit asserted claims, on behalf of the company's present and
former North Carolina employees, for unpaid wages under the
North Carolina Wage and Hour laws. The suit was filed in the
Superior Court for Forsyth County, State of North Carolina in
June 2004.
The named plaintiffs in the suit are Constance Barton, Kimberly
Clark, Wesley Clark, Tracie Hunt, Eleanor Walters, Karen
Meredith, Gilbert Breeden, LaCentia Thompson, and Mathesia
Peterson, and others similarly situated.
The suit sought an injunction against any unlawful practices,
damages, liquidated damages, costs and attorneys' fees.
On Aug. 17, 2004, the case was removed to the U.S. District
Court for the Middle District of North Carolina. On July 18,
2005, the plaintiffs filed an amended complaint asserting
certain additional claims under the federal Fair Labor Standards
Act on behalf of present and former store employees in the
southeastern U.S. It added one additional plaintiff, Chester
Charneski.
The plaintiffs have filed a motion to remand the case to the
Superior Court for Forsyth County, which request is presently
pending before the federal district court.
The company, on Aug. 23, 2005, filed a motion to dismiss parts
of the amended complaint. In May 2006, the court granted in
part and denied in part the company's motion, with the result
that the court will now determine if the case may proceed as a
class action under state law and a collective action under
federal law and if so, who among the company's present or former
employees will be members of the classes.
On Jan. 16, 2007, the plaintiffs filed a motion to file a second
amended complaint, asserting state law claims for alleged unpaid
wages in all 11 states in which the company does business. The
company opposed the filing of a seconded amended complaint.
On March 26, 2007, the company reached a proposed settlement in
principle with the class counsel. The proposed settlement will
establish a settlement fund of $1,000,000 from which payments
will be made to settlement class members and the class counsel.
Additionally, the proposed settlement provides for the company
to bear all costs of sending notices, processing and preparing
payments and other administrative costs of the settlement.
No other payments will be made to class members or class
counsel. The proposed settlement is subject to court approvals.
Final approval of the proposed settlement is expected to take
several months and there can be no assurance that the court will
approve the proposed settlement, the company stated in its SEC
regulatory filing.
The company reported no further development in the matter in its
Aug. 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 26, 2008.
The suit is "Barton, et al. v. The Pantry, Inc., Case No. 1:04-
cv-00748-NCT," filed in the U.S. District Court for the Middle
District of North Carolina, Judge N.C. Tilley, Jr., presiding.
Representing the plaintiffs are:
Robert M. Elliot, Esq. (rmelliot@epmlaw.com)
J. Griffin Morgan, Esq. (jgmorgan@epmlaw.com)
Elliot Pishko Morgan, P.A.
426 Old Salem Road
Winston-Salem, NC 27101
Phone: 336-724-2828
Fax: 336-714-4499
- and -
Charles Joseph, Esq.
Joseph & Herzfeld, LLP
757 Third Ave., 25th Floor
New York, NY 10017
Phone: 212-688-5640
Representing the company is:
Kimberly Jo Korando, Esq. (kkorando@smithlaw.com)
Smith Anderson Blount Dorsett Mitchell & Jernigan
P.O. Box 2611
Raleigh, NC 27602-2611
Phone: 919-821-6671
Fax: 919-821-6800
PANTRY INC: Kansas Court Allows "Hot Fuel" Suits to Move Forward
----------------------------------------------------------------
The U.S. District Court for the District of Kansas denied a
motion by The Pantry, Inc., and other defendants that sought the
dismissal of several purported class action lawsuits filed over
motor fuel that was greater than 60 degrees Fahrenheit at the
time of sale.
Since the beginning of fiscal 2007, over 45 class-action suits
have been filed before the federal courts across the country
against numerous players in the petroleum industry. Major
petroleum companies and significant retailers in the industry
have been named as defendants in these lawsuits.
To date, Pantry Inc. had been named as a defendant in seven
cases:
1. in Florida -- "Cozza, et al. v. Murphy Oil USA, Inc.
et al., S.D. Fla., No. 9:07-cv-80156-DMM," filed on
Feb. 16, 2007;
2. in Delaware -- "Becker, et al. v. Marathon Petroleum
Company LLC, et al., D. Del., No. 1:07-cv-00136,"
filed on March 7, 2007;
3. in North Carolina -- "Neese, et al. v. Abercrombie
Oil Company, Inc., et al., E.D.N.C., No. 5:07-cv-
00091-FL," filed on Match 7, 2007;
4. in Alabama -- "Snable, et al. v. Murphy Oil USA,
Inc., et al., N.D. Ala., No. 7:07-cv-00535-LSC," filed
on March 27, 2007;
5. in Georgia -- "Rutherford, et al. v. Murphy Oil USA,
Inc., et al., No. 4:07-cv-00113-HLM," filed on June 5,
2007;
6. in Tennessee -- "Shields, et al. v. RaceTrac
Petroleum, Inc., et al., No. 1:07-cv-00169," filed on
July 13, 2007; and
7. in South Carolina -- "Korleski v. BP Corporation
North America, Inc., et al., D.S.C., No 6:07-cv-03218-
MDL," filed on Sept. 24, 2007.
Pursuant to an order entered by the Joint Panel on Multi-
District Litigation, all of the cases against the numerous
companies in the petroleum industry, including the seven in
which Pantry Inc. was named, have been or will be transferred to
the U.S. District Court for the District of Kansas where the
cases will be consolidated for all pre-trial proceedings.
The plaintiffs in the lawsuits generally allege that they are
retail purchasers who received less motor fuel than the
defendants agreed to deliver because the defendants measured the
amount of motor fuel they delivered in non-temperature adjusted
gallons which, at higher temperatures, contain less energy.
These cases seek, among other relief, an order requiring the
defendants to install temperature adjusting equipment on their
retail motor fuel dispensing devices.
In certain of the cases, including some of the cases in which
the company is named, the plaintiffs also have alleged that
because the defendants pay fuel taxes based on temperature
adjusted 60 degree gallons, but allegedly collect taxes from
consumers in non-temperature adjusted gallons, the defendants
receive a greater amount of tax from consumers than they paid on
the same gallon of fuel.
The plaintiffs in these cases seek, among other relief, recovery
of excess taxes paid and punitive damages.
The cases seek compensatory damages, injunctive relief,
attorneys' fees and costs and prejudgment interest.
The defendants have filed motions to dismiss all cases for
failure to state a claim, which motions were heard by the court
on Jan. 11, 2008. The court denied the motions by order dated
Feb. 21, 2008.
The defendants expect to contest class certification and to file
motions for summary judgment after appropriate discovery.
The company reported no further development in the matter in its
Aug. 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 26, 2008.
The Pantry, Inc. -- http://www.thepantry.com/-- operates an
independently operated convenience store chain in the United
States.
PC MALL: Reaches Tentative Settlement in "Hanzy" Meal Break Suit
----------------------------------------------------------------
PC Mall, Inc., has reached a settlement in the purported class-
action suit captioned "Lee Hanzy, individually and on behalf of
others similarly situated, Plaintiff, vs. PC Mall, Inc., a
Delaware corporation dba MACMALL, and Does 1 through 200,
inclusive, Defendants, Case No., BC373935."
The suit was filed before the Superior Court of California,
County of Los Angeles on July 6, 2007, by Lee Hanzy. The
potential class consists of current and former account
executives in California who worked for PC Mall, and in
particular, the MacMall operating division.
The plaintiff alleges that PC Mall improperly classified members
of the putative class as "exempt" employees and failed to
provide putative class members with meal and rest breaks.
The complaint asserts three causes of action:
i. failure to pay wages, including overtime, in violation
of California Labor Code sections 201 through 203, and
section 1194(a);
ii. failure to provide meal and rest periods in violation
of California Labor Code section 226.7; and
iii. violation of section 17200 of the California Business
and Professions Code.
The suit seeks unpaid overtime, statutory penalties, interest,
attorneys' fees, punitive damages, restitution and injunctive
relief. While the case was originally filed in Los Angeles
Superior Court, on Aug. 30, 2007, the Superior Court ordered the
action to arbitration and stayed all proceedings in superior
court. The case was settled in July 2008.
On July 17, 2008, the company entered into an agreement to
settle the claims in the suit in accordance with a memorandum of
understanding entered into on June 2008, according to the
company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
PC Mall, Inc. -- http://www.pcmall.com/-- is a direct marketer
of computer hardware, software, peripherals, electronics, and
other consumer products and services. It offers products and
services to businesses, government and educational institutions,
as well as individual consumers, through outbound and inbound
telemarketing account executives, the Internet, direct marketing
techniques, direct response catalogs, a direct sales force and
three retail showrooms.
PC MALL: Reaches Tentative Deal in "Whitmill" Meal Break Lawsuit
----------------------------------------------------------------
PC Mall, Inc., has reached a settlement in the purported class-
action suit "Zekiya Whitmill and Lee Hanzy, individually and on
behalf of others similarly situated, Plaintiffs, vs. PC Mall
Gov, Inc., a Delaware corporation, and Does 1 through 200,
inclusive, Defendants, Case No., BC373934."
The suit was filed before Superior Court of California, County
of Los Angeles, on July 6, 2007, by Zekiya Whitmill and Lee
Hanzy. The potential class consists of current and former
account executives in California who worked for PC Mall Gov,
Inc., one of PC Mall, Inc.'s wholly owned subsidiaries.
The plaintiffs allege that PC Mall Gov. improperly classified
members of the putative class as "exempt" employees and failed
to provide putative class members with meal and rest breaks.
The complaint asserts three causes of action:
i. failure to pay wages, including overtime, in violation
of California Labor Code sections 201 through 203, and
section 1194(a);
ii. failure to provide meal and rest periods in violation
of California Labor Code section 226.7; and
iii. violation of section 17200 of the California Business
and Professions Code.
The suit seeks unpaid overtime, statutory penalties, interest,
attorneys' fees, punitive damages, restitution and injunctive
relief.
While the case was originally filed in Los Angeles Superior
Court, on Sept. 26, 2007, the Superior Court ordered the action
to arbitration and stayed all proceedings in superior court.
The case was settled in July 2008. Specifically, on July 17,
2008, the company entered into an agreement to settle each of
the claims in the matter in accordance with a memorandum of
understanding, according to the company's Aug. 4, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
PC Mall, Inc. -- http://www.pcmall.com/-- is a direct marketer
of computer hardware, software, peripherals, electronics, and
other consumer products and services. It offers products and
services to businesses, government and educational institutions,
as well as individual consumers, through outbound and inbound
telemarketing account executives, the Internet, direct marketing
techniques, direct response catalogs, a direct sales force and
three retail showrooms.
RAW BLUE: Recalls Children's Hoodies Due to Strangulation Hazard
----------------------------------------------------------------
Raw Blue Sportswear, of Moonachie, NJ, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
5,740 Hooded Sweatshirts.
The company said the sweatshirts have drawstrings through the
hood which pose a strangulation hazard to young children. In
February 1996, CPSC issued guidelines to help prevent children
from strangling or getting entangled on the neck and waist by
drawstrings in upper garments, such as jackets and sweatshirts.
No injuries have been reported.
The Raw Blue hooded sweatshirts were sold in three styles: smack
print, kapow print and comic magazine print) and various colors.
The sweatshirts have style numbers 7FT5655, 7FT5455, and
7FT5515. Style numbers are printed on the garment's sales tag.
These recalled hoodies were manufactured in China and were being
sold at TJ Maxx, Mega Trends, Moonstone Shirts and MP Trading
stores nationwide from July 2007 through December 2007 for
between $30 and $40.
Pictures of the recalled hoodies are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08358a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08358b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08358c.jpg
Consumers are advised to immediately remove the drawstrings from
the sweatshirts to eliminate the hazard. Consumers can return
the garment to the place of purchase or Raw Blue Sportswear for
a refund.
For additional information, contact Raw Blue Sportwear at
800-638-1537 between 9:00 a.m. and 5:00 p.m. ET Monday through
Friday.
TAKE-TWO INTERACTIVE: Court Dismisses Claims in Retirees' Suit
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York
dismissed all claims asserted against Take-Two Interactive
Software, Inc., in a lawsuit entitled "St. Clair Shores General
Employees Retirement System v. Eibeler, et al., Case No. 1:06-
cv-00688-MBM."
On Jan. 30, 2006, the St. Clair Shores General Employees
Retirement System filed a suit against the company, as nominal
defendant, and certain of the its officers and directors and
certain former officers and directors before the U.S. District
Court for the Southern District of New York.
The factual allegations in this action are similar to the
allegations contained in a consolidated federal securities class
action suit pending in New York captioned, "In Re Take-Two
Interactive Securities Litigation, Case No. 1:06-cv-00803-SWK."
The plaintiff asserts that certain defendants breached their
fiduciary duty by selling company stock while in possession of
certain material non-public information and breached their
fiduciary duty and violated Section 14(a) and Rule 14a-9 of the
U.S. Exchange Act by failing to disclose material facts in the
company's 2003, 2004 and 2005 proxy statements in which the
company solicited approval to increase share availability under
its 2002 Stock Option Plan.
The plaintiff seeks the return of all profits from the alleged
insider trading conducted by the individual defendants who sold
company stock, unspecified compensatory damages with interest
and their costs in the action.
A motion to stay the action pending the determination of an
investigation by the Special Committee was filed in court.
On Oct. 4, 2006, the court issued an order granting the motion
and staying the proceedings for a period of 150 days from the
date of the order.
On Jan. 17, 2007, the plaintiffs moved for an order granting
limited relief from the court's Oct. 4, 2006 stay of the
proceedings in order to file an amended derivative and class
action complaint.
On Feb. 22, 2007, the counsel for the Special Litigation
Committee advised the Court that the committee had completed its
investigation and rendered a report.
On March 23, 2007, counsel for the Special Litigation Committee
moved to dismiss the complaint based on, among other things, its
conclusion that "future pursuit of this action is not in the
best interests of Take-Two or its shareholders."
The plaintiff subsequently conducted discovery concerning the
Special Litigation Committee's motion to dismiss.
On Aug. 24, 2007, the plaintiff filed an amended derivative and
class action complaint. The Amended Derivative and Class Action
Complaint alleges, among other things, that the defendants
breached their fiduciary duties in connection with the issuance
of proxy statements in 2001, 2002, 2003, 2004 and 2005.
On Sept. 24, 2007, the Special Litigation Committee moved to
dismiss the Amended Complaint or to consolidate certain of its
claims with "In Re Take-Two Interactive Securities Litigation,
Case No. 1:06-cv-00803-SWK."
On July 30, 2008, the U.S. District Court for the Southern
District of New York granted in part and denied in part the
motion to dismiss filed by the Special Litigation Committee of
the board of directors of Take-Two Interactive Software, Inc.,
in the purported class and derivative action.
All claims against the company were dismissed.
The suit is "St. Clair Shores General Employees Retirement
System v. Eibeler, et al., Case No. 1:06-cv-00688-MBM," filed in
the U.S. District Court for the Southern District of New York,
Judge Michael B. Mukasey, presiding.
Representing the plaintiffs is:
James Joseph Sabella, Esq. (jsabella@gelaw.com)
Grant & Eisenhofer P.A.
45 Rockefeller Center, 630 Fifth Avenue, 15th Floor
New York, NY 10111
Phone: 646-722-8520
Fax: 212-755-6503
Representing the defendants is:
Leonard D. Steinman, Esq. (lsteinman@blankrome.com)
Blank Rome, LLP
The Chrysler Building, 405 Lexington Avenue
New York, NY 10174
Phone: 212-885-5524
Fax: 917 332-3746
TAKE-TWO INTERACTIVE: Court Refuses to Certify Settlement Class
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has issued an opinion refusing to certify the proposed
settlement class in the lawsuit captioned "In Re: Grand Theft
Auto Video Game Consumer Litigation, Case No. 1:06-md-01739-
SWK," according to the Take-Two Interactive Software, Inc.'s
Aug. 5, 2008 Form 8-K filing with the U.S. Securities and
Exchange Commission for the period ended July 30, 2008.
Case Background
In July 2005, the defendants -- Take-Two Interactive Software,
Inc., and its subsidiary, Rockstar Games -- were subjects of
four purported class action suits. Two of the four complaints
were filed before the U.S. District Court for the Southern
District of New York, one was filed before the U.S. District
Court for the Eastern District of Pennsylvania, and the other
was filed before the Circuit Court in St. Clair County, Illinois
(Class Action Reporter, Jan. 11, 2008).
The plaintiffs, alleged purchasers of the defendants' Grand
Theft Auto: San Andreas First Edition game manufactured before
July 20, 2005, assert that the company engaged in consumer
deception, false advertising and breached an implied warranty of
merchantability and were unjustly enriched as a result of the
company's alleged failure to disclose that Grand Theft Auto: San
Andreas contained "hidden" content, which resulted in the game
receiving a Mature 17+ (M) rating from the Entertainment
Software Rating Board rather than an Adults Only 18+ rating.
The Judicial Panel on Multidistrict Litigation later transferred
all the cases to the U.S. District Court for the Southern
District of New York, which consolidated them under the caption,
"In re Grand Theft Auto Video Game Consumer Litigation (No. II),
06-MD-1739 (SWK)(MHD)."
Settlement
In the last half of 2007, the defendants reached a settlement in
the matter.
Under the terms of the settlement, class members will be able to
claim benefits if they swear that they:
(a) bought a copy of Grand Theft Auto: San Andreas
before July 20, 2005;
(b) were offended and upset by the ability of consumers to
modify and alter the game's content using the third-
party Hot Coffee modification;
(c) would not have bought the game had they known that
consumers could modify and alter the game's content
using the third-party Hot Coffee modification; and
(d) would have returned the game, upon learning the game
could be modified and altered, if they thought this
possible.
Settlement class members who attest to these facts may apply for
benefits that range from an exchange of the game disk for an
edited copy of Grand Theft Auto: San Andreas to a cash payment
of up to $35 for consumers who submit detailed proofs of
purchase.
The actual value of all cash payments under the settlement will
depend on the number of class members that apply for benefits.
Take-Two has committed to spend at least $1.025 million on
settlement benefits, and the settlement generally caps the
defendants' out-of-pocket costs at no more than $2.75 million,
in addition to the costs of providing notice to class members
and paying a fee to plaintiffs' counsel.
In November 2007, the U.S. District Court for the Southern
District of New York granted preliminary approval to the
settlement of the foregoing consumer class actions and set a
date for a hearing on final approval in May 2008.
On July 31, 2008, the Court issued an opinion refusing to
certify the proposed settlement class. The Court held that,
under controlling case law issued after the parties negotiated
the settlement, the plaintiffs could no longer meet their burden
of showing that the case could proceed on the proposed class
basis, regardless of whether the purpose of certification was
for litigation or settlement.
Had that settlement been approved, the company would have been
required to spend at least $1,025,000 on settlement benefits, a
majority of which would have taken the form of a contribution to
charity.
A copy of the settlement notice is available at:
http://gtasettlement.com/Default.htm
The suit is "In Re: Grand Theft Auto Video Game Consumer
Litigation, Case No. 1:06-md-01739-SWK," filed in the U.S.
District Court for the Southern District of New York, Judge
Shirley Wohl Kram, presiding.
Representing the plaintiffs is:
Seth R. Lesser, Esq.
Locks Law Firm PLLC
110 East 55th St.
New York, NY 10022
Phone: 888-8LL-FNYC
Representing the company is:
Jeffrey S. Jacobson, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Phone: 212-909-6000
THOR INDUSTRIES: Faces Ohio Suit Over Unsafe Formaldehyde Levels
----------------------------------------------------------------
Thor Industries and DS Corp. -- d/b/a Crossroads RV -- are
facing a class-action complaint before the U.S. District Court
for the Southern District of Ohio over allegations the companies
have sold recreational vehicles contaminated with unsafe levels
of formaldehyde for 20 years, though they knew it was dangerous
and carcinogenic, CourtHouse News Service reports.
Named plaintiff Martin Crane brings the action on behalf of all
persons in the United States who own or owned a recreation
vehicle manufactured by defendants from Aug. 26, 2005, to the
present.
"For approximately twenty years, defendants have known that the
use of substandard, formaldehyde-laden materials in their
recreation vehicles could lead to excessive and dangerous
formaldehyde exposure for consumers using the vehicles for their
intended uses," the complaint states.
"Despite this knowledge, defendants have used substandard,
formaldehyde-laden materials in their recreation vehicles, which
materials have emitted formaldehyde in excessive and dangerous
levels and caused plaintiffs exposure to such formaldehyde.
This exposure to formaldehyde has caused, and will continue to
cause, plaintiffs to suffer injuries to their health and
persons, including but not limited to nausea, wheezing,
coughing, watering and burning eyes, diminished respiratory
capacity, and an increased risk of cancer," the suit adds.
The plaintiffs demand more than $5 million in compensatory
damages, and a court-supervised program of medical monitoring.
The suit is "Martin E. Crane, et al. v. Thor Industries, Inc. et
al., Case No. 08-290," filed in the U.S. District Court for the
Southern District of Ohio.
Representing the plaintiffs is:
John F. Stock, Esq.
Benesch Friedlander Coplan & Aronoff LLP
41 S. High Street, 26th Floor
Columbus, OH 43215
UNION BANK: Money Laundering Depressed Stock Price, Suit Says
-------------------------------------------------------------
Directors of the Union Bank of California are facing a
shareholders derivative action complaint before the Court of
Chancery of the State of Delaware over allegations that they
"repeatedly and systematically" let the bank launder "tens of
millions of dollars" of drug money, and prosecution for this
depressed the share price for an unacceptable buyout offer from
the Bank of Tokyo-Mitsubishi, CourtHouse News Service reports.
This is a shareholder's derivative action seeking relief on
behalf of UnionBanCal Corp. and Union Bank of California, N.A.
-- a wholly owned subsidiary of the company -- arising from
violations of the respective former and current directors and
officers' fiduciary duties to UnionBanCal and Union Bank of
California, which violations have substantially injured the
company and the bank.
Shareholders say Union Bank's money laundering cost the bank and
its shareholders $31.6 million in fines and forfeits.
The plaintiffs, led by the Virgin Islands' Government Employees'
Retirement System, say that for years, the bank accepted
suspicious deposits from Mexican casas de cambio, generated by
"multi-ton cocaine sales".
Federal criminal prosecutors accused the bank of "willfully
failing to establish an adequate anti-money laundering program,"
and demanded, and got, $21.6 million in forfeited deposits, plus
a $10 million fine.
In this class action, the plaintiffs sue the bank's corporate
parent, UnionBanCal, and also sue Tokyo Mitsubishi bank, which
offered to buy all the UnionBanCal shares it does not already
own for $63 a share.
The plaintiffs say this is an unfair price, "a price depressed,
in part, by the wrongdoing committed by the defendants,
including members of the company's board of directors, who also
served as senior executives of BTMU (defendant Bank of Tokyo-
Mitsubishi UFJ)."
The $63 per share offer is "only an 8.3 percent premium" over
UnionBanCal's closing price on Aug. 11, the day before the
announcement of the buyout. "(T)he proposed transaction is an
unfair attempt by BTMU to enrich itself to the detriment of
UnionBanCal's public holders, to which it owes fiduciary
duties."
The plaintiff brings this action, pursuant to Rule 23 of the
Rules of the Court of Chancery, on behalf of all public holders
of UnionBanCal stock who are being, and will be harmed, by
defendants' actions described in the complaint.
The plaintiff wants the court to rule on:
(a) whether defendants have breached their fiduciary duties
with respect to plaintiffs and the other members of the
class in connection with the proposed transaction;
(b) whether BTMU has breached its fiduciary duties as
majority stockholder in connection with the proposed
transaction;
(c) whether the defendants are engaging in self dealing in
connection with the proposed transaction;
(d) whether the proposed transaction results in payment to
plaintiff and the class that is unfair and inadequate;
and
(e) whether plaintiff and the other members of the class
would be irreparably harmed were the transactions
complained of allowed to proceed.
The plaintiff asks the court to enter an order:
-- finding that the defendants have violated their
fiduciary duties to UnionBanCal, its shareholders, and
the Bank have wasted the company's assets;
-- requiring the company and the bank to comply with
applicable rules and regulations regarding management
oversight procedures and controls;
-- finding against defendants for an amount of damages
sustained by UnionBanCal and Union Bank of California as
a result of defendants' breaches of fiduciary duties in
an amount to be determined by a jury with prejudgment
interest;
-- declaring this action properly maintainable as a class
action;
-- enjoining, preliminarily and permanently, BTMU and BTMU
UFJ Financial Group Inc.'s offer for acquisition
of the remainder of UnionBanCal that it does not own
under the terms presently posed;
-- declaring that the proposed transaction is in breach of
the fiduciary duties of defendants and therefore, any
agreement arising therefrom is unlawful and
unenforceable;
-- to the extent, if any, declaring that the transaction
complained of is consummated prior to the entry of this
court's final judgment, rescinding such transaction, and
granting, inter alia, rescissory damages against the
individual defendants and BTMU;
-- requiring defendants to fully disclose all material
information regarding the proposed transaction;
-- directing that the individual defendants and BTMU
account to plaintiff and the other members of the class
for all damages caused to them and account for all
profits and any special benefits obtained as a result of
their unlawful conduct;
-- requiring the individual defendants to evaluate the
company's vale and any available maximizing strategic
alternatives;
-- awarding plaintiff and the costs and disbursement of
this action, including a reasonable allowance for the
fees and expenses of plaintiff's attorneys and experts;
and
-- granting plaintiff and the other members of the class
such other and further relief as is just and equitable,
including all injunctive relief as alleged.
The suit is "Virgin Islands Government Employees' Retirement
System, et al. v. Aida M. Alvarez, et al., Case No. 21098239,"
filed in the Court of Chancery of the State of Delaware.
Representing the plaintiff are:
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
Rigrodsky & Long PA
919 North Market Street, Suite 980
Wilmington, DE 19801
Phone: 302-295-5310
WALGREEN CO: Faces Suit Over Common Colds Prevention Products
-------------------------------------------------------------
Walgreen Co. is facing a class-action complaint filed in the
Circuit Court of Madison County, State of Illinois, alleging it
deceptively markets its Wal-born drug products, claiming they
"boost the immune system," CourtHouse News Service reports.
The suit is a single state class action brought to redress
Walgreen's numerous unfair and deceptive acts and practices
designed to mislead the public into believing that its Wal-Born
products cure or prevent colds and other illnesses and boost the
immune system when, in fact, they do not.
Named plaintiff Francis Talley says Walgreen's markets its Wal-
born products as a cure or prevention for common colds and a
boost to the immune system, and claims Wal-born has the same
health formula as Airborne, a competing brand. But Walgreen has
no legitimate scientific basis for the claims, the suit states.
Wal-Born products carry a disclaimer in fine print that states,
"This product is not intended to diagnose, treat, cure, or
prevent any disease," the suit notes.
However, Mr. Talley claims the disclaimer conflicts with
Walgreen's marketing materials and is in a style and location
that a reasonable consumer would not read.
Pursuant to 735 ILCS Section 5/2-801, the plaintiff requests
that the court certify this case as a class action on behalf of
Illinois citizens who purchased Wal-Born during the relevant
time period in Illinois.
The plaintiff wants the court to rule on:
(a) whether Walgreen unlawfully marketed and promoted Wal-
Born;
(b) whether Walgreen concealed and misrepresented
material facts concerning Wal-Born;
(c) whether Walgreen's unfair and unconscionable actions
occurred in connection with Walgreen's conduct with
trade and commerce;
(d) whether Walgreen breached express warranties in the
sale of Wal-Born;
(e) whether Walgreen breached the implied warranty of
merchantability by selling a product, Wal-Born, that
did not perform as advertised;
(f) whether Walgreen breached the implied warranty of
fitness for a particular purpose by knowingly
furnishing a product, Wal-Born, that does not perform
the particular purpose; and
(g) whether Walgreen should be enjoined from marketing and
selling Wal-Born through the use of deceptive practices
and misrepresentations.
The class of all Illinois residents who bought Wal-born seeks
damages and an injunction prohibiting deceptive marketing.
The suit is "Francis E. Talley, et al. v. Walgreen Co., Case No.
08L720," filed in the Circuit Court of Madison County, State of
Illinois.
Representing the plaintiff is:
Evan D. Buxner, Esq. (buxner@walther-glenn.com)
The Buxner Law Firm
of Counsel to
Walther/Glenn Law Associates
10 S. Brentwood Blvd., Suite 102
St. Louis, MO 63105
Phone: 314-725-9595
Fax: 314-725-9597
New Securities Fraud Cases
INYX INC: Coughlin Stoia Files Securities Fraud Lawsuit in N.Y.
---------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP commenced a class
action suit in the United States District Court for the Southern
District of New York by an institutional investor on behalf of
purchasers of Inyx Inc. (OTC: IYXI.PK) common stock during the
period between March 31, 2005, and July 2, 2007.
The complaint charges Inyx and certain of its officers and
directors, among others, with violations of the Securities
Exchange Act of 1934.
Inyx is a pharmaceutical company that develops and manufactures
prescription and over-the-counter pharmaceutical products. The
Company has operating subsidiaries in the United States and the
United Kingdom.
The complaint alleges that, during the Class Period, defendants
made numerous statements about the Company's financial
performance in both its public statements and in the filings
that it made with the Securities and Exchange Commission. As
alleged in the complaint, these statements were materially false
and misleading because they failed to disclose:
(i) that the Company was materially overstating its assets
and revenues by creating false sales invoices, as these
invoices were created before the items were billable
and had not actually been issued to customers;
(ii) that the Company was not following its publicly stated
accounting policies; and
(iii) as a result of the foregoing, the Company's financial
statements were not prepared in accordance with
Generally Accepted Accounting Principles and were
therefore materially false and misleading.
On July 2, 2007, after the market opened for trading, news
services carried a report that Inyx had filed for Chapter 11
protection in the U.S. Bankruptcy Court in Delaware. In
response to this announcement, the price of Inyx common stock
plummeted, falling from $2.44 per share on June 29, 2007 to a
low as $0.30 per share in intra-day trading on July 2, 2007, on
extremely heavy trading volume of more than 7.7 million shares.
The plaintiff seeks to recover damages on behalf of all
purchasers of Inyx common stock during the Class Period.
For more information, contact:
Samuel H. Rudman, Esq.
David A. Rosenfeld, Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 800-449-4900
e-mail: djr@csgrr.com
REDDY ICE: Howard Smith Files Securities Fraud Suit in Michigan
---------------------------------------------------------------
Law Offices of Howard G. Smith commenced a securities class
action lawsuit on behalf of all purchasers of the common stock
of Reddy Ice Holdings, Inc. (NYSE: FRZ), between August 10,
2005, and March 6, 2008, including shares acquired through the
company's 401k savings plan.
The class action lawsuit was filed in the United States District
Court for the Eastern District of Michigan.
The Complaint alleges that the defendants violated federal
securities laws by issuing material misrepresentations to the
market concerning Reddy Ice's financial performance and
prospects, thereby artificially inflating the price of Reddy Ice
stock.
Interested parties may move the court no later than October 7,
2008, for lead plaintiff appointment.
For more information, contact:
Howard G. Smith, Esq. (howardsmithlaw@hotmail.com)
Law Offices of Howard G. Smith
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Phone: 215-638-4847
Toll-Free: 888-638-4847
Web site: http://www.howardsmithlaw.com/
*********
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Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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