/raid1/www/Hosts/bankrupt/CAR_Public/080825.mbx
C L A S S A C T I O N R E P O R T E R
Monday, August 25, 2008, Vol. 10, No. 168
Headlines
ALBERTA SECURITIES COMMISSION: Suit Dismissal Request Denied
ALLSTATE INSURANCE: Faces Lawsuit in Florida For Injury Coverage
BROWARD SHERIFF'S OFFICE: Reaches $11.5MM Strip-Search Suit Deal
BRUSH WELLMAN: Class Certification Denial in "Marin" Appealed
BRUSH WELLMAN: Awaits Summary Judgment Order in "Anthony" Case
CHELSEA & SCOTT: Recalls Skirts Violating Lead Paint Standard
CHICAGO BRIDGE: Court Approves Shareholders' Suit Settlement
CIGNA CORP: Faces Lawsuit Over Defective Claims Payouts Database
DIRECTBUY INC: Faces Connecticut Suit Over "Buying Club" Charges
FEDERAL HOME: N.Y. Securities Suit Nixed; Faces Another in Ohio
FORD MOTOR: Sued in Canada For Canceling Third Shift Startup
GARDENER'S SUPPLY: Flame Weeders Recalled Due to Burn Hazards
HUMANA INC: Faces Consolidated Securities Fraud Suit in Kentucky
HUMANA INC: Sept. 2 Hearing Set for Motions in ERISA Lawsuits
HUMANA INC: Faces Connecticut Lawsuit Over Payment of Claims
JACKSON HEWITT: N.Y. Court Allows Hidden Fees Lawsuit to Proceed
MASTERCARD INC: Parties in IPO Lawsuit Enter Into Mediation
MASTERCARD INT'L: No Trial Date Set for Interchange Fees MDL
MASTERCARD INT'L: Court Yet to Approve Conversion Fee Suit Deal
MASTERCARD INT'L: Discovery Ongoing in Calif. Consumer Lawsuit
MASTERCARD INT'L: Settles Discount Fees Suit; Still Faces Others
MASTERCARD INT'L: Court Affirms Interchange Fees Suit Dismissal
MUELLER INDUSTRIES: Faces California Suit Over ACR Copper Tubes
MUELLER INDUSTRIES: Faces California Lawsuit Over Copper Tubes
MUELLER INDUSTRIES: Court Stays Suit Over Copper Plumbing Tubes
OCWEN LOAN: Faces Ill. Suit Over Wrongfully Charged Secret Fees
PACIFIC GAS: Faces Calif. Suit Over Unpaid Overtime Compensation
ROSSIGNOL SKI: Recalls Snowboard Bindings Due to Strap Failure
SANTA CLARA: Performs Excessive Diagnostic Procedures, Suit Says
STAR GAS: No Hearing Yet for Appeals in Securities Fraud Lawsuit
THANE INTERNATIONAL: Steam Cleaners Recalled Due to Burn Hazard
VISTAPRINT LIMITED: Two Purported Federal Class Lawsuits Filed
WASHINGTON: State to Pay Mattawa Day-Care Workers $2 Million
WASHINGTON GROUP: Still Faces Louisiana Suits Over Levee Failure
WYETH: Successfully Defends Itself in PREMPRO & PREMARIN Suits
New Securities Fraud Cases
PERINI CORP: Federman & Sherwood Files Mass. Securities Lawsuit
*********
ALBERTA SECURITIES COMMISSION: Suit Dismissal Request Denied
------------------------------------------------------------
The Court of Queen's Bench of Alberta has denied a motion by the
Alberta Securities Commission to dismiss a proposed class action
lawsuit against the provincial regulator claiming negligence,
Investment Executive reports.
The court refused to throw out the suit on the grounds that the
ASC did not produce enough evidence to show that there is no
genuine issue for trial.
According to the court's decision, Elmer Amendt filed on
June 22, 2007, a statement of claim against the commission,
claiming to be a class action on behalf of all Albertans. It
notes that the claim was prepared by the plaintiff, who is not
represented by counsel, and that it is "lengthy, disjointed and
contains numerous repetiti'e allegations. It offends the Rules
of Court in many instances. It is difficult to read and it is
difficult to understand."
Essentially, Investment Executive says, the claim alleges that
the ASC acted improperly on a complaint he filed, alleging that
it uncovered violations of the securities legislation but failed
to act on them. It also alleges that the ASC acted in bad faith
in its investigation. The plaintiff is seeking monetary
damages.
The ASC sought to have the case thrown out, asserting that it
acted in good faith. Securities commissions are protected by
statutory immunity for acts committed in good faith.
However, the court found that, "a general assertion of good
faith" is not enough to show no genuine issue for trial. "To me
it is not plain and obvious that the action will not succeed,"
the judge said. To simply rely on an assertion of good faith,
"would act as a complete bar to the initiation of any causes of
action in negligence against the defendant. Such a mere
statement would preclude in future cases any cause of action
against the defendant and a future plaintiff would have no other
means of proof to demonstrate differently as the defendant could
rely on confidentiality and privilege to prevent that plaintiff
from learning the findings of its investigation," the ruling
said.
"In summary, in considering all of the evidence from both
parties, I am of the view the ASC has not shown that there is no
genuine issue for trial," the order concluded.
ALLSTATE INSURANCE: Faces Lawsuit in Florida For Injury Coverage
----------------------------------------------------------------
Allstate Insurance is facing a class-action complaint before the
Circuit Court of the 17th Judicial Circuit in and for Broward
County, Florida, over allegations that it cheated policyholders
who sought benefits for personal injuries in a three-month
period during which the Florida Legislature squabbled over the
state's no-fault laws, CourtHouse News Service reports.
According to the report, at issue is the three-month period from
Oct. 1, 2007, until Jan. 1, 2008, during which the State of
Florida's no-fault liability system was allowed to "sunset,"
then was renewed.
Named plaintiff Frances Goodwin says Allstate charged premiums
for no-fault personal injury coverage during those three months,
then denied claims submitted for injuries suffered then.
The suit claims declaratory and monetary relief for damages
aggregating $15,000 exclusive of all interest, costs and
attorneys fees, as well as additional individual damages.
Ms. Goodwin brings this action pursuant to Florida Rule of Civil
Procedure 1.220 on behalf of all Allstate insureds who had their
policies renewed on or before Jan. 1, 2008, who were sent
amended declaratory statements which reinstated "personal injury
protection," who were involved in an automobile collision and
sought medical treatment and will seek medical treatment in the
future.
The plaintiff asks the court for:
-- the entry of an order certifying this matter as a class
action;
-- a declaration of the rights, duties and obligations of
the parties under the PIP policies as applied under
Florida law, including a determination as to whether the
plaintiff and all others similarly situated have PIP
coverage to pay for any outstanding medical bills;
-- attorneys' fees and costs pursuant to Fla. Stat. Section
627.428;
-- a trial by jury on all issues so triable; and
-- such other and further relief as the court may deem just
and proper.
The suit is "Frances Goodwin, et al. v. Allstate Property and
Casualty Insurance Co., Case No. 08037241" filed in the Circuit
Court of the 17th Judicial Circuit in and for Broward County,
Florida.
Representing the plaintiff is:
Edward Zebersky, Esq.
Zebersky & Payne LLP
4000 Hollywood Blvd., Ste. 400N
Hollywood, FL 33021
Phone: 954-989-6333
BROWARD SHERIFF'S OFFICE: Reaches $11.5MM Strip-Search Suit Deal
----------------------------------------------------------------
Tens of thousands of people who were strip-searched by the
Broward Sheriff's Office, in Florida, after arrests during the
last decade could be eligible for up to $1,000 each under a
proposed class action settlement reached recently, Local10.com
reports.
According to the report, the $11.5-million agreement signed on
April 17, 2008, states that both sides believe a settlement is
preferable to pursuing litigation. It also stipulates that the
BSO denies any wrongdoing.
Attorney Gerald Richman told Local10.com that the lead
plaintiffs would receive $50,000 each. Others could receive up
to $1,000 each, depending on how many claims are filed.
The report says that the last day to submit eligibility forms is
on Sept. 1. Claims will begin being paid on Sept. 29.
The Class Action Reporter reported on Dec. 6, 2005, that the
federal lawsuit against the BSO contended that detention
deputies are conducting illegal strip searches over the past
five years. The suit contended that the BSO violated detainees'
constitutional rights by conducting illegal strip searches on
those arrested for misdemeanor offenses.
The suit noted that under the state statute, strip searches in
cases that are violent in nature or involve a weapon or illegal
drugs are allowed, but not for most misdemeanor arrests.
BRUSH WELLMAN: Class Certification Denial in "Marin" Appealed
-------------------------------------------------------------
The plaintiffs in the lawsuit captioned "Marin, et al. v.
Brushman Wellman Inc., Case No. BC299055," are appealing an
earlier court decision denying class certification for the case,
according to Brush Wellman's Aug. 1, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 27, 2008.
The suit, which names Brush Wellman, Inc. -- a subsidiary of
Brush Engineered Materials, Inc. -- as one of the defendants was
filed in the Superior Court of California, Los Angeles County,
on July 15, 2003.
The named plaintiffs in the suit are Manuel Marin, Lisa Marin,
Garfield Perry and Susan Perry. The defendants are:
-- Brush Wellman,
-- Appanaitis Enterprises, Inc., and
-- Doe Defendants 1 through 100.
A first amended complaint was filed on Sept. 15, 2004, naming
five additional plaintiffs. The five additional named
plaintiffs are Robert Thomas, Darnell White, Leonard Joffrion,
James Jones and John Kesselring.
The plaintiffs allege that they have been sensitized to
beryllium while employed at the Boeing Co. The plaintiffs'
wives claim loss of consortium.
The plaintiffs purport to represent two classes of approximately
250 members each, one consisting of workers who worked at Boeing
or its predecessors and are beryllium sensitized and the other
consisting of their spouses.
They have brought claims for negligence, strict liability --
design defect, strict liability -- failure to warn, fraudulent
concealment, breach of implied warranties, and unfair business
practices.
The suit seeks injunctive relief, medical monitoring, medical
and health care provider reimbursement, attorneys' fees and
costs, revocation of business license, and compensatory and
punitive damages.
Messrs. Marin, Perry, Thomas, White, Joffrion, Jones and
Kesselring represent current and past employees of Boeing in
California; and Ms. Marin and Ms. Perry are spouses. Defendant
Appanaitis Enterprises, Inc., was dismissed on May 5, 2005.
The plaintiffs' motion for class certification, which the
company opposed, was heard by the court on Feb. 8, 2008, and the
motion was denied by the court on May 7, 2008. The plaintiffs
filed a notice of appeal on May 20, 2008.
Brush Engineered Materials, Inc. -- http://www.beminc.com/--
through its wholly owned subsidiaries, is a manufacturer of
engineered materials serving the global telecommunications,
computer, data storage, aerospace and defense, automotive
electronics, industrial components, and appliance markets.
BRUSH WELLMAN: Awaits Summary Judgment Order in "Anthony" Case
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
has yet to rule on a motion filed by Brush Wellman, Inc. -- a
subsidiary of Brush Engineered Materials, Inc. -- seeking
summary judgment in a purported class action suit with regard to
the hazards of beryllium-containing products, according to the
company's Aug. 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 27, 2008.
The matter, "Anthony v. Small Tube Manufacturing Corp. d/b/a
Small Tube Products Corp., Inc., et al., Case No. 000525" is a
purported class action suit that names Brush Wellman as a third-
party defendant. It was filed before the Court of Common Pleas
of Philadelphia County, Pennsylvania, on Sept. 7, 2006.
The case was removed to the U.S. District Court for the Eastern
District of Pennsylvania, under Case No. 06-CV-4419, on Oct. 4,
2006.
The only named plaintiff is Gary Anthony. The defendants are:
-- Small Tube Manufacturing Corp., d/b/a Small Tube
Products Corp., Inc.;
-- Admiral Metals Inc.;
-- Tube Methods, Inc.; and
-- Cabot Corp.
The plaintiff purports to sue on behalf of a class of current
and former employees of the U.S. Gauge facility in Sellersville,
Pennsylvania, who have ever been exposed to beryllium for a
period of at least one month while employed at U.S. Gauge.
The plaintiff has brought claims for negligence. He seeks the
establishment of a medical monitoring trust fund, cost of
publication of approved guidelines and procedures for medical
screening and monitoring of the class, attorneys' fees and
expenses.
Defendant Tube Methods filed a third-party complaint against
Brush Wellman Inc. in that action on Nov. 15, 2006. Tube
Methods alleges that Brush supplied beryllium-containing
products to U.S. Gauge, and that Tube Methods worked on those
products, but that Brush is liable to Tube Methods for
indemnification and contribution.
The company moved to dismiss the Tube Methods complaint on
Dec. 22, 2006. On Jan. 12, 2007, Tube Methods filed an amended
third-party complaint, which Brush again sought to dismiss. The
Court denied the dismissal motion on Sept. 28, 2007. Brush
filed its answer to the amended third-party complaint on
Oct. 19, 2007.
On November 14, 2007, two of the defendants filed a joint motion
for an order permitting discovery to make the threshold
determination of whether plaintiff is sensitized to beryllium.
On Feb. 13, 2008, the court approved the parties' stipulation
that the plaintiff is not sensitized to beryllium.
On Feb. 29, 2008, Brush filed a motion for summary judgment
based on the plaintiff's lack of any substantially increased
risk of chronic beryllium disease. Oral argument on this motion
took place on June 13, 2008, and the court took the motion under
submission.
The plaintiff is required to file a motion for class
certification on or before Sept. 3, 2008, with oral argument on
that motion scheduled for December 2008.
The suit is "Anthony v. Small Tube Manufacturing Corp., et al.,
Case No. 2:06-cv-04419-JKG," filed in the U.S. District Court
for the Eastern District of Pennsylvania, Judge James Knoll
Gardner, presiding.
Representing the plaintiffs is:
Ruben Honik, Esq. (rhonik@golombhonik.com)
Golomb & Honik, PC
1515 Market St., Suite 1100
Philadelphia, PA 19102
Phone: 215-985-9177
Representing the company is:
Morton F. Daller, Esq. (mdaller@dallergreenberg.com)
Daller Greenberg & Dietrich LLP
Eight Tower Bridge
161 Washington Street, Suite 900
Conshohocken, PA 19428-2060
Phone: 215-836-1882
Fax: 215-836-2845
CHELSEA & SCOTT: Recalls Skirts Violating Lead Paint Standard
-------------------------------------------------------------
Chelsea & Scott Ltd., of Lake Bluff, Ill., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
600 Sun Smarties Children's Board Skirts.
The company said the Sun Smarties board skirts are peach
microfiber with an embroidered flower accent and back pocket.
Item number 13926 HIBI is printed on the care label inside the
back of the waistband. The skirts were sold in girls sizes 12
months to 4T. The skirts have six grommets, four on the front
of the waistband and two on the back pocket.
These recalled skirts were manufactured in China and were being
sold exclusively on http://www.onestepahead.com/from May 1,
2008, through May 9, 2008, for about $15.
A picture of the recalled board skirts is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08599.jpg
Consumers are advised to immediately take these skirts away from
young children and return them to Chelsea & Scott Ltd to receive
a replacement skirt or refund. Consumers will be sent a postage
paid envelope from Chelsea & Scott Ltd.
For additional information, contact Chelsea & Scott Ltd toll-
free at 866-271-4536 between 8:00 a.m. and 5:00 p.m. CT Monday
through Friday, or visit the firm's Web site at
http://www.onestepahead.com/ Consumers can also e-mail the firm
at this address: customerservice@onestepahead.com
CHICAGO BRIDGE: Court Approves Shareholders' Suit Settlement
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
approved on a final basis the proposed settlement in a
consolidated securities fraud class-action suit filed against
Chicago Bridge & Iron Co. N.V. and its officers, according to
Chicago Bridge's Aug. 5, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
A shareholder class action suit was filed on Feb. 17, 2006,
against the company, Gerald M. Glenn, Robert B. Jordan, and
Richard E. Goodrich in the United States District Court for the
Southern District of New York, entitled "Welmon v. Chicago
Bridge & Iron Co. NV, et al. (No. 06 CV 1283)."
The complaint was filed on behalf of a purported class
consisting of all those who purchased or otherwise acquired the
company securities from March 9, 2005, through Feb. 3, 2006, and
were damaged thereby.
The action asserts claims under the U.S. securities laws in
connection with various public statements made by the defendants
during the class period and alleges, among other things, that
the company misapplied percentage-of-completion accounting and
did not follow its publicly stated revenue recognition policies.
Since the initial lawsuit, other suits containing substantially
similar allegations and with similar, but not exactly the same,
class periods were filed.
On July 5, 2006, a single consolidated amended complaint was
filed in the Welmon action in the Southern District of New York
consolidating all previously filed actions.
The company and the individual defendants filed a motion to
dismiss the complaint, which was denied by the Court.
On March 2, 2007, the lead plaintiffs filed a motion for class
certification, and the company and the individual defendants
filed an opposition to this request.
After an initial hearing on the motion for class certification
held on May 29, 2007, the Court scheduled another hearing to be
held on Nov. 13-14, 2007, to resolve factual issues regarding
the typicality and adequacy of the proposed class
representatives. The parties have agreed to a rescheduling of
the hearing to a later date.
On Jan. 22, 2008, the parties entered into a definitive
settlement agreement that, without any admission of liability,
would fully resolve the claims made against the company and the
individual defendants in the case.
The settlement agreement received final approval by the Court at
a hearing on June 3, 2008, and a final judgment and order
dismissing the action with prejudice was docketed on June 4,
2008.
Under the terms of the settlement agreement, the plaintiff class
will receive a payment of $10.5 million, less approved attorneys
fees and expenses, which has been funded to an escrow account by
the company's insurance carrier.
The suit is "Wayne Welmon, et al. v. Chicago Bridge & Iron Co.
NV, et al., Case No. 1:06-cv-01283-JES," filed in the U.S.
District Court for the Southern District of New York, Judge John
E. Sprizzo.
Representing the plaintiffs are:
Robert M. Roseman, Esq. (rroseman@srk-law.com)
Spector Roseman & Kodroff, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: 215-496-0300
Barry A. Weprin, Esq. (bweprin@milbergweiss.com)
Milberg Weiss LLP
One Pennsylvania Plaza
New York, NY 10119-0165
Phone: 212-594-5300
- and -
Mark S. Willis, Esq. (mwillis@cmht.com)
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, D.C. 20005
Phone: 202-408-4600
To contact the Claims Administrator:
Chicago Bridge & Iron Co. Securities Litigation
Settlement
c/o Complete Claim Solutions, LLC
Claims Administrator
Post Office Box 24789
West Palm Beach, FL 33416
Phone: 877-567-4298
Web site: http://www.chicagobridgesecuritiessettlement.com/
CIGNA CORP: Faces Lawsuit Over Defective Claims Payouts Database
----------------------------------------------------------------
CIGNA Corp. is facing a class-action complaint filed before the
U.S. District Court for the District of Connecticut over
allegations that it cheats policyholders by using a defective
Ingenix Prevailing Health Care System Database to determine
claims payouts, CourtHouse News Service reports.
Named plaintiff David Chazen brings this action as a member of a
health insurance plan offered through his employer, which was
fully insured and administered by CIGNA during the class period.
Mr. Chazen brings his claims against:
-- Connecticut General Life Insurance Company
-- CIGNA Corp. and
-- CIGNA Health Corporation.
The complaint alleges that as the company that issues, insures
and administers these employee benefit plans through which
plaintiff received his insurance, CIGNA is subject to the
Employee Retirement Income Security Act of 1974, as amended
(ERISA) and its governing regulations. Furthermore, due to the
role CIGNA played in administering Mr. Chazen's health plan,
including by making coverage and benefit decisions, and deciding
appeals, CIGNA has assumed the role as a fiduciary under ERISA
toward plaintiff.
The complaint further states that CIGNA breached the express
terms of health plans. The plaintiff seeks reimbursement for
his unpaid benefits, as well as other appropriate equitable and
legal relief to remedy CIGNA's ongoing violations of ERISA, the
New Jersey SEHP Regulation and federal common law.
The plaintiff brings this action on behalf of all persons in the
United States who are, or were, at any time during the period
within six years of the date of this action was filed, members
or their dependents in any health plan administered by CIGNA or
as to which CIGNA is a claims fiduciary, who received medical or
hospital services from an out-of-network provider and for whom
CIGNA made out-of-network determinations in an amount less than
the billed charge for that procedure.
The plaintiff wants the court to rule on:
(a) whether CIGNA systematically and typically breached its
health plan contracts when it used Ingenix data to
determine UCR;
(b) whether CIGNA underpaid out-of-network benefits for
members of the class;
(c) whether CIGNA violated its fiduciary duties in failing
to disclose material information and data to
members;
(d) whether CIGNA systematically and typically fails to
provide a "full and fair review" to members and their
assignees who received determinations reflecting UCR;
(e) whether CIGNA systematically and typically violated
ERISA or federal claims procedure regulations;
(f) whether CIGNA systematically violated the SEHP
Regulation applicable to New Jersey small employer plan
members;
(g) whether CIGNA mislead or withheld information from the
New Jersey regulators about its payment of benefits;
(h) whether CIGNA systematically and typically fails to
provide a "full and fair review" toe New Jersey small
employer members and their assignees who received
determinations reflecting UCR; and
(i) whether CIGNA systematically and typically violated
ERISA or federal claims procedure regulations as to New
Jersey small employer plan members.
The plaintiff asks the court to enter an order:
-- declaring that CIGNA has breached the terms of
plaintiff's health plan and those of the class, and
awarding unpaid benefits to the plaintiff and the class
members, as well as awarding injunctive declaratory
relief to ensure enforcement of plan terms and to
clarify future entitlement to benefits, including
enjoining CIGNA from using the Ingenix database, or from
making UCR determinations in the absence of proper
reliable data substituting the lesser amounts;
-- declaring that CIGNA has failed to provide a "full and
fair review" to plaintiff and the class under ERISA
Section 503, 29 USC Section 1133, and awarding
injunctive, declaratory and other equitable relief to
plaintiff and the class to ensure compliance with
ERISA's requirements;
-- declaring that CIGNA has violated its disclosure
obligations under ERISA and the federal common law,
including under Section 104(b)(4), 29 USC Section
1024(b)(4) and ERISA Section 102, 29 USC Section 1022,
for which plaintiff and the class are entitled to
injunctive, declaratory and other equitable relief;
-- declaring that CIGNA has its fiduciary duties of loyalty
and care to plaintiff, and awarding appropriate relief,
including restitution, declaratory and injunctive relief
to plaintiff and the class, including removing any
breaching fiduciary;
-- declaring that CIGNA has violated federal claims
procedures, and awarding plaintiff and the class
declaratory and injunctive relief to remedy such
violations;
-- declaring that CIGNA violated ERISA's SPD requirements,
and enjoining future use of noncompliant SPDs;
-- awarding Mr. Chazen and other New Jersey small employer
plan class members unpaid benefits in all instances
where CIGNA failed to comply with the New Hersey SEHP
Regulation, and declaratory, injunctive and equitable
relief to ensure past and future compliance with New
Jersey law;
-- awarding plaintiff and the class the costs and
disbursements of this action, including reasonable
counsel fees, costs and expenses in amounts to be
determined by the court;
-- awarding prejudgment interest; and
-- granting such other and further relief as is just and
proper.
The suit is "David Chazen, et al. v. Cigna Corp., et al., Case
No. 08-4106 (FSH)," filed in the U.S. District Court for the
District of Connecticut.
Representing the plaintiff is:
Barry M. Epstein, Esq.
Wilentz, Goldman & Spitzer, PA
90 Woodbridge Center Drive
Suite 900, Box 10
Woodbridge, NJ 07095-0985
Phone: 732-636-8000
DIRECTBUY INC: Faces Connecticut Suit Over "Buying Club" Charges
----------------------------------------------------------------
An antitrust class action filed in the U.S. District Court for
the District of Connecticut accuses DirectBuy Inc. of charging
thousands of dollars for membership in a "buying club" that
falsely promises "direct prices" for items such as furniture and
appliances, i.e. the "price paid by manufacturers or suppliers,"
CourtHouse News Service reports.
It is a lie because DirectBuy gets "tens of millions of dollars
in kickbacks" from the manufacturers and suppliers, the
complaint states.
DirectBuy is based in Indiana and also operates under the name
of the United Consumers Club, the complaint further states.
Named plaintiffs Debra and Robert Ponzi filed the action on
behalf of all persons that have purchased memberships in the
"DirectBuy" members-only buying club from Aug. 20, 2002, to the
present.
According to the complaint, the defendants falsely and uniformly
represent that in exchange for the payment of significant
membership fees consisting of at least several thousand dollars
per class member, "members" will be entitled t buy consumer
products (such as carpeting, furniture and appliances) from
manufacturers and supplies at "direct" prices -- that is the
actual price paid by the manufacturers or suppliers.
The plaintiffs want the court to rule on:
(a) whether defendants' conduct constitutes a violation of
the Racketeer Influenced and Corrupt Organizations Act,
18 USC Section 1961, et seq.;
(b) whether the conduct alleged unjustly enriched
defendants;
(c) whether the conduct alleged constitutes a violation of
the Connecticut Unfair Trade Practices Act, Conn. Gen.
Stat. Section 42-110a, et seq. (CUTPA); and
(d) whether the members of the class have sustained damages
and, if so, what the proper measure of damages is.
The plaintiffs asks the court:
-- for an order that this action is properly maintainable
under Federal Rule of Civil Procedure Rule 23, and
appointing the plaintiffs to represent the class;
-- pursuant to 18 USC Section 1964(c), for an order
awarding treble damages, costs of suit, and a
reasonable attorneys' fee;
-- for damages against the defendants in an amount to be
determined at trial, together with interest thereon,
costs of suit, and reasonable attorneys' fees;
-- pursuant to 18 USC Section 1964(a), for an order
prohibiting the defendants from engaging in the same
type of endeavor as the enterprise engaged in;
-- for restitution and disgorgement of all amounts
obtained by defendants as a result of their misconduct;
-- for all recoverable compensatory and other damages
sustained by the plaintiffs and the class;
-- for compensatory and punitive damages and reasonable
attorneys' fees for members of the CUTPA sub-class;
-- for pre-judgment and post-judgment interest; and
-- for such other and further relief as the court may deem
just and proper.
The suit is "Debra Ponzi, et al. v. DirectBuy Inc., et al., Case
No. 3:08CV1274(SRU)," filed in the U.S. District Court for the
District of Connecticut.
Representing the plaintiffs are:
Jeffrey S. Nobel, Esq.
Seth R. Klein, Esq.
Izard Nobel LLP
20 Church Street
Hartford, CT 06103
Phone: 860-493-6292
Fax: 860-493-6290
e-mail: firm@izardnobel.com
FEDERAL HOME: N.Y. Securities Suit Nixed; Faces Another in Ohio
---------------------------------------------------------------
A securities class-action suit filed in New York against Federal
Home Loan Mortgage Corp., which is doing business as Freddie
Mac, has been dismissed, but the company continues to face a
similar case that is pending in Ohio, according to its Aug. 6,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
The suits were filed against Freddie Mac and certain of its
current and former officers over allegations that the company
violated federal securities laws by making "false and misleading
statements concerning our business, risk management and the
procedures we put into place to protect the company from
problems in the mortgage industry."
The first suit was filed on Nov. 21, 2007, in the U.S. District
Court for the Southern District of New York, under the caption
"Reimer vs. Freddie Mac, Syron, Cook, Piszel and McQuade, Case
No. 1:2007cv10526."
The second suit, entitled "Ohio Public Employees Retirement
System v. Federal Home Loan Mortgage Corp., et al., Case No.
4:08-cv-00160-JRA," was filed on Jan. 18, 2008, in the U.S.
District Court for the Northern District of Ohio.
The plaintiffs are seeking unspecified damages and interest,
reasonable costs including attorneys' fees and equitable and
other injunctive relief.
On March 10, 2008, the Court in "Reimer" granted the plaintiff's
request to voluntarily dismiss the case, and the case was
dismissed.
In the Ohio Public Employees Retirement System case, on
April 10, 2008, the court appointed OPERS as lead plaintiff and
approved its choice of counsel.
The plaintiff is seeking unspecified damages and interest, and
reasonable costs and expenses, including attorney and expert
fees.
Freddie Mac -- http://www.freddiemac.com/-- is a stockholder-
owned corporation established to support homeownership and
rental housing. Freddie Mac purchases residential mortgages and
mortgage-related securities in the secondary mortgage market,
and securitizes them into mortgage-related securities that can
be sold to investors. The company purchases single-family and
multi-family residential mortgages and mortgage-related
securities, which it finances primarily by issuing mortgage-
related securities and debt instruments in the capital markets.
Freddie Mac finances its purchases primarily by issuing a range
of debt instruments in the capital markets. The company
operates in three segments: Investments, Single-family Guarantee
and Multifamily.
FORD MOTOR: Sued in Canada For Canceling Third Shift Startup
------------------------------------------------------------
A single mother from St. Catharines, Ontario, has filed a class
action lawsuit against Ford Motor Co. of Canada Ltd. over its
decision to cancel the startup of a third shift at its auto
assembly plant in Oakville, Edmonton Journal reports.
According to Edmonton Journal, Brenda Austin filed her statement
of claim against the automaker on Aug. 7, 2008, before Ontario's
Superior Court. She alleges Ford wrongfully dismissed or
repudiated the employment contract it had with her and 350
others hired to work a planned third shift at its Oakville
factory, and that the company is liable for damages.
"Ford's actions were unjust, unfair, unwarranted, insensitive
and in bad faith," says the statement of claim.
The statement of claim recounts that in early July, Ford made a
set of offers of permanent full-time employment to Ms. Austin
and others for work scheduled to start around July 28. However,
the complaint further relates, about six days before that
scheduled start, the automaker advised many or all those who had
accepted the offer that they should not show up as their
employment had been "postponed indefinitely."
Ms. Austin had by that time given up her union job at Henniges
Auto in Welland, Ontario, the suit says. She went back to
Henniges to try to get her job back, but it had already been
filled. Since receiving the phone call from Ford, she and
several others have been unable to find employment, the lawsuit
adds.
"Ford has made no effort to assist Ms. Austin in her job
search," the complaint alleges. "Ms. Austin submits that
exceptional difficulties have arisen because of the state of the
economy, and in particular the automotive industry. Ms. Austin
submits that the inability to find alternative employment was
reasonably foreseeable by Ford."
According to the report, the suit does not specify the amount of
damages, saying that should be determined on an individual basis
for each person.
A Ford official told Edmonton Journal that the company canceled
plans for the shift because of slowing auto sales. Workers at
the Oakville plant assemble the Ford Edge, Ford Flex, and
Lincoln MKX crossover vehicles, the report notes.
The report also relates that news of the suit comes on the same
day that Ford announced its top executive in Canada is quitting
after just six months on the job. Barry Engle is leaving the
company effective Sept. 8 to become chief executive of New
Holland Agricultural Equipment, a tractor maker based in his
home state of Pennsylvania. New Holland, a unit of CNH Global
N.V., is controlled by automaker Fiat SpA. Ford said it will
name Mr Engle's replacement at a future date.
A judge has to certify Ms. Austin's class-action claim before it
can proceed, the report states.
The report adds that Ford declined to comment on the lawsuit.
GARDENER'S SUPPLY: Flame Weeders Recalled Due to Burn Hazards
-------------------------------------------------------------
Gardener's Supply Co., of Burlington, Vt., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
2,000 Flame Weeders.
The company said the two-piece brass control valve can separate
between the flame weeder and the propane tank and allow propane
to leak from the tank. This poses fire and burn hazards to
consumers.
CPSC and Gardener's Supply Co. have received three reports of
the weeder's valve control leaking propane, including one report
of flames. No injuries have been reported.
The recalled flame weeders are used to burn weeds. The weeders
have a long silver colored metal tube with a blue plastic handle
which is attached by a two-piece brass valve to a 1-lb. propane
tank.
These recalled weeders were manufactured in the United Kingdom
and were being sold by Gardener's Supply Co. stores in
Burlington and Williston, Vt., Gardener's Supply catalog, and at
http://www.gardeners.com/from March 2008 through July 2008 for
about $50.
A picture of the recalled weeders is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08600.jpg
Consumers are advised to immediately stop using the flame
weeders and return them to the store where purchased or call
Gardener's Supply Co. for a full refund including any shipping
costs. Gardener's Supply Co. is directly contacting consumers
who purchased the recalled flame weeders.
For additional information, contact Gardener's Supply Co. at
800-876-5520 between 8:00 a.m. and 8:00 p.m. ET Monday through
Friday, or visit the firm's Web site at
http://www.gardeners.com/
HUMANA INC: Faces Consolidated Securities Fraud Suit in Kentucky
----------------------------------------------------------------
Humana, Inc., is facing a consolidated securities fraud class-
action suit filed in the U.S. District Court for the Western
District of Kentucky, 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.
Initially, the company and certain of its officers were named as
defendants in three substantially similar federal securities
class-action suits that were filed in Kentucky federal court.
The suits are:
1. "Capuano v. Humana Inc., et al., No. 3:08cv-162 M,"
filed on March 26, 2008;
2. "Lach v. Humana Inc., et al., No. 3:08cv-181-H," filed
on April 4, 2008; and
3. "Dirusso v. Humana Inc., et al., No. 3:08cv-187-H,"
filed on April 8, 2008.
The complaints allege that, from Feb. 4, 2008, through March 11,
2008, the defendants misled investors by knowingly making
materially false and misleading statements regarding Humana's
anticipated earnings per share for the first quarter of 2008 and
for the fiscal year of 2008.
The complaints allege that the defendants' statements regarding
Humana's projected earnings per share were materially false and
misleading because they failed to disclose that:
-- Humana could not properly calculate the prescription
drug costs of its newly acquired Medicare prescription
drug plan members;
-- the costs associated with Humana's prescription drug
plans had dramatically increased; and
-- the defendants lacked a reasonable basis for their
statements regarding Humana's anticipated earnings per
share.
The lawsuits allege that these actions violated Section 10(b) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, and that the named officers are also
liable as control persons under Section 20(a) of the U.S.
Securities Exchange Act.
The plaintiffs seek:
-- certification of the suits as class actions;
-- designation of a lead plaintiff and class
representative;
-- designation of lead plaintiffs' counsel;
-- compensatory damages, including interest;
-- an award of plaintiffs' legal fees and expenses; and
-- other relief that the court deems just and proper.
On July 17, 2008, the cases were consolidated and the Alaska
Laborers Employment Retirement Fund and three individuals were
designated lead plaintiffs.
The suit is "Capuano v. Humana, Inc., et al., Case No. 3:08-cv-
00162-JHM-DW," filed in the U.S. District Court for the Western
District of Kentucky, Judge Joseph H. McKinley, Jr., presiding.
Representing the plaintiffs are:
Deborah R. Gross, Esq. (debbie@bernardmgross.com)
Law Office of Bernard M. Gross, P.C.
100 Penn Square East, Suite 450
Juniper and Market Streets
Philadelphia, PA 19107
Phone: 215-561-3600
Fax: 215-561-3000
- and -
David A. Rosenfeld, Esq. (drosenfeld@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
58 S. Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
Representing the defendants are:
Domonic A. Arni, Esq. (dominic.arni@friedfrank.com)
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, DC 20004-2505
Phone: 202-639-7044
Fax: 202-639-7003
- and -
David B. Hennes, Esq. (david.b.hennes@friedfrank.com)
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
Phone: 212-859-8355
Fax: 212-859-4000
HUMANA INC: Sept. 2 Hearing Set for Motions in ERISA Lawsuits
-------------------------------------------------------------
A hearing is slated for Sept. 2, 2008, in connection with the
pending motions filed in purported class-action suits that were
brought against Humana, Inc., asserting violations of the
Employee Retirement Income Security Act, 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.
Initially, the company and certain of its officers were named as
defendants in three substantially similar class-action lawsuits
filed before the U.S. District Court for the Western District of
Kentucky.
The suits are:
1. "Benitez, et al. v. Humana Inc., et al., Case No.
3:08cv-211-H," filed on April 22, 2008;
2. "Rose, et al. vs. Humana Inc., et al., No. 3:08cv-236-
JBC," filed on May 1, 2008; and
3. "Riggs v. Humana Inc., et al., No. 3:08cv-304-M, filed
on June 10, 2008."
The Benitez complaint was brought on behalf of a purported class
of participants in and beneficiaries of the Humana Retirement
and Savings Plan.
The Rose complaint and the Riggs complaint were brought on
behalf of that purported class and also on behalf of a purported
class of participants in and beneficiaries of the Humana Puerto
Rico 1165(d) Retirement Plan.
The ERISA complaints allege, among other things, that the
defendants:
-- offered Humana stock as an investment option within
the Plan and made contributions in Humana stock when
that stock was not a prudent investment for
participants' retirement savings,
-- provided misleading information, knowingly concealed
information and failed to provide complete and
accurate information regarding Humana stock to
participants,
-- failed to properly monitor the Plan's fiduciaries and
remove any fiduciaries whose performance was
inadequate, and
-- failed to avoid conflicts of interest and to serve the
interests of the Plan participants and beneficiaries
with undivided loyalty.
The Rose complaint and the Riggs complaint also allege that
certain defendants are liable for those breaches as co-
fiduciaries because they enabled, knowingly participated in and
knew of and failed to remedy those breaches.
The ERISA complaints collectively seek the following relief,
among other things:
-- repayment of alleged losses to the Plan, restoration
of profits that the ERISA Defendants allegedly made
using Plan assets, and restoration of Plan
participants' lost profits;
-- an injunction prohibiting future violations of the
ERISA defendants' fiduciary obligations under ERISA;
-- appointment of one or more independent fiduciaries to
participate in managing the Plan's investment in
Humana stock;
-- actual damages;
-- an award of plaintiffs' legal fees and costs; and
-- equitable restitution and other equitable monetary
relief.
A hearing on pending motions to consolidate and appoint interim
co-lead counsel has been set for Sept. 2, 2008.
Humana Inc. -- http://www.humana.com/-- is a health and
supplemental benefits companies. The company is a full-service
benefits solutions company, offering an array of health and
supplemental benefit plans for employer groups, government
benefit programs, and individuals. As of Dec. 31, 2007, Humana
had approximately 11.5 million members in its medical benefit
plans, as well as approximately 6.8 million members in its
specialty products. The company manages its business with two
segments: Government and Commercial. The Government segment
consists of beneficiaries of government benefit programs, and
includes three lines of business: Medicare, Military, and
Medicaid. The Commercial segment consists of members enrolled
in its medical and specialty products marketed to employer
groups and individuals.
HUMANA INC: Faces Connecticut Lawsuit Over Payment of Claims
------------------------------------------------------------
Humana, Inc., is facing a purported class-action suit in
connection with various practices related to the payment of
claims for services rendered to the company's members by out-of-
network providers, resulting in increased out-of-pocket payments
by the company's members, 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.
The company and certain other companies in the health insurance
industry were named as defendants in the matter, entitled
"Weintraub, et al. v. Ingenix, Inc., et al. , Case No. 3:08-cv-
00654-CFD," a class-action suit filed on April 29, 2008, before
the U.S. District Court for the District of Connecticut.
The suit is asserting violations of the Racketeer Influenced and
Corrupt Organizations Act (18 U.S.C. Section 1962(c)), Section 1
of the Sherman Antitrust Act (15 U.S.C. Section 1), and the
Connecticut Unfair Trade Practices Act (C.G.S. Section 42-110b).
The Weintraub complaint alleges, among other things, that,
during the period beginning at least as early as Jan. 1, 2004,
through April 29, 2008, the defendants conspired to fix the
rates at which they reimbursed their health plan members for
costs of services received from out-of-network health care
providers by, among other things:
-- manipulating the "reasonable and customary rates" that
they used to calculate reimbursement rates;
-- using data supplied by Ingenix, Inc., regarding
reasonable and customary rates that they knew was
flawed and had been manipulated; and
-- concealing these facts from their plan members.
The Weintraub complaint alleges that, as a result of these
actions, the defendants artificially depressed their
reimbursement rates for out-of-network services and caused their
members to pay a greater share of the costs of those services
than they otherwise would have paid.
The complaint seeks, among other things:
-- an award of monetary damages, including disgorgement,
and treble and punitive damages;
-- an injunction prohibiting the defendants from
continuing the alleged unlawful activities;
-- an award of plaintiff's legal fees and costs; and
-- other relief that the court deems just and proper.
The suit is "Weintraub v. Ingenix Inc., et al., Case No. 3:08-
cv-00654-MR," filed in the U.S. District Court for the District
of Connecticut, Judge Mark R. Kravitz, presiding.
Representing the plaintiff is:
Christopher M. Burke, Esq. (cburke@scott-scott.com)
Scott & Scott, LLP
600 B Street, Suite 1500
San Diego, CA 92101
Phone: 619-233-4565
Fax: 619-233-0508
Representing the defendants are:
Vaughan Finn, Esq. (vfinn@goodwin.com)
Shipman & Goodwin
One Constitution Plaza
Hartford, CT 06103-2819
Phone: 860-251-5000
Fax: 860-251-5599
- and -
Michael P. Shea, Esq. (mpshea@DayPitney.com)
Day Pitney LLP
242 Trumbull St.
Hartford, CT 06103-1212
Phone: 860-275-0146
Fax: 860-275-0343
JACKSON HEWITT: N.Y. Court Allows Hidden Fees Lawsuit to Proceed
----------------------------------------------------------------
The United States District Court for the Eastern District of New
York has substantially denied motions to dismiss a class action
complaint charging Jackson Hewitt Tax Service Inc. and certain
of its franchises with deceiving its customers by charging
hidden fees.
In the suit, entitled "Watts, et al. v. Jackson Hewitt Tax
Service Inc., et al., 06-cv-6042 (DLI) (SMG)," the plaintiffs
allege that Jackson Hewitt advertises minimum prices for long
form and short form tax returns, and that, although Jackson
Hewitt claims that the prices are subject to change based on the
complexity of the complaint, it charges customers various hidden
fees unrelated to the complexity of the complaint.
The plaintiffs allege that Jackson Hewitt hides the fees by
labeling them as a "Tax Preparation" fee in the final billing
statement submitted to customers. The fees include an automatic
15% multiplier fee for income tax returns, additional charges in
connection with the purchase of a refund anticipation loan or an
accelerated check refund, and additional charges for the
preparation of a state long form tax return even if the customer
qualifies to file a less expensive state short form tax return.
The Court rejected defendants' motions to dismiss the case. The
Court held that "[b]y luring customers away from competitors
with low advertised prices as well as extracting higher fees and
royalties through the hidden charges, defendants stood to derive
concrete benefits from the alleged practices."
The Court has not decided the merits of the claims or defenses.
Parsippany, N.J.-based Jackson Hewitt Tax Service Inc. provides
computerized preparation of federal, state and local individual
income tax returns in the United States through a nationwide
network of franchised and company-owned offices operating under
the brand name Jackson Hewitt Tax Service. In 2008, the
Company's network consisted of 6,763 franchised and Company-
owned offices and prepared 3.39 million tax returns excluding
Economic Stimulus Program tax returns (3.46 million total tax
returns).
MASTERCARD INC: Parties in IPO Lawsuit Enter Into Mediation
-----------------------------------------------------------
The parties in a supplemental complaint filed in relation to
MasterCard, Inc.'s 2006 Initial Public Offering have entered
into court-recommended mediation.
On July 5, 2006, the group of purported class plaintiffs filed a
supplemental complaint alleging that the IPO and certain
purported agreements entered into between MasterCard Inc. and
its member financial institutions in connection with its 2006
IPO:
(1) violate Section 7 of the Clayton Act because their
effect allegedly may be to substantially lessen
competition;
(2) violate Section 1 of the Sherman Act because they
allegedly constitute an unlawful combination in
restraint of trade; and
(3) constitute a fraudulent conveyance because the member
banks are allegedly attempting to release without
adequate consideration from the member banks
MasterCard's right to assess the member banks for
MasterCard's litigation liabilities in these
interchange-related litigations and in other antitrust
litigations pending against it.
The plaintiffs seek unspecified damages and an order reversing
and unwinding the IPO.
On Sept. 15, 2006, MasterCard moved to dismiss all of the claims
contained in the supplemental complaint.
On Feb. 12, 2008, Magistrate Judge Michael L. Orenstein issued a
report and recommendation that granted in part and denied in
part MasterCard's motion to dismiss.
Specifically, Magistrate Judge Orenstein recommended that
MasterCard's motion to dismiss the plaintiffs' fraudulent
conveyance claims be granted but he allowed them leave to
replead those claims.
Magistrate Judge Orenstein otherwise recommended the denial of
all other aspects of MasterCard's motion to dismiss the
plaintiffs' Section 7 and Section 1 claims.
On April 4, 2008, MasterCard filed objections to Magistrate
Judge Orenstein's report and recommendation. The court has not
yet ruled on MasterCard's objections.
The parties have also entered into court-recommended mediation,
according to MasterCard, Inc.'s July 31, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
MasterCard, Inc. -- http://www.mastercard.com/us/company/en/--
is a global payment solutions company that provides a variety of
services in support of the credit, debit and related payment
programs of nearly 25,000 financial institutions. Through the
company's three-tiered business model as franchisor, processor
and advisor, it develops and markets payment solutions, process
payment transactions, and provide consulting services to its
customers and merchants. The company manages a family of
payment card brands, including MasterCard, MasterCard
Electronic, Maestro and Cirrus, which it licenses to its
customers. MasterCard?s general purpose card brands include
MasterCard, Visa, American Express, JCB, Diners Club and
Discover.
MASTERCARD INT'L: No Trial Date Set for Interchange Fees MDL
------------------------------------------------------------
No trial date has yet been set for a purported class action suit
filed by a group of merchants against MasterCard International
Inc., among others, alleging that the company's purported
setting of interchange fees violates Section 1 of the Sherman
Act, according to MasterCard, Inc.'s July 31, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2008.
On June 22, 2005, a purported class action lawsuit was filed by
a group of merchants in the U.S. District Court of Connecticut
against MasterCard International Inc., Visa U.S.A. Inc., Visa
International Service Association and a number of member banks
alleging, among other things, that MasterCard's and Visa's
purported setting of interchange fees violates Section 1 of the
Sherman Act.
In addition, the complaint alleges MasterCard's and Visa's
purported tying and bundling of transaction fees also
constitutes a violation of Section 1 of the Sherman Act. The
suit seeks treble damages in an unspecified amount, attorneys'
fees and injunctive relief.
Since the filing of this complaint, there have been
approximately 50 similar complaints (the majority styled as
class actions although a few complaints are on behalf of
individual plaintiffs) filed on behalf of merchants against
MasterCard and Visa (and in some cases, certain member banks) in
federal courts in California, New York, Wisconsin, Pennsylvania,
New Jersey, Ohio, Kentucky and Connecticut.
On Oct. 19, 2005, the Judicial Panel on Multidistrict Litigation
issued an order transferring these cases to Judge Gleeson of the
U.S. District Court for the Eastern District of New York for
coordination of pre-trial proceedings. On April 24, 2006, the
group of purported class plaintiffs filed a First Amended Class
Action Complaint.
Taken together, the claims in the First Amended Class Action
Complaint and in the complaints brought on the behalf of the
individual merchants are generally brought under Sections 1 and
2 of the Sherman Act.
Specifically, the complaints contain some or all of these
claims:
(i) that MasterCard's and Visa's setting of interchange
fees (for both credit and offline debit transactions)
violates Section 1 of the Sherman Act;
(ii) that MasterCard and Visa have enacted and enforced
various rules, including the no surcharge rule and
purported anti-steering rules, in violation of Section
1 or 2 of the Sherman Act;
(iii) that MasterCard's and Visa's purported bundling of the
acceptance of premium credit cards to standard credit
cards constitutes an unlawful tying arrangement; and
(iv) that MasterCard and Visa have unlawfully tied and
bundled transaction fees.
In addition to the claims brought under federal antitrust law,
some of these complaints contain certain state unfair
competition law claims based upon the same conduct.
These interchange-related litigations also seek treble damages
in an unspecified amount (although several of the complaints
allege that the plaintiffs expect that damages will range in the
tens of billions of dollars), as well as attorneys' fees and
injunctive relief.
On June 9, 2006, MasterCard answered the complaint and moved to
dismiss or, alternatively, moved to strike the pre-2004 damage
claims that were contained in the First Amended Class Action
Complaint and moved to dismiss the Section 2 claims that were
brought in the individual merchant complaints.
On Sept. 7, 2007, Magistrate Judge Michael L. Orenstein issued a
report and recommendation that MasterCard's motion to dismiss
the pre-2004 damages claims should be granted in its entirety.
On Jan. 8, 2008, the district court adopted the magistrate
judge's report and recommendation and dismissed the plaintiffs'
pre-2004 damage claims.
On Jan. 11, 2008, the magistrate judge issued a report and
recommendation that MasterCard's motion to dismiss the
individual merchant defendants' Section 2 claims should be
denied.
On Feb. 15, 2008, MasterCard filed objections to the magistrate
judge's report and recommendation. On May 14, 2008, the court
issued an order rejecting MasterCard's objections and adopted
the magistrate's recommendation denying MasterCard's motion to
dismiss.
Fact discovery has been proceeding and is currently scheduled to
be completed by Oct. 15, 2008, with briefing on class
certification to be completed by Nov. 24, 2008, and briefing on
case dispositive motions to be completed by Nov. 25, 2009. No
trial date has been scheduled.
MasterCard, Inc. -- http://www.mastercard.com/us/company/en/--
is a global payment solutions company that provides a variety of
services in support of the credit, debit and related payment
programs of nearly 25,000 financial institutions. Through the
company's three-tiered business model as franchisor, processor
and advisor, it develops and markets payment solutions, process
payment transactions, and provide consulting services to its
customers and merchants. The company manages a family of
payment card brands, including MasterCard, MasterCard
Electronic, Maestro and Cirrus, which it licenses to its
customers. MasterCard?s general purpose card brands include
MasterCard, Visa, American Express, JCB, Diners Club and
Discover.
MASTERCARD INT'L: Court Yet to Approve Conversion Fee Suit Deal
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to grant final approval to a settlement reached in a
consolidated class-action suit over MasterCard International,
Inc.'s one percent currency conversion "fee."
MasterCard International, Visa U.S.A. Inc., Visa International
Corp., several member banks including Citibank (South Dakota),
N.A., Chase Manhattan Bank USA, N.A., Bank of America, N.A.
(USA), MBNA, and Citicorp Diners Club Inc. are defendants in a
number of federal putative class action complaints that allege,
among other things, violations of federal antitrust laws based
on the asserted one percent currency conversion "fee."
Pursuant to an order of the Judicial Panel on Multidistrict
Litigation, the federal complaints have been consolidated in MDL
No. 1409 before Judge William H. Pauley III in the U.S. District
Court for the Southern District of New York.
In January 2002, the federal plaintiffs filed a consolidated
amended complaint adding MBNA Corp. and MBNA America Bank N.A.
as defendants. This pleading asserts two theories of antitrust
conspiracy under Section 1 of the Sherman Act:
(i) an alleged "inter-association" conspiracy among
MasterCard (together with its members), Visa (together
with its members) and Diners Club to fix currency
conversion "fees" allegedly charged to cardholders of
"no less than 1% of the transaction amount and
frequently more;" and
(ii) two alleged "intra-association" conspiracies, whereby
each of Visa and MasterCard is claimed separately to
have conspired with its members to fix currency
conversion "fees" allegedly charged to cardholders of
"no less than 1% of the transaction amount" and "to
facilitate and encourage institution?and collection?of
second tier currency conversion surcharges."
The MDL Complaint also asserts that the alleged currency
conversion "fees" have not been disclosed as required by the
Truth in Lending Act.
On July 20, 2006, MasterCard and the other defendants in the MDL
action entered into agreements settling the MDL action and
related matters, as well as the Schwartz matter.
Pursuant to the settlement agreements, MasterCard has paid
$72,480 to be used for the defendants' settlement fund to settle
the MDL action and $13,440, which is expected to be paid in the
third quarter of 2007, to settle the matter "Schwartz v. Visa
Int'l Corp., et al.," which was brought in the Superior Court of
California in February 2000, purportedly on behalf of the
general public over the conversion fee.
On Nov. 8, 2006, Judge Pauley granted preliminary approval of
the settlement agreements. The settlement agreements are
subject to final approval and resolution of all appeals.
On Nov. 15, 2006, the plaintiff in one of the New York state
court cases appealed the preliminary approval of the settlement
agreement to the U.S. Court of Appeals for the Second Circuit.
On June 6, 2007, the appellate court granted MasterCard's motion
to defer briefing until a final settlement is approved in the
MDL action.
The hearing on final approval of the settlement agreements was
held on March 31, 2008, and Judge Pauley reserved his decision
on final approval, according to MasterCard, Inc.'s July 31, 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 Currency Conversion Fee Antitrust Litigation,
Master Docket No. 1:01-md-1409," filed in the U.S. District
Court for the Southern District of New York, Judge William H.
Pauley, III, presiding.
Representing the plaintiffs are:
David J. Bershad, Esq. (dbershad@milbergweiss.com)
Michael Morris Buchman, Esq.
(mbuchman@milbergweiss.com)
Milberg Weiss Bershad & Schulman, LLP
One Pennsylvania Plaza
New York, NY 10119
Phone: 212-594-5300
212-946-9387
Fax: 212-868-1229
Christopher Burke, Esq.
Amelia F. Burroughs, Esq.
Lerach Coughlin Stoia & Robbins, LLP
Suite 1800, 600 West Broadway
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
- and -
Sheldon V. Burman, Esq.
Law Offices of Sheldon V. Burman, PC
110 East 59th Street
New York, NY 10022
Phone: 212-935-1600
MASTERCARD INT'L: Discovery Ongoing in Calif. Consumer Lawsuit
--------------------------------------------------------------
Discovery is ongoing in a purported class action suit filed in
California state court that seeks to piggyback on a portion of a
federal antitrust litigation that names MasterCard
International, Inc., as a defendant.
Federal Antitrust Litigation
In October 1998, the U.S. Department of Justice filed a lawsuit
against MasterCard International, Visa U.S.A. Inc., and Visa
International Corp. in the U.S. District Court for the Southern
District of New York alleging that both MasterCard's and Visa's
governance structure and policies violated U.S. federal
antitrust laws.
First, the DOJ claimed that "dual governance" -- the situation
where a financial institution has a representative on the board
of directors of MasterCard or Visa while a portion of its card
portfolio is issued under the brand of the other association --
was anti-competitive and acted to limit innovation within the
payment card industry.
Second, the DOJ challenged MasterCard's Competitive Programs
Policy and a Visa bylaw provision that prohibited financial
institutions participating in the respective associations from
issuing competing proprietary payment cards (such as American
Express or Discover).
The DOJ alleged that MasterCard's CPP and Visa's bylaw provision
acted to restrain competition.
California Litigation
On April 29, 2005, a complaint was filed in California state
court on behalf of a putative class of consumers under
California unfair competition law (Section 17200) and the
Cartwright Act.
The claims in this action seek to piggyback on the portion of
the DOJ antitrust litigation in which the U.S. District Court
for the Southern District of New York found that MasterCard's
CPP and Visa's bylaw constitute unlawful restraints of trade
under the federal antitrust laws.
MasterCard and Visa moved to dismiss the complaint and the court
granted the request as it pertains to the plaintiffs' Cartwright
Act claims, but it as it pertains to the plaintiffs' Section
17200 unfair competition claims.
MasterCard filed an answer to the complaint on June 19, 2006,
and the parties are proceeding with discovery.
MasterCard, Inc., reported no further development in the cases
in its July 31, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
MasterCard, Inc. -- http://www.mastercard.com/us/company/en/--
is a global payment solutions company that provides a variety of
services in support of the credit, debit and related payment
programs of nearly 25,000 financial institutions. Through the
company's three-tiered business model as franchisor, processor
and advisor, it develops and markets payment solutions, process
payment transactions, and provide consulting services to its
customers and merchants. The company manages a family of
payment card brands, including MasterCard, MasterCard
Electronic, Maestro and Cirrus, which it licenses to its
customers. MasterCard?s general purpose card brands include
MasterCard, Visa, American Express, JCB, Diners Club and
Discover.
MASTERCARD INT'L: Settles Discount Fees Suit; Still Faces Others
----------------------------------------------------------------
MasterCard International, Inc., managed to settle a lawsuit in
West Virgina over merchant discount fees, but continues to face
similar cases in New Mexico and California, according to
MasterCard, Inc.'s July 31, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
In addition, individual or multiple complaints have been brought
in 19 different states and the District of Columbia alleging
state unfair competition, consumer protection and common law
claims against MasterCard International (and Visa) on behalf of
putative classes of consumers.
The claims in these actions assert that merchants, faced with
excessive merchant discount fees, have passed these overcharges
to consumers in the form of higher prices on goods and services
sold.
MasterCard has been successful in dismissing cases in 17 of the
jurisdictions as courts have granted MasterCard's dismissal
motions for failure to state a claim or plaintiffs have
voluntarily dismissed their complaints.
However, there are outstanding cases in New Mexico, California
and West Virginia.
The parties are awaiting a decision on MasterCard's dismissal
motion in New Mexico.
The parties in the California cases briefed and argued the
narrow issue of whether, as a legal matter, the summary judgment
ruling in the U.S. merchant lawsuit could constitute a final
judgment on the merits to which collateral estoppel could
potentially apply.
On Oct. 31, 2007, the California state court ruled in
MasterCard's and Visa's favor and found that the summary
judgment ruling in another case would have no collateral
estoppel effect in this proceeding. Limited discovery is
proceeding in the California cases.
On Jan. 7, 2008, MasterCard executed a settlement agreement, in
which it agreed to resolve the West Virginia consumer action for
a payment of $3,400, which is within the reserve that MasterCard
had established for the case. The court granted preliminary
approval to the settlement on Jan. 14, 2008. The hearing on the
final approval of the settlement was held on Aug. 20, 2008.
MasterCard, Inc. -- http://www.mastercard.com/us/company/en/--
is a global payment solutions company that provides a variety of
services in support of the credit, debit and related payment
programs of nearly 25,000 financial institutions. Through the
company's three-tiered business model as franchisor, processor
and advisor, it develops and markets payment solutions, process
payment transactions, and provide consulting services to its
customers and merchants. The company manages a family of
payment card brands, including MasterCard, MasterCard
Electronic, Maestro and Cirrus, which it licenses to its
customers. MasterCard?s general purpose card brands include
MasterCard, Visa, American Express, JCB, Diners Club and
Discover.
MASTERCARD INT'L: Court Affirms Interchange Fees Suit Dismissal
---------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit affirmed the
dismissal of the class-action suit entitled "Kendall, et al. v.
Visa U.S.A. Inc., et al., Case No. 3:04-cv-04276-JSW," which
names MasterCard International, Inc., as a defendant, according
to MasterCard Inc.'s July 31, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 30, 2008.
On Oct. 8, 2004, a purported class action lawsuit was filed by a
group of merchants in the U.S. District Court for the Northern
District of California against MasterCard International, Visa
U.S.A. Inc., Visa International Corp. and several member banks
in California alleging, among other things, that MasterCard's
and Visa's interchange fees contravene the Sherman Act and the
Clayton Act.
The plaintiffs seek damages and an injunction against MasterCard
(and Visa) setting interchange and engaging in "joint marketing
activities," which plaintiffs allege include the purported
negotiation of merchant discount rates with certain merchants.
MasterCard moved to dismiss the claims in the complaint for
failure to state a claim and, in the alternative, also moved for
summary judgment with respect to certain of the claims.
On July 25, 2005, the court issued an order granting
MasterCard's motion to dismiss and dismissed the complaint with
prejudice, which decision the plaintiffs have appealed.
Oral argument on the appeal was held on June 11, 2007. In
March 2008, the U.S. Court of Appeals for the Ninth Circuit
affirmed the district court's dismissal of the complaint.
The suit is "Kendall, et al. v. Visa U.S.A. Inc., et al., Case
No. 3:04-cv-04276-JSW," filed in the U.S. District Court for the
Northern District of California, Judge Jeffrey S. White,
presiding.
Representing the plaintiffs are:
Richard Joseph Archer, Esq. (archerdic@aol.com)
Archer & Hansen
3110 Bohemian Highway
Occidental, CA 95465
Phone: 707-874-3438
Fax: 707-874-3438
- and -
James Archer Kopcke, Esq. (jameskopcke@yahoo.com)
Golden & Kopcke, LLP
22 Battery Street, Suite 610
San Francisco, CA 94111
Phone: 415-399-9995
Fax: 415-398-5890
Representing the company are:
Jay Neil Fastow, Esq. (jay.fastow@weil.com)
Weil Gotshal & Manges, LLP
767 Fifth Avenue
New York, NY 10153
Phone: 212-310-8644
Fax: 212-310-8007
Gianluca Morello, Esq.
(gianluca.morello@fowlerwhite.com)
Fowler White Boggs Banker, P.A.,
501 East Kennedy Boulevard, Suite 1700
Tampa, FL 33602
Phone: 813-769-7867
- and -
Wesley Railey Powell, Esq. (wpowell@hunton.com)
Hunton & Williams, LLP
200 Park Avenue
New York, NY 10166
Phone: 212-309-1013
Fax: 212-309-1100
MUELLER INDUSTRIES: Faces California Suit Over ACR Copper Tubes
---------------------------------------------------------------
Mueller Industries, Inc., is facing a consolidated class-action
suit in the U.S. District Court for the Western District of
Tennessee brought on behalf of indirect purchasers of copper
tubes used in, among other things, the manufacturing of air-
conditioning and refrigeration units (ACR copper tubes),
according to the company's July 22, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 28, 2008.
Two copper tube actions were commenced in June and August 2006
in the U.S. District Court for the Western District of Tennessee
and were consolidated to become the Indirect-Purchaser ACR Tube
Action.
In general, the copper tube actions allege anticompetitive
activities with respect to the sale of copper plumbing tubes
(copper plumbing tubes). These suits are seeking monetary and
other relief.
The company and Mueller Europe are named in the Indirect-
Purchaser ACR Tube Action. The company and Mueller Europe have
been served, but have not yet been required to respond to the
claims.
Mueller Industries, Inc. -- http://www.muellerindustries.com/--
is a manufacturer of copper, brass, plastic, aluminum, and other
products. The range of these products include copper tube and
fittings; brass and copper alloy rod, bar, and shapes; aluminum
and brass forgings; aluminum and copper impact extrusions;
plastic pipe, fittings and valves; refrigeration valves and
fittings; fabricated tubular products, and steel nipples. The
company also resells imported brass and plastic plumbing valves,
malleable iron fittings, faucets and plumbing specialty
products. Mueller's operations are located throughout the U.S.,
and in Canada, Mexico, Great Britain, and China. The company's
operates through two segments: the Plumbing and Refrigeration
segment and the Original Equipment Manufacturers (OEM) segment.
MUELLER INDUSTRIES: Faces California Lawsuit Over Copper Tubes
--------------------------------------------------------------
Mueller Industries, Inc., is facing a purported class-action
suit in the U.S. District Court for the Northern District of
California with respect to the sale of copper plumbing tubes and
copper tubes used in, among other things, the manufacturing of
air-conditioning and refrigeration units (ACR copper tubes),
according to the company's July 22, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 28, 2008.
The copper tube action, which the company calls as the Indirect-
Purchaser Copper Tube Action, was filed in July 2006, and is a
purported class action brought on behalf of indirect purchasers
of copper plumbing tubes and ACR copper tubes in the U.S. and
alleges anticompetitive activities with respect to the sale of
both copper plumbing tubes and ACR copper tubes. It seeks
monetary and other relief.
The company, Mueller Europe, WTC Holding Co., Deno Holding
company, and Deno Acquisition Eurl are named defrndants in the
Indirect-Purchaser Copper Tube Action.
All the defendants, except Deno Acquisition Eurl, have been
served, but have not yet been required to respond, in the
Indirect-Purchaser Copper Tube Action.
Mueller Industries, Inc. -- http://www.muellerindustries.com/--
is a manufacturer of copper, brass, plastic, aluminum, and other
products. The range of these products include copper tube and
fittings; brass and copper alloy rod, bar, and shapes; aluminum
and brass forgings; aluminum and copper impact extrusions;
plastic pipe, fittings and valves; refrigeration valves and
fittings; fabricated tubular products, and steel nipples. The
company also resells imported brass and plastic plumbing valves,
malleable iron fittings, faucets and plumbing specialty
products. Mueller's operations are located throughout the U.S.,
and in Canada, Mexico, Great Britain, and China. The company's
operates through two segments: the Plumbing and Refrigeration
segment and the Original Equipment Manufacturers (OEM) segment.
MUELLER INDUSTRIES: Court Stays Suit Over Copper Plumbing Tubes
---------------------------------------------------------------
Mueller Industries, Inc., is facing a purported class-action
suit in a California state court with respect to the sale of
copper plumbing tubes, according to the company's July 22, 2008
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 28, 2008.
Four copper tube actions were filed in October 2004 in a state
court in California and were consolidated to become the
Indirect-Purchaser Plumbing Tube Action.
The Indirect-Purchaser Plumbing Tube Action is a purported
class-action suit brought on behalf of indirect purchasers of
copper plumbing tubes in California and alleges anticompetitive
activities with respect to the sale of copper plumbing tubes.
It seeks monetary and other relief.
The company, WTC Holding Co. Inc., Deno Holding Co. Inc.,
Mueller Europe, and Deno Acquisition Eurl are named defendants
in the Indirect-Purchaser Plumbing Tube Action.
Deno Acquisition Eurl has not been served with the complaint in
the Indirect-Purchaser Plumbing Tube Action.
The claims against WTC Holding Co. and Deno Holding Co. have
been dismissed without prejudice in the Indirect-Purchaser
Plumbing Tube Action.
Mueller Europe has not yet been required to respond in the case.
The company's demurrer to the complaint has been filed in the
Indirect-Purchaser Plumbing Tube Action.
The court overseeing the Indirect-Purchaser Plumbing Tube Action
has stayed that action conditioned upon the parties' submitting
periodic status reports on the status of the other copper tube
cases.
Mueller Industries, Inc. -- http://www.muellerindustries.com/--
is a manufacturer of copper, brass, plastic, aluminum, and other
products. The range of these products include copper tube and
fittings; brass and copper alloy rod, bar, and shapes; aluminum
and brass forgings; aluminum and copper impact extrusions;
plastic pipe, fittings and valves; refrigeration valves and
fittings; fabricated tubular products, and steel nipples. The
company also resells imported brass and plastic plumbing valves,
malleable iron fittings, faucets and plumbing specialty
products. Mueller's operations are located throughout the U.S.,
and in Canada, Mexico, Great Britain, and China. The company's
operates through two segments: the Plumbing and Refrigeration
segment and the Original Equipment Manufacturers (OEM) segment.
OCWEN LOAN: Faces Ill. Suit Over Wrongfully Charged Secret Fees
---------------------------------------------------------------
Ocwen Loan Servicing is facing a class-action complaint before
the U.S. District Court in Chicago over allegations it
wrongfully charged secret fees in bankruptcy proceedings that
were not disclosed to plaintiffs, the judge, or trustees,
CourtHouse News Service reports.
Ocwen Financial Corporation, through its Ocwen Loan Servicing
division, is one of the most respected companies in the loan
processing and servicing industry.
In addition to Ocwen's loan servicing business, the company also
has two other areas of business, Ocwen Recovery Group and
Residential Origination Services. This diverse portfolio of
products, along with a strong corporate governance policy,
allows Ocwen to maintain a solid financial performance and a
respected status within the industry.
PACIFIC GAS: Faces Calif. Suit Over Unpaid Overtime Compensation
----------------------------------------------------------------
Pacific Gas & Electric Co. is facing a class-action complaint
before the U.S. District Court for the Eastern District of
California over allegations that it stiffs employees for
overtime, CourtHouse News Service reports.
The complaint is brought as two different types of actions. The
first type is a class action suit brought pursuant to the Rule
23 for unpaid overtime, various other labor violations and
illegal business practices on behalf of California employees of
defendants. The second type is a collective action brought
pursuant to Section 16(b) of the Fair Labor Standards act
(FLSA), 29 USC Section 216(b). The collective action is brought
for federal overtime violations on behalf of all employees of
defendants who worked anywhere within the United States.
The plaintiff brings the suit pursuant to Rules 23(a), (b)(1)
and (b)(3), on behalf of all meter reads who are currently
employed or have been employed by defendants within the State of
California who, at any time four years prior to the filing of
this lawsuit:
(1) worked more than eight hours in a day or 40 hours in a
week without being compensated at the proper premium
rate;
(2) worked more than five hours without a proper meal
break;
(3) received a pay check stub that did not accurately
reflect all the information required by Labor Code
Section 226; or
(4) were willfully not paid all wages upon leaving
employment with PG&E.
The plaintiff wants the court to rule on:
(a) whether PG&E failed and continues to fail to pay a
proper overtime rate by requiring meter readers to
report less work time than is reflected in the ITRON
meter reading devices;
(b) whether the "Hiring Hall Line Benefit Premium" should
be included in the regular rate of pay for overtime
purposes;
(c) whether PG&E failed and continues to fail to allow and
properly track meal breaks taken by employees;
(d) whether the PG&E policy of not allowing employees to
leave the route are or eat lunch with fellow employees
constitutes an "on-duty" meal break;
(e) whether PG&E's policy of requiring meter readers to
complete a route in eight hours that could not be
completed if a 30 minute meal break is taken constitute
an unlawful denial of the required meal period;
(f) whether PG&E's pay check stubs comply with Labor Code
Section 226 and whether employees would suffer injury
in that the stubs are confusing and require
significant work by the employee to determine how many
hours they actually worked;
(g) whether PG&E willfully refused and continues to refuse
to pay employees whose employment with PG&E has been
terminated all of their wages upon termination; and
(h) whether PG&E's requirement that uniforms be maintained
by the employees violates Cal. Lab. Code Section 2802.
The plaintiff asks the court for:
-- certification of the action as a class action on behalf
of the proposed class;
-- designation of this action as a collective action on
behalf of the collective action plaintiffs and prompt
issuance of a notice pursuant to 29 USC Section 216(b)
to all similarly situated members of the FLSA Opt-In
class, and a tolling of the statue of limitations on the
claims of all members of the FLSA Opt-In class from the
date the original complaint was filed until the class
members are provided with reasonable notice of the
pendency of this action and a fair opportunity to
exercise their right to opt in as plaintiffs;
-- damages in the amount of unpaid overtime not paid to
each member of the class for at least four years prior
to the filing of this action;
-- liquidated damages under the FLSA;
-- damages in the amount of each class members hourly
wage for each missed meal or rest period for at least
four years prior to the filing of this action;
-- damages pursuant to Cal. Lab. Code Section 226 for
each pay period in which a proper pay stub was not
provided;
-- damages and penalties pursuant to Cal. Lab. Code
Section 203 for all class members no longer employed by
defendant;
-- indemnification for all expenses required to
maintain the employees' uniforms;
-- restitution and disgorgement for unfair business
practices pursuant to Cal. B&P Code Section 17200;
-- costs of suit;
-- attorney fees;
-- interest on any applicable amounts; and
-- other such and further relief as the court may deem
proper and just.
The suit is "Manuel Murillo, et al. v. Pacific Gas & Electric
Company, et al.," filed in the U.S. District Court for the
Eastern District of California.
Representing the plaintiff are:
Michael L. Tracy, Esq.
Megan Ross Hutchins, Esq.
Law Offices of Michael L. Tracy
2030 Main Street, Suite 1300
Irvine, CA 92614
Phone: 949-260-9171
Fax: 866-365-3051
ROSSIGNOL SKI: Recalls Snowboard Bindings Due to Strap Failure
--------------------------------------------------------------
Rossignol Ski Co., of Park City, Utah, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
3,500 pairs of 2007 Rossignol HC Snowboard Bindings.
The company said the t-nuts that attached the buckles to the
straps on the snowboard's bindings can detach, posing a fall
hazard to consumers. No injuries have been reported.
This recall involves 2007 model year Rossignol snowboard
bindings. Models included in the recall are: HC 750, HC 1000,
HC 2000, HC 3000, HC Mini, HC Amber, HC Diva, HC Harmony, HC
Sonar, HC Zena and Jones Brown.
These recalled snowboard bindings were manufactured in China and
were being sold at snowboard, ski and sporting good stores
nationwide from August 2007 through May 2008 for between $100
and $150.
A picture of the recalled snowboard bindings is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08363.jpg
Consumers are advised to immediately stop using the recalled
bindings and take them to a Rossignol snowboard retailer for
inspection and free replacement t-nuts. Consumers can also
contact Rossignol to have a repair kit mailed to them. T-nuts
marked in red-ink or with an embossed dot have been repaired.
For additional information, contact Rossignol at 888-243-6735
between 9:00 a.m. and 5:00 p.m. MT Monday through Friday, or
visit the firm's Web site at http://www.rossignol.com/
Consumers can also send an e-mail to
snowboardconsumer@mountaincenter.com
SANTA CLARA: Performs Excessive Diagnostic Procedures, Suit Says
----------------------------------------------------------------
A class-action complaint filed in the Superior Court of the
State of California, in and for the County of Santa Clara
alleges that the county County performs unnecessary and
excessive diagnostic procedures at its hospital, the Santa Clara
Valley Medical Center, and charges unconscionable fees for them,
CourtHouse News Service reports.
Named plaintiff Gordon Marsh Sr. brings this action on behalf of
all persons whom defendant has demanded and brought legal
proceedings seeking payment of unconscionable fees which are in
excess of those amounts it receives and accepts in full payment
for medical services rendered in its emergency room to patients
who have available medical health insurance.
The plaintiff demands:
-- that this court certify the members of the class as
those past, present or future patients receiving medical
care at defendant's emergency room for whom defendant
seeks recovery of fees for emergency room medical care
in excess of amounts received and accepted for such care
rendered to patients who have available medical health
insurance;
-- for a declaration of rights and obligations of the
parties;
-- that defendant be permanently enjoined from seeking
recovery of fees for emergency room medical care in
excess of amounts received and accepted for such care
rendered to patients who have available medical health
insurance;
-- for reasonable attorney's fees;
-- for costs of suit; and
-- for such other and further relief as the court deems
just and proper.
The suit is "Gordon Marsh Sr., et al. v. County of Santa Clara,
Case No. 108CV120484," filed in the Superior Court of the State
of California, in and for the County of Santa Clara.
Representing the plaintiff is:
John McBride, Esq.
Wylie, McBride, Platten & Renner
2125 Canoas Garden Avenue, Suite 120
San Jose, CA 95125
Phone: 408-979-2920
Fax: 408-979-2934
STAR GAS: No Hearing Yet for Appeals in Securities Fraud Lawsuit
----------------------------------------------------------------
A hearing on oral arguments in connection with the plaintiffs'
appeals regarding certain rulings previously entered in a
consolidated securities fraud class action lawsuit against Star
Gas Partners, L.P., has not yet been scheduled.
On Oct. 21, 2004, a purported class action complaint on behalf
of a purported class of unitholders was filed against Star Gas
and its various subsidiaries and officers and directors in the
U.S. District Court of the District of Connecticut. The suit is
"Carter v. Star Gas Partners, L.P., et al., No. 3:04-cv-01766-
IBA."
Subsequently, 16 additional class action complaints, alleging
the same or substantially similar claims, were filed in the same
district court. The class actions were consolidated into one
consolidated amended complaint.
On Sept. 23, 2005, the defendants filed motions to dismiss the
consolidated amended complaint for failure to state a claim
under the federal securities laws and failure to satisfy the
applicable pleading requirements of the Private Securities
Litigation Reform Act, and the Federal Rules of Civil Procedure.
Thus, in July 2006, the Court sided with the defendants and
dismissed the consolidated amended complaint in its entirety.
On Sept. 7, 2006, the plaintiffs filed a motion for
reconsideration and requested to have the court's judgment of
dismissal altered and reopened. They also sought leave to file
a second consolidated amended complaint.
On Oct. 20, 2006, the defendants filed their memorandum of law
in opposition to the plaintiffs' Post-Judgment Motion.
On March 22, 2007, the Court issued an order denying the
plaintiffs' Post-Judgment Motion.
However, on April 3, 2007, the defendants filed a motion for
Mandatory Rule 11 Inquiry and fee shifting which seeks recovery
of their legal fees pursuant to the PSLRA. This motion was
opposed by the plaintiffs.
On April 20, 2007, the class plaintiffs filed a notice of appeal
to the U.S. Court of Appeals for the Second Court in connection
with the district court's decisions dismissing the amended
complaint and denying the plaintiffs' Post-Judgment Motion.
Subsequent to the filing of the notice of appeal, the class
plaintiffs stipulated to the dismissal of the appeal as against:
-- Hanseatic Americas, Inc.,
-- Paul Biddelman,
-- A.G. Edwards & Sons, Inc.,
-- RBC Dain Rauscher Inc.,
-- UBS Investment Bank, and
-- Audrey Sevin.
On July 6, 2007, the class plaintiffs filed their brief on
appeal. The Star Gas Defendants' opposition brief was due on
Aug. 21, 2007, and the class plaintiffs' reply brief was due on
Sept. 11, 2007. Oral argument on the appeal has not yet been
scheduled.
In the interim, discovery in the matter remains stayed pursuant
to the mandatory stay provisions of the PSLRA.
The company reported no further development in the matter in its
Aug. 6, 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 Star Gas Securities Litigation, Case No.
3:04-cv-01766-JBA," filed in the U.S. District Court for the
District of Connecticut, Judge Janet Bond Arterton, presiding.
Representing the plaintiffs are:
Jonathan F. Andres, Esq. (andres@stlouislaw.com)
Green Schaaf & Jacobson, P.C.
7733 Forsyth, Suite 700
St. Louis, MO 63105
Phone: 314-862-6800
Fax: 314-862-1606
- and -
David L. Belt, Esq. (dbelt@jacobslaw.com)
Jacobs, Grudberg, Belt, Dow & Katz, P.C.
350 Orange St., P.O. Box 606
New Haven, CT 06503-0606
Phone: 203-772-3100
Fax: 203-772-1691
Representing the defendants are:
Terence J. Gallagher, III, Esq. (tjgallagher@dbh.com)
Day, Berry & Howard
One Canterbury Green
Stamford, CT 06901-2047
Phone: 203-977-7300
Fax: 203-977-7301
- and -
Elizabeth K. Andrews, Esq. (eandrews@tylercooper.com)
Tyler, Cooper & Alcorn
205 Church St., P.O. Box 1936
New Haven, CT 06509-1910
Phone: 203-784-8200
Fax: 203-777-1181
THANE INTERNATIONAL: Steam Cleaners Recalled Due to Burn Hazard
---------------------------------------------------------------
Thane International Inc., of La Quinta, Calif., in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 134,000 H20 Portable Hand Held Steam Cleaners.
The company said the steam can escape from the handle and
trigger of the steam cleaner, posing a burn hazard to consumers.
Thane has received 27 reports of burn injuries to consumers'
hands and fingers.
The recalled portable hand held steam cleaners are white and
dark gray. "H20" and "M" are printed on the steam cleaners.
Model number YQ3888 and the "produce code" are printed on a
label on the underside of the units. This recall only includes
steam cleaners with "produce codes" from 071025 through 080324.
These recalled steam cleaners were manufactured in China and
were being sold by television infomercials nationwide and at
http://www.thane.com/and shipped to consumers from December
2007 through May 2008. The steam cleaners were offered as a
bonus item with the payment of shipping and handling of $14.95
with the purchase of an H20 Mop.
A picture of the recalled steam cleaners is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08601.jpg
Consumers are advised to immediately stop using the recalled
steam cleaners and contact Thane to receive a $30 coupon for the
purchase of another Thane product or to receive a free
replacement steam cleaner. Thane has directly contacted
consumers who received the steam cleaners.
For additional information, contact Thane at 800-388-4490
anytime, or visit the firm's Web site at http://www.thane.com/
VISTAPRINT LIMITED: Two Purported Federal Class Lawsuits Filed
--------------------------------------------------------------
VistaPrint Limited disclosed that two nearly identical purported
class action lawsuits have been brought against VistaPrint USA,
Inc., VistaPrint Corp., and two third party merchants in the
United States District Court for the Southern District of Texas
and the United States District Court for the District of New
Jersey.
The plaintiffs allege various violations of the federal
Electronic Funds Transfer Act and the federal Electronic
Communications and Privacy Act, as well as asserting various
state statutory and common law claims, relating to certain
membership discount programs offered by the third party
merchants on VistaPrint's U.S. Web site.
The plaintiffs seek an unspecified amount of damages, including
compensatory and punitive damages, as well as injunctive relief.
VistaPrint believes it has meritorious defenses to these
lawsuits and intends to defend these matters vigorously.
Based in Hamilton, Bermuda, VistaPrint Ltd. supplies graphic
design services and customized printed products to small
businesses and consumers. The Company also offers Internet-
based graphic design software, localized Websites, order
receiving, and processing technologies and advanced computer
integrated printing facilities.
WASHINGTON: State to Pay Mattawa Day-Care Workers $2 Million
------------------------------------------------------------
Nearly 7,000 Washington child-care providers, including 30 from
Mattawa, who filed a class-action lawsuit against the state of
Washington have agreed to a settlement that will require the
state to reform its investigative practices, Michele Mihalovich
writes for The Wenatchee World Online.
According to the report, the settlement also calls for the state
to pay more than $2 million to settle individual civil rights
claims of the 30 Mattawa child-care providers who participated
in the case.
One of the attorneys representing the providers, D. Ty Duhamel,
Esq., of the Columbia Legal Services in Wenatchee, told
Wenatchee World that $1.1 million of the settlement will go
toward attorney fees for Columbia Legal Services and MacDonald
Hoague & Bayless Law Firm in Seattle. The remainder of the
money will be divided between the 30 Mattawa child-care
providers.
Mr. Duhamel further said that the class action and money damages
portion of the case is now settled with the state, but a
discrimination case against the town of Mattawa will go forward.
Mr. Duhamel recounts that the child-care providers have accused
local officials of conspiring with the state to discriminate
against Hispanic workers. He said he is pushing for a trial
date as soon as the court's schedule will allow.
Michael Lynch, Esq., senior counsel for the Office of the
Attorney General in Olympia, worked closely with the plaintiff's
attorneys to iron out a settlement.
The report recounts that the Washington lawsuit arose out of a
2002 mass raid on more than 50 Latina providers in Mattawa by
the Department of Social and Health Services. The providers
claimed that state investigators, who are not police officers,
violated their constitutional rights by telling them they had
court orders to enter their homes and immediately seize years of
original business records and personal items.
Mr. Duhamel said that investigators did not have a judicially
reviewed warrant. "They had an administrative subpoena signed
by their supervisor in Olympia," he said. "And the subpoenas
were written in English. The women were limited-English
speakers and definitely couldn't read a subpoena written in
English."
The lawsuit further alleged that the subpoenas were never
translated for the women and investigators failed to follow
agency policy that allows businesses 14 days to produce copies
of records.
Under the terms of the settlement, approved Aug. 12, 2008, by
Federal District Court Judge Edward F. Shea in Richland, the
state agrees to give providers prior notice of an investigation
and inform them in writing that they have a right to refuse
entry. The state also rewrote its rules to limit inspections to
the areas of the home where child care is provided and to
conduct inspections only during business hours.
The DSHS no longer oversees child-care licensing as the job has
been reassigned to the Department of Early Learning, the report
relates.
Earlier this year, the U.S. Department of Justice reached an
agreement with Mattawa, requiring the town to establish a list
of interpreters and guidelines for their use as well as ensuring
that vital municipal documents are translated into Spanish,
among other things.
This agreement resolved two complaints accusing the town and
police of failing to provide access to interpreters for Spanish-
speaking residents who were victims of domestic violence, the
report explains.
WASHINGTON GROUP: Still Faces Louisiana Suits Over Levee Failure
----------------------------------------------------------------
Washington Group International, Inc., continues to face several
purported class action suits in Louisiana that are related to
the New Orleans levee failure during Hurricane Katrina.
From July 1999 through May 2005, Washington Group, a wholly
owned subsidiary acquired by URS Corp. on Nov. 15, 2007,
performed demolition, site preparation, and environmental
remediation services for the U.S. Army Corps of Engineers on the
east bank of the Inner Harbor Navigation Canal in New Orleans,
Louisiana (Industrial Canal).
On Aug. 29, 2005, Hurricane Katrina devastated New Orleans. The
storm surge created by the hurricane overtopped the Industrial
Canal levee and floodwall, flooding the Lower Ninth Ward and
other parts of the city.
Since September 2005, over 59 personal injury, property damage
and class action lawsuits have been filed in Louisiana State
and federal court, naming Washington Group as a defendant.
Other defendants include the U.S. Army Corps of Engineers, the
Board for the Orleans Parish Levee District, and its insurer,
St. Paul Fire and Marine Insurance Co.
Over 1,450 hurricane-related cases, including Washington Group
cases, have been consolidated in the U.S. District Court for the
Eastern District of Louisiana.
The plaintiffs claim that the defendants were negligent in their
design, construction and maintenance of the New Orleans levees.
The plaintiffs are all residents and property owners who claim
to have incurred damages arising out of the breach and failure
of the hurricane protection levees and floodwalls in the wake of
Hurricane Katrina.
The plaintiffs assert that the work performed by the company
adjacent to the Industrial Canal damaged the levee and floodwall
and caused and contributed to breaches and flooding.
The plaintiffs allege damages of $200 billion and demand
attorneys' fees and costs.
USR Corp. reported no development in the matter in its Aug. 6,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 6, 2008.
Washington Group International, Inc. -- http://www.wgint.com/--
is an international provider of a range of design, engineering,
construction, construction management, facilities and operations
management, environmental remediation and mining services.
WYETH: Successfully Defends Itself in PREMPRO & PREMARIN Suits
--------------------------------------------------------------
Wyeth successfully defended itself against several purported
class-action suits over PREMPRO or PREMARIN, two of the
company's hormone therapy products, but continues to face one
similar lawsuit in West Virginia.
The company has been involved in various other legal proceedings
involving allegations of injuries caused by the company's
pharmaceutical products. These cases include individual
lawsuits and putative class actions in state and federal courts
in the U.S. and foreign jurisdictions involving allegations of
injuries caused by PREMPRO or PREMARIN.
The putative class actions from users of PREMPRO or PREMARIN are
seeking medical monitoring and purchase price refunds, as well
as other damages.
While most of the putative class action suits have been
dismissed or withdrawn, a motion for class certification was
recently denied without prejudice in a California statewide
refund class action, and a hearing in a similar case in West
Virginia is set for later this year.
The company reported no further development in the matters in
its Aug. 4, 2008 Form 10-Q Fifing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
Wyeth ? http://www.wyeth.com/-- is engaged in the discovery,
development, manufacture, distribution and sale of a line of
products in three primary businesses: Wyeth Pharmaceuticals,
Wyeth Consumer Healthcare, and Fort Dodge Animal Health.
Pharmaceuticals includes branded human ethical pharmaceuticals,
biotechnology products, vaccines and nutrition products.
Principal Pharmaceuticals products include neuroscience
therapies, cardiovascular products, nutrition products,
gastroenterology drugs, anti-infectives, vaccines, oncology
therapies, musculoskeletal therapies, hemophilia treatments,
immunological products and women's healthcare products.
Consumer Healthcare products include analgesics,
cough/cold/allergy remedies, nutritional supplements, and
hemorrhoidal, asthma and personal care items sold over-the-
counter. Principal Animal Health products include vaccines,
pharmaceuticals, parasite control and growth implants.
New Securities Fraud Cases
PERINI CORP: Federman & Sherwood Files Mass. Securities Lawsuit
---------------------------------------------------------------
On August 20, 2008, a class action lawsuit was filed in the
United States District Court for the District of Massachusetts
against Perini Corp.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is from November 2, 2006, through January 17,
2008.
The plaintiff seeks to recover damages on behalf of the class.
Interested parties may move the court no later than October 20,
2008, for lead plaintiff appointment.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com/
*********
A list of Meetings, Conferences and Seminars appears in each
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.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Freya Natasha F.
Dy, and Peter A. Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without
prior written permission of the publishers.
Information contained herein is obtained from sources believed
to be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *