/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090420.mbx C L A S S A C T I O N R E P O R T E R Monday, April 20, 2009, Vol. 11, No. 76 Headlines ACCESS BUSINESS: Faces Suit in Ga. Alleging WARN Act Violations AFFIRMATIVE INSURANCE: "Marsh" Settlement Pending Final Approval BIMINI CAPITAL: Bid to Dismiss Securities Suit Pending in Fla. CCO HOLDINGS: Settlement of "Sjoblom" Suit Approved on Jan. 26 CHINA SHENGHUO: Faces Amended Securities Fraud Suit in New York EPL INTERMEDIATE: Amezcua Lawsuit Remains Stayed Pending Appeal EPL INTERMEDIATE: Certification Bid in Santana Suit Due Aug. 15 EPL INTERMEDIATE: Anticipating Certification Bid for Labor Suit EPL INTERMEDIATE: Labor Violations Suit in Calif. in Discovery HEALTH BENEFITS: Bid to Dismiss Former Employee's Suit Pending HEALTH BENEFITS: Settlement of FLSA Suit Pending Court Approval INFOSONICS CORP: Securities Settlement Set for April 23 Hearing IPAYMENT INC: Bid for Review of "Bruns" Suit Dismissal Due May 4 IPAYMENT INC: June 4 Fairness Hearing Set for "Aguilard" Deal KV PHARMACEUTICAL: Law Firms Named as Lead Counsel in Mo. Suit MCDONALD'S CORP: Calif. Franchises Face Labor Violations Lawsuit MCKESSON CORP: July 23 Hearing Set For "N.E. Carpenters I" Deal MOTOROLA INC: July 6 Hearing Set For Bluetooth Headset Agreement NATIONWIDE INSURANCE: Faces Consumer Fraud Litigation in Wash. NATIONWIDE LIFE: Reaches $6M Settlement in "Michael Carr" Case PROVIDENCE SELECT: Securities Suits v. MF Global Still Pending QUINNIPIAC UNIVERSITY: Faces Title IX Lawsuit in Connecticut SKILLED HEALTHCARE: Settles in California Discrimination Case TELEGRAM & GAZETTE: Seeks Dismissal of Newspaper Carriers' Suit VENEZUELA: Freedom Watch Files Fla. Suit v. Government Officials VETERANS AFFAIRS: July 28 Hearing Set for $20M Suit Settlement WELLS REAL: Certification Bid in Securities Suit Pending in Ga. New Securities Fraud Cases HEARTLAND PAYMENT: Cohen Milstein Files Securities Fraud Lawsuit ********* ACCESS BUSINESS: Faces Suit in Ga. Alleging WARN Act Violations --------------------------------------------------------------- Access Business Services Inc. is facing a purported class-action lawsuit in the U.S. District Court for the Northern District of Georgia, alleging that the company did not pay wages as required under the federal Worker Adjustment and Retraining Notification (WARN) Act, The Atlanta Business Chronicle reports. The suit was filed by the law firm of Delong, Caldwell & Bridges LLC for about 200 employees who were laid off on March 9, 2009. It accuses Access Business Services owner Tyler Long with breach of contract and failure to pay wages, according to The Atlanta Business Chronicle report. In a news release, Kevin Fitzpatrick, Esq., an attorney with Delong, Caldwell & Bridges said, "The employees of Access Business Services essentially had the rug pulled out from under them and are now owed back wages, holiday and vacation pay. The 200 employees affected by this layoff are also entitled to health insurance and other benefits under ERISA law." The lawsuit asks for three weeks of back pay for the workers, The Atlanta Business Chronicle reported. Access Business Services also operates under the names of U.S. Work Alliance and owns the Testing Authority, Exam Services and Access Payment services, reports The Atlanta Business Chronicle. AFFIRMATIVE INSURANCE: "Marsh" Settlement Pending Final Approval ---------------------------------------------------------------- Affirmative Insurance Holdings, Inc.'s settlement with Nickey Marsh, which will resolve the class action against the company's subsidiary, USAgencies L.L.C., is pending final court approval. In October 2002, the named plaintiff, Mr. Marsh filed suit in the Fourth Judicial District Court of Louisiana against USAgencies alleging that certain adjustments to the actual cash value of his total loss automobile claim were improper. In October 2003, the action was amended to a class action and the court certified the class in August 2006. On March 3, 2009, the company executed a settlement agreement with the plaintiff which, subject to class notice and final court approval, will resolve this proceeding. Pursuant to the terms of the Acquisition Agreement between the company and USAgencies, the selling parties are bound to indemnify Affirmative Insurance Holdings, Inc. from any and all losses attendant to claims arising out of the Marsh litigation out of a sum placed into escrow specifically for such purpose. Addison, Tex.-based Affirmative Insurance Holdings, Inc. -- http://www.affirmativeholdings.com/-- is a distributor and producer of non-standard personal automobile insurance policies and related products and services for individual consumers. The company offers insurance directly to individual consumers through retail stores in 10 states (Louisiana, Texas, Illinois, Alabama, Florida, Missouri, Indiana, South Carolina, Kansas and Wisconsin), including its franchised stores in Florida and distributing its own insurance policies through 8,000 independent agents or brokers in 10 states (Louisiana, Texas, Illinois, California, Michigan, Florida, Missouri, Indiana, South Carolina and New Mexico). BIMINI CAPITAL: Bid to Dismiss Securities Suit Pending in Fla. -------------------------------------------------------------- Bimini Capital Management, Inc.'s motion to dismiss the consolidated class-action complaint is pending before the U.S. District Court for the Southern District of Florida. On Sept. 17, 2007, a complaint was filed in the U.S. District Court for the Southern District of Florida by William Kornfeld against the company, certain of its current and former officers and directors, Flagstone Securities, LLC and BB&T Capital Markets alleging various violations of the federal securities laws and seeking class action certification. On Oct. 9, 2007, a complaint was filed in the U.S. District Court for the Southern District of Florida by Richard and Linda Coy against the company, certain of its current and former officers and directors, Flagstone Securities, LLC and BB&T Capital Markets alleging various violations of the federal securities laws and seeking class action certification. The cases have been consolidated, class certification has been granted, and lead plaintiffs' counsel has been appointed. The company filed a motion to dismiss the case on Dec. 22, 2008, and plaintiffs have filed a response in opposition. The company's motion to dismiss is currently pending before the court, according to its March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Bimini Capital Management, Inc. -- http://www.biminicapital.com -- formerly Opteum Inc., is primarily in the business of investing in mortgage-backed securities. Bimini Capital is operating as a real estate investment trust (REIT). CCO HOLDINGS: Settlement of "Sjoblom" Suit Approved on Jan. 26 ---------------------------------------------------------------- The settlement of a class-action complaint entitled "Sjoblom v. Charter Communications, LLC and Charter Communications, Inc." received final approval from the court on Jan. 26, 2009, according to CCO Holdings, LLC's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. On Aug. 15, 2007, a class-action complaint was filed against Charter in the U.S. District Court for the Western District of Wisconsin, on behalf of both nationwide and state of Wisconsin classes of certain categories of current and former Charter technicians, alleging that Charter violated the Fair Labor Standards Act and Wisconsin wage and hour laws by failing to pay technicians for certain hours claimed to have been worked. According to the company's latest Form 10-K filing, while it believes it has substantial factual and legal defenses to the claims at issue, in order to avoid the cost and distraction of continuing to litigate the case, the company reached a settlement with the plaintiffs, which received final approval from the court on Jan. 26, 2009. CCO Holdings, LLC -- http://www.charter.com/-- through its operating subsidiary, Charter Communications Operating, LLC, operates broadband communications businesses in the United States, with approximately 5.60 million customers at Dec. 31, 2007. CCO Holdings Capital Corp. is wholly owned subsidiary of CCO Holdings, and was established and exist solely as co-issuers of the public debt issued with their parent companies. Through its hybrid fiber and coaxial cable network, the Company offers traditional cable video programming (analog and digital, which it refers to as video service), high-speed Internet access, and telephone service, as well as, broadband services (such as Charter OnDemand video service (OnDemand), high definition television service, and digital video recorder (DVR) service). CHINA SHENGHUO: Faces Amended Securities Fraud Suit in New York --------------------------------------------------------------- China Shenghuo Pharmaceutical Holdings, Inc. has until April 12, 2009, to respond to the amended consolidated complaint in a purported securities fraud class-action lawsuit in New York. Putative class-action lawsuits have been asserted against the Company and certain of its officers and directors in the U.S. District Court for the Southern District of New York. Only one complaint, "Beni Varghese v. China Shenghuo Pharmaceutical Holdings, Inc., Gui Hua Lan, Qiong Hua Gao, Gene Michael Bennett, And Yunhong Guan, Index No. 08 CIV. 7422," has been served on the company thus far. The complaints allege, among other things, that certain of the company's SEC filings and other public statements contained false and misleading statements which resulted in damages to the plaintiffs and the members of the purported class when they purchased the company's securities. On the basis of those allegations, plaintiffs in each of the actions seek an unspecified amount of damages under Sections 10(b) and 20(a) of the Exchange Act. According to the company's Nov. 19 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008, on Oct. 20, 2008, the company and counsel to the plaintiff in the Varghese Action filed a stipulation with the Court in which the parties agreed that the plaintiff may file a consolidated, amended complaint within 60 days after the entry of an order appointing and approving lead counsel, and that the company's time to answer that complaint is extended until 60 days after the filing of the consolidated complaint. On Feb. 12, 2009, an amended complaint was served on the company by new lead counsel for the class, consolidating the putative class actions and bearing the caption, "Beni Varghese, Individually and on Behalf of All Other Similarly Situated v. China Shenghuo Pharmaceutical Holdings, Inc., et al., Index No. 1:08 CIV. 7422." The defendants include the company, its controlling shareholders, Lan's International Medicine Investment Co., Limited, its chief executive officer, Gui Hua Lan, its former chief financial officer, Qiong Hua Gao, and its independent registered public accounting firm, Hansen, Barnett & Maxwell, P.C. By stipulation, the defendants currently have until April 12, 2009 to respond to the amended consolidated complaint, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. China Shenghuo Pharmaceutical Holdings, Inc. is primarily engaged in the research, development, production and marketing of pharmaceutical, nutritional supplement and cosmetic products. The company's core offering, Xuesaitong Soft Capsules, is a pharmaceutical product developed to treat the symptoms of cardiovascular and cerebrovascular disease. This drug is designed to invigorate the circulation of blood and improve microcirculation. Nearly all of Shenghuo's products are derived from the medicinal herb Panax notoginseng, also known as Sanqi, Sanchi or Tienchi. Shenghuo's research and development efforts focus on pharmaceutical products and over-the-counter (OTC) products that are based on traditional Chinese medicines. EPL INTERMEDIATE: Amezcua Lawsuit Remains Stayed Pending Appeal --------------------------------------------------------------- Salvador Amezcua's purported class-action lawsuit against EPL Intermediate, Inc. is subject to an automatic stay while the company's appeal to the denial of its motion to compel arbitration is pending. On Oct. 18, 2005, Salvador Amezcua, on behalf of himself and all others similarly situated, filed a purported class-action complaint against EPL in the Superior Court of the State of California, County of Los Angeles. Carlos Olvera replaced Mr. Amezcua as the named class representative on Aug. 16, 2006. This action alleges certain violations of California labor laws and the California Business and Professions Code, based on, among other things, failure to pay overtime compensation, failure to provide meal periods, unlawful deductions from earnings and unfair competition. Plaintiffs' requested remedies include compensatory and punitive damages, injunctive relief, disgorgement of profits and reasonable attorneys' fees and costs. The court denied EPL's motion to compel arbitration, and the company has appealed that decision. This matter is subject to an automatic stay while it is pending before the Court of Appeal. This case is presently in a preliminary phase, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Costa Mesa, Calif.-based EPL Intermediate, Inc., through its wholly owned subsidiary El Pollo Loco, Inc., operates a restaurant system specializing in flame-grilled chicken. As of Dec. 31, 2008, its restaurant system consisted of 165 company- operated and 248 franchised restaurants located primarily in California, with additional restaurants in Arizona, Colorado, Connecticut, Georgia, Illinois, Massachusetts, Nevada, Oregon, Texas, Utah, Virginia and Washington. In 2008, it opened 9 new company-operated restaurants and 21 franchised restaurants. EPL INTERMEDIATE: Certification Bid in Santana Suit Due Aug. 15 --------------------------------------------------------------- The motion for class certification in a purported class-action suit filed on behalf of all assistant shift managers against EPL Holdings, Inc. is due on Aug. 15, 2009. In April 2007, Dora Santana filed a purported class action in state court in Los Angeles County on behalf of all "Assistant Shift Managers." Plaintiff alleges wage and hour violations including working off the clock, failure to pay overtime, and meal break violations on behalf of the purported class, currently defined as all Assistant Managers from April 2003 to present. Written discovery is completed on the limited issue of class certification. The Court has ordered that plaintiffs file their motion for class certification no later than Aug. 15, 2009. This case is in its preliminary phase, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Costa Mesa, Calif.-based EPL Intermediate, Inc., through its wholly owned subsidiary El Pollo Loco, Inc., operates a restaurant system specializing in flame-grilled chicken. As of Dec. 31, 2008, its restaurant system consisted of 165 company- operated and 248 franchised restaurants located primarily in California, with additional restaurants in Arizona, Colorado, Connecticut, Georgia, Illinois, Massachusetts, Nevada, Oregon, Texas, Utah, Virginia and Washington. In 2008, it opened 9 new company-operated restaurants and 21 franchised restaurants. EPL INTERMEDIATE: Anticipating Certification Bid for Labor Suit ---------------------------------------------------------------- EPL Intermediate, Inc. expects a motion for class certification for a purported class-action lawsuit against the company in the Superior Court of the State of California, County of Los Angeles, to be filed in April 2009. On April 16, 2004, former managers Haroldo Elias, Marco Ramirez and Javier Rivera filed the purported class action suit against EPL on behalf of all putative class members composed of former and current general managers and restaurant managers from April 2000 to present. The suit alleges certain violations of California labor laws, including alleged improper classification of general managers and restaurant managers as exempt employees. The requested remedies include compensatory damages for unpaid wages, interest, certain statutory penalties, disgorgement of alleged profits, punitive damages and attorneys' fees and costs as well as certain injunctive relief. The court has lifted the stay on the class action pursuant to a recent California Supreme Court decision. The matter is now proceeding in Superior Court, and the parties are conducting limited discovery on the issue of class certification. Plaintiffs' motion for class certification is expected to be filed in April 2009, and briefing completed and a hearing set in June 2009, according to its March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Costa Mesa, Calif.-based EPL Intermediate, Inc., through its wholly owned subsidiary El Pollo Loco, Inc., operates a restaurant system specializing in flame-grilled chicken. As of Dec. 31, 2008, its restaurant system consisted of 165 company- operated and 248 franchised restaurants located primarily in California, with additional restaurants in Arizona, Colorado, Connecticut, Georgia, Illinois, Massachusetts, Nevada, Oregon, Texas, Utah, Virginia and Washington. In 2008, it opened 9 new company-operated restaurants and 21 franchised restaurants. EPL INTERMEDIATE: Labor Violations Suit in Calif. in Discovery -------------------------------------------------------------- EPL Intermediate, Inc. continues to face a purported class- action suit in California that was filed by a former assistant manager of the company. On May 30, 2008, former assistant manager Jeannette Delgado filed a purported class-action lawsuit on behalf of all hourly (i.e. non-exempt) employees of EPL in state court in Los Angeles County alleging violations of certain California labor laws and the California Business and Professions Code including failure to pay overtime, failure to provide meal periods and rest periods and unfair business practices. By statute, the purported class extends back four years to May 30, 2004. The plaintiff's requested remedies include compensatory and punitive damages, injunctive relief, disgorgement of profits and reasonable attorneys' fees and costs. This lawsuit was served on the company in early September 2008 and discovery has begun, according to its March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Costa Mesa, Calif.-based EPL Intermediate, Inc., through its wholly owned subsidiary El Pollo Loco, Inc., operates a restaurant system specializing in flame-grilled chicken. As of Dec. 31, 2008, its restaurant system consisted of 165 company- operated and 248 franchised restaurants located primarily in California, with additional restaurants in Arizona, Colorado, Connecticut, Georgia, Illinois, Massachusetts, Nevada, Oregon, Texas, Utah, Virginia and Washington. In 2008, it opened 9 new company-operated restaurants and 21 franchised restaurants. HEALTH BENEFITS: Bid to Dismiss Former Employee's Suit Pending -------------------------------------------------------------- Health Benefits Direct Corp.'s motion to dismiss a national class-action complaint filed by a former employee of the company in the 17th Judicial Circuit of Florida, Broward County, Case No. 062008 CA 042798 XXX CE, remains pending. On Aug. 28, 2008, the plaintiff filed the complaint alleging that the company breached a contract with employees by failing to provide certain commissions and/or bonuses. The complaint also contains claims for an accounting and for declaratory relief relating to the alleged compensation agreement. The plaintiff purports to bring these claims on behalf of a class of current and former insurance sales agents. The plaintiff seeks payment from the company of all commissions allegedly owed to him and the putative class, triple damages, attorneys' fees, costs, and interest. The company filed a motion to dismiss the complaint, which has not yet been heard by the court, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Radnor, Pennsylvania-based Health Benefits Direct Corp. -- http://www.healthbenefitsdirect.com/-- engages in the direct marketing and distribution of health and life insurance products. The Company operates though two segments, Telesales and Atiam. HEALTH BENEFITS: Settlement of FLSA Suit Pending Court Approval --------------------------------------------------------------- The settlement of a putative collective action filed by a former employee of Health Benefits Direct Corp. alleging a violation of the Fair Labor Standards Act (FLSA) is pending court approval. On Aug. 7, 2008, a former employee of the company filed a putative collective action in the U.S. District Court for the Southern District of Florida, case no. 08-CV-61254-Ungaro- Simonton, alleging that the company and a co-defendant, who is an officer of Health Benefits, unlawfully failed to pay overtime to its insurance sales agents in violation of the FLSA. Plaintiff purported to bring claims on behalf of a class of current and former insurance sales agents who were classified as non-exempt by the company and compensated at an hourly rate, plus commissions ("Agents"). On Oct. 16, 2008, the Court conditionally certified a collective action under the FLSA covering all Agents who worked for the company within the last three years. Plaintiff and all Agents who opt to participate in the collective action seek payment from the company of compensation for all overtime hours worked at the rate of one and one-half times their regular rate of pay, liquidated damages, attorneys' fees, costs, and interest. On March 2, 2009, the parties reached an agreement to settle this case. That settlement will be submitted to the Court for necessary approval, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Radnor, Pennsylvania-based Health Benefits Direct Corp. -- http://www.healthbenefitsdirect.com/-- engages in the direct marketing and distribution of health and life insurance products. The Company operates though two segments, Telesales and Atiam. INFOSONICS CORP: Securities Settlement Set for April 23 Hearing --------------------------------------------------------------- An April 23, 2009 fairness hearing in the U.S. District Court for the Southern District of California has been set for the settlement in the consolidated class-action lawsuit "In Re: InfoSonics Corp. Securities Litigation, Lead Case No. 06 CV 1231." Six securities action complaints, originally filed between June and July 2006, were consolidated as "In Re: InfoSonics Corp. Securities Litigation, Lead Case No. 06 CV 1231." The plaintiffs' consolidated complaint was filed on Feb. 14, 2007, asserting claims for violation of section 10(b) of the U.S. Exchange Act and associated Rule 10b-5, 20(a) and 20A in connection with the company's restatement announced June 12, 2006, and allegedly false and misleading statements and accounting related to the company's distribution agreement with VK Corp. The suit seeks a declaration that it is a proper class action pursuant to Rule 23(a) and (b)(3), as well as unspecified damages, prejudgment and post-judgment interest, attorneys' fees, expert witness fees, other costs, and other unspecified relief. The plaintiffs purport to represent a class of purchasers of the company's stock during the period Feb. 6, 2006, to Aug. 9, 2006. On Oct. 1, 2007, the defendants filed a motion to dismiss the second amended consolidated complaint. In April 2008, the Court issued an order granting in part and denying in part the defendants' dismissal motion. In June 2008, the Court dismissed without prejudice the plaintiffs' claims based on the defendants' restatement of first quarter 2006 earnings and dismissed without prejudice all claims against a certain individual defendant (Class Action Reporter, June 27, 2008). On Aug. 8, 2008, prior to defendants filing a motion to dismiss or other responsive pleading to the third amended consolidated complaint, the parties entered into a Memorandum of Understanding to resolve the case. On Oct. 17, 2008, the parties entered a Stipulation and Agreement of Settlement (the Securities Settlement) of the case, which provides the securities class action settlement is contingent on preliminary and final Court approval (after appropriate notice), as well as settlement of the derivative action against the company, among other contingencies, and provides for, among other things, a dismissal with prejudice of the lawsuit, releases of the defendants, and a payment by the Company or its insurer of $3.8 million to plaintiffs (inclusive of any plaintiffs' attorneys fees, to be determined by the Court). It is anticipated that the settlement payment will be funded entirely by the Company's insurer. The Securities Settlement further provides that defendants deny any liability or responsibility for the claims made and make no admission of any wrongdoing. On Oct. 30, 2008, the Court took under submission without oral argument the request for an order preliminarily approving the Securities Settlement. On Jan. 20, 2009, the Court entered an order certifying the class, preliminarily approving the Securities Settlement, providing for notice to the class, and setting a fairness hearing on April 23, 2009. On Feb. 10, 2009, the company's insurer funded the full settlement payment, according to its March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "In Re: InfoSonics Corp. Securities Litigation, Lead Case No. 06 CV 1231," filed in the U.S. District Court for the Southern District of California, Judge Barry Ted Moskowitz, presiding. Representing the plaintiffs is: Lionel Z. Glancy, Esq. Glancy Binkow and Goldberg 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Phone: 310-201-9150 Fax: 310-201-9160 e-mail: info@glancylaw.com Representing the defendants is: Kimberly Arouh Hicks, Esq. (kimberly.hicks@lw.com) Latham and Watkins 600 West Broadway, Suite 1800 San Diego, CA 92101-3375 Phone: 619-236-1234 Fax: 619-696-7419 IPAYMENT INC: Bid for Review of "Bruns" Suit Dismissal Due May 4 ---------------------------------------------------------------- IPayment Inc. has until May 4, 2009 to file a petition for review with the California Supreme Court in the matter tagged "Bruns v. E-Commerce Exchange Inc., et al, Case No. 00CC02450, Orange County Superior Court, State of California." This matter arises from a lawsuit filed in February 2000, by plaintiff Dana Bruns on her own behalf and on behalf of a purported class of persons in California who, during the five years prior to filing the lawsuit, allegedly received fax transmissions from third-party defendant Fax.Com and its advertisers, including the company's subsidiary E-Commerce Exchange, Inc. ("ECX"). The complaint, as amended, alleges that the defendants sent "fax blast" transmissions to telephone facsimile machines in violation of the provisions of the Telephone Consumer Protection Act of 1991 ("TCPA") and seeks relief under the TCPA and/or under California's Unfair Competition Act, Business & Professions Code and for negligence, including for injunctive relief, damages and monetary relief, attorney's fees and costs of suit and other relief deemed proper. The suit is coordinated under the caption "TCPA Cases," Los Angeles County Superior Court, State of California, Case No. JCCO 43500. ECX tendered this claim in early 2000, to Farmer's Insurance under a policy then in effect that provides up to $2,000,000 for "covered" claims and the claim defense. In April 2000, Farmers agreed, subject to a reservation of rights, to assume the defense of ECX in this litigation and has paid all costs of defense since April 2000. In December 2006, ECX and other defendants filed a Motion for Mandatory Dismissal of this lawsuit, based on the failure to bring the case to trial within five years after the action commenced (pursuant to California Code of Civil Procedure). The Court granted and issued an Order and Opinion on May 14, 2007. Notice of Entry of Final Judgment dismissing the litigation with prejudice was filed on June 26, 2007. On Aug. 30, 2007, plaintiff timely filed her Notice of Appeal and on Feb. 22, 2008, the Court of Appeal filed plaintiff's opening brief, which was served on ECX, and subsequently, during calendar year 2008, the parties filed all required briefs with the Appellate Court. On Dec. 8, 2008, oral argument was presented on behalf of ECX to the Appellate Court panel assigned to the case. On March 23, 2009, the Appellate Court issued its opinion, voting 2 to 1, in favor of the plaintiff and reversing the Trial Court Notice of Entry of Final Judgment, and dismissing the litigation with prejudice. According to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008, at this time, iPayment is consulting with its counsel to determine whether to file for either a petition for rehearing with the Appellate Court or a petition for review with the California Supreme Court. It has until April 7, 2009 to file a petition for rehearing and until May 4, 2009 to file a petition for review with the California Supreme Court. The company continues to believe that the claims asserted against it in this lawsuit are without merit, and that the Trial Court properly granted the Motion to Dismiss and entered Final Judgment dismissing the litigation with prejudice. IPayment Inc. -- http://www.ipaymentinc.com/-- based in Nashville, Tennessee, is a provider of credit and debit card- based payment processing services to small merchants. IPAYMENT INC: June 4 Fairness Hearing Set for "Aguilard" Deal ------------------------------------------------------------- A June 4, 2009 settlement fairness hearing date has been set in the matter styled "Robert Aguilard, et al., on behalf of themselves and all persons similarly situated v. E-Commerce Exchange, Inc., A-1 Leasing LLC, and Duvera Billing Services, Civil Action No. 05CC02794." E-Commerce Exchange, Inc. ("ECX") is a subsidiary of Ipayment Inc. The lawsuit was filed in the State of California, Superior Court of Orange County, on behalf of 10 named plaintiffs and on behalf of all persons similarly situated, as a "class action" and, as amended, names ECX and third parties, A-1 Leasing, Duvera, Applied Merchant Systems, Inc., Vandalay Venture Group, Inc. and Michael Lauria as named defendants. The plaintiffs allege a single cause of action for "unfair competition" (pursuant to California Business and Professions Code Sections 17200) arising out of certain alleged marketing activities related to the credit card processing services offered by ECX to merchants that included a lease or purchase of a "payment gateway" allegedly marketed by ECX under the names "Quick Commerce" and "Wonderpay." The Action seeks an order certifying it as a "class action, a declaratory judgment, an injunction, and an accounting, restitution, disgorgement of defendants profits from the "unfair competition" activities, interest, attorney fees and costs of suit. A cross-complaint was also filed against ECX and AMS, by Duvera in February 2007, asserting six causes of action, including negligence, contractual and equitable indemnity, specific performance and seeking declaratory relief and damages according to proof. A-1 also filed a separate cross-complaint against AMS. In September 2008, the parties reached an agreement in principle on proposed terms for the settlement of plaintiffs' claims against defendants, including dismissals with prejudice. The parties then executed a Stipulation of Class Action Settlement, dated Jan. 9, 2009, which set forth the material terms of the settlement of plaintiffs' claims in the subject Litigation against defendants. The company and the other defendants, A-1, Duvera, AMS, and Lauria, also entered into a separate Settlement Agreement and Mutual General Release, dated as of Jan. 15, 2009, which sets forth the settlement understandings and agreements between the various defendants. Under the Defendants Settlement Agreement, the cross-complaint filed by Duvera against the company (ECX) and AMS will be dismissed with prejudice, and iPayment and each of the other defendants will fully and finally settle and release each and all other defendants with respect to the claims asserted or that could have been asserted against each other in connection with the matters alleged by the plaintiffs in the Action. The Defendants Settlement Agreement understandings are conditioned on the proposed settlement of plaintiffs' claims against Defendants being completed. On March 5, 2009, the court gave preliminary approval to the terms and conditions of the proposed Class Settlement Agreement and ordered that notice of the proposed Class Settlement Agreement is required to be mailed by April 17, 2009. June 4, 2009 is the date set for the fairness hearing, at which time the court is to consider final approval of the Class Settlement Agreement. The proposed Class Settlement Agreement will not be fully effective and binding unless and until the court grants final. The Class Settlement Agreement is not an admission of liability by the defendants and this summary of the Class Settlement Agreement does not purport to be complete and is qualified in its entirety by the Class Settlement Agreement, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. IPayment Inc. -- http://www.ipaymentinc.com/-- based in Nashville, Tennessee, is a provider of credit and debit card- based payment processing services to small merchants. KV PHARMACEUTICAL: Law Firms Named as Lead Counsel in Mo. Suit -------------------------------------------------------------- The law firms of Labaton Sucharow LLP and Bernstein Litowitz Berger & Grossmann LLP were named lead counsel in a securities class-action lawsuit against KV Pharmaceutical Co., as part of a judge's order consolidating three separate class actions against the drugmaker, Law360 reports. In the same order, Judge Carol E. Jackson of the U.S. District Court for the Eastern District of Missouri also named the Public Pension Fund Group as lead plaintiffs, according to the Law360 report. MCDONALD'S CORP: Calif. Franchises Face Labor Violations Lawsuit ---------------------------------------------------------------- Four former workers at McDonald's Corp. restaurants in Monterey County filed a purported class-action lawsuit claiming that they were underpaid, given inadequate time for meals and rest, and were victims of other violations of state labor law. The suit was filed on April 13, 2009 in Monterey County Superior Court in California against a number of companies that run McDonald's franchises in Monterey, Salinas, Marina, Seaside, Pacific Grove and Sand City. The suit says up to 750 employees at the restaurants may have been affected by unlawful wage practices over the past four years. MCKESSON CORP: July 23 Hearing Set For "N.E. Carpenters I" Deal --------------------------------------------------------------- The U.S. District Court for the District of Massachusetts will hold a fairness hearing on July 23, 2009 at 2:00 p.m. for the proposed settlement in the matter, "New England Carpenters Health Benefits Fund et al., v. First DataBank, Inc. and McKesson Corporation, (Civil Action No. 1:05-CV-11148-PBS)," which concerns the pricing of more than 450 brand-name drugs. Previously, the U.S. District Court for the District of Massachusetts, on Jan. 23, 2009, granted preliminary approval of the proposed settlement in the New England Carpenters I civil action against McKesson Corp. (Class Action Reporter, Feb. 4, 2009). On Aug. 7, 2008, the court issued its order denying plaintiffs motion to certify a class made up of uninsured consumers who paid "usual and customary" prices for prescription drugs from Aug. 1, 2001 through the present, although the court did so "without prejudice" to the plaintiffs renewing their motion at a future date based on new facts developed in ongoing discovery. Expert discovery is ongoing, and in connection with those proceedings plaintiffs have produced a report which claims total damages through March 15, 2005, for the third party payor class and the consumer percentage co-pay class of US$5.6 billion, inclusive of prejudgment interest. As a subset of this total, the plaintiffs' report claims damages for the respective certified class periods scheduled for trial of US$3.7 billion for the third party payor class, and US$150 million for the consumer percentage co-pay class, both amounts inclusive of prejudgment interest. The certified third party payor and percentage co-pay consumer class claims are based on alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). On Nov. 21, 2008, the company announced in a filing on Form 8-K that an agreement had been entered into to settle all private party claims relating to First DataBank Inc.'s published drug reimbursement benchmarks, commonly referred to as Average Wholesale Price. The settled private party claims include the action filed against the company in the New England Carpenters I civil action, including the class of uninsured consumers who paid usual and customary prices for prescription drugs. That settlement, which is subject to preliminary and final approval by the U.S. District Court, provides for a release by all class members of the Company as to all matters alleged, or which could have been alleged, in these private party actions. The consideration for the settlement is $350 million, payable into a settlement escrow in installments following preliminary and final approvals of the settlement. As a result, during the third quarter of 2009, the company recorded a $350 million pre- tax charge for its AWP-related private party actions. On Jan. 23, 2009, the court granted preliminary approval of the proposed settlement but has not yet set a hearing date regarding final approval of the settlement, according to the company's Jan. 27, 2009 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. For more details, contact: McKesson Settlement Administrator c/o Rust Consulting, Inc. P.O. Box 24607 West Palm Beach, FL 33416 Phone: 1-877-625-9414 e-mail: info@McKessonAWPSettlement.com Web site: http://www.mckessonawpsettlement.com/ MOTOROLA INC: July 6 Hearing Set For Bluetooth Headset Agreement ---------------------------------------------------------------- The U.S. District Court for the Central District of California will hold a fairness hearing on July 6, 2009 on 1:30 p.m. for the proposed settlement in the matter, "Bluetooth Headset Products Liability Litigation, Case No. 2:07-ml-01822-DSF-E," which names Motorola, Inc.; Plantronics, Inc.; and GN Netcom, Inc./"Jabra" as defendants. The hearing will be held before Judge Dale S. Fischer, Roybal Federal Building, Courtroom 840, 255 East Temple St., Los Angeles, CA 90012. In 2006, Motorola faced several class-action complaints in several states over allegations that it has put the hearing of consumers at risk, since its Bluetooth headsets exceed safe decibel levels and it failed to warn customers of the potential dangers (Class Action Reporter, June 13, 2007). The suits allege that Motorola's headsets have volume controls, which produce sounds exceeding 85 decibels, with sound often peaking in excess of 100 decibels. It contends that without resorting to scientific testing, the consumer cannot determine the decibel level of the sound being emitted from the headset. In a 2006 test performed by the American Speech-Hearing-Language Association, Motorola's H700 model headset produced decibel levels of up to 106 decibels (Class Action Reporter, Oct. 20, 2006). The suits pointed out that that someone can develop hearing loss if they are exposed to such levels between three and four minutes a day. Though the company sold the headsets with a booklet containing safety information, the suit alleges that it "omitted and concealed [from consumers] any safety information pertaining to the headsets' propensity for causing noise-induced hearing loss." The suits add that the company also omitted information about the headsets' decibel level. The suits claim that users are often forced to turn up the volume on the devices, due to the background noise that comes in through the users' non-Bluetooth-connected ear. "By design," the suits allege that the company "put consumers at risk of suffering serious hearing loss when the headsets are put to their normal and intended use." It goes on to allege that "millions of consumers have had their hearing put at risk by Motorola's headsets." The suits seek: -- an award of unspecified damages to the class; -- a temporary restraining order to keep Motorola from selling, marketing or advertising the headsets without a detailed warning regarding potential hearing loss; and -- other unspecified damages. In February, the U.S. District Court for the Central District of California, ordered that pursuant to 28 U.S.C. Section 1407, the actions pending outside the Central District of California are transferred to the Central District of California and with the consent of that Court, assigned to the Honorable Dale S. Fischer for coordinated or consolidated pretrial proceedings. The multidistrict litigation consolidates dozens of cases brought forth by plaintiffs alleging that the headsets cause hearing loss and Motorola failed to warn consumers of that danger. The suit is "Bluetooth Headset Products Liability Litigation, Case No. 2:07-ml-01822-DSF-E," filed in the U.S. District Court for the Central District of California under Judge Dale S. Fischer, with referral to Judge Charles F. Eick. Representing plaintiffs are: Stephen M. Garcia David Michael Medby Garcia Law Firm One World Trade Center, Suite 1950 Long Beach, CA 90831 Phone: 562-216-5270 562-216-5270 E-mail: sgarcia@lawgarcia.com or dmedby@lawgarcia.com Representing defendants are: Terrence J. Dee P.C. Kirkland & Ellis LLP Aon Center 200 East Randolph Drive Chicago, IL 60601-6636 Phone: (312) 861-2099 Fax: (312) 861-2200 - and - Michelle Inouye Schultz Kirkland & Ellis LLP 777 South Figueroa Street Los Angeles, CA 90017-5800 Phone: (213) 680-8489 Fax: (213) 680-8500 NATIONWIDE INSURANCE: Faces Consumer Fraud Litigation in Wash. -------------------------------------------------------------- Nationwide Insurance faces a purported class-action lawsuit in the U.S. District Court for the Western District of Washington, claiming it sold health policies that paid less than legal amounts, The Seattle Times reports. The suit alleges that the company sold policies "unfairly and deceptively," and without permission from the state's insurance commissioner's office, reports The Seattle Times. The suit refers to fixed indemnity plans that capped health coverage at a certain amount rather than using a percentage that allows payments to increase if health bills rise. "Even though you think you're covered, you're not," Joshua Welter of the Washington Community Action Network told the newspaper. Often offered through employers, "I would suspect some, if not most, employers are similarly duped," attorney Eleanor Hamburger, Esq. of Sirianni Youtz Meier, the firm that filed the suit told The Seattle Times. NATIONWIDE LIFE: Reaches $6M Settlement in "Michael Carr" Case -------------------------------------------------------------- Nationwide Life Insurance Co. reached a $6 million settlement for the purported class-action lawsuit "Michael Carr v. Nationwide Life Insurance Co.," The Associated Press reports. On Feb. 11, 2005, NLIC, a subsidiary of Nationwide Financial Services, Inc., was named in a class-action lawsuit filed with the Common Pleas Court, Franklin County, Ohio entitled, "Michael Carr v. Nationwide Life Insurance Company" (Class Action Reporter, Jan. 2, 2009). The plaintiff claims that the total of modal payments that policyholders paid per year exceeded the guaranteed maximum premium provided for in the policy. The complaint seeks recovery for breach of contract, fraud by omission, violation of the Ohio Deceptive Trade Practices Act and unjust enrichment. It also seeks unspecified compensatory damages, disgorgement of all amounts in excess of the guaranteed maximum premium and attorneys' fees. On Feb. 2, 2006, the court granted the plaintiff's motion for class certification on the breach of contract and unjust enrichment claims. The court certified a class consisting of all residents of the United States and the Virgin Islands who, during the class period, paid premiums on a modal basis to NLIC for term life insurance policies issued by NLIC during the class period that provide for guaranteed maximum premiums, excluding certain specified products. Excluded from the class are NLIC; any parent, subsidiary or affiliate of NLIC; all employees, officers and directors of NLIC; and any justice, judge or magistrate judge of the State of Ohio who may hear the case. The class period is from Feb. 10, 1990 through Feb. 2, 2006, the date the class was certified. On Jan. 26, 2007, the plaintiff filed a motion for summary judgment. On April 30, 2007, NLIC filed a motion for summary judgment. On Feb. 4, 2008, the Court entered its ruling on the parties' pending motions for summary judgment. The Court granted NLIC's motion for summary judgment for some of the plaintiffs' causes of action, including breach of contract claims on all decreasing term policies, plaintiff Carr's individual claims for fraud by omission, violation of the Ohio Deceptive Trade Practices Act and all unjust enrichment claims. On May 16, 2008, the parties filed their briefs on NLIC's motion for summary judgment on the voluntary payment doctrine or, in the alternative, decertification. Additional briefs were filed on June 20, 2008. NLIC continues to defend the lawsuit, according to National Financial Services, Inc.'s Nov. 6, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2008. Columbus, Ohio-based Nationwide Financial Services, Inc. -- http://www.nationwide.com/-- is the holding company for Nationwide Life Insurance Co., and other companies that comprise the domestic life insurance and retirement savings operations of the Nationwide group of companies. This group includes Nationwide Financial Network, which refers to Nationwide Life Insurance Co. of America and subsidiaries, including the affiliated distribution network. The company is a provider of long-term savings and retirement products in the U.S. PROVIDENCE SELECT: Securities Suits v. MF Global Still Pending -------------------------------------------------------------- Providence Select Fund, Limited Partnership's futures commission merchant, MF Global Inc., continues to face proposed class action securities suits, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. On March 6, 2008, and thereafter, four virtually identical proposed class action securities suits were filed against MF Global Ltd., certain of its officers and directors, and Man Group plc. The complaints allege that the registration statement and prospectus issued in connection with MF Global Ltd.'s initial public offering in July 2007, were materially false and misleading to the extent that representations were made regarding the company's risk management policies, procedures and systems. The allegations are based upon the company's disclosure of $141.5 million in trading losses incurred in a single day by an associated person in his personal trading account, which losses the company was responsible to pay as an exchange clearing member. Providence Select Fund, Limited Partnership is engaged in the business of speculative and high risk trade of commodity futures and options selected by of one or more commodity trading advisors pursuant to the terms of a Limited Partnership Agreement. From inception to June 2, 2008, NuWave Investment Corp. was the sole commodity trading advisor of the Fund, after which time a power of attorney was granted to Clarke Capital Management, Inc. to serve as sole trading advisor. QUINNIPIAC UNIVERSITY: Faces Title IX Lawsuit in Connecticut ------------------------------------------------------------ Players and the coach of the Quinnipiac University (QU) volleyball team filed a lawsuit against QU, charging that the school has failed to provide female students with equal opportunity to participate in varsity intercollegiate athletics in clear violation of Title IX. The legal complaint submitted by the American Civil Liberties Union of Connecticut (ACLU-CT), came after QU's historic failure to comply with Title IX was exacerbated by it's recent decision to eliminate women's varsity volleyball. "Title IX was enacted over 30 years ago and makes clear that denying women equal access to athletics is a violation of their civil rights. One only has to look at the impressive performance of the University Connecticut women's basketball team to appreciate the positive impact of title IX," said Andrew Schneider, Executive Director of the ACLU-CT. "We understand these are tough economic times, but Quinnipiac shouldn't be unfairly balancing their budget on the backs of women who are already being discriminated against." The complaint asserts that QU has long offered male students proportionately more opportunities than female students to participate in varsity intercollegiate athletics. As reported by QU, female students have only been afforded about half of athletic participation opportunities, despite the fact that women make up a larger percentage of the student body. On March 27, 2009, the ACLU-CT sent a letter to QU President, John Lahey, requesting a dialog about continuation of the volleyball program. The letter highlighted QU's shortcomings in Title IX compliance, "According to its own EADA [Equity in Athletics Disclosure Act] reports the University historically has had a female enrollment of around 62% but had a female athletic participation rate of only 50%. Given the discrepancies between the University's EADA reports and its team rosters, the actual numbers are likely even more disparate." The complaint requests the court block QU from cutting the program while the issue is litigated. Women athletes on the QU volleyball team and incoming students who committed to playing volleyball for QU this fall have had their lives thrown into uncertainty. In committing to QU the new recruits closed the door to other university admissions, financial aid, and scholarship opportunities. Current players must decide whether to stay at QU, hoping the team will survive, and risk not playing volleyball at the collegiate level, or attempt to find a comparable program which meets their academic and athletic needs. Given the late decision by QU their options for playing next fall at another institution are severely limited. "All Quinnipiac University students would benefit if Quinnipiac stopped discriminating in its athletic program and began offering female students the opportunities required by Title IX," said Jon Orleans cooperating counsel for the ACLU-CT from Pullman & Comley, LLC. Kristen Galles of Equity Legal is also serving as cooperating counsel on the case. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?3b92 For more details, contact: Patrick Doyle (pdoyle@acluct.org) Phone: (860) 523-9146 x213 - and - Andrew Schneider (aschneider@acluct.org) (860) 523-9146 x 219 SKILLED HEALTHCARE: Settles in California Discrimination Case ------------------------------------------------------------- Skilled Healthcare Group and affiliated firms agreed to pay up to $450,000 to settle a class-action lawsuit brought by the U.S Equal Employment Opportunity Commission in Los Angeles that alleges employees of the firms' nursing homes were directed not to speak Spanish, The Los Angeles Times reports. The lawsuit contended that the firms imposed an English-only rule on Hispanic workers but not workers who spoke other languages, such as Tagalog, according to The Los Angeles Times report. Under the settlement, Skilled Healthcare will pay $180,000 to 53 plaintiffs in the suit and offer English classes to them. If they complete the classes, they will be eligible to receive an additional $2,500 each, The Los Angeles Times reported. In addition, the firm told The Los Angeles Times that it would provide anti-discrimination training at its facilities and hire someone to monitor its compliance with the federal anti- discrimination law. TELEGRAM & GAZETTE: Seeks Dismissal of Newspaper Carriers' Suit --------------------------------------------------------------- The Telegram & Gazette is seeking for the dismissal of a class- action lawsuit in Massachusetts, claiming that the newspaper broke state labor laws by classifying newspaper carriers as independent contractors rather than employees, Lisa Eckelbecker of The Telegram & Gazette. The lawsuit, filed in January in Worcester Superior Court, seeks unspecified damages for a class that may number several hundred people, according to attorney James M. Galliher, Esq., who is representing the former and current newspaper carriers, according to The Telegram & Gazette report. The plaintiffs in the case are Thomas G. Driscoll Jr., Arthur Pace, Lyssa Boudreau and Neal Arsenault, all of whom are identified as Worcester County residents and current or former adult newspaper carriers, The Telegram & Gazette reported. In a motion filed on April 16, 2009, the newspaper filed a motion asking the court to dismiss the case, arguing that most of the claims fail on legal grounds and that Mr. Driscoll's claims come too late and are barred by the statute of limitations. The plaintiffs filed a motion opposing dismissal and have asked for a hearing, reports The Telegram & Gazette. For more details, contact: James M. Galliher, Esq. Bonville & Howard 154 Prichard Street Fitchburg, Massachusetts 01420 Phone: 1 (978) 345-4144 or 1 800 649-3500 Fax: 1 (978) 345-2261 Web site: http://www.bonvillelaw.com/ VENEZUELA: Freedom Watch Files Fla. Suit v. Government Officials ---------------------------------------------------------------- Freedom Watch a nonprofit group that advocates for ethics in government filed for a purported class-action lawsuit against Venezuelan President Hugo Chavez for alleged acts of terrorism and human rights violations, including conspiring with Colombian guerrillas, al-Qaida and the Taliban, The Associated Press reports. The suit was filed in the U.S. District Court for the Southern District of Florida on April 15, 2009 on behalf of Venezuelan journalist Ricardo Guanipa, according to the AP report. Captioned, "Guanipa et al v. Chavez et al., Case No. 1:2009-cv- 20999," the suit also listed as defendants, Nicolas Maduro Moros, Tarek El Assaimi, Ramon Rodriguez Chacin, Hugo Carvajal Barrios, Henry Rangel Silva, and Venezuelan Vice-President Ramon Alonso Carriale Rengifo. According to the complaint, Mr. Guanipa worked for Radio Marti in Venezuela and received death threats after investigating government corruption. Radio Marti is the U.S. government's broadcast to Cuba, with the stated goal of providing an alternative to the communist island's government-run media. Mr. Guanipa fled Venezuela and received political asylum in the U.S. in 2005. He now lives in Miami, reported The Associated Press. The Associated Press reported that Freedom Watch is seeking class-action status for the case in order to include other individuals whom it alleges were also forced to flee Venezuela. VETERANS AFFAIRS: July 28 Hearing Set for $20M Suit Settlement -------------------------------------------------------------- The U.S. District Court for the District of Columbia will hold a fairness hearing on July 28, 2009 at 10:00 a.m. for the proposed $20,000,000 settlement in the matter, "In Re: Department of Veterans Affairs (VA) Data Theft Litigation, MDL No. 1796." A notification program began in late March 2009, as ordered by the U.S. District Court for the District of Columbia, to alert veterans, spouses of veterans, and members of the military of a proposed $20 million settlement reached with the U.S. Department of Veterans Affairs and certain Department employees in their official capacities in a class-action lawsuit about the theft of computer equipment which was reported to contain personal information (Class Action Reporter, March 25, 2009). On May 3, 2006, computer equipment which was reported to contain personal information of military veterans, spouses of veterans, and military personnel, was stolen from the home of an employee of Veterans Affairs. The equipment was reported to contain information such as names, social security numbers, and dates of birth for up to 17.5 million individuals, as well as some disability ratings. The data did not include any health records or financial information. The computer equipment was later recovered on June 28, 2006 by the Federal Bureau of Investigation, whose review of the equipment indicated that the data had not been accessed. The lawsuit alleges that the Defendants violated federal law by not properly securing the information. The Defendants deny that they did anything wrong and the settlement does not mean that any law was violated. The Class includes all veterans, spouses of veterans, and military personnel who had actual damages from May 3, 2006 through February 11, 2009 that were directly related to the theft of computer equipment which was reported to contain personal information from the home of a VA employee on May 3, 2006. The Class also includes all representatives, heirs, administrators, executors, beneficiaries, agents, and assigns of Class Members. Actual damages include out-of-pocket expenses incurred as a direct result of the theft, including those that were: used to protect or monitor personal or financial information; or the result of physical symptoms of severe emotional distress. Out-of-pocket expenses may include, for example, the purchase of credit monitoring to protect against identity loss. Any money remaining in the Settlement Fund after paying Class Members, lawyers' fees, costs, and expenses will be donated to the Fisher House Foundation, Inc. and The Intrepid Fallen Heroes Fund, both veterans-related charities. Notices informing Class Members about their legal rights are scheduled to appear in consumer and military publications in the United States leading up to a hearing on July 28, 2009, when the Court will consider whether to grant final approval to the settlement. The Court has appointed John Murdock and Jeffrey Goldenberg, Murdock, Goldenberg, Schneider & Groh, L.P.A. of Cincinnati, Ohio; Douglas Rosinski and Donald Cockrill, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Columbia, South Carolina; Marc Mezibov, The Law Offices of Marc Mezibov of Cincinnati, Ohio; Gary E. Mason, The Mason Law Firm, L.L.P. of Washington, District of Columbia; and Mark Smilow, Weiss & Lurie of New York, New York as Class Counsel to represent the Class. Those affected by this settlement can send in a claim form to ask for a payment, or they can ask to be excluded from, or object to, the settlement and its terms. The deadline for exclusions and objections is June 29, 2009. The deadline to file a claim is November 27, 2009. A toll-free number, 1-888-288-9625, has been established in the case (called In Re: Department of Veterans Affairs (VA) Data Theft Litigation, MDL No. 1796), along with a website, http://www.VeteransClass.com,where notices, a claim form, and the settlement agreement may be obtained. Those affected may also write to VA Settlement, PO Box 6727, Portland, OR 97228- 6727. WELLS REAL: Certification Bid in Securities Suit Pending in Ga. --------------------------------------------------------------- The motion for class certification in the matter, "In Re Wells Real Estate Investment Trust, Inc., Securities Litigation Case No. 1:07-cv-00862-CAP," is pending before the U.S. District Court for the Northern District of Georgia. Wells Real Estate Investment Trust, Inc., is now known as Piedmont Office Realty Trust, Inc. On March 12, 2007, a stockholder filed a purported class action and derivative complaint, "Washtenaw County Employees Retirement System v. Wells Real Estate Investment Trust, Inc., et al.," with the U.S. District Court for the District of Maryland against, among others, Piedmont REIT; Leo F. Wells, III and Wells Capital, the General Partners; Wells Management, the company's property manager; certain affiliates of WREF; the directors of Piedmont REIT; and certain individuals who formerly served as officers or directors of Piedmont REIT prior to the closing of the internalization transaction on April 16, 2007. The complaint attempts to assert class action claims on behalf of those persons who received and were entitled to vote on the proxy statement filed with the U.S. Securities and Exchange Commission on Feb. 26, 2007. The complaint alleges, among other things: -- that the consideration to be paid as part of the Internalization is excessive; -- violations of Section 14(A), including Rule 14a-9 thereunder, and Section 20(A) of the Securities Exchange Act of 1934, based upon allegations that the proxy statement contains false and misleading statements or omits to state material facts; -- that the board of directors and the current and previous advisors breached their fiduciary duties to the class and to Wells REIT; and -- that the proposed Internalization will unjustly enrich certain directors and officers of Wells REIT. The complaint seeks, among other things: -- certification of the class action; -- a judgment declaring the proxy statement false and misleading; -- unspecified monetary damages; -- to nullify any stockholder approvals obtained during the proxy process; -- to nullify the merger proposal and the merger agreement; -- restitution for disgorgement of profits, benefits and other compensation for wrongful conduct and fiduciary breaches; -- the nomination and election of new independent directors, and the retention of a new financial advisor to assess the advisability of Wells REIT's strategic alternatives; and -- the payment of reasonable attorneys' fees and experts' fees. On April 9, 2007, the court denied the plaintiff's motion for an order enjoining the Internalization transaction. On April 17, the court granted the defendants' motion to transfer venue to the U.S. District Court for the Northern District of Georgia, and the case was docketed in the Northern District of Georgia on April 24. In June 2007, the court granted a motion to designate the class lead plaintiff and class co-lead counsel. The plaintiff then filed an amended complaint, which contains the same counts as the original complaint, with amended factual allegations based primarily on events occurring subsequent to the original complaint and the addition of a Wells REIT officer as an individual defendant. On July 9, 2007, the Court denied the plaintiff's motion for expedited discovery related to an anticipated motion for a preliminary injunction. On Aug. 13, 2007, the defendants filed a motion to dismiss the amended complaint. On March 31, 2008, the Court granted in part the defendants' motion to dismiss the amended complaint. The Court dismissed five of the seven counts of the amended complaint in their entirety. The Court dismissed the remaining two counts with the exception of allegations regarding the failure to disclose in the Piedmont REIT proxy statement details of certain expressions of interest in acquiring Piedmont REIT. On April 21, 2008, the plaintiff filed a second amended complaint, which alleges violations of the federal proxy rules based upon allegations that the proxy statement to obtain approval for the Piedmont REIT internalization transaction omitted details of certain expressions of interest in acquiring Piedmont REIT. The second amended complaint seeks, among other things, unspecified monetary damages, to nullify and rescind the internalization transaction, and to cancel and rescind any stock issued to the defendants as consideration for the internalization transaction. On May 12, 2008, the defendants answered and raised defenses to the second amended complaint. On June 23, 2008, the plaintiff filed a motion for class certification. The defendants responded to the plaintiff's motion for class certification on Jan. 16, 2009. The plaintiff filed its reply in support of its motions for class certification on Feb. 19, 2009. The parties are presently engaged in discovery, according to the company's March 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "In Re Wells Real Estate Investment Trust, Inc., Securities Litigation Case No. 1:07-cv-00862-CAP," filed with the U.S. District Court for the Northern District of Georgia, Judge Charles A. Pannell, Jr., presiding. Representing the plaintiffs is: Nicholas E. Chimicles, Esq. (nick@chimicles.com) Chimicles & Tikellis, LLP 361 West Lancaster Avenue One Haverford Centre Haverford, PA 19041-0100 Phone: 215-642-8500 Representing the defendants is: Michael J. Cates, Esq. (mcates@kslaw.com) King & Spalding, LLP 1180 Peachtree Street, NE Atlanta, GA 30309-3521 Phone: 404-572-4600 New Securities Fraud Cases HEARTLAND PAYMENT: Cohen Milstein Files Securities Fraud Lawsuit ---------------------------------------------------------------- The law firm Cohen Milstein Sellers & Toll PLLC filed a lawsuit in the United States District Court for the District of New Jersey on behalf of persons or entities who purchased or otherwise acquired the common stock of Heartland Payment Systems, Inc. (HPY) between February 13, 2008 and February 23, 2009, inclusive. The lawsuit charges Heartland and certain of the Company's executive officers with violations of federal securities laws. Heartland, together with its subsidiaries, provides bank card payment processing services to more than 250,000 merchants and businesses nationwide. The lawsuit alleges that throughout the Class Period defendants made false and/or misleading statements, and failed to disclose material adverse facts about the Company's business, operations and prospects. Specifically, the complaint alleges that defendants misrepresented or failed to disclose: -- that the Company was in imminent danger of having the security of its processing system breached; -- that the Company had not taken the proper steps to secure its systems; -- that further, it was likely that the Company would not be aware such a breach occurred until weeks or months later; -- that the Company's payment processing system had been infected as early as May, 2008 with malicious software; -- that as a result, the Company would face significant costs related to, among other things, liability and the implementation of proper measures; and -- that the Company lacked adequate internal controls. On January 20, 2009, Heartland revealed that the Company's payment processing network had been breached by malicious software, exposing tens of millions of debit cardholders to fraud. As consumers used their debt cards, so-called "sniffer software" had been capturing, among other things, card numbers, expiration dates and cardholder names. According to an article published that same day in The New York Times, the breach occurred as early as May 2008. On this news, shares of Heartland declined $1.26 per share, or 8.16%, to close on January 20, 2009, at $14.18 per share, on unusually heavy volume. Over the next two days, shares of Heartland further declined $6.00 per share, or an additional 42.31%, to close on January 22, 2009 at $8.18 per share. On February 24, 2009, Heartland again shocked investors when it reported earnings for the 2008 fiscal year and fourth quarter. The Company posted a lower-than-expected quarterly profit and disclosed that it might incur losses from the recent security breach of its system and that the Company could not estimate the amount of losses that might be incurred in connection with the security breach. On this news, shares of Heartland declined $2.31 per share, or 30.12%, to close on February 24, 2009, at $5.34 per share, on unusually heavy volume. During the Class Period, shares of Heartland's common stock declined $21.84 per share, or approximately 80%, from its Class Period high of $27.19 per share on September 19, 2008. A request for lead plaintiff status must satisfy certain criteria and be made on or before May 5, 2009. ********* 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, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. 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