/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090624.mbx C L A S S A C T I O N R E P O R T E R Wednesday, June 24, 2009, Vol. 11, No. 123 Headlines ALBERTA GOVERNMENT: Judge Reserves Decision on Chiropractic Case ATI TECHNOLOGIES: Aug. 31 Hearing Set For HDCP Suit Settlement BIG LOTS: Certification of Workers' Suit Pending in Calif. Court BIG LOTS INC: Continues to Defend Calif. Workers' Wage Lawsuits BIG LOTS: To Defend Civil Complaint Over FLSA Violations in N.Y. C&S GROCERS: Faces Antitrust Litigation in New Hampshire CONTINENTAL CARBON: Settles "Ponca Tribe" Litigation for $10.5M COSTCO WHOLESALE: Calif. Suit Over Denied Overtime Pay Pending COSTCO WHOLESALE: Continues to Defend Lawsuit Over Waffles Sales COSTCO WHOLESALE: Faces "Pytelewski" Lawsuit in San Diego County COSTCO WHOLESALE: Seeks Dismissal of "Verzani" Suit in New York COSTCO WHOLESALE: Suit Over Uncompensated Working Time Pending FLOWSERVE CORP: Fifth Circuit Revives Tex. Securities Fraud Suit GENESCO INC: Suit Over Customer E-mail Addresses Still Pending GENESCO INC: To Conduct Discovery in "Jacobs" Labor Litigation HEADWATERS INC: Jury Wards $8.7M to Plaintiffs in Adtech Lawsuit HERLEY INDUSTRIES: Pa. Consolidated Securities Suit in Discovery JO-ANN STORES: To Defend "Blair" Wage and Hour Suit in Calif. LULULEMON ATHLETICA: To Defend "Kohlenberg" Lawsuit in Calif. LULULEMON ATHLETICA: To Defend Suit by Former Hourly Employees MERCK & CO: Addresses Allegations in Australian Vioxx Litigation MICHIGAN: Court of Appeals Allows "Duncan" Litigation to Proceed MICROSOFT CORP: Md. Court Approves $4.4M Antitrust Settlement MONRO MUFFLER: Settlement of Employees' Suit Approved in March NASA: Ninth Circuit Upholds Injunction in JPL Workers' Lawsuit PENNSYLVANIA: DPW Faces Suit Over Policy for Mentally Retarded PEROT FAMILY: Partnership Files Tex. Suit Over Investment Losses SIMON & SCHUSTER: Ninth Circuit Reinstates $90M Text Spam Suit UNITED PARCEL: Calif. Court Certifies Class in "Mortgage LLC" VONAGE HOLDINGS: Settles Shareholder Litigation Over 2006 IPO WHITEHAVEN SETTLEMENT: Faces Lawsuit Over Loans, Payment Scheme ZEON CHEMICALS: Ky. Judge Gives Residents Time to Consider Deal New Securities Fraud Cases OPPENHEIMER AMT-FREE: Emerson Poynter Files Securities Lawsuit ********* ALBERTA GOVERNMENT: Judge Reserves Decision on Chiropractic Case ---------------------------------------------------------------- A Canadian judge reserved decision on a motion by the Alberta government to be dropped as a defendant in a proposed class- action lawsuit over chiropractic care, The Canadian Press reports. According to a government spokesman, the case offers no reason why Alberta has been included as a defendant, so lawyers argued that there is no reason to continue against the province. The claim by Sandra Nette also names chiropractor Gregory John Stiles and the Alberta College and Association of Chiropractors, The Canadian Press reported. The lawsuit alleges that adjustments to Ms. Nette's upper neck ruptured arteries, which in turn disrupted blood flow to her brain and caused several paralyzing strokes. Her lawyer, Philip Tinkler, says the government can't just wash its hands of the matter, according to The Canadian Press. He suggests the province should actually be speaking out against the type of chiropractic treatment that he claims left Ms. Nette paralyzed, reports The Canadian Press. ATI TECHNOLOGIES: Aug. 31 Hearing Set For HDCP Suit Settlement -------------------------------------------------------------- The U.S. District Court for the Northern District of California, will hold a fairness hearing on Aug. 31, 2009 at 9:00 a.m. for the proposed settlement in the matter, "In re ATI Tech. HDCP Litigation, Case No. 5:06-CV-01303-JW." The suit was filed against ATI Technologies, Inc. (now known as ATI Technologies ULC), ATI Technologies Systems Corp., ATI Research Silicon Valley Inc., and ATI Research, Inc. (Class Action Reporter, May 21, 2009). The plaintiffs claim that certain graphics cards were marketed as "HDCP ready," "HDCP compliant," or "HDCP capable," or otherwise conforming to High-bandwidth Digital Content Protection (HDCP) specifications for the transmission of HDCP content, when they were not. Initially, on February and March 2006, two consumer class-action lawsuits were filed in the U.S. District Court for the Northern District of California against ATI and three of its subsidiaries (Class Action Reporter, Jan. 23, 2009). The complaint allege that ATI had misrepresented its graphics cards as being "HDCP ready" and on that basis alleged violations of state consumer protection statutes, breach of express and implied warranty, negligent misrepresentation, and unjust enrichment. On April 18, 2006, the court entered an order consolidating the two actions. On June 19, 2006, plaintiffs filed a consolidated complaint, alleging violations of California's consumer protection laws, breach of express warranty, and unjust enrichment. On June 21, 2006, a third consumer class-action lawsuit that was filed in the U.S. District Court for the Western District of Tennessee in May 2006, alleging claims that are substantially the same was transferred to the Northern District of California. On July 31, 2006, that case was also consolidated into the consolidated action pending in the Northern District of California, according to a Form 8-K filing with the U.S. Securities and Exchange Commission dated Jan. 9, 2009 by Advanced Micro Devices, Inc., the parent company of ATI Technologies, Inc. The settlement covers anyone who -- while residing in the United States -- purchased for their own personal use and not for resale an ATI graphics card (that means a card built by or for ATI, not by or for another company such as Asus, Diamond, Gigabyte, Palit, Sapphire, or VisionTek) from one of the following series: Radeon(R) 9550; Radeon(R) 9800; Radeon(R) x700; Radeon(R) x800; Radeon(R) x850; Radeon(R) x1300; Radeon(R) x1600; Radeon(R) x1800; Radeon(R) x1900; All-in-Wonder(R) 9800; All-in-Wonder(R) 2006; All-in-Wonder(R) x600; All-in-Wonder(R) x800; All-in-Wonder(R) x1800; All-in-Wonder(R) x1900; or any FireGL(R) or FireMV(R) series of graphics cards. Those who will qaulify for the settlement must have made their purchase during the period from Jan. 1, 2003 to March 31, 2006. According to Kevin Spiess of Neoseeker.com, if less than 55,500 claimants join the class-action lawsuit, ATI will ship claimants a new HD 4650 video card. If more than 55,500 people join, but less than 71,501 people, ATI will send an HD 2400. If more than 71,501 join the lawsuit, ATI will send checks out for $41.95 to each new claimant. For more details, contact: ATI HDCP Notice and Claims Administrator P.O. Box 6177 Novato, CA 94948-6177 Phone: 1-888-309-9567 Web site: http://www.aticlassaction.com/ KamberEdelson, LLC 350 North LaSalle Street Suite 1300 Chicago, IL 60654 Phone: (312) 589-6370 Fax: (312) 589-6378 Web site: http://www.kamberedelson.com - and - Parisi & Havens LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Phone: (818) 990-1299 Fax: (818) 501-7852 Web site: http://www.parisihavens.com/ BIG LOTS: Certification of Workers' Suit Pending in Calif. Court ---------------------------------------------------------------- The Superior Court of the State of California, County of Los Angeles, has yet to certify a class or set a trial date for a purported class-action lawsuit against Big Lots Inc., alleging that the company violated certain California wage and hour laws by misclassifying California store managers as exempt employees. The purported class-action complaint was filed in September 2006. In it, the plaintiff seeks to recover, on his own behalf and on behalf of all other individuals who are similarly situated, damages for alleged unpaid overtime, unpaid minimum wages, wages not paid upon termination, improper wage statements, missed rest breaks, missed meal periods, reimbursement of expenses, loss of unused vacation time, and attorneys' fees and costs. The court has not yet determined whether the case may proceed as a class action, and has not set any deadlines for class certification or trial, according to the company's June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. Big Lots, Inc. -- http://www.biglots.com-- is a national broadline closeout retailer. As of Feb. 3, 2007, the Company operated a total of 1,375 stores in 47 states. Big Lots, Inc.'s merchandising categories include Consumables, Home, Seasonal and Toys, and Other. BIG LOTS INC: Continues to Defend Calif. Workers' Wage Lawsuits --------------------------------------------------------------- Big Lots, Inc., continues to defend several purported class- action lawsuits filed against the company in California, asserting various wage and hour claims. In February 2008, three alleged class-action complaints were filed against the company by a California resident. The first was filed before the Superior Court of California, Orange County, alleging that the company violated certain California wage and hour laws by misclassifying California store managers as exempt employees. The second and third matters, filed before the U.S. District Court, Central District of California, and the Superior Court of California, Riverside County, respectively, allege that the company violated certain California wage and hour laws for missed meal and rest periods and other wage and hour claims. The plaintiff seeks to recover, on her own behalf and on behalf of a California statewide class of all other individuals who are similarly situated, damages resulting from improper wage statements, missed rest breaks, missed meal periods, non-payment of wages at termination, reimbursement of expenses, loss of unused vacation time, and attorneys' fees and costs. The company believes that these matters overlap and it intends to transfer venue and to consolidate them before one court. The remaining allegations also overlap some portion of the claims released through the class action settlement in the Espinosa matter, according to the company's June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. Big Lots, Inc. -- http://www.biglots.com/-- is a national broadline closeout retailer. As of Feb. 3, 2007, the Company operated a total of 1,375 stores in 47 states. Big Lots, Inc.'s merchandising categories include Consumables, Home, Seasonal and Toys, and Other. BIG LOTS: To Defend Civil Complaint Over FLSA Violations in N.Y. ---------------------------------------------------------------- Big Lots, Inc. intends to defend a civil collective action complaint in the U.S. District Court for the Western District of New York, according to the company's June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. In April 2009, the complaint was filed against the company in the U.S. District Court for the Western District of New York, alleging that it violated the Fair Labor Standards Act by misclassifying assistant store managers as exempt employees. In addition, the plaintiff also seeks class action treatment under New York law relating to those assistant store managers working in the State of New York. The plaintiff seeks to recover, on behalf of himself and all other individuals who are similarly situated, alleged unpaid overtime compensation, as well as liquidated damages, attorneys' fees and costs. Big Lots, Inc. -- http://www.biglots.com-- is a national broadline closeout retailer. As of Feb. 3, 2007, the Company operated a total of 1,375 stores in 47 states. Big Lots, Inc.'s merchandising categories include Consumables, Home, Seasonal and Toys, and Other. C&S GROCERS: Faces Antitrust Litigation in New Hampshire -------------------------------------------------------- C&S Grocers, Inc. and Supervalu, Inc. are facing a purported antitrust class-action lawsuit alleging they engaged in a conspiracy to inflate prices by entering into an agreement not to compete on each other's home turf, Law360 reports. The suit was filed on June 19, 2009 in the U.S. District Court for the District of New Hampshire by Boston food retailer DeLuca Corp., under the caption, "Deluca's Corp. v. C&S Wholesale Grocers et al., Case No. 1:2009-cv-00213." For more details, contact: Christopher Cole, Esq. (ccole@sheehan.com) Sheehan Phinney Bass & Green (Manchester) 1000 Elm St., P.O. Box 3701, Manchester, NH 03105-3701 Phone: (603) 668-0300 CONTINENTAL CARBON: Settles "Ponca Tribe" Litigation for $10.5M --------------------------------------------------------------- Continental Carbon Co., CCC USA, Inc., and China Synthetic Rubber Corp. reached a $10,500,000 settlement for the class- action lawsuit, "Ponca Tribe of Indians, et al. v. Continental Carbon Company, et al., Case No. 05-445 (W.D. Okla.)," Native American Times reports. The suit was filed in the U.S. District Court for the Western District of Oklahoma on April 20, 2005. It seeks a court order forcing Continental Carbon to halt polluting the land and air where the White Eagle community lives. Also, it demands that the company clean up polluted properties and seeks damages for the Ponca Tribe and its people (Class Action Reporter, May 3, 2007). The complaint alleges trespass, private nuisance, public nuisance, failure to warn, personal injuries, negligence, medical monitoring, unjust enrichment and punitive damages. The defendants named in the suit are Continental Carbon Co., China Synthetic Rubber Corp. and its domestic corporation, CSRC USA and Taiwan Cement Corp. The parent company is a publicly traded corporation in Taiwan, which owns the Ponca City carbon black facility, while CSRC is the fourth-largest producer of carbon black in the world. Carbon black, which contains constituent polynuclear aromatic hydrocarbons, or PAHs, a known carcinogen to humans, is a reinforcement product in automobile tires and hoses and used as a colorant in printing inks and resins. It is also used as conductivity-imparting filler. On Feb. 6, 2009 the parties reached an agreement to settle the case, according to Native American Times. The court will hold a hearing in this case on July 28, 2009 at the United States Federal Courthouse in Oklahoma City, Oklahoma at 200 NW 4th Street, Courtroom 501 (Fifth Floor) to consider whether to approve the settlement and a request by the lawyers representing all plaintiffs for attorneys fees of 40% of the settlement fund, plus expenses of approximately $1,800,000. For more details, contact: Class Administrator 1723 South Boston Avenue Tulsa, Oklahoma 74119 Phone: (918) 398-0762 Jason Bjorn Aamodt, Esq. (Jason@aamodt.biz) Aamodt Law Firm 1723 S Boston Ave Floor 2 Tulsa, OK 74119 Phone: 918-347-6169 Fax: 918-398-0514 - and - Richard Casey Cooper, Esq. (casey@cnwlegal.com) Cooper Newsome & Woosley PLLP 401 S Boston Ave Suite 3300 Tulsa, OK 74103 Phone: 918-592-3300 Fax: 918-592-7816 COSTCO WHOLESALE: Calif. Suit Over Denied Overtime Pay Pending -------------------------------------------------------------- Costco Wholesale Corp. continues to face a purported overtime class-action lawsuit that was filed in the U.S. District Court for the Central District of California. The putative class-action suit was filed on Dec. 26, 2007, against the company principally alleging denial of overtime. It alleges misclassification of certain California managers. The suit was filed in the Superior Court for the County of Los Angeles under the caption, "Jesse Drenckhahn v. Costco Wholesale Corp., Case No. BC-382911." Claims in the suit are made under various provisions of the California Labor Code and the California Business and Professions Code. The plaintiffs seek restitution/disgorgement, compensatory damages, various statutory penalties, punitive damages, interest, and attorneys' fees. The suit was later removed to the U.S. District Court for the Central District of California, under the caption "Jesse Drenckhahn v. Costco Wholesale Corporation et al., Case No. 2:08-cv-01408-FMC-JWJ." On March 6, 2008, Costco filed a motion to dismiss. On May 15, 2008, the court partially granted the motion, dismissing the Labor Code 226 claims and refusing to expand the statute of limitations for the remaining claims. An answer was filed on May 27, 2008. No further developments on the matter were disclosed in the company's June 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 10, 2009. The suit is "Jesse Drenckhahn v. Costco Wholesale Corporation et al., Case No. 2:08-cv-01408-FMC-JWJ," filed in the U.S. District Court for the Central District of California, Judge Florence- Marie Cooper, presiding. Representing the plaintiffs is: D. Alan Harris, Esq. (aharris@harrisandruble.com) Harris and Ruble 5455 Wilshire Blvd., Suite 1800 Los Angeles, CA 90036 Phone: 323-931-3777 Fax: 323-931-3366 Representing the defendants is: David D. Kadue, Esq. (dkadue@seyfarth.com) Seyfarth Shaw 2029 Century Park East Suite 3300 Los Angeles, CA 90067-3063 Phone: 310-277-7200 Fax: 310-201-5219 COSTCO WHOLESALE: Continues to Defend Lawsuit Over Waffles Sales ---------------------------------------------------------------- Costco Wholesale Corp. continues to defend a purported nationwide class action relating to sales of certain waffles. The company has been named as a defendant in the class-action suit, which alleges that labeling (provided by the company's supplier) of these items was deceptive and misleading. The suit is styled, "Hodes, et al., v. Van's International Foods, et al., United States District Court for the Central District of California, Case No. CV 09-01530." The complaint asserts causes of action for fraud, breach of warranty, false advertising under California Business and Professions Code sections 17500 et seq., and unfair business practices under California Business and Professions Code sections 17200 et seq. Relief sought includes compensatory, consequential, and punitive damages, restitution, prejudgment interest, costs, and attorneys' fees. Motions to dismiss the complaint have been filed, according to the company's June 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 10, 2009. Costco Wholesale Corp. -- http://www.costco.com/-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. COSTCO WHOLESALE: Faces "Pytelewski" Lawsuit in San Diego County ---------------------------------------------------------------- A purported class-action suit captioned, "Mary Pytelewski v. Costco Wholesale Corp., Superior Court for the County of San Diego, Case No. 37-2009-00089654," is pending. According to the company's June 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 10, 2009, the action, which is similar to the suit captioned "Anthony Castaneda v. Costco Wholesale Corp., Superior Court for the County of Los Angeles, Case No. BC-399302," was filed on May 15, 2009. The lawsuit was filed on behalf of present and former hourly employees in California, claiming denial of wages and false imprisonment during post-closing procedures, when security measures allegedly cause employees to be locked in the warehouses. Costco Wholesale Corp. -- http://www.costco.com/-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. COSTCO WHOLESALE: Seeks Dismissal of "Verzani" Suit in New York --------------------------------------------------------------- Costco Wholesale Corp. seeks to dismiss the purported nationwide class action captioned "Verzani v. Costco Wholesale Corp., No. 09 CV 2117," according to the company's June 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 10, 2009. In the purported nationwide class-action suit filed in the U.S. District Court for the Southern District of New York, the plaintiff alleges claims for breach of contract and violation of the Washington Consumer Protection Act, based on the failure of the company to disclose on the label of its "Shrimp Tray with Cocktail Sauce" the weight of the shrimp in the item as distinct from the accompanying cocktail sauce, lettuce, and lemon wedges. The complaint seeks various forms of damages (including compensatory and treble damages and disgorgement and restitution), injunctive and declaratory relief, attorneys' fees, costs, and prejudgment interest. On April 21, 2009, the plaintiff filed a motion for a preliminary injunction, seeking to prevent the company from selling the shrimp tray unless the company separately discloses the weight of the shrimp and provides shrimp consistent with the disclosed weight. On June 5, 2009, the company filed its opposition to the motion, as well as a motion to dismiss the complaint. Costco Wholesale Corp. -- http://www.costco.com/-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. COSTCO WHOLESALE: Suit Over Uncompensated Working Time Pending -------------------------------------------------------------- Costco Wholesale Corp. continues to face a purported class- action lawsuit in California over uncompensated working time, according to the company's June 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 10, 2009. A case purportedly brought as a class-action lawsuit on behalf of present and former hourly employees in California, in which the plaintiff principally alleges that the company's routine closing procedures and security checks cause employees to incur delays that qualify as uncompensated working time and that effectively deny them statutorily guaranteed meal periods and rest breaks. The complaint was filed on Oct. 2, 2008 in the Superior Court for the County of Los Angeles, under the caption, "Anthony Castaneda v. Costco Wholesale Corp., Case No. BC-399302." Claims in the lawsuit are made under various provisions of the California Labor Code and the California Business and Professions Code. The plaintiffs seek restitution/disgorgement, compensatory damages, various statutory penalties, punitive damages, interest, and attorneys' fees. Costco Wholesale Corp. -- http://www.costco.com/-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. FLOWSERVE CORP: Fifth Circuit Revives Tex. Securities Fraud Suit ---------------------------------------------------------------- A panel from the U.S. Court of Appeals for the Fifth Circuit revived a proposed securities fraud class-action lawsuit against Flowserve Corp., Nate Raymond of Am Law Litigation Daily reports. The Alaska Electrical Pension Fund, represented by Coughlin Stoia Geller Rudman & Robbins, filed a securities fraud class- action suit against the company in 2003, later amending the complaint to add Bank of America, Credit Suisse First Boston, and PricewaterhouseCoopers as defendants, according to Am Law Litigation Daily. Previously, it was reported that the action was filed in the U.S. District Court for the Northern District of Texas on behalf of all purchasers of Flowserve securities between Oct. 23, 2001 and Sept. 27, 2002 (Class Action Reporter, Sept. 27, 2007). The complaint specifically alleges that defendants, among other things: (a) misrepresented that the Company's aftermarket sales (the Company's "quick turnaround" business) were steady, stable and consistent streams of revenue; (b) misrepresented that the Company's growth made it less dependent upon the chemical and industrial segments, which had historically been very sensitive to economic downturn; (c) failed to disclose that the Company had instructed one or more of its plants to stop building inventory as a result of the projected (albeit undisclosed) continuing decline in sales; and (d) without any reasonable basis, projected full year 2002 earnings at ranges that were unattainable due to the declines the Company was experiencing in critical business segments. On Sept. 27, 2002, the Company warned of a 21% earnings shortfall for the quarter ending September 30, 2002, and cut its full year 2002 earnings guidance by over 60%, to $1.45 per share, from the $2.30 per share earnings guidance shared with investors during road show presentations promoting Flowserve's public offerings less than six months earlier. Market reaction to the Company's announcement was swift and severe. Flowserve shares fell over 38% to close at $8.70 on Sept. 27, 2002, a decline of more than 75% from the Class Period high of $34.90 reached on May 2, 2002. During the Class Period, Flowserve completed two public offerings of its common stock, raising more than $430 million, and Flowserve insiders sold their Flowserve common stock for substantial profit. Am Law Litigation Daily reported that after surviving a motion to dismiss, Alaska Electrical sought class certification in 2006. A year later, the district court denied certification and granted defendants' motion for summary judgment. The district court concluded that plaintiffs hadn't sufficiently established loss causation to certify a class, and then granted summary judgment on those grounds. However, on June 19, 2009, the Fifth Circuit panel reversed the lower court. According to a per curiam Fifth Circuit opinion written by retired justice Sandra Day O'Connor, the district court's finding on loss causation with regard to class certification was not dispositive on the merits of the plaintiffs' loss causation case and thus should not have resulted in a summary judgment ruling, reports Am Law Litigation Daily. A copy of the opinion is available free of charge at: http://ResearchArchives.com/t/s?3e1d GENESCO INC: Suit Over Customer E-mail Addresses Still Pending -------------------------------------------------------------- A purported class-action lawsuit against Genesco, Inc., alleging violations of the Song-Beverly Credit Card Act of 1971, California Civil Code Section 1747.08, related to requests that customers in the company's California retail stores voluntarily provide the company with their e-mail addresses, remains pending. The suit was filed before the Superior Court of California, San Diego County on April 8, 2008. The company has filed an answer to the complaint consisting of a general denial of its allegations and asserting a number of affirmative defenses and is presently unable to predict whether or to what extent it may have liability in the case. On Oct. 13, 2008, the court certified the action as a class- action suit and preliminarily approved a settlement agreement pursuant to which the company has issued to each plaintiff class member a discount coupon good for 25% off up to a $200 purchase from a Johnston & Murphy store in a single transaction, exchangeable at the class member's option for a $25 gift card. The company also agreed to pay attorney's fees and costs and additional consideration to the named plaintiff totaling approximately $200,000. No further developments in the case were reported in the company's June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. Genesco, Inc. -- http://www.genesco.com/-- is a retailer of branded footwear, licensed and branded headwear, and a wholesaler of branded footwear. GENESCO INC: To Conduct Discovery in "Jacobs" Labor Litigation -------------------------------------------------------------- Genesco, Inc. is preparing to conduct oral and written discovery in a putative class-action suit styled, "Jacobs v. Genesco Inc. et al.," according to its June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. On June 16, 2008, the suit was filed in the Superior Court of the State of California, County of Shasta, a putative class- action suit styled, "Jacobs v. Genesco Inc. et al.," alleging violations of the California Labor Code involving payment of wages, failure to provide mandatory meal and rest breaks, and unfair competition, and seeking back pay, penalties and declaratory and injunctive relief. The company has removed the case to the Federal District Court for the Eastern District of California. On Sept. 3, 2008, the court dismissed certain of the plaintiff's claims, including claims for conversion and punitive damages. The company is preparing to conduct oral and written discovery and to defend itself against the remaining claims in the case. On May 5, 2009, the Company and the plaintiff's counsel reached an agreement in principle to settle the lawsuit on a claims made basis. The minimum payment by the Company pursuant to the agreement, which remains subject to court approval, is $398,000; the maximum is $703,000. Genesco, Inc. -- http://www.genesco.com/-- is a retailer of branded footwear, licensed and branded headwear, and a wholesaler of branded footwear. HEADWATERS INC: Jury Wards $8.7M to Plaintiffs in Adtech Lawsuit ---------------------------------------------------------------- Headwaters, Inc. said a federal jury awarded about $8.7 million in a class action brought by a group who had sued over a purchase agreement involving a synthetic fuel technology, Antonita Madonna Devotta of Reuters reports. The transaction, which took place in 1998, transferred certain patent and royalty rights to Headwaters related to the technology invented by James Davidson, according to Reuters. The class action was brought on behalf of shareholders of unlisted Adtech, Inc., whose operations were once run by Mr. Davidson, Reuters reported. According to Headwaters, it did not expect to record any additional expense in the current quarter as a result of the partial verdict, which was awarded to eight named plaintiffs representing the class. In addition, Headwaters said the jury also reached a verdict on certain liability issues and an advisory verdict on damages of up to $12.7 million on behalf of the remaining class members, reports Reuters. HERLEY INDUSTRIES: Pa. Consolidated Securities Suit in Discovery ---------------------------------------------------------------- The parties in a consolidated securities fraud suit against Herley Industries, Inc., and certain other defendants are in the process of completing fact discovery. In June and July 2006, the company and certain of its officers were named as defendants in and served with several class-action complaints before the U.S. District Court for the Eastern District of Pennsylvania. The lawsuits assert claims under Section 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 thereunder. All defendants in the class-action complaints filed motions to dismiss in April 2007. On July 17, 2007, the Court issued an order denying Herley Industries' and former Herley Chairman Lee N. Blatt's dismissal motions and granted, in part, the other defendants' request. Specifically, the Court dismissed the Section 10(b) claim against the other defendants and denied the motion to dismiss the Section 20(a) claim against them. On July 18, 2007, the Court granted the defendants' motion to stay the actions. On Feb. 8, 2008, the Court issued an order allowing for certain document discovery to commence. On May 9, 2008, the Court lifted the stay. A Scheduling Order has then been entered requiring the parties to complete discovery by January 2009. On July 9, 2008, Plaintiffs filed a Motion for Class Certification. On March 4, 2009, all defendants filed an Opposition to Plaintiffs' Motion for Class Certification. On May 18, 2009 Plaintiffs filed a reply in support of their motion for class certification. Oral argument regarding the Plaintiffs' motion for class certification has not yet been scheduled, according to its June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 3, 2009. The suit is "In re Herley Industries Inc. Securities Litigation, Case No. 2:06-cv-02596-JS," filed in the U.S. District Court for the Eastern District of Pennsylvania, Judge Juan R. Sanchez, presiding. Representing the plaintiffs are: Stanley P. Kops, Esq. (Stankops@aol.com) 102 Bala Avenue Bala Cynwyd, PA 19004 Phone: 610-949-9999 - and - Marc A. Topaz, Esq. Schiffrin & Barroway, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056 Representing the defendants are: Joel L. Frank, Esq. (jfrank@chescolaw.com) Thomas P. Hogan, Jr., Esq. (thogan@chescolaw.com) Lamb McErlane PC 24 East Market Street, P.O. Box 565 West Chester, PA 19381-0565 Phone: 610-430-8000 Fax: 610-692-6210 - and - Timothy D. Katsiff, Esq. (katsiff@blankrome.com) Blank Rome LLP One Logan Square, 18th & Cherry Streets Philadelphia, PA 19103-6998 Phone: 215-569-5500 Fax: 215-569-5555 JO-ANN STORES: To Defend "Blair" Wage and Hour Suit in Calif. ------------------------------------------------------------- Jo-Ann Stores, Inc. intends to defend a purported wage and hour class-action suit in Superior Court of the State of California, County of Los Angeles, according to the company's June 11, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. On July 21, 2008, the class action was filed against the company in Superior Court of the State of California, County of Los Angeles captioned, "Patti Blair et al. v. Jo-Ann Stores, Inc. et al., Case No. BC394795." In the complaint, as amended, six former company employees, individually and on behalf of the purported class members, allege that certain current and former California store team leaders employed by the company since July 21, 2004 were classified improperly as exempt employees (and thus not paid for overtime work), and that current and former hourly employees employed by the company's California stores since July 21, 2004 missed rest and meal breaks for which they were not properly compensated and at times worked off the clock without compensation. The amended complaint alleges other violations of California law arising from the alleged wage and hour violations. The amended complaint seeks substantial monetary damages, injunctive relief and attorney's fees. On May 19, 2009 the court certified this matter to proceed as a class action. Jo-Ann Stores, Inc. -- http://www.joann.com-- is a specialty retailer of fabrics and crafts, serving customers in their pursuit of apparel and craft sewing, crafting, home decorating and other creative endeavors. The company's retail stores (operating as Jo-Ann Fabric and Craft stores and Jo-Ann stores) and Website (www.Joann.com) feature a variety of merchandise used in sewing, crafting and home decorating projects, including fabrics, notions, crafts, frames, paper crafting material, artificial floral, home accents, finished seasonal and home decor merchandise. As of Jan. 31, 2009, the company operated 764 stores in 47 states (554 small-format stores and 210 large- format stores). LULULEMON ATHLETICA: To Defend "Kohlenberg" Lawsuit in Calif. ------------------------------------------------------------- lululemon athletica inc. intends to defend the class-action suit filed by a former hourly company employee in Orange County Superior Court, California, according to its June 10, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 3, 2009. On March 26, 2009, the former employee filed the lawsuit entitled, "Brett Kohlenberg et al v. lululemon athletica inc." The lawsuit alleges that the company violated various California Labor Code sections by failing to pay its employees for certain rest and meal breaks and "off the clock" work, and for penalties related to waiting times and failure to provide itemized wage statements. The plaintiff is seeking an unspecified amount of damages. lululemon athletica inc. -- http://www.lululemon.com/-- is a designer and retailer of technical athletic apparel primarily in North America. Its yoga-inspired apparel is marketed under the lululemon athletica brand name. The company offers a line of apparel and accessories, including fitness pants, shorts, tops and jackets designed for athletic pursuits, such as yoga, dance, running and general fitness. It offers a line of performance apparel and accessories for both women and men. The company's fitness-related accessories include an array of items such as bags, socks, underwear, yoga mats, instructional yoga digital versatile discs, water bottles and headbands. As of Feb. 1, 2009, the company's branded apparel was principally sold through its 113 stores that are primarily located in Canada and the United States. As of Feb. 1, 2009, the company has discontinued its operations in Japan. LULULEMON ATHLETICA: To Defend Suit by Former Hourly Employees -------------------------------------------------------------- lululemon athletica inc. intends to defend a class action lawsuit filed by three of its former hourly employees in San Diego Superior Court, according to the company's June 10, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 3, 2009. On April 2, 2009, the plaintiffs filed the class action lawsuit entitled, "Mia Stephens et al v. lululemon athletica inc." The lawsuit alleges that the company violated various California Labor Code sections by requiring employees to wear lululemon clothing during working hours without reimbursing such employees for the cost of the clothing and by paying certain bonus payments to its employees in the form of lululemon gift cards redeemable only for lululemon merchandise. The complaint also alleges that the company owes waiting time penalties as the result of failing to pay employees all wages due at the time of termination. The plaintiffs are seeking an unspecified amount of damages. lululemon athletica inc. -- http://www.lululemon.com/-- is a designer and retailer of technical athletic apparel primarily in North America. Its yoga-inspired apparel is marketed under the lululemon athletica brand name. The company offers a line of apparel and accessories, including fitness pants, shorts, tops and jackets designed for athletic pursuits, such as yoga, dance, running and general fitness. It offers a line of performance apparel and accessories for both women and men. The company's fitness-related accessories include an array of items such as bags, socks, underwear, yoga mats, instructional yoga digital versatile discs, water bottles and headbands. As of Feb. 1, 2009, the company's branded apparel was principally sold through its 113 stores that are primarily located in Canada and the United States. As of Feb. 1, 2009, the company has discontinued its operations in Japan. MERCK & CO: Addresses Allegations in Australian Vioxx Litigation ---------------------------------------------------------------- Merck & Co., Inc. says that an Australian class-action lawsuit filed against it fails to prove that its anti-arthritis drug Vioxx increased the risk of patients having a heart attack, The Australian reports. In their closing address in the three-month trial, attorneys for the Merck & Co. told the Federal Court that the plaintiff's case fell over on a number of points, including establishing that Vioxx caused cardiovascular problems, according to The Australian. Merck & Co. lawyers also told the judge, Christopher Jessup, he had "fallen into error" after being "seduced" by the plaintiff's argument about the actual risk of the drug shown in various clinical studies, reports The Australian. Previously, The Australian reported that Merck & Co., Inc., and its Australian subsidiary, Merck, Sharp & Dohme, are facing a purported class-action lawsuit in connection with Vioxx (Class Action Reporter, June 1, 2009). The lead plaintiff Graeme Peterson, who filed the suit on behalf of more than 1,000 Australians, blames Vioxx for his heart attack in December 2003. Mr. Peterson says Merck knew of the cardiovascular risks of the blockbuster anti-arthritis drug but played it down in the lead-up to Vioxx's voluntary withdrawal in 2004, according to The Australian report. Kate Hagan of The Age previously reported that the suit, which is pending in the Federal Court of Australia, was brought on behalf of every Australian who had cardiovascular conditions after completing at least one prescription of Vioxx between June 30, 1999, and its worldwide recall in 2004. The Australian reported that in the recent hearing, counsel for Merck & Co., Peter Garling, told the court there were problems with the plaintiff's case, including a lack of scientific proof, a two-month gap in Mr. Peterson's Vioxx prescription and a failure to prove that a cardiovascular warning would have made any difference. "(Mr. Peterson) has not established that his myocardial infarction (heart attack) was caused or materially contributed to by Vioxx," according to Mr. Garling. According to The Australian, Mr. Garling added that Vioxx did not leave a chemical imprint in the body. "If Vioxx caused a heart attack ... there is no discrete signature to say it was caused by Vioxx," he said. The barrister said there was no way to say definitively what was the contributing factor to the 58-year-old man's heart attack in December 2003, because he had a number of risk factors. These included age, gender, hypertension and obesity, reports The Australian. MICHIGAN: Court of Appeals Allows "Duncan" Litigation to Proceed ---------------------------------------------------------------- The Michigan Court of Appeals ruled that a purported class- action lawsuit can go forward challenging how publicly appointed lawyers represent poor people in three counties, The Chicago Tribune reports. The case centers on Genesee, Berrien and Muskegon counties, where poor criminal defendants claim their constitutional rights are being violated. They say a lack of public money and other problems mean getting attorneys who are not qualified or able to effectively represent them, according to The Chicago Tribune. In a 2-1 decision, The Chicago Tribune reported that judges William Murphy and David Sawyer, based in Grand Rapids, said, "We are not ruling that a constitutional failure has in fact occurred here, but it has been alleged and needs to be judicially addressed." The judiciary, they said, can't stand idle if the executive and legislative branches "abdicate their constitutional responsibilities, either intentionally or neglectfully." "If not the courts, then whom," said Judge Murphy, writing for the pair. In a dissent, Judge William Whitbeck said there "is little question" that Michigan has failed to meet its duty when it comes to the rights of criminal defendants who can't afford a lawyer, reports The Chicago Tribune. But broad changes, according to him, should be up to governors and lawmakers, not judges. "This case involves a sweeping and fundamental challenge to Michigan's system," Judge Whitbeck said. The Chicago Tribune reported that the court is reiterating that it was not ruling on the merits of the allegations. "If plaintiffs are to succeed, they must prove widespread and systemic constitutional violations that are actual or imminent," Judge Murphy wrote. The case is being handled by Circuit Judge Laura Baird in Ingham County, the seat of state government. The appeals court upheld her decisions denying immunity to the state and certifying the lawsuit as a class-action case, The Chicago Tribune reports. Case Background Previously, it was reported that the State of Michigan and Governor Jennifer Granholm were named as defendants in a purported class action alleging that they failed to fulfill their constitutional obligation to provide adequate defense services to those who cannot afford private counsel. The suit, "Duncan et al. v. State of Michigan," was filed in Ingham County Circuit Court. It does not ask any monetary damages, but seeks class-action status with the aim of improving indigents' defense system statewide. It claims that the state has long abdicated its constitutional duty to ensure that citizens accused of crimes receive timely, qualified, appropriately-resourced lawyers for their defense. The plaintiffs in the case are individuals facing felony charges in Berrien, Muskegon and Genesee Counties who cannot afford private counsel. They brought the suit on behalf of themselves and all defendants in Berrien, Muskegon, and Genesee Counties, who are charged or will be charged with felony crimes and who cannot afford private counsel, and are instead relying on public defenders. According to the suit, public defenders are burdened by overwhelming caseloads and don't meet with clients or have enough time to prepare for important proceedings. Essentially, the suit calls on the court to declare the current public defense systems of three counties - Muskegon County, Berrien County, and Genesee County - unconstitutional and compel the state to provide representation consistent with national standards and constitutional norms. Backing the plaintiffs in the litigation is the newly formed Michigan Coalition for Justice, a diverse group of organizations and individuals committed to reform of Michigan's public defense system. Michigan Coalition for Justice members include the American Civil Liberties Union, the ACLU of Michigan, the Brennan Center for Justice, the law firm of Cravath, Swaine & Moore, and the National Association of Criminal Defense Lawyers. A copy of the complaint is available free of charge at: http://researcharchives.com/t/s?1a4d For more details, contact: Stephanie Chang, Esq. (schang@aclumich.org) The Michigan Coalition for Justice 60 W. Hancock Detroit, MI 48201 Phone: (313) 578-6808 Web site: http://www.micoalitionforjustice.org/ MICROSOFT CORP: Md. Court Approves $4.4M Antitrust Settlement ------------------------------------------------------------- Judge J. Frederick Motz of the U.S. District Court for the District of Maryland granted preliminary approval of a settlement reached by Microsoft Corp. in an antitrust class- action lawsuit, Law360 reports. On June 19, 2009, Judge J. Frederick Motz of the U.S. District Court for the District of Maryland issued an order granting preliminary approval to the settlement, which will see the software giant give government entities in Arizona $4.4 million to purchase new computer equipment, according to the Law360 report. MONRO MUFFLER: Settlement of Employees' Suit Approved in March -------------------------------------------------------------- A settlement of the class-action lawsuit against Monro Muffler Brake, Inc. concerning employees' overtime pay received final court approval in March 2009. The company was the defendant in a lawsuit filed in December 2007, in the Supreme Court of the State of New York, that claimed that the company violated federal and state laws related to the calculation and payment of overtime to certain headquarters employees. In May 2008, subject to Court approval, the company and the plaintiffs agreed upon the financial terms of a settlement of all claims in the lawsuit. In doing so, the company did not admit any wrongdoing with respect to the matters involved in the lawsuit. The company obtained final court approval of the Settlement in March 2009. The company recorded a reserve for the Settlement, including an estimate of all costs to bring the matter to a close, in the amount of $.9 million in fiscal 2008. This amount was reduced by approximately $.1 million in fiscal 2009 due to lower than anticipated costs to resolve the matter, according to the company's June 11, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended March 28, 2009. Monro Muffler Brake, Inc. -- http://www.monro.com/-- is a chain of 698 company-operated stores and 14 dealer-operated stores providing automotive under-car repair and tire services in the U.S. NASA: Ninth Circuit Upholds Injunction in JPL Workers' Lawsuit -------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit upheld a 2008 injunction in connection to legal fight by scientists and engineers at the Jet Propulsion Laboratory against a Bush-era directive to submit to more intrusive background checks, Mary O'Keefe of Glendale News Press reports. The class-action lawsuit against Homeland Security Directive 12, issued under the Bush administration in 2004, was filed on Aug. 30, 2007 in the U.S. District Court for the Central District of California by several JPL employees under the caption, "Robert M. Nelson et al v. National Aeronautical and Space Agency et al., Case No. 2:2007-cv-05669." Listed as plaintiffs in the matter are: Robert M. Nelson, William Bruce Banerdt, Julia Bell, Josette Bellan, Dennis V. Byrnes, George Carlisle, Kent Robert Crossin, Larry R. D'Addario, Riley M. Duren, Peter R. Eisenhardt, Susan D.J. Foster, Matthew P. Golombek, Varoujan Gorjian, Zareh Gorjian, Robert J. Haw, James Kulleck, Sharon L. Laubach, Christian A. Lindensmith, Amanda Mainzer, Scott Maxwell, Timothy P. McElrath, Susan Paradise, Konstantin Penanen, Celeste M. Satter, Peter M.B. Shames, Amy Snyder Hale, William John Walker and Paul R Weissman. Named as defendants were, the National Aeronautical and Space Agency, Michael Griffin, Department of Commerce, Carlos M. Gutierrez, California Institute of Technology and several DOES. The lawsuit was filed after the employees were told they would have to submit to an extensive background check that could include interviews with friends, neighbors and co-workers or anyone the agency deemed important. The checks could also include questions regarding an individual's health history and sexual orientation, according to Glendale News Press. According to the plaintiffs, under the directive they would have to submit to the extensive background checks, which would be above and beyond the initial checks they had to pass before getting hired. They are claiming that the intrusion violated their right to privacy, Glendale News Press reported. The appellate decision upheld an earlier ruling that scientists "face a stark choice - either violation of their constitutional rights or loss of their jobs," reports Glendale News Press. The federal government now has 60 days from the June 4, 2009 ruling to appeal to the U.S. Supreme Court, according to Glendale News Press. For more details, contact: Dan Stormer, Esq. (dstormer@hadsellstormer.com) Christy Virginia Keeny, Esq. (vkeeny@hskrr.com) Hadsell Stormer Kenny Richardson and Renick LLP 128 N. Fair Oaks Ave., Suite 204, Pasadena, CA 91103 Phone: 626-585-9600 Fax: 626-577-7079 PENNSYLVANIA: DPW Faces Suit Over Policy for Mentally Retarded -------------------------------------------------------------- A class action lawsuit has been filed in the United States District Court against the Pennsylvania Department of Public Welfare (DPW) for violating the rights of over 1,200 Pennsylvanians with mental retardation and intellectual disabilities. The suit, "Benjamin v. Department of Public Welfare," seeks relief for the residents of five large state- operated institutions who have not been offered the opportunity to move to appropriate community living arrangements. Research shows that people with mental retardation can, with proper supports and services, improve independent living skills and thrive in community settings. For individuals who are capable of participating in community life, segregating them in institutions deprives them of their basic human rights. Pennsylvania has no sound reason not to develop community alternatives for the named plaintiffs and class members, and it would be far less costly to provide these individuals with services in the community. The average annual cost of providing services in state-operated intermediate care facilities for persons with mental retardation is nearly $228,000 per person, more than double the average per capita cost of providing community services (including residential services). People with mental retardation have the same right as every other Pennsylvanian to live in a comforting home environment and be part of the community. "My 71 year-old sister, Deanna, lived in an institution for 12 years. And while we, as her family, became comfortable knowing she was safe and secure, we also realized that she was not the same person we once knew," says Betty Dugan, Board President, PIER Family Satisfaction Team. "Making the change to a community-based home in 1990 has given her a chance to grow and be happy. She is so well cared for - both medically and emotionally. And I was pleasantly surprised by the level of acceptance, compassion and understanding she received in the community. Now, she is happy as a lark!" Ten years ago today, the United States Supreme Court interpreted the Americans with Disabilities Act integration mandate to mean that states cannot unnecessarily segregate individuals with disabilities in institutions if they can receive services in more integrated community settings. The Third Circuit Court of Appeals in Philadelphia then ruled in 2004 that the Pennsylvania Department of Public Welfare had an obligation under the Americans with Disabilities Act and the Rehabilitation Act to develop and implement integration plans for individuals with disabilities. "Ten years after the Supreme Court decision, DPW has still not developed - much less implemented - an integration plan for people with mental retardation who are unnecessarily institutionalized in state facilities," says Robert Meek, attorney at Disability Rights Network of Pennsylvania who is representing the plaintiffs. "Persons with intellectual disabilities who are institutionalized in state facilities deserve the opportunity to be part of the community." Disability Rights Network of Pennsylvania seeks injunctive relief in the Benjamin case to assure that all residents of Pennsylvania's state mental retardation institutions are properly evaluated to assess their need for community services and, if they are not opposed to discharged, are offered community alternatives in accordance with the integration mandates of federal law. Complaint available at http://www.drnpa.org/File/bencomplaint.pdf. For more details, contact: Disability Rights Network of Pennsylvania Phone: 1-800-692-7443 (Voice)/1-877-375-7139 (TDD) Web site: http://www.drnpa.org PEROT FAMILY: Partnership Files Tex. Suit Over Investment Losses ---------------------------------------------------------------- After losing 100% of its investment, Southern Avenue Partners, a Dallas-based investment partnership, filed a class action lawsuit against the Perot Family Trust and other business entities owned and controlled by the family of Dallas billionaire, H. Ross Perot, on behalf of a group of investors in Parkcentral Global Hub, a hedge fund that was allegedly managed and controlled by the Perot Family Trust and other-related entities. The lawsuit was filed in the United States District Court for the Northern District of Texas, Dallas Division, and alleges that the investors lost $2.5 billion as the result of the defendants' breach of fiduciary duties and cover-ups. The Parkcentral Global Hub lawsuit alleges that the defendants used the Perot-controlled, Plano, Texas-based Parkcentral Capital Management to market a hedge fund that enticed other investors with a "once in a lifetime chance to have access to the same money management team used by the Perot Family." By January of 2008, the fund claimed more than $2.5 billion in assets. According to the Complaint, "Defendants misrepresented to investors that they would follow the Global Fund's risk controls, and otherwise, prudently manage the fund's assets. Defendants intentionally and/or recklessly disregarded the Global Fund's risk controls, breached their fiduciary duties, and misrepresented the risk, liquidity, losses and leverage of the fund to investors. Defendants' misrepresentations were deliberate and by design with the sole purpose being to attract new investment capital and collect substantial management and incentive fees. As a result of Defendants' breach of fiduciary duty, the Global Fund imploded. The fund's net asset value went from over 2.5 billion to less than zero. Plaintiff and the other members of the proposed Class lost 100% of their invested capital." A Dallas Morning News article chronicled the last frantic days of the Fund where employees instructed their bank -- "No securities, or cash, FOR ANY REASON are allowed to be sent out from JP Morgan." JP Morgan had a margin call in excess of $700M for losses incurred by Perot's Global Hub Fund which preceded the fund's demise. The lawsuit alleges that if the defendants had not breached their fiduciary duty, prudently invested, accurately reported the risk, and had adequate liquid reserves, then the investors would not have lost 100 % of their investment. After the case was filed, the Court entered an order appointing securities and investment fraud attorneys Joel Fineberg and Dean Gresham, of Fineberg Gresham, and James Jaconette, of Coughlin Stoia, as co-lead class counsel. They will be responsible for prosecuting the case on behalf of the class of investors. Co-lead class counsel is expected to take discovery and file more pleadings as the case progresses toward the class certification hearing. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?3e1a For more details, contact: Fineberg Gresham 3811 Turtle Creek Blvd., Suite 1900 Dallas, Texas 75219 Phone: 214-219-8828 Fax: 214-219-8838 Web site: http://www.fineberglaw.com/ - and - Coughlin Stoia Geller Rudman & Robbins LLP Attorneys at Law San Diego, CA Phone: 1-800-449-4900 Web site: http://www.csgrr.com/ SIMON & SCHUSTER: Ninth Circuit Reinstates $90M Text Spam Suit -------------------------------------------------------------- In an unprecedented ruling, the Court of Appeals for the Ninth Circuit announced that publishing giant Simon & Schuster could be on the hook for as much as $90 million for sending unwanted text messages to tens of thousands of people. The unanimous decision, which was announced on Friday, held that text messages were under the purview of the federal Telephone Consumer Protection Act, which makes it unlawful to make automated calls to cellular telephones. The court based its ruling on a prior interpretation by the Federal Communications Commission: "The FCC has explicitly stated that the TCPA's prohibition...'encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls,'" the opinion explained, "[W]e find that the FCC's interpretation of the TCPA is reasonable, and therefore afford it deference to hold that a text message is a "call" within the TCPA." The case was brought by Laci Statterfield, whose young son received a text in the middle of the night warning him that the "next call you take may be your last." It turned out the text message was a promotion for the Stephen King horror book "The Cell." The district court initially dismissed the case, finding that the TCPA did not apply to these text messages and further that Satterfield had consented to receive text messages by downloading a free ringtone from an unrelated website. The appellate court rejected both arguments. The suit is brought on behalf of a putative class of 60,000 people, each of whom could receive a minimum of $500 and as much as $1,500 each if it is determined that the violation was intentional. Satterfield is represented by John G. Jacobs of The Jacobs Law Firm, who argued the appeal, as well as his partner Bryan Kolton and Jay Edelson and Myles McGuire of KamberEdelson, LLC (http://www.kamberedelson.com/Edelson.html). UNITED PARCEL: Calif. Court Certifies Class in "Mortgage LLC" ------------------------------------------------------------- The California Superior Court certified a nationwide fraud class action (Morgate LLC v. Mail Boxes Etc., Inc., Case No. 294647) against United Parcel Service, Inc. (UPS) and its affiliates on June 19, 2009. The class action consists of owners of The UPS Store who converted from Mail Boxes Etc. stores to The UPS Store in 2003. Judge William F. Highberger certified the class action late Friday afternoon allowing 3500 owners of The UPS Store to present their claims that UPS and its affiliated companies violated California law, including the California Franchise Investment Law that protects franchisees from deception. Legal actions have been filed by The UPS Store owners who alleged they were misled to convert from Mail Boxes Etc. stores to The UPS Stores. Other legal actions have been filed by Mail Boxes Etc. store owners who allege they were subjected to breaches of contract and other violations of California law. Both sets of claims are pending before Judge William F. Highberger. For more details, contact: Amy Darby, Esq. or Miles Scully, Esq. Mobile: (720)346-3587 or (619) 248-2691 - and - Mara Woloshin Phone: 503-310-4504 or 323-654-5692. VONAGE HOLDINGS: Settles Shareholder Litigation Over 2006 IPO ------------------------------------------------------------- Vonage Holdings Corp. agreed to settle a shareholder class- action lawsuit that alleged the company bungled its initial public offering (IPO) in 2006, The Associated Press reports. The Holmdel, N.J., company announced the agreement on June 28, 2009, saying the settlement amount would be covered by its directors and officers insurance policy. The 2006 IPO was a disaster for investors. They bought the shares for $17 each, then saw the value fall 13 percent when they opened for trading on May 24. They were trading at 45.5 cents on Thursday morning, up 4.5 cents, reports The Associated Press. The Associated Press reported that the law firm Motley Rice LLC filed suit on behalf of shareholders a week after the IPO, alleging that Vonage erred when it reserved 13.5 percent of the IPO shares for customers of phone service. These were not serious investors, the suit alleged, and the failure of some of them to pay for the shares exacerbated the decline in share value. The settlement is subject to court approval, according to The Associated Press. For more details, contact: Motley Rice LLC 28 Bridgeside Boulevard, Mt. Pleasant, SC Phone: +1 800.768.4026 Web site: http://www.motleyrice.com/ WHITEHAVEN SETTLEMENT: Faces Lawsuit Over Loans, Payment Scheme --------------------------------------------------------------- Whitehaven Settlement Funding is facing a purported class-action lawsuit filed by a Madison County woman who alleges that the company illegally loaned money to people and expected them to repay it with money they won in injury claims, Kelly Holleran of The St. Clair Record reports. The suit was filed on June 12, 2009 in Madison County Circuit Court (case number: 09-L-628) by Sheila Kelly who says she entered into a purported contract with Whitehaven Settlement Funding in 2008 for a loan of $25,000. According to the complaint, Ms. Kelly -- represented by Thomas G. Maag, Esq., and Peter J. Maag, Esq. of Wendler Law in Edwardsville -- was required to pay the $25,000 back out of the proceeds she received in a personal injury lawsuit, reports The St. Clair Record. "It is a violation of the public policy and law of Illinois to allow assignment of causes of action resulting from personal injury claims, such as Kelly's case," the complaint says. The suit states that Whitehaven Settlement Funding tried to circumvent the law by inserting a choice of law provision into its contract, purporting to require the imposition of New York law over a contract entered into in Illinois, The St. Clair Record reported. "To further the wrongful scheme, Defendant inserted a provision into the contract, which is and was a contract of adhesion, which purported to require arbitration, in New York, before a New York attorney, knowing that Plaintiff, and members of the Plaintiff class, are uniformly impoverished, desperate, badly injured and unable to travel substantial distances, and unable to afford the costs and expenses of arbitration in New York, such that Plaintiff, and the members of the Plaintiff class in Illinois would be economically and physically prohibited from ever vindicating their rights," the suit states. In addition, Ms. Kelly claims in her suit that Whitehaven Settlement Funding attempts to scare people who enter into contracts with it from ever vindicating their rights by requiring an obligation to pay enormous costs and expenses if an arbitrator rules against them, according to The St. Clair Record. Aside from the $25,000, Ms. Kelly says Whitehaven Settlement Funding is asking her for 60 percent simple interest, plus additional sums of money. She contends she should not have to pay the money because the contract is void. According to the complaint, a copy of which was obtained by The St. Clair Record, "Defendant Whitehaven's actions are immoral, unethical, oppressive and/or unscrupulous, as it purports to provide for the assignment and transfer of some or all of a personal injury action, and Defendant Whitehaven's actions have caused substantial injury to consumers, including Plaintiff thereby." The lawsuit is divided into two classes. The first class is composed of Illinois residents who suffered an injury and have a pending case of which money won from that case would go toward Whitehaven Settlement Funding, who says the resident owes them for a past loan. The second class consists of Illinois residents who suffered an injury and who have recovered money from a claim. Whitehaven Settlement Funding says it is now due money from the claim after loans it gave to the second class. In the two-count suit, Ms. Kelly is asking the court to certify the class. She is also asking the court to declare that class members do not owe Whitehaven any money; to disgorge any amounts actually paid by class members; to declare the contract void and to prohibit Whitehaven from enforcing, collecting or attempting to collect any money on the basis of the contract, The St. Clair Record reports. The St. Clair Record reported that Ms. Kelly is also seeking actual and treble damages of more than $50,000 and an award of all damages as allowed by law in excess of $50,000, plus attorney's fees, costs and other relief the court deems appropriate. ZEON CHEMICALS: Ky. Judge Gives Residents Time to Consider Deal --------------------------------------------------------------- Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky gave thousands of people who live in western Louisville an extra month to decide whether to be a part of a class-action settlement involving a chemical plant, The Associated Press reports. During a hearing on June 19, 2009. Judge Heyburn said people who live near the Zeon Chemicals Limited Partnership plant will have until July 20 to opt out of the lawsuit that was filed in 2007, according to AP. The Courier-Journal says the lawsuit claims the plant's emissions and odors had denied the residents "full use and enjoyment of their properties." The Associated Press reported that Zeon has agreed to reduce emissions, pay into an air-monitoring fund and provide small cash awards to the residents. But some of the plaintiffs oppose the settlement because it releases the company from certain past and future liabilities. New Securities Fraud Cases OPPENHEIMER AMT-FREE: Emerson Poynter Files Securities Lawsuit -------------------------------------------------------------- Emerson Poynter LLP, a national law firm with offices in Little Rock, Arkansas and Houston, Texas, announces that it has filed a class action lawsuit on behalf of all persons who purchased Class A and/or Class B and/or Class C shares of the Oppenheimer AMT-Free Municipals Fund (Nasdaq:OPTAX) (Nasdaq:OTFBX) (Nasdaq:OMFCX) during the period from May 13, 2006 to October 21, 2008, inclusive. This action was filed in the United States District Court for the District of Colorado (09-CV-01447). In the complaint, the plaintiff alleges that OppenheimerFunds, Inc., OppenheimerFunds Distributor, Inc., the Fund and certain of its trustees and officers violated Sections 11, 12 (a)(2), and 15 of the Securities Act of 1933, which prohibit materially false and misleading statements in registration statements and prospectuses of the kind used to sell shares in the Fund. The Fund invests primarily in municipal securities. Additionally, the complaint alleges that during the Class Period the Fund failed to disclose risk factors associated with the Fund's investments, including, but not limited to: (1) the Fund's investments in "inverse floater" securities that exposed it to the risk that it would be forced to sell, upon certain occurrences relating to the inverse floater securities, other securities in its portfolio at fire-sale prices. This amounted to hundreds of millions of dollars in undisclosed potential liabilities; and (2) the Fund's over concentration of investments in illiquid securities in violation of its 15% cap by investing in illiquid tobacco bonds and ordinary municipal bond and notes that could turn illiquid quickly. On October 21, 2008, the Fund filed a prospectus supplement alerting investors of the true liquidity risks of its investments -- the same risks that existed in 2006, 2007 and throughout 2008. By October 2008, however, those risks had already manifested, causing substantial losses to investors. On October 21, 2008, the Fund's shares traded at approximately $5.96 per share, down from $8.93 per share at the beginning of the year, an approximate decline of 33.3% per share for the year. The Fund was among the worst performing in its peer group. According to the complaint, after the end of the Class Period, the Fund belatedly disclosed liabilities and residual exposure from the inverse floaters, about which investors were not previously told. On December 18, 2008, the Fund reported in its Quarterly Schedule of Portfolio Holdings for the period ending October 31, 2008, filed on Form N-Q with the SEC ("October 31, 2008 Form N-Q"), that the amount of its exposure to the effects of leverage from its investments in inverse floaters exceeded $240.7 million as of October 31, 2008. Additionally, the Fund also reported that its municipal bond holdings with a value of approximately $402.4 million were held by Trusts created by the inverse floaters and served as collateral for approximately $324.1 million in short-term floating rate notes issued and outstanding at that date, and that its residual exposure to the inverse floating rate securities was estimated at nearly $218.7 million. The massive liabilities and exposure of more than $500 million were not disclosed in any Registration Statements issued during the Class Period. A request for lead plaintiff status must satisfy certain criteria and be made on or before July 13, 2009. For more information, contact: John G. Emerson, Esq Scott E. Poynter, Esq Emerson Poynter LLP 500 President Clinton Ave, Suite 305 Little Rock, AR 72201 Phone: 501.907.2555 or 800.663.9817 Fax: 501.907.2556 e-mail: epllp@emersonpoynter.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, 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. 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 * * *