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C L A S S A C T I O N R E P O R T E R
Thursday, June 25, 2009, Vol. 11, No. 124
Headlines
ALLIANCE HEALTHCARD: Remanded Physicians' Suit v. Unit Pending
BARNES & NOBLE: "Hostetter" Certification Motion Due on Aug. 17
BARNES & NOBLE: Unit Faces "Minor" Complaint Over Wage Payments
CENTRAL JERSEY: Levi & Korsinsky Files Suit Over OceanFirst Deal
CITY OF TULSA: Faces Property Owners' Suit Over Assessment Fee
DAVE & BUSTER'S: Calif. Settlement Gets Final Approval in May
FERRELLGAS PARTNERS: Blue Rhino Defends Consumer Suit in Calif.
FERRELLGAS PARTNERS: Faces Consumer Fraud Litigation in Kansas
FERRELLGAS PARTNERS: Faces Suit on Blue Rhino Price Disclosures
FOOT LOCKER: Units Face Suits Over Wage and Hour Laws Violations
GOOGLE INC: Judge Pushes Book Settlement Hearing Date to October
HOLLAND & KNIGHT: Seeks Dismissal of "Sullivan" Lawsuit in Fla.
HUMANA INC: Ky. Judge Nixes Consolidated Securities Fraud Suit
MAJESCO ENTERTAINMENT: Securities Suit Deal Approved, Case Nixed
MERCK & CO: Claimants Deliver Closing Arguments in Vioxx Lawsuit
MGIC INVESTMENTS: Faces Consolidated Stockholder Suit in Wis.
MICROSOFT CORP: Md. Court Approves $4,415,258 Antitrust Deal
NEW MEXICO: Faces Civil Rights Lawsuit Over Cockfighting Ban
OKLAHOMA: Tenth Circuit Allows Appeal v. Foster Care Suit Ruling
OPNEXT INC: In Talks to Settle Consolidated N.J. Securities Suit
OPPENHEIMER AMT-FREE: Law Firm Announces Lead Plaintiff Deadline
PENNSYLVANIA: Sued Over Institutionalization of Disabled People
QUEBEC: Loto-Quebec Defends Lawsuit by Compulsive Poker Players
QUEBEC: Status Indians' Suit Over Fuel Tax Payment Not Yet Filed
ROSS STORES: Still Defends Lawsuits Over Wage and Hour Claims
SAFEWAY INC: Faces California Litigation Over Discount Coupons
SIMMONS CO: Wrongful Dismissal Suit Settlement Pending Approval
SIOUXLAND UROLOGY: Seeks Dismissal of S.D. Personal Injury Suit
VCG HOLDING: Trial in "Zajkowski" Litigation Set for July 2009
VISION AIRLINES: Nev. Court Refuses to Dismiss Hazard Pay Suit
New Securities Fraud Cases
OPPENHEIMER AMT-FREE: Brower Piven Announces N.Y. Lawsuit Filing
OPPENHEIMER PENNSYLVANIA: Shuman Law Firm Announces Suit Filing
*********
ALLIANCE HEALTHCARD: Remanded Physicians' Suit v. Unit Pending
--------------------------------------------------------------
A remanded class-action suit against Alliance Healthcard, Inc.'s
subsidiary, The Capella Group, Inc., on behalf of all similarly-
situated physicians nationwide remains pending in the U.S.
District Court for the Southern District of Georgia, Augusta
Division.
The lawsuit is entitled "William Andrew Rivell, M.D. and Alan B.
Whitehouse, M.D., individually and on behalf of all persons
similarly situated, v. Private Health Care Systems and The
Capella Group, Inc.; Civil Action File No: CV106-176."
The plaintiffs in this case allege that the contracts entered
into by medical providers with Capella through its relationship
with the Private Health Care Systems network of providers
("PHCS") did not allow for the use of the providers' names to
market a discount medical plan whereby payment for services is
made at the point of service by the consumer, and not by a third
party payor such as an insurance company.
The Plaintiffs are seeking certification of this case as a class
action on behalf of all similarly-situated physicians
nationwide.
The case was originally instituted on Nov. 17, 2006, but was
thereafter dismissed by the District Court. The U.S. Court of
Appeals for the Eleventh Circuit vacated such dismissal and
remanded the case to the District Court on March 24, 2008, in
which court it remains pending, according to the company's Form
8-K/A Filing with the U.S. Securities and Exchange Commission
dated June 16, 2009.
Alliance Healthcard, Inc. -- http://www.alliancehealthcard.com/
-- is a provider of discount medical plans with a focus on
creating, marketing, and distributing membership savings
programs. It offers savings in approximately 16 areas of health
care, including physician visits, hospital stays, chiropractics,
vision, dental, pharmacy, hearing, and patient advocacy, among
others. In April 2009, Alliance HealthCard, Inc. completed the
acquisition of Access Plans USA, Inc.
BARNES & NOBLE: "Hostetter" Certification Motion Due on Aug. 17
---------------------------------------------------------------
The plaintiffs' class certification motion in the complaint
entitled, "Hostetter v. Barnes & Noble Booksellers, Inc. et
al.," is due Aug. 17, 2009, according to Barnes & Noble, Inc.'s
June 11, 2009 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended May 2, 2009.
On Dec. 4, 2008, a purported class action complaint was filed
against Barnes & Noble Booksellers, Inc. in the Superior Court
for the State of California making these allegations against
defendants with respect to hourly managers and/or assistant
managers at Barnes & Noble stores located in the State of
California:
(1) failure to pay wages and overtime;
(2) failure to provide meal and/or rest breaks;
(3) waiting time penalties; and
(4) unfair competition.
The complaint contains no allegations concerning the number of
any such alleged violations or the amount of recovery sought on
behalf the purported class.
On March 4, 2009, Barnes and Noble filed an answer denying all
claims.
On March 5, 2009, Barnes and Noble removed this matter to
federal court.
Written discovery concerning purported class member wages, hours
worked, and other matters has commenced. The plaintiffs' class
certification motion is due Aug. 17, 2009. The Court has set a
trial date of Aug. 10, 2010.
Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a
bookseller. The company's principal business is the sale of
trade books (generally hardcover and paperback consumer titles,
excluding educational textbooks and specialized religious
titles), mass-market paperbacks (such as mystery, romance,
science fiction and other fiction), children's books, bargain
books, magazines, gift, cafe products and services, music and
movies direct to customers. As of Jan. 31, 2009, the company
operated 778 bookstores and a Website. Of the 778 bookstores,
726 operate under the Barnes & Noble Booksellers trade name and
52 operate primarily under the B. Dalton Bookseller trade name.
BARNES & NOBLE: Unit Faces "Minor" Complaint Over Wage Payments
---------------------------------------------------------------
A purported class-action complaint entitled, "Minor v. Barnes &
Noble Booksellers, Inc. et al.," is pending, according to Barnes
& Noble, Inc.'s June 11, 2009 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 2,
2009.
On May 1, 2009, a purported class action complaint was filed
against Barnes & Noble Booksellers, Inc. in the Superior Court
for the State of California alleging wage payments by
instruments in a form that did not comply with the requirements
of the California Labor Code, allegedly resulting in
impermissible wage payment reductions and calling for imposition
of statutory penalties.
The complaint also seeks restitution of such allegedly unpaid
wages under California's unfair competition law, and an
injunction compelling compliance with the California Labor Code.
The complaint alleges two subclasses of 500 and 200 employees,
respectively (there may be overlap among the subclasses), but
contains no allegations concerning the number of alleged
violations or the amount of recovery sought on behalf of the
purported class.
On June 3, 2009, Barnes & Noble Booksellers filed an answer
denying all claims.
Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a
bookseller. The company's principal business is the sale of
trade books (generally hardcover and paperback consumer titles,
excluding educational textbooks and specialized religious
titles), mass-market paperbacks (such as mystery, romance,
science fiction and other fiction), children's books, bargain
books, magazines, gift, cafe products and services, music and
movies direct to customers. As of Jan. 31, 2009, the company
operated 778 bookstores and a Website. Of the 778 bookstores,
726 operate under the Barnes & Noble Booksellers trade name and
52 operate primarily under the B. Dalton Bookseller trade name.
CENTRAL JERSEY: Levi & Korsinsky Files Suit Over OceanFirst Deal
----------------------------------------------------------------
Levi & Korsinsky announces that a class action lawsuit has
been filed in the Superior Court of New Jersey challenging the
proposed acquisition of Central Jersey Bancorp (NASDAQ: CJBK:
5.58, 0.18, 3.33%).
The Complaint arises out of the announcement by Central
Jersey stating that it had entered into a definitive merger
agreement with OceanFirst Finanacial Corp. (NASDAQ: OCFC).
Under the merger agreement, Central Jersey shareholders will
receive 0.5 shares of OceanFirst stock for each share of Central
Jersey they own. Based on the May 26, 2009 closing price of
OceanFirst stock at $14.23 per share, the transaction values
Central Jersey shares at $7.12 for a total deal value of
approximately $68.4 million. The price is unfair given that
Central Jersey shares traded at $7.50 per share as recently as
February 10, 2009 and the 60-day average of OceanFirst shares is
only $11.91 per share. Also, since the transaction was
announced, the price of OceanFirst shares have traded as low as
$10.83 per share.
For more details, contact:
Eduard Korsinsky, Esq.
Juan E. Monteverde, Esq.
Levi & Korsinsky, LLP
30 Broad Street -15th Floor
New York, NY 10006
Phone: (212) 363-7500
Fax: (212) 363-7171
Web site: http://www.zlk.com/cjbk1.html
CITY OF TULSA: Faces Property Owners' Suit Over Assessment Fee
--------------------------------------------------------------
City of Tulsa, Oklahoma, Mayor Kathy Taylor and Director of
Finance Mike Kier are facing a purported class-action lawsuit by
fifteen downtown property owners who are challenging the Tulsa
Stadium Improvement District assessment fee that is set to take
effect July 1, 2009, Kevin Canfield and P.J. Lassek of Tulsa
World reports.
The suit was filed on June 22, 2009 in Tulsa County District
Court by plaintiffs who are seeking class-action status to
include other downtown property owners, according to Tulsa
World.
The plaintiffs claim that they were deprived of their rights to
argue that the assessments on their respective properties were
disproportionate to any benefit that would come from a new
downtown baseball stadium, reports Tulsa World.
They also claim they were denied the ability to complain or
challenge the amount of the assessment. The plaintiffs allege
that Mr. Kier, in a notice of an April City Council hearing on
the district's assessment roll, wrongfully informed potential
objectors that the only issue that could be challenged was the
accuracy of square-footage calculations, Tulsa World reported.
Additionally, the plaintiffs claim that their properties will
not benefit at all or will benefit only minimally from the
assessment, constituting a taking of their respective properties
without just compensation, according to the Tulsa World report.
DAVE & BUSTER'S: Calif. Settlement Gets Final Approval in May
-------------------------------------------------------------
Final court approval of the settlement of a consolidated
purported class-action lawsuit against Dave & Buster's, Inc. in
California was obtained on May 28, 2009, 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 3,
2009.
Initially, two class actions were filed against the company and
one of its subsidiaries in the State of California, alleging
violations of California regulations concerning mandatory meal
breaks and rest periods.
These two cases have been consolidated and coordinated because
the potential class members are virtually identical. (Class
Action Reporter, Oct. 15, 2008)
Dave & Buster's, Inc. -- http://www.daveandbusters.com-- is an
operator of restaurant/entertainment complexes. Each
entertainment complex offers an array of entertainment
attractions. The company's menu includes a variety of food and
beverage offering. Its complexes cater primarily to adults aged
21 to 44 and operate seven days a week, typically from 11:30
a.m. to midnight on weekdays and 11:30 a.m. to 2:00 a.m. On
weekends. Its average complex is approximately 51,000 square
feet in size. The average size of its complexes opened in
fiscal year ended Feb. 3, 2008 was approximately 35,000 square
feet. The company's menu places emphasis on meals, including
gourmet pastas, steaks, sandwiches, salads, and a selection of
desserts. The company's locations offer an array of amusements
and entertainment options, including Million Dollar Midway games
and Traditional games.
FERRELLGAS PARTNERS: Blue Rhino Defends Consumer Suit in Calif.
---------------------------------------------------------------
Blue Rhino Corporation, an entity acquired by Ferrellgas
Partners, L.P., but no longer existing, remains a named
defendant in a consumer class action lawsuit filed in the
Superior Court of the State of California, according to the
company's Form 8-K filing with the U.S. Securities and Exchange
Commission dated June 12, 2009.
The suit, filed on May 27, 2009, is brought by several named
plaintiffs on behalf of themselves and a putative class defined
as consisting of all "Blue Rhino propane consumers in the State
of California during the four (4) years prior to the filing of
this complaint who have exchanged a 5 gallon refill tank of
propane and were provided only a partial refill."
This complaint also alleges claims for purported unlawful and
deceptive practices allegedly involving price disclosures
related to the Blue Rhino branded propane tank exchange
activities.
This complaint alleges claims for (i) violation of California's
Consumer Legal Remedies Act and (ii) violation of Business and
Professions Code section 17200.
The California plaintiffs seek damages, restitution, injunctive
relief, interest, costs, attorneys fees and other appropriate
relief.
Ferrellgas Partners, L.P. -- http://www.ferrellgas.com/-- is a
holding entity that conducts no operations and has two direct
subsidiaries, Ferrellgas Partners Finance Corp and the operating
partnership. Ferrellgas Partners' only assets are its
approximate 99% limited partnership interest in the operating
partnership and its 100% equity interest in Ferrellgas Partners
Finance Corp. The company's activities are primarily conducted
through its operating partnership, Ferrellgas, L.P. it is a
distributor of propane and related equipment and supplies to
customers primarily in the United States. It serves
approximately one million residential, industrial/commercial,
portable tank exchange, agricultural, wholesale and other
customers in all 50 states, the District of Columbia and Puerto
Rico. Its operations primarily include the distribution and
sale of propane and related equipment and supplies with
concentrations in the Midwest, Southeast, Southwest and
Northwest regions of the United States.
FERRELLGAS PARTNERS: Faces Consumer Fraud Litigation in Kansas
--------------------------------------------------------------
Ferrellgas Partners, L.P., Ferrellgas, L.P. and Ferrellgas, Inc.
are named defendants in a consumer class action lawsuit filed in
federal district court in Kansas City, Kansas on June 11, 2009.
Among others, the complaint alleges claims for purported
unlawful and deceptive practices allegedly involving price
disclosures related to the Blue Rhino branded propane tank
exchange activities.
The lawsuit alleges substantially similar claims with the
consumer class action filed in federal district court in San
Francisco, according to the company's Form 8-K filing with the
U.S. Securities and Exchange Commission dated June 12, 2009.
Ferrellgas Partners, L.P. -- http://www.ferrellgas.com/-- is a
holding entity that conducts no operations and has two direct
subsidiaries, Ferrellgas Partners Finance Corp and the operating
partnership. Ferrellgas Partners' only assets are its
approximate 99% limited partnership interest in the operating
partnership and its 100% equity interest in Ferrellgas Partners
Finance Corp. The company's activities are primarily conducted
through its operating partnership, Ferrellgas, L.P. it is a
distributor of propane and related equipment and supplies to
customers primarily in the United States. It serves
approximately one million residential, industrial/commercial,
portable tank exchange, agricultural, wholesale and other
customers in all 50 states, the District of Columbia and Puerto
Rico. Its operations primarily include the distribution and
sale of propane and related equipment and supplies with
concentrations in the Midwest, Southeast, Southwest and
Northwest regions of the United States.
FERRELLGAS PARTNERS: Faces Suit on Blue Rhino Price Disclosures
---------------------------------------------------------------
Ferrellgas Partners, L.P., Ferrellgas, L.P. and Ferrellgas, Inc.
are named as defendants in a consumer class action lawsuit filed
in federal district court in San Francisco on June 4, 2009.
The suit is brought by several named plaintiffs on behalf of
themselves and a putative nationwide class defined as consisting
of "[a]ll purchasers of liquefied propane gas cylinders marketed
or sold [under the Blue Rhino tradename] nationwide from Jan. 1,
2008."
The complaint alleges claims for purported unlawful and
deceptive practices allegedly involving price disclosures
related to the Blue Rhino branded propane tank exchange
activities.
This complaint also alleges claims for:
(i) violations of consumer protection statutes of thirty-
seven states and the District of Columbia, and seeks
damages, restitution, disgorgement, injunctive relief,
costs and attorneys fees on that claim, and
(ii) unjust enrichment of the defendants, and seeks
restitution on that claim.
The complaint also seeks statutory, punitive or treble damages
and pre-judgment and post-judgment interest on all claims,
according to the company's Form 8-K filing with the U.S.
Securities and Exchange Commission dated June 12, 2009.
Ferrellgas Partners, L.P. -- http://www.ferrellgas.com/-- is a
holding entity that conducts no operations and has two direct
subsidiaries, Ferrellgas Partners Finance Corp and the operating
partnership. Ferrellgas Partners' only assets are its
approximate 99% limited partnership interest in the operating
partnership and its 100% equity interest in Ferrellgas Partners
Finance Corp. The company's activities are primarily conducted
through its operating partnership, Ferrellgas, L.P. it is a
distributor of propane and related equipment and supplies to
customers primarily in the United States. It serves
approximately one million residential, industrial/commercial,
portable tank exchange, agricultural, wholesale and other
customers in all 50 states, the District of Columbia and Puerto
Rico. Its operations primarily include the distribution and
sale of propane and related equipment and supplies with
concentrations in the Midwest, Southeast, Southwest and
Northwest regions of the United States.
FOOT LOCKER: Units Face Suits Over Wage and Hour Laws Violations
----------------------------------------------------------------
Certain subsidiaries of Foot Locker, Inc., are defendants in a
number of lawsuits filed in state and federal courts containing
various class action allegations under state wage and hour laws,
according to Foot Locker's June 10, 2009 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended May 2, 2009.
The lawsuits include allegations concerning classification of
employees as exempt or nonexempt, unpaid overtime, meal and rest
breaks, uniforms, and calculation of vacation pay.
Foot Locker, Inc. -- http://www.footlocker-inc.com/-- is a
global retailer of athletic footwear and apparel, operated 3,785
primarily mall-based stores in the U.S., Canada, Europe,
Australia, and New Zealand as of Feb. 2, 2008. The Company,
through its subsidiaries, operates in two segments: Athletic
Stores and Direct-to-Customers. The Athletic Stores segment is
an athletic footwear and apparel retailer, whose formats include
Foot Locker, Lady Foot Locker, Kids Foot Locker, Champs Sports
and Footaction. The Direct-to-Customers segment reflects
Footlocker.com, Inc., which sells, through its affiliates,
including Eastbay, Inc., to customers through catalogs and
Internet Websites. The Foot Locker brand is the Company's
principal brand.
GOOGLE INC: Judge Pushes Book Settlement Hearing Date to October
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York --
overseer of Google, Inc.'s settlement over its book-scanning
program -- is giving authors four more months to opt out of the
deal and review its potential pitfalls, The Associated Press
reports.
Instead of a May 5, 2009 deadline, the court ruled last week
that authors now have until Sept. 4, 2009 to review the
agreement, according to AP.
Under the Google Print Library Project, snippets from millions
of out-of-print but copyright-protected books have been indexed
online by Michigan and other libraries. Google has called the
project, which also scans public-domain works, an invaluable
chance for books to receive increased exposure, reports AP.
But in a class-action suit filed in 2005, the Authors Guild
alleged that Google was "engaging in massive copyright
infringement." Within weeks, publishers also sued, The
Associated Press reported.
In October 2008, Google and the publishing industry agreed to
settle their battle. The settlement calls for Google to pay
$125 million while developing online sales opportunities for
scanned books that turn up in Google searches. Google would get
37 percent of future revenue and publishers and authors would
share the rest.
Additionally, the Mountain View, Calif.-based company would also
pay for the millions of copyrighted books already scanned -- $60
per complete work to the rights holder -- and for the legal fees
of the Authors Guild and publishing association.
In November 2008 a judge had set a June 2009 date for a final
settlement and hearing to decide if the deal is fair, reasonable
and adequate. The recent extension pushes back the final
hearing on the settlement's approval to Oct. 7, 2009, according
to The Associated Press report.
All other deadlines and key dates in the case remain the same,
including the May 5, 2009 deadline by which a book must have
been scanned in order for an author to be entitled to a cash
payment, AP reports.
Comprehensive Settlement Background
The Authors Guild, the Association of American Publishers (AAP),
and Google announced a groundbreaking settlement agreement on
behalf of a broad class of authors and publishers worldwide that
would expand online access to millions of in-copyright books and
other written materials in the U.S. from the collections of a
number of major U.S. libraries participating in Google Book
Search (Class Action Reporter, April 13, 2009).
The agreement, reached after two years of negotiations, would
resolve a class-action lawsuit brought by book authors and the
Authors Guild, as well as a separate lawsuit filed by five large
publishers as representatives of the AAP's membership (Class
Action Reporter, Oct. 28, 2009).
The class action is subject to approval by the U.S. District
Court for the Southern District of New York.
The agreement promises to benefit readers and researchers, and
enhance the ability of authors and publishers to distribute
their content in digital form, by significantly expanding online
access to works through Google Book Search, an ambitious effort
to make millions of books searchable via the Web.
The agreement acknowledges the rights and interests of copyright
owners, provides an efficient means for them to control how
their intellectual property is accessed online and enables them
to receive compensation for online access to their works.
If approved by the court, the agreement would provide:
-- More Access to Out-of-Print Books -- Generating greater
exposure for millions of in-copyright works, including
hard-to-find out-of-print books, by enabling readers in
the U.S. to search these works and preview them online;
-- Additional Ways to Purchase Copyrighted Books --
Building off publishers' and authors' current efforts
and further expanding the electronic market for
copyrighted books in the U.S., by offering users the
ability to purchase online access to many in-copyright
books;
-- Institutional Subscriptions to Millions of Books Online
-- Offering a means for U.S. colleges, universities and
other organizations to obtain subscriptions for online
access to collections from some of the world's most
renowned libraries;
-- Free Access From U.S. Libraries -- Providing free, full-
text, online viewing of millions of out-of-print books
at designated computers in U.S. public and university
libraries; and
-- Compensation to Authors and Publishers and Control Over
Access to Their Works -- Distributing payments earned
from online access provided by Google and,
prospectively, from similar programs that may be
established by other providers, through a newly created
independent, not-for-profit Book Rights Registry that
will also locate rightsholders, collect and maintain
accurate rightsholder information, and provide a way for
rightsholders to request inclusion in or exclusion from
the project.
Under the agreement, Google will make payments totaling $125
million. The money will be used to establish the Book Rights
Registry, to resolve existing claims by authors and publishers
and to cover legal fees.
The settlement agreement resolves "Authors Guild v. Google," a
class-action suit filed on Sept. 20, 2005 by the Authors Guild
and certain authors, and a suit filed on October 19, 2005 by
five major publisher-members of the Association of American
Publishers:
-- The McGraw-Hill Companies, Inc.;
-- Pearson Education, Inc. and Penguin Group (USA) Inc.,
both part of Pearson;
-- John Wiley & Sons, Inc. (NYSE: JWa and JWb); and
-- Simon & Schuster, Inc. part of CBS Corporation (NYSE:
CBS.A and CBS).
These lawsuits challenged Google's plan to digitize, search and
show snippets of in-copyright books and to share digital copies
with libraries without the explicit permission of the copyright
owner.
Holders worldwide of U.S. copyrights can register their works
with the Book Rights Registry and receive compensation from
institutional subscriptions, book sales, ad revenues and other
possible revenue models, as well as a cash payment if their
works have already been digitized.
Libraries at the Universities of California, Michigan,
Wisconsin, and Stanford have provided input into the settlement
and expect to participate in the project, including by making
their collections available. Along with a number of other U.S.
libraries that currently work with Google, their significant
efforts to preserve, maintain and provide access to books have
played a critical role in achieving this agreement and, through
their anticipated participation, they are furthering such
efforts while making books even more accessible to students,
researchers and readers in the U.S. It is expected that
additional libraries in the U.S. will participate in this
project in the future.
Google Book Search users in the United States will be able to
enjoy and purchase the products and services offered under the
project. Outside the United States, the users' experience with
Google Book Search will be unchanged, unless the offering of
such products and services is authorized by the rightsholder of
a book.
"It's hard work writing a book, and even harder work getting
paid for it," said Roy Blount Jr., President of the Authors
Guild. "As a reader and researcher, I'll be delighted to stop
by my local library to browse the stacks of some of the world's
great libraries. As an author, well, we appreciate payment when
people use our work. This deal makes good sense." "This
historic settlement is a win for everyone," said Richard
Sarnoff, Chairman of the Association of American Publishers.
"From our perspective, the agreement creates an innovative
framework for the use of copyrighted material in a rapidly
digitizing world, serves readers by enabling broader access to a
huge trove of hard-to-find books, and benefits the publishing
community by establishing an attractive commercial model
thatoffers both control and choice to the rightsholder."
"Google's mission is to organize the world's information and
make it universally accessible and useful. Today, together with
the authors, publishers, and libraries, we have been able to
make a great leap in this endeavor," said Sergey Brin, co-
founder & president of technology at Google. "While this
agreement is a real win-win for all of us, the real victors are
all the readers. The tremendous wealth of knowledge that lies
within the books of the world will now be at their fingertips."
For more information about this agreement, visit:
http://www.googlebooksettlement.com/or
http://books.google.com/booksrightsholders/.
HOLLAND & KNIGHT: Seeks Dismissal of "Sullivan" Lawsuit in Fla.
---------------------------------------------------------------
The Holland & Knight law firm asked a judge to dismiss a
proposed class-action lawsuit that seeks damages from the firm
for putting its imprimatur on the hedge funds managed by Arthur
G. Nadel and others, long before they turned out to be alleged
vehicles for a massive fraud, Michael Pollick of The Sarasota
Herald-Tribune reports.
The suit should be dismissed because it is "predicated on the
false notion that H&K had a duty to investigate its clients and
go behind the clients' representations of fact," Holland &
Knights' attorneys wrote, according to The Sarasota Herald-
Tribune.
Holland & Knight also argues that this type of litigation is
precluded by a 1998 law called the Securities Litigation Uniform
Standards Act, reports of The Sarasota Herald-Tribune.
Previously, Law360 reported that investors burned in an alleged
$100 million Ponzi scheme operated by Florida fund manager
Arthur Nadel filed an amended complaint in a purported class-
action suit against Holland & Knight LLP, which allegedly
prepared private placement memoranda for the funds (Class Action
Reporter, May 28, 2009).
Brian Neill of The Bradenton Herald previously reported that
Holland & Knight LLP faces a purported class-action lawsuit in
Florida in connection with the case of Sarasota hedge fund
manager Arthur Nadel, who is accused of defrauding investors out
of hundreds of millions of dollars (Class Action Reporter, March
25, 2009).
The suit was filed in the U.S. District Court for the Middle
District of Florida on March 20, 2009 by Michael J. Sullivan on
behalf of the Michael J. Sullivan IRA Account.
It alleges that the law firm, one of the state's largest,
handled prepared paperwork for investments made to Mr. Nadel's
hedge funds, but left out critical information about the funds
and their administrators, according to The Bradenton Herald
report.
Mr. Nadel is being housed in a jail in New York City and is
charged with one count of wire fraud and one count of securities
fraud for what authorities allege was a Ponzi scheme.
Mr. Sullivan's suit maintains that Holland & Knight should have
revealed Mr. Nadel was once disbarred as a lawyer for financial
improprieties and an employee of his was not a CPA, reports The
Bradenton Herald.
"When these memorandums were prepared and distributed, had (the
investors) known this obviously some different decisions would
have been made," according to John Coleman, Esq., an attorney
with the Tampa law firm Johnson, Pope, Bokor, Ruppel & Burns,
which filed the suit. "They failed to give investors adequate
information."
The suit maintains that Holland & Knight staff had that
information available to them, but chose not to disclose it.
It states, "During the entire time of H & K's involvement as
counsel for the Nadel Funds and other related entities, Mr.
Nadel had been running a Ponzi scheme, and even a cursory review
of the financial records of the Nadel Funds would have disclosed
the existence of the Ponzi scheme. Holland and Knight failed
themselves to uncover this scheme, although reasonable inquiry
would have done so."
Mr. Sullivan, a resident of Illinois, states in the suit that he
was unaware of Mr. Nadel's disbarment or financial improprieties
ongoing at the funds. He had more than $1.8 million invested in
Mr. Nadel's funds, according to the suit.
The Bradenton Herald reported that the suit seeks judgment for
damages and attorney and court costs. It also seeks a jury
trial.
The suit is "Sullivan v. Holland & Knight LLP et al., Case No.
8:09-cv-00531-EAK-EAJ," filed in the U.S. District Court for the
Middle District of Florida, Judge Elizabeth A. Kovachevich,
presiding.
Representing the plaintiff is:
Guy M. Burns, Esq. (Guyb@jpfirm.com)
Johnson, Pope, Bokor, Ruppel & Burns, LLP
403 E Madison St. - Ste. 400 (33602)
P.O. Box 1100
Tampa, FL 33601
Phone: 813/225-2500
Fax: 813/223-7118
HUMANA INC: Ky. Judge Nixes Consolidated Securities Fraud Suit
--------------------------------------------------------------
Judge Joseph H. McKinley, Jr. of the U.S. District Court for the
Western District of Kentucky dismissed a consolidated securities
fraud class-action lawsuit filed against Humana, Inc. saying the
health care giant properly cautioned investors about the
possibility of a drop in stock prices, Brett Barrouquere of The
Associated Press reports.
Case Background
Previously, it was reported that Humana, Inc., is facing a
consolidated securities fraud class- action suit filed in the
U.S. District Court for the Western District of Kentucky,
according to the company's Aug. 4, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008 (Class Action Reporter, Aug. 25, 2008).
Initially, the company and certain of its officers were named as
defendants in three substantially similar federal securities
class-action suits that were filed in Kentucky federal court.
The suits are:
1. "Capuano v. Humana Inc., et al., No. 3:08cv-162 M,"
filed on March 26, 2008;
2. "Lach v. Humana Inc., et al., No. 3:08cv-181-H," filed
on April 4, 2008; and
3. "Dirusso v. Humana Inc., et al., No. 3:08cv-187-H,"
filed on April 8, 2008.
The complaints allege that, from Feb. 4, 2008, through March 11,
2008, the defendants misled investors by knowingly making
materially false and misleading statements regarding Humana's
anticipated earnings per share for the first quarter of 2008 and
for the fiscal year of 2008.
The complaints allege that the defendants' statements regarding
Humana's projected earnings per share were materially false and
misleading because they failed to disclose that:
-- Humana could not properly calculate the prescription
drug costs of its newly acquired Medicare
prescription drug plan members;
-- the costs associated with Humana's prescription drug
plans had dramatically increased; and
-- the defendants lacked a reasonable basis for their
statements regarding Humana's anticipated earnings
per share.
The lawsuits allege that these actions violated Section 10(b) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, and that the named officers are also
liable as control persons under Section 20(a) of the U.S.
Securities Exchange Act.
The plaintiffs seek:
-- certification of the suits as class actions;
-- designation of a lead plaintiff and class
representative;
-- designation of lead plaintiffs' counsel;
-- compensatory damages, including interest;
-- an award of plaintiffs' legal fees and expenses; and
-- other relief that the court deems just and proper.
On July 17, 2008, the cases were consolidated and the Alaska
Laborers Employment Retirement Fund and three individuals were
designated lead plaintiffs.
Dismissal
According to Judge McKinley, five individual stockholders, the
Alaska Laborers Employers Retirement Fund and a private
investment firm cannot hold the company liable for their losses,
reports The Associated Press.
The judge found that Humana used "cautionary language" and
"expressly identified" multiple factors that could affect future
earnings by the company. "This cautionary language warned of
risks similar to those that ultimately led Humana to revise its
earnings guidance downward on March 12, 2008," Judge McKinley
wrote, according to The Associated Press.
Additionally, Judge McKinley also found nothing in the lawsuit
to back the claim that Humana's corporate officers misled
investors during a Feb. 4, 2008, teleconference, according to
The Associated Press.
The suit is "Capuano v. Humana, Inc., et al., Case No. 3:08-cv-
00162-JHM-DW," filed in the U.S. District Court for the Western
District of Kentucky, Judge Joseph H. McKinley, Jr., presiding.
Representing the plaintiffs are:
Deborah R. Gross, Esq. (debbie@bernardmgross.com)
Law Office of Bernard M. Gross, P.C.
100 Penn Square East, Suite 450
Juniper and Market Streets
Philadelphia, PA 19107
Phone: 215-561-3600
Fax: 215-561-3000
- and -
David A. Rosenfeld, Esq. (drosenfeld@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
58 S. Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
Representing the defendants are:
Domonic A. Arni, Esq. (dominic.arni@friedfrank.com)
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, DC 20004-2505
Phone: 202-639-7044
Fax: 202-639-7003
- and -
David B. Hennes, Esq. (david.b.hennes@friedfrank.com)
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
Phone: 212-859-8355
Fax: 212-859-4000
MAJESCO ENTERTAINMENT: Securities Suit Deal Approved, Case Nixed
----------------------------------------------------------------
The amended settlement agreement in the securities class action
against Majesco Entertainment Co., has been approved, and the
case has been dismissed, according to the company's June 15,
2009 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended April 30, 2009.
On Sept. 27, 2007, the company entered into settlement
agreements to settle the following litigations pending in the
U.S. District Court, District of New Jersey:
(i) a securities class action brought on behalf of a
purported class of purchasers of the company's
securities;
(ii) a private securities action filed by Trinad Capital
Master Fund, Ltd.; and
(iii) a second action filed by Trinad, purportedly on behalf of
the company.
In January 2009, the company entered into an amendment to the
securities class action settlement agreement. Under the terms
of the settlement agreement in the securities class action, as
amended, the Company agreed to make cash payments totaling
$700,000 in three installments. The first two payments were
made in January and February 2009, and the last payment was made
in May 2009. The company also contributed one million shares of
its common stock to the settlement fund. The company's
insurance carrier also contributed a cash payment.
On Feb. 23, 2009, the settlement was approved by the Court, and
the class action was dismissed. The dismissal is no longer
subject to appeal. The settlement administrator distributed the
shares and cash to eligible settlement claimants in May 2009,
and the matter is now closed.
Under the terms of the settlement of the private securities
claim in the action brought by Trinad, on its own behalf, the
company's insurance carrier made a cash payment to Trinad. The
Court dismissed this action on Feb. 23, 2009, and the matter is
now closed.
The settlement agreement in the action filed by Trinad,
purportedly on behalf of the company, did not result in a
payment to the company, and Plaintiff's attorneys did not
receive any fees in connection with the settlement. This
settlement was approved by the Court, and the Court dismissed
the action on May 12, 2009. The dismissal is no longer subject
to appeal and the matter is now closed.
Majesco Entertainment Co. -- www.majescoentertainment.com -- is
a provider of video games for the mass market. Building on 20
years of operating history, Majesco is focused on developing and
publishing a wide range of casual and family oriented video
games on leading console and portable systems. Product
highlights include Cooking Mama TM and Cake Mania(R)2 for
Nintendo DS TM and Cooking Mama World Kitchen and Jillian
Michaels' Fitness Ultimatum 2009 for Wii TM Majesco's shares are
traded on the Nasdaq Stock Market under the symbol: COOL.
Majesco is headquartered in Edison, NJ and has an international
office in Bristol, UK.
MERCK & CO: Claimants Deliver Closing Arguments in Vioxx Lawsuit
----------------------------------------------------------------
Julian Burnside QC, for the claimants in class-action suit
against pharmaceutical company Merck & Co., Inc. concerning
side-effects of its Vioxx arthritis drug, delivered his closing
arguments in the Federal Court of Australia, The Age reports.
Mr. Burnside said the defendants did not adhere to its duty of
care to consumers, instead maintaining that the product did not
have established links to heart complications and choosing to
ignore strong evidence, according to The Age.
Previously, The Australian reported that Merck & Co. says 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.
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.
MGIC INVESTMENTS: Faces Consolidated Stockholder Suit in Wis.
-------------------------------------------------------------
A consolidated group of plaintiffs accused mortgage insurance
giant MGIC Investment Corp. and company principals of misleading
the public about the company's health ahead of a mortgage
meltdown-related stock crash that cost investors more than half
a billion dollars, Law360 reports.
In a 130-page amended lawsuit, filed on June 22, 2009 in the
U.S. District Court for the Eastern District of Wisconsin,
brings together five groups of plaintiffs, according to the
Law360 report.
Previously, it was reported that MGIC Investment Corp. continues
to face several purported stockholder class-action lawsuits,
according to the company's latest Form 8-K filing with the U.S.
Securities and Exchange Commission dated Jan. 20, 2009 (Class
Action Reporter, Jan. 30, 2009).
In the second, third and fourth quarters of 2008, complaints in
five separate purported stockholder class action lawsuits were
filed against the company, several of its officers, and an
officer of Credit-Based Asset Servicing and Securitization LLC
(C-BASS).
The complaints generally allege that through the officers named
in the complaints, the company violated the federal securities
laws by failing to disclose or misrepresenting C-BASS'
liquidity, the impairment of its investment in C-BASS, the
inadequacy of the company's loss reserves and that we were not
adequately capitalized. The collective time period covered by
the lawsuits begins on Oct. 12, 2006, and ends on Feb. 12, 2008.
The complaints seek damages based on purchases of the company's
stock during this time period at prices that were allegedly
inflated as a result of the purported misstatements and
omissions.
MGIC Investment Corp. -- http://www.mgic.com/-- is a holding
company and, through its wholly owned subsidiary Mortgage
Guaranty Insurance Corp., provides private mortgage insurance in
the U.S. MGIC is licensed in all 50 states of the U.S., the
District of Columbia, Puerto Rico and Guam. One of MGIC's
subsidiaries is licensed in Australia and another is in the
process of becoming licensed in Canada. In addition to mortgage
insurance on first liens, the company, through its subsidiaries,
provides lenders with various underwriting and other services
and products related to home mortgage lending. The company has
ownership interests in less than majority owned joint ventures
and investments, principally Sherman Financial Group LLC and
Credit-Based Asset Servicing and Securitization LLC, which it
refers to as C-BASS. Sherman is principally engaged in
purchasing and collecting for its own account delinquent
consumer receivables.
MICROSOFT CORP: Md. Court Approves $4,415,258 Antitrust Deal
------------------------------------------------------------
Seattle law firm Keller Rohrback, L.L.P., and its Phoenix,
AZ affiliate, Keller Rohrback P.L.C., announced that Judge J.
Frederick Motz of the U.S. District Court for the District of
Maryland has preliminarily approved a settlement in the pending
class action litigation brought by Daisy Mountain Fire District
on behalf of a class of all Arizona state and local governmental
entities that purchased Microsoft operating systems and
applications software between May 18, 1994 and December 31,
2008.
The preliminarily approved settlement will result in the
payment of $4,415,258 by Microsoft Corp. (Nasdaq: MSFT) to the
Class. The settlement funds will be allocated across Arizona
state and local governmental entities. The litigation centered
on allegations that Microsoft illegally obtained and maintained
monopoly power in the market for operating systems and certain
business productivity applications and used that power to charge
higher prices for its MS/DOS and Windows operating systems and
for several popular applications like Word, MS Office, and
Excel. The Plaintiff alleged that Microsoft engaged in conduct
that violated Arizona's state antitrust statutes and caused
damage to all Arizona governmental entities that had bought such
equipment after May 18, 1994 until December 31, 2008. Microsoft
denied these allegations.
The preliminarily approved settlement gives each Arizona
governmental entity its share of the settlement, in cash, to be
used for the purchase of various computer equipment, not just
Microsoft products. Because the litigation is a class action,
the settlement is subject the Court's final approval after
notice of the terms of the settlement has been provided to class
members. Timing of the approval process is dependent on the
Court's schedule. Notice will be provided to all involved
Arizona governmental entities and they will have a period during
which they can comment or object to any aspect of the
preliminarily approved settlement, after which Judge Motz, who
has overseen the private, state and federal litigation,
concerning Microsoft's monopoly power, will decide whether the
settlement is in the best interests of class members.
For more details, contact:
Mark Griffin, Esq.
Mark Samson, Esq.
Keller Rohrback L.L.P.
Phone: 800-776-6044
Web site: http://www.krclassaction.com
NEW MEXICO: Faces Civil Rights Lawsuit Over Cockfighting Ban
------------------------------------------------------------
New Mexico's cockfighters, lead by the New Mexico Gamefowl
Association, filed a $77 million class-action lawsuit against
the state alleging that its criminalization of cockfighting
violates the cockfighters' civil rights, Examiner.com reports.
The Associated Press previously reported that New Mexico
Attorney General Gary King, whose office oversees an animal
cruelty task force, is among 11 defendants in a purported class-
ction suit filed by local cockfighters who are seeking $77
million, claiming their civil rights were violated in the
state's enforcement of a 2007 law banning the bloodsport (Class
Action Reporter, May 15, 2009).
The suit was filed in the U.S. District Court for the District
of New Mexico, challenging whether authorities had probable
cause to make arrests and euthanize roosters during raids at New
Mexico farms. It also alleges authorities wrongfully entered
private property and improperly conducted interrogations,
according to The Associated Press report.
OKLAHOMA: Tenth Circuit Allows Appeal v. Foster Care Suit Ruling
----------------------------------------------------------------
Judges of the U.S. Court of Appeals for the Tenth Circuit
allowed Oklahoma officials to to appeal the class-action
designation granted by Judge Gregory K. Frizzell of the U.S.
District Court for the Northern District of Oklahoma a case
against the state in connection to its foster care system,
Robert Boczkiewicz of Tulsa World reports.
In arguing for an appeal of the ruling, officials alleged that
the strategy of the court case on behalf of Oklahoma's 10,000
foster children is to force the state into a settlement at a
staggering cost to taxpayers, according to Tulsa World.
According to state officials, "The history of child-welfare
consent decrees is replete with decades-long enforcement
litigation, at staggering cost to public treasuries," reports
Tulsa World.
State officials are also contending class-status was not
warranted because, in part, 98.2 per cent of the children in the
case were not abused. The officials assert the condition of
foster children should be considered on the basis of individual
children, rather than as a group, Tulsa World reports.
Tulsa World reported that the officials are the members of the
Oklahoma Commission for Human Services and the director of the
state's Department of Human Services. They recently made the
assertion to the appeals court in an effort to overturn the
ruling that designated the lawsuit as a class-action on behalf
of foster children statewide.
Marla Carter of kjrh.com reported that Judge Gregory K. Frizzell
of the U.S. District Court for the Northern District of Oklahoma
has allowed a case against the state in connection to its foster
care system go forward as a class-action suit. (Class Action
Reporter, May 7, 2009).
Previously, the Daily Oklahoman reported that Children's Rights,
a New York-based child advocacy organization, joined several
prominent Oklahoma law firms and an international firm in filing
a class-action suit against Oklahoma's Department of Human
Services (Class Action Reporter, Feb. 18, 2008).
The suit accuses DHS of repeatedly subjecting children in state
custody to extreme abuse and neglect. It asks the judge to
impose far-reaching reforms on the state system.
"Oklahoma has long maintained one of the most dangerous and
badly mismanaged child welfare systems in the nation, and
thousands of children have suffered under nightmarish conditions
for years as a result," said Marcia Robinson Lowry, executive
director of Children's Rights.
"It is disgraceful that we have to seek a federal court order to
force the state to begin fixing problems that it should have
addressed many years ago. But it is clear that this is the only
way to protect Oklahoma's abused and neglected children -- and
that is what this lawsuit is about."
Children's Rights is asking the judge to declare the lawsuit a
class action so the attorneys can represent all of the more than
10,000 children in state care.
For more details, contact:
Marcia Robinson Lowry
Children's Rights
330 Seventh Avenue
New York, NY 10001
Phone: 212.683.2210 or 888.283.2210
Fax: 212.683.4015
e-mail: info@childrensrights.org
Web site: http://www.childrensrights.org/
OPNEXT INC: In Talks to Settle Consolidated N.J. Securities Suit
----------------------------------------------------------------
The parties in a consolidated securities fraud class-action suit
against Opnext, Inc. in the U.S. District Court for the District
of New Jersey continue to engage in settlement discussions.
On Feb. 20, 2008, a putative class action captioned, "Bixler v.
Opnext, Inc., et al. Case No. 3:08-cv-00920," was filed against
the company and certain of its directors and officers, alleging,
inter alia, that the registration statement and prospectus
issued in connection with the company's initial public offering
contained material misrepresentations in violation of federal
securities laws.
On March 7 and 20, 2008, two additional putative class action
complaints were filed in the U.S. District Court for the the
District of New Jersey, similarly alleging, inter alia, that
federal securities laws had been violated by virtue of alleged
material misrepresentations in the company's registration
statement and prospectus.
These two additional complaints, captioned, "Coleman v. Opnext,
Inc., et al., Case No. 3:08-cv-01222," and "Johnson v. Opnext,
Inc., et al., Case No. 3:08-cv-01451," respectively, named as
defendants the company, certain individual defendants, the
company's auditor, and the underwriters of the IPO.
Motions were filed by several of the company's present and
former shareholders seeking:
-- to consolidate the "Bixler," "Coleman," and "Johnson"
cases;
-- to be appointed lead plaintiff; and
-- to have their counsel appointed by the Court as lead
counsel for the putative class.
On May 22, 2008, the court issued an order consolidating the
three cases under Civil Action No. 08-920 (JAP).
On July 30, 2008, the lead plaintiff filed a consolidated class
action complaint with the U.S. District Court for the District
of New Jersey. The underwriter defendants filed an answer to
the consolidated complaint on Oct. 21, 2008.
On Nov. 6, 2008, Opnext's auditor was voluntarily dismissed from
the action by plaintiff without prejudice. Hitachi, which was
added as a defendant in the Consolidated Complaint, filed a
motion to dismiss on Dec. 22, 2008. As of Feb. 9, 2009, the
date of this Form 10-Q filing, the Court had not ruled on
Hitachi's motion.
The parties, save for Hitachi, have agreed to early mediation.
In light of that, the court has stayed all proceedings in this
matter, including discovery, pending the parties' submitting a
joint status report to the court on April 30, 2009 (Class Action
Reporter, Feb. 20, 2009).
The court has stayed all proceedings in this matter, including
discovery, as Opnext, the Individual Defendants, and plaintiff
continue to engage in settlement discussions, according to the
company's June 15, 2009 Form 10-K Filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
March 31, 2009.
The consolidated suit is "Bixler v. Opnext, Inc., et al. Case
No. 3:08-cv-00920," filed in the U.S. District Court for the
District of New Jersey, Judge Joel A. Pisano, presiding.
Representing the plaintiffs are:
Laurence M. Rosen, Esq. (lrosen@rosenlegal.com)
The Rosen Law Firm, PA
236 Tillou Road
South Orange, NJ 07079
Phone: 973-313-1887
- and -
Jennifer Sarnelli, Esq. (jsarnelli@ldgrlaw.com)
Lite, DePalma, Greenberg & Rivas, LLC
Two Gateway Center, 12th Floor
Newark, NJ 07102
Phone: 973-632-3000
Fax: 973-923-0858
Representing the defendants are:
John M. Falzone, III, Esq. (john.falzone@lw.com)
Latham & Watkins, LLP
One Newark Center, 16th Floor
Newark, NJ 07102
Phone: 973-639-7099
- and -
Gary S. Graifman, Esq. (ggraifman@kgglaw.com)
Kantrowitz, Goldhamer & Graifman, Esqs.
210 Summit Avenue
Montvale, NJ 07645
Phone: 201-391-7000
OPPENHEIMER AMT-FREE: Law Firm Announces Lead Plaintiff Deadline
----------------------------------------------------------------
Dyer & Berens LLP announced that Monday July 13, 2009 is
the lead plaintiff deadline in the class action lawsuits filed
on behalf of all persons or entities who, between May 13, 2006
and October 21, 2008, purchased or acquired shares of the
Oppenheimer AMT-Free Municipals Fund (OPTAX 5.45, -0.04, -0.73%)
(OTFBX 5.43, -0.03, -0.55%) (OMFCX 5.42, -0.04, -0.73%).
The complaints accuse defendants of violations of the
federal securities laws, and allege that the Fund's Registration
Statements and Prospectuses misrepresented the Fund and failed
to disclose material facts about its risks and investment
strategies. Specifically, defendants allegedly failed to
disclose that:
-- the AMT-Free Fund's investments in "inverse floater"
securities 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; and
-- the AMT-Free Fund represented in the Registration
Statements that only 15% of its assets would be
invested in illiquid securities.
In fact, the AMT-Free Fund invested more than 15% of its
funds in illiquid securities, including illiquid "tobacco
bonds."
For more details, contact:
Jeffrey A. Berens, Esq. (jeff@dyerberens.com)
682 Grant Street
Denver, CO 80203
Dyer & Berens LLP
Phone: (888) 300-3362 or (303) 861-1764
Web site: http://www.DyerBerens.com
PENNSYLVANIA: Sued Over Institutionalization of Disabled People
---------------------------------------------------------------
Department of Public Welfare of the Commonwealth of Pennsylvania
and Estelle B. Richman are facing a purported class-action suit
alleging residents of five state-operated institutions,
including Selinsgrove Center, have not been offered the
opportunity to move to community settings, Amanda O'Rourke of
The Daily Item reports.
The lawsuit was filed on June 22, 2009 in the U.S. District
Court for the Middle District of Pennsylvania by The Disability
Rights Network of Pennsylvania, a federally funded nonprofit
organization that advances and protects the rights of adults and
children with disabilities, according to The Daily Item.
Captioned, "Benjamin et al v. Department of Public Welfare of
the Commonwealth of Pennsylvania et al., Case No. 1:2009-cv-
01182," it was filed on behalf of six plaintiffs, namely
Franklin Benjamin, Richard Grogg, Frank Edgett, Wilson Sheppard,
Sylvia Baldwin and Anthony Beard.
Two of the plaintiffs have been institutionalized since 1980's.
Though they were described in the court complaint as high-
functioning, their disabilities precluded them from being
interviewed, according to their attorney, Robert Meek of the
Rights Network. Mr. Meek did tell The Daily Item, however, that
they wish to leave the Selinsgrove Center for a community
setting.
According to the lawsuit, the Rights Network claims the state
Department of Public Welfare has failed to provide its clients
with the opportunity to receive services in integrated,
community settings, despite the desires of its institutionalized
clients, reports The Daily Item.
The Rights Network claims this is a violation of Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act, The Daily Item reported.
The lawsuit contends that the costs of providing community
services to clients is far less than the costs of continuing to
institutionalize them, The Daily Item reports.
For more details, contact:
Robert W. Meek, Esq. (rmeek@drnpa.org)
Disability Rights Network of Pennsylvania
1315 Walnut Street
Suite 400
Philadelphia, PA 19107-4798
Phone: 215-238-8070
Fax: 12157723126 (fax)
- and -
Stephen F. Gold, Esq. (stevegoldada@cs.com)
Stephen F. Gold
125 S. Ninth Street
Suite 700
Philadelphia, PA 19107
Phone: (215) 627-7100
QUEBEC: Loto-Quebec Defends Lawsuit by Compulsive Poker Players
---------------------------------------------------------------
Loto-Quebec is defending itself against a class-action suit in
the Quebec Superior Court, according to Quebec's June 4, 2009
Form 18-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2009.
On Aug. 2, 2002, a class action was instituted against Loto-
Quebec in the Quebec Superior Court on behalf of people who,
since 1993, claim to have become compulsive players using the
video poker terminals operated by Loto-Quebec in public
locations.
This class action alleges that Loto-Quebec bears some
responsibility for these people becoming compulsive players and
seeks damages from Loto-Quebec in an amount of approximately
$700 million.
The trial began in September 2008.
Quebec is the largest by area of the ten provinces in Canada
(1,541,000 square kilometers or 594,860 square miles,
representing 15.4% of the geographical area of Canada) and the
second largest by population (7.8 million, representing 23.2% of
the population of Canada, as of January 2009).
QUEBEC: Status Indians' Suit Over Fuel Tax Payment Not Yet Filed
----------------------------------------------------------------
The class action regarding status Indians' payment of fuel tax
has not been filed yet, according to Quebec's June 4, 2009 Form
18-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended March 31, 2009.
On June 30, 2003, the Grand Chief of the Assembly of First
Nations of Quebec and Labrador filed a motion in Quebec Superior
Court for authorization to file a class action on behalf of all
status Indians (except for James Bay Crees) who have paid Quebec
fuel tax since July 1, 1973 (the date on which this tax came
into force) on purchases of fuel on a reserve in Quebec.
The Court authorized this class action in May 2007, but the
class action has not been filed yet.
Quebec fuel tax legislation requires status Indians to pay the
fuel tax embedded in the price of fuel at the pump but allows
them to claim a rebate of the tax paid from the Quebec Ministry
of Revenue.
The class action alleges that many status Indians failed to file
a rebate claim for the fuel tax they paid and that the rebate
system is not valid as the tax should not have been paid in the
first place in view of the federal Indian Act, which exempts
from taxes the property of a status Indian when it is located on
a reserve.
The amounts the class action could potentially involve have not
yet been ascertained.
The Grand Chief of the Assembly of First Nations of Quebec and
Labrador and the Minister responsible for Aboriginal Affairs
have publicly indicated their preference for a negotiated
settlement of this issue.
Quebec is the largest by area of the ten provinces in Canada
(1,541,000 square kilometers or 594,860 square miles,
representing 15.4% of the geographical area of Canada) and the
second largest by population (7.8 million, representing 23.2% of
the population of Canada, as of January 2009).
ROSS STORES: Still Defends Lawsuits Over Wage and Hour Claims
-------------------------------------------------------------
Ross Stores, Inc. remains a named defendant in pending class-
action lawsuits regarding wage and hour claims.
Class action litigation involving allegations that hourly
associates have missed meal and/or rest break periods, as well
as allegations of unpaid overtime wages to assistant store
managers at all company stores under federal and state law,
remains pending as of May 2, 2009.
No further details regarding the litigation were disclosed in
the company's June 10, 2009 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 2,
2009.
Ross Stores, Inc. -- http://www.rossstores.com-- and its
subsidiaries operate two chains of off-price retail apparel and
home accessories stores in the U.S. Its stores offer branded
apparel, accessories, footwear, and home fashions for men and
women between the ages of 25 and 54, as well as gift items,
linens, and other home related merchandise.
SAFEWAY INC: Faces California Litigation Over Discount Coupons
--------------------------------------------------------------
Safeway, Inc. faces a purported class-action lawsuit in Los
Angeles Superior Court claiming that it lured customers to its
pharmacies by issuing discount coupons it did not honor,
Elizabeth Banicki of The Courthouse News Service reports.
The lead plaintiff, Betsy Pinkney alleges in the lawsuit that
she transferred her prescription to Safeway pharmacy in April in
response to an ad that promised 20 percent off of certain items
to customers who brought their prescriptions to Safeway,
according to The Courthouse News Service.
The Courthouse News Service reported that the coupon excluded
items such as liquor, tobacco, and selected gift cards. Ms.
Pinkney says a pharmacy employee gave her a second coupon and
told her to give it to the clerk at checkout. She says the
second coupon was valid for only one week, though the original
expired in June.
According to the suit, Ms. Pinkney picked out several hundred
dollars worth of gift cards that were not on the "exceptions"
list, but the scanner failed to recognize the discount. Ms.
Pinkney says she was told she could not use the coupon for the
gift cards even though they were not on the exceptions list.
The plaintiff claims that Safeway promised to deal with the
matter but never contacted her despite her attempts to reach a
resolution.
Ms. Pinkney -- represented by Neil Fineman, Esq. -- claims it
was "bait and switch" scheme, and thus she seeks damages, costs
and an injunction, reports The Courthouse News Service.
For more details, contact:
Neil B. Fineman, Esq.
Fineman & Associates
501 Civic Center Dr. W.
Santa Ana, CA 92701
Phone: (714) 543-2200
SIMMONS CO: Wrongful Dismissal Suit Settlement Pending Approval
---------------------------------------------------------------
The settlement of a wrongful dismissal class-action suit against
Simmons Company's subsidiary, Simmons Canada Inc., is still
pending final approval.
In November 2008, three former employees filed a wrongful
dismissal class action against Simmons Canada on behalf of
themselves and a proposed class comprised of the unionized
former employees who were terminated as a result of its closure
of its Bramalea, Ontario facility in September 2008.
The company has entered into tentative settlement agreements
with the plaintiffs, however, the agreement will not be final
until certain conditions are met, including plaintiffs'
obtaining leave of court to dismiss the case, according to the
company's June 10, 2009 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 27, 2008.
Simmons Company -- http://www.simmons.com-- is a mattress
manufacturer, manufacturing and marketing a range of products
under its brand names, including Beautyrest, Beautyrest Black,
ComforPedic by Simmons, Natural Care Latex, Beautyrest
Beginnings, and Deep Sleep. The company manufactures, sells and
distributes its branded bedding products to retail and
hospitalitycustomers, throughout the United States and Canada,
and licenses its intellectual property to international
companies that manufacture and sell the company's branded
bedding products throughout the world. The company's domestic
operations sells products through a nationwide base of
approximately 2,300 retailers, representing over 12,200 outlets,
including furniture stores, specialty sleep shops, department
stores, furniture rental stores, mass merchandisers and juvenile
specialty stores. In February 2007, the company merged with
another entity to become a wholly owned subsidiary of Simmons
Holdco, Inc., a holding company.
SIOUXLAND UROLOGY: Seeks Dismissal of S.D. Personal Injury Suit
---------------------------------------------------------------
Siouxland Urology Associates P.C. has filed a motion that sought
for the dismissal of the purported class-action lawsuit,
captioned, "Kinney et al v. Siouxland Urology Associates P.C. et
al., Case No. 4:2009-cv-04051," KPTH FOX 44 reports.
The Associated Press previously reported that Siouxland Urology
faces a purported class-action lawsuit for allegedly exposing
patients to blood-borne infectious diseases (Class Action
Reporter, April 21, 2009).
The suit was filed on April 17, 2009 in the U.S. District Court
for the District of South Dakota by Theresa Kinney, Katherine
Moir, Gloria Todd, James Peters and William P. Collins, under
the caption, "Kinney et al v. Siouxland Urology Associates P.C.
et al., Case No. 4:2009-cv-04051."
The federal complaint was filed in Sioux Falls against Siouxland
Urology Center in Dakota Dunes and its owners: Drs. John A.
Wolpert, David D. Howard, Patrick M. Walsh, Kenneth E. McCalla,
Timothy G. Kneib, and Craig A. Block, according to the AP
report.
The center sent letters on April 13, 2009 to more than 5,000
patients telling them that single-use products such as saline
solution bags and tubing were used on more than one patient
before being discarded, which created a minimal risk of exposure
to HIV, hepatitis B and hepatitis C, reports The Associated
Press.
For more details, contact:
William G. Beck, Esq. (Bill.Beck@woodsfuller.com)
Woods, Fuller, Shultz & Smith, PC
PO Box 5027
Sioux Falls, SD 57117-5027
Phone: 336-3890
Fax: 339-3357
- and -
Scott L. Bixenman, Esq. (murphlaw@premieronline.net)
Murphy, Collins & Bixenman, P.L.C.
38 1st Avenue N.W.
PO Box 526
Le Mars, IA 51031
Phone: (712) 546-8844
Fax: (712) 546-8847
VCG HOLDING: Trial in "Zajkowski" Litigation Set for July 2009
--------------------------------------------------------------
Trial is scheduled for July or August 2009, in a purported
class-action suit against VCG Holding Corp. and its Class
Affairs unit in Minnesota over certain employment practices.
An ex-employee, Eric Zajkowski, filed the lawsuit in December
2007, following his termination from employment with Classic
Affairs, a wholly owned subsidiary of the company.
The plaintiff alleges that in connection with his employment, he
was subject to certain employment practices which violated
Minnesota law. The initial action and subsequent pleading
assert that this matter is filed as a purported class-action
lawsuit.
Subsequent to the filing of the complaint, the plaintiff moved
to amend his complaint to name additional plaintiffs and later,
to name Classic Affairs as a party defendant.
The company and classic Affairs have answered this complaint
denying all liability to the plaintiffs. The parties have
engaged in written discovery, but no depositions have yet been
taken in this case.
The parties have attempted, via mediation, to resolve this case.
That mediation was unsuccessful.
The defendants have filed a Motion for Summary Judgment for mid
January 2009. The parties have filed cross-motions for Summary
Judgment and the Plaintiffs have filed a Motion for Class
Certification. Those matters were heard on Feb. 2, 2009.
Recently, the Court has entered a series of rulings on the
Motions for Summary Judgment. In these rulings the Court has
dismissed VCG as a party Defendant-having determined that VCG is
not directly liable to Plaintiffs on their claims. In all other
respects, the Court has denied the parties respective Summary
Judgment Motions, except the Court granted Summary Judgment to
Plaintiffs as to one issue, but did not determine the scope or
extent, if any, of the alleged damages, ruling this issue, like
the others, are questions for a jury. The Court has also not
ruled on Plaintiffs Motion for Class Certification and recently
asked the parties for further briefs on issues relating to class
certification. Those briefs were filed on May 5, 2009. It is
unknown when or how the Court will rule on those motions,
according to the company's May 14, 2009 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2009.
VCG Holding Corp. -- http://www.vcgh.com/-- is engaged in
owning and operating nightclubs that provide live adult
entertainment, food and beverage services. The majority of the
clubs operate under the branded names PT's, Diamond Cabaret and
The Penthouse Club under non-exclusive licensing agreements. As
of December 31, 2008, it owned and operated 20 nightclubs in
Indiana, Illinois, Colorado, Texas, North Carolina, Minnesota,
Kentucky, Maine, Florida, and California. The company was
founded in 1989 and is based in Lakewood, Colorado. It owns
International Entertainment Consultants, Inc., which provides
management services to its nightclubs and, on a fee basis, to
non-owned affiliated nightclubs. VCG Holding classifies its
operations into two segments: the operations of the Clubs and
the management of non-owned adult nightclubs.
VISION AIRLINES: Nev. Court Refuses to Dismiss Hazard Pay Suit
--------------------------------------------------------------
The U.S. District Court for the District of Nevada rejected a
motion by Vision Airlines, Inc. that sought for the dismissal of
a purported class-action lawsuit by charter aircraft crew
members who made flights for the U.S. government into war zones
in Afghanistan and Iraq, Steve Green of The Las Vegas Sun
reports.
Previously, The Las Vegas Sun reported that on March 2, 2009,
Vision Airlines filed court papers responding to the lawsuit and
in general denying the claims made in it (Class Action Reporter,
March 5, 2009).
Steve Green of The Las Vegas Sun previously reported the lawsuit
was filed in the U.S. District Court for the District of Nevada
on Jan. 16, 2009 by former pilot Gerald Hester of Colleyville,
Texas. It states that at least 300 current and former employees
are affected (Class Action Reporter, Jan 27, 2009).
According to plaintiff's attorney Ross Goodman, Esq. of Las
Vegas, the company, known locally for flying Grand Canyon tour
flights, has been running the charters carrying personnel and
cargo since May 2005.
The lawsuit states "flying aircraft to and from the airports in
Baghdad and Kabul is extremely dangerous." It explains,
"Aircraft typically arrive or depart these airports under the
cover of darkness to avoid light arms fire, rocket propelled
grenades, and missile attacks. In fact, all flights arriving
and departing from the airports in Baghdad and Kabul must be
authorized by either the United States or British military
operational command centers located in those cities."
Aircraft must observe blackout procedures in which exterior and
interior lights are turned off and then must execute difficult
corkscrew landing procedures in which aircraft fly within a
spiral above the airport while landing in order to minimize
their exposure to enemy fire, according to the suit.
The suit states that the hazard pay due to charter crews flying
to and from Iraq is $2,500 for each captain, first officer and
international relief officer for each take-off and landing. It
adds that other crew members such as flight attendants and
mechanics are to receive $1,500 each for each take-off and
landing.
The suit says hazard pay was initially provided to some
employees, but those payments were later halted by management,
reports The Las Vegas Sun.
"Despite receiving more than $21 million in hazard pay intended
for its employees, Vision has failed to pay its employees the
hazard pay to which they are entitled," according to the suit.
The suit is "Hester v. Vision Airlines, Inc., Case No. 2:09-cv-
00117-RLH-RJJ," filed in the U.S. District Court for the
District of Nevada, Judge Roger L. Hunt, presiding.
Representing the plaintiffs is:
Ross C. Goodman, Esq. (ross@goodmanlawgroup.com)
Goodman Law Group
520 S. Fourth Street
2nd Floor
Las Vegas, NV 89101
Phone: 702-384-5563
New Securities Fraud Cases
OPPENHEIMER AMT-FREE: Brower Piven Announces N.Y. Lawsuit Filing
----------------------------------------------------------------
Brower Piven, A Professional Corporation announces that a
class action lawsuit has been commenced in the United States
District Court for the Southern District of New York on behalf
of purchasers of shares of Oppenheimer AMT-Free New York
Municipals during the period between May 21, 2006 and October
21, 2008, inclusive. Included are the Fund's Class A, B and C
shares, respectively (NASDAQ: OPNYX) (NASDAQ: ONYBX) and
(NASDAQ: ONYCX).
The complaint accuses the defendants of violations of the
Securities Act of 1933 by virtue of the Fund's failure to
disclose in the prospectuses and other sales materials employed
in selling and marketing the Fund that the Fund employed
strategies designed to enhance its reported returns while, at
the same time, these strategies exposed the Fund to a much
greater risk of price declines in the value of its portfolio
securities in the event of illiquidity in the market for
municipal securities and that these strategies exposed the Fund
to substantially greater risk of loss should the Fund be forced
to sell large blocks of portfolio securities at disadvantageous
times at prices reduced from those at which the securities were
previously carried on the Fund's books. According to the
complaint, when these risks materialized, the value of
Oppenheimer AMT-Free New York Municipals Fund's shares declined
significantly.
A request for lead plaintiff status must satisfy certain
criteria and be made on or before Aug. 7, 2009.
For more details, contact:
Charles J. Piven, Esq. (hoffman@browerpiven.com)
Brower Piven
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410/332-0030
Web site: http://www.browerpiven.com
OPPENHEIMER PENNSYLVANIA: Shuman Law Firm Announces Suit Filing
---------------------------------------------------------------
http://money.cnn.com/news/newsfeeds/articles/globenewswire/16775
3.htm
The Shuman Law Firm announced that a lawsuit seeking class
action status has been filed in the United States District Court
for the District of Colorado on behalf of a class consisting of
all persons or entities who purchased or held shares of the
Oppenheimer Pennsylvania Municipal Fund offered by
OppenheimerFunds, Inc. (Nasdaq:OPATX) (Nasdaq:OPABX)
(Nasdaq:OPACX) during the period between November 28, 2005 and
November 28, 2008, including in connection with its November 28,
2005, September 27, 2006, March 5, 2007 and November 28, 2007
offerings.
The complaint alleges that during the Class Period, while
the Pennsylvania Fund promoted itself as focusing on capital
preservation and being safer than a high yield municipal bond
fund, unbeknownst to investors, the Fund altered its investment
style and began to significantly increase its risk in the hopes
of seeking higher returns. Defendants concealed that the
Pennsylvania Fund had increased its exposure in these
excessively risky bets in the hopes of higher returns, such that
investors remained unaware of these additional risk exposures.
Then, beginning in late September 2008 and continuing through
February 2009, the Fund began to acknowledge the serious
deterioration in its portfolio. As a result of the Fund's
disclosures, the price of the Fund's shares collapsed. As a
result, the Fund lost over 33% of its value in a few months.
According to the complaint, the true facts which were
omitted from the Registration Statements/Prospectuses issued in
connection with the Offerings were as follows:
-- the Fund was no longer adhering to its objective of
preserving capital, but in an effort to achieve
greater yields was pursuing riskier instruments;
-- the Fund was no longer adhering to its no-
concentration policy;
-- the extent of the Fund's liquidity risk due to the
illiquid nature of a large portion of the Fund's
portfolios, including the Fund's investment in
Tobacco and Dirt Bonds, was concealed;
-- the extent to which the Fund's portfolio contained
unrated securities was concealed;
-- the Fund's internal controls were inadequate to
prevent defendants from taking on excessive risk or
to prevent them from improperly evaluating the credit
quality of unrated securities;
-- the extent of the Fund's risk exposure to derivatives
and other high-risk instruments such as Inverse
Floaters was concealed; and
-- the extent of the Fund's leverage exposure was
misstated.
A request for lead plaintiff status must satisfy certain
criteria and be made on or before June 29, 2009.
For more information, contact:
Kip B. Shuman, Esq. (kip@shumanlawfirm.com)
Rusty E. Glenn, Esq. (rusty@shumanlawfirm.com)
The Shuman Law Firm
885 Arapahoe Avenue
Boulder, CO 80203
Phone: 866-974-8626
Fax: 303-484-4886
Web site: http://www.shumanlawfirm.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
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