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/raid1/www/Hosts/bankrupt/CAR_Public/091013.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 13, 2009, Vol. 11, No. 202 Headlines AFFILIATED COMPUTER: Tex. Lawsuit Says Xerox's Offer Inadequate AROTECH CORP: N.Y. Securities Fraud Lawsuit Still in Discovery ASSET ACCEPTANCE: Improper Credit Reporting Practices Alleged BANKATLANTIC: Publishes Notice of Settlement of Derivative Action CALIFORNIA: Lawsuit Challenges State's Right to Collect DNA DAIRY FARMERS: Milk Distribution Antitrust Suit Filed in Vermont FIBERNET TELECOM: Defends "Chen" Civil Complaint in New York FIBERNET TELECOM: Awaits Final Approval of Del. Suit Settlement HORIZON BLUE: Class Action Lawyer Chided for Delaying Settlement JENNIFER CONVERTIBLES: Employee Class Action Filed in N.D. Calif. MDL 1203: Third Circuit Upholds $567 Mil. Fen-Phen Fee Award NATURAL HEALTH: Securities Fraud Suit in Texas Dismissed in 3Q09 NEXCEN BRANDS: Pursues Dismissal of Consolidated Securities Suit NORTH CARLOINA: Charter Schools Challenge N.C. Funding Rule ODYSSEY RE: CapGrowth Lawsuit Complains About Fairfax Merger PELICAN BAY: Prison Officials Charges with Canteen Price Gouging PEROT SYSTEMS: Lawsuit Challenges Dell Acquisition Purchase Price PIEDMONT OFFICE: Defends Wells REIT Securities Suit in Md. PIEDMONT OFFICE: Discovery in Amended Securities Suit Ongoing PNC BANK: N.J. Lawsuit Challenges Overdraft Fee Computations TICKETMASTER ENTERTAINMENT: Expects "Schlessinger" Status Motion TICKETMASTER ENTERTAINMENT: Defends Consolidated Securities Suit TICKETMASTER ENTERTAINMENT: To Respond to Merged Consumer Suit TICKETMASTER ENTERTAINMENT: 5 Canadian Consumer Lawsuits Pending TRAILER BRIDGE: Settlement of Pricing Practice Lawsuit Pending TURNSTONE SYSTEMS: Settlement Approved & Company Liquidated WASHINGTON MUTUAL: Employees' Suit Against JP Morgan Dismissed ZIPCAR INC: Mass. Lawsuit Challenges Various Car Rental Fees New Securities Fraud Cases PROSHARES ULTRASHORT: Pomerantz Haudek Files Lawsuit in S.D.N.Y. RHI ENTERTAINMENT: Coughlin Stoia Files Fraud Suite in S.D.N.Y. SPONGETECH DELIVERY: Rosen Files Shareholder Suit in S.D.N.Y. ********* AFFILIATED COMPUTER: Tex. Lawsuit Says Xerox's Offer Inadequate --------------------------------------------------------------- Courthouse News Service reports that a class of stockholders of Affiliated Computer Services say the $6.4 billion merger with Xerox is "grossly inadequate and fundamentally unfair," in Dallas County Court. A copy of the Complaint in Rahe v. Affiliated Computer Services, Inc., et al., Case No. 09-13786 (Tex. Dist. Ct., 14th J. Dist., Dallas Cty.), is available at: http://www.courthousenews.com/2009/10/09/Xerox.pdf The Plaintiff is represented by: Joseph H. Weiss, Esq. James E. Tullman, Esq. WEISS & LURIE 551 Fifth Avenue, Suite 1600 New York, NY 10176 Telephone: 212-682-3025 - and - Roger K. Mandel, Esq. Marc R. Stanley, Esq. Martin Woodward, Esq. STANLEY, MANDEL & IOLA, LLP 3100 Monticello Ave., Suite 750 Dallas, TX 75205 Telephone: 214-443-4300 AROTECH CORP: N.Y. Securities Fraud Lawsuit Still in Discovery -------------------------------------------------------------- Morris Akerman, et al. v. Arotech Corporation, et al., Case No. 07-CV-01838 (E.D.N.Y.) (Dearie, J.), is proceeding with discovery, according to the company's Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. In May 2007, two purported class-action complaints were filed with the U.S. District Court for the Eastern District of New York against the company and certain of its officers and directors. These two cases were consolidated in June 2007. A similar case that was filed with the U.S. District Court for the Eastern District of Michigan in March 2007 was withdrawn by the plaintiff in June 2007. The complaint seeks class status on behalf of all persons who purchased the Company's securities between Nov. 9, 2004 and Nov. 14, 2005, and alleges violations by it and certain of its officers and directors of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder, primarily related to the company's acquisition of Armour of America in 2005 and certain public statements made with respect to its business and prospects during the Period. The Complaint also alleges that the company did not have adequate systems of internal operational or financial controls, and that its financial statements and reports were not prepared in accordance with GAAP and SEC rules. It seeks an unspecified amount of damages. A lead plaintiff has been named, and the plaintiff's consolidated amended complaint was filed in September 2007. The company's motion to dismiss was due by the end of November 2007, but a decision on the motion is not expected until mid-2008. In April 2009, Arotech announced that its motion to dismiss as a matter of law the class action case brought against it in Federal District Court for the Eastern District of New York has been denied. The company has filed its answer to the Class Action Complaint, and the case is now proceeding to the discovery phase. Representing the plaintiffs are: STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Phone: 310.209.2468 Fax: 310.209.2087 E-mail: SSBNY@aol.com - and - Patrick A. Klingman, Esq. SHEPHERD FINKELMAN MILLER & SHAH, LLC 65 Main Street Chester, CT 06412 Phone: 860-526-1100 Fax: 860-526-1120 E-mail: pklingman@sfmslaw.com - and - Elizabeth Ann Schmid, Esq. BROWER PIVEN, P.C. 488 Madison Avenue New York, NY 10028 Phone: 212-501-9000 Fax: 212-501-0300 E-mail: schmid@browerpiven.com Representing the defendants are: Randall W. Bodner, Esq. ROPES & GRAY LLP One International Place Boston, MA 02110 Phone: 617-951-7000 Fax: 617-951-7050 E-mail: randall.bodner@ropesgray.com ASSET ACCEPTANCE: Improper Credit Reporting Practices Alleged ------------------------------------------------------------- Debt collection agency Asset Acceptance, LLC, exercised its option to remove a lawsuit filed by Johnny Wang, an individual, on his own behalf of all others similarly situated, sued, to federal court. The federal court proceeding is Wang v. Asset Acceptance, LLC, et al., Case No. 09-cv-04797 (N.D. Calif.). The original state court proceeding is Wang v. Asset Acceptance, LLC, et al., Case No. RG09469817 (Calif. Super. Ct., Alameda Cty.). Mr. Wang complains that Asset Acceptance improperly reports information about disputed and so-called zombie debts to credit reporting agencies, and suggests there are more than three million similarly situated individuals. Mr. Wang is represented by: Ethan Preston, Esq. PRESTON LAW OFFICES 1658 North Milwaukee Ave., No. 253 Chicago, IL 60622 Telephone: 312-492-4079 - and - Harry Shulman, Esq. THE MILLS LAW FIRM 880 Las Gallinas Ave., Suite 2 San Rafael, CA 94903 Telephone: 415-455-1326 Asset Acceptance is represented by: Tomio B. Narita, Esq. Jeffrey A. Topor, Esq. SIMMONDS & NARITA LLP 44 Montgomery St., Suite 3010 San Francisco, CA 94104-4816 Telephone: 415-283-1000 BANKATLANTIC: Publishes Notice of Settlement of Derivative Action ----------------------------------------------------------------- On October 9, 2009, BankAtlantic Bancorp, Inc., published a Notice of Pendency and Settlement of Derivative Action relating to the agreement that has been reached to settle the shareholder derivative action captioned D.W. Hugo, Derivatively on behalf of Nominal Defendant BankAtlantic Bancorp, Inc., v. Alan B. Levan, Jarett S. Levan, Jay C. McClung, Marcia K. Snyder, Valerie Toalson, James A. White, John E. Abdo, D. Keith Cobb, Steven M. Coldren and David A. Lieberman, Case No. 08-61018-CV-UNGARO (S.D. Fla.). The settlement agreement remains subject to court approval. Under the terms of the proposed settlement: (i) the plaintiff will release and forever discharge its claims (subject to certain limited exceptions) against the Company and, among others, the Company's past, present and future officers, directors and employees, including the defendants, and all such released claims will be dismissed with prejudice; and (ii) the defendants will fully, finally, and forever release and relinquish all claims that have been, or could have been, asserted against the plaintiff relating to the institution, prosecution or settlement of the Action. The Company is not required to make any payments and, as a result, the settlement, if finalized in accordance with its terms, will not have any impact on the Company's financial condition or results of operations. The complete terms of the proposed settlement are set forth in a Stipulation of Settlement dated as of August 24, 2009. A full-text copy of the Notice is available at http://is.gd/4ckVf and a full-text copy of the Stipulation is available at http://is.gd/4ckWJ Lead counsel to the Plaintiffs is: Jeffrey J. Angelovich, Esq. NIX, PATTERSON & ROACH, LLP 3600 B. North Capital of Texas Highway, Suite 350 Austin, TX 78746 Counsel to BankAtlantic is: Eugene E. Stearns, Esq. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, PA Museum Tower, Suite 2200 150 West Flagler Street Miami, FL 33130 The settlement of this Derivative Action does not settle claims against BankAtlantic asserted in a related securities fraud class action filed against BankAtlantic Bancorp and certain of its officers and directors in the United States District Court for the Southern District of Florida, Case No. 07-61542-CIV-UNGARO, filed on October 29, 2007, nor a related ERISA class action, brought pursuant to section 502 of ERISA, filed against BankAtlantic Bancorp, the Security Plus Plan Committee, the Compensation Committee, and certain officers, directors, and current and former members of the Security Plus Plan Committee in the United States District Court for the Southern District of Florida, Case No. 07-61862-CIV-UNGARO, on December 20, 2007. CALIFORNIA: Lawsuit Challenges State's Right to Collect DNA ----------------------------------------------------------- Elizabeth Aida Haskell and Reginald Ento, on behalf of themselves and others similarly situated, filed suit against Edmund G. Brown, Jr., the Attorney General of the State of California; Eva Steinberger, the Assistant Bureau Chief for DNA Programs for California Department of Justice; and Michael Hennessey, the Sheriff for San Francisco County, Case No. 09-cv-4779 (N.D. Calif.), on Oct. 6, 2009. The Plaintiffs challenge a California statute requiring people who are arrested for any felony to provide DNA samples to be analyzed and included in a criminal database, and assert that the statute violates their rights under the Fourth and Fourteenth Amendments of the United States Constitution. A copy of the Complaint is available at: http://www.courthousenews.com/2009/10/08/DNA%20samples.pdf The Plaintiffs are represented by: Michael Temple Risher, Esq. ACLU FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Fax: (415) 255-8437 E-mail: mrisher@aclunc.org - and - Peter Clarence Meier, Esq. Eric Andrew Long, Esq. Katharine Chao, Esq. PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor San Francisco, CA 94105-3441 Telephone: (415) 856-7000 Fax: (415) 856-7100 E-mail: petermeier@paulhastings.com ericlong@paulhastings.com sarahchang@paulhastings.com DAIRY FARMERS: Milk Distribution Antitrust Suit Filed in Vermont ---------------------------------------------------------------- Ben Hallman at The Am Law Litigation Daily reports that an antitrust class action against the Dairy Farmers of America and Dean Foods Company was filed in Vermont last week. The complaint in Allen, et al., v. Dairy Farmers of America, Inc., et al., Case No. 09-cv-00230 (D. Vt.) (Sessions, J.) -- see http://amlawdaily.typepad.com/milkvermont.pdf-- charges Dairy Farmers (the nation's largest dairy co-op) and Dean (the largest dairy processor in the country) with monopolizing milk distribution in the Northeast and forcing dairy farmers to join the co-op or its marketing affiliate to survive. Together the two processors bottle about 90 percent of the fluid milk in the Northeast. The suit also names marketing affiliate and milk processor HP Hood for aiding the alleged monopolization and price fixing. Benjamin D. Brown, Esq., at Cohen Milstein Sellers & Toll, representing the Plaintiffs, tells Mr. Hallman that Dairy Farmers, which began as an organization to represent dairy farmers and ostensibly operates with antitrust immunity, had become so vertically integrated -- including owning an interest in a major bottling operation -- that it had become a "Frankenstein monster." Mr. Brown anticipates a class of as many as 10,000 northeast dairy farmers. Mr. Hallman says that the Vermont class action is similar to Benson, et al., v. Dean Foods Company, et al., Case No. 09-cv-00128 (E.D. Tenn.). A copy of the Tennessee Complaint is available at http://amlawdaily.typepad.com/milktn.pdfand Dean Foods' latest disclosures concerning that litigation appear in the May 26, 2009, edition of the Class Action Reporter. The Vermont Plaintiffs are represented by: Benjamin D. Brown, Esq. Daniel A. Small, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC Suite 500, West Tower 1100 New York Avenue, N.W. Washington, DC 20005 Telephone: 202-408-4600 - and - J. Douglas Richards, Esq. George F. Farah, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 150 E. 52nd St., 30th Floor New York, NY 10022 Telephone: 212-838-7797 - and - Andrew D. Manitsky, Esq. Gracel and Shea, P.C. 76 St. Paul St., 7th Floor P.O. Nox 369 Burlington, VT 05402-0369 Telephone: 802-658-0220 Dean Foods is represented by: Paul T. Denis, Esq. Paul H. Friedman, Esq. DECHERT LLP 1775 I Street, NW Washington, D.C. 20006-2401 Telephone: 202-261-3300 in both the Vermont and Tennessee litigation. FIBERNET TELECOM: Defends "Chen" Civil Complaint in New York ------------------------------------------------------------ FiberNet Telecom Group, Inc., is defending a putative class action complaint captioned, Chen v. DeLuca, et al., filed in the Supreme Court of New York for the County of New York. On July 10, 2009, the civil action was filed against the company and its directors, as well as Zayo Group, LLC and Zayo Merger Sub, Inc., a direct wholly owned subsidiary of Zayo Group. The action was brought by a purported stockholder of the company, on behalf of a putative class of company stockholders, and, among other things, seeks to enjoin the consummation of the merger of Merger Sub with and into the company and seeks an award of monetary damages, costs and an accounting for all profits and any special benefits obtained by the defendants as a result of the proposed Merger. Plaintiff alleges that the decisions by the company's directors to approve the Merger constituted breaches of their respective fiduciary duties because they failed to engage in an honest and fair sales process and failed to disclose material facts regarding the proposed Merger. Plaintiff also contends that the company, Zayo Group and Merger Sub aided and abetted the alleged breaches of fiduciary duties by the company's directors, according to its Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. FiberNet Telecom Group, Inc. -- http://www.ftgx.com/-- provides interconnection services enabling the exchange of voice, video and data traffic between multiple, global networks. The Company owns and operates colocation facilities and diverse transport routes in the gateway markets of New York/New Jersey, Los Angeles, Chicago and Miami. The Company's network infrastructure and facilities are designed to provide broadband interconnectivity for network operators, including domestic and international telecommunications carriers and service providers. In its network-neutral colocation facilities, FiberNet provides racks, cabinets and customized caged spaces for its customers to deploy networking equipment and establish network points of presence. The facilities are located in the carrier hotels of gateway markets. The Company also provides redundant power systems, environmental controls and security for customers' colocation needs at these network aggregation points. FIBERNET TELECOM: Awaits Final Approval of Del. Suit Settlement --------------------------------------------------------------- FiberNet Telecom Group, Inc., awaits final approval of the settlement of a putative class action complaint filed in the Court of Chancery of the State of Delaware. On May 28, 2009, the company, Zayo Group, LLC, a Delaware limited liability company and Zayo Merger Sub, Inc., a Delaware corporation and direct wholly-owned subsidiary of Zayo Group, entered into an Agreement and Plan of Merger, pursuant to which Merger Sub will merge with and into the company, with FiberNet continuing after the Merger as the surviving corporation. As a result of the Merger, the company will become a wholly owned subsidiary of Zayo Group. On June 19, 2009, the putative class action complaint, Masucci v. FiberNet Telecom Group, Inc., et al., was filed in the Court of Chancery of the State of Delaware against the company, its directors, Zayo Group and Merger Sub. On July 23, 2009, all parties to the Delaware Litigation executed a Memorandum of Understanding, pursuant to which, inter alia, the company would make additional public disclosures, and all claims in the Delaware Litigation would be dismissed in accordance with the terms of the MOU. The settlement of the Delaware Litigation is subject to approval of the Delaware Court of Chancery and is conditional on consummation of the Merger, according to the company's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. FiberNet Telecom Group, Inc. -- http://www.ftgx.com/-- provides interconnection services enabling the exchange of voice, video and data traffic between multiple, global networks. The Company owns and operates colocation facilities and diverse transport routes in the gateway markets of New York/New Jersey, Los Angeles, Chicago and Miami. The Company's network infrastructure and facilities are designed to provide broadband interconnectivity for network operators, including domestic and international telecommunications carriers and service providers. In its network-neutral colocation facilities, FiberNet provides racks, cabinets and customized caged spaces for its customers to deploy networking equipment and establish network points of presence. The facilities are located in the carrier hotels of gateway markets. The Company also provides redundant power systems, environmental controls and security for customers' colocation needs at these network aggregation points. HORIZON BLUE: Class Action Lawyer Chided for Delaying Settlement ---------------------------------------------------------------- Henry Gottlieb at the New Jersey Law Journal reports that the Honorable Faith Hochberg accused class action lawyer David Mazie, Esq., at Mazie Slater Katz & Freeman in Roseland, N.J., of trying to delay a settlement that helped nearly 600 eating disorder patients in a lawsuit against Horizon Blue Cross Blue Shield of New Jersey so he could pursue a fight with a co-counsel over shares of a $2.45 million fee award. Judge Hochberg told Mr. Mazie that he'd put his own interests above "those of people who are dying" when he sought to make the division of fees an issue just before the preliminary settlement in January. Then she scolded Mazie for denying the accusation, Mr. Gottlieb reports. The exchange took place, Mr. Gottlieb relates, near the end of an unusual hearing in which Judge Hochberg gave Mr. Mazie and opponent Bruce Nagel, Esq., at Nagel Rice in Roseland, N.J., an opportunity to testify under oath and cross examine each other in the fee dispute that continues months after the underlying case settled. It was like an exasperated parent ordering two children claiming the largest dish of ice cream to duke it out in backyard, Mr. Gottlieb says. In this case, Judge Hochberg jumped into the fray and gave Mr. Mazie a few verbal shots to the head before dismissing both lawyers with a warning not to add their time at the hearing to their bills. Mr. Gottlieb reports that Judge Hochberg is studying how to divide up $2.45 million in fees that Horizon and its claims consultant agreed to pay to settle the class action eating disorder case the firms pursued together for the class but for different lead plaintiffs, Mazie's Beye v. Horizon, Case No. 06-5337 (D. N.J.), and Nagel's Drazin v. Horizon, Case No. 06-6219 (D. N.J.). Mr. Gottlieb's full report is available at http://is.gd/489Un JENNIFER CONVERTIBLES: Employee Class Action Filed in N.D. Calif. ----------------------------------------------------------------- Jennifer Convertibles, Inc., disclosed that on July 16, 2009, a complaint styled as a putative class action was filed against it in the United States District Court of the Northern District of California by Ayisha Combs individually and on behalf of all others similarly situated. The complaint in Combs v. Jennifer Convertibles, Inc., Case No. 09-cv-03242 (N.D. Calif.) (Illston, J.), seeks unspecified damages for alleged violations of the California Labor Code sections 201, 202, 203, 204, 226, 226.7, 510, 512, 515, 1174, 1198 and 2802, violations of Section 17200, et seq., of the California Business and Professions Code and violations of the federal Fair Labor Standards Act. The alleged violations include, among other things, failure to pay overtime, failure to reimburse certain expenses, failure to provide adequate rest and meal periods and other labor related complaints. Jennifer Convertibles' CEO Harley J. Greenfield says that the Company "intend[s] to defend the matter vigorously." Jennifer Convertibles is represented by: S. Fey Epling, Esq. Josephine Ko, Esq. Cheryl Denise Orr, Esq. DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105-2235 Telephone: 415-591-7500 The Plaintiff is represented by: Alan Dale Harris, Esq. Matthew Evan Kavanaugh, Esq. HARRIS & RUBLE 6424 Santa Monica Boulevard Los Angeles, CA 90038 Telephone: 323-962-3777 - and - David S. Harris, Esq. NORTH BAY LAW GROUP 116 E. Blithedale Ave., No. 2 Mill Valley, CA 94941 Telephone: 415-388-8788 MDL 1203: Third Circuit Upholds $567 Mil. Fen-Phen Fee Award ------------------------------------------------------------ Shannon P. Duffy at The Legal Intelligencer reports that the United States Court of Appeals for the Third Circuit rejected challenges to the $567 million attorney fee award in the fen-phen diet-drug litigation, declaring that Chief U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania had handled the massive case properly at every step. "The amount of the award, though extraordinarily large, is not excessive in this extraordinary case," Third Circuit Judge Kent A. Jordan wrote. Judge Jordan found that Judge Bartle "employed transparent procedures and undertook a thorough and proper analysis -- based on the appropriate information -- in determining the award." The Legal Intelligencer's full report is available at http://is.gd/46BFt The Third Circuit's 75-page Opinion in In re Diet Drugs, etc., Nos. 08-2363 & 08-2387, is available at: http://www.ca3.uscourts.gov/opinarch/082363p.pdf The proceeding before the trial court is In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, MDL No. 1203; Master Docket No. 99-cv-20593 (E.D. Pa.). NATURAL HEALTH: Securities Fraud Suit in Texas Dismissed in 3Q09 ---------------------------------------------------------------- Zagami v. Natural Health Trends Corp, et al., Case No. 06-cv-01654 (N.D. Tex.) (Fitzwater, J.), a securities fraud class action lawsuit, has been dismissed, according to the company's Aug. 14, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Sept. 11, 2006, The Rosen Law Firm P.A. filed a putative class action suit purportedly on behalf of certain purchasers of the company's common stock to recover damages caused by alleged violations of federal securities laws. The lawsuit names the company and certain current and former officers and directors as defendants. On Dec. 20, 2006, the court granted an unopposed motion to designate The Rosen Law Firm P.A. as lead counsel. On Feb. 20, 2007, the named plaintiffs filed an amended complaint. On March 26, 2008, the District Court denied the defendants' motions to dismiss the amended complaint. The company and the other defendants have signed a definitive settlement agreement with the plaintiffs, pursuant to which the shareholder class will receive a total payment of $2.75 million. Of that amount, the company's directors and officers insurance carriers have agreed in principal to pay $2.5 million, and the company has agreed in principal to pay $250,000. On July 21, 2009, the Court granted final approval of the settlement and entered an order dismissing all claims. Representing the plaintiffs are: Thomas E. Bilek, Esq. HOEFFNER & BILEK 1000 Louisiana St., Suite 1302 Houston, TX 77002 Phone: 713-227-7720 Fax: 713-227-9404 E-mail: tbilek@hb-legal.com - and - Christopher S. Hinton, Esq. THE HINTON LAW FIRM 350 Fifth Ave., Suite 5508 New York, NY 10118 Phone: 646-723-3377 Fax: 212-202-3827 - and - Phillip Kim, Esq. Laurence Rosen, Esq. THE ROSEN LAW FIRM 350 Fifth Ave., Suite 5508 New York, NY 10118 Phone: 212-686-1060 Fax: 214-202-3827 NEXCEN BRANDS: Pursues Dismissal of Consolidated Securities Suit ---------------------------------------------------------------- NexCen Brands, Inc., seeks to dismiss an amended consolidated putative securities class action complaint pending in the U.S. District Court for Southern District of New York. Four putative securities class actions have been filed in New York against NexCen Brands and certain of the company's former officers and current director for alleged violations of the federal securities laws. These actions are: -- Mark Gray v. NexCen Brands, Inc., David S. Oros, Robert W. D'Loren & David Meister, No. 08-CV-4906 (filed on May 28, 2008); -- Ghiath Hammoud v. NexCen Brands, Inc., Robert W. D'Loren, & David B. Meister, No. 08-CV-5063 (filed on June 3, 2008); -- Ronald Doty v. NexCen Brands, Inc., David S. Oros, Robert W. D'Loren & David Meister, No. 08-CV-5172 (filed on June 5, 2008); and -- Frank B. Falkenstein v. NexCen Brands, Inc., David S. Oros, Robert W. D'Loren, David Meister, No. 08-CV-6126 (filed on July 3, 2008). Although the formulations of the allegations differ slightly, plaintiffs allege that defendants violated federal securities laws by misleading investors in the company's public filings and statements. The complaints assert claims under Section 10(b) of the Exchange Act and SEC Rule 10b-5, and also assert that the individual defendants are liable as controlling persons under Section 20(a) of the Exchange Act. Plaintiffs seek damages and attorneys' fees and costs. On March 5, 2009, the court consolidated the actions and appointed Vincent Granatelli as lead plaintiff and Cohen, Milstein, Hausfeld & Toll, P.L.L.C. as lead counsel. On Aug. 24, 2009, plaintiff filed an Amended Consolidated Complaint. The company intends to file a motion to dismiss the amended complaint on or before Oct. 8, 2009, in accordance with the scheduling order entered by the court, according to its Oct. 6, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2009. NexCen Brands, Inc. -- http://www.nexcenbrands.com/-- is a global brand management and franchising company. The company is focused on managing, developing and acquiring intellectual property (IP) and IP-centric businesses. It owns, licenses, franchises and markets a portfolio of brands including Bill Blass, Waverly, The Athlete's Foot, Shoebox New York, Great American Cookies, MaggieMoo's, Marble Slab Creamery, Pretzel Time and Pretzelmaker. It licenses and franchises these brands to a network of retailers, manufacturers and franchisees that includes segments of retail distribution from the luxury market to the mass market in the U.S. and in over 50 countries around the world. The company's franchise network consists of approximately 1,900 retail stores. NexCen Brands operates in three segments: Consumer Branded Products, Retail Franchising and Quick Service Restaurant Franchising (QSR). NORTH CARLOINA: Charter Schools Challenge N.C. Funding Rule ----------------------------------------------------------- Dan McCue at Courthouse News Service reports that North Carolina law unconstitutionally omits charter schools from state funding that would allow them to buy interest in real estate and other capital outlays, as traditional public schools do, a class action claims in Mecklenburg County Court. The suit, filed on behalf of several charter schools, their students and the students' parents, claims that the funding regime established by the state's General Assembly, denies them access to a funding source that's freely granted to traditional public schools: the state's capital outlay fund. As a result, the complaint says, state lawmakers have effectively established two, non-uniform public school systems. The plaintiffs seek a court declaration that the laws are discriminatory and unconstitutional, and an order making them eligible for such funding immediately. Under North Carolina law, the county and local school districts in which charter-school students live can transfer to charter schools two of the three funding sources provided to traditional public schools: an amount of state aid equal to the average per- pupil allocation in the local public schools, and an amount equal to the current expense appropriation to the local public school district for the fiscal year. But the statutes don't allow counties or local school administrative units to provide charter schools with money from the capital outlay fund, the complaint says. This means that charter schools can lease property or mobile classroom units for school use, the lawsuit explains, but they can't receive state funds to buy any interest in the property. "This funding scheme is disparate, discriminatory, unequal and un-uniform," the plaintiffs claim. In addition to violating the U.S. Constitution, it also violates state laws that hold "people have a right to the privilege of education and it is the duty of the state to guard and maintain that right," the lawsuit states. A copy of the Complaint in Sugar Creek Charter School, Inc., et al. v. State of North Carolina, et al., Case No. 09CVS23289 (N.C. Gen. Ct. J., Mecklenburg Cty.), is available at: http://www.courthousenews.com/2009/10/09/Charter%20schools.pdf The Plaintiffs are represented by: Robert F. Orr, Esq. Jason B. Kay, Esq. 333 Six Forks Road, Suite 180 Raleigh, NC 27609 Telephone: 919-838-5313 ODYSSEY RE: CapGrowth Lawsuit Complains About Fairfax Merger ------------------------------------------------------------ On October 7, 2009, the directors of Odyssey Re Holdings Corp., the Company (as a nominal defendant), Fairfax Financial Holdings Limited and Fairfax Investments USA Corp. were served with a purported stockholder derivative and class action complaint, dated October 7, 2009, filed in the Superior Court of Connecticut, Judicial District of Stamford/Norwalk. The action, captioned CapGrowth Partners v. Watsa, et al., Docket No. CV09-6002152-S, purports to assert claims against the members of the Company's board of directors for alleged breaches of their fiduciary duties to the Company's stockholders in connection with the transactions contemplated by the Agreement and Plan of Merger, dated as of September 18, 2009, among the Company, Fairfax, including the merger contemplated thereby and the cash tender offer to purchase all of the Company's outstanding common stock, other than those shares of common stock held by Fairfax and its subsidiaries, at a price of $65.00 per share, net to the seller in cash, without interest thereon and less any applicable withholding of taxes, and a claim against Fairfax for allegedly aiding and abetting such alleged breaches of fiduciary duties. The CapGrowth Complaint seeks, among other relief, a declaratory judgment, monetary and recissory damages. The plaintiff is also seeking, by separate application, a temporary restraining order, expedited discovery and a temporary injunction as to the Offer and Merger. The Defendants believe that the claims made in the CapGrowth Complaint are without merit and intend to vigorously defend against this action. On-line docket information about this proceeding is available at http://is.gd/46O3Z CapGrowth is represented by: John F. Keating, Esq. 71 Route 39, Suite One New Fairfield , CT 06812 PELICAN BAY: Prison Officials Charges with Canteen Price Gouging ---------------------------------------------------------------- Karina Brown at Courthouse News Service reports that Pelican Bay State Prison officials drastically raised prices on coffee and other foods sold to inmates in a prison store in order to fund work on the prison's gym and library, according to a class action filed in Federal Court. Lead plaintiff James Godoy says the price hikes violate the Takings Clause of the Fifth Amendment, because officials are using the higher prices to illegally take inmates' private money for use on public projects. Prison officials allegedly funneled the extra money into the prison's "Inmate Welfare Fund," which the prison uses to maintain the prison's visiting areas, gym and library. Suppliers of coffee and other commodities to the prison canteen have not raised their prices, the inmates say. Instead, the officials are allegedly using the raised prices to replenish the fund after the hit it took from the 9th Circuit's decision in Schneider v. California Department of Corrections. In that case, the state corrections department agreed to stop using interest from inmate trust accounts to pay for the Inmate Welfare Fund, Mr. Godoy says. On behalf of California's approximately 170,000 state prison inmates, Mr. Godoy sued current Pelican Bay Warden Francisco Jacquez, former Warden Robert Horel, Pelican Bay Chief of Inmate Appeals N. Grannis, and Matthew Cate, California's secretary of the Department of Corrections and Rehabilitation. The inmates demand damages and an injunction stopping officials from using increased canteen prices to pay for the Inmate Welfare Fund. A copy of the Complaint in Godoy, et al. v. Horel, et al., Case No. 09-cv-4793 (N.D. Calif.), is available at: http://www.courthousenews.com/2009/10/09/Pelican%20Bay.pdf The Plaintiffs are represented by: Herman Franck, Esq. Elizabeth Vogel, Esq. FRANCK & ASSOCIATES 1801 7th Street, Suite 150 Sacramento, CA 95814 Telephone: 916-447-8400 PEROT SYSTEMS: Lawsuit Challenges Dell Acquisition Purchase Price ----------------------------------------------------------------- Booth Family Trust v. Perot Systems Inc., et al., Cause No. DC-09-13538 (Tex. Dist. Ct., Dallas Cty.), claims that the $3.9 billion Dell Inc., is offering to Perot shareholders is inadequate. The lawsuit was filed on Oct. 5, 2009. The action is brought by The Booth Family Trust, which claims to be a stockholder of Perot Systems, on its own behalf and on behalf of all others similarly situated, and seeks certification as a class action on behalf of all Perot Systems' stockholders, except the defendants and their affiliates. The lawsuit names Perot Systems, each of Perot Systems' directors and Dell as defendants. The lawsuit alleges, among other things, that Perot Systems' directors breached their fiduciary duties by: (1) failing to maximize shareholder value; (2) securing benefits for certain officers and directors of Perot Systems in the Merger at the expense of Perot Systems' public shareholders; (3) discouraging and/or inhibiting alternative offers to purchase control of the corporation or its assets; and (4) failing to provide to Perot Systems' shareholders material information so that they can make an informed decision as to whether to tender their shares. The lawsuit alleges that, as a result of the foregoing, the Offer and the Merger are the result of an unfair process resulting in an unfair price of $30.00 per share. In addition, the lawsuit alleges that Perot Systems and Dell aided and abetted such alleged breaches of fiduciary duties by Perot Systems' directors. Based on these allegations, the lawsuit seeks, among other relief, injunctive relief enjoining the defendants from consummating the Offer and the Merger. It also purports to seek recovery of the costs of the action, including reasonable attorney's fees. A copy of the Complaint is available at http://is.gd/46PXp The Plaintiffs are represented by: William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235-1560 Fax: (405) 239-2112 - and - Patricia Weiser, Esq. Debra S. Goodman, Esq. Henry J. Young, Esq. THE WEISER LAW FIRM, PC 121 North Wayne Ave., Suite 100 Wayne, PA 19087 Telephone: (610) 225-0273 Fax: (610) 225-2678 PIEDMONT OFFICE: Defends Wells REIT Securities Suit in Md. ---------------------------------------------------------- Piedmont Office Realty Trust, Inc., f/k/a/ Wells Real Estate Investment Trust, Inc., continues to defend the class action suit In Re Wells Real Estate Investment Trust, Inc., Securities Litigation Case No. 07-cv-00862, according to Piedmont REIT's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On March 12, 2007, a stockholder of Piedmont REIT filed a purported class-action suit and derivative complaint entitled, "Washtenaw County Employees Retirement System v. Wells Real Estate Investment Trust, Inc., et al." before the U.S. District Court for the District of Maryland against, among others, Wells REIT, and the officers and directors of Wells REIT prior to the closing of the internalization transaction. The complaint attempts to assert class action claims on behalf of those persons who received and were entitled to vote on the proxy statement filed with the U.S. Securities and Exchange Commission on Feb. 26, 2007. The complaint alleges, among other things: -- that the consideration to be paid as part of the Internalization is excessive; -- violations of Section 14(A), including Rule 14a-9 thereunder, and Section 20(A) of the U.S. Securities Exchange Act of 1934, based upon allegations that the proxy statement contains false and misleading statements or omits to state material facts; -- that the board of directors and the current and previous advisors breached their fiduciary duties to the class and to Wells REIT; and -- that the proposed Internalization will unjustly enrich certain directors and officers of Wells REIT. The complaint seeks, among other things: -- certification of the class action; -- a judgment declaring the proxy statement false and misleading; -- unspecified monetary damages; -- to nullify any stockholder approvals obtained during the proxy process; -- to nullify the merger proposal and the merger agreement; -- restitution for disgorgement of profits, benefits and other compensation for wrongful conduct and fiduciary breaches; -- the nomination and election of new independent directors, and the retention of a new financial advisor to assess the advisability of Wells REIT's strategic alternatives; and -- the payment of reasonable attorneys' fees and experts' fees. In April 2007, the court denied the plaintiff's motion for an order enjoining the internalization transaction. The court then granted the defendants' motion to transfer venue to the U.S. District Court for the Northern District of Georgia, and the case was docketed in the Northern District of Georgia on April 24, 2007. In June 2007, the court granted a motion to designate the class lead plaintiff and class co-lead counsel. On June 27, 2007, the plaintiff filed an amended complaint, which contains the same counts as the original complaint, with amended factual allegations based primarily on events occurring subsequent to the original complaint and the addition of a Piedmont officer as an individual defendant. On March 31, 2008, the court granted in part a motion by the defendants to dismiss the amended complaint. The court dismissed five of the seven counts of the amended complaint in their entirety. The court dismissed the remaining two counts with the exception of allegations regarding the company's failure to disclose in its proxy statement details of certain expressions of interest in acquiring Piedmont. On April 21, 2008, the plaintiff filed a second amended complaint, which alleges violations of the federal proxy rules based upon allegations that the proxy statement to obtain approval for Internalization omitted details of certain expressions of interest in acquiring Piedmont. The second amended complaint seeks, among other things, unspecified monetary damages, to nullify and rescind Internalization, and to cancel and rescind any stock issued to the defendants as consideration for Internalization. On May 12, 2008, the defendants answered and raised certain defenses to the second amended complaint. On June 23, 2008, the plaintiff filed a motion for class certification. On Jan. 16, 2009, defendants filed their response to plaintiff's motion for class certification. The plaintiff filed its reply in support of its motion for class certification on Feb. 19, 2009, and the motion is presently pending before the court. The parties are presently engaged in discovery. On April 13, 2009, the plaintiff moved for leave to amend the second amended complaint to add additional defendants. The time for the defendants to respond to the motion for leave to amend has not yet expired On April 13, 2009, the plaintiff moved for leave to amend the second amended complaint to add additional defendants. The defendants responded to the plaintiff's motion for leave to amend on April 30, 2009. The plaintiff filed its reply of its motion for leave to amend on May 18, 2009. The court denied the motion for leave to amend on June 23, 2009. The suit is In Re Wells Real Estate Investment Trust, Inc., Securities Litigation, Case No. 07-cv-00862 (N.D. Ga.) (Pannell, J.). Representing the plaintiffs is: Nicholas E. Chimicles, Esq. CHIMICLES & TIKELLIS, LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041-0100 Phone: 215-642-8500 E-mail: nick@chimicles.com Representing the defendants is: Michael J. Cates, Esq. KING & SPALDING, LLP 1180 Peachtree Street, NE Atlanta, GA 30309-3521 Phone: 404-572-4600 E-mail: mcates@kslaw.com PIEDMONT OFFICE: Discovery in Amended Securities Suit Ongoing ------------------------------------------------------------- The parties in In Re Piedmont Office Realty Trust, Inc. Securities Litigation, Civil Action No. 07-cv-02660, are engaged in discovery, according to Piedmont REIT's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. A second amended complaint in the matter captioned In Re Piedmont Office Realty Trust, Inc. Securities Litigation, Civil Action No. 07-cv-02660, is pending in the U.S. District Court for the Northern District of Georgia. The purported class-action suit was filed on Oct. 25, 2007, by a Piedmont Office Realty Trust Inc. stockholder before the U.S. District Court for the Northern District of Georgia against the company and its board of directors. The complaint attempts to assert class-action lawsuit claims on behalf of: -- those persons who were entitled to tender their shares pursuant to the tender offer filed with the SEC by Lex-Win Acquisition LLC on May 25, 2007, and -- all persons who are entitled to vote on the proxy statement filed with the SEC on Oct. 16, 2007. The complaint alleges, among other things, violations of the federal securities laws, including Sections 14(a) and 14(e) of the U.S. Exchange Act and Rules 14a-9 and 14e-2(b) promulgated thereunder. In addition, the complaint alleges that the defendants have breached their fiduciary duties owed to the proposed classes. On Dec. 26, 2007, the plaintiff filed a motion seeking that the court designate it as lead plaintiff and its counsel as class lead counsel, which the court granted on May 2, 2008. On May 19, 2008, the lead plaintiff filed an amended complaint which contains the same counts as the original complaint. On June 30, 2008, defendants filed a motion to dismiss the amended complaint. On March 30, 2009, the court granted in part the defendants' motion to dismiss the amended complaint. The court dismissed two of the four counts of the amended complaint in their entirety. The court dismissed the remaining two counts with the exception of allegations regarding (i) the failure to disclose information regarding the likelihood of a listing in Piedmont's amended response to the Lex-Win tender offer and (ii) misstatements or omissions in Piedmont's proxy statement concerning then-existing market conditions, the alternatives to a listing or extension that were explored by the defendants, the results of conversations with potential buyers as to Piedmont's valuation, and certain details of our share redemption plan. On April 13, 2009, defendants moved for reconsideration of the court's March 30, 2009 order or, alternatively, for certification of the order for immediate appellate review. The defendants also requested that the proceedings be stayed pending consideration of the motion. On June 19, 2009, the court denied the motion for reconsideration and the motion for certification of the order for immediate appellate review. On April 20, 2009, the plaintiff filed a second amended complaint, which alleges violations of the federal securities laws, including Sections 14(a) and 14(e) of the Exchange Act and Rules 14a-9 and 14e-2(b) promulgated thereunder. The second amended complaint seeks, among other things, unspecified monetary damages, to nullify and void any authorizations secured by the proxy statement, and to compel a tender offer. On May 11, 2009, the defendants answered the second amended complaint. On June 10, 2009, the plaintiffs filed a motion for class certification. The time for defendants to respond to the plaintiff's motion for class certification has not yet expired. Representing the plaintiff are: Nicholas E. Chimicles, Esq. CHIMICLES & TIKELLIS, LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041-0100 Phone: 215-642-8500 E-mail: nick@chimicles.com - and - Meryl W. Edelstein, Esq. CHITWOOD HARLEY HARNES 2300 Promenade II 1230 Peachtree Street, NE Atlanta, GA 30309 Phone: 404-873-3900 E-mail: MEdelstein@chitwoodlaw.com - and - Christopher J. Keller, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Phone: 212-907-0700 E-mail: ckeller@labaton.com Representing the defendants is: J. Timothy Mast, Esq. TROUTMAN SANDERS, LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Phone: 404-885-3312 Fax: 404-962-6796 E-mail: tim.mast@troutmansanders.com PNC BANK: N.J. Lawsuit Challenges Overdraft Fee Computations ------------------------------------------------------------ Courthouse News Service reports that PNC Bank organizes customers' checking account statements from high to low -- rather than chronologically -- to confuse customers and collect more overdraft fees, a class claims in New Jersey Federal Court. A copy of the Complaint in Casayuran v. PNC Bank, National Association, Case No. 33-av-00001 (D. N.J.) (Doc. 6815, filed Oct. 8, 2009), is available at: http://www.courthousenews.com/2009/10/09/PNC%20Bank.pdf The Plaintiff is represented by: Michael Coren, Esq. Andrew L. Watson, Esq. PELLETTIERI, RABSTEIN AND ALTMAN 100 Nassau Park Boulevard, Suite 111 Princeton, NJ 08543-5301 Telephone: (609) 520-0900 - and - Edward J. Feinstein, Esq. Ellen M. Doyle, Esq. STEMBER FEINSTEIN DOYLE & PAYNE, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219-1639 Telephone: (412) 281-8400 TICKETMASTER ENTERTAINMENT: Expects "Schlessinger" Status Motion ---------------------------------------------------------------- Ticketmaster Entertainment, Inc., expects the plaintiffs in Curt Schlessinger, et al. v. Ticketmaster, to file another class certification motion, according to its Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Oct. 21, 2003, a purported representative action was filed in California state court, challenging Ticketmaster Entertainment's charges to online customers for UPS ticket delivery. The complaint alleged in essence that it is unlawful for Ticketmaster Entertainment not to disclose on its website that the fee it charges to online customers to have their tickets delivered by UPS contains a profit component. The complaint asserted a claim for violation of Section 17200 of the California Business and Professions Code and sought restitution or disgorgement of the difference between (i) the total UPS delivery fees charged by Ticketmaster Entertainment in connection with online ticket sales during the applicable statute of limitations period, and (ii) the amount Ticketmaster Entertainment paid to UPS for that service. On Aug. 31, 2005, the plaintiffs filed an amended class-action and representative-action complaint alleging (i) as before, that Ticketmaster Entertainment's website disclosures in respect of its charges for UPS ticket delivery violate Section 17200 of the California Business and Professions Code, and (ii) for the first time, that Ticketmaster Entertainment's website disclosures in respect of its ticket order-processing fees constitute false advertising in violation of Section 17500 of the California Business and Professions Code. On this latter claim, the amended complaint seeks restitution or disgorgement of the entire amount of order-processing fees charged by Ticketmaster Entertainment during the applicable statute of limitations period. On Aug. 14, 2006, the plaintiffs filed a motion for class certification, which Ticketmaster Entertainment opposed. On Sept. 25, 2006, Ticketmaster Entertainment filed a motion for judgment on the pleadings, which the plaintiffs opposed. On Nov. 21, 2006, Ticketmaster Entertainment requested that the court stay the case pending the California Supreme Court's decisions in two cases (In re Tobacco II Cases, 142 Cal. App. 4th 891, and Pfizer Inc. v. Superior Court (Galfano), 141 Cal. App. 4th 290) that present issues concerning the interpretation of Proposition 64 that are directly pertinent to both of the pending motions. The plaintiffs opposed Ticketmaster Entertainment's request. On Nov. 29, 2006, the court ordered that the case be stayed pending the California Supreme Court's ruling on the two cases. On July 11, 2007, the court lifted its stay of the action for the limited purpose of allowing the plaintiffs to proceed with their motion for class certification. The parties thereafter submitted supplemental briefing in support of their respective positions and argued the motion at a September 20 hearing. On Dec. 19, 2007, the court issued an order denying the plaintiffs' motion for class certification without prejudice. The court also issued an order staying the action for an additional 180 days or until the California Supreme Court issues a ruling in the Tobacco II and Pfizer appeals. Oral argument in the Tobacco II case took place on March 3, 2009. On Feb. 20, 2009, plaintiffs filed a motion for leave to file a second amended complaint, which purports to add the allegation that Ticketmaster Entertainment's order processing fees are unconscionably high. Ticketmaster Entertainment opposed the motion on March 16, 2009. On March 3, 2009, the California Supreme Court heard oral argument in the Tobacco II case, and the court decided on the case on May 18, 2009. On April 1, 2009, the Court granted plaintiff's motion for leave to file a Second Amended Complaint that clarifies plaintiff's California Business and Professions Code claims and adds the allegation that Ticketmaster's order processing fees are unconscionable as a matter of law. The case is otherwise stayed pending the Tobacco II ruling. Ticketmaster Entertainment filed a demurrer to the Second Amended Complaint on May 8, 2009. Plaintiffs have filed a Third Amended Complaint to attempt to cure deficiencies in the Second Amended Complaint and to seek to address the California Supreme Court's holding in Tobacco II. Ticketmaster Entertainment filed a demurrer to the Third Amended Complaint on July 3, 2009. The parties have stipulated to a hearing on the demurrer on Aug. 7, 2009. Ticketmaster Entertainment, Inc. -- http://www.ticketmaster.com/ -- is a live ticketing and marketing company. It operates in approximately 20 countries worldwide, providing ticket sales, ticket resale services, marketing and distribution through www.ticketmaster.com, one of the largest e-commerce sites on the internet, and related proprietary internet and mobile channels, approximately 7,100 independent sales outlets and 17 call centers worldwide. TICKETMASTER ENTERTAINMENT: Defends Consolidated Securities Suit ---------------------------------------------------------------- Ticketmaster Entertainment, Inc., continues to defend the consolidated amended securities class-action complaint, In re Ticketmaster Entertainment Shareholder Litigation, in California Superior Court. Two putative class-action suits were filed against the company and its Board of Directors. The suits are: -- McBride v. Ticketmaster Entertainment, Inc., Case No. BC407677 (Superior Court of California, Los Angeles County), filed on Feb. 13, 2009; and -- Police & Fire Retirement System of the City of Detroit v. Ticketmaster Entertainment, Inc. et al., Case No. BC408228 (Superior Court of California, Los Angeles County), filed on Feb. 20, 2009. The plaintiff in the McBride case alleges that the Live Nation transaction (the "Transaction") delivers insufficient value to Ticketmaster Entertainment stockholders; that the board failed to adequately consider alternative transactions; and that Ticketmaster Entertainment insiders benefit disproportionately from the Transaction. Among other things, the complaint seeks an injunction against the consummation of the Transaction and compensatory damages for Ticketmaster Entertainment stockholders. The second putative class-action suit, Police & Fire Retirement System of the City of Detroit, was filed against Ticketmaster Entertainment and the members of its Board of Directors in the same Los Angeles court in which the McBride complaint was filed. The focus of this case is the alleged failure of Ticketmaster Entertainment to obtain the highest price and on alleged insufficiencies in the deal protections. Also included is a disclosure claim, which alleges that Ticketmaster Entertainment wrongfully failed to disclose certain antitrust-related schedules with the merger agreement, which the plaintiff alleges makes it difficult for stockholders to assess certain provisions of the merger agreement. These actions were consolidated under the caption In re Ticketmaster Entertainment Shareholder Litigation, Lead Case No. BC407677, by a court order dated March 30, 2009. The plaintiffs filed an amended complaint in the consolidated action on July 2, 2009. The consolidated amended complaint generally alleges that Ticketmaster Entertainment and its directors breached their fiduciary duties by entering into the Merger Agreement without regard to the fairness of the Merger Agreement to the Ticketmaster Entertainment stockholders and by failing to obtain the best possible value for shares of Ticketmaster Entertainment common stock. The consolidated amended complaint also alleges that the amended proxy statement jointly filed on Form S-4/A by Live Nation and Ticketmaster Entertainment with the Securities and Exchange Commission on July 1, 2009, contains material omissions and misstatements. Live Nation and its financial advisors, Goldman Sachs and Deutsche Bank, and Ticketmaster Entertainment's financial advisor, Allen & Co., are also named as defendants in the consolidated action and are charged with aiding and abetting the Ticketmaster Entertainment directors' alleged breaches of fiduciary duty. Among other things, the consolidated amended complaint seeks an injunction barring the completion of the Merger until an adequate proxy statement is filed and Ticketmaster Entertainment and its directors have completed a process for selling Ticketmaster Entertainment or evaluating its strategic alternatives that produces the greatest possible consideration for shares of Ticketmaster Entertainment common stock, rescission of the Merger Agreement, compensatory damages, and attorneys' fees and expenses, according to the company's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Ticketmaster Entertainment, Inc. -- http://www.ticketmaster.com/ -- is a live ticketing and marketing company. It operates in approximately 20 countries worldwide, providing ticket sales, ticket resale services, marketing and distribution through www.ticketmaster.com, one of the largest e-commerce sites on the internet, and related proprietary internet and mobile channels, approximately 7,100 independent sales outlets and 17 call centers worldwide. TICKETMASTER ENTERTAINMENT: To Respond to Merged Consumer Suit -------------------------------------------------------------- Ticketmaster Entertainment, Inc., will have 30 days to respond to a consolidated consumer class action complaint filed in the Central District of California. From February through June 2009, eleven purported class action lawsuits asserting causes of action under various state consumer protection laws were filed against Ticketmaster Entertainment and TicketsNow in District Courts in California, New Jersey, Minnesota, Pennsylvania, and North Carolina. The lawsuits allege that Ticketmaster and TicketsNow unlawfully deceived consumers by, among other things, selling large quantities of tickets to TicketsNow's ticket brokers, either prior to or at the time that tickets for an event go on sale, thereby forcing consumers to purchase tickets at significantly marked-up prices on TicketsNow instead of Ticketmaster.com. Plaintiffs further claim that Ticketmaster Entertainment violated various state consumer protection laws by allegedly "redirecting" consumers from Ticketmaster.com to Ticketsnow.com, thereby engaging in false advertising and an unfair business practice by deceiving consumers into inadvertently purchasing tickets from TicketsNow for amounts greater than face value. Plaintiffs claim that Ticketmaster Entertainment has been unjustly enriched by this conduct and seek compensatory damages, a refund to every class member of the difference between face value and the amount paid to TicketsNow, an injunction preventing Ticketmaster Entertainment from engaging in further unfair business practices with TicketsNow, and attorney fees and costs. On July 20, 2009, all of the cases were consolidated and transferred to the Central District of California. A consolidated class action complaint must be filed no later than Aug. 20, 2009. Ticketmaster Entertainment will have 30 days to respond, according to the company's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Ticketmaster Entertainment, Inc. -- http://www.ticketmaster.com/ -- is a live ticketing and marketing company. It operates in approximately 20 countries worldwide, providing ticket sales, ticket resale services, marketing and distribution through www.ticketmaster.com, one of the largest e-commerce sites on the internet, and related proprietary internet and mobile channels, approximately 7,100 independent sales outlets and 17 call centers worldwide. TICKETMASTER ENTERTAINMENT: 5 Canadian Consumer Lawsuits Pending ---------------------------------------------------------------- Ticketmaster Entertainment, Inc., and several of its subsidiaries continue to face putative consumer class-action complaints filed in Canada, according to the company's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. In February 2009, five putative consumer class-action complaints were filed in Canada against TNow Entertainment Group, Inc., Ticketmaster Entertainment, Inc., Ticketmaster Canada Ltd., and Premium Inventory, Inc. All of the cases allege essentially the same set of facts and causes of action: each plaintiff purports to represent a class consisting of all persons who purchased a ticket from Ticketmaster Entertainment, Ticketmaster Canada or TicketsNow from early February 2007 to the present. Each proposed class purports to extend to United States as well as Canadian consumers. The complaints allege in essence that Ticketmaster Entertainment and Ticketmaster Canada conspired to divert a large number of tickets for resale through the TicketsNow website at prices higher than face value in violation of Ontario's Ticket Speculation Act, the Amusement Act of Manitoba, the Amusement Act of Alberta, and the Quebec Consumer Protection Act. Each lawsuit seeks $500 million in compensatory damages and $10 million in punitive damages on behalf of the class. The Ontario case contains the additional allegation that Ticketmaster Entertainment and TicketsNow's service fees run afoul of anti-scalping laws. Ticketmaster Entertainment, Inc. -- http://www.ticketmaster.com/ -- is a live ticketing and marketing company. It operates in approximately 20 countries worldwide, providing ticket sales, ticket resale services, marketing and distribution through www.ticketmaster.com, one of the largest e-commerce sites on the internet, and related proprietary internet and mobile channels, approximately 7,100 independent sales outlets and 17 call centers worldwide. TRAILER BRIDGE: Settlement of Pricing Practice Lawsuit Pending -------------------------------------------------------------- Settlement of the consolidated purported class-action lawsuit over Trailer Bridge, Inc.'s pricing practices awaits court approval. On April 17, 2008, the company received a subpoena from the Antitrust Division of the U.S. Department of Justice seeking documents and information relating to a grand jury investigation of pricing practices among Puerto Rico ocean carriers. The company was not served with a search warrant, although press accounts indicate that other carriers were. The company representatives have met with DOJ attorneys and immediately pledged the company's full and complete cooperation with the DOJ investigation. Following publicity about the DOJ investigation, beginning on April 22, 2008, and through May 10, 2008, customers in the Puerto Rico trade lane have filed 34 purported class action complaints against domestic ocean carriers, including Horizon Lines, Sea Star Lines, and Crowley. The company has been named as a co-defendant in these lawsuits. Specifically, the suits named as defendants: -- Horizon Lines, Inc., -- Horizon Lines of Puerto Rico, Inc., -- Horizon Lines, LLC, -- Sea Star Line, LLC, -- Crowley Maritime Corp., -- Crowley Liner Services, Inc., and -- Trailer Bridge, Inc. The actions allege that the defendants inflated prices in violation of federal antitrust laws and seek treble damages, attorneys' fees and injunctive relief. The actions, which were filed in the U.S. District Court for the Southern District of Florida, the U.S. District Court for the Middle District of Florida, and the U.S. District Court for the District of Puerto Rico, have been consolidated for pre-trial purposes into a single multi-district litigation proceeding (MDL 1962) in the District Court of Puerto Rico. On March 10, 2009, the company filed an amended motion to dismiss the claim with the court. The court has not yet ruled on that motion. In June 2009, Horizon Lines and its related companies entered into a settlement agreement with certain named plaintiffs on behalf of a purported class of consumers of shipping services, while denying any liability for the underlying claims. The settlement agreement is subject to Court approval and is subject to various objections, according to the company's Aug. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. The DOJ investigation is a criminal investigation, and the parallel class actions by civil litigants seek remedies that include treble damages. Trailer Bridge, Inc. -- http://www.trailerbridge.com/-- is a trucking and marine transportation company with contract and common carrier authority. Highway transportation services are offered in the continental U.S., while marine transportation is offered between Jacksonville, Florida, San Juan, Puerto Rico and Puerto Plata, Dominican Republic. TURNSTONE SYSTEMS: Settlement Approved & Company Liquidated ----------------------------------------------------------- On November 9, 2001, Arthur Mendoza filed a securities class action lawsuit in the United States District Court for the Southern District of New York alleging claims against Turnstone Systems, Inc., certain of its current and former officers and directors, and the underwriters of the Company's initial public offering of stock as well as the Company's secondary offering of stock. The complaint was brought on behalf of a class of individuals who purchased common stock in the Company's initial public offering and secondary stock offering between January 31 and December 6, 2000. The complaint alleged generally that the prospectuses under which such securities were sold contained false and misleading statements with respect to discounts and commissions received by the underwriters. The case was coordinated for pre-trial purposes with over 300 cases raising the same or similar issues and also currently pending in the Southern District of New York. In February 2009, the parties reached a proposed global settlement of the litigation and so advised the district court. Under the settlement, the insurers would pay the full amount of settlement share allocated to the Company, and the Company would bear no financial liability. The Company, as well as its officer and director defendants who were previously dismissed from the action pursuant to tolling agreements, would receive complete dismissals from the case. In June 2009, the district court issued an order granting preliminary approval of the proposed settlement. On October _, 2009, the district court issued its final approval of the proposed global settlement of the securities class action lawsuit. On October 7, 2009, the Board of Directors of the Company approved the making of a final liquidating distribution of the Company's remaining assets to its stockholders. The final liquidating distribution is tentatively scheduled for October 30, 2009. Based on the Company's projection of remaining liquidating costs, the Company estimates that the amount of the final liquidating distribution will be approximately $0.015 per common share. WASHINGTON MUTUAL: Employees' Suit Against JP Morgan Dismissed -------------------------------------------------------------- Law.com reports that Tim Klass at The Associated Press reports that an attempt by former Washington Mutual Inc. employees to recoup their retirement account losses from JPMorgan Chase & Co., part of a complex tangle of litigation stemming from WaMu's collapse last year, has been dismissed. Some former WaMu directors and individuals who served on 401(k) fund committees remain partly on the hook, Mr. Klass explains, but the New York banking giant cannot be held liable for mismanagement that may have occurred before the Federal Deposit Insurance Corp. seized what was once the nation's largest thrift because of bad housing loans, U.S. District Judge Marsha J. Pechman ruled last week. Also dismissed as a defendant in the lawsuit was Kerry K. Killinger, chief executive of WaMu from its explosive growth after he took over in 1990 until shortly before it ran aground on Sept. 25, 2008, in the largest bank failure in U.S. history. Steve W. Berman, Esq., who represents the employees, said he would move within a week to challenge the ruling in the 9th U.S. Circuit Court of Appeals. Mr. Klass' full report is available at http://is.gd/46HNj The cases are In re Washington Mutual, Inc., Securities, Derivative & ERISA Litigation, Case No. 08-md-1919 (W.D. Wash.) (Pechman, J.), and In re Washington Mutual, Inc., ERISA Litigation, Case No. 07-cv-1874 (W.D. Wash.) (Pechman, J.). ZIPCAR INC: Mass. Lawsuit Challenges Various Car Rental Fees ------------------------------------------------------------ Courthouse News Service reports that Zipcar tacks on a "medley" of secret fees for its car rentals, including unused rental fees, charges for parking tickets and moving violations, and late fees, a class claims in Massachusetts Federal Court. A copy of the Complaint in Blay v. Zipcar, Inc., Case No. 09-cv-11683 (D. Mass.) (Gorton, J.), is available at: http://www.courthousenews.com/2009/10/09/Zipcar.pdf The Plaintiff is represented by: Eugene Richard, Esq. WAYNE, RICHARD & HURWITZ LLP One Boston Place, Suite 3620 Boston, MA 02108 Telephone: (617) 720-7870 - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 - and - Phillip A. Bock, Esq. BOCK & HATCH LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: (312) 658-5501 - and - Ilan Chorowsky, Esq. PROGRESSIVE LAW GROUP LLC 222 W. Ontario Street, Suite 310 Chicago, IL 60610 Telephone: (312) 787-2717 New Securities Fraud Cases PROSHARES ULTRASHORT: Pomerantz Haudek Files Lawsuit in S.D.N.Y. ---------------------------------------------------------------- Pomerantz Haudek Grossman & Gross LLP has filed a class action lawsuit, Case No. 09-cv-06935, in the United States District Court, Southern District of New York, on behalf of investors of ProShares' UltraShort Financials Fund (NYSE:SKF), an exchange- traded fund offered by ProShares Trust, pursuant or traceable to ProShares' false and misleading Registration Statement, Prospectuses, and Statements of Additional Information issued in connection with the SKF Fund's shares. The SKF Fund is an inverse leveraged ETF that seeks investment returns that are two times the inverse performance of the Dow Jones U.S. Financials Index, which is a benchmark index for large U.S. banks and insurance companies. The investigation centers on the allegation that the registration statement filed by ProShares failed to adequately disclose that SKF shares should not be held more than a single trading day and were not an appropriate hedge against a decline in U.S. based financial stocks. Those who invested and would like to discuss this action further are advised to contact Jeremy Lieberman, Esq., at 888-476-6529 or 212-661-1100 or jalieberman@pomlaw.com. Pomerantz has prosecuted securities fraud claims for 70 years, and is regarded as one of the country's premier class action firms. The firm has offices in New York City, Chicago, Washington, D.C., Burlingame, Calif., and Columbus, Ohio. RHI ENTERTAINMENT: Coughlin Stoia Files Fraud Suite in S.D.N.Y. --------------------------------------------------------------- Coughlin Stoia Geller Rudman & Robbins LLP filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of purchasers of the common stock of RHI Entertainment, Inc. (Nasdaq:RHIE) pursuant and/or traceable to the Company's initial public offering on or about June 19, 2008, seeking to pursue remedies under the Securities Act of 1933. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman, Esq., or David A. Rosenfeld, Esq., of Coughlin Stoia at 800/449-4900 or 619/231-1058, or via e-mail at djr@csgrr.com. If you are a member of this Class, you can view a copy of the complaint as filed or join this class action online at: http://www.csgrr.com/cases/rhientertainment/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges RHI Entertainment and certain of its executives with violations of the Securities Act. RHI develops, produces, and distributes new made-for-television movies, mini- series, and other television programming worldwide. The Company also produces new episodic series programming for television. On or about June 13, 2008, RHI filed with the Securities and Exchange Commission a Form S-1/A Registration Statement (the "Registration Statement") for the IPO. On or about June 19, 2008, the Prospectus with respect to the IPO, which forms part of the Registration Statement, became effective and, including the exercise of the over-allotment, more than 13.5 million shares of RHI's common stock were sold to the public, thereby raising more than $189 million. The complaint alleges that, throughout the Class Period, defendants made numerous positive statements regarding the Company's financial condition, business and prospects. According to the complaint, the description of the Company's business in the Registration Statement created the materially misleading impression that at the time of the IPO the Company had orders for 40 MFT movies and mini-series which had been paid for, were in production and would be delivered in the later half of the year. The complaint further alleges that these statements were materially false and misleading because defendants failed to disclose that, given the declining state of the credit markets and other negative factors then impacting the Company's business, the Company would not be able to complete 40 MFT movies and miniseries in 2008. Plaintiff seeks to recover damages on behalf of all purchasers of RHI Entertainment common stock during the Class Period. The plaintiff is represented by Coughlin Stoia, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Coughlin Stoia -- http://www.csgrr.com/-- a 190-lawyer firm with offices in San Diego, San Francisco, Los Angeles, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta, is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. SPONGETECH DELIVERY: Rosen Files Shareholder Suit in S.D.N.Y. ------------------------------------------------------------- The Rosen Law Firm has filed a class action lawsuit on behalf of all purchasers of SpongeTech Delivery Systems, Inc. (OTCBB: SPNGE) (OTCBB: SPNG) stock between April 15, 2008, and October 5, 2009, inclusive. To join the SpongeTech class action, go to the Web site at http://www.rosenlegal.com/or call Laurence Rosen, Esq., or Phillip Kim, Esq., toll-free at 866-767-3653 or email lrosen@rosenlegal.com or pkim@rosenlegal.com for information on the class action. The case is pending in the United States District Court for the Southern District of New York as Case No. 09-CV-8616 (JGK). You can obtain a copy of the complaint from the clerk of court or you may contact counsel for plaintiffs Laurence Rosen, Esq., or Phillip Kim, Esq., toll-free at 866-767-3653 or email lrosen@rosenlegal.com or pkim@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. The complaint charges that SpongeTech, its CEO Michael Metter, CFO Steven Moskowitz and director Frank Lazauskas violated federal securities laws by issuing false and misleading financial information to investors and engaging in a stock manipulation scheme. The complaint alleges that SpongeTech misrepresented its sales revenues, failed to disclose alleged short selling of the Company's stock by certain, and improperly forged opinion letters of counsel in order to permit the sale of the Company's stock. The complaint further alleges that as the truth of the scheme was disclosed publicly the price of SpongeTech stock fell dramatically -- damaging investors. As a result of this alleged misconduct, the Company is the subject of a formal SEC investigation and the SEC has temporarily suspended trading in the Company's stock. A class action lawsuit has already been filed on behalf of SpongeTech shareholders. If you wish to serve as lead plaintiff, you must move the Court no later than December 8, 2009. If you wish to join the litigation or to discuss your rights or interests regarding this class action, please contact plaintiff's counsel, Laurence Rosen, Esq., or Phillip Kim, Esq., of The Rosen Law Firm toll free at 866-767-3653 or via e-mail at lrosen@rosenlegal.com or pkim@rosenlegal.com. The Rosen Law Firm focuses on prosecuting securities class action litigation and actions involving financial fraud. The Rosen Law Firm represents investors throughout the globe concentrating its practice in securities class actions. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. 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