/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091020.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 20, 2009, Vol. 11, No. 207 Headlines CKX INC: Plaintiffs Mull Filing Amended Complaint on 19X Merger CLEARWIRE CORP: Defends False Advertising Suit in W.D. Wash. DYNAMEX INC: Dec. 17 Hearing Set for Judgment Bid in Labor Suit DYNAMEX INC: Lawsuit by Independent Contractor Drivers Stayed DYNAMEX INC: Dec. 4 Mediation Set for Contractor Drivers' Suit ELECTRA BICYCLE: Expands Recall of Bicycles with Trays & Baskets GENERAL MILLS: JPMDL Transfers Cheerios Lawsuits to D. N.J. HEELYS INC: Nov. 17 Hearing Set for Securities Suit Settlement HUMANA INC: Accused in Ky. Lawsuit of Racial Discrimination INTERMARK COMMUNICATIONS: Class Alleges $5 Million Internet Scam MILBANK MANUFACTURING: Recalls 1,400 Electric Meter Sockets MOSER ENTERPRISES: Recalls 5,000 Schwalbe-Brand Bicycle Tires NUTRAMEDICS INC: Lawsuit Claims Diet Pills Spiked with Sildenafil OMNITURE INC: Kendall Files Lawsuit in Utah to Block Adobe Deal PROMIGAS: $5 Mil. Damages Suit Over Pipeline Explosion Pending RAYNOR MARKETING: Recalls 150,000 Chairs Sold at Office Depot SI TECH: Recalls Diving Suit Hoses Due to Drowning Hazard SPONGETECH DELIVERY: Aware of S.D.N.Y. Shareholder Lawsuit SUNAIR SERVICES: Shareholder Attempts to Block Massey Merger THE GAP: Lawsuit Wants Retailer To Halt Cell-Phone Spam VILLAGE OF ISLAMORADA: Property Owners Sue to Block Assessments YUM! BRANDS: Consolidated Wage Suit v. Taco Bell in Discovery YUM! BRANDS: Appeal of Rulings in "Archila" Suit v. KFC Pending YUM! BRANDS: Calif. RGMs Certification Hearing Continued to Dec. YUM! BRANDS: Seeks to Merge "Widjaja" Suit with Similar Cases YUM! BRANDS: Nov. 2009 Arbitration Set for Restitution Liability YUM! BRANDS: Dec. 16 Trial Set for Judgment Bid in Moeller Suit YUM! BRANDS: "Smith" FLSA Suit v. Pizza Hut Pending in Colorado YUM! BRANDS: Blackwood Files FLSA Suit v. Pizza Hut in Kansas New Securities Fraud Cases ADVANTA CORP: Shareholder Fraud Complaint Filed in E.D. Pa. MGM MIRAGE: Diaz & Galt Files Shareholder Complaint in Nevada ********* CKX INC: Plaintiffs Mull Filing Amended Complaint on 19X Merger --------------------------------------------------------------- The plaintiffs in a consolidated lawsuit against CKX, Inc., over a merger agreement with 19X Inc. and 19X Acquisition Corp., are considering filing an amended complaint. Initially, a lawsuit was filed on Dec. 14, 2007, with the Delaware Chancery Court against the company, its directors, 19X Inc. and 19X Acquisition Corp. It was filed by a purported stockholder of the company, and it seeks class-action status to represent all of the company's public stockholders. The complaint alleges that the sale price is too low and that the company's directors have therefore breached their fiduciary duties by approving the transaction. It also seeks a preliminary and permanent injunction preventing the defendants from consummating the merger. Alternatively, if the merger is consummated, the complaint seeks rescission or recessionary damages in an unspecified amount. In addition, the complaint seeks "Class compensatory damages" in an unspecified amount, as well as the costs and disbursements of the action, experts' fees and the fees of plaintiff's attorneys. On Feb. 1, 2008, another summons and complaint was filed with the Delaware Chancery Court against the defendants by another purported shareholder of the company. The complaint is identical to the complaint filed on Dec. 14, 2007. The two cases have been consolidated and, on April 18, 2008, the plaintiffs filed a consolidated amended complaint. In order to resolve the litigation and avoid further cost and delay, CKX and the individual defendants, without admitting any wrongdoing, signed a memorandum of understanding on May 27, 2008, reflecting a tentative settlement agreement with the plaintiffs and memorializing the amended terms to the Merger Agreement and the related management cooperation agreement, as requested by counsel for the plaintiffs in the litigation (Class Action Reporter, Sept. 26, 2008). As a result of the termination of the Merger Agreement in November 2008, the terms of the settlement agreement became moot and therefore the settlement agreement was not finalized. Notwithstanding the termination of the Merger Agreement, plaintiffs' counsel has indicated to the company that it does not intend to consent to a dismissal of the lawsuit, but rather is considering filing an amended complaint. The company is not aware of what the basis for an amended complaint might be and is unable to evaluate the merit of the complaint or anticipate the extent of any liability, according to its Oct. 14, 2009, Form 8-K filing with the U.S. Securities and Exchange Commission. CKX, Inc. -- http://ir.ckx.com/-- was founded on Feb. 7, 2005, and owns and develops entertainment content and intellectual property. CKX holds, among other assets, the rights to the name, image and likeness of Elvis Presley; the operations of Graceland; and an 80% interest in the name, likeness, trademarks, and licensing agreements of Muhammad Ali including Ali's "Greatest Of All Time" (or G.O.A.T.) slogan. CLEARWIRE CORP: Defends False Advertising Suit in W.D. Wash. ------------------------------------------------------------ A purported class action lawsuit against Clearwire Corporation filed before the Superior Court in King County, Washington, is in its early stages. On April 22, 2009, a purported class action lawsuit was filed against the company in Superior Court in King County, Washington by a group of five plaintiffs from Hawaii, Minnesota, North Carolina and Washington. The lawsuit generally alleges that the company disseminated false advertising about the quality and reliability of its services; imposed an unlawful early termination fee; and invoked unconscionable provisions of its Terms of Service to the detriment of customers. Among other things, the lawsuit seeks a determination that the alleged claims may be asserted on a class-wide basis; an order declaring certain provisions of the company's Terms of Service, including the early termination fee provision, void and unenforceable; an injunction prohibiting the company from collecting early termination fees and further false advertising; restitution of any early termination fees paid by the company's subscribers; equitable relief; and an award of unspecified damages and attorneys' fees. On May 27, 2009, an Amended Complaint was filed and served, adding seven additional plaintiffs, including individuals from New Mexico, Virginia and Wisconsin. On June 2, 2009, plaintiffs served the Amended Complaint. The company removed the action to federal court. On July 23, 2009, the company filed a motion to dismiss the amended complaint. Briefing will be completed Sept. 18, 2009. The Court has stayed discovery pending its ruling on the motion. The court has not set a trial date, 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 Minnick, et al. v. Clearwire US LLC, et al., Case No. 09-cv- 00912 (W.D. Wash.) (Pechman, J.), the Plaintiffs are represented by: Felix G. Luna, Esq. PETERSON YOUNG PUTRA 1501 4th Ave., Suite 2800 Seattle, WA 98101-1609 Telephone: 206-624-6800 - and - Jonathan K. Tycko, Esq. Melanie Williamson, Esq. TYCKO & ZAVAREEL LLP 2000 L Street NW, Ste. 808 Washington, DC 20036 Telephone: 202-973-0900 and Clearwire is represented by: Kenneth E. Payson, Esq. Stephen M. Rummage, Esq. Davis Wright Tremaine 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: 206-622-3150 Clearwire Corporation -- http://www.clearwire.com/-- builds and operates wireless broadband networks that enable Internet communications. Its wireless broadband networks cover entire communities and deliver a high-speed Internet connection that not only creates a new communications path into the home or office, but also provides a broadband connection anytime and anywhere within its coverage area. It offers services in both domestic and international markets. The company's services consist primarily of providing wireless broadband connectivity, but in some of its domestic markets, it also offers voice-over Internet protocol (VoIP) telephony services. DYNAMEX INC: Dec. 17 Hearing Set for Judgment Bid in Labor Suit --------------------------------------------------------------- A Dec. 17, 2009 hearing on the motion for summary judgment on Dynamex, Inc.'s affirmative defense in a purported labor class- action lawsuit against the company, according to its Oct. 14, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2009. A company driver filed the suit on April 15, 2005. The lawsuit alleges that the company unlawfully misclassified its California drivers as independent contractors, rather than as employees. The suit asserted, as a consequence, entitlement on behalf of the purported class claimants to overtime compensation and other benefits under California wage and hour laws, reimbursement of certain operating expenses, and various insurance and other benefits and the obligation of the company to pay employer payroll taxes under federal and state law. The plaintiff filed a motion for class certification on Nov. 2, 2006. A hearing was held on Dec. 12, 2006, and the court denied this request. The plaintiff filed a Notice of Appeal on Jan. 5, 2007. Following the exchange of briefs, an Appellate Hearing was held in August 2008. The Appellate Court determined that the trial court's denial of an earlier motion by the plaintiff to compel disclosure of the names and contact information for all members of the putative class prejudiced the plaintiff's ability to support his motion for class certification. The ruling reversed the Denial of the Motion for Class Certification and remanded the matter for additional discovery and eventual re-hearing. Pursuant to Order of the Court, the names and contact information for members of the putative class were produced by the company in January 2009. In early February 2009, Plaintiff was permitted to file a First Amended Complaint, which among other matters, added an additional named Plaintiff. Plaintiffs filed a new Motion for Class Certification in June 2009, seeking the certification of a Class with four Subclasses, each dependent on the type of service rendered by the independent contractor and the weight of the vehicle provided by the independent contractor. On July 28, 2009, the Court granted the Motion. The four subclasses are each subject to between four and eight exclusions. Plaintiffs proposed a Notice of Pendency of Class Action to be sent to members of the Class. The Court approved the Notice over the Company's objections in early October. In early October 2009, Plaintiff filed a Motion for Summary Judgment requesting the Court to issue an Order adjudicating that there is no merit to the Defendant's Affirmative Defense that Plaintiffs' claims are barred because Plaintiffs and the putative class members are not employees, but are independent contractors. Dynamex, Inc. -- http://www.dynamex.com/-- is a provider of same-day delivery and logistics services in the U.S. and Canada. Through its network of business centers, the company provides same-day, on-demand, door-to-door delivery services utilizing its ground couriers. DYNAMEX INC: Lawsuit by Independent Contractor Drivers Stayed ------------------------------------------------------------- A purported class-action lawsuit filed by independent contractor drivers against Dynamex, Inc., remains stayed, according to the company's Oct. 14, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2009. The purported class-action lawsuit was filed on July 25, 2008, by two California independent contractor drivers alleging that the company's classification of California drivers as independent contractors was unlawful, and that as a consequence they were denied the benefit of various California wage laws. The plaintiffs further alleged that such misclassification constituted unfair competition under California business statutes. Because the complaint in large measure contains the same causes of action as an on-going California case filed in 2005, the company filed a Special Demurrer and a Motion to Stay further proceedings pending the outcome of the earlier action. Following a November 2008 Hearing, the Court issued a Stay. Plaintiffs' subsequent attempt to consolidate their action with the Los Angeles County action was denied. On Jan. 21, 2009, one of the named Plaintiffs voluntarily dismissed his claims without prejudice in order to attempt to join the Los Angeles County suit. The Plaintiff has subsequently been added to the Los Angeles County suit. Dynamex, Inc. -- http://www.dynamex.com/-- is a provider of same-day delivery and logistics services in the U.S. and Canada. Through its network of business centers, the company provides same-day, on-demand, door-to-door delivery services utilizing its ground couriers. DYNAMEX INC: Dec. 4 Mediation Set for Contractor Drivers' Suit -------------------------------------------------------------- A Dec. 4, 2009 mediation has been set for a putative class action lawsuit brought by former independent contractor drivers against Dynamex, Inc. On Sept. 29, 2008, five former independent contractor drivers filed an action in California State Court alleging that the company misclassified them as independent contractors rather than employees and further that the company committed unlawful racial harassment and discrimination ultimately resulting in their wrongful termination or wrongful constructive termination, all in violation of the public policy of the State of California. An Amended Complaint was filed on Nov. 20, 2008, and the company thereafter timely filed its Answer. At the Case Management Conference in early February 2009, the parties were ordered to participate in mediation before Dec. 4, 2009, and a trial date of Feb. 8, 2010 was set. The company has deposed all five of the Plaintiffs. The company believes that the Plaintiffs were properly classified as independent contractors and believes that Plaintiffs were treated in conformity with all State and Federal laws, according to its Oct. 14, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2009. Dynamex, Inc. -- http://www.dynamex.com/-- is a provider of same-day delivery and logistics services in the U.S. and Canada. Through its network of business centers, the company provides same-day, on-demand, door-to-door delivery services utilizing its ground couriers. ELECTRA BICYCLE: Expands Recall of Bicycles with Trays & Baskets ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Electra Bicycle Co., of Vista, Calif., announced a voluntary recall of about 6,400 (3,000 of which were previously recalled in March 2009) 2009 Model Electra Bicycles with Front Trays or Baskets. Consumers should stop using recalled products immediately unless otherwise instructed. The front tray or basket on the bicycles can come loose and contact the front tire, posing a fall hazard to riders. Electra Bicycle Co. has received 15 reports of the front tray or the basket coming loose including two reports of minor cuts and bruises. This recall involves the 2009 Delivery 3i, Delivery 8D, Holiday 3i, Holiday 8i and Surf 3i bicycles with front-mounted trays or baskets. The trays have an alloy frame with wooden slats. The baskets are wicker with a removable tote bag. The trays were sold as original equipment on the bicycles and as aftermarket items. The baskets were sold only as aftermarket items. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10011.html The recalled products were sold by authorized Electra Bicycle dealers nationwide from October 2008 through August 2009 for between $600 and $750 for the bicycles and about $100 for after- market trays and baskets, and were manufactured in Taiwan. Consumers should immediately stop riding these bicycles and contact an Electra Bicycle dealer for a free inspection and repair of the trays that came as original equipment on the bicycles, or a refund for trays and baskets purchased as aftermarket items. For additional information, contact Electra Bicycle at (800) 261-1644 between 9 a.m. and 5 p.m. PT Monday through Friday, or visit the firm's Web site at http://www.electrabike.com/ GENERAL MILLS: JPMDL Transfers Cheerios Lawsuits to D. N.J. ----------------------------------------------------------- The Judicial Panel on Multidistrict Litigation has directed the consolidation of all lawsuits pending in the federal court system against General Mills concerning the labeling of its Cheerios cereal products, and, specifically, claims that eating Cheerios can lower a person's cholesterol, to the District of New Jersey. These four lawsuits are being transferred to the District of New Jersey: -- Choi v. General Mills, Inc., Case No. 09-cv-3940 (C.D. Calif.); -- Theodore v. General Mills, Inc., Case No. 09-cv-4620 (C.D. Calif.); -- Huey v. General Mills, Inc., Case No. 09-cv-1368 (E.D. Calif.); and -- Stevens v. General Mills, Inc., Case No. 09-cv-2289 (E.D.N.Y.), and will be consolidated into: -- Myers, et al. v. General Mills, Inc., Case No. 09-cv-02413 (D. N.J.) (Sheridan, J.). In Myers, the Plaintiffs are represented by: Maureen Victoria Abbey, Esq. John W. Olivo, Jr., Esq. John Francis Ward, Esq WARD & OLIVO 382 Springfield Avenue Summit, NJ 07901 Telephone: 908-277-3333 and General Mills is represented by: Colleen Elizabeth Petroni, Esq. GIBSON DUNN & CRUTCHER LLP 1050 Connecticut Avenue NW Washington, DC 20036 Telephone: 202-887-3511 The MDL proceeding will be captioned In Re: Cheerios Marketing & Sales Practices Litigation, MDL No. 2094. HEELYS INC: Nov. 17 Hearing Set for Securities Suit Settlement -------------------------------------------------------------- A Nov. 17, 2009 final fairness hearing has been set for the settlement of the consolidated securities fraud class-action lawsuit against Heelys, Inc., in the U.S. District Court for the Northern District of Texas. The company, its former chief executive officer, its chief financial officer, and its directors, who signed the company's registration statement filed with the Securities and Exchange Commission in connection with its Dec. 7, 2006 initial public offering -- along with Capital Southwest Corp., Capital Southwest Venture Corp., and the underwriters for the IPO -- are defendants in a lawsuit originally filed on Aug. 27, 2007, by plaintiff Brian Rines, individually and on behalf of all persons who purchased the company's common stock pursuant to or traceable to the IPO registration statement. The complaint alleges violations of Sections 11 and 15 of the U.S. Securities Act of 1933. The plaintiff seeks an order determining that the action may proceed as a class action, awarding compensatory damages in favor of the plaintiff and the other class members in an unspecified amount, and reasonable costs and expenses incurred in the action, including counsel fees and expert fees. Four similar lawsuits were also filed in September and October 2007 before the U.S. District Court for the Northern District of Texas, by plaintiffs Vulcan Lee, John Avila, Gerald Markey, and Robert Eiron on behalf of the same plaintiff class, making substantially similar allegations under Sections 11, 12, and 15 of the U.S. Securities Act of 1933, and seeking substantially similar damages. These lawsuits have been transferred to a single judge and have been consolidated into a single action. An amended consolidated complaint was filed on March 11, 2008. The amended complaint alleges that the prospectus used in connection with our IPO contained misstatements of material fact or omitted to state material facts necessary in order to make the statements made not misleading relating to among other allegations, safety concerns and injuries associated with the company's products and their alleged impact on demand, visibility into its sales channel and competition from knockoffs, in violation of Sections 11, 12(a)(2) and 15 of the U.S. Securities Act of 1933 and requests substantially similar damages and relief as previously mentioned. On May 12, 2008, the defendants filed motions to dismiss the amended consolidated complaint. On Aug. 14, 2008, the Court denied Defendants' motions to dismiss the amended complaint, and discovery commenced. During a mediation conducted by the Hon. Nicholas H. Politan (ret.), Plaintiffs and Defendants reached a settlement pursuant to which Defendants will pay Plaintiffs and a proposed plaintiff settlement class a total of $7.5 million, including attorneys' fees and expenses. The company has reached an agreement in principal with its insurers for its insurance policies to fund the majority of this settlement amount. On July 31, 2009, the Court preliminarily approved the settlement and scheduled a final fairness hearing for Nov. 17, 2009, to consider final approval of the settlement. Prior to the final fairness hearing, notice of the settlement will be provided to shareholders, who will be provided an opportunity to object to the settlement or to opt out of the proposed settlement class, 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. Representing the plaintiffs are: Willie Briscoe, Esq. Preston Commons West 8117 Preston Road, Suite 300 Dallas, TX 75225 Phone: 214-706-9314 Fax: 214-706-9315 E-mail: wbriscoe@thebriscoelawfirm.com - and - Roger F. Claxton, Esq. CLAXTON & HILL PLLC 10000 N. Central Expwy., Suite 725 Dallas, TX 75231 Phone: 214-969-9029 Fax: 214-953-0583 E-mail: roger@claxtonhill.com Representing the defendants are: Karen L. Hirschman, Esq. VINSON & ELKINS 2001 Ross Avenue, Suite 3700 Dallas, TX 75201 Phone: 214-220-7795 Fax: 214-220-7716 E-mail: khirschman@velaw.com - and - Rodney Acker, Esq. FULBRIGHT & JAWORSKI 2200 Ross Ave., Suite 2800 Dallas, TX 75201-2784 Phone: 214-855-7446 Fax: 214-855-8200 E-mail: racker@fulbright.com HUMANA INC: Accused in Ky. Lawsuit of Racial Discrimination ----------------------------------------------------------- Courthouse News Service reports that Humana has discriminated against black managers and professional staff since 2000, a class action claims in Louisville Federal Court. A copy of the Complaint in Keys v. Humana, Inc., Case No. 09-cv-834 (W.D. Ky.), is available at: http://www.courthousenews.com/2009/10/16/EmployHumana.pdf The Plaintiff is represented by: David A. Branch, Esq. LAW OFFICES OF DAVID A. BRANCH, PC 1825 Connecticut Avenue, NW, #690 Washington, DC 20009 Telephone: 202-785-2805 INTERMARK COMMUNICATIONS: Class Alleges $5 Million Internet Scam ---------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that a Web-based company that calls itself "GoogleProfits" defrauded more than 20,000 people of millions of dollars by promising they can "make thousands of dollars from at-home businesses," according to a federal class action. The company -- which is not affiliated with Google -- aided by New York-based Intermark Media, preys upon desperate people "facing the worst economy in decades," according to the complaint. James Piccione claims the defendants defrauded more than 20,000 customers of more than $5 million by bogus offers, over the Internet, of a "risk-free trial" of an instructional CD on how to make "250 - $573 per day." Mr. Piccione says he fell for the scheme to "Get cash from Google," but that the deceptive "risk free trial" came with an additional $7.71 monthly charge and obligated him to subscribe to "something called 'Google Profit Resource' for $47.50 per month." GoogleProfits is an unregistered Arizona corporation, and it built its sophisticated, and dishonest, Web page with help from Intermark Media, of Woodbury, N.Y., according to the complaint. Mr. Piccione says he was unwittingly charged $99 that the defendants' fine print said would be come "after the 30 day trial." But Piccione says the 30-day trial is bogus, and the heftier hidden charges follow. Mr. Piccione says he called GoogleProfits "repeatedly and was shunted to voicemail many times without ever receiving a return call." He says he eventually reached a representative from Scottsdale, Ariz., who told him the charge was "non-refundable." He claims Intermark helped GoogleProfits create its sophisticated Web site, which lures customers with fake news stories, bogus endorsements, deceptive ad copy and source code that generates fraudulent customer "testimonials." "That is, 'Kevin M.' from 'Connecticut' is in fact simply a fictitious person whose state name is generated by source code that recognizes and responds to the [Connecticut] IP address of the consumer's computer," according to the complaint. Intermark designed the GoogleProfits site to flash "pressures" such as "Only 20 Left!" and a timer counting down the minutes before an offer "expires," Mr. Piccione says. The come-ons are inserted "at random," according to the lawsuit. "Americans presently find themselves facing the worst economy in decades, and in these desperate times, ordinary consumers are more than ever subjected to a proliferation of work-at-home offers that promise an ability to easily make thousands of dollars from at-home businesses," the complaint states. Mr. Piccione seeks more than $5 million in class damages for fraud and unjust enrichment. A copy of the Complaint in Piccione v. Intermark Communications, Inc., dba Intermark Media, et al., Case No. 09-cv-4395 (E.D.N.Y.) (Seybert, J.), is available at: http://www.courthousenews.com/2009/10/16/GoogleProfits.pdf The Plaintiff is represented by: Will Haselden, Esq. Steven Teppler, Esq. KAMBEREDELSON, LLC 350 North LaSalle, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: whaselden@kamberedelson.com steppler@kamberedelson.com MILBANK MANUFACTURING: Recalls 1,400 Electric Meter Sockets ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Milbank Manufacturing Co., of Kansas City, Mo., announced a voluntary recall of about 1,400 Single Meter Sockets. Consumers should stop using recalled products immediately unless otherwise instructed. A short may occur while in use due to an incorrect bridge installed in the product, to which the meter clips are attached. If the manufacturing defect exists, all metal parts of the meter could create a shock or burns can occur if the cover is off and the meter socket is energized. Three incidents have been reported of the unit shorting out. No injuries were reported. The single meter 200 amp/4 terminal sockets are used for underground utility meter installations. The meter socket is 20-3/4 inches high by 9 inches wide and 4-1/2 inches deep with 1 meter position. It is used by the approving utility to mount their electric meter to measure how much electricity a residence uses. It can be used for an underground residential application. The recalled model number 9090 appears on the right or left side of the installed meter socket. If not installed, model numbers U9090-O or R9090-O will appear on the label on the outside of the box. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10012.html The recalled products were sold at electrical supply distributors in N.Y., Pa., Vt. and Mass. and at local hardware stores in N.Y. from May 2009 through August 2009 for about $70, and were manufactured in the United States. Consumers should stop using the recalled product immediately and contact the electrical supply contractor who installed the sockets. Contractors will contact Milbank Manufacturing for a replacement or reimbursement. Milbank will contact all distributors and stores where the recalled product was sold. For additional information, contact Milbank Manufacturing's Sales Engineer toll-free at (888) 537-0881 between the hours of 8 a.m. and 4 p.m. CT Monday through Friday, or visit the company's Web site at http://www.milbankmfg.com/ MOSER ENTERPRISES: Recalls 5,000 Schwalbe-Brand Bicycle Tires ------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Moser Enterprises, of Canada, announced a voluntary recall of about 5,000 Schwalbe Ultremo R Bicycle Tires manufactured in Indonesia by Ralf Bohle GmbH, of Germany. Consumers should stop using recalled products immediately unless otherwise instructed. The tire layers could separate causing the inner tube to rupture, posing a fall hazard to consumers. No incidents or injuries have been reported. This recall includes Schwalbe Ultremo R bicycle tires. "Schwalbe" and "Ultremo R" are printed on the sidewall of the tires. The tires were sold at bicycle specialty stores and on the Web at http://www.schwalbetires.com/from April 2009 through May 2009 for about $75. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10009.html Consumers should immediately stop using bicycles with the recalled tires and contact their local bicycle dealer for a free replacement set of tires. For more information, contact Moser Enterprises toll-free at (888) 700-5860 between 9 a.m. and 5 p.m. PT Monday through Friday, or visit the firm's Web site at http://www.schwalbetires.com/ NUTRAMEDICS INC: Lawsuit Claims Diet Pills Spiked with Sildenafil ----------------------------------------------------------------- Courthouse News Service reports that Nutramedics dba Palo Alto Labs spiked its "Aspire" diet supplements with dangerous "pharmaceutical grade" analogues of Sildenafil, an erectile dysfunction drug, a class action claims in Broward County Court, Fort Lauderdale. A copy of the Complaint in Beckett v. Nutramedics, Inc., fka Logan Systems, Inc., dba Palo Alto Labs, Case No. 09055259 (Fla. Cir. Ct., 17th J. Cir., Broward Cty.), is available at: http://www.courthousenews.com/2009/10/16/DietSupp.pdf The Plaintiff is represented by: Lars K. Soreide, Esq. SOREIDE LAW GROUP, PLLC 511 NE 3rd Ave. Fort Lauderdale, FL 33301 Telephone: 954-760-6552 Fax: 954-760-6553 OMNITURE INC: Kendall Files Lawsuit in Utah to Block Adobe Deal --------------------------------------------------------------- Kendall Law Group has filed a class action lawsuit against Omniture, Inc. (NASDAQ: OMTR) and company executives over the recent takeover announcement of Omniture by Adobe Systems for $1.8 billion. The class action complaint, filed in the 4th District Court of Utah County, alleges that the company and its insiders breached their fiduciary duties to shareholders. First, the merger agreement makes veiled reference to certain compensation arrangements between Adobe and company insiders. In fact, Omniture CEO Joshua James has a secured a position with Adobe after the merger. Second, the merger agreement has support agreements and a 'top up' provision, which has the practical effect of requiring only 45% of Omniture's publicly held shares to effectuate the short form merger. Third, the Omniture and its executives have agreed to onerous deal protection devices in the merger agreement, such as a $64 million termination fee; a 'no solicitation' clause; and a matching rights provision. These devices seek to make Adobe's takeover offer a foregone conclusion. Defendants include the company, Omniture, its CEO Joshua James, and members of the Board of Directors. The plaintiffs include SEO Expert Shailen Lodhia, who is a long term Omniture investor with significant experience in Omniture's industry as an SEO Expert. Kendall Law Group has significant experience in shareholder class actions. Led by a former federal judge and US Attorney, the firm has the credentials to take on complicated shareholder class actions. To learn more about this action and your rights as an Omniture shareholder, contact: Hamilton Lindley, Esq. Telephone: 877-744-3728 E-mail: hlindley@kendalllawgroup.com PROMIGAS: $5 Mil. Damages Suit Over Pipeline Explosion Pending -------------------------------------------------------------- A class action suit is pending against Promigas S.A., an AEI Colombian affiliate, over damages resulting from a pipeline explosion caused by terrorists in October 2001. The plaintiffs seek to recover $5 million in damages. The matter is still in the initial stage, according to the AEI's Amendment No. 3 to Form F-1 filing with the Securities and Exchange Commission on Oct. 14, 2009. No reserves in respect to this claim have been established by Promigas or AEI. Promigas S.A. E.S.P. -- http://www.promigas.com/-- is a Colombian company engaged primarily in natural gas distribution, with interests in related activities. The company's activities include natural gas transmission and distribution; gas pipeline distribution, construction, operation and maintenance; and data, voice and image transmission services along with high-speed connection to the Internet. The company has been authorized by the governments of Venezuela and Peru, for gas pipeline distribution, construction, operation and maintenance. RAYNOR MARKETING: Recalls 150,000 Chairs Sold at Office Depot ------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Raynor Marketing LTD, of West Hempstead, N.Y., announced a voluntary recall of about 150,000 Quantum Realspace PRO(tm) 9000 Series Mid-Back Multifunction Mesh Chairs and Multifunction Mesh Chairs with Headrest. Consumers should stop using recalled products immediately unless otherwise instructed. The recalled products were manufactured in China by Comfort Office Furniture, LTD, China aka Evergood Co. Ltd. The bolts attaching the seatback on the recalled chairs can loosen and detach, posing a fall and injury hazard to consumers. Raynor has received reports of 33 seatback detachments and 14 injuries involving bumps and bruises. This recall involves the Quantum Realspace PRO(tm) 9000 Series Mid-Back Multifunction Mesh Chair SKU # 510830 and the Quantum Realspace PRO(tm) 9000 Series Mesh Chair with Headrest SKU # 690690. The Realspace PRO(tm) Mesh Guest Chair is not involved in this recall. Pictures of the recalled products are available at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10013.html The recalled chairs were sold exclusively at Office Depot stores nationwide and on the Web at http://www.OfficeDepot.com/from May 2006 through August 2009. The mid-back chairs sold for about $300 and the chair with headrest for about $350. Consumers should immediately stop using the recalled office chairs and contact Raynor to receive a free repair kit. For additional information and to receive a free repair kit, contact Raynor toll free at (866) 244-8180 between 9 a.m. and 5 p.m. ET Monday through Friday or visit the firm's Web site at http://www.Quantumchair.com/recall SI TECH: Recalls Diving Suit Hoses Due to Drowning Hazard --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with SI Tech AB, of Brastad, Sweden, announced a voluntary recall of about 65,000 Diving Air Hose for Dry Suits. Consumers should stop using recalled products immediately unless otherwise instructed. The hose contains an insert that can dislodge during diving and restrict air flow to the diver, posing a drowning hazard. SI Tech has received six reports of hose inserts dislodging, including one that was involved in the death of a diver in Los Angeles, Calif. This recall involves a dry suit inflation hose that connects a diver's dry suit to the air supply and allows for the pumping of air into the suit to set up a positive pressure arrangement to help keep it watertight. The hose contains an air flow restricting insert that may be either black, blue or green in color. The batch code is stamped on the threaded metal end of the hose. They were sold with dry suits and also sold separately. Contact SI Tech for a list of batch codes included in this recall or visit the firm's Web site at http://www.sitech.se/ The recalled hoses were sold at diving equipment retailers and distributors nationwide from July 2006 through February 2009 for about $45, and were manufactured in Sweden. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10010.html Consumers should immediately stop using diving equipment that contains the recalled low pressure inflation hoses and contact SI Tech for the location of an authorized dealer for a free repair which involves removal of the hose insert, or to receive instructions on how to repair the hose. For additional information, contact SI Tech at (877) 348-3529 anytime, visit http://www.sitech.se/or email the firm at recall@sitech.se SPONGETECH DELIVERY: Aware of S.D.N.Y. Shareholder Lawsuit ---------------------------------------------------------- SpongeTech(R) Delivery Systems, Inc. "The Smarter Sponge(TM)" (SPNG) acknowledged the filing of Le v. SpongeTech Delivery SYstems, Inc., et al., Case No. 09-cv-08616 (S.D.N.Y.), on October 9, 2009, by The Rosen Law Firm, P.A., against SpongeTech, and its officers and directors, Michael L. Metter, Steven Moskowitz, Frank Lazauskas as well as RM Enterprises International, Inc. (an entity in which SpongeTech's directors and officers hold direct or indirect ownership interests, and of which Mr. Moskowitz and Mr. Lazauskas serve as officers or directors), as a purported class action suit on behalf of all purchasers of SpongeTech stock between April 15, 2008, and October 5, 2009, alleging violations of the federal securities laws. In addition, SpongeTech indicates, a second law firm announced that it has commenced a lawsuit in the United States District Court for the Southern District of New York on behalf of all purchasers of SpongeTech stock between April 15, 2008, and October 5, 2009, inclusive. SpongeTech has not been served in this action and says it has not seen a copy of the complaint. Class Action Reporter editors haven't seen the second lawsuit either. When and if SpongeTech is served in these actions it intends to carefully review the complaints in consultation with its counsel, and prepare an appropriate defense. SpongeTech and its directors and officers believe that the allegations set forth in the complaint filed by The Rosen Law Firm are meritless and intend to defend the action vigorously. Auditor Resigns In addition, SpongeTech disclosed Friday that Deloitte & Touche LLP has notified the Company that it would not act as SpongeTech's independent registered public accounting firm for the Company's fiscal year ending May 31, 2010. Deloitte was scheduled to commence its review of the Company's financial statements for the quarter ended August 31, 2009, immediately following the filing of the Company's Annual Report on Form 10-K for the fiscal year ended May 31, 2009. SpongeTech Sues Investment Banker Furthermore, the Company has filed a lawsuit in the New York State Supreme Court, Suffolk County against Cresta Capital Strategies, LLC. The complaint alleges a breach of contract, conversion, unjust enrichment, breach of fiduciary duty and unlawful appropriation of funds. The Company is seeking compensatory damages in the amount of $2.75 million as well as punitive and exemplary damages. In March 2009, Cresta was hired by the Company to serve as the exclusive investment banker to the Company in which Cresta was to provide advice and services concerning potential merger, acquisition or any business transactions. Upon modification of the agreement with Cresta, in June 2009, the Company agreed to and did provide Cresta with a $1 million cash advance which was to be used against future fees as a result of any transactions under the agreement. Cresta did provide investment banking services to the Company on the acquisition of Dicon Technologies, LLC as well as introducing the Company to Getfugu, Inc. Cresta was paid in full all fees due with regards to its participation in the Dicon transaction. In August 2009, the Company was introduced to Getfugu by Cresta, who was serving as investment banker for both the Company and Getfugu. At the advice of Cresta, the Company entered into a definitive agreement with Getfugu to invest $4 million into Getfugu's mobile-based web search and e-commerce technology, and that the Company would be the first company to utilize Getfugu's innovative mobile search platform. An aggregate of $1.75 million had been advanced to Getfugu, soon after Getfugu rescinded the transaction and to this date has not returned the monies to the Company. In September 2009, Cresta terminated its agreement to serve as the investment banker for the Company, waiving and forfeiting any right to the $1 million cash advance for future fees. The Company has made demand for the $1 million, but Cresta has failed to return any part of the cash advance to the Company. The Company alleges that Cresta breached its fiduciary duty to the Company by assisting Getfugu in obtaining money from the Company and failing to conduct any reasonable due diligence on Getfugu or its officers and personnel and failing to provide the Company with any reasonable due diligence upon which to make its investment decision. The Company is seeking compensatory, punitive and exemplary damages. About SpongeTech(R) Delivery Systems, Inc. SpongeTech(R) Delivery Systems designs, produces, and markets unique lines of reusable cleaning products for Car Care, Child Care, Home Care and Pet Care usages. These sponge-like products utilize SpongeTech(R)'s proprietary, patent (and patent-pending) technologies and other technologies involving hydrophilic (liquid absorbing) foam, polyurethane matrices or other ingredients. The Company's sponge-like products are pre-loaded with specially formulated ingredients such as soap, conditioner and/or wax that are released when the sponge is soaked and applied to a surface with minimal pressure. SpongeTech(R) is currently exploring additional applications for its technology in the health, beauty, and medical markets. SpongeTech(R) Delivery Systems, Inc. intends to globally brand its products as The Smarter Sponge(TM). SUNAIR SERVICES: Shareholder Attempts to Block Massey Merger ------------------------------------------------------------ On October 9, 2009, a putative class action lawsuit was filed in the Circuit Court of the Seventeenth Judicial Circuit for Broward County, State of Florida, Civil Division, regarding the proposed merger between Sunair Services Corporation and Massey Services, Inc. The complaint was purportedly filed on behalf of the public holders of Sunair's common stock, and names as defendants, Sunair, each of Sunair's directors, Massey and Buyer Acquisition Company, Inc., the wholly-owned subsidiary of Massey acting as merger sub for the proposed transaction. The Complaint alleges, among other things, that Sunair's directors breached their fiduciary duties by adopting the Agreement and Plan of Merger dated September 28, 2009, between Sunair, Massey and the merger subsidiary, and by approving the Merger described therein. The Complaint further alleges that the proposed Merger provides Sunair's public shareholders with inadequate consideration for their shares of Sunair's common stock and that Sunair and Massey aided and abetted the alleged breaches by Sunair's directors. The plaintiff seeks, among other things, class action status, an injunction preventing the completion of the merger (or rescinding the merger if it is completed), rescissory damages and the payment of attorneys' fees and expenses. Sunair believes the lawsuit is without merit. THE GAP: Lawsuit Wants Retailer To Halt Cell-Phone Spam ------------------------------------------------------- Maria Dinzeo at Courthouse News Service reports that The Gap is harassing customers with wireless spam text messages to promote holiday sales, a class action claims in Federal Court. Lead plaintiff Danielle Lerner said she's received repeated spam text messages advertising the company's Old Navy clothing line. Lerner says she's been getting the spam since November 2005. To add injury to annoyance, Ms. Lerner say she and other victims have to pay their wireless service providers for receiving this "pernicious form of marketing." She seeks class damages of at least $500 for each violation of the Telephone Consumer Protection Act, and an injunction ordering The Gap to stop sending its wireless spam. A copy of the Complaint in Lerner v. The Gap Inc., Case No. 09-cv-4897 (N.D. Calif.), is available at: http://www.courthousenews.com/2009/10/16/TheGap.pdf The Plaintiff is represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: 818-990-1299 VILLAGE OF ISLAMORADA: Property Owners Sue to Block Assessments --------------------------------------------------------------- David Ball at the Keys Reporter reports that Cheeca Lodge Resort and Spa has expanded its class-action lawsuit against the Village of Islamorada, Fla., over wastewater assessments. The suit is the second filed in Monroe County Circuit Court over this year's assessments. On Oct. 5, 11 property owners and two businesses sued the village, claiming the $21.8 million assessment is illegal and overly expensive. Both lawsuits ask for the assessment to be thrown out and for Tax Collector Danise Henriquez to be prohibited from collecting the assessment payments. The lawsuit asks the court to create a class of potential plaintiffs, Mr. Ball relates, which could be more than 4,000 property owners in Islamorada who were assessed last year or this year. Mr. Ball's complete report is available at: http://www.keysnet.com/news/story/151289.html Cheeca is represented by: James S. Lupino, Esq. Hershoff, Lupino & Yagel, L.L.P. 90130 Old Highway Tavernier, FL 33070 Telephone: 305-852-8440 YUM! BRANDS: Consolidated Wage Suit v. Taco Bell in Discovery ------------------------------------------------------------- Discovery is underway in the consolidated class-action case, In Re Taco Bell Wage and Hour Actions, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. On Sept. 10, 2007, a putative class action against Taco Bell Corp., the company and other related entities styled Sandrika Medlock v. Taco Bell Corp., was filed in U.S. District Court, Eastern District, Fresno, California. The case was filed on behalf of all hourly employees who have worked for the defendants within the last four years and alleges numerous violations of California labor laws including unpaid overtime, failure to pay wages on termination, denial of meal and rest breaks, improper wage statements, unpaid business expenses and unfair or unlawful business practices in violation of California Business & Professions Code 17200. The company was dismissed from the case without prejudice on Jan. 10, 2008. On April 11, 2008, Lisa Hardiman filed a Private Attorneys General Act ("PAGA") complaint in the Superior Court of the State of California, County of Fresno against Taco Bell Corp., the company and other related entities. This lawsuit, styled Lisa Hardiman vs. Taco Bell Corp., et al., was filed on behalf of Hardiman individually and all other aggrieved employees pursuant to PAGA. The complaint seeks penalties for alleged violations of California's Labor Code. On June 25, 2008, Hardiman filed an amended complaint adding class action allegations on behalf of hourly employees in California very similar to the Medlock case, including allegations of unpaid overtime, missed meal and rest periods, improper wage statements, non-payment of wages upon termination, unreimbursed business expenses and unfair or unlawful business practices in violation of California Business & Professions Code 17200. On June 16, 2008, a putative class action lawsuit against Taco Bell Corp. and the company, styled Miriam Leyva vs. Taco Bell Corp., et al., was filed in Los Angeles Superior Court. The case was filed on behalf of Leyva and purportedly all other California hourly employees and alleges failure to pay overtime, failure to provide meal and rest periods, failure to pay wages upon discharge, failure to provide itemized wage statements, unfair business practices and wrongful termination and discrimination. The company was dismissed from the case without prejudice on Aug. 20, 2008. On Nov. 5, 2008, a putative class action lawsuit against Taco Bell Corp. and the company styled Loraine Naranjo vs. Taco Bell Corp., et al., was filed in Orange County Superior Court. The case was filed on behalf of Naranjo and purportedly all other California employees and alleges failure to pay overtime, failure to reimburse for business related expenses, improper wage statements, failure to pay accrued vacation wages, failure to pay minimum wage and unfair business practices. The company filed a motion to dismiss on Dec. 15, 2008, which was denied on Jan. 20, 2009. Taco Bell moved to consolidate the Medlock, Hardiman, Leyva and Naranjo matters, and the court granted the motion to consolidate on May 19, 2009. The consolidated case is styled In Re Taco Bell Wage and Hour Actions. Plaintiffs filed a consolidated complaint on June 29, 2009, and the court set a filing deadline of Aug. 26, 2010 for motions regarding class certification. The hearing on any class certification motion is currently scheduled for Jan. 10, 2011. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Appeal of Rulings in "Archila" Suit v. KFC Pending --------------------------------------------------------------- An appeal from the California state court's rulings in a putative class-action suit, Kenny Archila v. KFC U.S. Properties, Inc., is pending, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. On Oct. 14, 2008, the class-action suit was filed in California state court on behalf of all California hourly employees alleging various California Labor Code violations, including rest and meal break violations, overtime violations, wage statement violations and waiting time penalties. KFC removed the case to the U.S. District Court for the Central District of California on Jan. 7, 2009. On July 7, 2009, the Judge ruled that the case will not go forward as a class action. Plaintiff seeks recovery of civil penalties under the California Private Attorney General Act as a representative of other "aggrieved employees." On Aug. 3, 2009, the Court ruled that the Plaintiff could not assert such claims and the case had to proceed as a single plaintiff action. On the eve of the Aug. 18, 2009 trial, the Plaintiff stipulated to a dismissal of his individual claims with prejudice but reserved his right to appeal the Court's rulings regarding class and PAGA claims. KFC reserved its right to make any and all challenges to the appeal. On Sept. 16, 2009, Plaintiff filed a notice of appeal, according to YUM! Brands, Inc.'s Oct.13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Calif. RGMs Certification Hearing Continued to Dec. ---------------------------------------------------------------- A hearing on plaintiffs' class certification motion in the suits filed on behalf of all current and former Restaurant General Managers against Taco Bell Corp., has been continued to Dec. 4, 2009, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. Taco Bell is a concept owned and operated by YUM! Brands, Inc. On Aug. 4, 2006, a putative class action lawsuit against Taco Bell Corp. styled, "Rajeev Chhibber vs. Taco Bell Corp.," was filed in Orange County Superior Court. On Aug. 7, 2006, another putative class action lawsuit styled, "Marina Puchalski v. Taco Bell Corp.," was filed in San Diego County Superior Court. Both lawsuits were filed by a Taco Bell RGM purporting to represent all current and former RGMs who worked at corporate- owned restaurants in California from August 2002, to the present. The lawsuits allege violations of California's wage and hour laws involving unpaid overtime and meal period violations and seek unspecified amounts in damages and penalties. As of Sept. 7, 2006, both cases have been consolidated in San Diego County. Discovery is underway. Based on plaintiffs' revised class definition in their class certification motion, Taco Bell removed the case to federal court in San Diego on Aug. 29, 2008. Plaintiffs have sought to remand the case back to state court and the court took the matter under submission without a hearing on Nov. 17, 2008. On March 17, 2009, the court granted plaintiffs' motion to remand. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Seeks to Merge "Widjaja" Suit with Similar Cases ------------------------------------------------------------- A motion seeking to consolidate the putative class action lawsuit, Endang Widjaja vs. Taco Bell Corp., et al., with In Re Taco Bell Wage and Hour Actions is pending, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. Taco Bell is a concept of YUM! Brands, Inc. On March 26, 2009, Taco Bell was served with the putative class action lawsuit filed in Orange County Superior Court against Taco Bell and the Company. The case was filed on behalf of Widjaja, a former California hourly assistant manager, and purportedly all other individuals employed in Taco Bell's California restaurants as managers and alleges failure to reimburse for business related expenses, failure to provide rest periods, unfair business practices and conversion. This case appears to be duplicative of Taco Bell's pending consolidated hourly class action case (In Re Taco Bell Wage and Hour Actions). Taco Bell removed the case to federal district court and filed a notice of related case. On June 18, 2009, the case was transferred to the Eastern District of California where the In Re Taco Bell Wage and Hour Actions case is pending and was subsequently transferred to the same district court judge. Taco Bell requested that the court consolidate this case with the In Re Taco Bell Wage and Hour Actions, and the court deferred its decision pending a noticed motion. Taco Bell filed a motion on July 22, 2009, to dismiss, stay or consolidate this case with the In Re Taco Bell Wage and Hour Actions, and the hearing on this motion is scheduled for Oct. 19, 2009. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Nov. 2009 Arbitration Set for Restitution Liability ---------------------------------------------------------------- A November 2009 arbitration has been set for liability during a portion of the alleged restitution policy period in a putative class action on behalf of general and assistant restaurant managers of YUM! Brands, Inc.'s LJS concept. On Nov. 26, 2001, Kevin Johnson, a former LJS restaurant manager, filed a collective action against LJS in the U.S. District Court for the Middle District of Tennessee alleging violation of the Fair Labor Standards Act on behalf of himself and allegedly similarly-situated LJS general and assistant restaurant managers. Mr. Johnson alleged that LJS violated the FLSA by perpetrating a policy and practice of seeking monetary restitution from LJS employees, including Restaurant General Managers and Assistant Restaurant General Managers, when monetary or property losses occurred due to knowing and willful violations of LJS policies that resulted in losses of company funds or property, and that LJS had thus improperly classified its RGMs and ARGMs as exempt from overtime pay under the FLSA. Mr. Johnson sought overtime pay, liquidated damages, and attorneys' fees for himself and his proposed class. LJS moved the Tennessee district court to compel arbitration of Mr. Johnson's suit. The district court granted LJS's motion on June 7, 2004, and the U.S. Court of Appeals for the Sixth Circuit affirmed on July 5, 2005. On Dec. 19, 2003, while the arbitrability of Mr. Johnson's claims was being litigated, former LJS managers Erin Cole and Nick Kaufman, represented by Mr. Johnson's counsel, initiated an arbitration with the American Arbitration Association. The Cole Claimants sought a collective arbitration on behalf of the same putative class as alleged in the Johnson lawsuit and alleged the same underlying claims. On June 15, 2004, the arbitrator in the Cole Arbitration issued a Clause Construction Award, finding that LJS's Dispute Resolution Policy did not prohibit Claimants from proceeding on a collective or class basis. LJS moved unsuccessfully to vacate the Clause Construction Award in federal district court in South Carolina. On Sept. 19, 2005, the arbitrator issued a Class Determination Award, finding, inter alia, that a class would be certified in the Cole Arbitration on an "opt-out" basis, rather than as an "opt-in" collective action as specified by the FLSA. On Jan. 20, 2006, the district court denied LJS's motion to vacate the Class Determination Award and the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's decision on Jan. 28, 2008. A petition for a writ of certiorari filed in the U.S. Supreme Court seeking a review of the Fourth Circuit's decision was denied on Oct. 7, 2008. The parties participated in mediation on April 24, 2008, and again on Feb. 28, 2009, without reaching resolution. Arbitration on liability during a portion of the alleged restitution policy period is currently scheduled for November 2009. LJS expects, based on the rulings issued to date in this matter, that the Cole Arbitration will more likely than not proceed as an "opt-out" class action, rather than as an "opt-in" collective action. LJS denies liability and is defending the claims in the Cole Arbitration, according to the company's Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Dec. 16 Trial Set for Judgment Bid in Moeller Suit --------------------------------------------------------------- A hearing on the motion for summary judgment in a class-action lawsuit styled Moeller, et al. v. Taco Bell Corp. is scheduled for Dec. 16, 2009. Taco Bell is a concept of YUM! Brands, Inc. On Dec. 17, 2002, Taco Bell was named as the defendant in the class-action lawsuit filed in the U.S. District Court for the Northern District of California. On Aug.4, 2003, plaintiffs filed an amended complaint that alleges, among other things, that Taco Bell has discriminated against the class of people who use wheelchairs or scooters for mobility by failing to make its approximately 220 company-owned restaurants in California (the "California Restaurants") accessible to the class. The plaintiffs contend that queue rails and other architectural and structural elements of the Taco Bell restaurants relating to the path of travel and use of the facilities by persons with mobility-related disabilities do not comply with the U.S. Americans with Disabilities Act, the Unruh Civil Rights Act, and the California Disabled Persons Act. They have requested: (a) an injunction from the District Court ordering Taco Bell to comply with the ADA and its implementing regulations; (b) that the District Court declare Taco Bell in violation of the ADA, the Unruh Act, and the CDPA; and (c) monetary relief under the Unruh Act or CDPA. The plaintiffs, on behalf of the class, are seeking the minimum statutory damages per offense of either $4,000 under the Unruh Act or $1,000 under the CDPA for each aggrieved member of the class. They contend that there may be in excess of 100,000 individuals in the class. On Feb. 23, 2004, the District Court granted plaintiffs' motion for class certification. The District Court certified a Rule 23(b)(2) mandatory injunctive relief class of all individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after Dec. 17, 2001, were denied, or are currently being denied, on the basis of disability, the full and equal enjoyment of the California Restaurants. The class includes claims for injunctive relief and minimum statutory damages. Pursuant to the parties' agreement, on or about Aug. 31, 2004, the District Court ordered that the trial of this action be bifurcated so that stage one will resolve plaintiffs' claims for equitable relief and stage two will resolve plaintiffs' claims for damages. The parties are currently proceeding with the equitable relief stage of this action. On May 17, 2007, a hearing was held on plaintiffs' Motion for Partial Summary Judgment seeking judicial declaration that Taco Bell was in violation of accessibility laws as to three specific issues: indoor seating, queue rails and door opening force. On Aug. 8, 2007, the court granted plaintiffs' motion in part with regard to dining room seating. In addition, the court granted plaintiffs' motion in part with regard to door opening force at some restaurants (but not all) and denied the motion with regard to queue lines. The parties participated in mediation on March 25, 2008, and again on March 26, 2009, without reaching resolution. The court granted Taco Bell's request for an extension to file its motion for summary judgment on the ADA claims until Oct. 20, 2009. A hearing on the motion is scheduled for Dec. 16, 2009. Taco Bell has taken certain steps to address potential architectural and structural compliance issues at the restaurants in accordance with applicable state and federal disability access laws, according to the company's Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: "Smith" FLSA Suit v. Pizza Hut Pending in Colorado --------------------------------------------------------------- A putative class action, Mark Smith v. Pizza Hut, Inc., is pending in the U.S. District Court for the District of Colorado, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. The complaint, filed on July 9, 2009, alleges that Pizza Hut did not properly reimburse its delivery drivers for various automobile costs, uniforms costs, and other job-related expenses and seeks to represent a class of delivery drivers nationwide under the Fair Labor Standards Act (FLSA) and Colorado state law. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. YUM! BRANDS: Blackwood Files FLSA Suit v. Pizza Hut in Kansas ------------------------------------------------------------- A putative class action, Sue Blackwood and Scott Lewis v. Pizza Hut of America, Inc., was filed on Sept. 15, 2009, according to YUM! Brands, Inc.'s Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. The class action was filed in the U.S. District Court for the District of Kansas. The Blackwood complaint alleges that delivery drivers received insufficient reimbursement and seeks to represent a nationwide class under the Fair Labor Standards Act (FLSA), according to the company's Oct. 13, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 5, 2009. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 35,000 units in more than 100 countries and territories. Through the five concepts of KFC, Pizza Hut, Taco Bell, LJS and A&W (the Concepts), the company develops, operates, franchises and licenses a worldwide system of restaurants, which prepare, package and sell a menu of food items. In all five of its Concepts, the company either operates units or they are operated by independent franchisees or licensees under the terms of franchise or license agreements. In addition, the company owns non-controlling interests in Unconsolidated Affiliates who operate similar to franchisees. New Securities Fraud Cases ADVANTA CORP: Shareholder Fraud Complaint Filed in E.D. Pa. ----------------------------------------------------------- Courthouse News Service reports that Advanta Corp. inflated its share price through false and misleading statements, shareholders claim in Philadelphia Federal Court. A copy of the Complaint in Steamfitters Local 449 Pension Fund v. Advanta Corp., et al., Case No. 09-cv-_____ (E.D. Pa.), is available at: http://www.courthousenews.com/2009/10/16/SCAAdvantsa.pdf The Plaintiff is represented by: Deborah R. Gross, Esq. Wanamaker Bldg., Suite 450 100 Penn Square East Philadelphia, PA 19107 Telephone: 215-561-3600 - and - Darren J. Robbins, Esq. David C. Walton, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619-231-1058 MGM MIRAGE: Diaz & Galt Files Shareholder Complaint in Nevada ------------------------------------------------------------- The law firm of Diaz & Galt, LLC has filed a lawsuit in the United States District Court for the District of Nevada seeking class action status on behalf of those who purchased MGM Mirage securities between August 2, 2007, and March 5, 2009, inclusive. Any shareholder, who purchased MGM securities during the above Class Period, may move the Court to serve as a plaintiff in this class action. If you wish to serve as lead plaintiff, you must move the Court for appointment by October 19, 2009. A lead plaintiff is a class member who acts on behalf of other class members in directing the litigation. The Complaint charges that MGM and certain of its officers and directors violated federal securities. Specifically, the Complaint alleges that defendants made a series of materially false and misleading statements concerning MGM's liquidity and the prospects for the development of MGM's CityCenter. Prior to the disclosures of the true facts, MGM insiders sold close to $90 million worth of their personally held MGM stock to the public. As the true facts about MGM and the CityCenter leaked into the market, the price of MGM securities declined. If you are a member of the class, you may, no later than October 19, 2009, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a class member that acts on behalf of other class members in directing the litigation. Although your ability to share in any recovery is not affected by the decision whether or not to seek appointment as a lead plaintiff, lead plaintiffs make important decisions which could affect the overall recovery for class members. For a copy of the Complaint in Hovhannisyan v. MGM Mirage, et al., Case No. 09-cv-02011 (D. Nev.), or for more information contact Diaz & Galt at 877-324-6443 or visit the Law firm's Web site at http://diazandgaltlaw.com/ The Plaintiff is represented by: Charles C. Diaz, Esq. DIAZ & GALT, LLC 2820 W. Charleston Boulevard, Suite 28 Las Vegas, NV 89102 Telephone: 702/877-5777 Fax: 702/877-5772 Because Mr. Hovhannisyan's case is related to Lowinger v. MGM Mirage, et al., Case No. 09-cv-01558 (D. Nev.), he has asked his case and all subsequent cases filed by other plaintiffs be assigned to the Honorable Robert C. Jones. ********* 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. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. 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