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/raid1/www/Hosts/bankrupt/CAR_Public/091022.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 22, 2009, Vol. 11, No. 209 Headlines CENTERLINE HOLDING: S.D.N.Y Dismisses Securities Fraud Suit CENTERLINE HOLDING: Still Awaiting Court Ruling on "Off" Suit CENTERLINE HOLDING: Trustees Defer Decision on Demand Letter COSTCO WHOLESALE: Court Okays Summary Judgment in Randall Suit COSTCO WHOLESALE: Williams Suit Settled for $440,000 COSTCO WHOLESALE: Continues to Face Drenckhahn Suit in Calif. COSTCO WHOLESALE: Discovery Still Ongoing in Castaneda Suit COSTCO WHOLESALE: Has Yet to Be Served Pytelewski Complaint COSTCO WHOLESALE: Class Certification in Ward Suit Still Pending COSTCO WHOLESALE: Still Awaits Decision in Ellis Suit DEERE & CO: Prevails in S.D. Iowa Retiree Health Benefits Lawsuit GATEWAY INC: C.D. Calif. Suit Complains About Computer Warranties HILLENBRAND INC: Fifth Circuit Denies FCA's Reconsideration Plea MARQUEE HOLDINGS: Appeal of Bateman Certification Ruling Pending MDL 2036: Checking Account Overdraft Suits Sent to S.D. Fla. MURPHY OIL: 5th Cir. Revives Katrina Victims' Global Warming Suit NEW YORK THRUWAY: Inequitable Grand Island Toll Case Reinstated NEWS CORP: No Trial Date Yet for Consolidated "Brown" Suit NOVARTIS AG: U.S. Labor Dept. Says Salespeople Are Employees TARGET CORP: Accused of Mislabeling Organic Food Products WD-40 COMPANY: 9th Cir. Remands Drimmer Suit to S.D. Calif. ********* CENTERLINE HOLDING: S.D.N.Y Dismisses Securities Fraud Suit ----------------------------------------------------------- The Hon. Shira A. Scheindlin has dismissed the amended consolidated complaint in In re Centerline Holding Company Securities Litigation, Case No. 08 CV 00505 (S.D.N.Y.), according to the company's Aug. 12, 2009, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Jan. 18, 2008, the first of the federal securities putative class actions was filed against the company and certain of its officers and trustees. Thereafter, five other, essentially duplicative putative class actions were also filed in the same court. The complaint in each case asserted that the company and other defendants allegedly violated federal securities law by failing to disclose in a timely fashion its December 2007 transaction with Freddie Mac. On May 5, 2008, the Court designated Centerline Investor Group, which is made up of several shareholders, as lead plaintiff for these cases. Pursuant to the Court's stipulation and order dated March 3, 2008, the lead plaintiff filed a consolidated complaint on July 7, 2008 in this action. The consolidated complaint also alleges violations of the federal securities laws in connection with the company's announcement of the Freddie Mac transaction, changes to the company's business model, and the reduction in dividend guidance policy, and seeks an unspecified amount of compensatory damages and other relief on behalf of all persons or entities that purchased the common stock of Centerline Holding Company during the period March 12, 2007 through December 28, 2007. The defendants in this action filed a motion to dismiss the consolidated complaint on Oct. 27, 2008 and the motion was granted by Judge Scheindlin on Jan. 12, 2009. Judge Scheindlin granted the plaintiff leave to replead, and the plaintiff filed an Amended Consolidated Complaint on March 13, 2009. On April 30, 2009, the Defendants in this case filed a motion to dismiss the Amended Consolidated Complaint. The lead Plaintiff filed his opposition to Defendants' motion to dismiss on June 12, 2009 and the Defendants filed their reply to the opposition motion filed by the Plaintiffs on June 30, 2009. On Aug. 4, 2009 the Defendants' motion to dismiss was granted and the case was dismissed without leave for the plaintiff to replead. Representing the plaintiffs are: Christopher J. Keller, Esq. LABATON SUCHAROW, LLP 140 Broadway New York, NY 10005 Phone: 212-907-0700 Fax: 212-818-0477 E-mail: ckeller@labaton.com - and - James Clayton Kelly, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Phone: 212-451-9635 Fax: 212-486-2093 E-mail: jkelly@wolfpopper.com Representing the defendants are: Jennifer Fletcher Beltrami, Esq. WOLF BLOCK SCHORR AND SOLIS-COHEN, LLP 250 Park Avenue New York, NY 10177 Phone: 212-883-4955 Fax: 212-672-1155 E-mail: jbeltrami@wolfblock.com - and - Daniel J. Leffell, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Phone: 212-373-3218 Fax: 212-492-0218 E-mail: dleffell@paulweiss.com CENTERLINE HOLDING: Still Awaiting Court Ruling on "Off" Suit ------------------------------------------------------------- Centerline Holding Co. still awaits the decision of the Delaware Court of Chancery on the settlement in a putative class and derivative action lawsuit, according to the company's Aug. 12, 2009, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On Jan. 15, 2008, the first of the state law cases, a putative class and derivative action, entitled Off v. Ross, CA No. 3468- VCP, was filed against the company, its Board of Trustees and TRCLP. The lawsuit concerns the company's sale of a new issue of convertible preferred stock to an affiliate of TRCLP. The lawsuit alleges claims for breach of fiduciary duty against the Trustees and seeks an unspecified amount of compensatory damages from them as well as injunctive relief against all defendants. Thereafter, seven other derivative lawsuits asserting the same or similar claims were filed in state and federal courts in New York and in the Delaware Chancery Court. Four of these later-filed actions also allege that the trustees breached their fiduciary duties to the company by allegedly violating the federal securities laws. The company is named solely as a nominal defendant in all eight derivative actions and no monetary relief is sought against the company in any of those cases. The seven derivative actions filed subsequent to the Off case are: 1. On Jan. 18, 2008, Kramer v. Ross, et al., Index. No. 100861-08, was filed against the company and its board of trustees, in New York County Supreme Court; 2. On Jan. 25, 2008, Carfagno v. Schnitzer, et al., No. 08 CV 00912, was filed against the company and its board of trustees in the U.S. District Court for the Southern District of New York; 3. On Jan. 30, 2008, Ciszerk v. Ross, et al., CA No. 3511, was filed against the company, its board of trustees and The Related Companies, L.P. in the Delaware Court of Chancery; 4. On Feb. 22, 2008, Kanter v. Ross, et al., 08 Civ. 01827, was filed against the company, its board of trustees and The Related Companies, L.P. in the United States District Court for the Southern District of New York; 5. On Feb. 27, 2008, Broy v. Centerline Holding Company et al., No. 08 CV 01971, was filed against the company and certain of its officers and trustees in the United States District Court for the Southern District of New York; 6. On April 10, 2008, Kastner v. Schnitzer et al, Index No. 601043-08, was filed against the company and its board of trustees, in New York Supreme Court; and 7. On April 10, 2008, Kostecka v. Schnitzer et al, Index No. 601044-08, was filed against the company and its board of trustees, in New York Supreme Court. On April 28, 2008, a consolidated amended verified complaint alleging breaches of fiduciary duties of loyalty, candor, due care, fair dealing, waste of corporate assets and unjust enrichment, was filed against the company and its board of trustees in Carfagno v. Schnitzer et al., 08 CV 912 (SAS) and Broy v. Blau, 08 CV 1971 (SAS), pending in the U.S. District Court for the Southern District of New York. The action is styled both as a derivative suit and as a class action on behalf of all holders of Centerline securities who qualified to purchase our 11.0% Preferred Shares pursuant to the rights offering but who did not do so. In late March 2009, the plaintiffs and defendants reached a basis of settlement which would require a reduction in the rate payable on the 11.0% Convertible Preferred Shares held by TRCLP and its affiliates to 9.5% and an increase in the conversion price from $10.75 to $12.35. A Stipulation of Settlement was filed with the U.S. District Court (SDNY) on April 8, 2009 and a fairness hearing for approval of the settlement was held May 18, 2009. At that time the District Court entered a Final Judgment approving the Settlement, which will become effective once the Delaware Court of Chancery dismisses the Off and Ciszerk matters with prejudice. A settlement with the plaintiff in the Off case based on the rights offering was negotiated, but on Nov. 26, 2008, the Delaware Court of Chancery rejected the settlement and stayed any further proceedings in the action, pending resolution of the Carfagno case. As a result, several of the other derivative lawsuits that had been voluntarily stayed by the plaintiffs, including the Kramer, Ciszerk and Kanter actions are now subject to various stipulations deferring further activity in those actions until a final decision on the Stipulation of Settlement in Carfagno or, in the case of Kastner and Kostecka, pending further activity in the consolidated securities class action. The Carfagno Stipulation of Settlement is contingent upon the dismissal with prejudice of the overlapping Off and Ciszerk actions pending before the Delaware Court of Chancery. On May 28, 2009 the defendants filed a motion for dismissal of the Off and Ciszerk matters in the Delaware Court of Chancery based upon the approved Stipulation of Settlement in Carfagno and the principle of res judicata. The defendants are awaiting the decision of the Delaware Court of Chancery. Centerline Holding Co. -- http://www.centerline.com/-- formerly CharterMac, is an alternative asset manager focused on real estate funds and financing. The Company had $11.9 billion of assets under management as of Dec. 31, 2007. Organized as a statutory trust, the Company conducts substantially all of its business through its subsidiaries generally under the designation Centerline Capital Group. The Company operates in four groups: Affordable Housing, Commercial Real Estate, Portfolio Management and Credit Risk Products. The Affordable Housing and Commercial Real Estate groups raise capital through a series of funds to deploy into an array of real estate debt and equity investments. The Portfolio Management group monitors and services the investments within its funds and servicing portfolio. The Credit Risk Products group provides credit support to affordable housing debt and equity products investing in syndicated corporate debt. CENTERLINE HOLDING: Trustees Defer Decision on Demand Letter ------------------------------------------------------------ Outside members of Centerline Holding Co.'s Board of Trustees have received a letter from one of its purported shareholders demanding that they investigate potential claims against the companies officers and others arising out of the allegations asserted in the federal securities litigation. The independent Trustees determined, at their meeting on March 11, 2009, to defer further consideration of the letter until after the U.S. District Court for the Southern District of New York had decided the motion to dismiss the Amended Consolidated Complaint Carfagno v. Schnitzer et al., 08 CV 912 (SAS) and Broy v. Blau, 08 CV 1971 (SAS). Centerline Holding Co. -- http://www.centerline.com/-- formerly CharterMac, is an alternative asset manager focused on real estate funds and financing. The Company had $11.9 billion of assets under management as of Dec. 31, 2007. Organized as a statutory trust, the Company conducts substantially all of its business through its subsidiaries generally under the designation Centerline Capital Group. The Company operates in four groups: Affordable Housing, Commercial Real Estate, Portfolio Management and Credit Risk Products. The Affordable Housing and Commercial Real Estate groups raise capital through a series of funds to deploy into an array of real estate debt and equity investments. The Portfolio Management group monitors and services the investments within its funds and servicing portfolio. The Credit Risk Products group provides credit support to affordable housing debt and equity products investing in syndicated corporate debt. COSTCO WHOLESALE: Court Okays Summary Judgment in Randall Suit -------------------------------------------------------------- The Superior Court for the County of Los Angeles, on Oct. 2, 2009, granted Costco Wholesale Corp.'s motion for summary judgment in the class action styled Greg Randall v. Costco Wholesale Corp., Superior Court for the County of Los Angeles, Case No. BC-296369. The case was purportedly brought as class actions on behalf of certain present and former Costco managers in California, in which plaintiffs principally allege that they have not been properly compensated for overtime work, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. On Feb. 21, 2008 the court in Randall tentatively granted in part and denied in part plaintiffs' motion for class certification. That order was finalized by the court on May 13, 2008. The parties in Randall have agreed on a partial settlement of the action (resolving all claims except for the miscalculation claim), requiring a payment of up to $16 by the company, which was reserved for in 2008. The Court granted final approval of the settlement on June 22, 2009. Settlement distribution is underway. The miscalculation claim from the Randall case was refiled as a separate action by stipulation, alleging that the company miscalculated the rates of pay for all department and ancillary managers in California in violation of Labor Code Section 515(d). Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Williams Suit Settled for $440,000 ---------------------------------------------------- Costco Wholesale Corp. and plaintiffs in a purported class action suit achieved a settlement in principle for a gross amount of $440,000. Any settlement however will still be subject to approval from U.S. District Court (San Diego), according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. The case was purportedly brought as class actions on behalf of certain present and former Costco managers in California, in which plaintiffs principally allege that they have not been properly compensated for overtime work. Scott M. Williams v. Costco Wholesale Corp., U.S. District Court (San Diego), Case No. 02-CV-2003 NAJ (JFS). Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Continues to Face Drenckhahn Suit in Calif. ------------------------------------------------------------- A class certification motion by the plainiff's in a putative class action suit filed against Costco Wholesale Corp. remains pending, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. The suit was filed on Dec. 26, 2007 principally alleging denial of overtime compensation (Jesse Drenckhahn v. Costco Wholesale Corp., U.S. District Court (Los Angeles), Case No. CV08-1408 FMC (JMJ)). The complaint alleges misclassification of certain California managers. On March 6, 2008, Costco filed a motion to dismiss. On May 15, 2008, the court partially granted the motion, dismissing certain claims and refusing to expand the statute of limitations for the remaining claims. An answer to the complaint was filed on May 27, 2008. Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Discovery Still Ongoing in Castaneda Suit ----------------------------------------------------------- Discovery is still ongoing in a purported class action styled Anthony Castaneda v. Costco Wholesale Corp., Superior Court for the County of Los Angeles, Case No. BC-399302. The case was purportedly brought as a class action on behalf of present and former hourly employees in California, in which the plaintiff principally alleges that the Company's routine closing procedures and security checks cause employees to incur delays that qualify as uncompensated working time and that effectively deny them statutorily guaranteed meal periods and rest breaks. The complaint was filed on Oct. 2, 2008, and its motion to dismiss was partially granted, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Has Yet to Be Served Pytelewski Complaint ----------------------------------------------------------- Costco Wholesale Corp has yet to be served the complaint styled Mary Pytelewski v. Costco Wholesale Corp., Superior Court for the County of San Diego, Case No. 37-2009-00089654. The purported class action was filed on May 15, 2009, on behalf of present and former hourly employees in California, claiming denial of wages and false imprisonment during the post-closing jewelry and till "pull," when security measures allegedly cause employees to be locked in the warehouses. This complaint has not yet been served on the company, according to its Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Class Certification in Ward Suit Still Pending ---------------------------------------------------------------- The class certification motion of the plaintiff's in the suit, Carrie Ward v. Costco Wholesale Corp., U.S. District Court (Los Angeles), Case No. CV08-02013 FMC (FFM), remains pending. The putative class action, filed on Jan. 24, 2008, purportedly brought on behalf of two groups of former California employees-an "Unpaid Wage Class" and a "Wage Statement Class." The "Unpaid Wage Class" alleges that the Company improperly deducts employee credit card balances from final paychecks, while the "Wage Statement Class" alleges that final paychecks do not contain the accurate and itemized information legally required for wage statements, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. On May 29, 2008, the court granted in part a motion to dismiss, dismissing with prejudice the wage-itemization claims. On May 5, 2009, the Court denied the company's motion for summary judgment. Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. COSTCO WHOLESALE: Still Awaits Decision in Ellis Suit ----------------------------------------------------- Costco Wholesale Corp. and other parties in Shirley "Rae" Ellis v. Costco Wholesale Corp., Case No. C-04-3341-MHP (N.D. Calif.), still await a decision from the Ninth Circuit. The case, brought as a class action on behalf of certain present and former female managers, in which plaintiffs allege denial of promotion based on gender in violation of Title VII of the Civil Rights Act of 1964 and California state law. Plaintiffs seek compensatory damages, punitive damages, injunctive relief, interest and attorneys' fees. Class certification was granted by the district court on Jan. 11, 2007. On May 11, 2007, the U.S. Court of Appeals for the Ninth Circuit granted a petition to hear the company's appeal of the certification. The appeal was argued on April 14, 2008. Proceedings in the district court have been stayed during the appeal. The parties await a decision from the Ninth Circuit, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 30, 2009. Costco Wholesale Corporation -- http://www.costco.com/-- operates membership warehouses-based offering its members products in a range of merchandise categories. It buys the majority of its merchandise directly from manufacturers and route it to a cross-docking consolidation point (depot) or directly to its warehouses. The company's depots receive container-based shipments from manufacturers and reallocate these goods for shipment to its individual warehouses, generally in less than 24 hours. The company's warehouse format averages approximately 140,000 square feet. Its warehouses operate on a seven-day, 69- hour week. It carries an average of approximately 4,000 active stockkeeping units per warehouse in its core warehouse business. Many consumable products are offered for sale in case, carton or multiple-pack quantities only. As of Aug. 31, 2008, Costco operated 512 membership warehouses. DEERE & CO: Prevails in S.D. Iowa Retiree Health Benefits Lawsuit ----------------------------------------------------------------- Edvard Pettersson at Bloomberg News reports that Deere & Co., prevailed in Brubaker v. Deere & Co., Case No. 08-cv-00113 (S.D. Iowa) (Wolle, J.), a lawsuit brought by retirees who claimed the company wasn't entitled to cut their health-care benefits last year. "Where language stating that retiree medical benefits 'will continue' is accompanied by a reservation-of-rights provision, the plan sponsor retains the unqualified right to change the plans as a matter of law," the Honorable Charles Wolle said in a ruling dated Oct. 16. Coverage of the trial in this matter appeared in the Sept. 29, 2009, edition of the Class Action Reporter. GATEWAY INC: C.D. Calif. Suit Complains About Computer Warranties ----------------------------------------------------------------- Courthouse News Service reports that Gateway computer assigned warranty services to an insolvent company to frustrate customers' requests for service, a class action claims in Los Angeles Federal Court. A copy of the Complaint in Wilson v. Gateway, Inc., et al., Case No. 09-cv-07560 (C.D. Calif.), is available at: http://www.courthousenews.com/2009/10/19/Gateway.pdf The Plaintiff is represented by: Jeffrey I. Carton, Esq. Christine M. Ford, Esq. MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ P.C. 1311 Mamaroneck Avenue White Plains, NY 10605 Telephone: 914-517-5000 - and - Robyn C. Crowther, Esq. Matthew W. O'Brien, Esq. CALDWELL LESLIE & PROCTOR, PC 1000 Wilshire Blvd., Suite 600 Los Angeles, CA 90017-2463 Telephone: 213-629-9040 HILLENBRAND INC: Fifth Circuit Denies FCA's Reconsideration Plea ---------------------------------------------------------------- The U.S. Court of Appeals for the Fifth Circuit has denied the Funeral Consumers Alliance Inc.'s motion for reconsideration and their alternative motion for leave to file a petition for rehearing en banc in its antitrust lawsuit against Batesville Casket Company, Inc., a wholly owned subsidiary of Hillenbrand, Inc., and three of its funeral home customers. Class certification hearings in the FCA Action and the Pioneer Valley Action were held before a Magistrate Judge in early December 2006. In 2005 the FCA and a number of individual consumer casket purchasers filed a purported class action antitrust lawsuit on behalf of certain consumer purchasers of Batesville(R) caskets against the company and its former parent company, Hillenbrand Industries, Inc., now Hill-Rom Holdings, Inc., and three national funeral home businesses. A similar purported antitrust class action lawsuit was later filed by Pioneer Valley Casket Co. and several so-called "independent casket distributors" on behalf of casket sellers who were unaffiliated with any licensed funeral home. On Nov. 24, 2008, the Magistrate Judge recommended that the plaintiffs' motions for class certification in both cases be denied. On March 26, 2009, the District Judge adopted the memoranda and recommendations of the Magistrate Judge and denied class certification in both cases. On April 9, 2009, the plaintiffs in the FCA case filed a petition with the U.S. Court of Appeals for the Fifth Circuit for leave to file an appeal of the Court's order denying class certification. On June 19, a three-judge panel of the Fifth Circuit denied the FCA plaintiffs' petition. On July 9, 2009, the FCA plaintiffs filed a request for reconsideration of the denial of their petition. On July 29, 2009, a three-judge panel of the Fifth Circuit denied the FCA plaintiffs' motion for reconsideration and their alternative motion for leave to file a petition for rehearing en banc, according to the company's Aug. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Hillenbrand, Inc. -- http://www.HillenbrandInc.com-- is the holding company for Batesville Casket Company, a leader in the North American death care industry through the sale of funeral services products, including burial caskets, cremation caskets, containers and urns, selection room display fixturing and other personalization and memorialization products. MARQUEE HOLDINGS: Appeal of Bateman Certification Ruling Pending ---------------------------------------------------------------- The plaintiff's appeal of the denial of his renewed motion for class certification in Bateman v. American Multi-Cinema, Inc., Case No. 07-cv-00171 (C.D. Calif.), which names Marquee Holdings, Inc., as a defendant, is pending. The lawsuit alleges violations of the Fair and Accurate Credit Transactions Act. FACTA provides in part that neither expiration dates nor more than the last five numbers of a credit or debit card may be printed on receipts given to customers. It imposes significant penalties upon violators where the violation is deemed to have been willful. Otherwise damages are limited to actual losses incurred by the card holder. The plaintiff is seeking an order certifying the case as a class action as well as statutory and punitive damages in an unspecified amount. On Oct. 31, 2007, the District Court denied the plaintiff's motion for class certification without prejudice pending the Ninth Circuit's decision in an appeal from a denial of certification in a similar FACTA case. The District Court stayed all proceedings in the case pending the outcome of the Ninth Circuit case. On June 3, 2008, the President of the United States of America signed the FACTA reform bill. The bill specifies that if a company printed the expiration date on credit card receipts, but otherwise complied with FACTA, it did not willfully violate the law. The legislation does not specifically address the situation where more than five digits of the credit card are printed on a receipt. The Ninth Circuit appeal was subsequently dismissed after the parties reached a settlement. On Oct. 24, 2008, the District Court denied plaintiff's renewed motion for class certification. Plaintiff has appealed this decision and the case is stayed pending this appeal, according to the company's Aug. 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 2, 2009. The suit is Michael Bateman v. Regal Cinemas Inc. et al., Case No. 07-cv-00052 (C.D. Calif.) (Feess, J.). Representing the plaintiffs are: Gregory N. Karasik, Esq. Ira Spiro, Esq. SPIRO MOSS BARNESS 11377 West Olympic Boulevard, 5th Floor Los Angeles, CA 90064 Phone: 310-235-2468 Representing the defendants is: David E. Novitski, Esq. THELEN REID BROWN RAYMANS AND STEINER 333 South Hope Street, Suite 2900 Los Angeles, CA 90071-3048 Phone: 213-576-8097 Fax: 213-576-8080 MDL 2036: Checking Account Overdraft Suits Sent to S.D. Fla. ----------------------------------------------------------------- Marking a substantial step forward in litigation over the banking industry's abusive and excessive overdraft fee policies and practices, plaintiffs' counsel in In re Checking Account Overdraft Litigation, MDL No. 2036; Master Docket No. 09-md-2036 (S.D. Fla.), announced that bank customers have filed a series of nationwide class action lawsuits against Bank of America, Wachovia, U.S. Bank, JPMorgan Chase and Citibank. The complaints were filed in the United States District Court for the Southern District of Florida in Miami, where all federal lawsuits brought against the banking industry for abusive overdraft fees have been coordinated before the Honorable James Lawrence King. "The collection of excessive overdraft fees, usually around $35 per transaction, impacts millions of Americans each year and has become a multibillion-dollar profit center for the banks," explained lead plaintiffs' counsel Bruce S. Rogow, Esq. "In many instances, these overdraft fees cost customers hundreds of dollars in a matter of days, or even hours, when they may be overdrawn by only a few dollars. Charging a $35 overdraft fee when a college student uses her debit card to buy a cup of coffee is unconscionable." How Bank "Overdraft Protection" Works and Why the Abusive Collection of Overdraft Fees is a National Concern Today, when customers open checking accounts, banks provide debit cards for the withdrawal of cash from ATM machines and the purchase of goods and services. Many bank customers are not aware that as part of the process of obtaining the debit card, banks automatically enroll their customers in "overdraft protection." The overdraft protection kicks in if the customer spends more than he or she has in the account to cover the purchase, up to a limit of a few hundred dollars. Banks could simply decline to honor customer ATM or point-of-sale transactions if the account lacks sufficient funds, or could warn customers that if they go through with the transaction an overdraft fee will be assessed. In fact, until a few years ago, most banks simply declined debit transactions that would overdraw an account. "Banks do not record charges and purchases on ATM or debit cards in the order they actually occur," stated plaintiffs' counsel Michael W. Sobol, Esq., of Lieff Cabraser Heimann & Bernstein, LLP. "Instead, banks reorder the charges and purchases so that the largest charge or purchase is the first one paid by the bank. This manipulative practice is intentionally designed, the complaints allege, to maximize overdraft fee revenue." "If you buy your kids a $15 meal at McDonalds on your debit card and your account was overdrawn, that lunch actually cost you $50," added Mr. Sobol. "The bank won't decline the debit transaction, nor will the bank tell you that you have overdrawn your account and is about to turn your $15 lunch into a $50 expense." In 2007, banks collected more than $17 billion in overdraft fees. That number nearly doubled in 2008, as more and more consumers struggled to maintain positive checking account balances. In 2009, banks are expected to bring in up to $40 billion in overdraft charges from nearly 50 million customers. "While all bank customers have been affected, these overdraft fee policies disproportionately affect young people, the elderly and the poor, who are most likely to maintain low account balances," noted Mr. Rogow. "Moreover, these fees have the tendency to create a domino effect, resulting in even more fees." Further Information for Bank Customers Bank customers assessed overdraft fees who wish to learn more about this litigation should visit http://www.bank-overdraft.com/ where they can submit their complaint to plaintiffs' counsel. Lead Counsel for the Plaintiffs is: Bruce S. Rogow, Esq. Robert C. Gilbert, Esq. Jeremy William Alters, Esq. Kimberly Lynn Boldt, Esq. ALTERS BOLDT BROWN RASH & CULMO, P.A. 4141 N.E. 2nd Avenue Miami, Florida 33137 The members of the Plaintiffs' Executive Committee are: Bruce Steckler, Esq. Russell Budd, Esq. S. Ann Saucer, Esq. BARON & BUDD 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 - and - Ruben Honik, Esq. GOLUMB & HONIK, P.C. 1515 Market Street, Suite 1100 Philadelphia, PA 19102 - and - Barry R. Himmelstein, Esq. Michael W. Sobol, Esq. Jordan S. Elias, Esq. Mikaela Bernstein, Esq. Roger Norton Heller, Esq. Barry R. Himmelstein, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 - and - Elizabeth A. Alexander, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 150 Fourth Avenue North, Suite 1650 Nashville, TN 37219-2415 - and - Robert C. Josefsberg, Esq. Victor M. Diaz, Jr., Esq. John Gravante, III, Esq. PODHURST ORSECK, P. A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, FL 33130-1780 - and - Ted E. Trief, Esq. Barbara E. Olk, Esq. Arlene Stevens, Esq. TRIEF & OLK 150 East 58th Street, 34th Floor New York, NY 10155 - and - Edward Adam Webb, Esq. G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, L.L.C. 1900 The Exchange SE, Suite 480 Atlanta, GA 30339 Individual plaintiffs are represented by: Carey Gavin Been, Esq. Denise Lissette Diaz, Esq. Jeffrey F. Keller, Esq. Kathleen R. Scanlan, Esq. KELLER GROVER LLP 425 Second Street, Suite 500 San Francisco, CA 94107 - and - Steve W. Berman, Esq. HAGENS & BERMAN 1301 5th Avenue, Suite 2900 Seattle, WA 98101 - and - Nicholas A. Carlin, Esq. Randy Scott Erlewine, Esq. David M. Given, Esq. PHILLIPS & ERLEWINE & GIVEN LLP 50 California Street, 35th Floor San Francisco, CA 94111 - and - Charles M. Delbaum, Esq. Stuart T. Rossman, Esq. NATIONAL CONSUMER LAW CENTER 7 Winthrop Square, 4th Floor Boston, MA 02110 - and - Robert Cecil Gilbert, Esq. 4141 NE 2nd Avenue, Suite 201 Miami, FL 33137 - and - Ruben Honik, Esq. Stephan Matanovic, Esq. Damien Zillas, Esq. GOLOMB & HONIK PC 1515 Market Street, Suite 1100 Philadelphia, PA 19102 - and - Benjamin F. Johns, Esq. Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. CHIMICLES & TIKELLIS LLP One Haverford Centre 361 W. Lancaster Avenue Haverford, PA 19041 - and - Jae Kook Kim, Esq. Richard D. McCune, Jr., Esq. MCCUNE WRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 - and - Steve D. Larson, Esq. Joshua L. Ross, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER 209 SW Oak Street, 5th Floor Portland, OR 97204 - and - David Henry Lichter, Esq. HIGER LICHTER & GIVNER LLP 18305 Biscayne Boulevard, Suite 402 Aventura, FL 33160 - and - Bruce Heller Nagel, Esq. NAGEL RICE LLP 103 Eisenhower Parkway Roseland, NJ 07068 - and - Peter S. Pearlman, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 Plaza West One Saddle Brook, NJ 07663 Bank of America is represented by: Laurence J. Hutt, Esq. Christopher S. Tarbell, Esq. ARNOLD & PORTER LLP 777 S. Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 - and - Sharon D. Mayo, Esq. Aaron Schur, Esq. ARNOLD & PORTER LLP 275 Battery Street, Suite 2700 San Francisco, CA 94111 - and - James Randolph Liebler, Esq. Barbara Viniegra, Esq. LIEBLER GONZALEZ & PORTUONDO PA 44 W. Flagler Street, 25th Floor Miami, FL 33130-4329 - and - William Woodhull Stone, Esq. HOLZER HOLZER & FISTEL LLC 200 Ashford Center North, Suite 300 Atlanta, GA 30338 Branch Banking and Trust Company is represented by: Nancy H. Baughan, Esq. Constance Melissa Ewing, Esq. William J. Holley, II, Esq. PARKER HUDSON RAINER & DOBBS Marquis II Tower 285 Peachtree Center Avenue NE, Suite 1500 Atlanta, GA 30303 Citibank is represented by: Alexandria Rose Kachadoorian, Esq. Lisa M. Simonetti, Esq. STROOCK & STROOCK & LAVAN 2029 Century Park East, Suite 1800 Los Angeles, CA 90067-3086 J.P. Morgan Chase is represented by: David Lesser, Esq. Christopher R. Lipsett, Esq. WILMER CUTLER PICKERING HALE & DORR 399 Park Avenue New York, NY 10022 U.S. Bancorp and U.S. Bank, N.A., are represented by: Rita Lin, Esq. Richard D. McCune, Jr., Esq. MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482 - and - Sylvia Rivera, Esq. MORRISON & FOERSTER 555 W. 5th Street, Suite 3500 Los Angeles, CA 90013-1024 - and - C. Marie Eckert, Esq. Cody J. Elliott, Esq. MILLER NASH LLP 111 SW 5th Avenue, Suite 3400 Portland, OR 97204-3699 Wachovia Bank, N.A., is represented by: Tracy Thomas Cottingham, III, Esq. HUNTON & WILLIAMS Bank of America Plaza 101 South Tryon Street, Suite 3500 Charlotte, NC 28280 - and - Jason M. Beach, Esq. Lawrence J. Bracken, II, Esq. Ashley F. Cummings, Esq. HUNTON & WILLIAMS 600 Peachtree Street NE, Suite 4100 Atlanta, GA 30308-2216 - and - Ann Marie Mortimer, Esq. HUNTON & WILLIAMS 550 S. Hope Street, Suite 2000 Los Angeles, CA 90071 - and - Barry Rodney Davidson, Esq. HUNTON & WILLIAMS 1111 Brickell Avenue, Suite 2500 Miami, FL 33131 - and - Leda Dunn Wettre, Esq. ROBINSON WETTRE & MILLER LLC One Newark Center, 19th Floor Newark, NJ 07102 Wells Fargo Bank, N.A., is represented by: Dori Katrine Stibolt, Esq. RUDEN, MCCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 222 Lakeview Avenue, Suite 800 West Palm Beach, FL 33401 MURPHY OIL: 5th Cir. Revives Katrina Victims' Global Warming Suit ----------------------------------------------------------------- Jay Carmella at Jurist Legal News & Research reports that the United States Court of Appeals for the Fifth Circuit has ruled that 14 victims of Hurricane Katrina have standing to sue companies for allegedly contributing to global warming, which they claim played a role in increasing the severity of the hurricane. The court found Friday that the plaintiffs had presented enough evidence against the oil, coal, and chemical companies named in the Fourth Amended Class Action Complaint in Comer, et al. v. Murphy Oil, U.S.A., Inc., et al., Case No. 05-cv-00436 (S.D. Miss.), to allow the class action lawsuit to proceed. A copy of the Fourth Amended Class Action Complaint is available at http://is.gd/4swvA The Fifth Circuit's ruling reversed the decision of the U.S. District Court for the Southern District of Mississippi, which dismissed the case for lack of standing and on political question grounds. The appeals court wrote: Here, the plaintiffs' complaint alleges that defendants' emissions caused the plaintiffs' property damage, which is redressable through monetary damages; for example, the plaintiffs allege that defendants' willful, unreasonable use of their property to emit greenhouse gasses constituted private nuisance under Mississippi law because it inflicted injury on the plaintiffs' land by causing both land loss due to sea level rise and property damage due to Hurricane Katrina. The court also rejected the finding of the district court that the case presented a political question. While the appeals court acknowledged the difficulty in proving causation for any plaintiff in such a case, the result could potentially lead to a rise in the lawsuits brought on the subject of climate change. A copy of the Fifth Circuit's ruling in Comer, et al. v. Murphy Oil USA, et al., No. 07-60756 (5th Cir.), is available at: http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-CV0.wpd.pdf In the District Court proceeding, the Plaintiffs are represented by: F. Gerald Maples, Esq Stephen M. Wiles, Esq. Carlos A. Zelaya, II, Esq. F. GERALD MAPLES, P.A. 902 Julia Street New Orleans, LA 70113 Telephone: (504) 569-8732 - and - Timothy W. Porter, Esq. PORTER & MALOUF 825 Ridgewood Rd Ridgeland, MS 39157 Telephone: (601) 957-1173 While last week's ruling is the first to grant individuals standing in a case involving climate change, the U.S. Court of Appeals for the Second Circuit ruled last month that states can sue power companies for emitting carbon dioxide, allegedly contributing to global warming. The Obama administration has taken several steps this year to curb greenhouse gas emissions. In June, the U.S. House of Representatives passed a climate bill -- H.R. 2454 -- that focuses on clean energy. The bill calls for a reduction in greenhouse emissions by 17 percent from 2005 levels by 2020, and by 80 percent by 2050 by establishing a cap- and-trade system. It also establishes for the first time limits on greenhouse gases that will become progressively stricter, providing an incentive for a transition to green energy sources ranging from "wind, solar, and geothermal power to safer nuclear energy and cleaner coal." NEW YORK THRUWAY: Inequitable Grand Island Toll Case Reinstated --------------------------------------------------------------- The United States Court of Appeals for the Second Circuit reinstated a class action lawsuit challenging a New York Thruway Authority toll policy that affords a discount to Grand Island residents and denies the same benefit to all other New Yorkers and to all nonresidents of New York. A copy of the Second Circuit's ruling is available at http://is.gd/4sd5h The appellate proceeding is Selevan, et al. v. New York Thruway Authority, No. 07-0037-cv (2d Cir.). The proceeding before the trial court is Selevan, et al. v. New York Thruway Authority, et al, Case No. 06-cv-00291 (N.D.N.Y.) (Sharpe, J.). The Plaintiffs are represented by: Seth R. Lesser, Esq. Andrew P. Bell, Esq. LOCKS LAW FIRM PLLC 747 Third Avenue New York, NY 10017 Telephone: 212-838-3333 NEWS CORP: No Trial Date Yet for Consolidated "Brown" Suit ---------------------------------------------------------- No trial date has been set yet on the consolidated class action lawsuit, Jim Brown v. Brett C. Brewer, et al., according to News Corp.'s Aug. 12, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2009. On June 14, 2006, a purported class action lawsuit, captioned Jim Brown v. Brett C. Brewer, et al., was filed against certain former Intermix directors and officers in the U.S. District Court for the Central District of California. The plaintiff asserted claims for alleged violations of Section 14a of the Exchange Act and SEC Rule 14a-9, as well as control person liability under Section 20a. The plaintiff alleged that certain defendants disseminated false and misleading definitive proxy statements on two occasions: -- one on Dec. 30, 2003 in connection with the shareholder vote on Jan. 29, 2004 on the election of directors and ratification of financing transactions with certain entities of VantagePoint, and -- another on Aug. 25, 2005 in connection with the shareholder vote on the FIM Transaction. The complaint named as defendants certain VantagePoint related entities, the former general counsel and the members of the Intermix Board who were incumbent on the dates of the respective proxy statements. Intermix was not named as a defendant, but has certain indemnity obligations to the former officer and director defendants in connection with these claims and allegations. On Aug. 25, 2006, plaintiff amended his complaint to add certain investment banks as defendants. Intermix has certain indemnity obligations to the Investment Banks as well. Plaintiff amended his complaint again on Sept. 27, 2006, which defendants moved to dismiss. On Feb. 9, 2007, the case was transferred to Judge George H. King, the judge assigned to the LeBoyer action, on the grounds that it raises substantially related questions of law and fact as LeBoyer, and would entail substantial duplication of labor if heard by different judges. On June 11, 2007, Judge King ordered the Brown case be consolidated with the LeBoyer action, ordered plaintiffs' counsel to file a consolidated first amended complaint, and further ordered the parties to file a joint brief on defendants' contemplated motion to dismiss the consolidated first amended complaint. On July 11, 2007, plaintiffs filed the consolidated first amended complaint, which defendants moved to dismiss. By order dated Jan. 17, 2008, Judge King granted defendants' motion to dismiss the 2003 proxy claims (concerning VantagePoint transactions) and the 2005 proxy claims (concerning the FIM Transaction), as well as a claim against the VantagePoint entities alleging unjust enrichment. The court found it unnecessary to rule on dismissal of the remaining claims, which are related to the 2005 FIM Transaction, because the dismissal disposed of those claims. On Feb. 8, 2008, plaintiffs filed a consolidated Second Amended Complaint, which defendants moved to dismiss on February 28, 2008. By order dated July 15, 2008, the court granted in part and denied in part defendants' motion to dismiss. The 2003 claims and the claims against the Investment Banks were dismissed with prejudice. The Section 14a and Section 20a, as well as the breach of fiduciary duty claims related to the FIM Transaction, remain against the officer and director defendants and the VantagePoint defendants. On Oct. 6, 2008, defendants filed a partial motion for summary judgment seeking dismissal of the Section 14a, Section 20 and state law disclosure claims. On Nov. 10, 2008, Judge King denied the motion without prejudice. On Nov. 14, 2008, plaintiff filed a motion for class certification to which defendants filed their opposition on Jan. 14, 2009. On June 22, 2009, the court granted plaintiff's motion for class certification, certifying a class of all holders of Intermix Media, Inc. common stock, from July 18, 2005 through consummation of the News Corporation merger, who were allegedly harmed by defendants' improper conduct as set forth in the complaint. Fact discovery has been completed, and expert discovery is proceeding. Defendants are preparing a motion for summary judgment, which must be filed by Oct. 13, 2009. News Corp. -- http://www.newscorp.com/-- is a diversified entertainment company with operations in eight industry segments, including Filmed Entertainment, Television, Cable Network Programming, Direct Broadcast Satellite Television, Magazines and Inserts, Newspapers and Information Services, Book Publishing and Other. The activities of News Corporation are conducted principally in the United States, the United Kingdom, Continental Europe, Australia, Asia and the Pacific Basin. Through its subsidiaries, it is engaged in the operation of broadcast television stations, and the development, production and distribution of network and television programming. The company engages in the direct broadcast satellite business through its subsidiary, SKY Italia. It also owns interests in BSkyB and Premiere, which are engaged in the direct broadcast satellite business. NOVARTIS AG: U.S. Labor Dept. Says Salespeople Are Employees ------------------------------------------------------------ As previously reported in the Class Action Reporter, the Honorable Paul A. Crotty dismissed In Re Novartis Wage and Hour Litigation, Case No. 06-md-1794 (S.D.N.Y.), in January 2009, and the Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. Last week, Margaret Cronin Fisk at Bloomberg News reports, the U.S. Department of Labor filed an amicus brief asking the Second Circuit to overturn Judge Crotty's decision and arguing that Novartis AG's sales representatives are covered by federal wage- and-hour laws requiring payment of overtime. "Under the department's regulations, the reps do not meet the requirements for either the outside sales or administrative exemption," the government says, because they don't sell directly to doctors or exercise independent judgment on significant matters. The lawsuit includes more than 2,500 current and former sales representatives. They may seek damages totaling as much as $100 million, David Sanford, Esq., of Sanford Wittels & Heisler LLP in Washington, tells Ms. Fisk. TARGET CORP: Accused of Mislabeling Organic Food Products --------------------------------------------------------- A public interest group that focuses on food and agriculture, The Cornucopia Institute, announced this week that it had filed formal complaints with the USDA's organic program, and Wisconsin and Minnesota officials, alleging that Target Corporation has misled consumers into thinking some conventional food items it sells are organic. The complaints are the latest salvo into a growing controversy whereas corporate agribusiness and major retailers have been accused of blurring the line between "natural" products and food that has been grown, processed and properly certified organic under tight federal standards. "Major food processors have recognized the meteoric rise of the organic industry, and profit potential, and want to create what is in essence 'organic light,' taking advantage of the market cachet but not being willing to do the heavy lifting required to earn the valuable USDA organic seal," said Mark A. Kastel, Senior Farm Policy Analyst at Cornucopia. The Wisconsin-based farm policy research group discovered Target nationally advertised Silk soymilk in newspapers with the term "organic" pictured on the carton's label, when in fact the manufacturer, Dean Foods, had quietly shifted their products away from organics. Dean Foods, and its WhiteWave division, received media scrutiny, and industry condemnation, this past spring for not notifying retailers or changing the UPC codes, when they quietly switched to conventional soybeans in their core-products. Dean/WhiteWave also received heat in the organic food and agriculture community when they decided to convert some of their Horizon products, the leading organic label in terms of sales volume, to cheaper "natural" (conventional) ingredients. "This really hit a nerve because one of these new Horizon products, Little Blends yogurt, is aimed specifically at toddlers, at an early stage of development, where the nutritional superiority of organic food, and its utility in avoiding chemical residues in our food, is so critically important," Mr. Kastel added. A front-page story in the Chicago Tribune in July outlined a consumer survey that showed the public was unclear about the difference between natural and organic labels and that some corporations, particularly Dean Foods, were taking advantage of the confusion in the marketplace. The story quoted Suzanne Shelton, president and CEO of the Shelton Group which conducted the survey, as saying, "They [consumers] think 'natural' is regulated by the government but that organic isn't, and of course it's just the opposite." In fact, a strict set of farm and food handling standards have been developed and implemented by the federal government to regulate food that qualifies for the USDA's organic seal. For the most part, food products containing "natural" ingredients represent little more than soothing marketing puffery aimed at consumers. This is not the first tangle involving Cornucopia and Target. The giant Minneapolis-based retailer's own upscale private label food line, Archer Farms, which blurs the line selling both natural and organically labeled food, came under scrutiny when Cornucopia discovered that it's organic milk supplier, Colorado- based Aurora Dairy, was flagrantly violating federal organic livestock standards and filed a complaint with the USDA. USDA investigators determined that Aurora had willfully violated 14 federal organic regulations. In what was condemned as a "sweetheart deal" by some in the organic industry, the Bush administration allowed Aurora to stay in business. Unlike some other retailers, Target stuck with Aurora as their milk supplier for their Archer Farms label. "In an industry where educational achievement and passion are the common denominators in describing its clientele, Target could certainly be viewed as arrogant to think they can take advantage of consumers by ignoring both the spirit and letter of the laws governing organic commerce," Mr. Kastel affirmed. SuperTarget stores have gained significant market share around the country and are, according to a recent Nielsen/Shelby report, now the number two grocer in Minnesota's Twin Cities market. "We feel very strongly about taking seriously the use of the regulated term: Organic," said Lindy Bannister, general manager of The Wedge, the nation's largest member-owned cooperative store. "Although we welcome all the players that bring organic food to people, we must insist that, for the unregulated (the non-certified retailers), they at the very least should proof their ads as they are subject to a federal fine for misusing that regulated term." This is not the first time The Cornucopia Institute has found that specialty retailers, like the nation's approximately 275 co- op grocers, have faced unethical competition from big-box chains. After the group filed complaints with federal and state regulators against Wal-Mart in 2006, also alleging misrepresention of conventional food as organic with improper signage in their stores, the nation's largest retailer signed consent agreements with the USDA and the state of Wisconsin committing to change their practices. "Wal-Mart did indeed clean up its act, as we expect Target to do, but it should not take the judicious oversight of an industry watchdog to cause these giant corporations to comply with the law, said Will Fantle, research director for the Wisconsin-based Cornucopia. "One of the reasons these companies can undercut other retailers is they do not invest in the kind of management expertise necessary to prevent problems of this nature from occurring." "It's bad enough Target steals real farmers' identities with that fake 'Archer Farms' label," said Barth Anderson, a consumer long involved in the organic movement and chief blogger at Fair Food Fight. "But blurring the lines between natural and organic is just plain wrong. Target is trying to profiteer at the expense of consumers like me." Mr. Anderson was adamant that, "There's nothing wrong with larger corporations being involved in organics but if they squeeze out ethical companies by cutting corners, or play fast and loose by the rules, everyone loses - real farmers, organic consumers and retailers alike. Blurring the lines between natural and organic is just plain trying to profiteer at the expense of consumers like me." A copy of the complaint filed with the USDA's National Organic Program by: Will Fantle Director of Research P.O. Box 126 Cornucopia, WI 54827 Telephone: 715-839-7731 is available at: http://www.cornucopia.org/USDA/TargetComplaint_10-09.pdf WD-40 COMPANY: 9th Cir. Remands Drimmer Suit to S.D. Calif. ----------------------------------------------------------- The Ninth District Court of Appeals, on Sept. 10, 2009, remanded the case filed against WD-40 Co. to the U.S. District Court, Southern District of California. Drimer v. WD-40 Company, Case No. 06-cv-00900 (S.D. Calif.) (Whelan, J.), was filed on April 19, 2006. After several of the plaintiff's factual claims were dismissed by way of motion, the plaintiff filed an amended complaint on Sept. 20, 2006, seeking class action status and alleging that the company misrepresented that its 2000 Flushes Bleach and 2000 Flushes Blue Plus Bleach ATBCs are safe for plumbing systems and unlawfully omitted to advise consumers regarding the allegedly damaging effect the use of the ATBCs has on toilet parts made of plastic and rubber. The amended complaint sought to remedy such allegedly wrongful conduct: (i) by requiring the company to identify all consumers who have purchased the ATBCs and to return money as may be ordered by the court; and (ii) by the granting of other equitable relief, interest, attorneys' fees and costs. On Aug. 24, 2007, the company successfully defeated the plaintiff's attempt to have the case certified as a class action. The plaintiff has appealed the District Court's decision, and the case was argued at the appellate level in April 2009. On Aug. 19, 2009, the Ninth District Court of Appeals affirmed the District Court's certification decision. The case has been remanded to the District Court, according to the company's Oct. 16, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 31, 2009. The Plaintiff is represented by: Elaine A. Ryan, Esq. Patricia N. Syverson, Esq. BONNETT FAIRBOURN FRIEDMAN AND BALINT 2901 North Central Avenue, Suite 1000 Phoenix, AZ 85012 Telephone: (602) 274-1100 - and - Robert Joseph Solis, Esq. LAW OFFICES OF ROBERT J. SOLIS 501 West Broadway, Suite 1370 San Diego, CA 92101 Telephone: (619) 233-1900 WD-40 Company is represented by: Shannon Sweeney, Esq. BAKER AND MCKENZIE 101 West Broadway, Suite 1200 San Diego, CA 92101-8213 Telephone: (619) 236-1441 WD-40 Company -- http://www.wd40.com/-- is a global consumer products company it markets two multi-purpose maintenance products known as WD-40 and 3-IN-ONE Oil, and eight homecare and cleaning products, X-14 hard surface cleaners and automatic toilet bowl cleaners (ATBC), 2000 Flushes automatic toilet bowl cleaners, Carpet Fresh and No Vac rug and room deodorizers, Spot Shot aerosol and liquid carpet stain removers, 1001 carpet and household cleaners and rug and room deodorizers and Lava and Solvol heavy-duty hand cleaners. Multi-purpose maintenance products are sold worldwide in markets, such as North, Central and South America, Asia, Australia and the Pacific Rim, Europe, the Middle East and Africa. Homecare and cleaning products are sold in North America, the United Kingdom, Australia and the Pacific Rim. The company sells its products through mass retail and home center stores, warehouse club stores, grocery stores, hardware stores, automotive parts outlets, and industrial distributors and suppliers. ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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