/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/100118.mbx C L A S S A C T I O N R E P O R T E R Monday, January 18, 2010, Vol. 12, No. 11 Headlines AEROVIAS DE MEXICO: 9th Cir. Won't Reinstate Tourism Tax Lawsuit BANK OF AMERICA: Lawsuit Contests Billing & Collection Tactics CANDELA CORP: Motion to Consolidate Two Actions Remain Pending CINTAS CORP: Court Yet to Approve Settlement Pact in Veliz Suit CIT GROUP: Defends Securities Exchange Act Violations Suit CIT GROUP: Continues to Defend Securities Act Violation Suit HEALTH NET OF ARIZONA: Accused of Improper Policy Termination HSBC BANK: N.Y. Suit Challenges Unsolicited Credit Card Practice IVIVI TECHNOLOGIES: Inks MOU to Settle Shareholder Complaint JABIL CIRCUIT: Continues to Defend 2nd Amended Complaint in Fla. JAVELIN PHARMACEUTICALS: Faces "Schnipper" Suit in Massachusetts KAISER FOUNDATION: Calif. Class Suit Seeks Interest on Judgments LAWSON SOFTWARE: Court Denies Certification Bid in "Cruz" Suit MONROE MUFFLER: Missouri Lawsuit Questions Hidden Shop Fees NATIONAL BEEF: Unit Defends Suit over Spreading of Wastewater NEW YORK: Suit Accuses State of Abusing 500 Troubled Teens SIMPSON MANUFACTURING: Has Yet to be Served Suit Over Corrosion TOYOTA MOTOR: Fla. Suit Alleges Unjust Enrichment from Car Defect TOYOTA MOTOR: Continues to Face Reese-Levering Violations Suit TRIAD GUARANTY: Continues to Defend "Phillips" Suit in N.C. USANA HEALTH: Continues to Defend "Chirco" Suit in Nevada Court ********* AEROVIAS DE MEXICO: 9th Cir. Won't Reinstate Tourism Tax Lawsuit ---------------------------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that Mexican airline passengers lost their bid to reinstate a class action accusing Aeromexico of collecting a so-called "tourism tax" for the Mexican government, even though Mexican citizens are exempt from the tax. A copy of the Ninth Circuit's ruling in Sanchez v. Aerovias De Mexico, S.A. de C.V., dba Aeromexico, No. 08-55588 (9th Cir.), is available at: http://www.ca9.uscourts.gov/datastore/opinions/2010/01/05/08-55588.pdf The trial court proceeding is Sanchez v. Aerovias De Mexico, S.A. de C.V., dba Aeromexico, Case No. 07-cv-07280 (C.D. Calif.) (Real, J.). BANK OF AMERICA: Lawsuit Contests Billing & Collection Tactics -------------------------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that Bank of America and its debt collecting arm double-billed on a mortgage and strung the customer along for months, not returning calls and refusing to refund the money or offer compensation, a retired U.S. Navy captain claims in a class action in Superior Court. Capt. Peter Dabbieri says Bank of America and its subsidiary, BAC Home Loans Services, twice withdrew $9,800 for his monthly payment on a home in Redondo Beach, and refused to refund the money despite promising to do so. More than 5 years after he got the mortgage loan from Bank of America, Mr. Dabbieri says, he was notified that BAC was taking over the loan. Then he got notice that he was late on payment, owed late fees and needed to make a payment immediately. Mr. Dabbieri says that should not have happened, as he paid the mortgage by automatic deduction from his Bank of America checking account. Mr. Dabbieri says he called BAC to clear up the problem. Later, he says he found that BAC had withdrawn both the payment he made over the phone and the regularly scheduled automatic payment he had set up with Bank of America. Mr. Dabbieri says that BAC told him when it took over his loan that he should not expect his automatic payment withdraw schedule to change unless notified otherwise. Repeated calls to resolve the mix-up led through a long string of customer service representatives. All but one refused to give their last name, left him on hold for a long time, and their supervisors never returned his calls, Mr. Dabbieri says. He says he was twice promised refunds that never came and was finally told that "because BAC had caused so many double payments, BAC would need weeks to return them all," and that he would get no compensation for his troubles. Finally, as Mr. Dabbieri began preparing this lawsuit, he says, BAC retuned the $9,800. Mr. Dabbieri seek damages and an accounting for negligence, violations of business codes, conversion and unjust enrichment. He is represented by Ray Gallo, Esq., of San Rafael, Calif. CANDELA CORP: Motion to Consolidate Two Actions Remain Pending -------------------------------------------------------------- A motion to consolidate two actions against Candela Corp. remains pending in the Massachusetts Superior Court. After the announcement of the company's proposed merger with Syneron Medical, Ltd., on Sept. 24, 2009 and Oct. 30, 2009, two putative class action lawsuits, captioned Claude Colp v. Gerard Puorro, et al., No. 09-4092 and Chelsea Colombo v. Candela Corporation, et al., No. 09-4666, were filed in the Suffolk County Business Litigation Session of the Massachusetts Superior Court against Candela and the members of Candela's board of directors. On Nov. 5, 2009, an amended complaint was filed in the Colp action. The plaintiffs in the two actions purport to sue on behalf of a class of Candela stockholders, and allege that members of Candela's board of directors breached fiduciary duties owed to Candela stockholders through, among other things, the failure to maximize shareholder value, the use of an unfair or flawed process in connection with the proposed merger between Candela and Syneron, and the omission of material information and/or the provision of materially misleading information concerning the merger. The complaints further allege that Candela, with others, aided and abetted the purported breaches of fiduciary duties. One or both of the complaints seek, among other relief: rescission of the merger agreement; an injunction against the merger; rescission of the transaction (or damages) if consummated; an order requiring disclosure of all material information relating to the proposed merger; as well as an award of all costs and disbursements of the actions, including reasonable attorneys' fees and expenses. Plaintiffs, Candela and the named individual defendants have requested that the Court consolidate the two actions. If consolidation is ordered, the Amended Complaint is expected to be the operative complaint for the consolidated action, according to the company's Nov. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 26, 2009. Candela Corp. -- http://www.candelalaser.com/-- is engaged in the development and commercialization of aesthetic laser that allow physicians and personal care practitioners to treat a variety of cosmetic and medical conditions, which include permanent hair reduction on all skin types; skin rejuvenation, skin tightening and wrinkle reduction; vascular lesions, such as rosacea, facial spider veins, leg veins, port wine stains, angiomas and hemangiomas; all-color tattoo removal; skin resurfacing scars, stretch marks and warts; removal of benign pigmented lesions, such as sun spots, age spots, freckles, and Nevus of Ota/Ito; acne and acne scars; sebaceous hyperplasia; pseudofolliculitis barbae (PFB); psoriasis, and other cosmetic skin treatments. It offers a range of products based on technologies focusing on the aesthetic and cosmetic laser applications. Candela's product line includes GentleMax, AlexTriVantage, GentleLASE, GentleYAG, Vbeam, Smoothbeam, SmoothPeel and QuadraLASE. CINTAS CORP: Court Yet to Approve Settlement Pact in Veliz Suit --------------------------------------------------------------- The Court has yet to issue a decision on the proposed settlement of class action claims in Veliz, et al. v. Cintas Corp., et al., Case No. 03-cv-1180, according to the company's Jan. 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 30, 2009. Cintas is a defendant in a purported class action lawsuit styled Paul Veliz, et al. v. Cintas Corporation, filed on March 19, 2003, in the U.S. District Court, Northern District of California, Oakland Division, alleging that Cintas violated certain federal and state wage and hour laws applicable to its service sales representatives, whom Cintas considers exempt employees, and asserting additional related ERISA claims. On April 5, 2004 and February 14, 2006, the Court stayed the claims of all plaintiffs with valid arbitration agreements pending arbitration of those claims. Claims made in the Veliz action therefore are pending before the U.S. District Court, Northern District of California and Judge Bruce Meyerson (Ret.), an Arbitrator selected by the parties. On Aug. 5, 2009, the parties in the Veliz action reached a settlement in principle. When the settlement is fully documented and approved by the Court, the settlement will resolve all claims now pending or that could have been brought relating to the subject matter of the case before the Court and the Arbitrator. Cintas expects that the approval process will take several months. The principal terms of the settlement provide for an aggregate cash payment of approximately $23,950,000 which is accrued in current accrued liabilities at Nov. 30, 2009. The pre-tax impact, net of insurance proceeds, was $19,477.000. Cintas Corp. -- http://www.cintas.com/-- provides specialized products and services to businesses of all types primarily throughout the United States and Canada. The company is a provider of corporate identity uniforms through rental and sales programs, as well as a significant provider of related business services, including entrance mats, restroom products and services, first aid, safety and fire protection products and services, document management services and branded promotional products. Cintas classifies its businesses into four operating segments: Rental Uniforms and Ancillary Products; Uniform Direct Sales; First Aid, Safety and Fire Protection Services, and Document Management Services. The company provides its products and services to approximately 800,000 businesses of all types, from small service and manufacturing companies to corporations. CIT GROUP: Defends Securities Exchange Act Violations Suit ---------------------------------------------------------- CIT Group Inc., continues to defend putative class actions alleging violations of the Securities Exchange Act of 1934, according to the company's Jan. 8, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On July 25, 2008 and August 22, 2008, putative class action lawsuits were filed in the U.S. District Court for the Southern District of New York against CIT, its Chief Executive Officer and its Chief Financial Officer. The lawsuits allege violations of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder during the period from April 18, 2007 to March 5, 2008. The lawsuit is premised upon allegations that the company made false and misleading statements and or omissions about its financial condition by failing to account in its financial statements or, in the case of the preferred stockholder, its registration statement and prospectus, for private student loans related to a pilot training school, which, plaintiffs allege were highly unlikely to be repaid and should have been written off. Plaintiffs seek, among other relief, unspecified damages and interest. CIT Group Inc. -- http://www.cit.com/-- is a bank holding company with more than $60 billion in finance and leasing assets that provides financial products and advisory services to small and middle market businesses. CIT GROUP: Continues to Defend Securities Act Violation Suit ------------------------------------------------------------ CIT Group Inc., continues to defend a putative class action alleging violations of the Securities Act of 1933, according to the company's Jan. 8, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On August 15, 2008, a putative class action lawsuit was filed in the U.S. District Court for the Southern District of New York by the holder of CIT PrZ equity units against CIT, its Chief Executive Officer, its Chief Financial Officer and members of its Board of Directors. The lawsuit alleges violations of Sections 11 and 12 of the Securities Act of 1933 with respect to the company's registration statement and prospectus filed with the SEC on Oct. 17, 2007 through March 5, 2008. The lawsuit is premised upon allegations that the company made false and misleading statements and or omissions about its financial condition by failing to account in its financial statements or, in the case of the preferred stockholder, its registration statement and prospectus, for private student loans related to a pilot training school, which, plaintiffs allege were highly unlikely to be repaid and should have been written off. Plaintiffs seek, among other relief, unspecified damages and interest. CIT Group Inc. -- http://www.cit.com/-- is a bank holding company with more than $60 billion in finance and leasing assets that provides financial products and advisory services to small and middle market businesses. HEALTH NET OF ARIZONA: Accused of Improper Policy Termination ------------------------------------------------------------- Courthouse News Service reports that Health Net of Arizona rescinds insurance policies on pretextual reasons, a class action claims in Maricopa County Court, Phoenix. A copy of the Complaint in Navas v. Health Net of Arizona, Inc., et al., Case No. CV2009-040094 (Ariz. Super. Ct., Maricopa Cty.), is available at: http://www.courthousenews.com/2010/01/06/InsurePhx.pdf The Plaintiff is represented by: Amdrew J. DeFusco, Esq. Randall S. Udelman, Esq. DEFUSCO & UDELMAN PLC Scottsdale Financial Center III 7272 E. Indian School Rd., Suite 206 Scottsdale, AZ 85251 Telephone: 480-970-5600 HSBC BANK: N.Y. Suit Challenges Unsolicited Credit Card Practice ---------------------------------------------------------------- Courthouse News Service reports that HSBC Bank illegally sends unsolicited credit cards to people with whom it has no business relationship, putting them at risk of identity theft, a class action claims in Central Islip Federal Court, N.Y. A copy of the Complaint in Nasca v. HSBC Bank USA, N.A., Case No. 10-cv-00007 (E.D.N.Y.) (Wexler, J.), is available at: http://www.courthousenews.com/2010/01/06/Banks.pdf The Plaintiff is represented by: Abraham Kleinman, Esq. KLEINMAN, LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: 516-522-2621 - and - Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. EDELMAN, COMBS, LATTURER & GOODWIN, LLC 120 S. LaSalle St., 18th Floor Chicago, IL 60603 Telephone: 312-739-4200 IVIVI TECHNOLOGIES: Inks MOU to Settle Shareholder Complaint ------------------------------------------------------------ Ivivi Technologies, Inc., has entered into a Memorandum of Understanding to settle a purported shareholder class action complaint, according to the company's Jan. 8, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On Sept. 24, 2009, the company entered into an Asset Purchase Agreement with Ivivi Technologies, LLC (Buyer) and Ajax Capital, LLC, entities controlled by Steven M. Gluckstern, the company's Chairman, President, Chief Executive Officer and Chief Financial Officer. Pursuant to the terms of the Asset Purchase Agreement, at the closing, the company will sell substantially all of the assets of the company to the Buyer, other than cash and certain other excluded assets set forth in the Asset Purchase Agreement, and the Buyer will assume certain specified ordinary course liabilities of the Company as set forth in the Asset Purchase Agreement. Subsequent to the announcement of the transactions contemplated by the Asset Purchase Agreement, a purported shareholder class action complaint, captioned Lehmann v. Gluckstern, et. al., was filed by one of the company's shareholders in the Chancery Division of the Superior Court of New Jersey in Bergen County on Oct. 30, 2009, naming the company, its directors, Ivivi Technologies, LLC and Ajax Capital as defendants. The complaint alleges that the defendants breached their fiduciary duties in connection with the proposed sale of the company's assets to the Buyer. It also alleges that the Buyer and Ajax aided and abetted the alleged breaches of fiduciary duties by the company's directors. Among other things, the complaint seeks to enjoin the company and its directors from completing the Transaction. In the alternative, the plaintiff seeks to either rescind the Asset Purchase Agreement or recover damages in the event the Transaction is completed. The company, the other defendants and the plaintiffs entered into a Memorandum of Understanding, dated as of Jan. 5, 2010. The MOU provides, among other things, that in consideration for full settlement and release of all claims under the Complaint: 1. the company agreed to disclose certain additional information in the definitive Proxy Statement to be filed by the company regarding the Transaction with the SEC and mailed to the company's shareholders (such information has already been included in the revised preliminary proxy statement filed with the SEC on Dec. 29, 2009); 2. the company agreed to terminate the Voting Agreement; 3. the company's outside directors agreed to waive any board fees due to them for services rendered as a director of the company. The settlement is subject to, among other things: A. the drafting and execution of a formal stipulation of settlement and such other documentation as may be required to obtain final court approval of the settlement, B. the final court approval of the settlement and entry of a final order and judgment by the court providing for such release language as is contained in the settlement documents, and C. the entry of orders dismissing the Action with prejudice on the merits. The company and the other defendants have vigorously denied, and continue to vigorously deny, any wrongdoing or liability with respect to the facts and claims asserted, or which could have been asserted, in the Action. The settlement is not, and should not be construed as, an admission of wrongdoing or liability by any defendant. The company and its directors considered it desirable that the Action be settled to prevent the delay of the Transaction and to avoid the substantial burden, expense and risk of continued litigation and to fully and finally resolve the matter. Ivivi Technologies, Inc. -- http://www.ivivitechnologies.com/-- is an early stage medical technology company focusing on designing, developing and commercializing electrotherapeutic technologies. Ivivi has focused its research and development activities on targeted pulsed electromagnetic field (tPEMF) technology. The company is marketing products utilizing its tPEMF technology to various surgery markets for adjunctive use in the treatment of post operative pain and edema in superficial soft tissue. The company is developing technology for other therapeutic medical markets. JABIL CIRCUIT: Continues to Defend 2nd Amended Complaint in Fla. ---------------------------------------------------------------- Jabil Circuit, Inc., continues to defend a Second Amended Class Action Complaint filed in the U.S. District Court for the Middle District of Florida, Tampa Division, according to the company's Jan. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 30, 2009. On Sept. 18, 2006, a putative shareholder class action was filed in the U.S. District Court for the Middle District of Florida, Tampa Division against the company and various present and former officers and directors, including: 1. Forbes I.J. Alexander, 2. Scott D. Brown, 3. Laurence S. Grafstein, 4. Mel S. Lavitt, 5. Chris Lewis, 6. Timothy Main, 7. Mark T. Mondello, 8. William D. Morean, 9. Lawrence J. Murphy, 10. Frank A. Newman, 11. Steven A. Raymund, 12. Thomas A. Sansone, and 13. Kathleen A. Walters. on behalf of a proposed class of plaintiffs comprised of persons that purchased the company's shares between Sept. 19, 2001 and June 21, 2006. A second putative class action, containing virtually identical legal claims and allegations of fact was filed on Oct. 12, 2006. The two actions were consolidated into a single proceeding and on Jan. 18, 2007, the Court appointed The Laborers Pension Trust Fund for Northern California and Pension Trust Fund for Operating Engineers as lead plaintiffs in the action. On March 5, 2007, the lead plaintiffs filed a consolidated class action complaint. The Consolidated Class Action Complaint is purported to be brought on behalf of all persons who purchased the company's publicly traded securities between Sept. 19, 2001 and Dec. 21, 2006, and names the company and certain of its current and former officers, including Forbes I.J. Alexander, Scott D. Brown, Wesley B. Edwards, Chris A. Lewis, Mark T. Mondello, Robert L. Paver and Ronald J. Rapp, as well as certain of our directors, Mel S. Lavitt, William D. Morean, Frank A. Newman, Laurence S. Grafstein, Steven A. Raymund, Lawrence J. Murphy, Kathleen A. Walters and Thomas A. Sansone, as defendants. The Consolidated Class Action Complaint alleged violations of Sections 10(b), 20(a), and 14(a) of the Exchange Act and the rules promulgated thereunder. The Consolidated Class Action Complaint alleged that the defendants engaged in a scheme to fraudulently backdate the grant dates of options for various senior officers and directors, causing the company's consolidated financial statements to understate management compensation and overstate net earnings, thereby inflating the stock price. In addition, the complaint alleged that the company's proxy statements falsely stated that the company had adhered to its option grant policy of granting options at the closing price of the company's shares on the trading date immediately prior to the date of the grant. Also, the complaint alleged that the defendants failed to timely disclose the facts and circumstances that led the company , on June 12, 2006, to announce that it was lowering its prior guidance for net earnings for the third quarter of fiscal year 2006. On April 30, 2007, the plaintiffs filed a First Amended Consolidated Class Action Complaint asserting claims substantially similar to the Consolidated Class Action Complaint it replaced but adding additional allegations relating to the restatement of earnings previously announced in connection with the correction of errors in the calculation of compensation expense for certain stock option grants. The company filed a motion to dismiss the First Amended Consolidated Class Action Complaint on June 29, 2007. The plaintiffs filed an opposition to the motion to dismiss, and the company then filed a reply memorandum in further support of its motion to dismiss on Sept. 28, 2007. On April 9, 2008, the Court dismissed the First Amended Consolidated Class Action Complaint without prejudice and with leave to amend such complaint on or before May 12, 2008. On May 12, 2008, plaintiffs filed a Second Amended Class Action Complaint. The Second Amended Class Action Complaint asserts substantially the same causes of action against the same defendants, predicated largely on the same allegations of fact as in the First Amended Consolidated Class Action Complaint except insofar as the plaintiffs added KPMG LLP, the company's independent registered public accounting firm, as a defendant and added additional allegations with respect to: (a) pre-class period option grants, (b) the professional background of certain defendants, (c) option grants to non-executive employees, (d) the restatement of our financial results for certain periods between 1996 and 2005 and (e) trading by the named plaintiffs and certain of the defendants during the class period. The Second Amended Class Action Complaint also includes an additional claim for insider trading against certain defendants pursuant to Rules 10b-5 and 10b5-1 promulgated pursuant to the Exchange Act. The company filed a motion to dismiss the Second Amended Class Action Complaint. On Jan. 26, 2009, the Court dismissed the Second Amended Class Action Complaint with prejudice. The plaintiffs appealed this dismissal on Feb. 20, 2009, and oral arguments occurred in December 2009. The suit is Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc. et al., Case No. 06-cv-01716 (M.D. Fla.) (Merryday, J.). Representing the plaintiffs is: William E. Hoese Kohn, Swift & Graf, P.C. 1101 Market St., Suite 2400 Philadelphia, PA 19107-3389 Phone: 215-238-1700 E-mail: whoese@kohnswift.com Representing the defendants is: Michael L. Chapman, Esq. Holland & Knight, LLP 100 N. Tampa St., Ste. 4100, PO Box 1288 Tampa, FL 33601-1288 Phone: 813-227-8500 Fax: 813-229-0134 E-mail: michael.chapman@hklaw.com JAVELIN PHARMACEUTICALS: Faces "Schnipper" Suit in Massachusetts ---------------------------------------------------------------- Javelin Pharmaceuticals, Inc., on Jan. 5, 2010, was served with a complaint naming it, certain of its directors, Myriad Pharmaceuticals, Inc. and MPI Merger Sub, Inc. as defendants in a purported class action lawsuit captioned Schnipper v. Watson, No. 09-5439. The case was filed on Dec. 23, 2009 in the Massachusetts Superior Court. The Complaint alleges various breaches of fiduciary duty in connection with the proposed merger contemplated by the Agreement and Plan of Merger, dated Dec. 18, 2009, among the company, Myriad Pharmaceuticals, Inc., MPI Merger Sub, Inc. and a stockholder representative. Two other complaints, Parrish v. Watson, No. 10-0029 (Mass. Super. Ct. filed Jan. 5, 2010) and Andrews v. Driscoll, No. 10- 0049 (Mass. Super. Ct. filed Jan. 6, 2010), making substantially similar allegations, were filed against the company and certain of the other defendants identified in the "Schnipper" suit following the filing of the Complaint. The Parrish complaint has been voluntarily dismissed by the plaintiff, and the plaintiff's counsel in that action has informed the company that the plaintiff intends to re-file the action in the Business Litigation Session of the Massachusetts Superior Court for Suffolk County, according to the company's Jan. 8, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. Javelin Pharmaceuticals, Inc. -- http://www.javelinpharmaceuticals.com/-- is a specialty pharmaceutical company that applies technologies to develop new products and improved formulations of existing drugs that target medical need in the pain management market. The company's product candidates are focused on treating an array of pain disorders ranging from acute and episodic moderate-to-severe pain associated with cancer pain, post-operative pain, post-trauma pain, such as orthopedic injury pain, procedural pain and burn pain. The company's products include Dyloject (injectable diclofenac), Ereska (intranasal ketamine, formerly PMI-150) and Rylomine (intranasal morphine). KAISER FOUNDATION: Calif. Class Suit Seeks Interest on Judgments ---------------------------------------------------------------- Courthouse News Service reports that Kaiser Foundation Health Plan refuses to pay post-judgment interest on medical malpractice awards, a class action claims in Orange County Court, Calif. A copy of the Complaint in Haddad v. Kaiser Foundation Health Plan, Inc., et al., Case No. 30-2009 00332767 (Calif. Super. Ct., Orange Cty.) (Andler, J.), is available at: http://www.courthousenews.com/2010/01/06/InsureKaiser.pdf The Plaintiff is represented by: Daniel A. Conforti, Esq. Michael J. Carras, Esq. CONFORTI & CARRAS, APC 151 N. Kraemer Blvd., Suite 204 Placentia, CA 92870 Telephone: 714-577-1071 LAWSON SOFTWARE: Court Denies Certification Bid in "Cruz" Suit -------------------------------------------------------------- The U.S. District Court for the District of Minnesota denied the plaintiffs' request to treat the case against Lawson Software, Inc., as a class action, according to the company's Jan. 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 30, 2009. On May 20, 2008, a putative class action lawsuit was filed against the company in the U.S. District Court for the Southern District of New York on behalf of current and former business, systems, and technical consultants. The suit, Cruz, et. al., v. Lawson Software, Inc. et. al., alleges that the company failed to pay overtime wages pursuant to the Fair Labor Standards Act and state law, and alleges violations of state record-keeping requirements. The suit also alleges certain violations of ERISA and unjust enrichment. Relief sought includes back wages, corresponding 401(k) plan credits, liquidated damages, penalties, interest and attorneys' fees. The company successfully moved the case from the U.S. District Court for the Southern District of New York to the District of Minnesota. The Minnesota Federal District Court has conditionally certified the case under the FLSA as a collective action and granted the company's motion to dismiss the two ERISA counts and the state wage and hour claims, but the state wage and hour claims were later re-instated in another motion. Plaintiffs moved to treat the case as a class action for their Minnesota state law claims, and that motion was denied on Jan. 5, 2010. Representing the plaintiffs is: Llezlie Lloren Green, Esq. Cohen, Milstein, Hausfeld & Toll, PLLC 1100 New York Ave., N.W. Suite 500, West Tower Washington, D.C., DC 20005 Phone: 202-408-4600 Fax: 202-408-4699 E-mail: lgreen@cmht.com Representing the defendants are: Loretta Mae Gastwirth, Esq. Meltzer, Lippe, Goldstein & Breitstone, LLP 190 Willis Avenue Mineola, NY 11501 Phone: 516-747-0300 Fax: 516-747-0653 E-mail: lgastwirth@meltzerlippe.com - and - Sara Gullickson McGrane, Esq. Felhaber, Larson, Fenlon & Vogt, P.A. 220 S. Sixth Street, Suite 2200 Minneapolis, MN 55402 Phone: 612-373-8511 Fax: 612-338-0535 E-mail: smcgrane@felhaber.com MONROE MUFFLER: Missouri Lawsuit Questions Hidden Shop Fees ----------------------------------------------------------- Joe Harris at Courthouse News Service reports that Auto Tire Car Care Centers charge customers a hidden shop fee, a class action claims in St. Louis County Court. The fee is not included when customers are quoted prices for services, requires the customer to pay more for the service than promised, is revealed to the customer after Auto Tire has possession of the vehicle, and is not tailored to the cost of supplies, the complaint states. Named plaintiff John McCall said the fee is a predetermined amount that Auto Tire requires customers to pay for common services. The class consists of all Auto Tire customers who paid the fee. The class seeks and an injunction against deceptive trade. A copy of the Complaint in McCall v. Monroe Muffler Brake, Inc., dba AutoTire Care Care Center, Case No. 09SL-CC05472 (Mo. Cir. Ct., St. Louis Cty.), is available at: http://www.courthousenews.com/2010/01/06/AutoTire.pdf The Plaintiff is represented by: John E. Campbell, Esq. Erich V. Vieth, Esq. THE SIMON LAW FIRM, P.C. 701 Market Street, Suite 1450 St. Louis, MO 63101 Telephone: 314-241-2929 NATIONAL BEEF: Unit Defends Suit over Spreading of Wastewater ------------------------------------------------------------- National Beef Packing Co. LLC's wholly-owned subsidiary, National Beef Leathers LLC, continues to defend a suit alleging that it spread wastewater sludge containing hexavalent chromium in four counties in northwest Missouri, according to the company's Jan. 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 28, 2009. NBL has been named as a defendant in fourteen currently pending lawsuits involving NBL's tannery located in St. Joseph, Missouri. NBL purchased certain assets of the tannery from Prime Tanning in March 2009. The lawsuits are pending in the Circuit Courts of Buchanan County, Clinton County, Ray County, and DeKalb County, Missouri and in the U.S. District Court for the Western District of Missouri and were filed between April 22, 2009 and Dec. 17, 2009. The lawsuits allege that Prime and NBL spread wastewater sludge containing hexavalent chromium in four counties in northwest Missouri. The lawsuits include twelve actions filed by individuals and two purported class actions. The plaintiffs are seeking an unspecified amount of damages for wrongful death, personal injury, pain and suffering, economic damages, punitive damages, diminished property values and medical monitoring. A leading US meatpacker, National Beef Packing Co. LLC -- http://www.nationalbeef.com/-- pays close attention to what Americans eat for dinner. The company produces boxed, case-ready, portion-controlled, and branded fresh beef products for domestic and export customers. Its refrigerated trucking unit, National Carriers, transports beef within the US. To woo the natural foods consumer, the company offers the Naturewell Natural Beef and NatureSource brands of corn-fed, naturally raised beef products for sale. National Beef is owned by beef producers, who control the company through their ownership of U.S. Premium Beef. NEW YORK: Suit Accuses State of Abusing 500 Troubled Teens ---------------------------------------------------------- Dan McCue at Courthouse News Service reports that the New York State Office of Children and Family Services subjected 500 troubled youths in state detention to violent physical restraint, and routinely denied them legally required mental health care services, nine children and their parents claim in a federal class action. Among other wanton acts, state employees regularly employ a dangerous form of control known as prone restraint - having two adults hold the youth face-down on the floor while his hands are held or cuffed behind him. Prone restraint exposes the victim to risk of cardiac and respiratory arrest, back, arm and neck injuries, abrasions, strained muscles and head injuries, according to the complaint. Such treatment led to the 2006 death of a Bronx teen at the Tryon Boys' Residential Center in Johnston, and serious mental and physical injuries to scores of others, the complaint states. The families claim that OCFS Commissioner Gladys Carrion allowed the behavior to continue despite red flags raised by the U.S. Justice Department and a blue-ribbon panel appointed by Gov. David Patterson. The nine named plaintiffs, all of whom are identified by only their initials, said their treatment violated the 14th Amendment, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. They seek declaratory and injunctive relief, compensatory and punitive damages, and of a monitoring system to ensure staff accountability provision of adequate mental health assessments and treatment. The plaintiffs represent a class consisting of all youths held in intake and "limited secure" facilities in New York State. Each had been placed in rehabilitation after juvenile delinquency proceedings. The complaint quotes Carrion as having publicly stated that "more than 80 percent of the children at these facilities have mental health needs of clinical significance." In light of that acknowledgement, "The failure to provide even minimally appropriate mental health screening and treatment, despite histories of trauma, abuse and mental health needs of the majority of the children in OCFS facilities is unconscionable and contributes to the unnecessary and persistent infliction of improper physical force," the complaint states. The plaintiffs say this behavior continued despite a scathing August 2009 findings letter from the U.S. Department of Justice. In December 2009 a task force appointed by Gov. David Patterson confirmed system-wide problems, finding that adult childcare staff with the Office of Children and Family Services continue to violently and unlawfully restrain members of the class, and continue to fail to provide legally required mental health services. In addition to the Tryon Boys' Residential Center, facilities named in the suit include the Pyramid Reception Center in the Bronx, the Tryon Girls' reception Center and Girls' Limited Secure Residential Center in Johnston, the Lansing Residential Center in Lansing, the Highland Residential Center in Highland, the Industry Limited Secure Residential Center in Rush, the Finger Lakes Residential Center in Lansing, the Taberg Residential Center in Taberg, and the Sgt. Henry Johnson Youth Leadership Academy in South Kortright, N.Y. The plaintiffs are represented by Christine Bella of the Legal Aid Society, and: J. Peter Coll, Jr., Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 666 Fifth Avenue New York, NY 10103-0001 Telephone: 212-506-5000 SIMPSON MANUFACTURING: Has Yet to be Served Suit Over Corrosion --------------------------------------------------------------- Simpson Manufacturing Co., Inc., has yet to be served in a putative class action alleging premature corrosion of its strap tie holdown products installed in buildings, according to the company's Jan. 8, 2010, Form 10-Q/A filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. A putative class action was filed against the company in the Hawaii First Circuit Court styled Kai et al. v. Haseko Homes, Inc., Haseko Construction, Inc. and Simpson Manufacturing, Inc., Case No. 09-1-1476 RAT. The suit alleges premature corrosion of the company's strap tie holdown products installed in buildings in a housing development known as Ocean Pointe in Honolulu, Hawaii, allegedly causing property damage. The case is a putative class action brought by the owners of allegedly affected Ocean Pointe houses. The plaintiffs seek compensatory damages and punitive damages. The case appears to have been voluntarily dismissed, although the company has been informed that it will be re-filed. The case has not been served on the Company. The company is investigating the facts underlying the claims asserted, including, among other things: -- the cause of the alleged corrosion; -- the severity of any problems shown to exist; -- the buildings affected; -- the responsibility of the general contractor, various subcontractors and other construction professionals for the alleged damages; -- the amount, if any, of damages suffered; and -- the costs of repair, if needed. Simpson Manufacturing Co., Inc. -- http://www.simpsonmfg.com/-- is primarily a holding company. Through its subsidiary, Simpson Strong-Tie Company Inc. (SST), the company designs, engineers and manufactures wood-to-wood, wood-to-concrete and wood-to-masonry connectors, SST Quik Drive screw fastening systems and collated screws, stainless steel fasteners, and pre-fabricated shear walls. SST Anchor Systems offers a line of adhesives, mechanical anchors, carbide drill bits and powder actuated tools for concrete, masonry and steel. SST is the company's connector products segment. The company's subsidiary, Simpson Dura-Vent Company, Inc. (SDV), designs, engineers and manufactures venting systems for gas, wood, oil, pellet and other alternative fuel burning appliances. SDV is the Company's venting products segment. SST's Anchor Systems product line is included in the connector product segment. In January 2009, the company acquired the business of RO Design Corp, doing business as DeckTools. TOYOTA MOTOR: Fla. Suit Alleges Unjust Enrichment from Car Defect ----------------------------------------------------------------- Courthouse News Service reports that Toyota recalled vehicles for an accelerator pedal that can get stuck under the floor mat, according to a class action claim of unjust enrichment, in Miami Federal Court. A copy of the Complaint in Gellman v. Toyota Motor Sales, USA, Inc., Case No. 10-cv-20006 (S.D. Fla.), is available at: http://www.courthousenews.com/2010/01/06/Toyota.pdf The Plaintiff is represented by: Lance A. Harke, Esq. Sarah Clasby Engel, Esq. HARKE & CLASBY LLP 155 South Miami Ave., Suite 600 Miami, FL 33130 Telephone: (305) 536-8220 TOYOTA MOTOR: Continues to Face Reese-Levering Violations Suit -------------------------------------------------------------- Toyota Motor Credit Corp. continues to face a consolidated class- action suit over alleged violations of the Reese-Levering Automobile Sales Finance Act of California, according to the company's Nov. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. Initially two separate lawsuits were filed. The first lawsuit, "Garcia v. Toyota Motor Credit Corporation," is a cross- complaint, alleging a class action, filed on January 2007 in the Superior Court of California Stanilaus County. It claims that the company's post-repossession notice failed to comply with the Reese-Levering Automobile Sales Finance Act of California. The second cross-complaint was filed in the Superior Court of California San Francisco County, alleging a class action. The suit, "Aquilar and Smith v. Toyota Motor Credit Corporation," was filed in February 2008 and contains similar allegations claiming that the company's post-repossession notices failed to comply with Reese-Levering. The plaintiffs in the Aguilar matter are seeking injunctive relief, restitution and disgorgement, as well as damages. The company has filed a petition to consolidate these cases as they present nearly identical questions of law and fact. The cases have been consolidated in Stanislaus County as they present nearly identical questions of law and fact. A complaint alleging a class action in the Superior Court of California San Diego County, "McNess v. Toyota Motor Credit Corporation," filed in September 2008, contains similar allegations claiming that the company's post-repossession notice failed to comply with Reese-Levering. An additional complaint alleging a class-action suit in the Superior Court of California, Los Angeles County, "Smith v. Toyota Motor Credit Corporation," filed in December 2008, also contains similar allegations claiming that the Company's post repossession notice failed to comply with Reese-Levering. The plaintiffs in the McNess and Smith cases are seeking injunctive relief and restitution. The McNess and Smith cases were consolidated with the Garcia Cases in November 2008 and January 2009, respectively, as they present nearly identical questions of law and fact. A First Amended Cross-Complaint and Complaint was subsequently filed in the Superior Court of California Stanislaus County in February 2009. Toyota Motor Credit Corp. -- http://www.toyotafinancial.com/-- provides a range of finance and insurance products to authorized Toyota and Lexus vehicle dealers and, to a lesser extent, other domestic and import franchise dealers and their customers in the U.S. and Puerto Rico. It also provides finance products to commercial and industrial equipment dealers (industrial equipment dealers) and their customers. TMCC provides a range of finance products, including retail financing, leasing, and dealer financing to vehicle and industrial equipment dealers and their customers. It also provides marketing, underwriting, and claims administration related to covering certain risks of vehicle dealers and their customers. TMCC also provide coverage and related administrative services to its affiliates. The company is wholly owned by Toyota Financial Services Americas Corp. (TFSA). TRIAD GUARANTY: Continues to Defend "Phillips" Suit in N.C. ----------------------------------------------------------- Triad Guaranty Inc., continues to defend a complaint filed in the U.S. District Court, Middle District of North Carolina, according to the company's Nov. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. On Feb. 6, 2009, James L. Phillips served a complaint against the company, Mark K. Tonnesen and Kenneth W. Jones. The plaintiff purports to represent a class of persons who purchased or otherwise acquired the common stock of the company between Oct. 26, 2006 and April 1, 2008 and the complaint alleges violations of federal securities laws by the company and two of its present or former officers. The court has appointed lead counsel for the plaintiff and an amended complaint was filed June 22, 2009. The company filed its motion to dismiss the amended complaint on Aug. 21, 2009 and the plaintiff filed its opposition to the motion to dismiss on Oct. 20, 2009. The company's reply was due Nov. 19, 2009. Triad Guaranty Inc. -- http://www.triadguaranty.com/-- is a holding company. Through its wholly owned subsidiary, Triad Guaranty Insurance Corporation (Triad), the company provided private mortgage insurance coverage in the United States. Triad ceased issuing new commitments for mortgage guaranty insurance coverage on July 15, 2008, and is operating the business in run- off. Triad no longer writes new mortgage insurance policies but continues to service the existing policies. Servicing existing policies includes receiving premiums on policies that remain in force; cancelling coverage at the insured's request; terminating policies for non-payment of premium; working with borrowers in default to remedy the default and/or mitigate the Company's loss, and settling all legitimate filed claims per the Company's contractual obligations. Prior to the commencement of run-off on July 15, 2008, the company offered principally two products, Primary and Modified Pool mortgage insurance. USANA HEALTH: Continues to Defend "Chirco" Suit in Nevada Court --------------------------------------------------------------- Usana Health Sciences Inc. continues to defend a purported class action lawsuit filed with the State District Court in Clark County, Nevada, In April 2009, Joseph Chirco, a former USANA Associate filed a purported class action lawsuit and named the company and certain of its present and former officers and directors, as well as other individuals, as defendants. The proposed class consists of distributors who were Nevada residents at any time since 1995. The complaint, which is essentially a copy of a complaint from a purported distributor class action lawsuit filed against the company in California state court in 2007, alleges a number of purported material misrepresentations to the market in violation of state pyramid law, deceptive business practices, and business fraud law. The complaint seeks damages, general injunctive relief, pre- judgment interest, costs, attorney's fees, and other further relief deemed appropriate by the court. The company believes the claims in this complaint are distorted, not actionable under applicable law, and without merit. On June 2009, the company filed its answer to the complaint, which contained a general denial of the allegations in the complaint and set forth its affirmative defenses. No further updates were reported in the company's Nov. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 3, 2009. Based in Salt Lake City, Utah, USANA Health Sciences, Inc. -- http://www.usanahealthsciences.com/-- develops and manufactures science-based nutritional and personal care products. The company distributes and sells its products internationally through a network marketing system, which is a form of direct selling. Its international markets include Canada, Mexico, Australia, New Zealand, Singapore, Malaysia, Hong Kong, Taiwan, Japan, and South Korea, and direct sales from the United States to customers in the United Kingdom and the Netherlands. The company distributes and sells its products through a network marketing system, a form of direct selling, using independent distributors that it refers to as Associates. It also sells its products directly to Preferred Customers who purchase the company's products for personal use and are not permitted to resell or distribute the products. ********* 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 2010. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *