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C L A S S A C T I O N R E P O R T E R
Monday, February 15, 2010, Vol. 12, No. 31
Headlines
ACCURAY INC: Continues to Defend Consolidated Suit in California
BRISTOW GROUP: Continues to Defend Suit Over Helicopter Services
BROADCOM CORP: Awaits Court Approval of Settlement Agreement
CASH STORE: Settles Two Class Action Lawsuits in British Colombia
CORINTHIAN COLLEGES: Defending "Rivera" Demand in Arbitration
EI DUPONT: Accused in Md. of Fixing Titanium Dioxide Prices
ELECTRONIC ARTS: NCAA Loses Motions to Dismiss Athletes' Lawsuits
GOOGLE INC: Ready to Fight with DOJ in Court on Thursday
HORIZON LINES: To File Response in Amended Price-Fixing Suit
HORIZON LINES: Plaintiffs Can File Amended Complaint Until May
INTEGRAL SYSTEMS: D. Md. Court Dismisses Securities Complaint
MONSTER WORLDWIDE: Court Gives Preliminary Okay to Settlement
NEWS CORP: Motion for Summary Judgment of "Brown" Suit Pending
OVERHILL FARMS: Court Approves Dismissal of Conversion Claims
POLO RALPH: Awaits Final Approval of Settlement for Two Suits
POLO RALPH: Trial in Suit by Ex-Employees to Begin in March 2010
SUNOPTA INC: Cross-Border Settlement of Securities Litigation
TENNESSEE VALLEY: Continues to Defend Four Suits Over Ash Spill
TENNESSEE VALLEY: Petition for Rehearing in 5th Circuit Pending
TUROCY & WATSON: IP Boutique Faces Suit Alleging Wage Violations
UNITED RENTALS: Plaintiff's Appeal on Dismissal of Suit Pending
VESTIN MORTGAGE: Prevails in San Diego Suit Contesting Merger
*********
ACCURAY INC: Continues to Defend Consolidated Suit in California
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Accuray Inc. continues to defend a consolidated lawsuit filed in
the U.S. District Court for the Northern District of California,
according to the company's Feb. 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 31, 2009.
On July 22, 2009, a securities class action lawsuit captioned
City of Ann Arbor Employees' Retirement System v. Accuray
Incorporated, et al., Case No. 09-c-v03362 (N.D. Calif.) (Wilken,
J.), was filed against the company and certain of its current and
former directors and officers.
On Aug. 7, 2009 and Aug. 9, 2009, two securities class action
complaints, both similar to the one filed on July 22, 2009, were
filed against the same defendants in the same court. These three
actions have been consolidated.
All of these complaints generally allege that the company and the
individual defendants made false or misleading public statements
regarding its operations and seek unspecified monetary damages
and other relief.
The Plaintiffs are represented by:
Thomas G. Ciarlone, Jr., Esq.
Amanda C. Scuder, Esq.
Ralph M. Stone, Esq.
SHALOV STONE & BONNER & ROCCO LLP
485 Seventh Avenue, Suite 1000
New York, NY 10018
Telephone: 212-239-4340
- and -
Alan I. Ellman, Esq.
Jonathan Gardner, Esq.
Mark S. Goldman, Esq.
Christopher J. Keller, Esq.
Stefanie Jill Sundel, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: 212-907-0877
Daniel R. Forde, Esq.
Marc M. Umeda, Esq.
ROBBINS UMEDA LLP
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: 619-525-3990
- and -
Lionel Z. Glancy, Esq.
GLANCY & BINKOW LLP
1801 Avenue of The Stars, Suite 311
Los Angeles, CA 90067
Telephone: 310-201-9150
- and -
Robert S. Green, Esq.
GREEN WELLING, P.C.
595 Market Street, Suite 2750
San Francisco, CA 94105
Telephone: 415-477-6700
- and -
Mark P. Kindall, Esq.
Jeffrey S. Nobel, Esq.
IZARD NOBEL LLP
29 South Main Street, Suite 215
West Hartford, CT 06107
Telephone: 860-493-6292
- and -
Brian O. O'Mara, Esq.
Darren Jay Robbins, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619-231-1058
- and -
Daniel Jacob Pfefferbaum, Esq.
Shawn A. Williams, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS
100 Pine Street, Suite 2600
San Francisco, CA 94111
Telephone: 415-288-4545
Accuray and its co-defendants are represented by:
Ignacio Evaristo Salceda, Esq.
Diane Marie Walters, Esq.
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: 650-493-9300
Accuray Inc. -- http://www.accuray.com/-- designs, develops and
sells the CyberKnife system, an image-guided robotic radiosurgery
system used for the treatment of solid tumors anywhere in the
body. The company is based in Sunnyvale, Calif.
BRISTOW GROUP: Continues to Defend Suit Over Helicopter Services
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Bristow Group Inc. continues to defend a purported class action
complaint relating to its offshore helicopter services, according
to the company's Feb. 3, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Dec. 31,
2009.
Superior Offshore International, Inc. v. Bristow Group Inc., et
al, Case No. 09-cv-00438 (D. Del.) (Davis, J.), was filed on June
12, 2009, and also names Era Helicopters LLC, SEACOR Holdings
Inc., Era Group Inc., Era Aviation Inc. and PHI Inc. as
defendants.
The purported class action complaint, which also names other
providers of offshore helicopter services in the Gulf of Mexico
as defendants, alleges violations of Section 1 of the Sherman
Act. Among other things, the complaint alleges that the
defendants unlawfully conspired to raise and maintain the price
of offshore helicopter services between Jan. 1, 2001 and Dec. 31,
2005.
The plaintiff seeks to represent a purported class of direct
purchasers of offshore helicopter services and is asking for,
among other things, unspecified treble monetary damages and
injunctive relief.
Superior Offshore International Inc. is represented by:
Gregory P. Hansel, Esq.
Randall B. Weill, Esq.
PRETI FLAHERTY BELIVEAU AND PACHIOS
P.O. Box 9546
Portland, ME 04112-9546
Telephone: (207) 791-3000
- and -
K. Todd Wallace, Esq.
LISKOW & LEWIS
701 Poydras Street, Suite 5000
New Orleans, LA 70139-5099
Telephone: (504) 299-6116
- and -
Meghan Anne Adams, Esq.
A. Zachary Naylor, Esq.
CHIMICLES & TIKELLIS, LLP
222 Delaware Avenue, 11th Floor
P.O. Box 1035
Wilmington, DE 19899
Telephone: (302) 656-2500
Era Helicopters LLC is represented by:
Helene D. Jaffe, Esq.
Steven A. Reiss, Esq.
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Era Aviation Inc., Era Group Inc., Era Helicopters LLC and SEACOR
Holdings Inc. are represented by:
Christine S. Azar, Esq.
BLANK ROME LLP
1201 North Market Street, Suite 800
Wilmington, DE 19801-4226
Telephone: (302) 425-6438
Bristow Group Inc. is represented by:
Andre G. Bouchard, Esq.
James J. Merkins, Jr., Esq.
BOUCHARD, MARGULES & FRIEDLANDER, P.A.
222 Delaware Avenue, Suite 1400
Wilmington, DE 19801
Telephone: (302) 573-3500
PHI Inc. is represented by:
Comrie Barr Flinn, Esq.
Andrew Auchincloss Lundgren, Esq.
YOUNG, CONAWAY, STARGATT & TAYLOR
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, DE 19899-0391
Telephone: (302) 571-6600
Bristow Group Inc. -- http://www.bristowgroup.com/-- is a
provider of helicopter services to the offshore energy industry
with global operations. The company has operations in offshore
oil and gas producing regions, including North Sea, the United
States Gulf of Mexico, Nigeria, Australia and Latin America. It
generated 76% of its revenues from international operations in
fiscal year ended March 31, 2009. The Helicopter Services segment
operations are conducted through three divisions, Western
Hemisphere, Eastern Hemisphere and Global Training. Western
Hemisphere includes United States (US) Gulf of Mexico, Arctic,
Latin America and Western Hemisphere (WH) Centralized Operations.
Eastern Hemisphere includes Europe, West Africa, Southeast Asia,
Other International and Eastern Hemisphere (EH) Centralized
Operations.
BROADCOM CORP: Awaits Court Approval of Settlement Agreement
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Broadcom Corp. continues to await the approval of the U.S.
District Court for the Central District of California on an
agreement settling a consolidated shareholder class action,
according to the company's Feb. 3, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
From August through October 2006 several plaintiffs filed
purported shareholder class actions against Broadcom and certain
of its current or former officers and directors, entitled:
-- Bakshi v. Samueli, et al. (Case No. 06-5036 R (CWx)),
-- Mills v. Samueli, et al. (Case No. SACV 06-9674 DOC
R(CWx)), and
-- Minnesota Bakers Union Pension Fund, et al. v. Broadcom
Corp., et al. (Case No. SACV 06-970 CJC R (CWx)).
The essence of the plaintiffs' allegations is that the company
improperly backdated stock options, resulting in false or
misleading disclosures concerning, among other things, its
business and financial condition.
Plaintiffs also allege that the company failed to account for and
pay taxes on stock options properly, that the individual
defendants sold its common stock while in possession of material
nonpublic information, and that the defendants' conduct caused
artificial inflation in the company's stock price and damages to
the putative plaintiff class.
The plaintiffs assert claims under Sections 10(b) and 20(a) of
the Exchange Act and Rule 10b-5 promulgated thereunder.
In November 2006, the Court consolidated the Stock Option Class
Actions and appointed the New Mexico State Investment Council as
lead class plaintiff.
In October 2007, the federal appeals court resolved a dispute
regarding the appointment of lead class counsel.
In March 2008, the district judge entered a revised order
appointing lead class counsel. The lead plaintiff filed an
amended consolidated class action complaint in late April 2008,
naming additional defendants including certain current officers
and directors of Broadcom as well as Ernst & Young LLP, the
company's former independent registered public accounting firm.
In October 2008, the district judge granted defendants' motions
to dismiss with leave to amend.
In October 2008, the lead plaintiff filed an amended complaint.
In November 2008, defendants filed motions to dismiss.
In February 2009, these motions were denied except with respect
to E&Y and the former Chairman of the Audit Committee, which were
granted with leave to amend, and with respect to the former Chief
Executive Officer, which was granted without leave to amend.
The lead plaintiff did not amend its complaint with respect to
the former Chairman of the Audit Committee and the time period to
do so has expired. With respect to E&Y, in March 2009, the
district judge entered a final judgment for E&Y and against the
lead plaintiff. The lead plaintiff has appealed the final
judgment.
In December 2009, the company agreed in principle to settle the
Stock Option Class Actions.
Under the proposed settlement, the claims against Broadcom and
its current and former officers and directors will be dismissed
with prejudice and released in exchange for a $160.5 million cash
payment by Broadcom.
The company recorded the settlement amount as a one-time charge
in our consolidated statement of income for the three months and
year ended Dec. 31, 2009.
The proposed settlement remains subject to the satisfaction of
various conditions, including negotiation and execution of a
final stipulation of settlement and court approval. If these
conditions are satisfied, the proposed settlement will resolve
all claims in the Stock Option Class Actions against Broadcom and
the individual defendants.
Broadcom Corporation -- http://www.broadcom.com/-- is a provider
of semiconductors for wired and wireless communications.
Broadcom provides a portfolio of system-on-a-chip (SoC) solutions
to manufacturers of computing and networking equipment and,
broadband access products and mobile devices. Its product
portfolio includes solutions for the home (Broadband
Communications), solutions for the hand (Mobile and Wireless) and
solutions for network infrastructure (Enterprise and Networking).
In December 2009, the company acquired Dune Networks, a company,
which is engaged in the designing of switch fabric solutions for
data center networking equipment.
CASH STORE: Settles Two Class Action Lawsuits in British Colombia
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The Edmonton Journal reports that The Cash Store Financial
Services Inc. (TSX: CSF) said last week that it received court
approval to settle two class-action lawsuits in British Columbia
involving brokerage fees and interest charged to customers.
The company said because of the length of time since a
conditional settlement was reached last May, it had increased its
estimated maximum exposure from $16 million to $18.7 million, and
its class action settlement exposure from $5 million to $7.6
million.
It operates more than 470 branches across Canada under the Cash
Store and Instaloans brands.
CORINTHIAN COLLEGES: Defending "Rivera" Demand in Arbitration
-------------------------------------------------------------
Corinthian Colleges, Inc., continues to defend itself against the
allegations in a putative class-action demand in arbitration.
On May 28, 2008, the putative class-action demand in arbitration
captioned Rivera v. Sequoia Education, Inc., and Corinthian
Colleges, Inc., was filed with the American Arbitration
Association.
The plaintiffs are nine current or former HVAC students from the
company's WyoTech Fremont and WyoTech Oakland campuses.
The arbitration demand alleges violations of California's
Business and Professions Code Sections 17200 and 17500, fraud and
intentional deceit, negligent misrepresentation, breach of
contract and unjust enrichment/restitution, all related to
alleged deficiencies and misrepresentations regarding the HVAC
program at these two campuses.
The plaintiffs seek to certify a class composed of all HVAC
students in the Company's WyoTech Fremont and WyoTech Oakland
campuses over the past four years, and seek recovery of
compensatory and punitive damages, interest, restitution and
attorneys' fees and costs.
No further updates were reported in the company's Feb. 4, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter year ended Dec. 31, 2009.
Corinthian Colleges, Inc. -- http://www.cci.edu/-- is a post-
secondary education company in the United States and Canada.
During the fiscal year ended June 30, 2008 (fiscal 2008), the
company had a student enrolment of 69,200, and operated 89
schools in 24 states, and 17 schools in the province of Ontario,
Canada. The company offers a range of diploma programs and
associate's, bachelors and master's degrees. The training
programs include healthcare, criminal justice, mechanical,
trades, business and information technology. Since the company's
formation in 1995, it has acquired 74 colleges and has
opened 32 branch campuses. The company offers online education
to two categories of students, including those attending online
classes exclusively, and those attending a blend of traditional
classroom and online courses.
EI DUPONT: Accused in Md. of Fixing Titanium Dioxide Prices
-----------------------------------------------------------
Barbara Leonard at Courthouse News Service reports that DuPont
conspired with Huntsman and three other companies to fix the
price of titanium dioxide, a primary element in white paint, in a
declining market, a paint company says in a federal antitrust
class action. Haley Paint Co. says defendants produce the entire
U.S. output, and 70 percent of the chemical worldwide.
"As a result of abysmal industry conditions in 2001, defendants
were motivated to reach, and did reach, an agreement or
understanding in or about early 2002 to increase prices and
improve margins in the industry," the complaint states.
"These increases were announced and implemented despite flat
demand, decreasing raw material costs, and excess capacity in the
industry."
Haley Paint sued EI Dupont De Nemours and Co., Huntsman
International, Kronos Worldwide, Millennium Inorganic Chemicals
and The National Titanium Dioxide Company Limited dba Cristal.
All of the defendants are Delaware corporations except for Saudi
Arabia-based Cristal.
U.S. demand had declined so much that Millennium idled one of its
U.S. plants that year, the complaint states. By the end of 2001,
titanium dioxide prices were at their lowest level since 1991.
Those "abysmal conditions" led to the conspiracy, according to
the complaint.
"Immediately following a meeting of the Titanium Dioxide
Manufacturers Association in Finland on or about January 24,
2002, Defendants announced Titanium Dioxide price increases for
all grades worldwide, including a five cent per pound increase in
the U.S. to be effective March 1, 2002. Plaintiff alleges that
prior to these price increases, Defendants communicated with each
other directly (bi-laterally and/or multi-laterally) and
indirectly (such as through industry analysts, consultants or
others) and reached an understanding or agreement to increase
industry prices. Defendants' price-fixing agreement or
understanding was reached in secret, so Plaintiff does not know
the precise circumstances surrounding its formation. Plaintiff
further alleges that this understanding or agreement was
maintained and fostered throughout the Class Period by means of
other communications, which led to numerous additional price
increases, and relatively stable customer positions and market
shares. Defendants' communications were conducted in secrecy,"
according to the complaint. (Parentheses in complaint.)
Since 2002 the companies have sold millions of tons of titanium
dioxide in the United States, a dry chemical powder that also is
used to give whiteness to cosmetics, toothpaste, salad dressings,
cheese and other products, according to the complaint. It says
nearly 5 million tons were sold worldwide in 2007, generating $10
billion in revenue for the defendants.
Titanium dioxide "is by far the world's most widely used pigment
for providing whiteness, brightness, and opacity (it hides or
masks other colors) to many products, particularly paints and
other coatings," according to the complaint.
Coatings, plastics and paper industries make up 90 percent of the
customer base for the chemical.
In addition to fixing prices, Haley says, the defendants blocked
new suppliers from entering the market, divvied up customers and
arranged market shares "by refusing to bid (or intentionally
bidding high) for the business of certain customers being served
by other defendants."
The class claims the defendants exchanged information and
monitored each other through trade magazines, their Web sites and
other media outlets, and discussed their plans at conferences and
trade shows.
"The mutually beneficial nature of the business relations between
defendants provided not only the opportunity to conspire, but
also a financial incentive to do so," according to the complaint.
In 2005 defendants announced price increases every quarter, Haley
says.
"Defendants' 2007-2008 price increases and energy surcharges also
occurred in spite of declining demand in the United States for
titanium dioxide due to recessionary economic conditions,
including declining demand in the paint and construction
industries," according to the complaint.
The class seeks treble damages, alleging fraudulent concealment
and antitrust violations.
A copy of the Complaint in Haley Paint Company v. E.I. DuPont de
Nemours and Company, et al., Case No. 10-cv-00318 (D. Md.), is
available at:
http://www.courthousenews.com/2010/02/11/TitaniumDioxide.pdf
The Plaintiff is represented by:
Solomon B. Cera, Esq.
C. Andrew Dirksen, Esq.
GOLD BENNETT CERA & SIDENER LLP
595 Market St., Suite 2300
San Francisco, CA 94105
Telephone: 415-777-2230
- and -
Paul Mark Sandler, Esq.
Robert B. Levin, Esq.
John J. Lovejoy, Esq.
SHAPIRO SHER GUINOT & SANDLER
36 South Charles St.
Charles Center South, Suite 2000
Baltimore, MD 21201
Telephone: 410-385-0202
ELECTRONIC ARTS: NCAA Loses Motions to Dismiss Athletes' Lawsuits
-----------------------------------------------------------------
As reported in the Fri., Feb. 12, 2010, edition of the Class
Action Reporter, the National Collegiate Athletic Association
lost its fight to dismiss a class action lawsuit headed by former
UCLA basketball star Ed O'Bannon, and the organization will be
required to open its books and records related to certain of its
commercial enterprises.
Maria Dinzeo at Courthouse News Service reports that Electronic
Arts, Inc., the NCAA's licensing arm and video-game developer, is
also affected by last week's ruling because it's accused of being
a conspiring with the NCAA to dupe college athletes into signing
away their rights to profit from their own images.
UCLA basketball star Edward O'Bannon filed a class action
accusing the NCAA of forcing students to sign a misleading form
that "commercially exploits former student athletes" by giving
the NCAA the right to profit from their images without
compensation, long after the athletes have left school.
In another class action, former Arizona State University
quarterback Samuel Keller claimed Electronic Arts conspired with
the NCAA to use players' images without their permission in
Electronic Arts' NCAA Football, NCAA Basketball and NCAA March
Madness video game franchises.
In a pair of rulings, U.S. District Judge Claudia Wilken found
sufficient evidence that the NCAA, Collegiate Licensing
Corporation and Electronic Arts conspired to get students to sign
away the rights to their images without compensation, and that
the NCAA and the game developer profited from those images.
But Judge Wilken dismissed with leave to amend Mr. Keller's
breach of contract claim against the NCAA, because it was based
on a phrase that read, "athletes agree that they have 'read and
understand' the NCAA's rules."
This phrase, Judge Wilken ruled, does not indicate that the
agreement was a contract.
The rulings will allow lawyers to delve into the defendants'
financial records during discovery.
"This is a truly history day -- to our knowledge, no one has ever
gotten behind the scenes to examine how student-athletes' current
and future rights in their images are divided and sold," Jon T.
King, one of Mr. O'Bannon's lead attorney, told The New York
Times.
A copy of the Honorable Judge Claudia Wilken's Feb. 8, 2010,
Order in O'Bannon v. National Collegiate Athletic Association, et
al.,
Case No. 09-cv-03329 (N.D. Calif.), and Newsome v. National
Collegiate Athletic Association, et al., Case No. 09-cv-04882
(N.D. Calif.), is available, at:
http://www.courthousenews.com/2010/02/11/OBannon.pdf
Edward O'Bannon, the Plaintiff, is represented by:
Jon T. King, Esq.
Michael P. Lehmann, Esq.
Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP
44 Montgomery St., Suite 3400
San Francisco, CA 94104
Telephone: 415-633-1908
In Keller v. Electronic Arts, Inc., et al., Case No. 09-cv-01967
(N.D. Calif.) (Wilken, J.), Mr. Keller is represented by:
Robert B. Carey, Esq.
Leonard W. Aragon, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
2425 East Camelback Road, Suite 650
Phoenix, Arizona 85016
Telephone: 602-840-5900
GOOGLE INC: Ready to Fight with DOJ in Court on Thursday
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Determined to create the world's largest digital library,
Michael Liedtke at The Associated Press reports, Google Inc.
is betting it knows more about U.S. antitrust and copyright
laws than the government regulators enforcing them.
The Internet search leader took an audacious step toward
realizing its book ambitions late Thursday with a 67-page
brief filed in The Authors Guild, Inc., et al. v. Google
Inc., Case No. 05-cv-08136 (S.D.N.Y.) (Chin, J.).
A copy of Google's Brief dated Feb. 12, 2010, is available at:
http://www.scribd.com/doc/26791328/Google-Brief-Feb-112010
Among other things, the documents dismissed the legal
concerns that the U.S. Department of Justice has raised
about a class-action settlement proposing to give Google the
digital rights to millions of hard-to-find books.
Google's stiff arm sets the stage for a showdown between the
nation's top law enforcement agency and the most powerful
company on the Internet.
They are scheduled to square off Thursday in a hearing
before U.S. District Judge Denny Chin. The judge will listen
to arguments from Google, the Justice Department and more
than two dozen opponents and supporters of the settlement as
he tries to decide whether the deal should be approved. A
Justice Department spokeswoman declined to comment Friday.
Google contends the world will be a better place if its
electronic library of books is unlocked so everyone with an
Internet connection can peruse and potentially buy volumes
to store on their computers and other digital devices. The
company has made digital copies of more than 12 million
books and hopes to eventually scan everything that's still
on printed paper . if it can gain legal rights to do so.
Most of the books in Google's digital database haven't been
shown in their entirety because of a copyright dispute that
triggered a class-action lawsuit filed in 2005 by groups
representing authors and publishers. The $125 million
settlement would remove that barrier and put Google in
charge of an electronic bookstore, with most of the revenue
going to participating publishers and authors.
The Justice Department has left little doubt it believes the
settlement would stifle competition in the book market and
undermine copyright laws. The agency has made the points
twice, first in September and then again last week, when it
filed its opinion about changes that Google made with
authors and publishers in November. Those changes were made
in hopes of overcoming the Justice Department's opposition
to the deal.
In its most recent filing, the Justice Department called the
settlement "a bridge too far" and asserted Judge Chin
"lacked authority" to approve the agreement.
Google countered that "the Department of Justice and other
objectors have failed to articulate a meaningful principle"
for Chin to reject the agreement.
The settlement's opponents include consumer watchdog groups,
state governments, foreign government and Google rivals
Microsoft Corp., Yahoo Inc. and Amazon.com Inc.
Shouting down that chorus of criticism might be easier if
the Justice Department hadn't chimed in, too.
Google retreated the last time that the Justice Department
warned the company was pursuing a path that would break
antitrust laws, which are designed to prevent businesses
from gaining an unfair competitive advantage.
To avoid a Justice Department lawsuit alleging antitrust
violations, Google called off a proposed plan to sell
Internet search ads for Yahoo.
But Google didn't have much invested in the Yahoo deal,
either financially or emotionally. Google agreed to the deal
mainly to prevent Microsoft from teaming up with Yahoo.
(Those two companies subsequently have gotten together in an
alliance still awaiting regulatory approval.)
Google has spent the past five years scanning books at an
"enormous" cost, according to its court filing. Creating a
massive library has been a dream shared by Google
co-founders Larry Page and Sergey Brin.
The Justice Department contends the settlement provides the
framework for a literary cartel that could drive up book
prices. The agency also warned the settlement could give
Google an unfair advantage in the Internet search market
that it already dominates by giving it a reservoir of human
knowledge that its rivals wouldn't be able to easily
duplicate.
Despite those red flags, the Justice Department endorsed the
concept of Google's digital library. The agency also
outlined ways Chin could dictate changes that would satisfy
some of its concerns.
Judge Chin himself is likely part of Google's calculations,
because he might not be on the case much longer. He has been
nominated by President Barack Obama to a position on a
federal appeals court, with confirmation in the Senate
expected to come soon. If Google tried to revise the
settlement again, in hopes of satisfying the Justice
Department, the company would run the risk of further delays
if a new judge had to spend time reviewing the volumes of
documents in the case.
Google seems to want Judge Chin to be the man making the
decision, said John Simpson of Consumer Watchdog, one of
the opponents scheduled to speak in court next week.
"Google has decided it's longer willing to negotiate with
Justice on this one," Mr. Simpson said. "They want to
negotiate with the judge instead."
Even if Google can persuade Judge Chin to approve the
settlement, the Justice Department could still try to block
it, by filing its own lawsuit alleging the arrangement is
illegal.
But David Balto, a former policy director for the Federal
Trade Commission who thinks Google is on solid legal ground,
dismisses the prospect. "The Justice Department won't poke a
federal judge in the eye like that," Balto said.
HORIZON LINES: To File Response in Amended Price-Fixing Suit
------------------------------------------------------------
Horizon Lines, Inc., is preparing a response to the amended
complaint alleging price-fixing, according to the company's Feb.
4, 2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 20, 2009.
On Dec. 31, 2008, a securities class action lawsuit was filed by
the City of Roseville Employees' Retirement System in the U.S.
District Court for the District of Delaware, naming the company
and six current and former employees, including the company's
Chief Executive Officer, as defendants.
The company filed a motion to dismiss and the Court granted the
motion to dismiss on Nov. 13, 2009. However, the plaintiffs were
granted eleven days to file an amended complaint.
The company and the plaintiffs agreed to extend the time to file
the amended complaint, and the plaintiffs filed their amended
complaint on Dec. 23, 2009. The amended complaint added two of
the company's current and former employees as defendants.
The amended complaint purports to be on behalf of purchasers of
the company's common stock. The complaint alleges, among other
things, that the company made material misstatements and
omissions in connection with alleged price-fixing in its shipping
business in Puerto Rico in violation of antitrust laws.
Horizon Lines, Inc. -- http://www.horizon-lines.com/-- formerly
known as H-Lines Holding Corp., is a container shipping and
integrated logistics company. The company's subsidiaries include
Horizon Lines, LLC (HL), Horizon Logistics Holdings, LLC
(Horizon Logistics) and Horizon Lines of Puerto Rico, Inc.
(HLPR). With 21 vessels, 16 of which are fully qualified Jones
Act vessels, and approximately 22,000 cargo containers the
company provides shipping and logistics services in its markets.
The company, through its wholly owned subsidiary, Horizon
Logistics, offers inland transportation through its own trucking
operations on the U.S. west coast and Alaska, and its integrated
logistics services including relationships with third-party
truckers, railroads, and barge operators in its markets. It
ships a spectrum of consumer and industrial items ranging from
foodstuffs (refrigerated and non-refrigerated) to household goods
and auto parts to building materials and various materials
used in manufacturing.
HORIZON LINES: Plaintiffs Can File Amended Complaint Until May
--------------------------------------------------------------
The U.S. the District Court for the Western District of
Washington has given the plaintiffs in the Hawaii and Guam MDL
litigation against Horizon Lines, Inc., until May 10, 2010, to
file an amended complaint, according to the company's Feb. 4,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 20, 2009.
On April 17, 2008, the company received a grand jury subpoena and
search warrant from the U.S. District Court for the Middle
District of Florida seeking information regarding an
investigation by the Antitrust Division of the Department of
Justice into possible antitrust violations in the domestic ocean
shipping business. Subsequently, the DOJ expanded the timeframe
covered by the subpoena.
The company is currently providing documents to the DOJ in
response to the subpoena. The company intends to cooperate fully
with the DOJ in its investigation. The company has entered into a
conditional amnesty agreement with the DOJ under its Corporate
Leniency Policy. The amnesty agreement pertains to a single
contract relating to ocean shipping services provided to the
United States Department of Defense. The DOJ has agreed to not
bring any criminal prosecution with respect to that government
contract as long as the company, among other things, continues
its full cooperation in the investigation. The amnesty does not
bar a claim for damages that may be sought by the DOJ under any
applicable federal law or regulation.
Subsequent to the commencement of the DOJ investigation, a number
of purported class action lawsuits were filed against the Company
and other domestic shipping carriers.
Fifty-seven cases have been filed in these federal district
courts:
-- eight in the Southern District of Florida,
-- six in the Middle District of Florida,
-- twenty in the District of Puerto Rico,
-- eleven in the Northern District of California,
-- two in the Central District of California,
-- one in the District of Oregon,
-- eight in the Western District of Washington, and
-- one in the District of Alaska.
Nineteen of the foregoing district court cases that related to
ocean shipping services in the Puerto Rico tradelane were
consolidated into a single multidistrict litigation proceeding in
the District of Puerto Rico. All of the foregoing district court
cases that related to ocean shipping services in the Hawaii and
Guam tradelanes were consolidated into MDL proceedings in the
Western District of Washington.
One district court case remains in the District of Alaska,
relating to the Alaska tradelane.
Each of the federal district court cases purports to be on behalf
of a class of individuals and entities who directly, or
indirectly in one case, purchased domestic ocean shipping
services from the various domestic ocean carriers. The
complaints allege price-fixing in violation of the Sherman Act
and seek treble monetary damages, costs, attorneys' fees, and an
injunction against the allegedly unlawful conduct.
On June 11, 2009, the company entered into a settlement agreement
with the plaintiffs in the Puerto Rico MDL litigation.
Under the settlement agreement, which is subject to Court
approval, the company has agreed to pay $20.0 million and to
certain base-rate freezes to resolve claims for alleged antitrust
violations in the Puerto Rico tradelane.
The company paid $5.0 million into an escrow account pursuant to
the terms of the settlement agreement and will be required to pay
$5.0 million within 90 days after preliminary approval of the
settlement agreement by the district court and $10.0 million
within five business days after final approval of the settlement
agreement by the district court.
The base-rate freeze component of the settlement agreement
provides that class members who have contracts in the Puerto Rico
trade with the company as of the effective date of the final
settlement agreement would have the option, in lieu of receiving
cash, to have their "base rates" frozen for a period of two
years. The base-rate freeze would run for two years from the
expiration of the contract in effect on the effective date of the
final settlement agreement. All class members would be eligible
to share in the $20.0 million cash component, but only contract
companies would be eligible to elect the base-rate freeze in lieu
of receiving cash.
The company has the right to terminate the settlement agreement
under certain circumstances.
On July 8, 2009, the plaintiffs filed a motion for preliminary
approval of the settlement agreement in the Puerto Rico MDL
litigation.
An initial hearing on the motion for preliminary approval of the
settlement agreement was held on Sept. 14, 2009, where the Court
heard the objections of certain non-settling defendants.
On Oct. 20, 2009, the Court resumed the hearing for preliminary
approval of the settlement agreement and the company is awaiting
the Court's decision.
On March 20, 2009, the company filed a motion to dismiss the
claims in the Hawaii and Guam MDL litigation. The plaintiffs
filed a response to the company's motion to dismiss on April 20,
2009, and the company filed a reply on May 8, 2009.
On Aug. 18, 2009, the District Court for the Western District of
Washington entered an order dismissing, without prejudice, the
Hawaii and Guam MDL litigation. In dismissing the complaint,
however, the plaintiffs were granted 30 days to amend their
complaint, and the company and the plaintiffs agreed to extend
the time to file an amended complaint to Nov. 16, 2009.
Subsequently, the Court granted the plaintiffs until May 10, 2010
to file an amended complaint.
The company and the plaintiffs have agreed to stay discovery in
the Alaska MDL litigation.
Horizon Lines, Inc. -- http://www.horizon-lines.com/-- formerly
known as H-Lines Holding Corp., is a container shipping and
integrated logistics company. The company's subsidiaries include
Horizon Lines, LLC (HL), Horizon Logistics Holdings, LLC
(Horizon Logistics) and Horizon Lines of Puerto Rico, Inc.
(HLPR). With 21 vessels, 16 of which are fully qualified Jones
Act vessels, and approximately 22,000 cargo containers the
company provides shipping and logistics services in its markets.
The company, through its wholly owned subsidiary, Horizon
Logistics, offers inland transportation through its own trucking
operations on the U.S. west coast and Alaska, and its integrated
logistics services including relationships with third-party
truckers, railroads, and barge operators in its markets. It
ships a spectrum of consumer and industrial items ranging from
foodstuffs (refrigerated and non-refrigerated) to household goods
and auto parts to building materials and various materials
used in manufacturing.
INTEGRAL SYSTEMS: D. Md. Court Dismisses Securities Complaint
-------------------------------------------------------------
The U.S. District Court for the District of Maryland has approved
the motion to dismiss an amended complaint against Integral
Systems, Inc., according to the company's Feb. 3, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 25, 2009.
On Dec. 15, 2008, a purported securities class action complaint
was filed in Maryland federal court against the company and
certain of its current and former officers following the
company's announcement on Dec. 10, 2008, that it would restate
its financial results for the first three quarters of fiscal year
2008.
On Feb. 17, 2009, five individual shareholders referring to
themselves as the "Ulrich Group" filed an uncontested motion for
appointment as lead plaintiffs and for approval of lead counsel.
On July 21, 2009, the court dismissed the case for failure to
effect service, apparently as a result of the fact that
plaintiffs had not filed proofs of service as of that date.
On Aug. 3, 2009, plaintiffs filed a motion for relief from
judgment requesting that the court vacate the order of dismissal,
grant the uncontested motion for appointment of lead plaintiff
and lead counsel, and enter a joint stipulation and proposed
scheduling order.
Defendants consented to the relief requested in the motion, which
the court granted on Aug. 24, 2009.
Pursuant to the scheduling order, lead plaintiffs filed an
amended complaint on Sept. 21, 2009.
The amended complaint sought certification of a class comprised
of all persons who purchased the company's common stock between
Feb. 4, 2008 and Dec. 10, 2008, inclusive.
The amended complaint asserted claims under sections 10(b) and
20(a) of the Securities Exchange Act, based on allegations that
certain statements made by the company during the Class Period
were false and/or misleading because those statements failed to
disclose that:
(1) the company prematurely and improperly recognized
several categories of revenue;
(2) as a result, the company misstated its financial
results during the Class Period;
(3) the company's financial statements were not prepared in
accordance with the company's publicly-disclosed
accounting policies and/or generally accepted
accounting principles;
(4) the company lacked adequate internal and financial
controls; and
(5) as a result, the company's financial statements were
materially false and misleading.
The amended complaint also includes a purported insider trading
claim against one individual defendant.
No specific damage amount was alleged in the amended complaint.
On Oct. 26, 2009, the company and the individual defendants filed
a motion to dismiss the amended complaint.
A hearing on this motion was held on Jan. 19, 2010.
At the conclusion of the hearing, the court granted the motion
and stated that judgment would be entered dismissing the amended
complaint for failure to state a claim. Once the court enters
the formal judgment of dismissal, plaintiffs will have thirty
days to file any appeal from that judgment.
Integral Systems, Inc. -- http://www.integ.com/-- provides
solutions for satellite command and control, integration and
test, data processing, signals analysis, and flight simulation.
The company designs, develops, and integrates solutions, and
provide services related to satellite ground systems and other
communications and networking equipment. It operates in three
segments: Government Systems, Commercial Systems and Space
Communications Systems. Government Systems provides ground
systems products and services to the U.S. Federal Government.
Commercial Systems provides ground systems products and services
to commercial enterprises and international organizations. The
segment consists of three wholly owned subsidiaries, SAT
Corporation (SAT), Newpoint Technologies, Inc. (Newpoint), and
Integral Systems Europe S.A.S. (ISI Europe).
MONSTER WORLDWIDE: Court Gives Preliminary Okay to Settlement
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted preliminary approval to the proposed settlement between
Monster Worldwide, Inc., and the plaintiffs in a civil action
captioned Taylor v. McKelvey, et al., Case No. 06-cv-08322,
according to the company's Feb. 4, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
The suit was filed against the company, as well as certain former
officers and directors of the company in connection with the
company's historical stock option granting practices.
The ERISA Class Action was filed on October 2006 as a putative
class action litigation, purportedly brought on behalf of all
participants in the company's 401(k) Plan.
The complaint, as amended in February 2007 and February 2008,
alleges that the defendants breached their fiduciary obligations
to Plan participants under Sections 404, 405, 409 and 502 of the
Employee Retirement Income Security Act by allowing Plan
participants to purchase and to hold and maintain company stock
in their Plan accounts without disclosing to those Plan
participants the company's historical stock option grant
practices.
The plaintiffs and the company entered into a Memorandum of
Understanding on Sept. 14, 2009 and entered into a Class Action
Settlement Agreement on Nov. 9, 2009.
The Settlement Agreement sets forth the terms pursuant to which
the parties intend, subject to Court approval and certification
of the proposed class described in the second amended complaint,
to settle the ERISA Class Action.
The Settlement Agreement provides for a payment of $4.3 million
in full settlement of the claims asserted in the ERISA Class
Action, a substantial majority of which will be paid by insurance
and contribution from another defendant.
The effectiveness of the Settlement Agreement is subject to Court
approval and certification of the proposed class.
On Dec. 3, 2009, the Court granted preliminary approval of the
proposed settlement, which included certification of the class
members. Notice to the class has been sent and a final hearing
on the merits of the proposed settlement is expected to occur in
the near future.
Upon the conclusion of the settlement of the ERISA Class Action,
all of the actions seeking recoveries from us as an outgrowth of
the company's historical stock option grant practices will have
been settled. As a result, in the quarterly period ended Sept.
30, 2009, the company reversed a previously recorded accrual of
$6.9 million relating to these matters.
Monster Worldwide, Inc. -- http://www.monster.com/-- provides a
global online employment solution, Monster. With a presence in
markets in North America, Europe and Asia, Monster works by
connecting employers with job seekers at all levels and by
providing personalized career advice to consumers globally.
Monster Worldwide delivers targeted audiences to advertisers.
The company operates in three business segments: Monster Careers-
Monster Careers-International, and Internet
Advertising & Fees.
NEWS CORP: Motion for Summary Judgment of "Brown" Suit Pending
--------------------------------------------------------------
News Corp.'s motion for summary judgment and motion to exclude
plaintiff's damages expert in a consolidated class action
lawsuit, remains pending in the U.S. District Court for the
Central District of California, according to the company's Feb.
4, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 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' motion for summary judgment was filed on
Oct. 19, 2009.
Defendants also filed a motion to exclude plaintiff's damages
expert on Nov. 30, 2009.
The court has taken both motions under submission.
No trial date has been set yet.
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.
OVERHILL FARMS: Court Approves Dismissal of Conversion Claims
-------------------------------------------------------------
Overhill Farms, Inc., has received approval of its motion to
dismiss conversion claims in a purported class action filed by
former employees, according to the company's Feb. 4, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Dec. 27, 2009.
On July 1, 2009, Bohemia Agustiana, Isela Hernandez, and Ana
Munoz filed a purported "class action" against the company in
which they asserted claims for failure to pay minimum wage,
failure to furnish wage and hour statements, waiting time
penalties, conversion and unfair business practices.
The plaintiffs are former employees who had been terminated one
month earlier because they had used invalid social security
numbers in connection with their employment with the company.
They filed the case in Los Angeles County on behalf of themselves
and a class which they say includes all non-exempt production and
quality control workers who were employed in California during
the four-year period prior to filing their complaint.
The plaintiffs seek unspecified damages, restitution, injunctive
relief, attorneys' fees and costs.
The company filed a motion to dismiss the conversion claim, and
the motion was granted by the court on Feb. 2, 2010.
Overhill Farms, Inc. -- http://www.overhillfarms.com/-- is a
value-added manufacturer of prepared frozen food products for
branded retail, private label, foodservice and airline customers.
The company's product line includes entrees, plated
meals, bulk-packed meal components, pastas, soups, sauces,
poultry, meat and fish specialties, and organic and vegetarian
offerings. It provides custom prepared foods to a number of
customers, such as Jenny Craig, Inc., H. J. Heinz Company,
American Airlines, Inc., Safeway Inc., Pinnacle Foods Group LLC
and Panda Restaurant Group, Inc. The company operates as a
single business segment, the development and production of frozen
food products. Overhill Farms, Inc., markets its
products through both an internal sales force and outside food
brokers. Its customers are foodservice, retail and airline
accounts.
POLO RALPH: Awaits Final Approval of Settlement for Two Suits
-------------------------------------------------------------
Polo Ralph Lauren Corp. continues to await final approval of an
agreement to settle two class action lawsuits filed by customers,
according to the company's Feb. 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 26, 2009.
On Oct. 11, 2007 and Nov. 2, 2007, two class action lawsuits were
filed by two customers in state court in California asserting
that while they were shopping at certain of the company's factory
stores in California, the company allegedly required them to
provide certain personal information at the point-of-sale in
order to complete a credit card purchase.
The plaintiffs purported to represent a class of customers in
California who allegedly were injured by being forced to provide
their address and telephone numbers in order to use their credit
cards to purchase items from the company's stores, which
allegedly violated Section 1747.08 of California's Song-Beverly
Act.
The complaints sought an unspecified amount of statutory
penalties, attorneys' fees and injunctive relief.
The company subsequently had the actions moved to the U.S.
District Court for the Eastern and Central Districts of
California.
The company commenced mediation proceedings with respect to these
lawsuits and on Oct. 17, 2008, the company agreed in principle to
settle these claims by agreeing to issue $20 merchandise discount
coupons with six month expiration dates to eligible parties and
paying the plaintiffs' attorneys' fees.
The court granted preliminary approval of the settlement terms on
July 17, 2009.
In connection with this settlement, the company recorded a $5
million reserve against its expected loss exposure during the
second quarter of Fiscal 2009. As part of the required
settlement process, the company notified the relevant attorneys
general regarding the potential settlement, and no objections
were registered.
At a hearing on Dec. 7, 2009, the Court held that the terms of
the settlement were fair, just and reasonable and provided fair
compensation for class members. In addition, the Court overruled
an objection that had been filed by a single customer.
The Court then denied the objector's subsequent motion for the
Court to reconsider its order on the fairness of the settlement.
The period within which the objector has to appeal or otherwise
seek relief from the Court's orders will expire in February 2010.
Once such time period has expired without an appeal or further
legal action by the objector, the settlement would become
effective.
Polo Ralph Lauren Corp. -- http://www.ralphlauren.com/-- is a
global player in the design, marketing and distribution of
lifestyle products, including men's, women's and children's
apparel, accessories, fragrances and home furnishings. The
company operates in three segments: Wholesale, Retail and
Licensing.
POLO RALPH: Trial in Suit by Ex-Employees to Begin in March 2010
----------------------------------------------------------------
The trial in a class-action lawsuit against Polo Ralph Lauren
Corp. filed by four former employees is scheduled to being in
March 2010, according to the company's Feb. 4, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 26, 2009.
On May 30, 2006, four former employees of the company's Ralph
Lauren stores in Palo Alto and San Francisco, California filed a
lawsuit in the San Francisco Superior Court alleging violations
of California wage and hour laws.
The plaintiffs purport to represent a class of employees who
allegedly have been injured by not properly being paid commission
earnings, not being paid overtime, not receiving rest breaks,
being forced to work off of the clock while waiting to enter or
leave stores and being falsely imprisoned while waiting to leave
stores.
The complaint seeks an unspecified amount of compensatory
damages, damages for emotional distress, disgorgement of profits,
punitive damages, attorneys' fees and injunctive and declaratory
relief.
The company has have filed a cross-claim against one of the
plaintiffs for his role in allegedly assisting a former employee
to misappropriate Company property.
Subsequent to answering the complaint, the company had the action
moved to the U.S. District Court for the Northern District of
California.
On July 8, 2008, the Court granted plaintiffs' motion for class
certification and subsequently denied the company's motion to
decertify the class.
Trial is scheduled to begin in March 2010.
Polo Ralph Lauren Corp. -- http://www.ralphlauren.com/-- is a
global player in the design, marketing and distribution of
lifestyle products, including men's, women's and children's
apparel, accessories, fragrances and home furnishings. The
company operates in three segments: Wholesale, Retail and
Licensing.
SUNOPTA INC: Cross-Border Settlement of Securities Litigation
-------------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
____________________________
:
In re :
SUNOPTA INC. SECURITIES : Master File No. 08-cv-00933
LITIGATION :
:
This Document Relates To: :
ALL ACTIONS. :
____________________________:
Court File No. 57453CP
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOHN O'NEIL
Plaintiff
- and -
SUNOPTA, INC., STEVEN R. BROMLEY and JOHN H. DIETRICH
Defendants
Proceeding under the Class Proceedings Act, 1992
SUMMARY NOTICE OF PENDENCY AND CERTIFICATION OF
CLASS ACTIONS, PROPOSED SETTLEMENT AND SETTLEMENT
APPROVAL/FAIRNESS HEARINGS
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED SUNOPTA
INC. ("SunOpta") SECURITIES BETWEEN FEBRUARY 23, 2007 AND
JANUARY 27, 2008, INCLUSIVE (THE "CLASS PERIOD"), OTHER
THAN EXCLUDED PERSONS (THE "CLASS"). PLEASE READ THIS NOTICE
CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A PROPOSED
SETTLEMENT OF THESE LAWSUITS.
This Summary Notice relates to the following actions: O'Neil v.
SunOpta, Inc. et al., Court File No. 57453CP (the "Canadian
Action"), in the Ontario Superior Court of Justice (the "Ontario
Court"); and In re SunOpta Inc. Securities Litigation, Master
File No. 1:08-cv-00933-PAC (the "U.S. Action" and, together with
the Canadian Action, the "Actions"), in the United States
District Court for the Southern District of New York (the "U.S.
Court").
PROPOSED SETTLEMENT
The parties to the Actions have agreed to settle the Actions on
behalf of the Class for USD $11,250,000 plus accrued interest,
plus the agreement by SunOpta to adopt corporate governance
enhancements, including amendments to its Audit Committee Charter
and Internal Audit Charter with respect to, among other things,
internal controls over financial reporting, and to adopt an
Information Technology Conversion Policy (the "Settlement"). The
Settlement will constitute a full and final resolution of all
claims and causes of action raised, or which could have been
raised, in the Actions (including known and unknown claims
related to the facts referred to in the Actions) by Class Members
against the Defendants and others, as provided in the Stipulation
and Settlement Agreement dated September 23, 2009 (the
"Stipulation"). A copy of the Stipulation may be reviewed at
www.gilardi.com and www.nptricepoint.com or obtained by mail from
the Claims Administrators by writing to the addresses listed
below. For purposes of the Settlement only, the U.S. Court and
the Ontario Court have respectively certified the U.S. Action and
the Canadian Action as class actions. The Class described above
represents the combined classes certified by the Courts for the
purpose of this Settlement only. The class certified by the
Ontario Court consists of all individuals or entities, other than
specified excluded persons who purchased or otherwise acquired
securities of SunOpta during the Class Period and either (i) were
Canadian residents at the time of such purchase or acquisition;
or (ii) purchased or acquired such SunOpta securities over the
Toronto Stock Exchange (the "Canadian Class"). The Class
certified by the U.S. Court is comprised of all individuals and
entities who purchased or otherwise acquired securities of
SunOpta during the Class Period, other than specified excluded
persons and members of the Canadian Class (the "U.S. Class").
Persons specifically excluded from the Class are identified in
the Stipulation and in the Notice of Pendency and Certification
of Class Actions, Proposed Settlement and Settlement
Approval/Fairness Hearings (the "Long Form Notice"), which you
can obtain by following the instructions at the end of this
notice.
NOTICE OF SETTLEMENT HEARINGS & MOTIONS FOR FEES
The Settlement is contingent on approval of both of the Courts.
The U.S. Court will hold a hearing on May 17, 2010, in Courtroom
2-C of the Daniel Patrick Moynihan United States Courthouse, 500
Pearl Street, New York, New York 10007, before the Honorable Paul
A. Crotty, United States District Judge in respect of the U.S.
Class. The Ontario Court will hold a hearing on May 3, 2010, at
10:30 a.m. in the Ontario Superior Court of Justice, 80 Dundas
Street, London, Ontario N6A 6B3 before the Honourable Justice
Tausendfreund in respect of the Canadian Class. Each hearing will
be for the purpose of determining: (1) whether the Settlement
should be approved as fair, reasonable and adequate and in the
best interests of the respective Class Members; (2) whether,
thereafter, the Actions should be dismissed with prejudice
against the Defendants; and (3) whether the proposed plan of
allocation of the net settlement proceeds is fair and reasonable
and should be approved. Concurrently, Canadian Class Counsel and
U.S. Lead Plaintiffs' Counsel (both defined below) will apply to
the respective Courts for awards of legal fees and expenses
incurred in connection with the Actions. The Courts expressly
reserve the right to adjourn the hearings from time to time
without any further written notice to the Class.
Full instructions concerning your rights to participate in the
Settlement or to object to the approval of the Settlement, the
proposed Plan of Allocation of the Settlement money, and/or to
the fees and expenses sought by class counsel are contained in
Long Form Notice. Objections should be sent to counsel (and for
members of the U.S. Class only, to the U.S. Court as well) in the
manner described in the Long Form Notice, and must be post-marked
no later than April 12, 2010, to be effective.
OPTING OUT
If you are a member of the Class described above, your rights
will be affected by the Settlement, if approved, and you will be
bound by the terms of any Court order concerning the Actions,
including releases of certain claims against the Defendants and
others, unless you take steps to exclude yourself from the
applicable class in the Canadian Action or the U.S. Action. If
you wish to exclude yourself, you must mail a letter to the
Claims Administrator stating you want to be excluded from your
class in the manner described in the Long Form Notice. The letter
must include your name, address, telephone number and signature
and identify the number(s) of all of the securities of SunOpta
you purchased or otherwise acquired during the Class Period, the
stock exchange on which such securities were purchased, the
number of SunOpta securities sold during this period, if any, and
the dates of such purchases and sales. Requests for exclusion, to
be effective, must be post-marked no later than April 12, 2010.
REQUIRED PROOF OF CLAIM TO SHARE IN SETTLEMENT
In order to be eligible for a distribution pursuant to the
Settlement, if approved by the Courts, you must submit a Proof of
Claim form to the Claims Administrator in the manner described in
the Long Form Notice post-marked no later than June 11, 2010. If
you do not return a signed and properly completed Proof of Claim
form, you will still be bound by any judgment of the applicable
Court even though you will not share in the Settlement money.
Proof of Claim forms may be obtained as described below.
FOR MORE INFORMATION
This notice provides only a summary of matters concerning the
Actions and the proposed Settlement. The Long Form Notice and
Proof of Claim contain additional important information regarding
the Settlement and related matters affecting Class Members'
rights. You may obtain copies free of charge by contacting
SunOpta Securities Litigation, c/o the Claims Administrators, at:
Canadian Address U.S. Address
---------------- ------------
PO Box 3355 PO Box 8040
London, ON N6A 4K3 San Rafael, CA 94912-8040
1-866-432-5534 1-877-571-8653
claims@nptricepoint.com classact@gilardi.com
Inquiries, other than requests for the Long Form Notice and Proof
of Claim form, may be made to:
Canadian Class Counsel:
Michael G. Robb, Esq.
SISKINDS LLP
680 Waterloo Street
P.O. Box 2520
London, ON N6A 3V8
CANADA
Telephone: (800) 461-6166, ext. 2380
http://www.classaction.ca/
- or -
U.S. Lead Plaintiffs' Counsel:
Samuel H. Rudman, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (800) 449-4900
hrrp://www.csgrr.com/
Employees of the Courts cannot answer questions about the
Actions. Please direct all questions to the Claims Administrators
or Canadian Class Counsel or U.S. Lead Plaintiffs' Counsel.
DATED: November 6,2009 BY ORDER OF THE ONTARIO
SUPERIOR COURT OF JUSTICE
DATED: February 2, 2010 BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
TENNESSEE VALLEY: Continues to Defend Four Suits Over Ash Spill
---------------------------------------------------------------
Tennessee Valley Authority continues to defend four class actions
over the Kingston ash spill, according to the company's Feb. 3,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
Fifty-seven lawsuits based on the Kingston ash spill have been
filed, and one of these has been voluntarily dismissed. All of
the remaining cases are pending in the U.S. District Court for
the Eastern District of Tennessee.
The lawsuits, four of which are proposed class actions, have been
filed by residents, businesses, and property owners in the
Kingston area. The plaintiffs generally allege various causes of
action based in tort - including nuisance and strict liability -
and inverse condemnation, and generally seek unspecified
compensatory and punitive damages, court orders to clean up the
plaintiffs' properties and surrounding properties, and other
relief.
With regard to the proposed class actions and certain other
suits, TVA has filed several pending motions, including motions
to dismiss some or all of the claims. With regard to the
remaining suits, TVA has either filed its answers to the
complaints or is currently preparing its responses.
TVA is the sole defendant in all suits but one proposed class
action, and the plaintiffs in that case have named several TVA
employees as defendants. TVA has moved to dismiss these
employees from the case.
Tennessee Valley Authority -- http://www.tva.gov-- is a wholly
owned but self-funded United States government corporation,
mandated by federal charter to supply power. TVA has 36,914
megawatts of dependable generating capacity. TVA's power
facilities include 11 fossil plants, 29 hydroelectric dams, three
nuclear plants, a pumped-storage facility, multiple
combustion turbine sites, and 16,000 miles of transmission lines.
Through its locally-owned distributors, TVA provides
power to serve people across parts of seven states in the
Tennessee Valley region.
TENNESSEE VALLEY: Petition for Rehearing in 5th Circuit Pending
---------------------------------------------------------------
Tennessee Valley Authority's petition for rehearing by the U.S.
Court of Appeals for the Fifth Circuit over a decision rendered
in a class action suit filed by Mississippi residents allegedly
injured by Hurricane Katrina is still pending, according to the
company's Feb. 3, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Dec. 31, 2009.
In April 2006, TVA was added as a defendant to a class action
lawsuit brought in the U.S. District Court for the Southern
District of Mississippi by 14 Mississippi residents allegedly
injured by Hurricane Katrina.
The plaintiffs sued seven large oil companies and an oil company
trade association, three large chemical companies and a chemical
trade association, and 31 large companies involved in the mining
and/or burning of coal. The plaintiffs allege that the
defendants' greenhouse gas emissions contributed to global
warming and were a proximate and direct cause of Hurricane
Katrina's increased destructive force.
The plaintiffs are seeking monetary damages among other relief.
The district court dismissed the case on the grounds that the
plaintiffs lacked standing.
The plaintiffs appealed the dismissal to the U.S. Court of
Appeals for the Fifth Circuit.
In October 2009, the Fifth Circuit decided that the plaintiffs
have standing to assert their public and private nuisance,
trespass, and negligence claims, and that none of these claims
present political questions, but also concluded that their unjust
enrichment, fraudulent misrepresentation, and civil conspiracy
claims must be dismissed for standing reasons.
Accordingly, the Fifth Circuit reversed the district court's
judgment in part, dismissed the plaintiffs' suit in part, and
remanded the case to the district court for further proceedings.
TVA and the other defendants filed a petition seeking a rehearing
by the entire Fifth Circuit.
Tennessee Valley Authority -- http://www.tva.gov-- is a wholly
owned but self-funded United States government corporation,
mandated by federal charter to supply power. TVA has 36,914
megawatts of dependable generating capacity. TVA's power
facilities include 11 fossil plants, 29 hydroelectric dams, three
nuclear plants, a pumped-storage facility, multiple
combustion turbine sites, and 16,000 miles of transmission lines.
Through its locally-owned distributors, TVA provides
power to serve people across parts of seven states in the
Tennessee Valley region.
TUROCY & WATSON: IP Boutique Faces Suit Alleging Wage Violations
----------------------------------------------------------------
Tresa Baldas at The National Law Journal reports that When legal
secretary Karla Osolin used to work at Jones Day, she was paid a
salary and overtime.
That's what caused red flags to go up when she took a job in
September 2008 with Ohio intellectual property boutique Turocy &
Watson. Now the firm faces a suit alleging wage-and-hour
violations and stands accused of misclassifying Osolin and many
others to avoid paying overtime.
"She knew when she came here that something was wrong. And then
she called me," said Osilin's lawyer, Anthony Lazzaro, Esq., a
class action plaintiffs lawyer, who is not surprised that he is
suing a law firm over pay practices. "I think that there are
plenty of law firms out there that are paying secretaries and
paralegals a salary without overtime and not even realizing it."
Mr. Lazzaro of the Lazzaro Law Firm in Cleveland is representing
an estimated 40 legal secretaries in a putative class action
filed in the Northern District of Ohio against the Cleveland-
based Turocy & Watson, alleging that the firm misclassified the
employees to avoid paying them overtime, in violation of the Fair
Labor Standards Act.
On Feb. 18, a notice will go out to all the potential class
members after the parties agreed last week to conditionally
certify the class to find out who wants to participate. The
certification, which Judge James S. Gwin signed off on, is
temporary, and the law firm could challenge it later.
Gregory Turocy, Esq., a partner at Turocy & Watson, declined
comment.
The law firm has tapped Littler Mendelson -- the largest
employment firm in the country -- to represent it. Barry Freeman
and Edward Chyun of Littler, who are representing the firm, did
not return calls for comment.
According to the complaint, the plaintiffs allege that none of
them did any managerial work or directed the work of employees,
or had authority to hire and fire. Under those circumstances,
they allege, they do not fit within the executive exemption.
Mr. Lazzaro, who exclusively handles wage and hour class actions,
doubts that Turocy & Watson is the only law firm to land in legal
hot water over its compensation practices.
"I think companies across the board make mistakes when it comes
to misclassifying employees. You don't see it very often that law
firms do it, but it certainly happens." he said.
Management-side attorney Mark Tabakman, Esq., a labor and
employment partner at Fox Rothschild, can attest to that. Mr.
Tabakman, who is not involved in the Turocy & Watson case, has
law firm clients who, he said, have unknowingly misclassified
employees, not realizing it was unlawful until he pointed it out.
For example, he said, he had one law firm client that was paying
a receptionist a salary -- with no overtime -- when she sometimes
worked 50 hours a week.
"They thought that she wasn't entitled to overtime. They were
frankly stunned when I told them that she was," said Mr.
Tabakman, who believes the IP boutique case offers a lessons to
law firms.
"What law firms can learn is what any other employer should be
aware of: It should properly classify employees as exempt and non
exempt, "said Mr. Tabakman.
"I've seen it in a few law firms -- I see it in a lot of
companies -- that they believe erroneously that paying someone a
salary automatically exempts them from overtime," he said. "It
doesn't."
UNITED RENTALS: Plaintiff's Appeal on Dismissal of Suit Pending
---------------------------------------------------------------
The appeal of the plaintiffs on the dismissal of the second
consolidated amended complaint against United Rentals, Inc.,
remains pending, according to the company's Feb. 3, 2010, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended Dec. 31, 2009.
Subsequent to the company's Nov. 14, 2007 announcement that
affiliates of Cerberus Capital Management, L.P., had notified the
company that they were not prepared to proceed with the purchase
of the company on the terms set forth in the merger agreement,
three putative class action lawsuits were filed against the
company in the U.S. District Court for the District of
Connecticut.
The plaintiff in each of the lawsuits sought to sue on behalf of
a purported class of persons who purchased or otherwise acquired
the company's securities between Aug. 29, 2007 and Nov. 14, 2007.
The lawsuits named as defendants the company, its directors and
certain of its officers and alleged, among other things, that the
named plaintiff and members of the purported class suffered
damages when they purchased or otherwise acquired securities
issued by the company, as a result of false and misleading
statements and/or material omissions relating to the contemplated
merger with affiliates of Cerberus, contained in:
(i) proxy materials that the Company disseminated and/or
filed with the SEC in anticipation of the Oct. 19, 2007
special meeting of stockholders; and/or
(ii) certain of the Company's filings with the SEC and other
public statements.
On the basis of those allegations, plaintiff in each action
asserted claims under Sections 10(b) and 14(a) of the Exchange
Act and Rules 10b-5 and 14a-9 thereunder; and against the
individual defendants under Section 20(a) of the Exchange Act.
The complaints in these actions sought unspecified compensatory
damages, costs, expenses and fees.
The Court subsequently entered an order consolidating the three
actions and appointed First New York Securities, L.L.C. and Omni
Partners LLP as lead plaintiffs for the purported class. The
actions are now consolidated under the caption First New York
Securities, L.L.C., et al. v. United Rentals, Inc., et al.
On March 24, 2008, pursuant to a schedule approved by the Court,
lead plaintiffs filed a consolidated amended complaint, which,
among other things:
(i) amended the purported class period to include
purchasers of our securities from July 23, 2007 to
Nov. 14, 2007;
(ii) dropped as defendants one of our officers and all but
one of our directors;
(iii) named as additional defendants Cerberus, certain of its
affiliates, its chief executive officer and one of its
managing directors; and
(iv) withdrew the previously asserted claim under
Section 14(a) of the Exchange Act and Rule 14a-9
thereunder.
On March 10, 2009, the Court granted defendants' motions to
dismiss the consolidated amended complaint without prejudice, and
granted lead plaintiffs leave to move to reopen the case within
30 days and to file a proposed amended complaint.
On April 9, 2009, lead plaintiffs moved to reopen the case and
for leave to file a second consolidated amended complaint.
With the court's permission, lead plaintiffs filed their second
consolidated amended complaint on April 16, 2009.
The second consolidated amended complaint continued to assert
claims under Sections 10(b) and 20(a) of the Exchange Act and
Rule 10b-5 thereunder and, among other things:
(i) amended the purported class period to include
purchasers of our publicly traded securities from
Aug. 30, 2007 to Nov. 14, 2007, and
(ii) dropped as defendants one of the company's directors
and the Cerberus related defendants.
On Aug. 24, 2009, the Court granted defendants' motion to dismiss
the second consolidated amended complaint with prejudice and
subsequently entered judgment in favor of defendants.
On Sept. 22, 2009, lead plaintiffs filed a notice of appeal from
the judgment dismissing the consolidated actions.
Greenwich, Connecticut-based United Rentals, Inc. --
http://www.unitedrentals.com/-- is the largest equipment rental
company in the world, with an integrated network of 568 rental
locations in 48 states, 10 Canadian provinces and Mexico. The
company's 8,000 employees serve construction and industrial
customers, utilities, municipalities, homeowners and others.
VESTIN MORTGAGE: Prevails in San Diego Suit Contesting Merger
-------------------------------------------------------------
Vestin Mortgage, Inc., the manager of Vestin Realty Mortgage I,
Inc., and Vestin Realty Mortgage II, Inc., said last week that
the California Superior Court ruled in its favor in a San Diego
class action lawsuit. The lawsuit alleged that Vestin had
engaged in a "roll up" when the companies merged the two funds
into real estate investment trusts (REITs) in 2006.
The lawsuit claimed that the dissenters, those who voted against
the mergers that created VRTA and VRTB, were entitled to roll-up
rights.
Michael V. Shustek, Chairman, Chief Executive Officer and
President of both REITs, said "We are obviously very pleased with
the court's decision. When we began the merger process, Vestin
engaged experienced and respected legal and accounting firms and
followed the Securities and Exchange Commission procedures
diligently. We were always confident in our position that the
mergers were not roll ups and the court agreed with us."
"This case continued for three and a half years and has been a
significant expense to our shareholders."
"There is currently pending in Nevada a related case alleging
essentially the same core claims that were made in the class
action lawsuit. While the plaintiffs in the Nevada case opted
out of the class action in favor of pursuing their own lawsuit,
the claims arise from the same core argument -- that the mergers
resulted in a "roll up", giving the plaintiffs special rights.
Now that a court has heard all of the evidence and ruled in favor
of Vestin, the company intends to continue to vigorously defend
the Nevada lawsuit."
The Class Action Reporter first reported about this dispute on
Nov. 1, 2006, and provided its latest update on Oct. 7, 2009.
About Vestin Realty Mortgage II, Inc.
Vestin Realty Mortgage II, Inc. is a real estate investment trust
("REIT") that invests in commercial real estate loans. As of
September 30, 2009, Vestin Realty Mortgage II, Inc. had assets
of approximately $110.7 million. Vestin Realty Mortgage II, Inc.
is managed by Vestin Mortgage, Inc., which is a subsidiary of
Vestin Group, Inc., which is engaged in asset management, real
estate lending and other financial services through its
subsidiaries. Since 1995, Vestin Mortgage Inc. has facilitated
more than $2.0 billion in lending transactions.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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