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C L A S S A C T I O N R E P O R T E R
Tuesday, April 20, 2010, Vol. 12, No. 76
Headlines
ANTS SOFTWARE: Continues to Defend Labor-Related Suit in Calif.
APPLIED MATERIALS: Awaiting Final Approval of Settlement Pact
BERLINER COMMUNICATIONS: "Farmer" Suit Against DirectSat Ongoing
BERLINER COMMUNICATIONS: Units Continue to Defend "Monroe" Suit
BETAWAVE CORP: Must Respond to "Sunrise" Complaint in April
BLUEGREEN CORP: FLSA Violation Suit in Wisconsin Dismissed
BLUEGREEN CORP: Court Mulling on Certification in "Schwarz" Suit
CALIFORNIA: Suit Complains About CALPERS Long-Term Care Program
CONVERTED ORGANICS: Continues to Defend "Leeseberg" Suit
CULLEN AGRICULTURAL: Faces Second Amended Complaint in Delaware
DOLLAR GENERAL: Seeks Decertification of "Richter" Complaint
DOLLAR GENERAL: Continues to Defend "Brickey" in New York
DOLLAR GENERAL: Defends "Calvert" Equal Pay Act Violation Suit
DOLLAR GENERAL: Continues to Defend "Cox" Complaint in Iowa
GENESCO INC: Settlement of "Jacobs" Labor Gets Preliminary OK
JONES FINANCIAL: Edward Jones' Motion to Dismiss Suit Pending
JONES FINANCIAL: Edward Jones Defends "Covin" Suit in Arizona
MACY'S INC: Ohio Litigation Over 401(k) Plan Remains Ongoing
MCAFEE INC: Faces Class Action Labor Complaints in California
MICHAELS STORES: Class Certification Denied in "McLeod" Suit
MICHAELS STORES: Defends "Tijero" Suit in California
MICHAELS STORES: Aaron Brothers Faces "Acevedo" Suit in Calif.
MICHAELS STORES: Carson's Appeal of Dismissal Remains Pending
NEW LEAF: Remains a Defendant in Suit Over Calif. Proposition 65
NORTH AMERICAN GALVANIZING: Being Sold for Too Little, Suit Says
PACIFIC WEBWORKS: Opposes Class Certification in Three Suits
PACIFIC WEBWORKS: Seeks to Dismiss "Hahn" Suit in Utah
PECO II: Faces Amended Complaint Over Planned Lineage Merger
PINNACLE GAS: Faces Consolidated Suit on Powder Holdings Merger
PROSPER MARKETPLACE: Continues to Defend Securities Lawsuit
TOSHIBA SAMSUNG: Ninth Optical Disc Drive Price-Fixing Suit Filed
ULTA SALON: Defends Amended Employment Suit in California
ULTA SALON: Court Gives Final Nod to $3.75 Million Settlement
ZYNEX INC: Defends Suits on Restatement of Unaudited Statements
*********
ANTS SOFTWARE: Continues to Defend Labor-Related Suit in Calif.
---------------------------------------------------------------
ANTs Software, Inc., intends to continue defending itself in a
labor-related putative class action complaint.
On Aug. 22, 2008, a former ANTs employee, filed a putative class
action complaint for all current and former software engineers,
for failure to pay overtime wages, and failure to provide meal
breaks, among other things, in the Superior Court of the State of
California, County of San Mateo.
The former employee is seeking an injunction, damages, attorneys'
fees, and penalties.
No further updates were reported in the company's March 31, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
ANTs Software, Inc. -- http://www.ants.com/-- is developing the
Ants Compatibility Server (ACS) and develops, markets and
supports the ANTs Data Server ADS. ACS is middleware that is
intended to offer a method to move applications from one database
to another and enable enterprises to achieve cost efficiencies by
consolidating their applications onto fewer databases. The
company had developed technologies used in the monitoring and
management of applications and databases related to ACS.
APPLIED MATERIALS: Awaiting Final Approval of Settlement Pact
-------------------------------------------------------------
Applied Materials, Inc., is awaiting final approval from the U.S.
District Court for the District of Idaho, on the settlements
agreement in the matter In Re Atlas Mining Company Securities
Litigation, Civil Action No. 07-428-N-EJL, according to the
company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
The company, certain of its directors and former officers and
employees, its prior auditor, Chisolm, Bierwolf & Nilson, LLC,
and NanoClay & Technologies, Inc., its defunct, wholly owned
subsidiary, are defendants in a class action filed on Oct. 11,
2007.
The Class Action was filed on behalf of purchasers of the
company's publicly traded common stock during the period Jan. 19,
2005 through Oct. 8, 2007. The First Amended Complaint alleges
that the company damaged purchasers by making material
misstatements in publicly disseminated press releases and
Securities and Exchange Commission filings regarding the extent
of the halloysite deposit on company property, the availability
and quality of halloysite for sale, and claimed sales of
halloysite. The Complaint also alleges that the company
improperly manipulated reported earnings with respect to
purported halloysite sales and misrepresentations by the
individual defendants as to its financial statements. The
plaintiffs seek remedies under Section 10(b) of the Securities
and Exchange Act and Rule 10b-5 thereunder and for violations of
Section 20(a) of the Exchange Act.
On July 2, 2009, the company entered into a Settlement Agreement
with the lead plaintiffs in the class action Under the terms of
the Class Action Settlement Agreement the company will pay
plaintiffs $1,250,000 (which includes fees to plaintiff's
counsel), to be funded by the proceeds of an insurance policy
issued by Navigators Insurance Co., in exchange for release of
all claims against the company, NanoClay & Technologies, Inc.,
and William T. Jacobson, Robert Dumont, Ronald Price and Barbara
Suveg.
The company will also fund up to $75,000 to fund expenses in
connection with notification to class members. The Class Action
Settlement Agreement is the settlement agreement contemplated by
the Memorandum of Understanding described in its prior response
and the terms of it are consistent with the terms of such MOU.
The Settlement Agreement is subject to a number of conditions
including successful completion of confirmatory due diligence by
the lead plaintiffs and final court approval.
Applied Materials, Inc., f/k/a Atlas Mining Company --
http://www.appliedmaterials.com/-- is the global leader in
Nanomanufacturing Technology(TM) solutions with a broad portfolio
of innovative equipment, services and software products for the
fabrication of semiconductor chips, flat panel displays, solar
photovoltaic cells, flexible electronics and energy-efficient
glass.
BERLINER COMMUNICATIONS: "Farmer" Suit Against DirectSat Ongoing
----------------------------------------------------------------
DirectSat USA, LLC, continues to defend a class action captioned
Gerald Farmer, et al. v. DirectSat USA, LLC, alleging violations
of the Illinois Wage and Hour Laws and the Fair Labor Standards
Act.
DirectSat is a subsidiary of Unitek Holdings, Inc. Unitek is a
wholly-owned subsidiary of Berliner Communications, Inc.
On June 11, 2008, three named plaintiffs, who were formerly
employed as technicians by DirectSat USA, LLC, a UniTek
subsidiary, filed a claim in the U.S. District Court for the
Northern District of Illinois, alleging violations of the
Illinois Wage and Hour Laws and the Fair Labor Standards Act.
These allegations related to the payment of overtime.
The plaintiffs have sought and have been granted class
certification for the state law claims. They are demanding $7.4
million in damages related to these claims.
On Feb. 9, 2010, plaintiffs' counsel filed a companion case,
Lashon Jacks v. DirectSat et al., in the Cook County, Illinois
Circuit Court, seeking to expand the class in the Farmer case to
include all technicians in Illinois that worked with DirectSat
after June 10, 2008. No additional damages claims have been
made, according to Berliner Communications, Inc.'s March 31,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
Berliner Communications, Inc. -- http://www.bcisites.com/-- is a
self-performing, service vendor to the wireless communications
industry, providing a range of services, on a nationwide basis.
Its activities include site acquisition and zoning;
infrastructure equipment construction and installation; network
services; radio frequency and network design and engineering;
radio transmission base station installation and modification,
and in-building network design, engineering and construction.
The company provides some combination of these services primarily
to companies in the wireless telecommunications and/or data
transmission industries, cable operators, original equipment
manufacturers (OEMs), and, to a lesser extent, to utility
companies and government entities. Berliner conducts its
operations though its wholly owned subsidiary, BCI
Communications, Inc. (BCI). The company operates in two business
segments: infrastructure construction and technical services, and
site acquisition and zoning.
BERLINER COMMUNICATIONS: Units Continue to Defend "Monroe" Suit
---------------------------------------------------------------
Berliner Communications, Inc.'s subsidiaries continue to defend a
suit entitled Monroe et al. v. FTS USA, LLC and UniTek USA, LLC,
alleging violations of the Fair Labor Standards Act.
On Feb. 15, 2008, plaintiffs, former employees of FTS USA, a
UniTek subsidiary, filed a class action in the U.S. District
Court for the Western District of Tennessee, alleging violations
of the FLSA related to overtime payments.
Conditional class certification was granted, and plaintiffs have
made a claim for damages of $3.2 million.
No further developments were reported in the company's March 31,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
Berliner Communications, Inc. -- http://www.bcisites.com/-- is a
self-performing, service vendor to the wireless communications
industry, providing a range of services, on a nationwide basis.
Its activities include site acquisition and zoning;
infrastructure equipment construction and installation; network
services; radio frequency and network design and engineering;
radio transmission base station installation and modification,
and in-building network design, engineering and construction.
The company provides some combination of these services primarily
to companies in the wireless telecommunications and/or data
transmission industries, cable operators, original equipment
manufacturers (OEMs), and, to a lesser extent, to utility
companies and government entities. Berliner conducts its
operations though its wholly owned subsidiary, BCI
Communications, Inc. (BCI). The company operates in two business
segments: infrastructure construction and technical services, and
site acquisition and zoning.
BETAWAVE CORP: Must Respond to "Sunrise" Complaint in April
-----------------------------------------------------------
Betawave Corporation has until April 2010 to respond to the
complaint filed by Sunrise Equity Partners, L.P., according to
the company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
In January 2010, Sunrise brought an action against the company in
the Supreme Court of the State of New York, County of New York,
on behalf of itself and all other purchasers of the company's
securities in the 2006 private placement.
In the complaint, Sunrise alleged, among other things, that the
company breached the representation in the subscription agreement
for the 2006 private placement which provided that no purchaser
in the private placement had an agreement or understanding on
terms that differed substantially from those of any other
investor.
Sunrise claimed that the company breached this representation
because Mr. Zehil's entities received certificates without any
restrictive legend while all other investors in the private
placement received certificates with such restrictive legends.
Sunrise had originally filed this suit in U.S. District Court for
the Southern District of new York, but later dismissed this suit
without prejudice in February 2009.
The company was served with the complaint in January 2010 and has
until April 2010 to respond to the matter.
Betawave Corporation -- http://www.betawave.com/-- formerly
GoFish Corporation, is a digital media company. The company has
assembled some of the casual gaming, virtual world, social play
and entertainment Websites into a network of sites (the Betawave
Network). It generates revenue by selling advertising campaigns
on those sites to brand advertisers. The Betawave Network
delivers scale with a monthly audience of over 25 million and
attention with an average audience engagement of more than 48
minutes per month. Some of the publishers in the Betawave
portfolio include Miniclip.com, Cartoon Doll Emporium, Shutterfly
and Cookie Jar Entertainment. In February 2009, the Company
launched Betawave television (TV), an ad-supported video platform
with distribution on several publishers in the Betawave Network.
The bulk of the company's revenues come from direct sales to
brand advertisers.
BLUEGREEN CORP: FLSA Violation Suit in Wisconsin Dismissed
----------------------------------------------------------
A lawsuit alleging violation of the Fair Labor Standards Act
against Bluegreen Corporation has been dismissed after the
settlement amount was paid, according to the company's March 31,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
In Cause No. 08-cv-401-bbc, styled Steven Craig Kelly and Jack
Clark, individually and on behalf of others similarly situated v.
Bluegreen Corporation, in the U.S. District Court for the Western
District of Wisconsin, two former sales representatives brought a
lawsuit on July 28, 2008 in the Western District of Wisconsin on
behalf of themselves and putative class members who are or were
employed by the company as sales associates and compensated on a
commission-only basis.
Plaintiffs alleged that the company violated the Fair Labor
Standards Act and that they and the collective class are or were
covered, non-exempt employees under federal wage and hour laws,
and were entitled to minimum wage and overtime pay consistent
with the FLSA.
On July 10, 2009, the parties settled the case and the company
agreed to pay approximately $1.5 million (including attorney's
fees and costs) without admitting any wrongdoing. As of Dec. 31,
2009, the settlement was paid and the case dismissed.
Bluegreen Corporation -- http://www.bluegreencorp.com/-- is a
provider of places to live and play through its resorts and
residential community businesses. The company is organized into
two divisions: Bluegreen Resorts and Bluegreen Communities.
Bluegreen Resorts acquires, develops and markets vacation
ownership interests (VOIs) in resorts located in drive-to
vacation destinations and provides various services to third-
party resort owners. Bluegreen Communities acquires, develops
and subdivides property and markets residential land homesites,
which are sold directly to retail customers who seek to build a
home in a residential setting, in some cases on properties
featuring a golf course and related amenities, and also offers
real estate consulting and other services to third parties. It
also generates income from its resort management business and
through interest income earned from the financing of individual
purchasers of VOIs, and homesites sold by Bluegreen Communities.
BLUEGREEN CORP: Court Mulling on Certification in "Schwarz" Suit
----------------------------------------------------------------
The U.S. District Court for the Southern District of Georgia has
yet to decide whether to certify a class in the matter styled
Paul A. Schwarz and Barbara S. Schwarz v. Bluegreen Communities
of Georgia, LLC and Bluegreen Corporation, Cause No. 2008-5U-CV-
1358-WI, according to the company's March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Dec. 31, 2009.
On Sept. 18, 2008, Plaintiffs brought suit against the company
alleging fraud and misrepresentation with regards to the
construction of a marina at the Sanctuary Cove subdivision
located in Camden County, Georgia.
Plaintiff subsequently withdrew the fraud and misrepresentation
counts and replaced them with a count alleging violation of
racketeering laws, including mail fraud and wire fraud.
On Jan. 25, 2010, Plaintiffs filed a second complaint seeking
approval to proceed with the lawsuit as a class action
representing more than 100 persons who were harmed by the alleged
racketeering activities in a similar manner as Plaintiffs.
No decision has yet been made by the Court as to whether they
certify a class.
Bluegreen Corporation -- http://www.bluegreencorp.com/-- is a
provider of places to live and play through its resorts and
residential community businesses. The company is organized into
two divisions: Bluegreen Resorts and Bluegreen Communities.
Bluegreen Resorts acquires, develops and markets vacation
ownership interests (VOIs) in resorts located in drive-to
vacation destinations and provides various services to third-
party resort owners. Bluegreen Communities acquires, develops
and subdivides property and markets residential land homesites,
which are sold directly to retail customers who seek to build a
home in a residential setting, in some cases on properties
featuring a golf course and related amenities, and also offers
real estate consulting and other services to third parties. It
also generates income from its resort management business and
through interest income earned from the financing of individual
purchasers of VOIs, and homesites sold by Bluegreen Communities.
CALIFORNIA: Suit Complains About CALPERS Long-Term Care Program
---------------------------------------------------------------
Maria Dinzeo at Courthouse News Service reports that the State of
California denies its public employees and their same-sex spouses
long-term care benefits under the state's retirement system, a
class action claims in Federal Court. The six lead plaintiffs
say the California Public Employees Retirement System
unconstitutionally bars same-sex partners from enrolling in its
long-term care insurance program, though it allows heterosexual
married partners of public employees to do so.
CALPERS even permits adult siblings, parents, aunts, uncles and
grandparents to enroll in the program and receive benefit payouts
to provide at-home care to plan beneficiaries. The couples say
they want the right to include their loved ones in the plan, as
CALPERS repeatedly reminds its employees to do in its information
guide.
The complaint cites a U.S. Department of Health and Human
Services report stating that "approximately 70 percent of
Americans over the age of 65 -- approximately nine million people
-- will need long-term care services."
But most people are not covered under private health insurance or
Medicare for long-term care in the event that they need help with
everyday activities due to frailty, chronic illness or
Alzheimer's disease.
"Without long-term care insurance, the high costs of care can
force families to make painful choices such as selling a family
home to pay the bills, or having a working adult give up a job
and income to work unpaid as a primary caretaker for a loved one
who is no longer able to care for herself," the complaint states.
That's why plaintiff Michael Dragovich, 51, sought to enroll his
spouse Michael Gaitley, 51, in the CALPERS long-term care
program.
When he called to request enrollment materials, Mr. Dragovich
says a program representative told him that "same-sex spouses are
ineligible to join" based on federal law.
Shortly after his attorney spoke with CALPERS on his behalf, and
was told that same-sex spouses were barred from the program so it
could keep its tax-qualified status, Mr. Dragovich says CALPERS
suspended enrollment for any new enrollees.
"Already almost two years have passed since Dragovich first tried
to enroll his spouse," the complaint states.
The class seeks declaratory judgment and an injunction ordering
the CALPERS Board of Administration to allow same-sex spouses to
join during any of the plan's future open enrollment periods.
The class is represented by Claudia Center with the Legal Aid
Society Employment Law Center of San Francisco.
A copy of the Complaint in Dragovich, et al. v. United States
Department of the Treasury, et al., Case No. 10-cv-01564 (N.D.
Calif.), is available at:
http://www.courthousenews.com/2010/04/15/SameSex.pdf
The Plaintiffs are represented by:
Claudia Center, Esq.
Shelley A. Gregory, Esq.
Elizabeth Kristen, Esq.
Lori Rifkin, Esq.
LEGAL AID SOCIETY-EMPLOYMENT LAW CENTER
600 Harrison St., Suite 120
San Francisco, CA 94107
Telephone: 415-864-8848
CONVERTED ORGANICS: Continues to Defend "Leeseberg" Suit
--------------------------------------------------------
Converted Organics Inc., continues to defend a putative class
action lawsuit captioned Gerald S. Leeseberg, et al. v. Converted
Organics, Inc., filed in the U.S. District Court for the District
of Delaware, according to the company's March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Dec. 31, 2009.
On Dec. 11, 2008, the company received notice that a complaint
had been filed in a putative class action lawsuit on behalf of 59
persons or entities that purchased units pursuant to a financing
terms agreement, or FTA, dated April 11, 2006.
The lawsuit alleges breach of contract, conversion, unjust
enrichment, and breach of the implied covenant of good faith in
connection with the alleged failure to register certain
securities issued in the FTA, and the redemption of our Class A
warrants in November 2008. The lawsuit seeks damages related to
the failure to register certain securities, including alleged
late fee payments, of approximately $5.25 million, and
unspecified damages related to the redemption of the Class A
warrants.
In February 2009, the company filed a Motion for Partial
Dismissal of Complaint. On Oct. 7, 2009, the Court concluded
that Leeseberg has properly stated a claim for actual damages
resulting from the company's alleged breach of contract, but that
Leeseberg has failed to state claims for conversion, unjust
enrichment and breach of the implied covenant of good faith, and
the Court dismissed such claims.
On Nov. 6, 2009, the company filed its answer to the Complaint
with the Court. On March 4, 2010, the parties participated in a
Fed.R.Civ.P. 26(f) conference, and began discussing discovery
issues.
Converted Organics Inc. -- http://www.convertedorganics.com/--
operates processing facilities that use food waste as raw
material to manufacture all-natural soil amendment products
combining nutritional and disease suppression characteristics.
In addition to its sales in the agribusiness market, the company
sells and distributes its products in the turf management and
retail markets. As of Dec.31, 2008, the company operated two
facilities: Woodbridge facility and Gonzales facility. The
company derives revenue from two sources: tip fees and product
sales. Waste haulers pay the tip fees to the company for
accepting food waste generated by food distributors, such as
grocery stores, produce docks, fish markets and food processors,
and by hospitality venues, such as hotels, restaurants,
convention centers and airports. In March 2010, the company
acquired a line of poultry-based organic fertilizer products.
CULLEN AGRICULTURAL: Faces Second Amended Complaint in Delaware
---------------------------------------------------------------
Cullen Agricultural Holding Corp. faces a second amended class
action complaint styled Goodman v. Cullen Agricultural Holding
Corp., et al., filed in the Court of Chancery of the State of
Delaware, according to the company's March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Dec. 31, 2009.
The complaint was filed on Nov. 2, 2009, against the company and
the former directors of Triplecrown challenging the Merger and
alleging that Triplecrown's former directors breached their
fiduciary duties by, among other things, causing Triplecrown to
take ultra vires action and failing to provide Triplecrown's
stockholders with adequate time and information to determine
whether to support the Merger.
The plaintiff seeks, among other things, to have the Merger
declared void, to have Triplecrown dissolved, to have
Triplecrown's trust account restored and distributed pro rata to
members of the putative class of public stockholders of
Triplecrown and an opportunity for members of the putative class
to exercise conversion rights in connection with the Merger. The
defendants' answer was due on or before November 30, 2009.
On Dec. 9, 2009, a second amended class action complaint was
filed in the Court of Chancery of the State of Delaware against
the former directors of Triplecrown. The complaint alleges that
the defendants breached their fiduciary duties and their duty of
disclosure in connection with Triplecrown's merger into the
company. The plaintiff seeks, as alternative remedies, damages
in the amount of $9.74 per share, to have Triplecrown's trust
account restored and distributed pro rata to members of the
putative class, a quasi-appraisal remedy for members of the
putative class, and an opportunity for members of the putative
class to exercise conversion rights in connection with the
merger. The defendants filed an answer on Dec. 23, 2009.
Cullen Agricultural Holding Corp. was formed as a wholly owned
subsidiary of Triplecrown Acquisition Corp. and CAT Merger Sub,
Inc., a Georgia corporation, was incorporated as a wholly owned
subsidiary of the company on Aug. 31, 2009. The company and
Merger Sub were formed in order to allow Triplecrown to complete
the transactions contemplated by an Agreement and Plan of
Reorganization, dated as of Sept. 4, 2009, as amended, among
Triplecrown, the Company, Merger Sub, Cullen Agricultural
Technologies, Inc. and Cullen Inc. Holdings Ltd., an affiliate of
Eric J. Watson, the Company's chief executive officer, secretary,
chairman of the board and treasurer, and the then holder of all
of the outstanding common stock of Cullen Agritech.
DOLLAR GENERAL: Seeks Decertification of "Richter" Complaint
------------------------------------------------------------
Dollar General Corporation intends to seek decertification of the
class in the suit entitled Cynthia Richter, et al. v. Dolgencorp,
Inc., et al., Case No. 7:06-cv-01537-LSC, according to the
company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Jan.
29, 2010.
The suit was filed on Aug. 7, 2006, in the U.S. District Court
for the Northern District of Alabama. Plaintiff alleges that she
and other current and former Dollar General store managers were
improperly classified as exempt executive employees under the
Fair Labor Standards Act and seeks to recover overtime pay,
liquidated damages, and attorneys' fees and costs.
On Aug. 15, 2006, the Richter plaintiff filed a motion in which
she asked the court to certify a nationwide class of current and
former store managers. The company opposed the plaintiff's
motion. On March 23, 2007, the court conditionally certified a
nationwide class.
On May 30, 2007, the court stayed all proceedings in the case,
including the sending of a notice to the class, to evaluate,
among other things, certain appeals pending in the Eleventh
Circuit involving claims similar to those raised in this action.
During the stay, the statute of limitations was tolled for
potential class members. The stay was extended on several
occasions, the last of which expired on Oct. 31, 2009.
On Dec. 2, 2009, notice was mailed to over 28,000 current or
former Dollar General store managers, and approximately 3,860
individuals opted into the lawsuit.
The company believes that its store managers are and have been
properly classified as exempt employees under the FLSA and that
this action is not appropriate for collective action treatment.
The company intends to vigorously defend this action and expects
to ask the court to decertify the class at the conclusion of the
discovery period.
Dollar General Corporation -- http://www.dollargeneral.com/-- is
a discount retailer. As of Feb. 26, 2010, the company had 8,877
stores located in 35 states, primarily in the southern,
southwestern, midwestern and eastern United States. The company
offers a selection of merchandise, including consumables,
seasonal, home products and apparel. Its merchandise includes
national brands from manufacturers, such as such as Procter &
Gamble, Kimberly Clark, Unilever, Kellogg's, General Mills,
Nabisco, Coca-Cola and PepsiCo, as well as private brand
selections. The company is a subsidiary of Buck Holdings, L.P.,
a limited partnership controlled by Kohlberg Kravis Roberts &
Co., L.P. (KKR), which owns over 85% of the company's outstanding
common stock.
DOLLAR GENERAL: Continues to Defend "Brickey" in New York
---------------------------------------------------------
Dollar General Corporation continues to defend a lawsuit entitled
Tammy Brickey, Becky Norman, Rose Rochow, Sandra Cogswell and
Melinda Sappington v. Dolgencorp, Inc. and Dollar General
Corporation, Case No. 6:06-cv-06084-DGL, filed in the U.S.
District Court for the Western District of New York, according to
the company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Jan.
29, 2010.
On May 18, 2006, the company was served with a lawsuit entitled
Tammy Brickey, Becky Norman, Rose Rochow, Sandra Cogswell and
Melinda Sappington v. Dolgencorp, Inc. and Dollar General
Corporation (Western District of New York, Case No. 6:06-cv-
06084-DGL, originally filed on Feb. 9, 2006 and amended on May
12, 2006.
The Brickey plaintiffs seek to proceed collectively under the
FLSA and as a class under New York, Ohio, Maryland and North
Carolina wage and hour statutes on behalf of, among others,
assistant store managers who claim to be owed wages (including
overtime wages) under those statutes. At this time, it is not
possible to predict whether the court will permit this action to
proceed collectively or as a class.
However, the Company believes that this action is not appropriate
for either collective or class treatment and that the company's
wage and hour policies and practices comply with both federal and
state law.
Dollar General Corporation -- http://www.dollargeneral.com/-- is
a discount retailer. As of Feb. 26, 2010, the company had 8,877
stores located in 35 states, primarily in the southern,
southwestern, midwestern and eastern United States. The company
offers a selection of merchandise, including consumables,
seasonal, home products and apparel. Its merchandise includes
national brands from manufacturers, such as such as Procter &
Gamble, Kimberly Clark, Unilever, Kellogg's, General Mills,
Nabisco, Coca-Cola and PepsiCo, as well as private brand
selections. The company is a subsidiary of Buck Holdings, L.P.,
a limited partnership controlled by Kohlberg Kravis Roberts &
Co., L.P. (KKR), which owns over 85% of the company's outstanding
common stock.
DOLLAR GENERAL: Defends "Calvert" Equal Pay Act Violation Suit
--------------------------------------------------------------
Dollar General Corporation continues to defend the complaint
entitled Janet Calvert v. Dolgencorp, Inc., Case No. 2:06-cv-
00465-VEH, alleging violation of the Equal Pay Act, according to
the company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Jan.
29, 2010.
On March 7, 2006, a complaint was filed in the U.S. District
Court for the Northern District of Alabama in which the
plaintiff, a former store manager, alleged that she was paid less
than male store managers because of her sex, in violation of the
Equal Pay Act and Title VII of the Civil Rights Act of 1964, as
amended.
The complaint subsequently was amended to include additional
plaintiffs, who also allege to have been paid less than males
because of their sex, and to add allegations that the company's
compensation practices disparately impact females. Under the
amended complaint, Plaintiffs seek to proceed collectively under
the Equal Pay Act and as a class under Title VII, and request
back wages, injunctive and declaratory relief, liquidated
damages, punitive damages and attorney's fees and costs.
On July 9, 2007, the plaintiffs filed a motion in which they
asked the court to approve the issuance of notice to a class of
current and former female store managers under the Equal Pay Act.
The company opposed plaintiffs' motion.
On Nov. 30, 2007, the court conditionally certified a nationwide
class of females under the Equal Pay Act who worked for Dollar
General as store managers between Nov. 30, 2004 and Nov. 30,
2007.
The notice was issued on Jan. 11, 2008, and persons to whom the
notice was sent were required to opt into the suit by March 11,
2008. Approximately 2,100 individuals have opted into the
lawsuit. The company will have an opportunity at the close of
the discovery period to seek decertification of the Equal Pay Act
class, and the company expects to file such motion.
The plaintiffs have not yet moved for class certification
relating to their Title VII claims. The company expects such
motion to be filed within the next few months and will
strenuously oppose such a motion.
At this time, it is not possible to predict whether the court
ultimately will permit the Calvert action to proceed collectively
under the Equal Pay Act or as a class under Title VII. However,
the Company believes that the case is not appropriate for class
or collective treatment and that its policies and practices
comply with the Equal Pay Act and Title VII.
Dollar General Corporation -- http://www.dollargeneral.com/-- is
a discount retailer. As of Feb. 26, 2010, the company had 8,877
stores located in 35 states, primarily in the southern,
southwestern, midwestern and eastern United States. The company
offers a selection of merchandise, including consumables,
seasonal, home products and apparel. Its merchandise includes
national brands from manufacturers, such as such as Procter &
Gamble, Kimberly Clark, Unilever, Kellogg's, General Mills,
Nabisco, Coca-Cola and PepsiCo, as well as private brand
selections. The company is a subsidiary of Buck Holdings, L.P.,
a limited partnership controlled by Kohlberg Kravis Roberts &
Co., L.P. (KKR), which owns over 85% of the company's outstanding
common stock.
DOLLAR GENERAL: Continues to Defend "Cox" Complaint in Iowa
-----------------------------------------------------------
Dollar General Corporation continues to defend a suit captioned
Julie Cox, et al. v. Dolgencorp, Inc., et al-Case No. LACV-
034423, alleging violation of the Iowa Civil Rights Act,
according to the company's March 31, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Jan. 29, 2010.
On July 30, 2008, the company was served with a complaint filed
in the District Court for Dallas County, Iowa, in which the
plaintiff, a former store manager, alleges that the Company
discriminates against pregnant employees on the basis of sex and
retaliates against employees in violation of the Iowa Civil
Rights Act.
Cox seeks to represent a class of "all current, former and future
employees from the State of Iowa who are employed by Dollar
General who suffered from, are currently suffering from or in the
future may suffer from" alleged sex/pregnancy discrimination and
retaliation and seeks declaratory and injunctive relief as well
as equitable, compensatory and punitive damages and attorneys'
fees and costs.
At this time, it is not possible to predict whether the court
ultimately will permit the Cox action to proceed as a class.
However, the Company believes that the case is not appropriate
for class treatment and that its policies and practices comply
with the Iowa Civil Rights Act.
Dollar General Corporation -- http://www.dollargeneral.com/-- is
a discount retailer. As of Feb. 26, 2010, the company had 8,877
stores located in 35 states, primarily in the southern,
southwestern, midwestern and eastern United States. The company
offers a selection of merchandise, including consumables,
seasonal, home products and apparel. Its merchandise includes
national brands from manufacturers, such as such as Procter &
Gamble, Kimberly Clark, Unilever, Kellogg's, General Mills,
Nabisco, Coca-Cola and PepsiCo, as well as private brand
selections. The company is a subsidiary of Buck Holdings, L.P.,
a limited partnership controlled by Kohlberg Kravis Roberts &
Co., L.P. (KKR), which owns over 85% of the company's outstanding
common stock.
GENESCO INC: Settlement of "Jacobs" Labor Gets Preliminary OK
-------------------------------------------------------------
The settlement of a putative class-action suit, Jacobs v. Genesco
Inc., et al., Case No. __________ (Calif. Super. Ct., Shasta
Cty.), has received preliminary approval from the court,
according to the company's March 31, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Jan. 30, 2010.
The suit was filed on June 16, 2008, and alleges violations of
the California Labor Code involving payment of wages, failure to
provide mandatory meal and rest breaks, and unfair competition,
and seeking back pay, penalties and declaratory and injunctive
relief.
The company removed the case to the Federal District Court for
the Eastern District of California.
On Sept. 3, 2008, the court dismissed certain of the plaintiff's
claims, including claims for conversion and punitive damages.
On May 5, 2009, the company and the plaintiff's counsel reached
an agreement in principle to settle the lawsuit on a claims made
basis. The minimum payment by the company pursuant to the
agreement is $398,000; the maximum is $703,000.
On Jan. 21, 2010, the court granted preliminary approval of the
settlement.
Genesco, Inc. -- http://www.genesco.com/-- is a retailer of
branded footwear, licensed and branded headwear, and a wholesaler
of branded footwear.
JONES FINANCIAL: Edward Jones' Motion to Dismiss Suit Pending
-------------------------------------------------------------
The motion of the defendants, which includes Edward Jones, to
dismiss a class action stemming from the sale of Lehman Bonds
remains pending in the U.S. District Court for the Southern
District of New York.
In October 2008, a class action suit was filed in Arkansas state
court, Saline County, under Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 Act, against certain officers and
directors of Lehman Brothers Holdings, Inc. and a syndicate of
underwriters, including Edward Jones, of Lehman Bonds sold
pursuant to the registration statement and prospectus dated May
30, 2006 and various prospectus supplements dated October 22,
2006 and thereafter.
In November 2008, a similar suit was filed in Arkansas state
court, Benton County against the same defendants stemming from
the sale of 6.5% Lehman Bonds maturing Oct. 25, 2007, pursuant to
the registration statement and prospectus and prospectus
supplement dated Aug. 2, 2007.
Plaintiffs in both actions allege the defendants made material
misrepresentations to the purchasers of Lehman Bonds.
While each lawsuit relates to a different series of Lehman Bonds,
the plaintiffs in each suit seek unspecified compensatory
damages, attorneys' fees, costs and expenses.
In February 2009, the U.S. Judicial Panel on Multidistrict
Litigation transferred these two actions to the Southern District
of New York for coordinated or consolidated pretrial proceedings
with similar actions currently pending in the SDNY.
Defendants filed a Motion to Dismiss Plaintiffs' Securities Act
Claims in April 2009, which is currently pending in SDNY.
No further updates were reorted in The Jones Financial Companies,
L.L.L.P.'s March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
The Jones Financial Companies, L.L.L.P. is organized under the
Revised Uniform Limited Partnership Act of the State of Missouri.
The Partnership is the successor to Whitaker & Co., which was
established in 1871 and dissolved on Oct. 1, 1943, the
organization date of Edward D. Jones & Co., L.P. --
http://www.edwardjones.com/-- the Partnership's principal
operating subsidiary. Edward Jones was reorganized on Aug. 28,
1987, which was the organization date of The Jones Financial
Companies, L.L.L.P. The Partnership's principal operating
subsidiary, Edward Jones, is a registered broker-dealer primarily
serving individual investors. As the ultimate parent company of
Edward Jones, the Partnership is a holding company with no direct
operations. Edward Jones primarily derives its revenues from the
retail brokerage business through the sale of listed and unlisted
securities and insurance products, investment banking, principal
transactions and as a distributor of mutual fund shares, and
revenue related to assets held by and account services provided
to its customers. Edward Jones conducts business in the United
States of America and Canada, with its customers, various
brokers, dealers, clearing organizations, depositories and banks.
As of Dec. 31, 2009, the Partnership operates in two geographic
operating segments, the U.S. and Canada. In addition, the
Partnership conducted business in the United Kingdom through Nov.
12, 2009, when its U.K. subsidiary was sold.
JONES FINANCIAL: Edward Jones Defends "Covin" Suit in Arizona
-------------------------------------------------------------
Edward Jones continues to defend a putative class action relating
to bonds underwritten for the purpose of financing construction
of an event center in Prescott Valley, Arizona.
Three matters, Covin, et al., vs. Baird & Co., Inc., et al.,
Allstate Life Ins. Co. vs. Robert W. Baird, et al., and Wells
Fargo Bank N.A. vs. Robert W. Baird, et al., were filed in
September 2009 in Arizona.
The actions relate to bonds underwritten by Edward Jones and
other brokerage firms for the purpose of financing construction
of an event center in Prescott Valley, Arizona. The plaintiffs
allege the underwriters, including Edward Jones, made material
misrepresentations and omissions in the Preliminary Official
Statement dated Nov. 4, 2005 and/or in the Official Statement
dated Nov. 18, 2005.
The plaintiffs specifically allege the defendants violated Rule
10(b) of the Securities Exchange Act of 1934, SEC Rule 10b-5,
certain state securities acts, and committed common law torts.
The Covin matter was filed as a putative class action in which
the plaintiffs seek to represent all purchasers of the issued
bonds. Allstate is suing as a purchaser of the bonds, and Wells
Fargo filed a separate action as Trustee on behalf of all bond
holders.
In all three matters, the plaintiffs are seeking an unspecified
amount of damage including attorneys' fees, costs, expense,
rescission or statutory damages, out-of-pocket damages and
prejudgment interest.
No further updates were reorted in The Jones Financial Companies,
L.L.L.P.'s March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
The Jones Financial Companies, L.L.L.P. is organized under the
Revised Uniform Limited Partnership Act of the State of Missouri.
The Partnership is the successor to Whitaker & Co., which was
established in 1871 and dissolved on Oct. 1, 1943, the
organization date of Edward D. Jones & Co., L.P. --
http://www.edwardjones.com/-- the Partnership's principal
operating subsidiary. Edward Jones was reorganized on Aug. 28,
1987, which was the organization date of The Jones Financial
Companies, L.L.L.P. The Partnership's principal operating
subsidiary, Edward Jones, is a registered broker-dealer primarily
serving individual investors. As the ultimate parent company of
Edward Jones, the Partnership is a holding company with no direct
operations. Edward Jones primarily derives its revenues from the
retail brokerage business through the sale of listed and unlisted
securities and insurance products, investment banking, principal
transactions and as a distributor of mutual fund shares, and
revenue related to assets held by and account services provided
to its customers. Edward Jones conducts business in the United
States of America and Canada, with its customers, various
brokers, dealers, clearing organizations, depositories and banks.
As of Dec. 31, 2009, the Partnership operates in two geographic
operating segments, the U.S. and Canada. In addition, the
Partnership conducted business in the United Kingdom through Nov.
12, 2009, when its U.K. subsidiary was sold.
MACY'S INC: Ohio Litigation Over 401(k) Plan Remains Ongoing
------------------------------------------------------------
Macy's, Inc. is still facing a purported class-action suit filed
by Ebrahim Shanehchian, an alleged participant in the company's
Profit Sharing 401(k) Investment Plan, according to its Sept. 8,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 1, 2009.
On Oct. 3, 2007, Mr. Shanehchian filed a purported class-action
lawsuit in the U.S. District Court for the Southern District of
Ohio on behalf of persons who participated in the 401(k) Plan and
The May Department Stores Company Profit Sharing Plan
between Feb. 27, 2005 and the present.
The complaint charges the company, as well as certain current and
former members of its board of directors and certain current and
former members of management, with breach of fiduciary duties
owed under the Employee Retirement Income Security Act (ERISA) to
participants in the 401(k) Plan and the May Plan, alleging that
the defendants made false and misleading
statements regarding the Company's business, operations and
prospects in relation to the integration of the acquired May
operations, resulting in supposed "artificial inflation" of the
company's stock price between Aug. 30, 2005 and May 15, 2007.
The plaintiff seeks an unspecified amount of compensatory damages
and costs.
No further updates were reported in the company's March 31, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended Jan. 30, 2010.
Macy's, Inc. -- http://www.macysinc.com/-- formerly Federated
Department Stores, Inc., is a retail company operating retail
stores that sell a range of merchandise, including men's, women's
and children's apparel and accessories, cosmetics, home
furnishings and other consumer goods. As of Feb. 2, 2008, the
Company operated 853 stores in 45 states, the District of
Columbia, Guam and Puerto Rico under the names, Macy's and
Bloomingdale's. The Company, through its divisions, conducts
electronic commerce and direct-to-customer mail catalog
businesses under the names macys.com, bloomingdales.com and
Bloomingdale's By Mail. In addition, Macy's, Inc. offers an
online bridal registry to customers.
MCAFEE INC: Faces Class Action Labor Complaints in California
-------------------------------------------------------------
Courthouse News Service reports that McAfee and PayPal face
separate but similar class-action labor complaints, in Santa
Clara County Court, Calif.
A copy of the Complaint in Wofford, et al. v. McAFEE, Inc., et
al., Case No. 1-10-CV-168952 (Calif. Super. Ct., Santa Clara
Cty.), is available at:
http://www.courthousenews.com/2010/04/15/Employ.pdf
The Plaintiff is represented by:
Christopher J. Hamner, Esq.
Jill L. Feinberg, Esq.
HAMNER LAW OFFICES, LP
15760 Ventura Blvd., Suite 860
Encino, CA 91436
Telephone: 818-386-0444
E-mail: chamner@hamnerlaw.com
jfeinberg@hamnerlaw.com
MICHAELS STORES: Class Certification Denied in "McLeod" Suit
------------------------------------------------------------
The U.S. District Court for the Central District of California
denied class certification in a purported class action against
Michaels Stores, Inc., according to the company's March 31, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended Jan. 30, 2010.
On March 30, 2009, Nicole McLeod, a former Michaels employee,
commenced a purported class action proceeding against the company
on behalf of herself and current and former hourly retail
employees employed in California from March 30, 2005 to the
present. The McLeod suit was filed in the Superior Court of
California, County of Los Angeles, and removed by the Company to
the U.S. District Court for the Central District of California.
The McLeod suit alleges that Michaels failed to provide meal and
rest periods (or compensation in lieu thereof) and failed to pay
wages and/or overtime pay. The McLeod suit also alleges that
this conduct was in breach of California's unfair competition
law. The plaintiff sought injunctive relief, restitution,
damages for unpaid wages, waiting time penalties, interest, and
attorneys' fees and costs.
On Dec. 15, 2009, the Court denied certification for the class,
leaving the case with one individual plaintiff.
Michaels Stores, Inc., is North America's largest specialty
retailer of arts, crafts, framing, floral, wall d‚cor, and
seasonal merchandise for the hobbyist and do-it-yourself home
decorator. As of March 24, 2010, the company owns and operates
1,027 Michaels stores in 49 states and Canada, and 148 Aaron
Brothers stores.
MICHAELS STORES: Defends "Tijero" Suit in California
----------------------------------------------------
Michaels Stores, Inc., defends a purported class action filed by
a former assistant manager of Aaron Brothers, according to the
company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Jan.
30, 2010.
On Feb. 12, 2010, the company was served with a lawsuit filed on
May 7, 2009 by Jose Tijero, a former assistant manager for Aaron
Brothers as a purported class action proceeding on behalf of
himself and all current and former hourly retail employees
employed in California.
The Tijero suit, filed in the Superior Court of California,
County of Alameda, alleges that Aaron Brothers failed to pay all
wages and overtime, failed to provide its hourly employees with
adequate meal and rest breaks (or compensation in lieu thereof),
and accurate wage statements and alleges that the foregoing
conduct was in breach of California's unfair competition law.
The plaintiff seeks injunctive relief, compensatory damages, meal
and rest break penalties, waiting time penalties, interest, and
attorneys' fees and costs.
Michaels Stores, Inc., is North America's largest specialty
retailer of arts, crafts, framing, floral, wall d‚cor, and
seasonal merchandise for the hobbyist and do-it-yourself home
decorator. As of March 24, 2010, the company owns and operates
1,027 Michaels stores in 49 states and Canada, and 148 Aaron
Brothers stores.
MICHAELS STORES: Aaron Brothers Faces "Acevedo" Suit in Calif.
--------------------------------------------------------------
Aaron Brothers, Inc., faces a purported class action alleging
that its stores are not compliant with disability access non-
discrimination statutes, according to Michaels Stores, Inc.'s
March 31, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Jan. 30, 2010.
Michaels Stores operates Aaron Brothers stores.
On March 12, 2010, Arthur Acevedo, a consumer, filed a purported
class action proceeding against Aaron Brothers, Inc. in the
Superior Court of California, Los Angeles County, on behalf of
himself and all similarly-situated mobility impaired/wheelchair
bound persons.
The suit alleges that certain of Aaron Brothers retail stores in
California are not compliant with disability access non-
discrimination statutes of California and the plaintiffs seek
injunctive relief, statutory damages, attorneys fees and costs.
Michaels Stores, Inc., is North America's largest specialty
retailer of arts, crafts, framing, floral, wall d‚cor, and
seasonal merchandise for the hobbyist and do-it-yourself home
decorator. As of March 24, 2010, the company owns and operates
1,027 Michaels stores in 49 states and Canada, and 148 Aaron
Brothers stores.
MICHAELS STORES: Carson's Appeal of Dismissal Remains Pending
-------------------------------------------------------------
The appeal of Linda Carson on the dismissal of a purported class
action against Michaels Stores, Inc., remains pending in the
California Court of Appeal for the Fourth District, San Diego,
according to the company's March 31, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Jan. 30, 2010.
On Aug. 15, 2008, Linda Carson, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the
Superior Court of California, County of San Diego, on behalf of
herself and all similarly-situated California consumers.
The Carson suit alleges that Michaels unlawfully requested and
recorded personally identifiable information (i.e., her zip code)
as part of a credit card transaction. The plaintiff sought
statutory penalties, costs, interest, and attorneys' fees.
The company contested certification of this claim as a class
action and filed a motion to dismiss the claim. On March 9,
2009, the Court dismissed the case with prejudice.
The plaintiff appealed this decision to the California Court of
Appeal for the Fourth District, San Diego, where the matter is
now pending resolution.
Michaels Stores, Inc., is North America's largest specialty
retailer of arts, crafts, framing, floral, wall d‚cor, and
seasonal merchandise for the hobbyist and do-it-yourself home
decorator. As of March 24, 2010, the company owns and operates
1,027 Michaels stores in 49 states and Canada, and 148 Aaron
Brothers stores.
NEW LEAF: Remains a Defendant in Suit Over Calif. Proposition 65
----------------------------------------------------------------
New Leaf Brands, Inc., remains a defendant in a class action
lawsuit under California Proposition 65.
On Jan. 29, 2009, the company was notified that it was named as a
defendant, along with 54 other defendants, in a class action
lawsuit under California Proposition 65 for allegedly failing to
disclose the amount of lead in one of its products.
Although the product in question was sold as part of the
company's Asset Sale to Nutra, Inc., the company remains as a
named defendant in the case.
No further updates were reported in the company's March 31, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
New Leaf Brands, Inc. -- http://www.newleafbrands.com/--
formerly Baywood International, Inc., develops, markets and
distributes ready-to-drink (RTD) beverages and nutraceutical
products. The Company operates through the combination of a
diversified nutraceutical company (LifeTime brand) and a RTD tea
company (New Leaf brand).
NORTH AMERICAN GALVANIZING: Being Sold for Too Little, Suit Says
----------------------------------------------------------------
Courthouse News Service reports that North American Galvanizing &
Coatings is selling itself too cheap to AZZ Inc., for $126
million or $7.50 a share, stockholders say in Delaware Chancery
Court.
A copy of the Complaint in Akerman v. North American Galvanizing
& Coatings, Inc., et al., Case No. 5407 (Del. Ch. Ct.), is
available at:
http://www.courthousenews.com/2010/04/15/SCA.pdf
The Plaintiff is represented by:
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
919 North Market St. Suite 980
Wilmington, DE 19801
Telephone: 302-295-5310
- and -
Jules Brody, Esq.
Jason D'Agnenica, Esq.
STULL, STULL & BRODY
6 East 45th St.
New York, NY 10017
Telephone: 212-687-7230
- and -
Joseph H. Weiss, Esq.
WEISS & LURIE
551 Fifth Ave., Suite 1600
New York, NY 10176
Telephone: 212-682-3025
PACIFIC WEBWORKS: Opposes Class Certification in Three Suits
------------------------------------------------------------
Pacific WebWorks, Inc., intends to oppose class certification in
three lawsuits in relation to its procedures in selling its
products in the ordinary course of business, according to the
company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
During November 2009 three lawsuits were filed against Pacific
WebWorks in various jurisdictions. The legal actions allege
similar claims related to procedures the company uses to sell its
products in the ordinary course of business.
On Nov. 9, 2009, Barbara Ford filed an action in the Circuit
Court of Cook County, Illinois, Chancery Division. A second
action was filed on Nov. 12, 2009, by Deanna Pelletier in the
Superior Court of the State of California, County of Solano. A
third action was filed by Lisa Rasmussen on Nov. 20, 2009, in the
Superior Court of Washington, Snohomish County.
All plaintiffs in these cases are being represented by the same
legal firm and each complaint seeks class action certification.
The complaints allege that Pacific WebWorks violated consumer
protection and federal RICO laws, committed fraud and used
deceptive trade practices in relation to the manner in which
Pacific WebWorks charges for purchases of its products. Each
action seeks compensatory and punitive damages, plus reasonable
costs and attorney fees.
In response to these actions, Pacific WebWorks retained the law
firm of Snell and Wilmer as legal counsel.
Discovery is beginning on the class certification phase in the
Illinois, Washington and California lawsuits. The company's
legal counsel intends to oppose class certification and move to
dismiss all claims.
Pacific WebWorks, Inc. -- http://www.pacificwebworks.com/-- is
an application service provider and software development firm
that develops business software technologies and services for
business merchants and organizations using Internet and other
technologies. The company specializes in turnkey applications
allowing small to medium sized businesses to expand over the
Internet. Its product family provides tools for Website
creation, management and maintenance, electronic business
storefront hosting and Internet payment systems for the small to
medium sized business and organization. The company has four
wholly owned operating subsidiaries: Intellipay, Inc., TradeWorks
Marketing, Inc., FundWorks, Inc. and Pacific WebWorks
International, LTD.
PACIFIC WEBWORKS: Seeks to Dismiss "Hahn" Suit in Utah
------------------------------------------------------
Pacific WebWorks, Inc., through its counsel Snell and Wilmer, has
filed a motion dismiss all claims in a suit filed by Song Que
Hahn, according to the company's March 31, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
On Jan. 5, 2010, a lawsuit was filed by Hahn, a California
resident, in the U.S. District Court for the District of Utah.
On Feb. 8, 2010, the company's legal counsel filed a motion to
strike the class allegations and a motion to dismiss all claims,
except the breach of contract claims.
On March 9, 2010 Hahn filed an opposition to the company's
motions and counsel intends to refute the arguments presented in
the oppositions.
Pacific WebWorks, Inc. -- http://www.pacificwebworks.com/-- is
an application service provider and software development firm
that develops business software technologies and services for
business merchants and organizations using Internet and other
technologies. The company specializes in turnkey applications
allowing small to medium sized businesses to expand over the
Internet. Its product family provides tools for Website
creation, management and maintenance, electronic business
storefront hosting and Internet payment systems for the small to
medium sized business and organization. The company has four
wholly owned operating subsidiaries: Intellipay, Inc., TradeWorks
Marketing, Inc., FundWorks, Inc. and Pacific WebWorks
International, LTD.
PECO II: Faces Amended Complaint Over Planned Lineage Merger
------------------------------------------------------------
PECO II, Inc., faces an amended complaint in relation to its
planned merger with Lineage Power Holdings, Inc., according to
the company's March 31, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
On Feb. 18, 2010, the company entered into an Agreement and Plan
of Merger with Lineage Power and Lineage Power Ohio Merger Sub,
Inc., a wholly owned subsidiary of Lineage.
The company, each of the members of the company's board of
directors, Lineage Power, and Lineage Power Ohio were named
defendants in a purported class action and shareholder derivative
lawsuit filed in the Court of Common Pleas of Cuyahoga, County,
Ohio, on or about March 5, 2010, and styled Harshad Sandesara v.
PECO II, Inc., et al., Case No. CV 10 720332.
Plaintiff is a shareholder of the company and seeks both to
enjoin the merger and damages.
On March 15, 2010, plaintiff filed an amended complaint and a
motion for expedited proceedings.
Thereafter, on March 19, 2010, plaintiff filed a motion for
preliminary injunction asking that the court block the merger.
The lawsuit alleges, among other things, that the directors of
the company, aided and abetted by the company and Lineage,
breached their fiduciary duties in connection with the directors'
recommendation that the shareholders adopt a proposed merger
transaction between the company and Merger Sub that would result
in the company being a wholly owned subsidiary of Lineage.
On March 25, 2010, the defendants filed a motion to dismiss the
amended complaint and a brief in opposition to the motion for
expedited proceedings. On March 26, 2010, the Court denied
plaintiff's motion to expedite discovery and ordered the company
to supplement its proxy statement filed March 18, 2010, with
specific information concerning the background of the merger.
PECO II, Inc. -- http://www.peco2.com/-- provides a range of
solutions to the telecommunications customers. The company
designs and manufactures and markets communications-specific
power products. It also provides onsite engineering and
installation (E&I), systems integration, installation,
maintenance, and monitoring services to customers. The company's
products include power systems, power distribution equipment and
systems integration products. PECO II's power systems provide a
primary supply of power to support the infrastructure of
communications service providers, including local exchange
carriers, long distance carriers, wireless service providers,
Internet service providers and broadband access providers. Its
power distribution equipment directs this power to specific
customer communications equipment. Its operations are organized
within two segments: products and services.
PINNACLE GAS: Faces Consolidated Suit on Powder Holdings Merger
---------------------------------------------------------------
Pinnacle Gas Resources, Inc., faces a consolidated suit captioned
In re Pinnacle Gas shareholder litigation, C.A. No.-5313-CC, in
relation to its merger agreement with Powder Holdings, LLC,
according to the company's March 31, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
Dec. 31, 2009.
On Feb. 23, 2010, the company entered into a merger agreement
with Powder Holdings. As a result of the merger agreement, two
purported class action lawsuits were filed against some or all of
the following: Thomas McGonagle, Peter Schoonmaker, Robert Cabes,
Jeffery Gunst, Sylvester Johnson, F. Gardner Parker, Susan
Schnabel, Pinnacle Gas Resources, Inc., DLJ Merchant Banking
Partners III, L.P., Powder Holdings, LLC and Powder Acquisition
Co.
The lawsuits and dates of filing are:
(1) Pennsylvania Avenue Fund, et al. v. Thomas McGonagle,
et al., (filed March 5, 2010); and
(2) Harry Gordon, et al. v. Pinnacle Gas Resources, Inc.,
et al (filed March 10, 2010).
On March 24, 2010, the Delaware Court of Chancery entered an
order consolidating the two actions under the caption in re
Pinnacle Gas shareholder litigation C.A. No.-5313-CC (Del Ch.)
and appointing co-lead counsel.
The Complaints are substantially similar and allege, among other
things, that the Merger would be the product of a flawed process
and that the consideration to be paid to the company's
stockholders in the Merger would be unfair and inadequate.
The Complaints further allege, among other things, that the
company's officers and directors breached their fiduciary duties
by, among other things, taking actions designed to deter higher
offers from other potential acquirers and failing to maximize the
value of Pinnacle to its stockholders. In addition, the lawsuits
allege that DLJ, as a controlling stockholder of Pinnacle,
violated fiduciary duties to Pinnacle stock holders. These
lawsuits seek, among other relief, injunctive relief from joining
the transaction and costs of the action, including reasonable
attorney's fees.
Pinnacle Gas Resources, Inc. -- http://www.pinnaclegas.com/-- is
an independent energy company engaged in the acquisition,
exploration and development of domestic onshore natural gas
reserves. The company focuses on the development of coalbed
methane (CBM) properties located in the Rocky Mountain region,
and is a holder of CBM acreage in the Powder River Basin. In
addition, the company owns over 94% of the rights to develop
conventional and unconventional oil and natural gas in zones
below its existing CBM reserves. Substantially all of its
undeveloped acreage as of Dec. 31, 2008, was located in the
northern end of the Powder River Basin in northeastern Wyoming
and southern Montana.
PROSPER MARKETPLACE: Continues to Defend Securities Lawsuit
-----------------------------------------------------------
Prosper Marketplace, Inc., continues to defend a securities class
action lawsuit in the Superior Court of California, County of San
Francisco, California, according to the company's March 31, 2010,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended Dec. 31, 2009.
On Nov. 26, 2008, plaintiffs, Christian Hellum, William Barnwell
and David Booth, individually and on behalf of all other
plaintiffs similarly situated, filed a class action lawsuit
against the company, and certain of its executive officers and
directors. The suit was brought on behalf of all loan note
purchasers in the company's online lending platform from Jan. 1,
2006 through Oct. 14, 2008.
The lawsuit alleges that Prosper offered and sold unqualified and
unregistered securities in violation of the California and
federal securities laws. The lawsuit seeks class certification,
damages and the right of rescission against Prosper and the other
named defendants, as well as treble damages against Prosper and
the award of attorneys' fees, experts' fees and costs, and pre-
judgment and post-judgment interest.
Some of the individual defendants filed a demurrer to the First
Amended Complaint, which was heard on June 11, 2009 and sustained
by the court with leave to amend until July 10, 2009. The
plaintiffs filed a Second Amended Complaint on July 10, 2009, to
which the same individual defendants demurred. On Sept. 15,
2009, this demurrer was sustained by the court without leave to
amend.
Suit vs. Greenwich Insurance
Prosper's insurance carrier with respect to the class action
lawsuit, Greenwich Insurance Company, has denied coverage. On
Aug. 21, 2009, Prosper filed suit against Greenwich in the
Superior Court of California, County of San Francisco,
California. The lawsuit seeks a declaration that Prosper is
entitled to coverage under its policy with Greenwich for losses
arising out of the class action lawsuit as well as damages and
the award of attorneys' fees and pre-judgment and post-judgment
interest.
Prosper Marketplace, Inc. is an online marketplace for person-to-
person lending. Prosper's website provides an online marketplace
for loans where people list and bid on loans with interest rates
of return determined through Prosper's online auction platform.
TOSHIBA SAMSUNG: Ninth Optical Disc Drive Price-Fixing Suit Filed
-----------------------------------------------------------------
The Stereo Shop, on behalf of itself and others similarly
situated v. Toshiba Samsung Storage Technology Corp., et al.,
Case No. 10-cv-01603 (N.D. Calif. Apr. 14, 2010) accuses the
optical disc drive manufacturer of conspiring to fix the price of
Optical Disc Drive products sold in the United States, resulting
to artificially inflated prices of ODD products sold in the
market. The Stereo Shop purchased ODD products directly from
Toshiba Samsung Storage from January 1, 2004, to the present.
The Plaintiff is represented by:
Joseph R. Saveri, Esq.
Eric B. Fastiff, Esq.
Brendan P. Glackin, Esq.
Andrew S. Kingsdale, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery St., 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
E-mail: isaveri@lchb.com
efastiff@lchb.com
bglackin@lchb.com
akingsdale@lchb.com
- and -
Daniel E. Gustafson, Esq.
Jason S. Kilene, Esq.
Daniel C. Hedlund, Esq.
GUSTAFSON GLUEK PLLC
650 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
Telephone: (612) 333-8844
E-mail: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
- and -
Garrett D. Blanchfield, Esq.
REINHARDT, WENDORF & BLANCHFIELD
E-1250 First Nat'l Bank Building
332 Minnesota St.
St. Paul, MN 55101
Telephone: (651) 287-2100
E-mail: gblanchfield@rwblawfirm.com
- and -
Robert J. Gralewski, Esq.
GERGOSIAN & GRALEWSKI LLP
750 B Street, Suite 1250
San Diego, CA 92101
Telephone: (619) 237-9500
E-mail: bob@gergosian.com
- and -
Marvin A. Miller, Esq.
MILLER LAW LLC
115 LaSalle St., Suite 2910
Chicago, IL 60603
Telephone: (312) 332-3400
E-mail: mmiller@millerlawllc.com
- and -
Diane M. Nast, Esq.
RODANAST, P.C.
801 Estelle Drive
Lancaster, PA 17601
Telephone: (717) 892-3000
E-mail: dnast@rodanast.com
Coverage of Slavin v. Sony Optiarc, Inc., et al., Case No.
10-cv-01291 (N.D. Calif.), appeared in the Class Action Reporter
on Mon., Apr. 5, 2010; coverage of Herman v. Sony Corporation, et
al., Case No. 10-cv-01362 (N.D. Calif.), appeared in the Class
Action Reporter on Tues., Apr. 6, 2010; coverage of Bay Area
Systems, LLC v. Sony Corporation, et al., Case No. 10-cv-01403
(N.D. Calif.), appeared in the Class Action Reporter on Thurs.,
Apr. 8, 2010; coverage of Carney v. Sony Corporation, et al.,
Case No. 10-cv-01406 (N.D. Calif.), appeared in the Class Action
Reporter on Fri., Apr. 10, 2010; coverage of Tabatabai v. Sony
Corporation, et al., Case No. 10-cv-01450 (N.D. Calif.), appeared
in the Class Action Reporter on Monday, Apr. 12, 2010; coverage
of Wagner v. Sony Optiarc, Inc., et al., Case No. 10-cv-01451
(N.D. Calif.), appeared in the Class Action Reporter on Monday,
Apr. 12, 2010; coverage of Berezin v. Hitachi, Ltd., et al., Case
No. 10-cv-01533 (N.D. Calif.), appeared in the Class Action
Reporter on Wednesday, Apr. 14, 2010, and coverage of Friedson
v. Sony Corporation, et al., Case No. 10-cv-01574 (N.D. Calif.),
appeared in the Class Action Reporter on Mon., Apr. 19, 2010.
ULTA SALON: Defends Amended Employment Suit in California
----------------------------------------------------------
Ulta Salon, Cosmetics & Fragrance, Inc., defends an amended
complaint in the U.S. District Court for the Northern District of
California, according to the company's March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Jan. 30, 2010.
In July 2009, the lawsuit was filed against the company and
certain unnamed defendants in California.
The suit alleges that Ulta misclassified its store General
Managers and Salon Managers as exempt (from the Fair Labor
Standards Act and California Labor Code).
The suit seeks to recover damages and penalties as a result of
this alleged misclassification.
On Aug. 27, 2009, the company filed its answer to the lawsuit and
on Aug. 31, 2009, the company moved the action to the U.S.
District Court for the Northern District of California.
On Nov. 2, 2009, the plaintiffs filed an amended complaint adding
another named plaintiff.
Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/
-- is a beauty retailer that that provides one-stop shopping for
prestige, mass and salon products and salon services in the
United States.
ULTA SALON: Court Gives Final Nod to $3.75 Million Settlement
-------------------------------------------------------------
The Honorable Robert W. Gettleman gave his final approval to the
proposed $3,750,000 settlement in In Re Ulta Salon, Cosmetics &
Fragrance, Inc., Securities Litigation, Case No. 07-7083 (N.D.
Ill.), according to the company's March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Jan. 30, 2010.
In December 2007 and January 2008, three putative securities
class-action complaints were filed against the company and
certain of its current and then-current executive officers. Each
suit alleges that the prospectus and registration statement
filed pursuant to the company's initial public offering contained
materially false and misleading statements and failed
to disclose material facts. Each suit claims violations of
Sections 11, 12(a)(2) and 15 of the U.S. Securities Act of 1933,
and the two later filed suits added claims under Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act of 1934, as well as
the associated Rule 10b-5.
On March 18, 2008, the suits were consolidated and plaintiffs in
Mirsky v. Ulta Salon, Cosmetics & Fragrance, Inc. et al., Case
No. 07-07083, were appointed lead plaintiffs.
The lead plaintiffs filed their amended complaint in May 2008,
alleging no new violations of the securities laws not asserted in
the prior complaints. It adds no new defendants and drops one of
the then-current officers as a defendant.
On May 29, 2009, the company and its primary insurance carrier
engaged in a mediation with counsel representing the putative
class. Although defendants continue to deny plaintiffs'
allegations, in the interest of putting this matter behind it,
the company and its insurer have reached a tentative settlement
with plaintiffs, subject to final approval by the Court.
On Aug. 7, 2009, the Court entered an order preliminarily
approving the settlement, approving the form and manner of notice
to putative class members, and setting a final hearing to
determine whether to approve the settlement on Nov. 16, 2009.
On Nov. 16, 2009, the Court held a final hearing and, no class
members having objected to the settlement or having requested
exclusion from the settlement class, the Court entered a final
order dismissing all three consolidated cases with prejudice.
The time for appeal expired on Dec. 16, 2009, without any appeal
or other challenge to the judgment being made.
All amounts paid under the settlement have been paid out of
proceeds of the company's directors and officers liability
insurance coverage.
The plaintiffs are represented by:
Lori Ann Fanning, Esq.
Miller Law LLC
115 South LaSalle Street, Suite 2910
Chicago, IL 60603
Phone: 312-332-3400
Fax: 312-676-2676
E-mail: LFanning@MillerLawLLC.com
- and -
Carol V. Gilden, Esq.
Cohen Milstein Hausfeld & Toll, PLLC
190 S. LaSalle Street, Suite 1705
Chicago, IL 60603
Phone: 312-357-0370
Fax: 312-357-0369
E-mail: cgilden@cmht.com
- and -
Deborah R. Gross, Esq.
Law Offices of Bernard M. Gross, P.C.
The Wanamaker Building
100 Penn Square East, Suite 450
Philadelphia, PA 19107
Phone: 215-561-3600
E-mail: debbie@bernardmgross.com
The defendants are represented by:
Sean M. Berkowitz, Esq.
Latham & Watkins LLP
233 South Wacker Drive
5800 Sears Tower
Chicago, IL 60606
Phone: 312-876-7700
Fax: 312-993-9767
E-mail: sean.berkowitz@lw.com
Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/
-- is a beauty retailer that that provides one-stop shopping for
prestige, mass and salon products and salon services in the
United States.
ZYNEX INC: Defends Suits on Restatement of Unaudited Statements
---------------------------------------------------------------
Zynex, Inc., continues to defend three purported class action
suits filed in relation to the company's restatement of unaudited
financial statements.
A lawsuit was filed against the company, its President and Chief
Executive Officer and its Chief Financial Officer on April 6,
2009, in the U.S. District Court for the District of Colorado
(Marjorie and David Mishkin v. Zynex, Inc. et al.).
On April 9, 2009, a lawsuit was filed by Robert Hanratty in the
same court against the same defendants. On April 10, 2009, a
lawsuit was filed by Denise Manandik in the same court against
the same defendants. These lawsuits allege substantially the
same matters.
The lawsuits refer to the April 1, 2009 announcement of the
company that it will restate its unaudited financial statements
for the first three quarters of 2008. The lawsuits purport to be
a class action on behalf of purchasers of the company securities
between May 21, 2008 and March 31, 2009.
The lawsuits allege, among other things, that the defendants
violated Section 10 and Rule 10b-5 of the Securities Exchange Act
of 1934 by making intentionally or recklessly untrue statements
of material fact and/or failing to disclose material facts
regarding the financial results and operating conditions for the
first three quarters of 2008.
The plaintiffs ask for a determination of class action status,
unspecified damages and costs of the legal action.
The company has notified its directors and officers liability
insurer of the claims.
No further updates were reported in the March 31, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Dec. 31, 2009.
Zynex, Inc. -- http://www.zynexmed.com/-- engineers,
manufactures, markets, and sells its own design of electrotherapy
medical devices in two distinct markets: standard digital
electrotherapy products for pain relief and pain management; and
the NeuroMove(TM) for stroke and spinal cord injury
rehabilitation. Zynex's product lines are fully developed, FDA-
cleared, commercially sold, and have been developed to uphold the
company's mission of improving the quality of life for patients
suffering from impaired mobility due to stroke, spinal cord
injury, or debilitating and chronic pain.
*********
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, Joy A. Agravante,
Ronald Sy and Peter A. Chapman, Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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