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/raid1/www/Hosts/bankrupt/CAR_Public/100426.mbx C L A S S A C T I O N R E P O R T E R Monday, April 26, 2010, Vol. 12, No. 80 Headlines AIRVANA INC: Faces Consolidated Suit Over 72 Mobile Merger AIRVANA INC: Wants Two Massachusetts Suits Stayed AKEENA SOLAR: Dismissal Motion Hearing Scheduled for May 24 AMERICAN COMMERCIAL: Suits Over Miss. Collision Incident Pending AMERICAN DENTAL: Final Approval of Settlement Agreement Pending AMICAS INC: Awaits Dismissal Order of Consolidated Suit AXA EQUITABLE: Faces Second Amended Complaint in California CASEY'S GENERAL: Discovery in Motor Fuel Practices Suit Ongoing CBC RESTAURANT: Sued for Labor Code Violations CELERA CORP: $11M Settlement Reached in Stock Purchasers Suit CHEMTURA CORP: Asks Bankr. Ct. to Approve Shareholder Settlement DEL MONTE: Defends Suit by Moline and Lowe in California DEL MONTE: Appeals to Denied MDL Settlement Objections Pending DEL MONTE: Appellate Court Upholds Class Certification Denial DYADIC INTERNATIONAL Settles Shareholder Suit for $4.8 Million GENERAL NUTRITION: Court Dismisses "Jackson" Consumer Suit GENERAL NUTRITION: Faces Suit Over Hydroxycut-Branded Products GENERAL NUTRITION: Judgment in Franchisee Suit Satisfied in Full GENERAL NUTRITION: Second Circuit Reverses Dismissal of 4 Suits GENERAL NUTRITION: Certification Denial Reversed in "Guzman" GEORGIA: Sup. Ct. Overturns Fee Enhancement in Foster Care Suit HARRAH'S ENTERTAINMENT: Accused in Nev. of Not Paying Overtime HAWK CORP: Appeal on Class Certification Ruling Pending HEARTLAND PAYMENT: Consolidated Securities Suit Dismissed HEARTLAND PAYMENT: Continues to Defend "McInerney" Suit HEARTLAND PAYMENT: Missouri Merchant Suit Dismissed HEARTLAND PAYMENT: Awaits Approval of Texas Suit Settlement JACMAR COMPANIES: Sued for Failing to Provide Timely Meal Breaks JOHN LINTON: Sued for Selling "Knock-Off" Skin Care Products LIVE NATION: Accused of Failing to Pay Wages for All Hours Worked MELT INC: Gelato Franchisees Barred from Class Action Proceeding NCMIC FINANCE: Accused of Fraud & Breach of Marketing Agreement NOKIA INC: 3rd Cir. Asked to Revive Cell Phone Headset Lawsuit PRESTIGE AIR: Diversion of Trust Funds Alleged in Calif. Lawsuit SAINT LUKE'S: Sued in Kansas for Engaging in Predatory Billing SMART BALANCE: Has Yet to Answer Complaint Involving Nucoa SMITH & WESSON: Wants Class Certification in Suit Denied STANDARD PARKING: Enters Settlement Agreements to Resolve Suits STREAM GLOBAL: Defends Third-Party Complaint by Sirius XM SUNOPTA INC: May 17 Hearing Set in New York Suit Settlement SUNOPTA INC: May 3 Hearing Set in Ontario Suit Settlement SUNOPTA INC: Reaches Agreement to Settle "Vargas" Suit TOLL BROTHERS: Defends Amended Securities Violations Suit TOLL BROTHERS: Faces Three Defective Drywall Suits TOYOTA MOTOR: Four Firms Named as Temporary Lead Counsel TRENDSET ORIGINALS: Recalls 2,400 Girls' Hooded Jackets TROPICAL BEDDING: Recalls 15,000 Mattress Sets WAL-MART STORES: Ala. Suit Complains About Carpet Steam Cleaners WILLIAM PENN: Del. Ch. Ct. Awards Legal Fees to Plaintiffs ********* AIRVANA INC: Faces Consolidated Suit Over 72 Mobile Merger ---------------------------------------------------------- Airvana Inc., faces a consolidated action filed in the Court of Chancery of the State of Delaware relating to its planned merger with 72 Mobile Holdings, LLC, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Jan. 3, 2010. On Dec. 17, 2009, the company entered into an Agreement and Plan of Merger with 72 Mobile Holdings, LLC (Parent), and 72 Mobile Acquisition Corp. (Merger Sub). Parent is a newly formed entity to be owned, directly and indirectly, by affiliates of S.A.C. Private Capital Group, LLC, GSO Capital Partners LP, Sankaty Advisors LLC and ZelnickMedia. Israni Action On Dec. 18, 2009, the company, its directors, SAC PCG, Parent, GSO, Sankaty Advisors, LLC and ZelnickMedia, LLC were named as defendants in a putative class action complaint, captioned Israni v. Airvana, Inc., et al., C.A. No. 5153-CC, filed in the Court of Chancery of the State of Delaware. The action is purportedly brought on behalf of a class of stockholders, alleges that the company's directors breached their fiduciary duties in connection with the proposed merger by, among other things, failing to fully inform themselves of Airvana's market value, maximize stockholder value, obtain the best financial and other terms, and act in the best interests of public stockholders, and seeking to benefit themselves improperly. The complaint further alleges that the non-Airvana defendants aided and abetted the directors' purported breaches. The plaintiff seeks injunctive and other equitable relief, including to enjoin us and Parent from consummating the merger, in addition to fees and costs. On Dec. 31, 2009, the plaintiff served document requests on the company. Gittleson Action On Dec. 31, 2009, a second putative class action complaint was filed against the company, its directors, SAC PCG, Parent, GSO, Sankaty Advisors, LLC and ZelnickMedia, LLC in the Court of Chancery of the State of Delaware in an action captioned Gittleson v. Airvana, Inc., et al., C.A. No. 5179-CC. The action is purportedly brought on behalf of a class of stockholders, also alleges that the company's directors breached their fiduciary duties in connection with the proposed merger by, among other things, failing to fully inform themselves of Airvana's market value, maximize shareholder value, obtain the best financial and other terms, and act in the best interest of public stockholders, and seeking to benefit themselves improperly. The complaint further alleges that the non-Airvana defendants aided and abetted the directors' purported breaches. The plaintiff seeks injunctive and other equitable relief, including to enjoin us and Parent from consummating the merger, in addition to fees and costs. Willis Action On Jan. 12, 2010, the company, its directors, Dr. Eyuboglu, Merger Sub, 72 Mobile Investors, LLC, SAC PCG, GSO, Sankaty Advisors, LLC and ZelnickMedia LLC were named as defendants in a third putative class action complaint, captioned Willis v. Airvana, Inc. et al., C.A. No. 5200, filed in the Court of Chancery of the State of Delaware. The action is purportedly brought on behalf of a class of stockholders, alleges that the company's directors breached their fiduciary duties in connection with the proposed merger by, among other things, failing to fully inform themselves of the company's market value, maximize shareholder value, obtain the best financial and other terms, and act in the best interest of public stockholders, and seeking to benefit themselves improperly. The complaint further alleges that the non-Airvana defendants aided and abetted the purported breaches by the directors and Dr. Eyuboglu. The plaintiff seeks declaratory, injunctive and other equitable relief, including to enjoin us and affiliates of Parent from consummating the merger, in addition to unspecified damages, fees and costs. Consolidated Action The three actions have been consolidated into a single proceeding captioned In re Airvana Shareholders Litigation. On Feb. 2, 2010, the plaintiffs submitted a consolidated class action complaint re-alleging the substance of the allegations from the pre-consolidation complaints and further alleging that the January 14 preliminary proxy omitted material information concerning the merger. On Feb. 5, 2010, the plaintiffs filed: (i) a motion to enjoin defendants from consummating the proposed transaction and (ii) a motion for an order directing discovery to proceed on an expedited basis and scheduling a hearing on plaintiffs' motion for a preliminary injunction. On Feb. 14, 2010, the defendants filed an opposition to the plaintiffs' request for emergency relief. On Feb. 15, 2010, the court denied plaintiffs' application for expedited proceedings and declined to schedule a hearing on plaintiffs' motion for a preliminary injunction. Airvana Inc. -- http://www.airvana.com/-- helps operators transform the mobile experience for users worldwide. Airvana, Inc.'s high-performance technology and products, from comprehensive femtocell solutions to core mobile network infrastructure, enable operators to deliver compelling and consistent broadband services to mobile subscribers, wherever they are. Airvana, Inc.'s products are deployed in over 70 commercial networks on six continents. Airvana, Inc. is headquartered in Chelmsford, Mass., USA, with offices worldwide. AIRVANA INC: Wants Two Massachusetts Suits Stayed ------------------------------------------------- Airvana Inc.'s motion to stay the lawsuits filed in Suffolk County of the Commonwealth of Massachusetts remains pending, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Jan. 3, 2010. On Dec. 17, 2009, the company entered into an Agreement and Plan of Merger with 72 Mobile Holdings, LLC (Parent), and 72 Mobile Acquisition Corp. (Merger Sub). Parent is a newly formed entity to be owned, directly and indirectly, by affiliates of S.A.C. Private Capital Group, LLC, GSO Capital Partners LP, Sankaty Advisors LLC and ZelnickMedia. Mountney Action On Dec. 28, 2009, the company, its directors, S.A.C. Private Capital Partners LP (a nonexistent entity), Parent, GSO, Sankaty Advisors, LLC and ZelnickMedia, LLC were named as defendants in a putative class action complaint, captioned Mountney v. Airvana, Inc., et al., C.A. No. 09-5470, filed in the Superior Court, Business Litigation Session, of Suffolk County of the Commonwealth of Massachusetts. The action is purportedly brought on behalf of a class of stockholders, alleges that the company's directors breached their fiduciary duties in connection with the proposed merger by, among other things, failing to fully inform themselves of Airvana's market value, maximize shareholder value, obtain the best financial and other terms, and act in the best interest of public stockholders, and seeking to benefit themselves improperly. The complaint further alleges that we and the non-Airvana defendants aided and abetted the directors' purported breaches. The plaintiff seeks declaratory, injunctive and other equitable relief, including to enjoin us and Parent from consummating the merger, in addition to fees and costs. Short Action On Jan. 6, 2010, the company, its directors, Parent and Merger Sub were named as defendants in a separate putative class action complaint, captioned Short v. Airvana, Inc., et al., C.A. No. 10- 0042, filed in the Superior Court, Business Litigation Session, of Suffolk County of the Commonwealth of Massachusetts. The action is purportedly brought on behalf of a class of stockholders, alleges that the company's directors breached their fiduciary duties in connection with the proposed merger by, among other things, failing to fully inform themselves of the company's market value, maximize shareholder value, obtain the best financial and other terms, and act in the best interest of public stockholders, and seeking to benefit themselves improperly. The complaint further alleges that the company, Parent and Merger Sub aided and abetted the directors' purported breaches. The plaintiff seeks declaratory, injunctive and other equitable relief, including to enjoin us and affiliates of Parent from consummating the merger, in addition to fees and costs. On Jan. 28, 2010, the company and its directors moved to stay the Massachusetts lawsuits in favor of the consolidated Delaware action. On Feb. 8, 2010 the plaintiffs in the Short action served an opposition to the motion to stay. The defendants' reply has yet to be served. Airvana Inc. -- http://www.airvana.com/-- helps operators transform the mobile experience for users worldwide. Airvana, Inc.'s high-performance technology and products, from comprehensive femtocell solutions to core mobile network infrastructure, enable operators to deliver compelling and consistent broadband services to mobile subscribers, wherever they are. Airvana, Inc.'s products are deployed in over 70 commercial networks on six continents. Airvana, Inc. is headquartered in Chelmsford, Mass., USA, with offices worldwide. AKEENA SOLAR: Dismissal Motion Hearing Scheduled for May 24 ----------------------------------------------------------- A May 24, 2010, hearing has been set for Akeena Solar, Inc.'s motion to dismiss a putative class action complaint On May 18, 2009, the company and certain of its officers were named in a putative class action complaint in the U.S. District Court Northern District of California, San Jose Division, alleging violations of the federal securities laws. The suit alleges various omissions and misrepresentations during the period of Dec. 26, 2007 to March 13, 2008 regarding the company's backlog reporting and bank line of credit. The company moved to dismiss the complaint on Feb. 12, 2010, for failure to state a claim for relief. We believe that the claims in this case are entirely without merit and we are defending the case vigorously. However, this matter is in the early stages and we cannot reasonably estimate an amount of potential loss, if any, at this time. Akeena Solar, Inc. -- http://www.akeena.com/-- is one of the nation's leading installers of solar power systems. Akeena Solar's revolutionary Andalay AC solar panels produce safe household AC power and have built-in racking, wiring, grounding and inverters. With 80% fewer parts and 5-25% better performance than ordinary DC panels, Andalay panels are an ideal solution for solar installers, trades workers and do-it-yourselfers. AMERICAN COMMERCIAL: Suits Over Miss. Collision Incident Pending ---------------------------------------------------------------- American Commercial Lines, Inc., and its indirect wholly owned subsidiary, American Commercial Lines LLC, continue to face putative class action lawsuits over a collision incident at Mile Marker 97 of the Mississippi River near New Orleans. ACLInc, ACLLLC, or both, have been named as defendants in three putative class action lawsuits, filed in the U.S. District Court for the Eastern District of Louisiana: -- Austin Sicard, et al., on behalf of themselves and others similarly situated v. Laurin Maritime (America) Inc., Whitefin Shipping Co. Limited, D.R.D. Towing Company, LLC, American Commercial Lines, Inc. and the New Orleans-Baton Rouge Steamship Pilots Association, Case No. 08-4012, filed on July 24, 2008; -- Stephen Marshall Gabarick and Bernard Attridge, on behalf of themselves and others similarly situated v. Laurin Maritime (America) Inc., Whitefin Shipping Co. Limited, D.R.D. Towing Company, LLC, American Commercial Lines, Inc. and the New Orleans-Baton Rouge Steamship Pilots Association, Case No. 08-4007, filed on July 24, 2008; and -- Alvin McBride, on behalf of himself and all others similarly situated v. Laurin Maritime (America) Inc.; Whitefin Shipping Co. Ltd.; D.R.D. Towing Co. LLC; American Commercial Lines Inc.; The New Orleans-Baton Rouge Steamship Pilots Association, Case No. 09-cv-04494 B, filed on July 24, 2009. The claims in the Class Action Lawsuits stem from the incident on July 23, 2008, involving one of ACLLLC's tank barges that was being towed by DRD Towing Company L.L.C., an independent towing contractor. The tank barge was involved in a collision with the motor vessel Tintomara, operated by Laurin Maritime, at Mile Marker 97 of the Mississippi River in the New Orleans area. The tank barge was carrying approximately 9,900 barrels of #6 oil, of which approximately two-thirds was released. The tank barge was damaged in the collision and partially sunk. There was no damage to the towboat. The Tintomara incurred minor damage. The Class Action Lawsuits include various allegations of adverse health and psychological damages, disruption of business operations, destruction and loss of use of natural resources, and seek unspecified economic, compensatory and punitive damages for claims of negligence, trespass and nuisance. The Class Action Lawsuits are stayed pending the outcome of the Limitation Actions No further updates were reported in the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. American Commercial Lines Inc. -- http:/www.aclines.com/ -- is an integrated marine transportation and service company operating in the United States Jones Act trades, with approximately $850 million in revenues and approximately 2,570 employees as of Dec. 31, 2009. AMERICAN DENTAL: Final Approval of Settlement Agreement Pending --------------------------------------------------------------- The final approval of a settlement agreement resolving a consolidated amended complaint against American Dental Partners, Inc., remains pending, according to the company's March 12, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On or about Jan. 25, 2008, Feb. 4, 2008, Feb. 12, 2008 and March 13, 2008, the company and certain of its executive officers were named as defendants in four actions respectively entitled: (1) Oliphant v. American Dental Partners, Inc. et. al., civil action number 1:08-CV-10119-RGS; (2) Downey v. American Dental Partners, Inc. et. al., civil action number 1:08-CV-10169-RGS; (3) Johnston v. American Dental Partners, Inc. et. al., civil action number 1:08-CA-10230-RGS; and (4) Monihan v. American Dental Partners, Inc., et. al., civil action number 1:08-CV-10410-RGS. The actions were all filed in the U.S. District Court for the District of Massachusetts. The actions each purport to be brought on behalf of a class of purchasers of the company's common stock during the period Aug. 10, 2005, through Dec. 13, 2007. The complaints allege that the company and certain of its executive officers violated the federal securities laws, in particular, Section 10(b) of the Securities Exchange Act, 15 U.S.C. Sections 78, and Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5, by making allegedly material misrepresentations and failing to disclose allegedly material facts concerning the lawsuit by Park Dental Group, or PDG, against PDHC, Ltd., titled PDG, P.A. v. PDHC, Ltd., Civ. A. Nos. 27-CV-06-2500 and 27-CV-07-13030, filed in the Fourth Judicial District of Hennepin County, Minnesota on Feb. 3, 2006, and conduct at issue in that action during the class period, which had the effect of artificially inflating the market price of our stock. Each complaint also asserts control person claims under Section 20(a) of the Securities Exchange Act against the executive officers named as defendants. Each plaintiff seeks class certification, an unspecified amount of money damages, costs and attorneys' fees, and any equitable, injunctive or other relief the Court deems proper. On or about May 29, 2008, the Court appointed the Operating Engineers Pension Fund as lead plaintiff and its counsel, the law firm of Grant & Eisenhofer P.A., as lead counsel. The Court also ordered that the four pending actions be consolidated under the caption In re American Dental Partners, Inc. Securities Litigation, civil action number 1:08-CV-10119- RGS. On or about June 5, 2008, one of the original named plaintiffs, W.K. Downey, agreed to enter an order that dismissed his individual claims with prejudice. On Sept. 29, 2008, the Operating Engineers Pension Fund filed with the Court a consolidated amended complaint that alleges a new class period of Feb. 25, 2004, through Dec. 13, 2007, and asserts violations of the federal securities laws. On Dec. 5, 2008, the company and the other defendants filed a motion to dismiss the action. The Court denied the motion on April 2, 2009. On Dec. 15, 2009, the company, the other defendants and the lead plaintiff entered a Class Action Settlement Agreement to settle and release all remaining claims. The settlement agreement was filed on Dec. 15, 2009, and is subject to the Court's final approval. Pursuant to the terms of the settlement agreement, the insurance company that issued the company Directors, Officers and Corporate Liability Insurance Policy has paid $6,000,000 into a settlement fund that will be distributed in accordance with the Court's order if the Court grants its final approval. The Court preliminarily approved the settlement agreement on Dec. 23, 2009 and has scheduled a fairness hearing for March 18, 2010. On or about Feb. 22 and 23, 2010, Special Situations Fund III L.P., Special Situations Cayman Fund, L.P., and Special Situations Fund III Q.P., L.P. excluded themselves from the pending settlement and filed an opt-out complaint in the District of Massachusetts, against us and the same executive officers named as defendants in the prior actions, entitled Special Situations Fund III, L.P. et al. v. American Dental Partners, Inc. et al., civil action number 1:10-CV-10331. The complaint asserts that the plaintiffs purchased over 500,000 shares of our common stock during the class period, alleges the same violations of the federal securities laws, and claims that certain of the alleged misrepresentations also violated Section 18 of the Securities Exchange Act, 15 U.S.C. Section 78(r). The plaintiffs seek an unspecified amount of money damages, costs and attorneys' fees, and any other relief the Court deems proper. The company's time within which to respond has not yet elapsed. American Dental Partners, Inc. -- http://www.amdpi.com/-- is one of the nation's leading business partners to dental group practices. The company is affiliated with 27 dental group practices, which have 268 dental facilities with approximately 2,259 operatories located in 19 states. AMICAS INC: Awaits Dismissal Order of Consolidated Suit ------------------------------------------------------- AMICAS, Inc., awaits a ruling from the court dismissing a consolidated stockholder class action after it terminated its planned merger with Thoma Bravo, LLC, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Progress Associates Action On Jan. 14, 2010, a purported stockholder class action complaint was filed in the Superior Court of Suffolk County, Massachusetts in connection with the announcement of the proposed merger of AMICAS with a subsidiary of Thoma Bravo, LLC, entitled Progress Associates, on behalf of itself and all others similarly situated v. AMICAS, Inc., et al., Civil Action No. 10-0174. The complaint names as defendants the company and its directors, as well as Thoma Bravo. The plaintiff purports to represent similarly situated stockholders of AMICAS. The complaint alleges that the company and its directors breached fiduciary duties owed to its stockholders in connection with the Thoma Bravo Merger. Specifically, the complaint alleges that the process used was unfair because the company's directors supposedly failed to solicit strategic buyers and deterred potential buyers other than Thoma Bravo; that the per share price of the proposed Thoma Bravo Merger is inadequate; that the company's directors had a conflict of interest due to the accelerated vesting of their options and payments thereon and rights to indemnification; and that the proxy statement was materially misleading and/or incomplete because it allegedly failed to disclose the consideration that each director would receive from vesting of his options, the amount of severance to be received by Dr. Kahane, the company's Chief Executive Officer, the amount of the fee paid to Raymond James & Associates, Inc., the company's financial advisor, the number of potential acquirers that were financial and those that were strategic, whether companies not contacted by Raymond James expressed an interest in the company, and the substance of the discussions between Raymond James and Thoma Bravo between Oct. 8, 2009 and Oct. 18, 2009. The complaint further alleges that Thoma Bravo aided and abetted the alleged breach of fiduciary duties by the Company and its directors. The plaintiff seeks certification of a class, damages, costs and fees. Mannhardt Action On Feb. 1, 2010, a follow-on stockholder class action complaint was filed in the same Court entitled Lawrence Mannhardt, on behalf of himself and all others similarly situated v. AMICAS, Inc., et al., Civil Action 0-0412. The suit makes substantially the same allegations and seeks the same relief as the suit filed by Progress Associates. On Feb. 12, 2010, the parties appeared before the Court for a hearing on the plaintiffs' motion for a preliminary injunction seeking to postpone the special meeting of stockholders scheduled for Feb. 19, 2010. Also on Feb. 12, 2010, the Court entered an order consolidating the two purported stockholder class actions. On Feb. 16, 2010, Merge Healthcare, Inc., filed an intervenor complaint. On Feb. 17, 2010, Merge filed a motion for a preliminary injunction. The parties appeared before the Court on Feb. 17, 2010. On Feb. 18, 2010, the Court ordered that the special meeting of stockholders scheduled to be held on Feb. 19, 2010 be adjourned pending a full hearing on the merits of the plaintiff's allegation concerning the adequacy of the company's disclosures in its proxy statement. On Feb. 22, 2010, the company filed an amendment and supplement to its definitive proxy of Jan. 19, 2010. On March 5, 2010, the parties appeared before the Court for a status conference during which the company informed the Court that the company had terminated the Thoma Bravo Merger and entered into the Merge Merger Agreement. In light of these developments, the Court indicated that it would prepare an order dissolving the preliminary injunction and dismissing the plaintiffs' claims as moot. The Court has yet to issue this order. On March 9, 2010 Merge filed a Notice of Dismissal, without prejudice, with respect to its complaint. The Court has scheduled a status conference for March 25, 2010, to address the handling of impounded documents and any application for attorneys fees submitted by plaintiffs. Although the company intends to oppose any fee application, the company cannot predict the amount of fees, if any, the Court may award to plaintiffs. AMICAS, Inc. -- http://www.amicas.com/-- is a leading independent provider of imaging IT solutions. AMICAS offers the industry's most comprehensive suite of image and information management solutions - from radiology PACS to cardiology PACS, from radiology information systems to cardiovascular information systems, from revenue cycle management solutions to enterprise content management tools designed to power the imaging component of the electronic medical record. AMICAS provides a complete, end-to-end solution for radiology practices, imaging centers, and ambulatory care facilities. Hospitals and integrated delivery networks are provided with a comprehensive image management solution for cardiology and radiology that supports EMR strategies to enhance clinical, operational, and administrative functions. AXA EQUITABLE: Faces Second Amended Complaint in California ----------------------------------------------------------- AXA Equitable Life Insurance Co. faces a second amended complaint in the U.S. District Court for the Central District of California, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. A putative class action entitled Eagan et al. v. AXA Equitable Life Insurance Company was filed in the U.S. District Court for the Central District of California in December 2006 against AXA Equitable as plan sponsor and fiduciary for an ERISA retiree health plan. The action was brought by two plan participants on behalf of all past and present employees and agents who received retiree medical benefits from AXA Equitable at any time after Jan. 1, 2004, or who will receive such benefits in 2006 or later, excluding certain retired agents. Plaintiffs allege that AXA Equitable's adoption of a revised version of its retiree health plan in 1993 was not authorized or effective. Plaintiffs contend that AXA Equitable has therefore breached the retiree health plan by imposing the terms of the 1993 Plan on plaintiffs and other retirees. Plaintiffs allege that, even if the 1993 Plan is controlling, AXA Equitable has violated the terms of the retiree health plan by imposing health care costs and coverages on plaintiffs and other retirees that are not authorized under the 1993 Plan. Plaintiffs also allege that AXA Equitable breached fiduciary duties owed to plaintiffs and retirees by allegedly misrepresenting and failing to disclose information to them. The plaintiffs seek compensatory damages, restitution and injunctive relief prohibiting AXA Equitable from violating the terms of the applicable plan, together with interest and attorneys' fees. In March 2007, AXA Equitable filed a motion to dismiss. In July 2007, the plaintiffs filed an amended complaint that: (i) redefined the scope of the class to now include all retired employee and independent contractor agents formerly employed by AXA Equitable who received medical benefits after Dec. 1, 2000, or who will receive such benefits in the future, excluding certain retired agents, and (ii) eliminated the claim based on a breach of fiduciary duty and certain claims related to health care costs. In September 2007, AXA Equitable filed its answer to the amended complaint. In April 2008, the plaintiffs filed a motion for class certification. In January 2009, AXA Equitable filed a motion to dismiss the complaint for lack of subject matter jurisdiction, which was denied by the Court in February 2009. In March 2009, AXA Equitable stipulated to class certification relating to the imposition of a "cap" or "company contribution limit" on the amount it would contribute to retiree's health care costs. In June 2009, AXA Equitable filed an opposition to class certification of the claim in which plaintiffs allege that AXA Equitable improperly replaced certain health care options with purportedly inferior options. In December 2009, the Court denied the health care options class certification, allowing plaintiffs to replead. In January 2010, the plaintiffs filed a second amended complaint. The trial date is currently scheduled for June 2010. AXA Equitable Life Insurance Co. -- http://www.axa-equitable.com/ -- is the US life insurance and annuities underwriting arm of its globe-spanning ultimate parent, AXA. The company, together with subsidiary AXA Life and Annuity, has more than 2.3 million life insurance policies in force, and is licensed throughout the US and Puerto Rico. Policies are sold through affiliates AXA Advisors and AXA Network, as well as by independent brokers and financial institutions via wholesale brokerage unit AXA Distributors. AXA Equitable, a subsidiary of AXA Financial, has about $540 billion under management, and offers investment products and services through its majority stake in Alliance Bernstein. CASEY'S GENERAL: Discovery in Motor Fuel Practices Suit Ongoing --------------------------------------------------------------- Discovery is ongoing in the consolidated Motor Fuel Temperature Sales Practices Litigation against Casey's General Stores, Inc., in the U.S. District Court for the District of Kansas in Kansas City. The company is named as a defendant in four lawsuits ("hot fuel" cases) brought in the federal courts in Kansas and Missouri against a variety of gasoline retailers. The complaints generally allege that the company, along with numerous other retailers, has misrepresented gasoline volumes dispensed at its pumps by failing to compensate for expansion that occurs when fuel is sold at temperatures above 60-degrees Fahrenheit. Fuel is measured at 60-degrees Fahrenheit in wholesale purchase transactions and computation of motor fuel taxes in Kansas and Missouri. The complaints all seek certification as class actions on behalf of gasoline consumers within those two states, and one of the complaints also seeks certification for a class consisting of gasoline consumers in all states. The actions generally seek recovery for alleged violations of state consumer protection or unfair merchandising practices statutes, negligent and fraudulent misrepresentation, unjust enrichment, civil conspiracy, and violation of the duty of good faith and fair dealing; several seek injunctive relief and punitive damages. These actions are among a total of 45 similar lawsuits now pending in 28 jurisdictions, including 25 states, Guam, the District of Columbia, and the Virgin Islands, against a wide range of defendants that produce, refine, distribute, and/or market gasoline products in the United States. On June 18, 2007, the Federal Judicial Panel on Multidistrict Litigation ordered that all of the pending hot fuel cases (officially, the "Motor Fuel Temperature Sales Practices Litigation") be transferred to the U.S. District Court for the District of Kansas in Kansas City, Kansas, for coordinated or consolidated pretrial proceedings, including rulings on discovery matters, various pretrial motions, and class certification. Discovery efforts by both sides are being pursued No further updates were reported in the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. Casey's General Stores, Inc. -- http://www.caseys.com/-- operates convenience stores under the name Casey's General Store in nine Midwest states, primarily Iowa, Missouri and Illinois. CBC RESTAURANT: Sued for Labor Code Violations ---------------------------------------------- Noelle Batiste, on behalf of himself and others similarly situated v. CBC Restaurant Corp., Case No. BC435948 (Calif. Super. Ct., Los Angeles Cty. Apr. 16, 2010), accuses the operator of the Corner Bakery Cafe restaurants in California of failing to pay for all hours worked, failing to pay overtime wages, failing to provide meal and rest breaks, failing to indemnify employees for all necessary expenditures incurred by the employees in the discharge of their duties, forfeiture of vacation pay, secretly paying lower wages than required by statute, and failure to provide accurate wage statements, in violation of the California Labor Code and the Bus. & Prof. Code. Noelle Batiste was employed by CBC as a shift supervisor. The Plaintiff is represented by: Shaun Setareh, Esq. LAW OFFICES OF SHAUN SETAREH 9454 Wilshire Blvd., Penthouse Suite 3 Beverly Hills, CA 90212 Telephone: (310) 888-7771 E-mail: setarehlaw@sbcglobal.net - and - David Spivak, Esq. THE SPIVAK LAW FIRM 9454 Wilshire Blvd., Suite 303 Beverly Hills, CA 90212 Telephone: (310) 499-4730 E-mail: david@spivaklaw.com - and - Louis Benowitz, Esq. LAW OFFICES OF LOUIS BENOWITZ 9454 Wilshire Blvd., Penthouse Suite 34 Telephone: (310) 888-7771 E-mail: louis@benowitzlaw.com CELERA CORP: $11M Settlement Reached in Stock Purchasers Suit ------------------------------------------------------------- The parties in consolidated class-action complaint against Applied Biosystems, Inc., nka Life Technologies, captioned In re PE Corporation Securities Litigation, Master File No. 3:00-CV- 705, entered into a stipulation and agreement of settlement which provides fpr a settlement in the aggregate amount of $11 million, according to Celera Corp.'s March 19, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. Applied Biosystems and some of its officers are defendants in a lawsuit brought on behalf of purchasers of Celera stock in its follow-on public offering of Celera stock completed on March 6, 2000. In the offering, Applied Biosystems sold an aggregate of approximately 4.4 million shares of Celera stock at a public offering price of $225 per share. The lawsuit, which was commenced with the filing of several complaints in April and May 2000, is pending in the U.S. District Court for the District of Connecticut, and an amended consolidated complaint was filed on Aug. 21, 2001. The consolidated complaint generally alleges that the prospectus used in connection with the offering was inaccurate or misleading because it failed to adequately disclose the alleged opposition of the Human Genome Project and two of its supporters, the governments of the U.S. and the U.K., to providing patent protection to Celera's genomic-based products. Although neither Celera nor Applied Biosystems ever sought, or intended to seek, a patent on the basic human genome sequence data, the complaint also alleges that Applied Biosystems did not adequately disclose the risk that it would not be able to patent this data. The consolidated complaint seeks unspecified monetary damages, rescission, costs and expenses, and other relief as the court deems proper. On March 31, 2005, the court certified the case as a class action. In November 2008, the U.S. District Court for the District of Connecticut issued an order to the parties to show cause why the case should not be dismissed. A hearing on this matter was held in April 2009 at which the Court directed the parties to explore a potential settlement of the matter. On March 16, 2010, the parties entered into a Stipulation and Agreement of Settlement. The Settlement Agreement provides for a settlement in the aggregate amount of $11,000,000, which amount will be funded entirely by Life Technologies Corporation's (as successor to PE Corporation) insurance carrier. The settlement will become effective upon the preliminary approval of the U.S. District Court for the District of Connecticut and thereafter remains subject to the final approval of the Court at a fairness hearing. The settlement may be terminated at the election of the defendants in the event that a certain percentage of potential class members timely and validly request exclusion from the settlement. Under the terms of the company's separation agreement with Life Technologies, the company agreed to indemnify Life Technologies for liabilities resulting from the class action lawsuit described above to the extent not covered by Life Technologies' insurance. On March 16, 2010, the parties to In re PE Corporation Securities Litigation, Master File No. 3:00-CV-705, a class action lawsuit brought on behalf of purchasers of PE Corporation Celera Genomics Group tracking stock in a follow-on public offering conducted in February 2000, entered into a Stipulation and Agreement of Settlement (the "Settlement Agreement"). The Settlement Agreement provides for a settlement in the aggregate amount of $11,000,000, which amount will be funded entirely by Life Technologies Corporation's (as successor to PE Corporation) insurance carrier. The settlement will become effective upon the preliminary approval of the U.S. District Court for the District of Connecticut (the "Court") and thereafter remains subject to the final approval of the Court at a fairness hearing. The settlement may be terminated at the election of the defendants in the event that a certain percentage of potential class members timely and validly request exclusion from the settlement. Under the terms of our separation agreement with Life Technologies, we agreed to indemnify Life Technologies for liabilities resulting from the class action lawsuit described above to the extent not covered by Life Technologies' insurance. Celera Corp. -- http://www.celera.com/-- is a healthcare business focusing on the integration of genetic testing into routine clinical care through a combination of products and services incorporating proprietary discoveries. Berkeley HeartLab, a subsidiary of Celera, offers services to predict cardiovascular disease risk and improve patient management. Celera also commercializes a wide range of molecular diagnostic products through Abbott and has licensed other relevant diagnostic technologies developed to provide personalized disease management in cancer. CHEMTURA CORP: Asks Bankr. Ct. to Approve Shareholder Settlement ---------------------------------------------------------------- Santosh Nadgir at Reuters reports that U.S. chemicals maker Chemtura Corp (CEMJQ.PK) is seeking approval in In re Chemtura Corporation, Case No. 09-11233 (Bankr. S.D.N.Y.), to settle a 2004 securities class action lawsuit for about $11.4 million. The lawsuit, filed in a Connecticut court, was led by Pierre Brull and William Ashe, who represented former shareholders of Witco Corp. In 1999 Witco merged with Crompton & Knowles Corp, which is now called Chemtura. The lawsuit alleged that Witco shareholders entered into a deal with Chemtura based on false and misleading financial statements and that Chemtura had breached its fiduciary duty to Witco's shareholders. The suit alleged that during the period between Oct. 26, 1998, and Oct. 8, 2002, Chemtura issued materially false and misleading statements concerning its reported financial results, competition, pricing, sales and margins. In court papers, Chemtura said the settlement amount will be paid solely from insurance and will not prejudice any of the company's stakeholders. Chemtura's U.S. operations, which included 26 affiliates, filed for bankruptcy protection last March because of a significant decrease in liquidity caused by sharp declines in order volumes. DEL MONTE: Defends Suit by Moline and Lowe in California -------------------------------------------------------- Del Monte Foods Company defends a suit alleging violations of California's False Advertising Act, among others, according to the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. On Oct. 13, 2009, Kara Moline and Debra Lowe filed a class action complaint against the company in San Francisco Superior Court, alleging violations of California's False Advertising Act, Unfair Competition Law, and Consumer Legal Remedies Act. Specifically, the plaintiffs allege that the company engaged in false and misleading advertising in the labeling of Nature's Recipe Farm Stand Selects dog food. The plaintiffs seek injunctive relief, disgorgement of profits in an undisclosed amount, and attorneys' fees. Additionally, the plaintiffs are seeking class certification. Del Monte Foods Company -- http://www.delmonte.com/-- is one of the country's largest and most well-known producers, distributors and marketers of premium quality, branded food and pet products for the U.S. retail market, generating approximately $3.6 billion in net sales in fiscal 2009. With a powerful portfolio of brands including Del Monte(R), S&W(R), Contadina(R), College Inn(R), Meow Mix(R), Kibbles 'n Bits(R), 9Lives(R), Milk-Bone(R), Pup- Peroni(R), Meaty Bone(R), Snausages(R) and Pounce(R), Del Monte products are found in eight out of ten U.S. households. The company also produces, distributes and markets private label food and pet products. DEL MONTE: Appeals to Denied MDL Settlement Objections Pending -------------------------------------------------------------- Appeals filed by four class members to their denied objections on the court approved settlement in the matter entitled In re Pet Food Products Liability Litigation, MDL No. 1850, which names Del Monte Foods Co. as one of the defendants, are pending. Beginning with the pet food recall announced by Menu Foods, Inc., in March 2007, many major pet food manufacturers, including Del Monte, announced recalls of their own select products. The company currently believes there are over 90 purported class action suits relating to these pet food recalls. The company is currently a defendant in these specific cases, related to its pet food and pet snack recall: -- "Carver v. Del Monte," filed on April 4, 2007, in the U.S. District Court for the Eastern District of California; -- "Ford v. Del Monte," filed on April 7, 2007, in the U.S. District Court for the Southern District of California; -- "Hart v. Del Monte," filed on April 10, 2007, before the state court in Los Angeles, California; -- "Schwinger v. Del Monte," filed on May 15, 2007, in the U.S. District Court for the Western District of Missouri; and -- "Tompkins v. Del Monte," filed on July 13, 2007, in the U.S. District Court for the District of Colorado. The named plaintiffs in these cases allege that their pets suffered injury or death as a result of ingesting the company's and the other defendants' allegedly contaminated pet food and pet snack products. By order dated June 28, 2007, the Carver, Ford, Hart, Schwinger, and Tompkins cases were transferred to the U.S. District Court for the District of New Jersey and consolidated with other purported pet food class action suits under the federal rules for multi-district litigation (In re Pet Food Products Liability Litigation, MDL No. 1850). The plaintiffs and the defendants in the multi-district litigation cases, including the five consolidated cases in which the company is a defendant, have tentatively agreed to a settlement deal to resolve their dispute. On May 30, 2008, the Court granted preliminary approval to the settlement. Pursuant to the Court's order, notice of the settlement was disseminated to the public by mail and publication beginning June 16, 2008. A hearing on a final settlement approval and class certification has been scheduled for Oct. 14, 2008. If approved, the class will be certified and the total settlement will aggregate $24 million. The portion of the company's contribution to this settlement, if approved, would be $0.25 million. On Nov. 19, 2008, the Court entered orders approving the settlement, certifying the class and dismissing the complaints against the defendants, including the company. The total settlement was $24.0 million. The portion of the company's contribution to this settlement was $250,000, net of insurance recovery. Four class members have filed objections to the settlement, which objections have been denied by the Court. On Dec. 3, 2008, and Dec. 12, 2008, these class members filed Notices of Appeal. No updates were reported in the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. Del Monte Foods Company -- http://www.delmonte.com/-- is one of the country's largest and most well-known producers, distributors and marketers of premium quality, branded food and pet products for the U.S. retail market, generating approximately $3.6 billion in net sales in fiscal 2009. With a powerful portfolio of brands including Del Monte(R), S&W(R), Contadina(R), College Inn(R), Meow Mix(R), Kibbles 'n Bits(R), 9Lives(R), Milk-Bone(R), Pup- Peroni(R), Meaty Bone(R), Snausages(R) and Pounce(R), Del Monte products are found in eight out of ten U.S. households. The company also produces, distributes and markets private label food and pet products. DEL MONTE: Appellate Court Upholds Class Certification Denial ------------------------------------------------------------- The Court of Appeals has upheld the ruling denying class certification in a purported class-action lawsuit over Del Monte Foods Co.'s and other defendants' recalled pet foods and snacks, according to the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. The lawsuit Picus v. Del Monte, was filed on April 30, 2007, and generally alleges that the plaintiffs' pets suffered injury or death as a result of ingesting the company's and other defendants' contaminated pet food and pet snack products. It also contains allegations of false and misleading advertising by the company. The plaintiffs in the matter are seeking class certification as well as unspecified damages and injunctive relief against further distribution of the allegedly defective products. On Oct. 12, 2007, the company filed a motion to dismiss the Picus case. The state court granted in part and denied in part the dismissal. On Dec. 14, 2007, other defendants in the case filed a motion to deny class certification. On March 16, 2009, the Court granted the motion to deny class certification. On March 25, 2009, the plaintiffs filed an appeal of the Court's decision. On June 30, 2009, the Court of Appeals denied plaintiffs' appeal. Del Monte Foods Company -- http://www.delmonte.com/-- is one of the country's largest and most well-known producers, distributors and marketers of premium quality, branded food and pet products for the U.S. retail market, generating approximately $3.6 billion in net sales in fiscal 2009. With a powerful portfolio of brands including Del Monte(R), S&W(R), Contadina(R), College Inn(R), Meow Mix(R), Kibbles 'n Bits(R), 9Lives(R), Milk-Bone(R), Pup- Peroni(R), Meaty Bone(R), Snausages(R) and Pounce(R), Del Monte products are found in eight out of ten U.S. households. The company also produces, distributes and markets private label food and pet products. DYADIC INTERNATIONAL Settles Shareholder Suit for $4.8 Million -------------------------------------------------------------- The South Florida Business Journal reports that Dyadic International agreed to a $4.8 million settlement in a shareholder class action lawsuit. The Jupiter, Fla.-based producer of industrial enzymes and developmental biotechnology company (Pink Sheets: DYAI) said the money would come from both the company and its insurers. Dyadic said it fully reserved for its share of the settlement during the fourth quarter and should not encounter any more expenses from it. The lawsuit was brought in 2007 on behalf of shareholders who bought the company's stock during the prior year. It accused the company of misstating the financial results of its Chinese subsidiary to artificially inflate its stock value. The Dyadic board dismissed founder and CEO Mark Emalfarb shortly after the accounting scandal surfaced. After winning a court battle, Emalfarb regained his executive seat in 2008. The following year, Dyadic settled a Securities and Exchange Commission inquiry into the accounting scandal. "While Dyadic and its current and former officers and directors continue to firmly deny all allegations of wrongdoing, we also believe it is in the best interests of Dyadic and its stockholders to eliminate the continuing expense and disruption of litigation to our business and put this matter behind us," Emalfarb said in a news release. "Settling this lawsuit removes a significant obstacle for Dyadic and allows us to continue the momentum we have gained over the past eighteen months." GENERAL NUTRITION: Court Dismisses "Jackson" Consumer Suit ---------------------------------------------------------- The U.S. District Court, Northern District of California has dismissed a consumer class action filed by Grady Jackson, against General Nutrition Centers, Inc., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Nov. 10, 2008, Grady Jackson, on behalf of himself and all others similarly situated, filed a complaint against General Nutrition Corporation and the company in the Superior Court of the State of California for the County of Alameda. On Dec. 15, 2008, the matter was removed to the U.S. District Court, Northern District of California. This consumer class and representative action brought under California Unfair Competition and False Advertising Law asserts, among other things, that the non-GNC product "Nikki Haskell's Star Caps," contained a prescription diuretic ingredient that was not disclosed on the label. On March 31, 2009, GNC filed a motion to dismiss. By order dated June 10, 2009, the court dismissed three of the seven counts asserted by plaintiffs. In September 2009, a settlement was reached, contemplating payment of an immaterial amount of attorneys' fees to putative class counsel by GNC, and distribution of GNC discount coupons to certain putative class members. The court signed the stipulation of dismissal on Oct. 27, 2009. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a leading global specialty retailer of nutritional products including vitamin, mineral, herbal and other specialty supplements and sports nutrition, diet and energy products. General Nutrition Centers, Inc. is an indirect wholly owned subsidiary of GNC Parent LLC, which was acquired by affiliates of Ares Management LLC and Ontario Teachers' Pension Plan Board through a merger on March 16, 2007. As of Dec. 31, 2009, GNC has more than 6,900 locations, of which more than 5,400 retail locations are in the United States (including 909 franchise and 1,869 Rite Aid franchise store-within-a-store locations) and franchise operations in 47 countries. GENERAL NUTRITION: Faces Suit Over Hydroxycut-Branded Products -------------------------------------------------------------- General Nutrition Centers, Inc., faces consolidated suit relating to its Hydroxycut-branded products, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. GNC has been named in 23 lawsuits related to Hydroxycut: 17 individual, largely personal injury claims and 6 putative class actions, generally inclusive of claims of consumer fraud, misrepresentation, strict liability, and breach of warranty. The six putative class actions generally include claims of consumer fraud, misrepresentation, strict liability, and breach of warranty: (1) Andrew Dremak, et al. v. Iovate Health Sciences Group, Inc., et al., U.S. District Court, Southern District of California, 09CV1088 (filed May 19, 2009); (2) Enjoli Pennier, et al. v. Iovate Health Sciences, et al., U.S. District Court, Eastern District of Louisiana, 09CV3533 (filed May 13, 2009); (3) Alejandro M. Jimenez, et al. v. Iovate Health Sciences, Inc., et al., U.S. District Court, Eastern District of California, 09CV1473 (filed May 28, 2009); (4) Amy Baker, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama, 09CV872 (filed May 4, 2009); (5) Kyle Davis and Sara Carreon, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama, 09CV896 (filed May 7, 2009); and (6) Lenny Charles Gunn, Tonya Rhoden, and Nicholas Atelevich, et al., v. Iovate Health Sciences Group, Inc., et al., U.S. District Court, Southern District of California, 09CV2337 (filed Oct. 24, 2009). By court order dated Oct. 6, 2009, the United States Judicial Panel on Multidistrict Litigation consolidated pretrial proceedings of many of the pending actions in the Southern District of California (In re: Hydroxycut Marketing and Sales Practices Litigation, MDL No. 2087). Any liabilities that may arise from these matters are not probable or reasonably estimable at this time. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a leading global specialty retailer of nutritional products including vitamin, mineral, herbal and other specialty supplements and sports nutrition, diet and energy products. General Nutrition Centers, Inc. is an indirect wholly owned subsidiary of GNC Parent LLC, which was acquired by affiliates of Ares Management LLC and Ontario Teachers' Pension Plan Board through a merger on March 16, 2007. As of Dec. 31, 2009, GNC has more than 6,900 locations, of which more than 5,400 retail locations are in the United States (including 909 franchise and 1,869 Rite Aid franchise store-within-a-store locations) and franchise operations in 47 countries. GENERAL NUTRITION: Judgment in Franchisee Suit Satisfied in Full ---------------------------------------------------------------- Plaintiff's judgment in a class action against General Nutrition Centers, Inc., has been satisfied in full, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Nov. 7, 2006, Abdul Ahussain, on behalf of himself and all others similarly situated, sued GNC Franchising, LLC and General Nutrition Corporation in the U.S. District Court, Central District of California, Western Division. Plaintiff alleged that GNC engages in unfair business practices designed to earn a profit at its franchisees' expense, among other things, in violation of California Business & Professions Code, Sections 17200 et seq. These alleged practices include: (1) requiring its franchises to carry slow moving products, which cannot be returned to GNC after expiration, with the franchisee bearing the loss; (2) requiring franchised stores to purchase new or experimental products, effectively forcing the franchisees to provide free market research; (3) using the company's Gold Card program to collect information on franchised store customers and then soliciting business from such customers; (4) underselling its franchised stores by selling products through the GNC website at prices below or close to the wholesale price, thereby forcing franchises to sell the same products at a loss; and (5) manipulating prices at which franchised stores can purchase products from third-party suppliers, so as to maintain GNC's favored position as a product wholesaler. Plaintiffs are seeking damages in an unspecified amount and equitable and injunctive relief. On March 19, 2008, the court certified a class as to only plaintiffs' claim under the CBPC. The class consists of all persons or entities who are or were GNC franchisees in the State of California from Nov. 13, 2002 to the date of adjudication. Plaintiff's individual claims were settled and dismissed. On March 18, 2009, the company's motion for summary judgment was granted as to the CBPC class claim. In April 2009, GNC filed a motion for court costs and attorneys' fees and the court ordered the plaintiffs to pay approximately $0.4 million to GNC for its fees and costs. Plaintiff's judgment was satisfied in full by Oct. 6, 2009, and a Satisfaction of Judgment was filed with the court on that date. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a leading global specialty retailer of nutritional products including vitamin, mineral, herbal and other specialty supplements and sports nutrition, diet and energy products. General Nutrition Centers, Inc. is an indirect wholly owned subsidiary of GNC Parent LLC, which was acquired by affiliates of Ares Management LLC and Ontario Teachers' Pension Plan Board through a merger on March 16, 2007. As of Dec. 31, 2009, GNC has more than 6,900 locations, of which more than 5,400 retail locations are in the United States (including 909 franchise and 1,869 Rite Aid franchise store-within-a-store locations) and franchise operations in 47 countries. GENERAL NUTRITION: Second Circuit Reverses Dismissal of 4 Suits --------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit, has reversed the dismissal of four cases against General Nutrition Centers, Inc., relating to the sale of "andro products," according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. The company is currently defending six lawsuits relating to the sale by GNC of certain nutritional products alleged to contain the ingredients commonly known as Androstenedione, Androstenediol, Norandrostenedione, and Norandrostenediol. Four of these lawsuits were filed in New York, New Jersey, Pennsylvania, and Florida. The most recent case was filed in Illinois. In each of the six cases, plaintiffs sought, or are seeking, to certify a class and obtain damages on behalf of the class representatives and all those similarly-situated who purchased from us certain nutritional supplements alleged to contain one or more Andro Products. In April 2006, the company filed pleadings seeking to remove the then-pending Andro Actions to the respective federal district courts for the districts in which the respective Andro Actions were pending. At the same time, the company filed motions seeking to transfer the then-pending Andro Actions to the U.S. District Court, Southern District of New York based on "related to" bankruptcy jurisdiction, as one of the manufacturers supplying it with Andro Products, and from whom it sought indemnity, MuscleTech Research and Development, Inc., had filed for bankruptcy. The company was successful in removing the New Jersey, New York, Pennsylvania, and Florida Andro Actions to federal court and transferring these actions to the U.S. District Court, Southern District of New York based on bankruptcy jurisdiction. Following the conclusion of the MuscleTech bankruptcy case, in September 2007, plaintiffs filed a stipulation dismissing all claims related to the sale of MuscleTech products in the four cases then-pending in the U.S. District Court, Southern District of New York (New Jersey, New York, Pennsylvania, and Florida). Additionally, plaintiffs filed motions with the Court to remand those actions to their respective state courts, asserting that the federal court had been divested of jurisdiction because the MuscleTech bankruptcy action was no longer pending. That motion was never ruled upon and has been rendered moot by the disposition of the case. On June 4, 2008, the U.S. District Court, Southern District of New York (on its own motion) set a hearing for the purpose of hearing argument as to why the New Jersey, New York, Pennsylvania, and Florida cases should not be dismissed for failure to prosecute in conformity to the Court's Case Management Order. Following the hearing, the Court advised that all four cases would be dismissed with prejudice and issued an order to that effect. In August 2008, plaintiffs appealed the dismissal of the four cases to U.S. Court of Appeals for the Second Circuit, and oral argument was heard on Oct. 14, 2009. The Second Circuit reversed the dismissal and remanded the case to the U.S. District Court, Southern District of New York. On October 3, 2008, the plaintiffs in the five other Andro Actions filed another suit related to the sale of Andro Products in state court in Illinois captioned Stephens and Pio v. General Nutrition Companies, Inc. (Case No. 08 CH 37097, Circuit Court of Cook County, Illinois, County Department, Chancery Division). The allegations are substantially similar to all of the other Andro Actions. As any liabilities that may arise from these cases are not probable or reasonably estimable at this time, no liability has been accrued in the accompanying financial statements. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a leading global specialty retailer of nutritional products including vitamin, mineral, herbal and other specialty supplements and sports nutrition, diet and energy products. General Nutrition Centers, Inc. is an indirect wholly owned subsidiary of GNC Parent LLC, which was acquired by affiliates of Ares Management LLC and Ontario Teachers' Pension Plan Board through a merger on March 16, 2007. As of Dec. 31, 2009, GNC has more than 6,900 locations, of which more than 5,400 retail locations are in the United States (including 909 franchise and 1,869 Rite Aid franchise store-within-a-store locations) and franchise operations in 47 countries. GENERAL NUTRITION: Certification Denial Reversed in "Guzman" ------------------------------------------------------------ The Superior Court of the State of California has reversed its order denying class certification in a suit against General Nutrition Centers, Inc., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. The company is currently defending six lawsuits relating to the sale by GNC of certain nutritional products alleged to contain the ingredients commonly known as Androstenedione, Androstenediol, Norandrostenedione, and Norandrostenediol. One lawsuit, Guzman v. General Nutrition Companies, Inc., was filed in the Superior Court of the State of California for the County of Los Angeles. Plaintiffs sought, or are seeking, to certify a class and obtain damages on behalf of the class representatives and all those similarly-situated who purchased from us certain nutritional supplements alleged to contain one or more Andro Products. The plaintiffs' Motion for Class Certification was denied on September 8, 2008. Plaintiffs appealed on Oct. 31, 2008. Oral arguments took place on Jan. 15, 2010 and the court reversed the order denying class certification. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a leading global specialty retailer of nutritional products including vitamin, mineral, herbal and other specialty supplements and sports nutrition, diet and energy products. General Nutrition Centers, Inc. is an indirect wholly owned subsidiary of GNC Parent LLC, which was acquired by affiliates of Ares Management LLC and Ontario Teachers' Pension Plan Board through a merger on March 16, 2007. As of Dec. 31, 2009, GNC has more than 6,900 locations, of which more than 5,400 retail locations are in the United States (including 909 franchise and 1,869 Rite Aid franchise store-within-a-store locations) and franchise operations in 47 countries. GEORGIA: Sup. Ct. Overturns Fee Enhancement in Foster Care Suit --------------------------------------------------------------- Courthouse News Service reports that a split Supreme Court on Tuesday overturned an enhanced award of $4.5 million in attorney's fees stemming from a successful class action suit against the State of Georgia's foster care system. Under federal fee-shifting statutes, judges can award enhanced attorneys' fees above the so-called "lodestar" amount, Justice Samuel Alito wrote. However, the court in the Georgia case did not provide "proper justification" for the large enhancement. "This figure appears to have been essentially arbitrary," Judge Alito wrote. "Unjustified enhancements that serve only to enrich attorneys are not consistent with the statute's aim." "A prevailing party in certain civil rights actions may recover a 'reasonable attorney's fee as part of the costs,'" Judge Alito wrote. "Unfortunately, the statute does not explain what Congress meant by a 'reasonable' fee, and therefore the task of identifying an appropriate methodology for determining a 'reasonable' fee was left for the courts." The underlying case stems from a lawsuit filed on behalf of 3,000 children who sued Georgia, claiming deficiencies in the foster care system. They requested more than $14 million in attorney's fees. Half was based on the calculation of the lodestar -- about 30,000 hours multiplied by the hourly rates of $200 to $495 for attorneys and $75 to $150 for non-attorneys. They also sought a fee enhancement for superior work, but the state complained that the requested hourly rates were too high. The district court awarded fees of $10.5 million, finding that the hourly rates were fair, but that some of the billing sheets were vague and that many of the billing hours were excessive. The court cut the non-travel hours by 15 percent and halved the hourly rate for travel hours, resulting in a lodestar calculation of $6 million. The court then enhanced the award by 75 percent, finding that the lodestar calculation did not take into account "the fact that the class counsel were required to advance case expenses of $1.7 million over a three-year period. The 11th Circuit affirmed, finding that the court did not abuse its discretion by failing to make a proper reduction in the number of hours. HARRAH'S ENTERTAINMENT: Accused in Nev. of Not Paying Overtime -------------------------------------------------------------- Courthouse News Service reports that Harrah's Entertainment stiffed workers for overtime at Harrah's Laughlin Hotel & Casino, according to a class action in Las Vegas Federal Court. A copy of the Complaint in Fetrow-Fix, et al. v. Harrah's Entertainment, Inc., et al., Case No. 10-cv-00560 (D. Nev.), is available at: http://www.courthousenews.com/2010/04/21/Harrahs.pdf The Plaintiffs are represented by: Adam H. Springel, Esq. Leonard T. Fink, Esq. SPRINGEL & FINK LLP 2475 Village View Dr., Suite 250 Henderson, NV 89074 Telephone: 702-804-0706 E-mail: aspringel@springelfink.com lfink@springelfink.com - and - Harris L. Pogust, Esq. POGUST, BRASLOW & MILROOD, LLC Eight Tower Bridge, Suite 1520 161 Washington St. Conshohocken, PA 19428 Telephone: 610-941-4204 E-mail: hpogust@pbmattorneys.com - and - Shawn Khorrami, Esq. Robert Drexler, Esq. KHORRAMI POLLAR & ABIR LLP 444 S. Flower St., 33rd Floor Los Angeles, CA 90071 Telephone: 213-596-6000 E-mail: skhorrami@kpalaywers.com rdexler@kpalawyers.com HAWK CORP: Appeal on Class Certification Ruling Pending ------------------------------------------------------- Hawk Corp.'s appeal on the granting of class certification in a lawsuit captioned Paul Mickle v. Wellman Products Group, LLC, Case No. CJ 2007 06914, is pending in the District Court for Tulsa County, Oklahoma, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. The suit was filed on Oct. 16, 2007. Mr. Mickle alleges violation of wage and hour laws by one of our subsidiaries, Wellman Products Group, Inc. The case purports to be a class action on behalf of Mr. Mickle and other allegedly "similarly situated" employees. Discovery as to the class certification is finished. The plaintiffs have been granted their Motion for Class Certification. The company disagrees with the class certification and filed an appeal on Jan. 7, 2010. Briefing on the appeal of the class certification. Hawk Corporation -- http://www.hawkcorp.com/-- is a leading supplier of friction materials for brakes, clutches and transmissions used in airplanes, trucks, construction and mining equipment, farm equipment, recreational and performance automotive vehicles. Headquartered in Cleveland, Ohio, Hawk has approximately 950 employees at 11 manufacturing, research, sales and international rep offices and administrative sites in 7 countries. HEARTLAND PAYMENT: Consolidated Securities Suit Dismissed --------------------------------------------------------- A consolidated securities class action against Heartland Payment Systems, Inc. has been terminated after the plaintiffs did not appeal the dismissal of the suit by U.S. District Court for the District of New Jersey within the prescribed time, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Four securities class action complaints were filed in the U.S. District Court for the District of New Jersey: (1) Davis v. Heartland Payment Systems, Inc. et al., 3:09-cv-01043-AET-TJB (March 6, 2009); (2) Ivy v. Heartland Payment Systems, Inc. et al., 3:09-cv-01264-AET-JJH (March 19, 2009); (3) Ladensack v. Heartland Payment Systems, Inc. et al., 3:09-cv-01632-FLW-TJB (April 3, 2009); and (4) Morr v. Heartland Payment Systems, Inc. et al., 3:09-cv-01818-JAP-LHG (April 16, 2009). All four complaints contained similar allegations that the company and two of its officers, Chief Executive Officer Robert O. Carr and President and Chief Financial Officer Robert H. B. Baldwin, Jr. violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 by making material misrepresentations and/or omissions to the company's securities holders concerning the Processing System Intrusion, and that four of the company's insiders had engaged in insider trading. On May 7, 2009, Ladensack was voluntarily dismissed by plaintiffs without prejudice. On May 27, 2009, the three remaining securities class actions were consolidated into In re Heartland Payment Systems, Inc. Securities Litigation, 3:09-cv-01043-AET-TJB. The Teamsters Local Union No. 727 Pension Fund and Genesee County Employees' Retirement System were appointed Co-Lead Plaintiffs for the purported class pursuant to 15 U.S.C. 78u-4(a)(3)(B). On Aug. 20, 2009, Lead Plaintiffs in the Consolidated Securities Class Action filed an Amended Consolidated Class Action Complaint for Violations of the Federal Securities Laws, purporting to represent all individuals who bought the company's common stock between Feb. 13, 2008 and Feb. 23, 2009. The Amended Complaint alleged that the company and Messrs. Carr and Baldwin made material misrepresentations and/or omissions to the company's shareholders concerning the network security and the Processing System Intrusion in violation of Sections 10(b) and/or 20(a) of the Exchange Act. Lead Plaintiffs sought various forms of relief, including damages, attorneys' fees, and costs and expenses. On Sept. 25, 2009, the company moved to dismiss the Amended Securities Complaint. On Dec. 7, 2009, the Court granted the company's motion to dismiss and dismissed the Amended Securities Complaint with prejudice. Lead Plaintiffs did not appeal the dismissal within the time prescribed by the Federal Rules of Appellate Procedure, rendering the Court's dismissal a final judgment on the merits and terminating the Consolidated Securities Class Action. Heartland Payment Systems, Inc., the 5th largest payments processor in the United States, delivers credit/debit/prepaid card processing, payroll, check management and payments solutions to more than 250,000 business locations nationwide. Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. For more information, visit http://HeartlandPaymentSystems.com/and http://MerchantBillOfRights.org/and http://CostOfABurger.com/ and http://E3secure.com/ HEARTLAND PAYMENT: Continues to Defend "McInerney" Suit ------------------------------------------------------- Heartland Payment Systems, Inc., continues to defend a putative class action captioned Ryan McInerney, Hossein Vazir Zand v. Heartland Payment Systems, Inc. On Dec. 16, 2008, a putative class action was filed against the company in the Superior Court of California, County of San Diego. The plaintiffs purport to represent a putative class of individuals who allegedly were not reimbursed by the company for business expenses and whose compensation was allegedly reduced for their costs of doing business. The plaintiffs seek unspecified monetary damages, penalties, injunctive and declaratory relief, and attorneys' fees and costs. No additional details were reported in the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Heartland Payment Systems, Inc., the 5th largest payments processor in the United States, delivers credit/debit/prepaid card processing, payroll, check management and payments solutions to more than 250,000 business locations nationwide. Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. For more information, visit http://HeartlandPaymentSystems.com/and http://MerchantBillOfRights.org/and http://CostOfABurger.com/ and http://E3secure.com/ HEARTLAND PAYMENT: Missouri Merchant Suit Dismissed --------------------------------------------------- A putative merchant class action against Heartland Payment Systems, Inc., has been dismissed, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. A putative merchant class action has been commenced that seeks to represent all merchants against whom the company asserts or have asserted a claim for chargebacks or fines related to compromised credit card data since 2006. Filed on March 9, 2009 in the Circuit Court of the City of Saint Louis, Missouri, the action is captioned S.M. Corporation, d/b/a Mike Shannon's Steak & Seafood v. Orbit POS Systems, Inc. and Heartland Payment Systems, Inc., Case No. 0822-CC07833. The action asserts various common-law claims, including for breach of contract, unjust enrichment, fraudulent misrepresentation, and breach of the duty of good faith and fair dealing, and seeks various forms of relief including damages, injunctive relief, and attorneys' fees. The company moved to dismiss that action on June 8, 2009 and the court denied the motion on Dec. 7, 2009. Separately, the company has asserted various common-law claims, including for breach of contract, against the named merchant plaintiff in the Missouri action in an action captioned Heartland Payment Systems, Inc v. Mike Shannon, individually, and S.M. Corporation, d/b/a Mike Shannon's Steak & Seafood, Civ. No. L- 6619-08 in New Jersey Superior Court. This action seeks to recover from the merchant certain fines and fees that were assessed by Visa and MasterCard and paid by the company, along with attorneys' fees and costs. The Missouri and New Jersey actions were dismissed without prejudice on March 1, 2010, pursuant to a settlement between S.M. Corporation, Mike Shannon and the company. The Missouri action was so dismissed, on an individual basis, prior to any motion for class certification. Also, the New Jersey action was dismissed with prejudice as against Mike Shannon individually. Under the settlement, SM Corporation will continue the Missouri action as against Orbit POS Systems, Inc. and, from any recovery, pay the company up to approximately $265,600 (the amount of the fees and fines claimed by the company in the New Jersey action). Upon resolution of SM Corporation's action against Orbit POS Systems, Inc., if the amount so recovered by SM Corporation does not reach approximately $265,600, then SM Corporation will also pay the company the difference up to that amount. SM Corporation can institute litigation against the company only if the company reinstates the New Jersey action or sue to enforce the settlement. All claims of SM Corporation and the company against each other are tolled by agreement in the meantime, but, upon SM Corporation's payment of the approximately $265,000 to the company, then the company, SM Corporation and Mike Shannon will exchange mutual releases. Heartland Payment Systems, Inc., the 5th largest payments processor in the United States, delivers credit/debit/prepaid card processing, payroll, check management and payments solutions to more than 250,000 business locations nationwide. Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. For more information, visit http://HeartlandPaymentSystems.com/and http://MerchantBillOfRights.org/and http://CostOfABurger.com/ and http://E3secure.com/ HEARTLAND PAYMENT: Awaits Approval of Texas Suit Settlement ----------------------------------------------------------- Heartland Payment Systems, Inc., continues to await approval from the U.S. District Court for the Southern District of Texas of a settlement agreement resolving consolidated consumer cardholder class actions, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. As of March 10, 2010, the company has had several lawsuits filed against the company and additional lawsuits may be filed. These include lawsuits which assert claims against the company by cardholders (including various putative class actions seeking in the aggregate to represent all cardholders in the United States whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion) and banks that issued payment cards to cardholders whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion (including various putative class actions seeking to represent all financial institutions that issued payment cards to cardholders whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion), seeking damages allegedly arising out of the Processing System Intrusion and other related relief. The actions generally assert various common-law claims such as claims for negligence and breach of contract, as well as, in some cases, statutory claims such as violation of the Fair Credit Reporting Act, state data breach notification statutes, and state unfair and deceptive practices statutes. The putative cardholder class actions seek various forms of relief including damages, injunctive relief, multiple or punitive damages, attorneys' fees and costs. The putative financial institution class actions seek compensatory damages, including recovery of the cost of issuance of replacement cards and losses by reason of unauthorized transactions, as well as injunctive relief, attorneys' fees and costs. On June 10, 2009, the Judicial Panel on Multidistrict Litigation entered an order centralizing these cases for pre-trial proceedings before the U.S. District Court for the Southern District of Texas, under the caption In re Heartland Payment Systems, Inc. Data Security Breach Litigation, MDL No. 2046, 4:09-md-2046. On Aug.24, 2009, the court appointed interim co-lead and liaison counsel for the financial institution and consumer plaintiffs. On Sept. 23, 2009, the financial institution plaintiffs filed a Master Complaint in the MDL proceedings, which the company moved to dismiss on Oct. 23, 2009. Briefing on that motion to dismiss concluded on Feb. 1, 2010, and the motion remains pending. On Dec. 18, 2009, the ompany and interim counsel for the consumer plaintiffs filed with the Court a proposed settlement agreement, subject to court approval, of the consumer class action claims. Under the terms of the settlement, Heartland will pay a minimum of $1,000,000 and up to a maximum of $2,400,000 to class members who submit valid claims for losses as a result of the intrusion. The settlement resolves all actions and proceedings that were asserted or could have been asserted against Heartland in relation to the intrusion by all persons in the United States who had payment cards used in the United States between Dec. 6, 2007 and Dec. 31, 2008 and who allege or may allege they suffered losses. Any person who validly requests exclusion from the settlement class will be excluded from the settlement. Heartland will also pay all costs associated with the administration of the settlement, including up to $1.5 million for the cost of notice to the settling class. In addition, Heartland has agreed to pay up to $760,000 of the attorneys' fees and costs of attorneys representing the class members. Lastly, Heartland has agreed to submit the report of an independent expert on Heartland's actions and plans to enhance the security of its computer system since the announcement of the intrusion on Jan. 20, 2009. A claims administration process informing affected cardholders of procedures to be followed for making claims or opting out of the settlement will be implemented, including a dedicated website. The settlement is subject to court approval and other terms. Heartland may terminate the settlement agreement if the number of persons who submit valid requests for exclusion from the settlement class exceeds 2,500 or if the costs of notice to the settling class exceed $1,500,000. Heartland Payment Systems, Inc., the 5th largest payments processor in the United States, delivers credit/debit/prepaid card processing, payroll, check management and payments solutions to more than 250,000 business locations nationwide. Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. For more information, visit http://HeartlandPaymentSystems.com/and http://MerchantBillOfRights.org/and http://CostOfABurger.com/ and http://E3secure.com/ JACMAR COMPANIES: Sued for Failing to Provide Timely Meal Breaks ---------------------------------------------------------------- Mario Monreal, on behalf of himself and others similarly situated v. The Jacmar Companies, Inc., Case No. BC436027 (Calif. Super. Ct., Los Angeles Cty. Apr. 19, 2010), accuses Jacmar of failing to provide timely meal breaks, deducting thirty-minutes per shift of time worked from drivers' paychecks, and failing to issue accurate itemized wage statements, in violation of California statutes. Mr. Monreal is employed as a truck driver for Jacmar, a food distribution service provider in California. The Plaintiff is represented by: Craig J. Ackermann, Esq. ACKERMAN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 - and - Michael Malk, Esq. MICHAEL MALK, ESQ., APC 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 203-0016 JOHN LINTON: Sued for Selling "Knock-Off" Skin Care Products ------------------------------------------------------------ Jo Armuth, on behalf of herself and others similarly situated v. John Linton, et al., Case No. BC436058 (Calif. Super. Ct., Los Angeles Cty. Apr. 16, 2010), accuses the Defendants of untrue and misleading advertising and unfair business practices, in violation of the Cal. Bus. & Prof. Code and the Consumer Legal Remedies Act. Ms. Armuth says the Defendants sold customers a "knock-off" version of a very successful skin care product line developed by award-winning chemical engineer Dr. T. Joseph Lin for Amino Genesis, a leading skin care company, instead of the real items. Ms. Armuth relates that the Defendants obtained confidential company information from Amino Genesis, including client lists and product information they later used to make inferior products that they advertised as the genuine items. Because of the Defendants' deceptive practices, Ms. Armuth says consumers were unduly harmed. Ms. Armuth claims that John Linton is the primary owner of Pinnacle Direct Marketing, LLC and Mercatis Ventures. The Plaintiff is represented by: Neville J. Johnson, Esq. Douglas L. Johnson, Esq. Lan P. Vu, Esq. JOHNSON & JOHNSON LLP 439 North Canon Drive, Suite 200 Beverly Hills, CA 90210 Telephone: (310) 975-1080 E-mail: njohnson@jjllplaw.com djohnson@jjllplaw.com lvu@jjllplaw.com LIVE NATION: Accused of Failing to Pay Wages for All Hours Worked ----------------------------------------------------------------- Yaree Collins, on behalf of himself and others similarly situated v. Live Nation Worldwide, Inc., Case No. BC436141 (Calif. Super. Ct., Los Angeles Cty. Apr. 19, 2010), accuses the live-events management company of failing to pay wages for all hours worked, non-payment of overtime wages, not providing meal and rest periods, failure to provide reporting-time pay, non-reimbursement of necessary expenditures, and other violations of the Labor Code. The Plaintiff is represented by: Anthony J. Orshansky, Esq. David H. Yeremian, Esq. Justin Kachadoorian, Esq. ORSHANSKY & YEREMIAN LLP 16133 Ventura Blvd., Suite 1245 Encino, CA 91436 Telephone: (818) 205-1212 E-mail: anthony@oyllp.com david@oyllp.com justin@oyllp.com MELT INC: Gelato Franchisees Barred from Class Action Proceeding ---------------------------------------------------------------- A California appellate court says that fifteen plaintiffs who are parties to gelato franchise agreements with Melt, Inc., can't maintain a class action lawsuit under the express terms of their agreements. The Plaintiffs unsuccessfully argued in Gold, et al. v. Melt, Inc., et al., No. B210452 (Cal. App., 2d Dist., Div. Three), that the clause prohibiting class actions and multi-party litigation was unconscionable and therefore unenforceable. A copy of the slip opinion is available at: http://www.leagle.com/unsecure/page.htm?shortname=incaco20100416023 The Plaintiffs are represented by: Thomas P. Bleau, Esq. Melissa J. Rhee, Esq. Megan A. Childress, Esq. BLEAU FOX 3575 Cahuenga Blvd. West, Suite 580 Los Angeles, CA 90068 Telephone: (323) 874-8613 E-mail: tbleau@bleaufox.com mrhee@bleaufox.com Melt, Inc., is represented by: James M. Mulcahy, Esq. MULCAHY REEVES LLP 1 Park Plaza, Suite 225 Irvine, CA 92614 Telephone: (949) 252-9377 E-mail: jmulcahy@mulcahyllp.com - and - Rex T. Reeves, Esq. LAW OFFICES OF REX T. REEVES 13522 Newport Avenue, Suite 201 Tustin, CA 92780 Telephone: (714) 731-8500 E-mail: rreeves@reeveslawoffices.com NCMIC FINANCE: Accused of Fraud & Breach of Marketing Agreement --------------------------------------------------------------- Vijay Patel, on behalf of himself and others similarly situated v. NCMIC Finance Corporation, d/b/a Professional Solutions Financial Services, et al., Case No. 2010-00363542 (Calif. Super. Ct., Orange Cty. Apr. 15, 2010), asserts breach of contract; breach of the duty of good faith and fair dealing; fraud; negligent misrepresentation; unjust enrichment; and violations of the Cal. Bus. & Prof. Code. Mr. Patel said he and the members of the class suffered harm and loss of money or property because of the Defendants' deceptive practices. Mr. Patel says that on July 15, 2005, PSFS and Brican America Inc. entered into a vendor agreement wherein PSFS agreed to accept assignment of leases of the Exhibeo System (a combined television and computer system that displays health care information). Under the vendor agreement, PSFS would buy the Exhibeo System from Brican America Inc. for the purpose of leasing or financing the system to Brican America's creditworthy customers. In May 2006, in order to increase sales, Defendants launched the "Share Your Screen Earn Some Green" promotion which coupled the lease with a Marketing Agreement, which represented that payments under the Marketing Agreement would pay for the lease. The Marketing Agreement allegedly came with a guaranteed minimum annual fee to be paid by Brican's alter ego, Defendant Viso Lasik Medspas, LLC, in exchange for displaying its advertising materials. The Marketing Agreement also provided that in the event payments ceased Brican would buy back the equipment, relieving the lessees of its obligation to make payments on the leases. In January 2010, Brican disclosed that it was stopping payments under the Marketing Agreement for VISO, and PSFS notified the lessees that it was demanding full payment on the leases. Mr. Patel says the marketing agreement was nothing more than a Ponzi scheme in order to raise capital for VISO and to fund payments on the Marketing Agreement to earlier lessees. Mr. Patel says fraud is proved by the failure of Brican to market advertising other than Viso. The Plaintiff is represented by: Kenneth J. Catanzarite, Esq. Nicole Catanzarite-Woodward, Esq. CATANZARITE LAW CORPORATION 2331 West Lincoln Ave. Anaheim, CA 92801 Telephone: (714) 520-5544 E-mail: kcatanzarite@catanzarite.com ncatanzarite@catanzarite.com NOKIA INC: 3rd Cir. Asked to Revive Cell Phone Headset Lawsuit -------------------------------------------------------------- Shannon P. Duffy at The Legal Intelligencer reports that the potential biological hazards of using cell phones took center stage on Monday as a plaintiffs lawyer urged the 3rd U.S. Circuit Court of Appeals to revive a Pennsylvania class action suit that says manufacturers must be ordered to provide a headset with every phone as a safety device. Attorney Kenneth A. Jacobsen argued in Farina v. Nokia Inc. that a lower court judge erred in tossing the suit out on the grounds that it would interfere with the Federal Communications Commission, which has exclusive authority to regulate the radio frequency or RF emission of cell phones. The FCC has no expertise in matters of public health and safety, Jacobsen said, and the federal statutes that give the FCC its powers were never intended to oust the state courts from their traditional roles of providing remedies for breaches of warranty or false advertising. But Jacobsen soon found himself fending off a barrage of questions from two of the judges -- Chief Judge Anthony J. Scirica and Judge Thomas L. Ambro -- on the issue of whether the case was properly pre-empted. Ambro said he thought the defendants had a "darn good argument" that the case was subject to the doctrine of implied pre-emption since the FCC was tasked with crafting a uniform scheme for regulating cell phone devices and networks. "This is their bailiwick. This is their turf," Ambro said, referring to the FCC. But Jacobsen insisted that the suit would never interfere with the FCC's work since the plaintiffs are not seeking to alter the RF regulations. Instead, Jacobsen said, the plaintiffs focused on the claims made in the advertisements in which, he said, cell phone manufacturers and service providers assured consumers that the products were "absolutely safe." In reality, Jacobsen said, it has long been known that RF emissions have effects on human tissue, and the Pennsylvania plaintiffs are simply demanding that headsets -- and accurate information -- be provided. But attorney David C. Frederick of Kellogg Huber Hansen Todd Evans & Figel, arguing for the cell phone manufacturers and providers, argued that U.S. District Judge John R. Padova was correct in holding that the suit was pre-empted because radio frequencies are "an instrumentality of interstate commerce" that simply "cannot be defined by state borders." If Jacobsen's argument were accepted, Frederick said, the Pennsylvania plaintiffs would be asking a jury to declare that cell phones suffer from a defect that renders them "unreasonably dangerous." Such a proceeding, Frederick argued, would put the courts on a "collision course" with the FCC's carefully balanced regulatory scheme. In a 46-page opinion handed down in September 2008, Padova concluded that the plaintiffs' allegations "unquestionably trample upon the FCC's authority to determine the maximum standard for RF emissions." The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association. Taking the lead in arguing a joint motion to dismiss before Padova were attorneys Seamus C. Duffy [reporter Shannon Duffy's brother] of Drinker Biddle & Reath in Philadelphia, representing AT&T, and Terrence J. Dee of Kirkland & Ellis in Washington, D.C., representing Motorola. In the 18 months since Padova's ruling, the jurisprudence on pre- emption has experienced a sea change, most notably in the U.S. Supreme Court's decision in Wyeth v. Levine that cleared the way for a state lawsuit against a drug maker and rejected arguments that the Food and Drug Administration's policing of drug warning labels should supplant state products liability laws. Frederick, who argued for the winning plaintiff in the Wyeth case at the Supreme Court, was hired by the cell phone companies to argue the 3rd Circuit appeal. Scirica asked Frederick if the Wyeth decision had undermined the Supreme Court's 2000 decision in United States v. Locke, which had pre-empted a suit over an oil spill on the grounds that it would interfere with the comprehensive federal regulatory scheme governing oil tankers. Frederick was also the winning lawyer in the Locke case, having argued the Supreme Court appeal for the U.S. government when he was working as an assistant solicitor general. Locke, which was decided unanimously, remains good law, Frederick argued, and provides a good contrast to Wyeth. In Wyeth, he said, the justices held that parallel state actions against drug makers have always acted as a complement to the federal regulatory scheme, while in Locke, the court held that the state law claims would conflict with federal regulation of an exclusively federal arena -- maritime law. Ambro pressed Frederick on the distinction that Jacobsen was urging, asking why the plaintiffs weren't correct in noting that the FCC "doesn't have any particular expertise" in safety and health issues. But Frederick insisted that Congress gave the FCC the task of establishing regulations that would balance the need to protect public health and the need to deploy cell phone technology in the most efficient manner possible. When Jacobsen returned to the podium for his rebuttal argument, Ambro asked if Frederick were correct in his warning that allowing the Pennsylvania suit would inevitably lead to a "hodgepodge" of regulations, varying from state to state, and thereby defeating the intent of having national, uniform standards. Jacobsen insisted that the Pennsylvania case wouldn't interfere with the FCC regulations on RF emissions in any way since the cure proposed by the suit was simply to demand truth in advertising and mandate the inclusion of headsets in cell phone purchases. The third judge on the panel, 9th Circuit Senior Judge Arthur Alarcon sitting on the 3rd Circuit by invitation, did not ask any questions during oral argument. PRESTIGE AIR: Diversion of Trust Funds Alleged in N.Y. Lawsuit -------------------------------------------------------------- Boris Metal Master, Inc., on behalf of itself and others similarly situated v. Prestige Air & Design, LLC, and Isaac Schwartz, Case No. 600987/2010 (N.Y. Sup. Ct., New York Cty. Apr. 19, 2010), asserts breach of agreement and Article 3A of the Lien Law of the State of New York. Boris Metal says that between April 25, 2007, and November 10, 2008, it provided labor and necessary to install sheet metal ductwork at the premises known as 45 John Street, New York, pursuant to a purchase order in the amount of $543,000. Boris Metal received payments totaling $475,089, leaving a balance due of $67,911 which Prestige has not paid despite Boris' demand for payment. Boris is bringing this complaint on behalf of itself and other trust fund beneficiaries of Lien Law trusts of which Prestige Air is a trustee, as a class action under Rule 7023 because Section 77 of the Lien Law requires it. Boris further alleges that Prestige has received monies form the owner of the project and has diverted trust funds received by it for purposes other than those permitted under Article 3A of the Lien Law of the State of New York. The Plaintiff is represented by: Marshall M. Stern, Esq. MARSHALL M. STERN, P.C. 17 Cardiff Court Huntington Station, NY 11746 Telephone: (631) 427-0101 SAINT LUKE'S: Sued in Kansas for Engaging in Predatory Billing -------------------------------------------------------------- Courthouse News Service reports that Saint Luke's Health System engages in predatory billing by refusing to submit a patient's bill to his or her insurer if it thinks it can get more from a third party, a class action claims in Kansas City, Kan., Federal Court. A copy of the Complaint in Rinehart v. Saint Luke's South Hospital, Inc., et al., Case No. 10-cv-02209 (D. Kan.), is available at: http://www.courthousenews.com/2010/04/21/MedicBilling.pdf The Plaintiff is represented by: John M. Parisi, Esq. SHAMBERG, JOHNSON & BERGMAN, CHTD. 2600 Grand Blvd., Suite 550 Kansas City, MO 64108 Telephone: 816-474-0004 E-mail: jparisi@sjblaw.com - and - Don P. Saxton, Esq. SAXTON LAW FIRM, LLC 1000 Broadway, Suite 400 Kansas City, MO 64105 Telephone: 816-471-1700 - and - Mitchell L. Burgess, Esq. Keith C. Lamb, Esq. BURGESS & LAMB, P.C. 1000 Broadway, Suite 400 Kansas City, MO 64105 Telephone: 816-471-1700 - and - Ralph K. Phalen, Esq. RALPH K. PHALEN ATTY. AT LAW 1000 Broadway, Suite 400 Kansas City, MO 64105 Telephone: 816-589-0753 SMART BALANCE: Has Yet to Answer Complaint Involving Nucoa ---------------------------------------------------------- Smart Balance, Inc., has yet to answer a complaint involving its Nucoa(R) stick margarine product, according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Feb. 8, 2010, a lawsuit was filed against the company in the Federal District Court for the Central District in California in Santa Ana, California. The complaint alleges, among other things, violations of California's unfair competition law, false advertising, and consumer remedies act and seeks to identify all similarly situated plaintiffs and certify them in a class action. The company has not yet answered the complaint. This suit involves the company's Nucoa(R) stick margarine product which represents less than 1% of the company's 2009 sales. Nucoa(R) stick margarine is the company's only product which includes artificially produced trans fats. Smart Balance, Inc. -- http://www.smartbalance.com/-- is committed to providing superior tasting heart healthier alternatives in every category it enters by avoiding trans fats naturally, balancing fats and/or reducing saturated fats, total fat and cholesterol. The company markets the Smart Balance(R) line of products, which include Smart Balance(R) Buttery Spreads, Milk, Butter Blend Sticks, Sour Cream, Peanut Butter, Microwave Popcorn, Cooking Oil, Mayonnaise, Non-Stick Cooking Spray and Cheese, and also markets natural food products under the Earth Balance(R) brand and healthier lifestyle products under the Bestlife(TM) brand. SMITH & WESSON: Wants Class Certification in Suit Denied -------------------------------------------------------- Smith & Wesson Holding Corp., has filed a brief in opposition to the plaintiffs' motion for class certification in a consolidated securities class action, according to the company's March 11, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. The company, its Chairman of the Board, its Chief Executive Officer, and its former Chief Financial Officer were named in three similar purported securities class-action lawsuits. The complaints in these actions, which have been consolidated into one action, were brought individually and on behalf of all persons who purchased securities of our company between June 15, 2007 and Dec. 6, 2007. The consolidated suit is Hwang, et al. v. Smith & Wesson Holding Corporation, et al., Case No. 07-cv-30238 (D. Mass.) (Ponsor, J.). The plaintiffs seek unspecified damages for alleged violations of Section 10(b) and Section 20(a) of the Exchange Act. The company has filed a Motion to Dismiss the litigation. As a result, the Court dismissed the company's Chairman of the Board from the litigation. Plaintiffs have filed a motion for class certification and the company is opposing that motion. The company's brief in opposition was filed on March 8, 2010. Discovery is ongoing. Representing the plaintiffs are: Jeffrey C. Block, Esq. Berman DeValerio Pease Tabacco Burt & Pucillo One Liberty Square, 8th Floor Boston, MA 02109 Telephone: 617-542-8300 Fax: 617-542-1194 E-mail: jblock@bermanesq.com - and - David A. Rosenfeld, Esq. Coughlin Stoia Geller Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 E-mail: drosenfeld@csgrr.com Representing the defendants are: John A. Sten, Esq. Greenberg Traurig, LLP One International Place Boston, MA 02110 Telephone: 617-310-6283 Fax: 617-310-6001 E-mail: stenj@gtlaw.com - and - Francis D. Dibble, Jr., Esq. Bulkley, Richardson & Gelinas, LLP 1500 Main Street, Suite 2700 P.O. Box 15507 Springfield, MA 01115-5507 Telephone: 413-272-6246 Fax: 413-272-6804 E-mail: fdibble@bulkley.com STANDARD PARKING: Enters Settlement Agreements to Resolve Suits --------------------------------------------------------------- Standard Parking Corporation has entered into settlement agreements resolving suits alleging violations of the California labor code, according to the company's March 12, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. The company has been in mediation and discussions with plaintiffs regarding the possible resolution of a California labor code violations case brought against the company in which plaintiffs are seeking class certification of their claims. Subject to the approval of the court, the company has entered into a settlement agreement related to Jorge Jaime v. Standard Parking Corporation and two other consolidated cases on March 9, 2010. The company also has entered into a memorandum of understanding dated Jan. 5, 2010, for the tentative settlement, subject to court approval, of Grant v. Preferred Security Services, Inc., a similar labor code violation case in which plaintiffs are seeking class certification brought against our wholly owned security subsidiary. Standard Parking Corp. -- http://www.standardparking.com/-- is a national provider of parking facility management, ground transportation and other ancillary services. The company, with approximately 12,000 employees, manages approximately 2,100 facilities, containing over one million parking spaces in approximately 335 cities across the United States and four Canadian provinces, including parking-related and shuttle bus operations serving more than 60 airports. STREAM GLOBAL: Defends Third-Party Complaint by Sirius XM --------------------------------------------------------- Stream Global Services, Inc., continues to defend a third-party complaint filed by Sirius XM Radio, Inc., according to the company's March 10, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. The company has been named as a third-party defendant in a putative class action captioned Kambiz Batmanghelich, on behalf of himself and all others similarly situated and on behalf of the general public, v. Sirius XM Radio, Inc., filed in the Los Angeles County Superior Court on Nov. 10, 2009, and removed to the U.S. District Court for the Central District of California. The Plaintiff alleges that Sirius XM Radio, Inc. recorded telephone conversations between Plaintiff and members of the proposed class of Sirius customers, on the one hand, and Sirius and its employees, on the other, without the Plaintiff's and class members' consent in violation of California's telephone recording laws. The Plaintiff also alleges negligence and violation of the common law right of privacy, and seeks injunctive relief. On Dec. 21, 2009, Sirius XM Radio, Inc. filed a Third-Party Complaint in the action against the company seeking indemnification for any defense costs and damages that result from the putative class action. The Plaintiff has not alleged any claims against the company. Stream Global Services, Inc., is a premium business process outsource service provider specializing in customer relationship management including sales, customer care and technical support for Fortune 1000 companies. Stream is a trusted partner to some of the world's leading technology, computing, telecommunications, retail, entertainment/media, and financial services companies. The company's service programs are delivered through a set of standardized best practices and sophisticated technologies by a highly skilled workforce of approximately 30,000 employees based out of 50 locations in 22 countries supporting more than 35 languages. Stream continues to expand its global presence and service offerings to increase revenue, improve operational efficiencies and drive brand loyalty for its clients. SUNOPTA INC: May 17 Hearing Set in New York Suit Settlement ----------------------------------------------------------- A May 17, 2010, hearing has been set to consider final approval of a settlement agreement resolving a consolidated amended complaint against SunOpta Inc., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. After the company downgraded previously issued earnings expectations for 2007 and announced the restatement of prior 2007 quarterly financial statements due to a significant write-down and other adjustments, SunOpta and certain officers (one of whom is a director) and a former director were named as defendants in several proposed class action lawsuits filed in the United States District Court for the Southern District of New York on behalf of shareholders who acquired securities of SunOpta between May 8, 2007 and Jan. 25, 2008. The company is alleged to have violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the SEC. Additionally, the named officers and directors (one of whom is a former director) were alleged to have violated Section 20(a) of the Securities Exchange Act of 1934. The complaints alleged different proposed class periods and were consolidated into one class action with two lead plaintiffs. On Jan. 28, 2009, the Court appointed Western Washington Laborers-Employers Pension Trust and Operating Engineers Construction Industry and Miscellaneous Pension Fund as the lead plaintiffs in one consolidated class action aggregating the various class action lawsuits. On April 14, 2009, the lead plaintiffs filed their consolidated and amended complaint in the U.S. District Court in the Southern District of New York. The new complaint includes, new allegations under Sections 11, 12 and 15 of the Securities Act of 1933 as well as four new individual defendants, two of whom are former senior management employees (one also a former director and officer), one is a current director and chairman and one is currently a senior employee. The new complaint also added three corporate defendants, namely, Cleugh's Frozen Foods, Inc. and Pacific Fruit Processors, Inc. (each of which are now part of the merged entity, SunOpta Fruit Group, Inc.) and Organic Ingredients, Inc. (which is now SunOpta Global Organic Ingredients, Inc.). On Sept. 24, 2009, the company entered into a tentative agreement to settle all claims raised in these proposed class action proceedings. In return for the dismissal of the class actions and releases from proposed class members of settled claims against the company and other named defendants, the settlement agreement provides for a total cash contribution of $11,250,000 to a settlement fund, the adoption of certain governance enhancements to the company's Audit Committee charter and Internal Audit Charter and the adoption of an enhanced information technology conversion policy. The settlement fund will be entirely funded by the company's insurers. The settlement is conditional upon the courts' approval and subject to our option to terminate it in the event of valid opt-outs by proposed class members that exceed a pre-agreed threshold. The U.S. District Court has granted preliminary approval of the settlement agreement and, for the purposes of the settlement only, have certified the lawsuits as class actions. The Court has scheduled a hearing on May 17, 2010 to determine whether it will grant final approval of the proposed settlement agreement. According to the notice of proposed settlement sent to class members on or about Feb. 10, 2010, class members have until April 12, 2010 to opt out of the settlement. SunOpta Inc. -- http://www.sunopta.com/--is an operator of high- growth ethical businesses, focusing on integrated business models in the natural and organic food and natural health markets. The company has three business units: the SunOpta Foods, which specializes in sourcing, processing and distribution of natural and organic food products integrated from seed through packaged products; Opta Minerals Inc. (TSX:OPM) (66.4 % owned by SunOpta), a producer, distributor, and recycler of environmentally friendly industrial materials; and SunOpta BioProcess Inc. which engineers and markets proprietary steam explosion technology systems for the bio-fuel, pulp and food processing industries. SUNOPTA INC: May 3 Hearing Set in Ontario Suit Settlement --------------------------------------------------------- A May 3, 2010, hearing has been set to consider final approval of a settlement agreement resolving a class action lawsuit against SunOpta Inc., pending in the Ontario Superior Court of Justice, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. A proposed class action lawsuit was filed in Canada in the Ontario Superior Court of Justice on behalf of shareholders who acquired securities of SunOpta between May 8, 2007 and January 25, 2008 against the company and certain of its officers (one of whom is a director), alleging misrepresentation and proposing to seek leave from the Ontario court to bring statutory misrepresentation civil liability claims under the Ontario Securities Act. On Aug. 29, 2008, the plaintiff filed a motion to amend the claims against the company to include additional allegations. The Canadian plaintiffs claim compensatory damages of CDN$100,000,000 and punitive damages of CDN$10,000,000 and other monetary relief. The Ontario Superior Court has granted preliminary approval of the settlement agreement and, for the purposes of the settlement only, have certified the lawsuits as class actions. The court has scheduled a hearing on May 3, 2010, to determine whether it will grant final approval of the proposed settlement agreement. SunOpta Inc. -- http://www.sunopta.com/--is an operator of high- growth ethical businesses, focusing on integrated business models in the natural and organic food and natural health markets. The company has three business units: the SunOpta Foods, which specializes in sourcing, processing and distribution of natural and organic food products integrated from seed through packaged products; Opta Minerals Inc. (TSX:OPM) (66.4 % owned by SunOpta), a producer, distributor, and recycler of environmentally friendly industrial materials; and SunOpta BioProcess Inc. which engineers and markets proprietary steam explosion technology systems for the bio-fuel, pulp and food processing industries. SUNOPTA INC: Reaches Agreement to Settle "Vargas" Suit ------------------------------------------------------ SunOpta Inc. has reached a tentative settlement to resolve a wage and hour dispute against SunOpta Fruit Group, Inc., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. In September 2008, a single plaintiff and a former employee, Mr. Vargas, filed a wage and hour dispute against SunOpta Fruit Group, Inc., as a class action alleging various violations of California's labor laws. On July 16, 2009, the parties attended mediation in San Francisco, and no settlement was reached. A second mediation was held on Jan. 15, 2010. A tentative settlement of all claims was reached at mediation, subject to agreement on final terms of the settlement, including a plan of distribution, including reversion features in our favour in the event claimants do not come forward with claims, and approval of the settlement by the court. As a result of the tentative settlement, the company has accrued a liability of $1,200,000 in its financial statements for the period ending Dec. 31, 2009. SunOpta Inc. -- http://www.sunopta.com/--is an operator of high- growth ethical businesses, focusing on integrated business models in the natural and organic food and natural health markets. The company has three business units: the SunOpta Foods, which specializes in sourcing, processing and distribution of natural and organic food products integrated from seed through packaged products; Opta Minerals Inc. (TSX:OPM) (66.4 % owned by SunOpta), a producer, distributor, and recycler of environmentally friendly industrial materials; and SunOpta BioProcess Inc. which engineers and markets proprietary steam explosion technology systems for the bio-fuel, pulp and food processing industries. TOLL BROTHERS: Defends Amended Securities Violations Suit --------------------------------------------------------- Toll Brothers, Inc., continues to defend an amended complaint alleging violation of federal securities laws. In April 2007, a securities class action suit was filed against Toll Brothers, Inc. and Robert I. Toll and Bruce E. Toll in the U.S. District Court for the Eastern District of Pennsylvania on behalf of a purported class of purchasers of the company's common stock between Dec. 9, 2004 and Nov. 8, 2005. In August 2007, an amended complaint was filed adding additional directors and officers as defendants. The amended complaint filed on behalf of the purported class alleges that the defendants violated federal securities laws by issuing various materially false and misleading statements that had the effect of artificially inflating the market price of the company's stock. It further alleges that the individual defendants sold shares for substantial gains during the class period. The purported class is seeking compensatory damages, counsel fees, and expert costs. No updates were reported in the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. Toll Brothers, Inc. -- http://tollbrothers.com/-- is the nation's leading builder of luxury homes. The company began business in 1967 and became a public company in 1986. Its common stock is listed on the New York Stock Exchange under the symbol "TOL". The company serves move-up, empty-nester, active-adult and second-home home buyers and operates in 20 states: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Texas and Virginia. Toll Brothers builds luxury single-family detached and attached home communities, master planned luxury residential resort-style golf communities and urban low-, mid- and high-rise communities, principally on land it develops and improves. The company operates its own architectural, engineering, mortgage, title, land development and land sale, golf course development and management, home security and landscape subsidiaries. The company also operates its own lumber distribution, and house component assembly and manufacturing operations. TOLL BROTHERS: Faces Three Defective Drywall Suits -------------------------------------------------- Toll Brothers, Inc., faces three purported class action suits relating to allegedly defective drywall manufactured in China, according to the company's March 10, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2010. On Dec. 9, 2009, and Feb. 10, 2010, the company was named as a defendant in three purported class action suits filed by homeowners relating to allegedly defective drywall manufactured in China. These suits are all pending in the U.S. District Court for the Eastern District of Louisiana as part of In re: Chinese- Manufactured Drywall Products Liability Litigation, MDL No. 2047. The complaints also name as defendants other home builders, as well as other parties claimed to be involved in the manufacture, sale, importation, brokerage, distribution, and installation of the drywall. The plaintiffs claim that the drywall, which was installed by independent subcontractors in certain homes built by the company, caused damage to certain items and building materials in the homes, as well as personal injuries. The complaints seek damages for, among other things, the costs of repairing the homes, diminution in value to the homes, replacement of certain personal property, and personal injuries. The company has not yet responded to these suits. Toll Brothers, Inc. -- http://tollbrothers.com/-- is the nation's leading builder of luxury homes. The company began business in 1967 and became a public company in 1986. Its common stock is listed on the New York Stock Exchange under the symbol "TOL". The company serves move-up, empty-nester, active-adult and second-home home buyers and operates in 20 states: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Texas and Virginia. Toll Brothers builds luxury single-family detached and attached home communities, master planned luxury residential resort-style golf communities and urban low-, mid- and high-rise communities, principally on land it develops and improves. The company operates its own architectural, engineering, mortgage, title, land development and land sale, golf course development and management, home security and landscape subsidiaries. The company also operates its own lumber distribution, and house component assembly and manufacturing operations. TOYOTA MOTOR: Four Firms Named as Temporary Lead Counsel -------------------------------------------------------- Amanda Bronstad at The National Law Journal reports a federal judge overseeing nearly 200 lawsuits filed against Toyota Motor Corp, has appointed four lawyers as temporary lead counsel for all the cases and set May 13 as the first scheduling hearing. U.S. District Judge James V. Selna of the Central District of California appointed three plaintiffs lawyers to serve as temporary lead counsel: -- Steve Berman, managing partner of Seattle's Hagens Berman Sobol Shapiro; -- Elizabeth Cabraser, a partner at San Francisco's Lieff Cabraser Heimann & Bernstein; and -- Marc Seltzer, a partner in the Los Angeles office of Houston's Susman Godfrey. The judge appointed one of Toyota's attorneys: -- Cari Dawson, a partner at Atlanta's Alston & Bird, to serve as lead counsel for the defense. Judge Selna issued the order making the appointments on Wednesday. In a prepared e-mail statement, Berman applauded Selna's "aggressive" timeline. "All three firms know one another, work well together and will be a potent force in representing the class' interests," said Berman, whose firm has filed suits seeking refunds for consumers. "This case offers some big challenges in finding out what Toyota knew, and when." Meanwhile, the cases are moving forward toward discovery. The counsel appointments are temporary designations, according to the judge's order. Lawyers with suits against Toyota have until April 30 to apply for a permanent role as lead or liaison counsel for all the cases. In his order, Selna said that he planned to appoint liaison counsel or a committee to manage discovery in the personal injury cases and separate lead or liaison counsel for the economic loss cases. The judge plans to appoint a core discovery committee for all the cases. During the May 13 hearing, which will take place in Santa Ana, Calif., those appointments, along with a definition of "core discovery," critical legal issues, pending motions and related cases, will be discussed. Seltzer, who has filed several class actions against Toyota, and Cabraser, whose firm has the most personal injury suits pending, did not return calls for comment. Dawson, chairwoman of Alston & Bird's class action practice team, also did not return a call for comment. TRENDSET ORIGINALS: Recalls 2,400 Girls' Hooded Jackets ------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Trendset Originals LLC, of New York, N.Y., announced a voluntary recall of about 2,400 Girls' hooded jackets. Consumers should stop using recalled products immediately unless otherwise instructed. The hooded jackets have a drawstring through the hood that can pose a strangulation hazard to children. The sweater jackets have a drawstring through the waist that can pose an entanglement hazard to children. In February 1996, CPSC issued guidelines (which were incorporated into an industry voluntary standard in 1997) to help prevent children from strangling or getting entangled on the neck and waist drawstrings in upper garments, such as jackets and sweatshirts. No injuries or incidents have been reported. This recall involves two styles of girls' jackets. The Shampoo brand jackets are denim with a pink hood and sleeves, and were sold in sizes 5/6, 7/8, 10/12 and 14/16. The Marci & Me brand sweater jackets are black or tan and were sold in sizes 7/8, 10/12 and 14/16. The tag at the neck reads "Shampoo" or "Marci & Me." Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10201.html The recalled products were manufactured in China and Bangladesh and sold through Burlington Coat Factory stores nationwide from September 2007 through September 2009 for between $11 and $13. Consumers should immediately remove the drawstrings from the jackets to eliminate the hazard. Consumers can also return the jackets to any Burlington Coat Factory store for a full refund. For additional information, contact Trendset Originals at (800) 908-8308 between 9:30 a.m. and 5:30 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.trendsetny.com/ TROPICAL BEDDING: Recalls 15,000 Mattress Sets ---------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Tropical Bedding Mfg., of Caguas, Puerto Rico, announced a voluntary recall of about 15,000 Mattress Sets (Mattresses and Mattresses with Foundations). Consumers should stop using recalled products immediately unless otherwise instructed. The mattress sets fail to meet mandatory federal open flame standard and pose a fire hazard to consumers. No injuries or incidents have been reported. This recall involves crib and bunkie mattresses and mattress sets (mattresses and mattresses with foundations) in sizes twin, full, queen and king. The crib and bunkie mattresses do not have any labels. The other mattresses have "Classics," "Classics II," "Imagine," "Sweet Mysteries," "Treasures," or "Comfort Dream" printed on a label located at the top of the foot of the mattress. The "Classics" model manufactured between August 2008 and April 2009 is not included in this recall. This model has a federal label attached that includes the date of manufacture and "Classics." Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10200.html The recalled products were manufactured in Puerto Rico and sold through city Mattress and furniture stores in Puerto Rico from July 2007 through September 2009 for between $30 and $135. Consumers should stop using the mattresses immediately and return them to Tropical Bedding Mfg. for a refund. For additional information, contact Carmen Martinez at (787) 586-1139 between 9:00 a.m. to 5:00 p.m. Monday through Friday. WAL-MART STORES: Ala. Suit Complains About Carpet Steam Cleaners ---------------------------------------------------------------- Tracey Dalzell Walsh at Courthouse News Service reports that two federal class actions claim Wal-Mart sells carpet steam cleaners that do not "produce even a puff of steam." Bissell Homecare is co-defendant in one lawsuit, TTI Floorcare, which makes Hoover carpet cleaners, is co-defendant in the other. The classes claim the steam cleaners use "ordinary hot tap water" that remains unheated in the machines and that Wal-Mart sold them knowing that the "steam vacs" did not really produce steam. Both classes seek restitution, disgorgement, penalties and an injunction. A copy of the Complaint in Green v. Bissell Homecare, Inc., et al., Case No. 10-cv-01023 (N.D. Ala.), is available at: http://www.courthousenews.com/2010/04/21/WalMart.pdf The Plaintiff is represented by: John E. Norris, Esq. D. Frank Davis, Esq. G. Renee Dall, Esq. DAVIS & NORRIS, LLP 2151 Highland Ave., Suite 100 Birmingham, AL 35205 Telephone: 205-930-9900 WILLIAM PENN: Del. Ch. Ct. Awards Legal Fees to Plaintiffs ---------------------------------------------------------- Sheri Qualters at The National Law Journal reports that a Delaware Court of Chancery judge issued a rare ruling ordering defendants in a nearly seven-year legal saga to pay their opponents' attorney fees and costs based on the defendants' prelitigation conduct. In an April 12 letter ruling in Saliba v. William Penn Partnership, Chancellor William B. Chandler III ordered the defendants who orchestrated the contested sale of a motel to pay all of the plaintiffs' attorney fees and court costs and part of their expert witness fees. "Because defendants conducted the sale in a clearly conflicted manner that resulted in a breach of fiduciary duty, I find and conclude that it would be unfair and inequitable to require plaintiffs to shoulder the costs incurred in demonstrating the unfairness of this sales process," Chandler wrote. In the underlying case dating back to December 2003, Anis Saliba and Rosa Ksebe, two trustees of an entity that partly owned Del Bay LLC, a real estate investment and holding company, sued seven parties in Delaware's Chancery Court. The individual and company defendants include Del Bay; partial owners William Penn Partnership and Robert Hoyt; Del Bay managers Bryce Lingo and T. William Lingo; and Lingo-owned companies J.G. Townsend Jr. & Co. and Beacon Revex LLC. The plaintiffs' second amended lawsuit of June 24, 2005, claims that the Lingos arranged with other owners to buy a Del Bay-owned motel and undeveloped land in Lewes, Del., for $6 million in June 2003 to illegally advance their own financial interests. The plaintiffs asked the court to award damages or rescind the transaction in question. According to other court documents, Del Bay ultimately sold the motel and land to the Lingo-owned Townsend for $6.6 million. The case was tried in November 2006. A May 2009 bench ruling held that defendants "utterly failed to present evidence sufficient to meet their burden of showing entire fairness." In September 2009, the court appointed two experts to determine the property's fair market value as of June 2003. A Jan. 22 filing by the plaintiffs disputed the experts' estimated $5.48 million fair market value for the property. The plaintiffs noted that the estimate was based on a routine appraisal and not a bidding process. They also noted that if the Lingos hadn't forced the sale, it would probably have occurred "at an extremely opportune time for sellers in Lewes." The filing also requested attorney fees and costs because the Lingos "acted in a knowing, indefensible, and egregious manner when they manipulated the sales process for their benefit." The plaintiffs claimed the Lingos wanted the below-market deal in order to do a so-called 1031 exchange. Section 1031 of the Internal Revenue Code allows taxpayers to defer capital gains on certain types of property sales if the seller uses the proceeds to buy other property within a set time frame. The lawsuit claims include breach of fiduciary duty, aiding and abetting breaches of fiduciary duty, conspiracy and unjust enrichment. The plaintiffs' lawyer, Peter Walsh, a partner a Potter Anderson & Corroon in Wilmington, Del., did not return calls for comment. The defendants' lawyer, Jeffrey Weiner of Wilmington, said he does not comment on matters in active litigation. Although it's not unprecedented for the Delaware chancery court to award legal fees for egregious prelawsuit conduct, "it is rare," said Francis G.X. Pileggi, a Wilmington, Del., litigation partner at Philadelphia's Fox Rothschild, who isn't involved in the case. Parties involved in U.S. litigation generally pay their own attorney fees unless a statute or agreement dictates otherwise or the case is a class action or a derivative case with a common fund to pay legal costs, Pileggi said. "Egregious, unjustified prelitigation conduct may be an exception to [this] rule, especially when there has been a breach of fiduciary duty and only nominal damages are otherwise available based on the facts of the case," Pileggi said. ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *