/raid1/www/Hosts/bankrupt/CAR_Public/100727.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 27, 2010, Vol. 12, No. 146
Headlines
24 HOUR FITNESS: Defends Hiring and Promotions Practices
ADAMIS PHARMA: Defends "Leahy" Suit in California
AIRTRADE INT'L: Sued for Charging Excessive Ticket Booking Fees
AMERICAN EXPRESS: Judge Dismisses 'Hydra-Like' Complaint
ARIZONA: SEIU Issues Statement on SB1070 Hearing
ATICO INTERNATIONAL: Recalls 324,000 Bamboo Torches
BC FERRIES: Public Guardian Says Proposed Settlement "Too Low"
BLUE CROSS: Faces Class Suit Over ABA Treatment in Michigan
CAPITAL ONE: 9th Circuit Reinstates Deceptive Lending Suit
COMCAST CORP: Accused in Calif. Suit of Not Paying Overtime
GOLDLINE INTERNATIONAL: Faces Suit Over RICO Violations
HERLEY INDUSTRIES: Hearing on $10MM Settlement Set for Sept. 13
HEWLETT-PACKARD CO: Accused of Fraudulent Business Practices
HIENERGY TECH: Fairness Hearing Set for Sept. 27 in California
INLAND WESTERN: Hearing on $90-Mil. Settlement Set for Nov. 8
LAS VEGAS SANDS: Accused in Nevada Suit of Misleading Shareholders
MANATT PHELPS: Sued for Malpractice and Breach of Fiduciary Duty
MGIC INVESTMENT: Motion Opposing Plea to Amend Suit Pending
MOHAWK INDUSTRIES: Employee-Plaintiffs to Get Settlement Checks
PHILIP MORRIS: 11th Cir. Reverses Ruling on Engle Progeny Cases
POLAND: Residents File Joint Compensation Suit Over Floods
SOCAL EDISON: Violated Consent Decrees in Discrimination Suit
SONRAY CAPITAL: Investors to File Class Suit v. Ferrier Hodgson
SONY COMPUTER: Court to Consolidate PS3 Other-OS Removal Suits
SWANK ENERGY: Hearing on Proposed Settlement Set for Sept. 13
TERRAPIN RESTAURANT: Faces Suit in New York Over Skimmed Tips
UAL CORP: Faces Consolidated Suit Over Continental Air Merger
UNITED RENTALS: Plaintiff's Appeal Awaiting Oral Argument
VALEANT PHARMACEUTICALS: Sued for Agreeing to Unfair Merger Terms
VISITBRITAIN: Blames Mobile Spam Messages on 3rd Party
WAL-MART STORES: Sued in Colorado Over Workers' Medical Insurance
WHIRLPOOL CORP: Continues to Defend Breach of Warranty Lawsuits
WHIRLPOOL CORP: Continues to Defend Antitrust Lawsuits
YUM! BRANDS: LSJ Continues to Face Cole Arbitration in Tennessee
YUM! BRANDS: No Resolution Reached in "Chhibber" Mediation
YUM! BRANDS: August 26 Deadline Set for Certification Motions
YUM! BRANDS: State Court Approves Stay of "Rosales" Suit
YUM! BRANDS: Plaintiff's Appeal of Ruling in KFC Suit Ongoing
YUM! BRANDS: Discovery in "Hines" Suit Against KFC Ongoing
YUM! BRANDS: Defends "Moeller" Suit in California
YUM! BRANDS: Pizza Hut's Motion to Dismiss Complaint Pending
*********
24 HOUR FITNESS: Defends Hiring and Promotions Practices
--------------------------------------------------------
As reported by the Class Action Reporter on July 16, 2010, Mexican
American Legal Defense and Educational Fund and the law firm of
Lewis, Feinberg, Lee, Renaker & Jackson, P.C. said they filed a
class action law suit on behalf of employees of 24 Hour Fitness
USA, Inc. alleging discrimination on the basis of race, color,
national origin and gender. The lawsuit, Fulcher v. 24 Hour
Fitness, was filed in Alameda County Superior Court.
Plaintiffs claim that the chain of fitness gyms has systematically
subjected minority and female employees to discrimination
regarding promotions to management positions and equal
compensation in violation of the California Fair Employment and
Housing Act and the California Business and Profession Code.
According to Leiloni De Gruy, staff writer at Los Angeles Wave, 24
Hour Fitness issued a statement to The Wave, stating it "is an
Equal Employment Opportunity Employer and we are deeply committed
to providing a work environment that is free from unlawful
discrimination and retaliation. 24 Hour Fitness makes its hiring
and promotional decisions without regard to race, national origin,
gender or any other protected basis. We firmly deny the
allegations made in the complaint and we expect to prevail when
all the facts are heard."
"Our allegations are that the individuals at the corporate level
are spearheading the discrimination," The Wave quotes Victor
Viramontes, national senior counsel with MALDEF, as saying. "The
basic theory of the case is that 24 Hour Fitness looks a little
bit like a pyramid from the perspective of minorities [and] women.
There are quite a few at the bottom, but as you go further up the
chain of command, they lessen. . . . They are operating with a
glass ceiling and are preventing minorities and women to go up the
chain of command."
According to the Wave, Lead plaintiff Raoul Fulcher Jr., during an
interview last week, alleges that he has been passed up for
promotions because he is African-American. Mr. Fulcher has been
an employee of 24 Hour Fitness since 1993. He took two years off,
then returned in 2003.
Mr. Fulcher began as a sales representative before moving up to
sales manager and assistant general manager. Since 1995, however,
he has held the position of general club manager. The position, he
said, that has been denied to him but has been acquired by
Caucasian males with less years of experience has been that of
district manager.
In a number of instances, Mr. Fulcher approached his District
Manager and Regional Vice President, asking what he needs to do to
receive a promotion. He said he was told that he had to exceed
revenue goals, which he did. Later he was told that a person's
behavior weighs heavily on whether they get the position.
Then in 2007, Mr. Fulcher claims the Regional Vice President came
to his club and questioned its performance. During the
conversation, Mr. Fulcher said the RVP grew enraged and physically
assaulted him. Days later, after Mr. Fulcher complained to the
human resources department, he was given a disciplinary write-up
from the district manager, which inaccurately stated that he had
not hit his revenue goals or provided adequate leadership.
Additionally, he claims he was threatened with being moved to a
smaller, less desirable club location.
"I've witnessed Caucasians at entry level or new hires get
promoted over me," said Mr. Fulcher, "and I have seen this happen
in other cases with other people."
Mr. Fulcher said he believes the lack of promotion has to do with
his race, not his performance. Since joining the chain, Mr.
Fulcher has overseen roughly 17 locations, some of which he was
appointed to open. "You wouldn't trust someone with all of this
if you didn't have faith that they could do the job," he said. "I
believe working the longest, putting forth hard effort needs to be
rewarded. I have gotten positive results from not only staff but
clients whose lives have been changed."
In total there are six named plaintiffs, with African-Americans,
Latinos and Asian-Americans among them.
Gender discrimination is also being alleged by female employees
who say they have been denied promotions and raises. Instead, the
positions and pay increases have gone to men.
Plaintiff Rebecca Mason said this happened in her case between
2008 and 2009. Ms. Mason began as an entry-level sales counselor
before being promoted to assistant membership manager. During the
latter, Ms. Mason said she performed the duties of a membership
manager, while her title and compensation were that of an
assistant membership manager. Ms. Mason claims she was told that
the Berkeley club she was working for had no membership manager
position.
In early 2008, Ms. Mason said she was promised the membership
manager position -- though it would be at a different club -- if
she hit her revenue goals.
"My work at the company was so valued," Ms. Mason said. "And yet
after that, even though I hit and exceeded sales goals, I was
denied any further promotion."
Months later, she said, 24 Hour Fitness created a membership
manager position at the Berkeley club and promoted a much younger
male employee with only several months on the job.
She was then promised the position at another club, but when it
became available, it was given to another male employee. Ms. Mason
was later transferred to a less desirable location in Concord. And
in March 2009 she left the company because she felt that there was
no opportunity to advance.
The complaint further notes that there is no uniform job position
or application process, no promotion criterion, no evaluation
standards and no guidelines to determine managerial compensation
levels.
As a result, reads the complaint, subjective and bias decision-
making has occurred, employees miss out on opportunities because
the company fails to notify them when there is a job opening,
applications are not considered before filling jobs, employees
have no knowledge of what the company is looking for when it comes
to promotions and some promotions are not based on job
performance, but personality or personal connections.
The suit asks the court to order 24 Hour Fitness to end its
discriminatory employment practices and provide back pay and
damages to employees that have been unfairly treated.
The plaintiffs are asking for declaratory relief, injunctive
relief, back pay and punitive damages that exceed $25,000.
At least four of the six named plaintiffs still work for 24 Hour
Fitness. There have been no signs of retaliation thus far, said
Mr. Viramontes.
The filing of the lawsuit is the first public document to begin
litigation. After this, the defendant -- 24 Hour Fitness -- is
expected to respond to the complaint.
According to Mr. Viramontes, 24 Hour Fitness has yet to reply to
the suit.
From there, both sides will build their case with documentation
before going to the court and seeking to have the case certified
as a class action lawsuit.
The Lewis Feinberg firm, along with MALDEF, will seek to recover
data that gives them a breakdown of those in upper-management
positions, including race, gender, performance and the number of
years they have been with the company. They will then compare
those to lower-level positions to see if there are any
discrepancies.
If the complaint is granted class-action status it would represent
hundreds, even thousands, of employees at the roughly 200 clubs
throughout California.
ADAMIS PHARMA: Defends "Leahy" Suit in California
-------------------------------------------------
Adamis Pharmaceuticals Corp. defends the matter Curtis Leahy, et
al. v. Dennis J. Carlo, et al., Case Number 37-2010-00092524-CU-
FR-CTL, pending in the San Diego Superior Court, according to
the company's July 20, 2010, Form 10-K/A filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
March 31, 2010.
The suit was filed in May 2010 and plaintiffs subsequently filed
an amended complaint on June 18, 2010. The plaintiffs -- Antaeus
Capital Partners, Curtis Leahy, and David Amron -- are Adamis
shareholders. The defendants named in the Complaint are the
company, Dennis Carlo, David Marguglio, Robert Hopkins, and
Richard Aloi, who are officers and/or directors of the company.
Plaintiffs allege that defendants misrepresented and omitted
material information in private placement memoranda distributed by
Adamis in 2006 and 2008 regarding, among other things, Adamis'
license rights with respect to certain patented anti-viral
technology; this claim appears to be based in part on the
allegations of the Cosmo plaintiffs in the matter Cosmo
Bioscience, Inc. et al. v. Adamis Pharmaceuticals Corp. and
Maurizio Zanetti.
Based on these purported misrepresentations and omissions,
plaintiffs assert claims for violations of Sections 25401, 25501
and 25504 of the California Corporations Code, and claims for
common law fraud and negligent misrepresentation on behalf of a
putative class of shareholders who purchased stock pursuant to
either or both of the company's 2006 and 2008 Private Placement
Memoranda. Plaintiffs seek damages amounting to the difference
between the purchase price of their stock and the current share
price, or the price at which they previously sold their stock.
Plaintiffs also allege that defendants breached their fiduciary
duties as directors and officers of Adamis with respect to certain
corporate transactions, including the HVG transaction in 2007, the
Cellegy merger in 2008, and the Gemini and G-Max financing
transactions in fiscal 2010. Plaintiffs allege that these
transactions were not in the best interest of the Company and did
not achieve their stated objectives. Plaintiffs further allege
that the director defendants collected excessive compensation in
fiscal years 2008 and 2009, and assert that the company should
have exercised its right to repurchase certain shares issued to
defendants and other senior managers pursuant to the Stock
Repurchase Agreements in 2008 rather than amend those agreements
to extend the dates for meeting the applicable performance
criteria. Based on these allegations, plaintiffs assert claims
for breach of fiduciary duty, unjust enrichment and constructive
trust, declaratory relief, and injunctive relief.
Adamis intends to file a demurrer and motion to strike relating to
the complaint by the end of July 2010.
Adamis Pharmaceuticals Corp. has two wholly owned subsidiaries,
Adamis Laboratories and Adamis Viral Therapies. Adamis Labs
expects to launch a series of niche prescription products in the
allergy and respiratory therapeutic area, including its
Epinephrine Injection USP 1:1000 (0.3mg Pre-Filled Single Dose
Syringe) product launched last year. Adamis Viral Therapies is
focused on the development of patented, proprietary technologies
and recently entered into an agreement with Colby Pharmaceutical
Company to acquire exclusive license agreements covering three
small molecule compounds for the potential treatment of human
prostate cancer.
AIRTRADE INT'L: Sued for Charging Excessive Ticket Booking Fees
---------------------------------------------------------------
Courthouse News Service reports that Airtrade International
overcharges and misrepresents the fees it charges for booking
airline tickets online, a class action claims in Santa Clara
County Court, Calif.
A copy of the Complaint in Hayes v. Airtrade International, Inc.,
et al., Case No. 1-10-CV-177539 (Calif. Super. Ct., Santa Clara
Cty.), is available at:
http://www.courthousenews.com/2010/07/22/CCA.pdf
The Plaintiff is represented by:
Wayne S. Kreger, Esq.
Gillian L. Wade, Esq.
MILSTEIN, ADELMAN & KREGER, LLP
2800 Donald Douglas Loop North
Santa Monica, CA 90405
Telephone: 310-396-9600
- and -
Allan Kanner, Esq.
Conlee S. Whiteley, Esq.
M. Ryan Casey, Esq.
KANNER & WHITELEY, L.L.C.
701 Camp St.
New Orleans, LA 70130
Telephone: 504-524-5777
AMERICAN EXPRESS: Judge Dismisses 'Hydra-Like' Complaint
--------------------------------------------------------
Ross Todd, writing for The New York Law Journal, reports that
after sifting through a plaintiff's "hydra-like" complaint, a
Manhattan judge has dismissed a putative class action, filed on
behalf of a union pension fund, alleging that American Express and
two executives made false and misleading statements to investors
in 2006 and 2007 about the types of credit risk the company faced
as it attempted to expand its share of the credit card market
beyond AmEx's traditional high-end clientele.
"While securities fraud claims must be pled with particularity, a
plaintiff need not lard a pleading with streams of consciousness
from confidential witnesses and block quotes from analyst calls,"
Southern District of New York Judge William H. Pauley wrote in
Local No. 38 International Brotherhood of Electrical Workers
Pension Fund v. American Express Company. "Plaintiff's hydra-like
complaint sprawls over 243 paragraphs, some silted with more than
500 words. For purposes of this motion, this court accepts the
factual allegations in the complaint as true and has endeavored to
summarize them. However, that task was a challenge. Where
distillation eluded this court, the unfiltered allegations are
excerpted. If this sounds like an apologia for the following
summary, it is."
The complaint argued that American Express suffered higher losses
than its competitors during that time period, but Pauley concluded
high losses alone do not support the inference that the defendants
acted with reckless disregard. Pauley wrote that it is likely
AmEx, like many other companies, found its business strategy
undermined by the financial crisis.
"That a business plan turned out to be ill-timed and, in
hindsight, ill-advised does not transmogrify it into a securities
fraud," Judge Pauley wrote.
The judge dismissed the case, giving plaintiffs lawyers from Scott
+ Scott until Aug. 23 to request leave to file an amended
complaint. Beth Kaswan of Scott + Scott declined comment.
ARIZONA: SEIU Issues Statement on SB1070 Hearing
------------------------------------------------
On July 22, the U.S. District Court Judge Sharon Bolton held a
hearing on the class action lawsuit filed by Service Employees
International Union, which charges, among other things, that
SB1070 violates the First Amendment and interferes with federal
law. In response to the hearing, SEIU Executive Vice President
Eliseo Medina issued the following statement:
"Today, millions of Arizonans are holding their breath, hoping
that the Court will insert reason and balance into a debate that
has gotten out of control.
"Arizonans -- like all Americans -- deserve real solutions to fix
our immigration problems. But SB1070 is flawed legislation,
motivated by crass political calculations instead of any real
desire for lasting solutions.
"The law has already turned Arizona into a tense, unwelcoming
place for hard-working U.S. citizens like Fernando Villalobos. No
different than the more than 2 million Latinos, Asians, and other
people of color who live and work in the state, Fernando knows
that if this divisive law goes into effect, he will no longer be
treated equally by law enforcement agencies.
"This law will do more than violate basic civil rights of workers
like Fernando-it will also levy burdensome costs on an already
cash-strapped citizenry and divert scarce resources away from
fighting organized crime and ensuring public safety.
"Arizona residents of good will don't want this law. Those who say
they support it also tell us that what they really want is a
comprehensive, federal fix. They are as desperate as the rest of
us for real solutions that deal with the root problems of our
broken immigration system and move us all forward together.
"On behalf of the people of Arizona and our nation, we look
forward to a quick decision from the Court.
"As we dig ourselves out of the greatest economic crisis in
decades, we cannot allow things to degenerate to a point where all
fifty states are passing their own conflicting, costly and
ineffective immigration laws. American can do better. America must
do better."
ATICO INTERNATIONAL: Recalls 324,000 Bamboo Torches
---------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Atico International USA Inc., of Fort Lauderdale, Fla., announced
a voluntary recall of about 324,000 Bamboo Torches. Consumers
should stop using recalled products immediately unless otherwise
instructed.
The fuel canister that holds the wick of the torch has a sharp
edge inside the lip of the opening that poses a laceration hazard
when consumers try to remove the wick.
The firm has received five reports of lacerations to fingers,
including one that required stitches. Four of the injuries
occurred when consumers were trying to retrieve a wick that had
fallen into the canister.
This recall involves bamboo torches that have a black metal
canister with a smooth black metal lid. The torches are used to
light outdoor gatherings. The following are the UPC numbers
included in this recall. The UPC number can be found on the tag.
Model Number UPC Number Distribution Date Description
------------ ---------- ----------------- -----------
A26I0683 1249584485 February 2008 5"-6" long black
metal canister
with a black
metal lid, a wick
and a wick cap
made of either
dark metal or
wood. The
canister is
wrapped with red
bamboo.
A26I0037 1249597837 Between April 2008
- March 2009 5"-6" long black
metal canister
with a black
metal lid, a wick
and a wick cap
made of either
dark metal or
wood. The
canister is
wrapped with red
bamboo.
A26I0943 639277779885 February 2009 5"-6" long black
canister with a
black metal lid,
a wick and no
wick cap. The
product is sold
in packages of 2.
The canister is
wrapped with
light beige and
dark brown
intertwined
bamboo.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10306.html
The recalled products were manufactured in China and sold through
CVS/Pharmacy, Rite Aid and Dollar Tree/Deals$ stores from February
2008 through March 2010 for between $3 and $5.
Consumers should immediately stop using the recalled torches and
contact Atico International USA for instructions on obtaining a
full refund. For additional information, contact Atico
International USA toll-free at (866) 448-7856 between 9:00 a.m.
and 5:00 p.m., Eastern Time, Monday through Friday or visit the
company's Web site at http://www.aticousa.com/
BC FERRIES: Public Guardian Says Proposed Settlement "Too Low"
--------------------------------------------------------------
Cassidy Olivier, writing for The Province, reports that the
proposed class-action settlement for survivors of the ill-fated
Queen of the North ferry could be quashed if a Supreme Court judge
upholds a challenge by the Public Guardian and Trustee of B.C.
that children named in the suit aren't being adequately
compensated.
Eight children aboard the ship, which sank in March 2006 after
running aground south of Prince Rupert, have been named in the
action which was brought before Justice Brian Joyce in Vancouver
Supreme Court Thursday for approval.
Under the proposed settlement, which will see 45 survivors split
$141,000, five of the children will be awarded $500, two $1,000
and one $2,500.
But Christine Cunningham of the Public Guardian and Trustee argued
that at least five of these settlements are too low, given many of
the young victims continue to suffer from psychological trauma
relating to the ferry's sinking, which killed two people.
Had their claims gone ahead independently of the class action,
they would have been awarded larger settlements, she argued. As
such, she said five of the proposed settlements should be adjusted
to totals ranging from between $2,500 and $8,000.
Should the judge agree with Cunningham's assessment, there's a
chance the settlement could be tossed out, forcing lawyers back to
the drawing board, said lawyer James Hanson, who's representing
the 45 passengers in the suit.
"If the judge were to reject this settlement, it is possible some
of these people will get nothing," he said outside of court.
Mr. Hanson asked the judge to approve the settlement as a best
solution for those involved. While he noted it had been accepted
reluctantly and amid dissatisfaction from some, he noted all the
clients had expressed a willingness to resolve the matter and to
avoid further litigation.
The total of the out-of-court settlement is about $354,000, but
Mr. Hanson explained lawyers fees totaling $55,000, costs
associated with conducting the medical tests and taxes had
whittled the total to about half.
As it stands, about 20 passengers will receive $500, with the
remaining 25 being awarded between $1,000 and $35,000. The groups
are based roughly on cases where the psychological damages were
easily provable and those where the injuries were less easy to
define.
Justice Joyce requested additional information before offering a
decision. Specifically, he wants to know how lawyers plan on
bringing to a close the class-action suit while following an
independent claim from an Australian couple who were aboard the
ferry.
"If I approve this settlement, I want to make sure we don't take a
false step," said the judge.
Mr. Hanson and the lawyer representing B.C. Ferries said they
would make the information available as soon as possible. It's
likely a decision won't be given until next month.
Ninety-nine people, including crew members, were rescued from the
Queen of the North before it sank while making the run from Prince
Rupert to Port Hardy. Two passengers -- Shirley Rosette and
Gerald Foisy -- were never found and have since been declared
dead. Their families have reached settlements.
In 2008, the Transportation Safety Board released a report which
found navigation officer Karl Lilgert and another B.C. Ferries
employee on the bridge that night had failed to make a course
correction which resulted in the ferry running aground.
Mr. Lilgert and the other employee were fired and Mr. Lilgert
later charged criminal negligence causing death. He's pleaded not
guilty.
Another officer, who was on a break that night, was also fired.
BLUE CROSS: Faces Class Suit Over ABA Treatment in Michigan
-----------------------------------------------------------
A school teacher is the latest person to sue Blue Cross for
refusing to authorize payment for applied behavior analysis (ABA)
treatment for children with autism. Karen Barkowska filed a class
action July 22 in Wayne County Circuit Court against Blue Cross
Blue Shield of Michigan, and its educational arm, Michigan
Education Special Services Association (MESSA), over its
characterization of ABA therapy as "experimental."
ABA therapy is known to be extremely effective in treating
children with autism if given at an early stage of development. It
is scientifically validated and includes positive reinforcements
and individual goal setting, to achieve dramatic behavior
modification. ABA therapy allows children with autism the
opportunity to reach maximum potential and the hope of becoming
independent in their adult lives. With virtual unanimity,
physicians, psychiatrists, psychologists, social workers and
mental health professionals, including the United States Surgeon
General, the National Institute of Health, and the American
Academy of Pediatrics regard ABA therapy as an extremely effective
treatment for autism. Yet, Blue Cross refuses to afford this
therapy to autistic children.
Gerard Mantese, Esq., of Troy, Michigan, the lead attorney
representing Ms. Barkowska, stated: "We prevailed against Blue
Cross earlier this year, in the case of Johns v Blue Cross, when
Blue Cross was forced to pay for ABA therapy at Beaumont's GIFT
program. That settlement covered approximately 100 families who
had ABA therapy for their children. Blue Cross said that the
therapy was experimental but we showed from Blue Cross's own
internal files that the care was not experimental but was
scientifically based."
Under the terms of the settlement in Christopher Johns v. Blue
Cross Blue Shield of Michigan, case no. 08-cv-12272, filed in
federal court in Detroit, Blue Cross agreed to reimburse all
families who paid for applied behavior analysis therapy for their
children at Beaumont's GIFT program from May 1, 2003 through May
1, 2009, and who were covered under a Blue Cross Blue Shield of
Michigan insurance policy. Blue Cross had earlier filed a motion
seeking dismissal of virtually the entire case on legal grounds,
but Judge Stephen J. Murphy III permitted the case to go forward
and scheduled the case for further proceedings.
Mr. Mantese added: "The settlement, as confirmed by a federal
judge earlier this year, required Blue Cross to pay for ABA
therapy for a six year period. It is unconscionable that Blue
Cross is still taking the position that this therapy is
experimental. This insurer is attempting to wear down parents who
are trying to access this care for their children. We will not
stop until Blue Cross recognizes the fact that ABA therapy is not
experimental."
Trial in the Barkowska matter is expected to be scheduled for a
date in 2011.
Contact:
Gerard V. Mantese, Esq.
MANTESE HONIGMAN ROSSMAN AND WILLIAMSON P.C.
1361 E. Big Beaver Road
Troy, Michigan 48083
Telephone: 248-457-9200
Facsimile: 248-457-9201
http://www.manteselaw.com
CAPITAL ONE: 9th Circuit Reinstates Deceptive Lending Suit
----------------------------------------------------------
Elizabeth Banicki at Courthouse News Service reports that United
States Court of Appeals for the Ninth Circuit reinstated a class
action accusing Capital One of unfair competition and deceptive
lending for raising annual percentage rates on credit cards
without giving consumers "clear and conspicuous" warnings.
Lead plaintiff Raquel Rubio was offered a Capital One MasterCard
in 2004 with a "fixed" APR of 6.99 percent that could only go up
under three conditions: if she failed to make a payment, went over
her limit or had a payment returned.
After having the card for three and a half years and complying
with the terms of the contract, Rubio claimed her rate shot up to
15.9 percent. She sued Capital One for breach of contract,
violation of the Truth In Lending Act and unfair competition.
A federal judge dismissed the class action, ruling that Capital
One satisfies its obligation to be clear and truthful by stating
that the rates and fees were subject to change. Capital One
reserved the right to "amend or change any part of your Agreement,
including periodic rates and other charges, or add or remove
requirements . . . at any time."
A three-judge panel revived the claims on appeal, ruling that
Capital One can't represent that the rates are "fixed" if they are
not.
"An APR disclosure that is not clear and conspicuous is ipso facto
misleading," Judge Betty Fletcher wrote for the Pasadena-based 9th
Circuit panel.
In a partial dissent, Judge Susan Graber said the case should have
gone to a jury, which might have found the disclosure clear.
"Was there a clear and conspicuous disclosure of the potential for
raising the APR . . . when the solicitation advertised 'a fixed
rate of 6.99%' but stated on the same page that the rates and fees
were 'subject to change'?" Graber asked (original emphasis). "In
my view, there was."
A copy of the Opinion in Rubio v. Capital One Bank, No. 08-56544
(9th Cir.), is available at http://is.gd/dCUUI
The Plaintiff-Appellant is represented by:
Behram V. Parekh, Esq.
Joshua A. Fields, Esq.
KIRTLAND & PACKARD LLP
2361 Rosecrans Ave., 4th Floor
El Segundo, CA 90245
Telephone: 310-536-1000
Capital One Bank is represented by:
James F. McCabe, Esq.
Nancy R. Thomas, Esq.
Michelle N. Comeau, Esq.
MORRISON & FOERSTER LLP
425 Market St.
San Francisco, CA 94105-2482
Telephone: 415-268-7000
COMCAST CORP: Accused in Calif. Suit of Not Paying Overtime
-----------------------------------------------------------
Courthouse News Service reports that Comcast cheats on overtime, a
class action claims in San Francisco Federal Court.
A copy of the Complaint in Djudjo v. Comcast Corporation, Case No.
10-cv-03162 (N.D. Calif.), is available at:
http://www.courthousenews.com/2010/07/22/Employment.pdf
The Plaintiff is represented by:
Robert Ottinger, Esq.
THE OTTINGER FIRM, P.C.
One Market Spear Tower, Suite 3600
San Francisco, CA 94105
Telephone: 415-293-8223
E-mail: robert@ottingerlaw.com
GOLDLINE INTERNATIONAL: Faces Suit Over RICO Violations
-------------------------------------------------------
goupstate.com reports that a Spartanburg attorney has joined with
two nationally known lawyers to file a class-action lawsuit
against California-based Goldline International Inc.
The lawsuit, filed by John B. White Jr., Esq., at Harrison, White,
Smith & Coggins PC at 178 W. Main St., and Craft Hughes and
Fletcher Trammell of Houston, alleges Goldline violated the
Racketeer Influenced and Corrupt Organizations Act and has unfair
and deceptive trade practices.
Goldline is a precious-metal dealer that serves investors and
collectors with a full range of products, including gold, silver
and platinum coins and bars, numismatic coins and rare currency.
The company has gained recognition in the past few years through
its sponsorship of conservative talk show hosts and promotions
from celebrity spokespeople.
"We are bringing this class action against Goldline for
overcharging consumers, deceptive advertising and deceptive sales
techniques," Mr. White said in a statement. "The case alleges that
paid spokespeople have happily agreed to promote Goldline by
playing off the fear of inflation to encourage people to purchase
gold as an investment that will protect them from an out-of-
control government."
The lawsuit also claims the company "grossly" overcharges for
numismatic coins and bullion, falsely asserts that its products
are good investments, and misrepresents its sales people as
investment or financial advisers.
Mr. White said in the statement he believes the facts will show
that Goldline uses conservative rhetoric, high-pressure sales
tactics and tall tales about the future of gold to sell overpriced
coins that can be bought somewhere else far cheaper.
Efforts to get a comment on the lawsuit from a Goldline
representative Wednesday night proved unsuccessful.
HERLEY INDUSTRIES: Hearing on $10MM Settlement Set for Sept. 13
---------------------------------------------------------------
Labaton Sucharow LLP issued a notice to all persons who purchased
or otherwise acquired the publicly traded securities of Herley
Industries, Inc., during the period October 1, 2001, through June
14, 2006, inclusive, and who allegedly sustained a loss as a
result of this acquisition that a hearing will be held on
September 13, 2010, at 9:00 a.m., before the Honorable Juan R.
Sanchez, at the United States District Court for the Eastern
District of Pennsylvania, James A. Bryne United States Courthouse,
601 Market Street, Philadelphia, PA 19106, regarding the Herley
Industries, Inc. Securities Litigation, Case No.
06-cv-2596 (JRS) (Pa. E.D.)
The purpose of the hearing is to determine: (1) whether the
proposed Settlement of the Action for the sum of $10,000,000 in
cash should be approved by the Court as fair, reasonable and
adequate; and (2) the reasonableness of the application of Class
Counsel for payment of attorneys' fees and expenses incurred in
connection with this Action, together with interest and the
expenses of the Class Representative in representing the Class.
Excluded from the Class are Defendants, employees of Defendants,
and the Individual Defendants' immediate families. Copies of the
full printed Notice of Proposed Class Action Settlement and a
Proof of Claim and Release form may be obtained by contacting the
Claims Administrator:
Herley Securities Litigation
c/o The Garden City Group, Inc.
PO Box 9415
Dublin, OH 43017-4515
Tel: 1-800-943-1373
http://www.gardencitygroup.com/
Inquiries, other than requests for information about the status of
a claim, may also be made to Class Counsel:
Labaton Sucharow LLP
140 Broadway
New York, New York 10005
http://www.labaton.com/
To participate in the proposed Settlement and to be eligible to
receive a recovery, a Proof of Claim must be submitted and
postmarked no later than November 13, 2010.
Any objections to the Settlement must be filed with the Court and
served on counsel for the parties on or before August 30, 2010.
HEWLETT-PACKARD CO: Accused of Fraudulent Business Practices
------------------------------------------------------------
Courthouse News Service reports that Hewlett-Packard advertises
notebook computers equipped with wireless cards that operate in
the 2.4 GHz and 5.0 GHz frequencies, though they actually operate
only in the 2.4 GHz band, according to a class action in San Jose
Federal Court.
A copy of the Complaint in Zwart v. Hewlett-Packard Company, Case
No. 1-10-CV-177561 (Calif. Super. Ct., Santa Clara Cty.), is
available at:
http://www.courthousenews.com/2010/07/22/HPCA.pdf
The Plaintiff is represented by:
Jenelle Welling, Esq.
Charles D. Marshall, Esq.
Nicole D. Reynolds, Esq.
GREEN WELLING, P.C.
595 Market St., Suite 2750
San Francisco, CA 94105
Telephone: 415-477-6700
E-mail: cand.uscourts@classcounsel.com
HIENERGY TECH: Fairness Hearing Set for Sept. 27 in California
--------------------------------------------------------------
The Rosen Law Firm, P.A., issued a notice to all persons who
purchased any common stock of HiEnergy Technologies, Inc., during
the period from February 22, 2002 through July 8, 2004, inclusive
that a hearing will be held on September 27, 2010 at 1:30 p.m.
before the Honorable Valerie Baker Fairbank, United States
District Judge of the Central District of California, Western
Division in Courtroom 9, 312 North Spring Street, Los Angeles,
California, in the case In re: Hienergy Technologies, Inc.,
Securities Litigation Master File No. SACV04-1226VBF (JTLx).
The purpose of the hearing is to determine (1) whether proposed
Settlement consisting of the sum of $485,000 to be paid by
Navigators Insurance Company, which issued a Directors and
Officers Liability Insurance Policy to Defendant HiEnergy
Technologies, Inc., should be approved by the Court as fair,
reasonable and adequate for the settlement of all claims asserted
by Lead Plaintiff on behalf of the Class against Navigators; (2)
whether the proposed plan to distribute the settlement proceeds is
fair, reasonable and adequate; and (3) whether the application for
an award of attorneys' fees of twenty-five percent of the
Settlement amount and reimbursement of expenses of not more than
$65,000, and an award to Lead Plaintiff of not more than $4,500
should be approved.
An Order of the United States District Court for the Central
District of California, Western Division approved a Previous
Settlement made by Lead Plaintiff on behalf of all Class Members
with the Chapter 7 Trustee of the bankruptcy estate of HiEnergy,
pursuant to which the Trustee assigned to Lead Plaintiff on behalf
of the Class Members all claims held by the Trustee or the
bankruptcy estate of HiEnergy against Navigators, and pursuant to
which Lead Plaintiff on behalf of all Class Members agreed to pay
the Trustee 25% of the proceeds of money received in their
prosecution of an action against Navigators after first deducting
attorney's fees, the award to Lead Plaintiff, and expenses
approved by the Court. The "Net Settlement Fund" is the amount of
money in the Settlement Fund minus attorney's fees, the award to
Lead Plaintiff, expenses approved by the Court, and the Trustee
Payment.
Copies of a detailed Notice of Pendency and Settlement of Class
Action and the Proof of Claim and Release form may be obtained by
writing to HiEnergy Technologies, Inc. Securities Litigation,
Claims Administrator, c/o Strategic Claims Services, P.O. Box 230,
600 N. Jackson Street, Suite 3, Media, PA 19063, or by visiting
the Web site: http://www.rosenlegal.com/
In order to share in the distribution of the Net Settlement Fund,
a Class Member must submit a Proof of Claim and Release form no
later than September 7, 2010.
Because the Court already certified the Class, a Class Member
cannot exclude himself from the Class.
Objections to the Settlement, Plan of Allocation, or the Request
for Award of Attorneys' Fees, Award to Lead Plaintiff and
Reimbursement of Expenses must be submitted no later than
September 13, 2010, to:
Clerk of the Court United States District Court Central
District of California Western Division
312 N. Spring Street
Los Angeles, CA 90012
- or -
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
Lead Plaintiff's Counsel in the Litigation
350 Fifth Avenue, Suite 5508
New York, NY 10118
Tel: (212) 686-1060
INLAND WESTERN: Hearing on $90-Mil. Settlement Set for Nov. 8
-------------------------------------------------------------
Co-Lead Counsel Chimicles & Tikellis LLP, Labaton Sucharow LLP and
Wolf Haldenstein Adler Freeman & Herz LLP disclose the settlement
of the class action lawsuit captioned City of St. Clair Shores
General Employees Retirement System v. Inland Western Retail Real
Estate Trust, Inc., Case No. 07-c-6174 (N.D. Ill.), which was
filed in November 2007 in federal district court in Chicago,
Illinois. The Court will hold a hearing on November 8, 2010 to
determine whether the proposed Settlement should be finally
approved as fair, reasonable, and adequate.
The Settlement provides for the return to Inland Western Retail
Real Estate Trust, Inc. of 9 million of the 37.5 million shares --
valued by IWEST at the time of the Internalization at $10 per
share, or $90 million for the returned shares -- which were paid
by IWEST in consideration for the purchase of its advisor and
property managers as part of a 2007 "Internalization" transaction
that was the subject of the Lawsuit. The return of the 9 million
shares represents a 24% reduction in the price paid by IWEST and
its shareholders for the Internalization.
The July 14, 2010, Stipulation of Settlement, which is subject to
final approval by the Court, will resolve all claims that were
filed in the Lawsuit against IWEST, The Inland Group, Inc., KPMG
LLP, William Blair & Company LLC, certain IWEST officers and
directors, and other defendants from whom IWEST purchased the
advisor and property managers. The Lawsuit, asserting violations
of the federal securities laws and state common law, was filed on
behalf of IWEST shareholders who were shareholders of record as of
the close of business on August 31, 2007, and who were entitled to
vote on the matters proposed in a proxy solicitation. The Proxy
was filed by IWEST with the Securities and Exchange Commission on
September 10, 2007, and was sent to IWEST shareholders. It was
amended or supplemented on October 10, October 12, and November 9,
2007. The Proxy asked shareholders to approve, at IWEST's
November 13, 2007 shareholder meeting, a transaction called the
"Internalization", whereby IWEST would purchase its property
managers and business advisor in exchange for 37.5 million IWEST
shares. At that time, the Internalization Consideration had a
deemed-value of approximately $375 million. The Lawsuit raised
the questions of whether the Proxy provided shareholders with
sufficient information to intelligently vote on the
Internalization, and whether the amount of the Internalization
Consideration was fair. Defendants have denied and continue to
deny that they have committed any act or omission giving rise to
any liability and/or committed any violation of law or act of
negligence or misconduct. Defendants' denial of liability appears
in Section 8 of the Stipulation of Settlement.
The Settlement provides that a significant portion of the
Internalization Consideration -- 9,000,000 shares of IWEST common
stock -- will be returned to IWEST. The proposed Settlement has
the effect of reducing the Internalization Consideration from 37.5
million shares to 28.5 million shares and represents a 24%
reduction of the Internalization Consideration. In light of the
facts of this Lawsuit and the stage of the litigation, securing
the return of a significant portion of the Internalization
Consideration is an excellent resolution of the Lawsuit, and the
proposed Settlement is fair, reasonable, and adequate and in the
best interests of the Settlement Class.
Members of the Settlement Class should receive the Notice of
Pendency and Proposed Settlement of Class Action on or around
August 3, 2010, which should be read in its entirety for a
description of the terms of the Settlement. Copies of the Class
Notice and related documents will be available at:
http://www.chimicles.com/by no later than August 4, 2010.
Inquiries should be directed to Co-Lead Counsel:
(1) Chimicles & Tikellis LLP specializes in complex
litigation with an emphasis on securities, antitrust, and consumer
cases, and has offices in Haverford, PA and Wilmington, DE. C&T
is a leading class action law firm with a national practice that
strives to advance the interests of its clients by recovering
money they have lost and by obtaining other appropriate relief to
which they are entitled. C&T has succeeded in recouping billions
of dollars of losses for its clients. Visit:
http://www.chimicles.com/
(2) Labaton Sucharow LLP, with offices in New York, New York
and Wilmington, Delaware, is one of the country's premier law
firms representing institutional investors in class action and
complex securities litigation, as well as consumers and businesses
in class actions seeking to recover damages for anticompetitive
practices. The Firm has been a champion of investor and consumer
rights for over 45 years, seeking recovery of current losses and
necessary governance reforms to protect investors and consumers.
Labaton Sucharow has been recognized for its excellence by the
courts and its peers. Visit: http://www.labaton.com/
(3) Wolf Haldenstein Adler Freeman & Herz LLP is one of the
nation's most prominent class action firms. Its Class Action
Litigation Group has been recognized by courts throughout the
country as effective and experienced in securities, consumer,
ERISA and antitrust class actions and shareholder rights
litigation. The firm has recouped billions of dollars on behalf of
investors. Wolf Haldenstein is also a full-service firm with
approximately 65 attorneys in various practice areas, and has
offices in Chicago, New York City and San Diego. Visit
http://www.whafh.com/
Oak Brook, Ill.-based Inland Western Retail Real Estate Trust,
Inc. is a self-managed real estate investment trust (REIT) that
acquires, manages and develops a diversified portfolio of real
estate, primarily multi-tenant shopping centers.
LAS VEGAS SANDS: Accused in Nevada Suit of Misleading Shareholders
------------------------------------------------------------------
Nick Divito at Courthouse News Service reports that executives at
the Las Vegas Sands published false statements about the company's
success and development of the Venetian Macau Resort in China,
which artificially inflated the prices of stock, a couple claims
in a proposed class action filed Wednesday in Federal court on
behalf of "hundreds of thousands" of investors.
Investors Wendell and Shirley Combs filed the lawsuit on behalf of
investors who bought the company's stock between June 13, 2007 and
Nov. 11, 2008.
In their 37-page lawsuit, the couple accuses Sands CEO Sheldon
Adelson and former COO William Weidner of a welter of financial
misdeeds.
The couple says Messrs. Adelson and Weidner drafted and
distributed to shareholders "misstatements" that they knew were
"materially false and misleading."
In the complaint, the couple says the company issued a news
release on June 13, 2007, announcing that the Venetian Macao
Resort Hotel, "Asia's first fully integrated resort and the anchor
property of the company's Cotai Strip development, will open on
Aug. 28, 2007."
A second news release was issued Aug. 1, 2007, announcing that the
company's net revenue had increased 18.6 percent to a record
$612.9 million, compared to $517 million for the same quarter the
previous year.
"With respect to its operations in Macau, the company reported
that 'second quarter casino revenues increased 21.6 percent to an
all-time quarterly record $373.5 million, versus $307.1 million in
the 2006 period," the lawsuit states.
The next day, the company's stock price jumped $6.63 per share, or
7.74 percent, and closed at $92.31 per share. "The stock price
climbed a total of $15.84 per share, or 16.1 percent, to close at
$108.15 per share, over the next five trading days," according to
the complaint.
The Combs say the company then released another statement on
Sept. 5, 2007, "in which it continued to emphasize its prospects
in Macau and represented to the market that business would prosper
there."
The release also said the project had attracted an "unprecedented
amount of visitors," and that transportation to and from the
property ran smoothly for guests to travel across the region.
The company's stock price rose from $102.98 per share on Sept. 6,
2007 to $144.56 per share per share on Oct. 2, 2007.
Plaintiffs say the company then issued another news release
announcing its financial results for the third fiscal quarter
ending Sept. 30, 2007, reporting that the company's revenue had
jumped 19.5 percent to a record $661 million, versus the $553.2
million in the third quarter the previous year.
"Although the company's stock price suffered a string of
consecutive declines, the stock price was nevertheless buoyed by
defendants' statements concerning the Macau operations," the
lawsuit states.
Several days after the Sands announced the launch of a high-speed
ferry between Hong Kong and Macau on Nov. 30, 2007, stock prices
rebounded.
But on Dec. 11, 2007, the Sands was forced to report that the
ferry service was suspended due to legal issues.
Turns out that "increasing competition in Macau was steadily
eroding the company's foothold in the region, which undermined
defendants' representations that everything was proceeding
according to plan," the lawsuit states."
In addition, "the company was facing a significant liquidity
crisis as a result of its ongoing expenditure of capital in Macau
and Singapore, which forced the company to divert funds from other
operations to develop its Asian properties," the lawsuit states."
"The company could not, in fact, weather the economic downturn,
because the credit markets were drying up and Las Vegas Sands had
failed to timely access those markets," according to the
complaint.
Additional visitor restrictions in Macau were also misrepresented,
plaintiffs claim.
Shortly thereafter, the Sands' shares fell from an opening price
of $48.38 per share at close to $45.53 per share.
On Sept. 10, 2008, the Nevada Gaming Control Board released a
report disclosing that the Las Vegas Strip revenue had declined by
approximately 14.7 percent in July 2008, causing Sands' stock to
fall 10.8 percent.
A month later, the Sands announced that Mr. Adelson had pumped a
$475 million private investment to prevent the company from
violating lender covenants.
The next day, Standard & Poor's Rating Services announced that it
was keeping the company's ratings "under review for a potential
downgrade."
"Though defendant Adelson's $475 million investment appeared to
address near-term liquidity concerns, it did little to allay
Standard & Poor's concern over Las Vegas Sands' 'overall liquidity
position, continued weak performance on the Las Vegas Strip and a
possible 'significant' slowdown in the Chinese gambling enclave of
Macau,'" according to the complaint.
The company's stock then fell from $36.47 per share to $31.32 per
share on Oct. 1, 2008, the lawsuit states.
The next day, the company's stock was downgraded due to "concerns
about the slowing grown in Las Vegas and new travel restrictions
in Macau." The company's stock fell an additional 15.4 percent.
The company's stock fell again the next day from $27.44 per share
to $23.11, according to the complaint.
News reports stated on Oct. 20, 2008 that the Sands was still
trying to secure $2 billion in financing for expansion in Macau
even though, according to an article in the South China Morning
Post, "the company had completely scrapped plans to raise money
for the Macau expansion."
Mr. Adelson then contested reports that the Sands had abandoned
the project, and instead announced he was seeking to raise $2
billion from Asian banks to complete work on the expansion
projects.
On Nov. 10, 2008, the company revealed that Goldman Sachs had
arranged $2.14 billion in new capital, including another
"multimillion dollar investment" from Mr. Adelson -- his second
personal investment in the company.
By the end of the next day, shares of the Sands dropped another 17
percent after it was announced that it would suspend construction
in Macau to help save money.
The company also announced that it would make a public offering of
$182 million shares of stock, along with nearly 92 million shares
of preferred stock, to raise more than $2 billion in capital, the
lawsuit states.
But the company did not seek shareholder approval, and instead
"attempted to justify its refusal to obtain shareholder approval
on the purported basis that 'any delay caused by securing
shareholder approval . . . would seriously jeopardize the ability
to complete the offerings as well as the financial viability of
the company," according to the complaint.
Moody's Investors Service cut the company's credit ratings on
Nov. 12, 2008 into junk territory, according to the complaint.
Then, on the "heels of the company's worse-than-expected third
quarter results," plaintiffs say the Sands announced that it would
"fire as many as 11,000 construction workers after a 'cash crunch'
forced it to halt construction on a number of projects, including
two sites in Macau."
By Nov. 21, 2008, the company's stock had sunk to $3.23 per share
after it was revealed that BMO Capital analyst Jeffrey Logsdon
"slashed" the company's 2009 and 2010 adjusted earnings estimates
following the latest capital infusion," the lawsuit states.
The Sands then announced that it would cut 216 jobs from its Las
Vegas properties, and that development of other properties was
halted because of a lack of capital, according to the complaint.
By March 24, 2009, several top executives had resigned from the
company.
"Defendants successfully implemented their scheme to artificially
inflate the price of Las Vegas Sands common stock, which had the
intended effect of stimulating the purchase of the company's
shares and buoying the stock price so as to fund various
extraordinary transactions," the lawsuit states.
"When the scheme began to falter, however, defendant Adelson
utilized his stranglehold over the company to oust Defendant
Weidner, whom he publicly blamed for the company's failings."
"For his part, Defendant Weidner engineered a lucrative exit from
the company," according to the complaint.
Plaintiffs seek class certification and damages for Securities and
Exchange Commission violations.
A similar lawsuit was filed in Las Vegas Federal Court in 2008,
accusing Adelson of overextending construction projects during a
financial downturn and putting future projects in jeopardy.
The Las Vegas Sands owns the Venetian Resort Hotel Casino,
The Palazzo Resort and Casino, The Sands Expo and Convention
Center, The Congress Center, The Sands Macau and the Venetian
Macau Resort Hotel in Macau, China.
The most recent lawsuit was filed by Mark Wray.
A copy of the Complaint in Combs, et al. v. Las Vegas Sands Corp.,
et al., Case No. 10-cv-01210 (D. Nev.), is available at:
http://www.courthousenews.com/2010/07/21/Macao.pdf
The Plaintiffs are represented by:
Mark Wray, Esq.
LAW OFFICES OF MARK WRAY
608 Lander St.
Reno, NV 89509
Telephone: 775-348-8877
- and -
U. Seth Ottensoser, Esq.
Joseph R. Seidman, Jr., Esq.
BERNSTEIN LIEBHARD LLP
10 E. 40th St.
New York, NY 10016
Telephone: 212-779-1414
MANATT PHELPS: Sued for Malpractice and Breach of Fiduciary Duty
----------------------------------------------------------------
Bernard Parrish, et al., on behalf of themselves and others
similarly situated v. Manatt, Phelps & Phillips, LLP, and McKool
Smith, PC, Case No. 10-cv-03200 (N.D. Calif. July 21, 2010), seeks
damages for legal malpractice and breach of fiduciary duty in the
underlying action "Adderly v. National Football League Players
Association and National Football League Players Incorporated
d/b/a Players Inc." Mr. Parrish states that the defendants'
performance as their lawyers in the underlying action "fell below
the standard of care" and that defendants breached their fiduciary
duty by virtue of the attorney-client relationship.
Defendant Manatt is a limited liability partnership headquartered
in Los Angeles, California, while defendant McKool is a
Professional Corporation based in Dallas, Texas.
The Plaintiffs consist of two classes of retired NFL players. The
first class consists of all retired NFL players who were party to
the underlying action and participated in the settlement of that
action. The second class consists of all retired NFL players who
met the definition of the class in the underlying lawsuit but "for
reasons unknown" were excluded.
Mr. Parrish relates that in 2007, he retained defendants Manatt
and McKool to represent himself and other similarly situated
retired National Football League players in a class action lawsuit
alleging breach of contract and breach of fiduciary duty against
the NFLPA and Players, Inc. Mr. Parrish says that he was
originally a class representative in the underlying action that
gave rise to this complaint, but the U.S. Court for the Northern
District Court of California later ruled that he was an inadequate
representative. Mr. Parrish, nonetheless, claims he remains a
member of the class which has been damaged as a result of the
defendants' conduct.
In the complaint, Mr. Parrish says he and Mr. Adderly commenced
the underlying action on behalf of all retired NFL players who
signed standardized group licensing agreements, or GLAs, with the
NFLPA (that acts as the labor union for players in the NFL). In
the Order Granting in Part and Denying in Part Plaintiffs' Motion
for Class Certification, the Court identified multiple vague terms
in the agreement, including: (1) confusion regarding the "escrow
account" mentioned in the GLA; (2) how the retired player's
payments were to be determined; (3) when licensing distributions
were actually made; and (4) which retired players were entitled to
distribution. The Court further found that many retired players
signed the GLAs, but "very few had received anything". In the
underlying action, plaintiffs alleged that the NFLPA breached a
fiduciary duty to pursue licensing opportunities on behalf of the
retired players, concentrating its efforts instead on current
players.
Mr. Parrish narrates that in the jury trial in October 2008, the
Court awarded a $28.1 million verdict in favor of the class for
breach of fiduciary duty, $7.1 million in compensatory damages and
$21 million in punitive damages, and the jury also found a breach
of contract but awarded zero damages on that claim. The
defendants in the underlying action appealed and the case settled
before decision for $26,250,000.
Mr. Parrish relates that a number of class members, including
himself and Mr. Adderly, communicated their objections to the
settlement. Despite a court order requiring plaintiff's counsel
to meet and confer with Mr. Parrish to discuss his objections,
Counsel Mr. Katz indicated that he would not meet and confer, but
would "listen to Mr. Parrish politely on the phone, then tell him
he has no more that the same right as any other citizen to comment
on the settlement, and hang up".
Mr. Parrish explains that the Court set forth two major
deficiencies in defendants' performance in the underlying action
that significantly cut the size of the verdict award by the jury
and consequently had a negative impact on the final value of the
settlement. The first of these deficiencies was defendants'
failure to lay the proper foundation for critical evidence. The
second of the deficiencies was their failure to present a
plausible damages theory on plaintiff's claim for breach of
fiduciary duty.
A copy of the Complaint in Parrish, et al. v. Manatt, Phelphs &
Phillips, LLP, et al., Case No. 10-cv-03200 (N.D. Calif.), is
available at:
http://www.courthousenews.com/2010/07/23/NFLPlayers.pdf
The Plaintiffs are represented by:
Maxwell M. Blecher, Esq.
Theo Giovanni Arbucci, Esq.
BLECHER & COLLINS, P.C.
515 South Figueroa St., Suite 1750
Los Angeles, CA 90071-3334
Telephone: 213-622-4222
E-mail: mblecher@blechercollins.com
jarbucci@blechercollins.com
MGIC INVESTMENT: Motion Opposing Plea to Amend Suit Pending
-----------------------------------------------------------
MGIC Investment Corp.'s motion in opposition to plaintiff's motion
for leave to amend the complaint remains pending in the U.S.
District Court for the Eastern District of Wisconsin, according to
the company's July 20, 2010, Form 8-K filing with the U.S.
Securities and Exchange Commission.
Five previously-filed purported class action complaints filed
against the company and several of its executive officers were
consolidated in March 2009 and Fulton County Employees' Retirement
System was appointed as the lead plaintiff. The lead plaintiff
filed a Consolidated Class Action Complaint on
June 22, 2009.
Due in part to its length and structure, the company says it is
difficult to summarize briefly the allegations in the Complaint
but it appears the allegations are that the company and its
officers named in the Complaint violated the federal securities
laws by misrepresenting or failing to disclose material
information about (i) loss development in the company's insurance
in force, and (ii) C-BASS, including its liquidity.
The company's motion to dismiss the Complaint was granted on Feb.
18, 2010. On March 18, 2010, plaintiffs filed a motion for leave
to file an amended complaint. Attached to this motion was a
proposed Amended Complaint. The Amended Complaint alleges that
the company and two of its officers named in the Amended Complaint
violated the federal securities laws by misrepresenting or failing
to disclose material information about C-BASS, including its
liquidity, and by failing to properly account for the company's
investment in C-BASS. The Amended Complaint also names two
officers of C-BASS with respect to the Amended Complaint's
allegations regarding C-BASS. The purported class period covered
by the Complaint begins on Feb. 6, 2007 and ends on Aug. 13, 2007.
The Amended Complaint seeks damages based on purchases of the
company's stock during this time period at prices that were
allegedly inflated as a result of the purported violations of
federal securities laws.
On April 12, 2010, the company filed a motion in opposition to
Plaintiff's motion for leave to amend its complaint. With limited
exceptions, the company's bylaws provide that its officers are
entitled to indemnification from the company for claims against
them of the type alleged in the Amended Complaint.
MGIC Investment Corporation (NYSE: MTG) -- http://mtg.mgic.com/--
is headquartered in Milwaukee, Wisconsin, and is the parent
company of Mortgage Guaranty Insurance Corporation (MGIC). It
offers mortgage insurance, and risk management products and
services to mortgage lenders as well as structured finance
services to investors.
MOHAWK INDUSTRIES: Employee-Plaintiffs to Get Settlement Checks
---------------------------------------------------------------
Lydia Senn, staff writer at Rome News-Tribune in Georgia, reports
that after a six year battle, employees of Mohawk Industries
involved in a class-action lawsuit could soon receive a settlement
check from the carpet manufacturer.
The lawsuit, which claims the Calhoun-based company hired illegal
immigrants in an effort to keep wages low, was given an
administrative closure by Judge Harold Murphy in U.S. District
Court in Rome, Ga., on Thursday. Plaintiffs are now eligible to
receive payments, Murphy said.
Ronan Doherty, attorney for the plaintiffs, said settlement checks
could arrive as soon as September. While the day was a victory
for Doherty and the other plaintiffs, it was also bittersweet.
Shirley William was the first to file the lawsuit more than six
years ago. She died in July 2007.
"It is very emotional for us because Shirley was one of the first
people I talked to. She was a grandmother when we met; she had a
lot of spunk," said attorney Doherty, an Atlanta-based attorney.
Ms. Williams, along with three other Mohawk employees, alleged the
company violated the federal and Georgia Racketeer Influenced and
Corrupt Organizations Acts by hiring illegal immigrants.
Plaintiffs also alleged that Mohawk harbored illegal workers who
were hired and supplied by temporary employment agencies.
Mohawk has agreed to set up an $18 million fund, with $5 million
coming from the company and Zurich American Insurance Co., which
agreed to cover the additional $13 million. The company must also
review hiring policies and set up a hotline for employees to
report violations.
While Mohawk has not admitted any wrongdoing, the company did
agree to settle, avoiding a potential jury trial, according to the
settlement. Employees with a legitimate claim who were employed by
Mohawk for more than 90 days will receive a minimum of $150.
Employees will receive more based on their length of time with the
company.
"It's been a hard battle," Mr. Doherty said.
Judge Murphy commended both parties on reaching a settlement.
Mohawk employees will receive claims forms in the mail and have
until Aug. 9 to postmark them to be returned.
A full-text copy of the Settlement is available for free at:
http://is.gd/dIWLV
Contact:
Ronan P. Doherty, Esq.
BONDURANT, MIXSON & ELMORE, LLP
1201 W. Peachtree Street, Suite 3900
Atlanta, Georgia 30309
Telephone: 404-881-4100
Facsimile: 404-881-4111
E-mail: doherty@bmelaw.com
PHILIP MORRIS: 11th Cir. Reverses Ruling on Engle Progeny Cases
---------------------------------------------------------------
Philip Morris USA (PM USA) said a federal appeals court on
July 22 severely restricted the ability of approximately 4,000
plaintiffs with so-called Engle progeny cases pending in federal
court to use findings by the prior Engle jury to meet their burden
of proof at trial. None of the plaintiffs who have obtained
verdicts in state court have complied with the requirements set
forth by the July 22 rulings.
The Engle cases filed in federal court follow a 2006 Florida
Supreme Court decision that decertified a class action but allowed
former class members to file individual lawsuits by January 2008.
"We are pleased that the appellate court has rejected arguments by
plaintiffs that they have an automatic and unlimited right to use
the findings," said Murray Garnick, Altria Client Services senior
vice president and associate general counsel, speaking on behalf
of PM USA. "In the court's own words, plaintiffs have a
'considerable task' to show with 'reasonable certainty' that the
facts they want to establish were 'actually decided' by the prior
jury," added Mr. Garnick.
"[The] decision applies directly to the approximately 4,000 claims
pending in federal court, and is persuasive authority for Florida
state courts that have been allowing plaintiffs to rely on the
Engle findings at trial without satisfying the requirements of
Florida law or due process," added Mr. Garnick. As the Eleventh
Circuit noted, "the plaintiffs have pointed to nothing in the
record, and there is certainly nothing in the jury findings
themselves to support their factual assertion" of specific
findings.
Approximately 4,000 claims, or roughly half of those filed in the
wake of the Florida Supreme Court's decision in Engle, are pending
in federal court and were put on hold pending the
July 22 ruling by the Eleventh Circuit Court of Appeals. The
Eleventh Circuit reversed the federal trial courts only because
they inappropriately reached the federal constitutional issue
without first fully addressing the application of state law. These
cases will return to the federal trial courts in which they were
filed for further proceedings.
POLAND: Residents File Joint Compensation Suit Over Floods
----------------------------------------------------------
thenews.pl reported that residents of Sandomierz, Gorzyce and
Tarnobrzeg, who suffered in this spring's floods will be filing a
joint compensation suit against the Polish State.
The flood victims say that the authorities failed to perform their
duties in flood protection and neglected dykes and embankments.
So far 12 people have signed the suit and some 300 more have asked
to be included.
Furthermore, some of the provisions of the new law are not clear.
Joint suits have been made possible by new regulations which came
in last week, among others intended to help cut the costs of court
proceedings.
SOCAL EDISON: Violated Consent Decrees in Discrimination Suit
-------------------------------------------------------------
Chie Akiba at Courthouse News Service reports that Southern
California Edison is facing a third class action in Superior Court
alleging it violated two consent decrees ordering it to stop
discriminating against its black workers. The class claims SoCal
Edison violated the settlements of claims filed in 1974 and 1994,
in which it promised to take "affirmative steps" to hire and
promote black workers. Like the previous class actions, the suit
claims that SoCal Edison discriminated against black workers in
promotions, pay and raises, and in responding to their requests
for transfers. But "Edison's commitment to that consent decree
was short-lived and their disparate treatment of and
discrimination against African American workers continued,"
according to the new complaint.
The class claims that the number of Edison's black employees has
declined, due to Edison's continuing racial harassments and
discrimination. The black workers who remain are harassed, denied
promotion and paid unfairly, according to the complaint.
The 11 named plaintiffs seek punitive damages for the class, and
an end to racial harassments and discrimination.
The Plaintiffs are represented by:
Charles Mathews, Esq.
CHARLES T MATHEWS & ASSOCIATES
2596 Mission St.
San Marino, CA 91108
Telephone: 626-683-8291
SONRAY CAPITAL: Investors to File Class Suit v. Ferrier Hodgson
---------------------------------------------------------------
Gareth Hutchens at The Sydney Morning Herald reports that
disaffected investors exposed to the collapse of Sonray Capital
plan to launch a class action against the administrator, Ferrier
Hodgson, in a bid to unfreeze their accounts.
The Sonray collapse affects about 4,000 investors, leaving more
than $45 million worth of creditors' funds locked up in the hands
of the administrators.
The Sonray Interactive Brokers Action Group represents more than
40 investors and Interactive Brokers account holders, one of the
main trading platforms used by Sonray but rebadged as "Sonray
Global".
The manager of the action group, Adrian Tout, said investors had
formed the collective because administrators were ignoring their
concerns. "Individuals have approached Ferrier, but they were
getting nowhere. They told us that everyone is to be treated on an
equal footing."
The group claims that Sonray Global accounts were meant to be
segregated from Sonray Trader accounts, and the administrator's
description of all Sonray investors as "unsecured creditors" meant
all funds were declared part of a single trust, thus exposing the
Sonray Global account holders to the Sonray collapse when they
should not have been.
The administrator of Sonray, George Georges from Ferrier Hodgson,
said he had not been approached by the group, and that he did not
understand why it would launch a class action.
"We're actually going to be making an application to court to get
some directions from the court to give some guidance on the whole
issue of segregated accounts. They're wasting their time mounting
an action. . . . It just then embroils us, as administrators on
behalf of everybody, in unnecessary legal actions and legal costs
when we need to get a determination for everybody, not just one
group of people," he said.
SONY COMPUTER: Court to Consolidate PS3 Other-OS Removal Suits
--------------------------------------------------------------
Ben Kuchera at Ars Technica reports that a federal court in San
Francisco, California, will bundle all seven suits filed against
Sony Computer Entertainment of America over its removal of the
other-OS feature in their PlayStation 3 into a single class-action
case.
Mr. Kuchera notes that Sony did not make many friends in the tech
community when the company forcibly removed the option to install
Linux via a mandatory firmware update. The problem was simple:
Sony had previously pushed this feature as an advantage its system
held over its competitors, and later assured gamers that it would
continue to be supported. That is, until Sony became spooked about
the possibility of piracy.
"In essence, the claims in these cases are that Sony Computer
Entertainment of America falsely represented that PS3 purchasers
would be able to use their PS3s as a computer by installing
another operating system, such as Linux," a document obtained by
Ars Technica states. "In a recent firmware update, Sony removed
the ability of consumers to utilize this feature. As a result,
seven class actions were filed against Sony in federal court in
San Francisco, California."
This happened at the request of "all counsel," and now the lawyers
involved will work together as a united front against Sony. "At
the request of all of the attorneys, Judge [Richard] Seeborg
ordered that three law firms with offices in San Francisco where
the litigation is pending will serve as co-lead counsel."
A court date is set for sometime in September for the parties to
discuss next steps for the lawsuit.
SWANK ENERGY: Hearing on Proposed Settlement Set for Sept. 13
-------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP and Beckham & Mandel
issued a notice to all persons or entities who purchased or
otherwise acquired shares of the Cushing MLP Total Return Fund
between September 1, 2008, and December 19, 2008, inclusive, and
who sold their shares after December 19, 2008, or who still hold
them, that a hearing will be held on September 13, 2010, at 9:30
a.m. at the United States District Court for the Northern District
of Texas, Courtroom 1627, United States Courthouse, Dallas
Division, 1100 Commerce Street, Dallas, Texas 75242, in connection
with the proposed settlement of the class action captioned Terri
Morse Bachow v. Swank Energy Income Advisers, LP, et al., C.A. No.
3:09-cv-0262-K. The Court will determine whether to approve the
Settlement of the class action before it as fair, reasonable, and
adequate.
Plaintiff alleges in general that Defendants violated Section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by issuing purportedly false and misleading
statements concerning the Fund's net asset value, deferred tax
asset, and the need for a valuation allowance under Financial
Accounting Standard No. 109 during the Class Period. Plaintiff
alleges that she and the other members of the Settlement Class
purchased the Fund's shares during the Class Period at
artificially inflated prices and were damaged as a result thereof.
Any Settlement Class member may object to any aspect of the
Settlement. A written notice of objection must be submitted by
August 30, 2010.
A copy of the Notice may be obtained:
-- by visiting http://www.gardencitygroup.com/
-- by calling 1-800-231-1815, or
-- by writing to:
Cushing MLP Litigation
c/o The Garden City Group, Inc.
P.O. Box 9349
Dublin, OH 43017-4249
TERRAPIN RESTAURANT: Faces Suit in New York Over Skimmed Tips
-------------------------------------------------------------
Joanna Molloy and Scott Shifrel, writing for the New York Daily
News, reports that ex-waiter Christopher Jurowski, 30, filed a
suit in Manhattan Federal Court alleging that the high-end
Terrapin Restaurant in upstate Rhinebeck skimmed tips and made
servers work unpaid overtime.
"He complained about working a shift where everybody did cleanup
and nobody got paid" and was fired, said his lawyer, Todd
Krakower, who is seeking class action status and wants to get
other servers to sign on to the suit.
Incidentally, the wedding rehearsal dinner for the former First
Daughter Chelsea Clinton and fiance Marc Mezvinsky will be catered
by Terrapin at a stone barn owned by Pamela Newhouse in Grasmere,
N.Y., a source told the Daily News.
Contact:
Todd J. Krakower, Esq.
GLASS KRAKOWER LLP
11 Penn Plaza, 5th Floor
New York, NY 10001
Telephone: 877-7GK-FIRM
914-831-1386
845-510-2202
Facsimile: 845-510-2219
E-mail: tk@glasskrakower.com
UAL CORP: Faces Consolidated Suit Over Continental Air Merger
-------------------------------------------------------------
UAL Corporation faces a consolidated suit in connection with its
planned merger with Continental Airlines, Inc., according to the
company's July 20, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
Following Continental and UAL's announcement of a planned merger
transaction on May 2, 2010, three class action lawsuits were filed
against Continental, members of Continental's board of directors
and UAL in the Texas District Court for Harris County.
The lawsuits purport to represent a class of Continental
stockholders opposed to the terms of the merger agreement. The
lawsuits make virtually identical allegations that the
consideration to be received by Continental's stockholders in the
merger is inadequate and that the members of Continental's board
of directors breached their fiduciary duties, by among other
things, approving the merger at an inadequate price under
circumstances involving certain conflicts of interest. The
lawsuits also make virtually identical allegations that UAL and
Continental aided and abetted the Continental board of directors
in the breach of their fiduciary duties to Continental's
stockholders.
Each lawsuit seeks injunctive relief declaring that the merger
agreement was in breach of the Continental directors' fiduciary
duties, enjoining Continental and UAL from proceeding with the
merger unless Continental implements procedures to obtain the
highest possible price for its stockholders, directing the
Continental board of directors to exercise its fiduciary duties in
the best interest of Continental's stockholders and rescinding the
merger agreement.
All three lawsuits have been consolidated before a single judge
and are in preliminary stages of proceedings.
Based in Chicago, Illinois, UAL Corporation --
http://www.united.com/-- is the holding company for United
Airlines, Inc. United Airlines is the world's second largest air
carrier. The airline flies to Brazil, Korea and Germany.
UNITED RENTALS: Plaintiff's Appeal Awaiting Oral Argument
---------------------------------------------------------
The plaintiffs' appeal on the dismissal of the second consolidated
amended complaint against United Rentals, Inc., is now fully
briefed and awaiting oral argument, according to the company's
July 20, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
Subsequent to the company's Nov. 14, 2007 announcement that
affiliates of Cerberus Capital Management, L.P., had notified the
company that they were not prepared to proceed with the purchase
of the company on the terms set forth in the merger agreement,
three putative class action lawsuits were filed against the
company in the U.S. District Court for the District of
Connecticut.
The plaintiff in each of the lawsuits sought to sue on behalf of a
purported class of persons who purchased or otherwise acquired the
company's securities between Aug. 29, 2007 and Nov. 14, 2007.
The lawsuits named as defendants the company, its directors and
certain of its officers and alleged, among other things, that the
named plaintiff and members of the purported class suffered
damages when they purchased or otherwise acquired securities
issued by the company, as a result of false and misleading
statements and/or material omissions relating to the contemplated
merger with affiliates of Cerberus, contained in:
(i) proxy materials that the Company disseminated and/or
filed with the SEC in anticipation of the Oct. 19, 2007
special meeting of stockholders; and/or
(ii) certain of the Company's filings with the SEC and other
public statements.
On the basis of those allegations, plaintiff in each action
asserted claims under Sections 10(b) and 14(a) of the Exchange Act
and Rules 10b-5 and 14a-9 thereunder; and against the individual
defendants under Section 20(a) of the Exchange Act.
The complaints in these actions sought unspecified compensatory
damages, costs, expenses and fees.
The Court subsequently entered an order consolidating the three
actions and appointed First New York Securities, L.L.C. and Omni
Partners LLP as lead plaintiffs for the purported class. The
actions are now consolidated under the caption First New York
Securities, L.L.C., et al. v. United Rentals, Inc., et al.
On March 24, 2008, pursuant to a schedule approved by the Court,
lead plaintiffs filed a consolidated amended complaint, which,
among other things:
(i) amended the purported class period to include
purchasers of our securities from July 23, 2007 to
Nov. 14, 2007;
(ii) dropped as defendants one of our officers and all but
one of our directors;
(iii) named as additional defendants Cerberus, certain of its
affiliates, its chief executive officer and one of its
managing directors; and
(iv) withdrew the previously asserted claim under
Section 14(a) of the Exchange Act and Rule 14a-9
thereunder.
On March 10, 2009, the Court granted defendants' motions to
dismiss the consolidated amended complaint without prejudice, and
granted lead plaintiffs leave to move to reopen the case within 30
days and to file a proposed amended complaint.
On April 9, 2009, lead plaintiffs moved to reopen the case and for
leave to file a second consolidated amended complaint. With the
court's permission, lead plaintiffs filed their second
consolidated amended complaint on April 16, 2009.
The second consolidated amended complaint continued to assert
claims under Sections 10(b) and 20(a) of the Exchange Act and Rule
10b-5 thereunder and, among other things:
(i) amended the purported class period to include
purchasers of our publicly traded securities from
Aug. 30, 2007 to Nov. 14, 2007, and
(ii) dropped as defendants one of the company's directors
and the Cerberus related defendants.
On Aug. 24, 2009, the Court granted defendants' motion to dismiss
the second consolidated amended complaint with prejudice and
subsequently entered judgment in favor of defendants.
On Sept. 22, 2009, lead plaintiffs filed a notice of appeal from
the judgment dismissing the consolidated actions.
The appeal from the U.S. District Court for the District of
Connecticut's judgment granting defendants' motion to dismiss is
now fully briefed and awaiting oral argument, which is currently
scheduled for late August 2010.
Greenwich, Connecticut-based United Rentals, Inc. --
http://www.unitedrentals.com/-- is the largest equipment rental
company in the world, with an integrated network of 568 rental
locations in 48 states, 10 Canadian provinces and Mexico. The
company's 8,000 employees serve construction and industrial
customers, utilities, municipalities, homeowners and others.
VALEANT PHARMACEUTICALS: Sued for Agreeing to Unfair Merger Terms
-----------------------------------------------------------------
Donald Porto, on behalf of himself and others similarly situated
v. Valeant Pharmaceuticals International, et al., Case No. 5644
(Del. Ch. Ct. July 16, 2010), accuses certain of Valeant's
directors and officers of breaching their fiduciary duties owed to
the Company's public shareholders in connection with the proposed
merger of Valeant with Biovail Corporation; and Biovail and
Valeant of aiding and abetting said directors and officers' breach
of their fiduciary duties.
Valeant's lead product candidates include retigabine for the
treatment of epilepsy and pain and taribavirin for the treatment
of rosacea, acne, and dermatological fungus.
Plaintiffs state that on June 21, Valeant and Biovail announced
that they had entered into a definitive agreement for Biovail to
acquire Valeant in a transaction valued at $3.2 billion, pursuant
to which Valeant's public shareholders are to receive a total cash
payment of $18.55, in the form of a dividend of $16.77 and a
second dividend of $1.78 to be paid in 2010. Valeant's public
shareholders will also receive 1.78 Biovail shares for each
Valeant share.
Plaintiffs say that the offer price is too low and was obtained
via an unfair process, and that the proposed transaction benefits
only the individual defendants, at the expense to the Company's
public shareholders. Plaintiffs relate that based on the closing
price of Biovail stock prior to the announcement of the merger,
the offer price represents roughly $42.77 per Valeant share, or a
6.75% discount when compared to Valeant's trading price of $45.87
on June 18, 2010, the last trading day prior to the merger
announcement. Plaintiffs explain that since the announcement,
Valeant stock has been trading well over the offer price, closing
at $52.54 on July 14, 2010, and that Wall Street analysts have
valued Valeant stock as high as $66.00 per share.
Defendant Michael Pearson, Valeant's Chairman and CEO, will retain
his position and profitable salary as the CEO of the combined
company and that five Board members will remain on the board of
the combined company and will continue to receive the benefits
they received prior to the merger. Defendant Robert A. Ingram
will remain as lead independent director of the combined company,
and G. Mason Morfit, Chairman of Valeant's Special Committee and
member of ValueAct Capital Management, L.P., one of Valeant's
largest investors, will remain on the board of the combined
company.
Plaintiffs add that to ensure the completion of the merger,
Valeant insiders have agreed to "onerous deal protection devices"
including a voting agreement with ValueAct that effectively locks
up roughly 20% of the vote in favor of the proposed merger and a
termination fee of $100 million.
The Plaintiffs is represented by:
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Brandywine Building
1000 West Street, 10th Floor
Wilmington, DE 19801
Telephone: 302-984-3800
- and -
FARUQI & FARUQI, LLP (Of Counsel)
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: 212-983-9330
VISITBRITAIN: Blames Mobile Spam Messages on 3rd Party
------------------------------------------------------
Kevin May and Dennis Schaal at Tnooz report that VisitBritain is
at the center of a potential class action in the U.S. following
complaints from students about alleged spam SMS messages being
sent to mobile phones.
Buried within VisitBritain's annual report issued early July was
mention of a case filed in the Los Angeles federal court from
September 2009. VisitBritain admits that it could be liable if it
is found guilty of sending unsolicited messages to mobile numbers
of U.S. students to promote the UK as a destination, contravening
the U.S. Telephone Consumer Protection Act.
The message, part of its Campus Program marketing plan, read:
BRITAIN ROCKS! ENTER 4 UR CHANCE 2 WIN A TRIP FOR 2 TO
BRITAIN! GET FREE TRAVEL INFO PACK & BRITISH MP3S AT
WWW.VISITBRITAIN.COM. PWDBYNEXTONES. SENDSTOP2OPTOUT.
The action also seeks to reprimand a mobile messaging service
called MindMatics alongside VisitBritain.
The plaintiff in the case is Frieda Zeidel, an Illinois resident
who claims to be bringing the action on behalf of herself and a
nationwide class of similarly impacted individuals.
If found guilty VisitBritain and MindMatics could be fined $500
for every individual affected, if the judge in the case eventually
deems it a full class action.
The case actually stems back to February 2006, when Ms. Zeidel
says she received the first in a series of messages from
VisitBritain spreading over several months. The defendant also
claims she had to pay her mobile network provider in order to
receive the messages.
VisitBritain has declined to comment on the case, but in court
documents says Ms. Zeidel has "unreasonably delayed" bringing
forward the complaint and therefore the case should not stand.
MindMatics denies any wrongdoing.
VisitBritain filed in February 2010 a third party complaint
against an Ontario, Canada-based PR company known as Savvy
Strategic R&M. However, it turns out that VisitBritain actually
misnamed the company, which is Savvy Strategic R&M. According to
VisitBritain, Savvy was contracted as project manager to design
and implement the Campus Program to attract college students to
Britain. Savvy was alleged to have subcontracted the work out to
others in order to visit campuses and obtain personal information
from students. VisitBritain says it instructed Savvy to only send
SMS promos to those that had given consent to do so. VisitBritain
was seeking indemnification for any damages and costs from Savvy
arising from the Zeidel case -- an action Savvy denied. But in
another twist to the case, a judge in late July dismissed
VisitBritain's action against Savvy "without prejudice", although
VisitBritain can effectively return to court and file another
third party complaint at a later date.
For its part, Savvy Strategic R&M admitted it contracted with
VisitBritain to conduct on-campus promotional activity, but
alleges VisitBritain knew Savvy would have to subcontract any text
messaging services to another company. Savvy says it contracted
with a company named Launch Pad to acquire valid phone numbers,
belonging to people who had opted-in for the VisitBritain
campaign, and Savvy says Launch Pad contracted with Mindmatics "to
transmit the text messages approved by VisitBritain."
WAL-MART STORES: Sued in Colorado Over Workers' Medical Insurance
-----------------------------------------------------------------
The Wall Street Journal reported Wednesday that Wal-Mart is facing
a class-action lawsuit in Colorado over allegedly working with
their insurance supplier to "dictate, withhold, delay, deny or
interfere with" workers' medical care.
The lawsuit, filed on behalf of 7,000 current employees in
Colorado, alleges that Wal-Mart, its workers' compensation
insurers, and several third-party groups all conspired to create
and enact policies designed to deny or delay medical treatment for
on-the-job injuries.
Lawyers for Wal-Mart, Concentra Inc., which operates 300 medical
centers and 250 workplace clinics, and American Home deny the
allegations. Spokesman Greg Rossiter told Fox News, "The health
and wellness of our associates is important to Wal-Mart, and we
want our associates to get the best treatment and care."
According to the National Law Journal, Wal-Mart argues the
policies have been changed and, therefore, the lawsuit is no
longer relevant.
WHIRLPOOL CORP: Continues to Defend Breach of Warranty Lawsuits
---------------------------------------------------------------
Whirlpool Corporation is currently defending a number of class
action suits in federal and state courts alleging breach of
warranty, fraud and violation of state consumer protection acts.
The company says that there are no allegations of any personal
injury or property damage but unspecified compensatory damages are
being sought.
No additional information was disclosed in the company's July 20,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
Whirlpool Corporation -- http://www.whirlpoolcorp.com/--
manufactures and marketa major home appliances, with annual sales
of approximately $17 billion in 2009, 67,000 employees, and 67
manufacturing and technology research centers around the world.
The company markets Whirlpool, Maytag, KitchenAid, Jenn-Air,
Amana, Brastemp, Consul, Bauknecht and other major brand names to
consumers in nearly every country around the world.
WHIRLPOOL CORP: Continues to Defend Antitrust Lawsuits
------------------------------------------------------
Whirlpool Corporation continues to remain a defendant in numerous
related antitrust lawsuits connection with the pricing of
compressors from 1996 to 2009.
Since the government investigations became public in February
2009, the company has been named as a defendant in numerous
related antitrust lawsuits in various jurisdictions seeking
damages in connection with the pricing of compressors from 1996 to
2009. Several other compressor manufacturers who are the
subject of the government investigations have also been named as
defendants in the litigation.
United States federal lawsuits instituted on behalf of purported
purchasers and containing class action allegations have been
combined in one proceeding in the United States District Court for
the Eastern District of Michigan.
No additional information was disclosed in the company's July 20,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
Whirlpool Corporation -- http://www.whirlpoolcorp.com/--
manufactures and marketa major home appliances, with annual sales
of approximately $17 billion in 2009, 67,000 employees, and 67
manufacturing and technology research centers around the world.
The company markets Whirlpool, Maytag, KitchenAid, Jenn-Air,
Amana, Brastemp, Consul, Bauknecht and other major brand names to
consumers in nearly every country around the world.
YUM! BRANDS: LSJ Continues to Face Cole Arbitration in Tennessee
----------------------------------------------------------------
Long John Silver continues to faces the Cole Arbitration, which is
proceeding as an "opt-out" class action, according to YUM! Brands,
Inc.'s July 20, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 12, 2010.
Long John Silver is a concept owned and operated by YUM! Brands
On Nov. 26, 2001, Kevin Johnson, a former Long John Silver's
restaurant manager, filed a collective action against LJS in the
U.S. District Court for the Middle District of Tennessee alleging
violation of the Fair Labor Standards Act on behalf of himself and
allegedly similarly-situated LJS general and assistant restaurant
managers. Johnson alleged that LJS violated the FLSA by
perpetrating a policy and practice of seeking monetary restitution
from LJS employees, including Restaurant General Managers ("RGMs")
and Assistant Restaurant General Managers ("ARGMs"), when monetary
or property losses occurred due to knowing and willful violations
of LJS policies that resulted in losses of company funds or
property, and that LJS had thus improperly classified its RGMs and
ARGMs as exempt from overtime pay under the FLSA. Johnson sought
overtime pay, liquidated damages, and attorneys' fees for himself
and his proposed class.
LJS moved the Tennessee district court to compel arbitration of
Johnson's suit. The district court granted LJS's motion on
June 7, 2004, and the U.S. Court of Appeals for the Sixth Circuit
affirmed on July 5, 2005.
On Dec. 19, 2003, while the arbitrability of Johnson's claims was
being litigated, former LJS managers Erin Cole and Nick Kaufman,
represented by Johnson's counsel, initiated arbitration with the
American Arbitration Association. The Cole Claimants sought a
collective arbitration on behalf of the same putative class as
alleged in the Johnson lawsuit and alleged the same underlying
claims.
On June 15, 2004, the arbitrator in the Cole Arbitration issued a
Clause Construction Award, finding that LJS's Dispute Resolution
Policy did not prohibit Claimants from proceeding on a collective
or class basis. LJS moved unsuccessfully to vacate the Clause
Construction Award in federal district court in South Carolina.
On Sept. 19, 2005, the arbitrator issued a Class Determination
Award, finding, inter alia, that a class would be certified in the
Cole Arbitration on an "opt-out" basis, rather than as an "opt-in"
collective action as specified by the FLSA.
On Jan. 20, 2006, the district court denied LJS's motion to vacate
the Class Determination Award and the U.S. Court of Appeals for
the Fourth Circuit affirmed the district court's decision on Jan.
28, 2008. A petition for a writ of certiorari filed in the U.S.
Supreme Court seeking a review of the Fourth Circuit's decision
was denied on Oct. 7, 2008.
The parties participated in mediation on April 24, 2008, on Feb.
28, 2009, and again on Nov. 18, 2009 without reaching resolution.
Arbitration on liability during a portion of the alleged
restitution policy period began in November, 2009 and, after a
delay at the request of the plaintiffs, concluded in June, 2010
and a ruling on liability for that portion of the policy period is
expected in August. Arbitration with respect to the remaining
alleged restitution policy period has not been scheduled.
Based on the rulings issued to date in this matter, the Cole
Arbitration is proceeding as an "opt-out" class action, rather
than as an "opt-in" collective action.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in
Unconsolidated Affiliates who operate similar to franchisees.
YUM! BRANDS: No Resolution Reached in "Chhibber" Mediation
----------------------------------------------------------
No resolution was reached in a mediation participated by the
parties in a consolidated suit against Taco Bell Corp., according
to YUM! Brands, Inc.'s July 20, 2010, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 12, 2010.
Taco Bell is a concept owned and operated by YUM! Brands.
On Aug. 4, 2006, a putative class action lawsuit against Taco Bell
styled Rajeev Chhibber vs. Taco Bell Corp. was filed in Orange
County Superior Court.
On Aug. 7, 2006, another putative class action lawsuit styled
Marina Puchalski v. Taco Bell Corp. was filed in San Diego County
Superior Court.
Both lawsuits were filed by a Taco Bell Restaurant General Manager
purporting to represent all current and former RGMs who worked at
corporate-owned restaurants in California since August 2002. The
lawsuits allege violations of California's wage and hour laws
involving unpaid overtime and meal period violations and seek
unspecified amounts in damages and penalties. The cases were
consolidated in San Diego County as of Sept. 7, 2006.
Based on plaintiffs' revised class definition in their class
certification motion, Taco Bell removed the case to federal court
in San Diego on Aug. 29, 2008.
On March 17, 2009, the court granted plaintiffs' motion to remand.
On Jan. 29, 2010, the court granted the plaintiffs' class
certification motion with respect to the unpaid overtime claims of
RGMs and Market Training Managers but denied class certification
on the meal period claims.
The parties participated in mediation on May 26, 2010, without
reaching resolution.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in Unconsolidated
Affiliates who operate similar to franchisees.
YUM! BRANDS: August 26 Deadline Set for Certification Motions
-------------------------------------------------------------
The U.S. District Court for the Eastern District of California has
set Aug. 26, 2010, as the deadline for filing motions regarding
class certification in a consolidated suit against Taco Bell
Corp., according to YUM! Brands, Inc.'s July 20, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 12, 2010.
Taco Bell is a concept owned and operated by YUM! Brands.
On Sept. 10, 2007, a putative class action against Taco Bell
Corp., the company and other related entities styled Sandrika
Medlock v. Taco Bell Corp., was filed in U.S. District Court,
Eastern District, Fresno, California. The case was filed on
behalf of all hourly employees who have worked at corporate-owned
restaurants in California since September 2003 and alleges
numerous violations of California labor laws including unpaid
overtime, failure to pay wages on termination, denial of meal and
rest breaks, improper wage statements, unpaid business expenses
and unfair or unlawful business practices in violation of
California Business & Professions Code Section 17200. The company
was dismissed from the case without prejudice on January 10, 2008.
On April 11, 2008, Lisa Hardiman filed a Private Attorneys General
Act complaint in the Superior Court of the State of California,
County of Fresno against Taco Bell Corp., the company and other
related entities. This lawsuit, styled Lisa Hardiman vs. Taco
Bell Corp., et al., was filed on behalf of Hardiman individually
and all other aggrieved employees pursuant to PAGA. The complaint
seeks penalties for alleged violations of California's Labor Code.
On June 25, 2008, Hardiman filed an amended complaint adding class
action allegations on behalf of hourly employees in California
very similar to the Medlock case, including allegations of unpaid
overtime, missed meal and rest periods, improper wage statements,
non-payment of wages upon termination, unreimbursed business
expenses and unfair or unlawful business practices in violation of
California Business & Professions Code Section 17200.
On June 16, 2008, a putative class action lawsuit against Taco
Bell Corp. and the company, styled Miriam Leyva vs. Taco Bell
Corp., et al., was filed in Los Angeles Superior Court. The case
was filed on behalf of Leyva and purportedly all other California
hourly employees and alleges failure to pay overtime, failure to
provide meal and rest periods, failure to pay wages upon
discharge, failure to provide itemized wage statements, unfair
business practices and wrongful termination and discrimination.
The company was dismissed from the case without prejudice on
August 20, 2008.
On Nov. 5, 2008, a putative class action lawsuit against Taco Bell
Corp. and the company styled Loraine Naranjo vs. Taco Bell Corp.,
et al., was filed in Orange County Superior Court. The case was
filed on behalf of Naranjo and purportedly all other California
employees and alleges failure to pay overtime, failure to
reimburse for business related expenses, improper wage statements,
failure to pay accrued vacation wages, failure to pay minimum wage
and unfair business practices. The company filed a motion to
dismiss on Dec. 15, 2008, which was denied on Jan. 20, 2009.
On March 26, 2009, Taco Bell was served with a putative class
action lawsuit filed in Orange County Superior Court against Taco
Bell and the company styled Endang Widjaja vs. Taco Bell Corp., et
al. The case was filed on behalf of Widjaja, a former California
hourly assistant manager, and purportedly all other individuals
employed in Taco Bell's California restaurants as managers and
alleges failure to reimburse for business related expenses,
failure to provide rest periods, unfair business practices and
conversion. Taco Bell removed the case to federal district court
and filed a notice of related case. On June 18, 2009 the case was
transferred to the Eastern District of California.
On May 19, 2009 the court granted Taco Bell's motion to
consolidate the Medlock, Hardiman, Leyva and Naranjo matters, and
the consolidated case is styled In Re Taco Bell Wage and Hour
Actions. On July 22, 2009, Taco Bell filed a motion to dismiss,
stay or consolidate the Widjaja case with the In Re Taco Bell Wage
and Hour Actions, and Taco Bell's motion to consolidate was
granted on Oct. 19, 2009.
The In Re Taco Bell Wage and Hour Actions plaintiffs filed a
consolidated complaint on June 29, 2009, and on March 30, 2010 the
court approved the parties' stipulation to dismiss YUM from the
action. The court set a filing deadline of Aug. 26, 2010, for
motions regarding class certification. The hearing on any class
certification motion is currently scheduled for Jan. 10, 2011.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in Unconsolidated
Affiliates who operate similar to franchisees.
YUM! BRANDS: State Court Approves Stay of "Rosales" Suit
--------------------------------------------------------
The Orange County Superior Court has approved Taco Bell Corp.'s
motion to stay the putative class action styled Marisela Rosales
v. Taco Bell Corp., according to YUM! Brands, Inc.'s July 20,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 12, 2010.
The suit was filed on Sept. 28, 2009, in Orange County Superior
Court.
The plaintiff, a former Taco Bell crew member, alleges that Taco
Bell failed to timely pay her final wages upon termination, and
seeks restitution and late payment penalties on behalf of herself
and similarly situated employees. This case, according to the
company, appears to be duplicative of the In Re Taco Bell Wage and
Hour Actions case.
Taco Bell removed the case to federal court on Nov. 5, 2009, and
subsequently filed a motion to dismiss, stay or transfer the case
to the same district court as the In Re Taco Bell Wage and Hour
Actions case.
The parties stipulated to remand of the case to Orange County
Superior Court on March 18, 2010. Taco Bell's answer or other
responsive pleading was due by April 19, 2010.
The state court granted Taco Bell's motion to stay the Rosales
case on May 28, 2010, but required Taco Bell to give notice to
Rosales' counsel of the In Re Taco Bell Wage and Hour Actions
mediation.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in
Unconsolidated Affiliates who operate similar to franchisees.
YUM! BRANDS: Plaintiff's Appeal of Ruling in KFC Suit Ongoing
-------------------------------------------------------------
The plaintiff's appeal on the ruling that his suit against KFC
U.S. Properties, Inc., would not go forward as a class action is
ongoing, according to YUM! Brands, Inc.'s July 20, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 12, 2010.
On Oct. 14, 2008, a putative class action, styled Kenny Archila v.
KFC U.S. Properties, Inc., was filed in California state court on
behalf of all California hourly employees alleging various
California Labor Code violations, including rest and meal break
violations, overtime violations, wage statement violations and
waiting time penalties. KFC removed the case to the U.S. District
Court for the Central District of California on Jan. 7, 2009.
On July 7, 2009, the Judge ruled that the case would not go
forward as a class action. Plaintiff also sought recovery of
civil penalties under the California Private Attorney General Act
as a representative of other "aggrieved employees." On Aug. 3,
2009, the Court ruled that the plaintiff could not assert such
claims and the case had to proceed as a single plaintiff action.
On the eve of the Aug. 18, 2009 trial, the plaintiff stipulated to
a dismissal of his individual claims with prejudice but reserved
his right to appeal the Court's rulings regarding class and PAGA
claims. KFC reserved its right to make any and all challenges to
the appeal.
On or about Sept. 16, 2009, plaintiff filed a notice of appeal.
Plaintiff filed his opening appellate brief on March 31, 2010, KFC
filed its opposition brief on May 28, 2010 and plaintiff filed his
reply brief on June 25, 2010.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in
Unconsolidated Affiliates who operate similar to franchisees.
YUM! BRANDS: Discovery in "Hines" Suit Against KFC Ongoing
----------------------------------------------------------
Discovery with respect to the class certification motion in the
matter Domonique Hines v. KFC U.S. Properties, Inc., is ongoing,
according to YUM! Brands, Inc.'s July 20, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 12, 2010.
On Oct. 2, 2009, a putative class action was filed in California
state court on behalf of all California hourly employees alleging
various California Labor Code violations, including rest and meal
break violations, overtime violations, wage statement violations
and waiting time penalties. Plaintiff is a current non-managerial
KFC restaurant employee represented by the same counsel that filed
the suit Kenny Archila v. KFC U.S. Properties, Inc.
KFC filed an answer on Oct. 28, 2009, in which it denied
plaintiff's claims and allegations. KFC removed the action to the
U.S. District Court for the Southern District of California on
Oct. 29, 2009. KFC filed a motion to transfer the action to the
Central District of California due to the overlapping nature of
the claims in this action and the Archila action. Plaintiff filed
a motion to remand the action to state court. The District Court
denied both motions.
Plaintiff filed a motion for class certification on May 20, 2010,
and a hearing with respect to plaintiff's motion, which KFC has
opposed, is scheduled for July 30, 2010. Discovery with respect
to the class certification motion is ongoing. No trial date has
been set.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in Unconsolidated
Affiliates who operate similar to franchisees.
YUM! BRANDS: Defends "Moeller" Suit in California
-------------------------------------------------
Taco Bell Corp. continues to defend the matter Moeller, et al. v.
Taco Bell Corp., pending in the U.S. District Court for the
Northern District of California, according to YUM! Brands, Inc.'s
July 20, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 12, 2010.
The class action was filed on Dec. 17, 2002. On Aug. 4, 2003,
plaintiffs filed an amended complaint that alleges, among other
things, that Taco Bell has discriminated against the class of
people who use wheelchairs or scooters for mobility by failing to
make its approximately 220 company-owned restaurants in California
accessible to the class.
Plaintiffs contend that queue rails and other architectural and
structural elements of the Taco Bell restaurants relating to the
path of travel and use of the facilities by persons with mobility-
related disabilities do not comply with the U.S. Americans with
Disabilities Act, the Unruh Civil Rights Act, and the California
Disabled Persons Act.
Plaintiffs have requested:
(a) an injunction from the District Court ordering Taco
Bell to comply with the ADA and its implementing
regulations;
(b) that the District Court declare Taco Bell in violation
of the ADA, the Unruh Act, and the CDPA; and
(c) monetary relief under the Unruh Act or CDPA.
Plaintiffs, on behalf of the class, are seeking the minimum
statutory damages per offense of either $4,000 under the Unruh Act
or $1,000 under the CDPA for each aggrieved member of the class.
Plaintiffs contend that there may be in excess of 100,000
individuals in the class.
On Feb. 23, 2004, the District Court granted plaintiffs' motion
for class certification. The class includes claims for injunctive
relief and minimum statutory damages.
On May 17, 2007, a hearing was held on plaintiffs' Motion for
Partial Summary Judgment seeking judicial declaration that Taco
Bell was in violation of accessibility laws as to three specific
issues: indoor seating, queue rails and door opening force. On
Aug. 8, 2007, the court granted plaintiffs' motion in part with
regard to dining room seating. In addition, the court granted
plaintiffs' motion in part with regard to door opening force at
some restaurants (but not all) and denied the motion with regard
to queue lines.
The parties participated in mediation on March 25, 2008, and again
on March 26, 2009, without reaching resolution.
On Dec. 16, 2009, the court denied Taco Bell's motion for summary
judgment on the ADA claims and ordered plaintiff to file a
definitive list of remaining issues and to select one restaurant
to be the subject of a trial. The trial will be bifurcated and
the first stage will address equitable relief and whether
violations existed at the restaurant. Taco Bell will have the
opportunity to renew its motion for summary judgment on those
issues. Depending on the findings in the first stage of the
trial, the court may address the issue of damages in a separate,
second stage.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in Unconsolidated
Affiliates who operate similar to franchisees.
YUM! BRANDS: Pizza Hut's Motion to Dismiss Complaint Pending
------------------------------------------------------------
Pizza Hut, Inc.'s motion to dismiss an amended complaint alleging
violations of the Fair Labor Standards Act remains pending,
according to YUM! Brands, Inc.'s July 20, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 12, 2010.
On July 9, 2009, a putative class action styled Mark Smith v.
Pizza Hut, Inc. was filed in the U.S. District Court for the
District of Colorado.
The complaint alleges that Pizza Hut did not properly reimburse
its delivery drivers for various automobile costs, uniforms costs,
and other job-related expenses and seeks to represent a class of
delivery drivers nationwide under the Fair Labor Standards Act and
Colorado state law.
On Jan. 4, 2010, plaintiffs filed a motion for conditional
certification of a nationwide class of current and former Pizza
Hut, Inc. delivery drivers.
However, on March 11, 2010, the court granted Pizza Hut's pending
motion to dismiss for failure to state a claim, with leave to
amend. On March 31, 2010, plaintiffs filed an amended complaint,
which in addition to the federal FLSA claims asserts state-law
class action claims under the laws of 16 different states. Pizza
Hut has filed a motion to dismiss the amended complaint.
YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service
restaurant (QSR) with over 35,000 units in more than 100 countries
and territories. Through the five concepts of KFC, Pizza Hut,
Taco Bell, LJS and A&W (the Concepts), the company develops,
operates, franchises and licenses a worldwide system of
restaurants, which prepare, package and sell a menu of food items.
In all five of its Concepts, the company either operates units or
they are operated by independent franchisees or licensees under
the terms of franchise or license agreements. In addition, the
company owns non-controlling interests in Unconsolidated
Affiliates who operate similar to franchisees.
*********
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
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez,
Joy A. Agravante, Ronald Sy and Peter A. Chapman, Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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