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C L A S S A C T I O N R E P O R T E R
Thursday, August 5, 2010, Vol. 12, No. 153
Headlines
ANZ BANK: NY Judge Blasts Lawyer Over Error That Cost Class Suit
BOEING CO: Gets Favorable Ruling in Suit Over Hiring Decisions
BOEING CO: Defends ERISA-Related Consolidated Amended Complaint
BOEING CO: Appeal on Certification Ruling Pending in 7th Circuit
BOEING CO: Seeks Dismissal of Amended Dreamliner-Related Suit
BP PLC: JPML to Streamline & Consolidate Oil Spill Litigation
CMS ENERGY: Class Certification Motion in "Learjet" Suit Pending
CMS ENERGY: Class Certification Motion in "Heartland" Pending
CMS ENERGY: No Appeal Yet on Dismissal From "Breckenridge" Suit
CMS ENERGY: CMS ERM Continues to Defend Consolidated Suit
CMS ENERGY: Tennessee Supreme Court Dismisses "Leggett" Suit
COCA-COLA ENT: Defends Suit in Georgia Over Planned Merger
COCA-COLA ENT: Suit in Delaware Over Planned Merger Ongoing
COUNTRYWIDE FINANCIAL: Agrees to Pay $600MM to Settle Lawsuits
EBAY INC: Judge Sets Aside Default Judgment
FEDERATED INVESTORS: Md. Judges Review Settlement Terms
FIDELITY NATIONAL: Faces Amended Complaint Over "Escrow Fee"
FIDELITY NATIONAL: West Virginia Suit Remains in Inactive Status
FIDELITY NATIONAL: Court Dismisses Amended NJ Suit
FIDELITY NATIONAL: 9th Cir. Won't Review Interlocutory Order
FIDELITY NATIONAL: Motion to Dismiss Amended Del. Suit Pending
FIDELITY NATIONAL: Defends "RESPA" Violations Suit in New York
FIDELITY NATIONAL: Bid to Dismiss Penn. Suit Remains Pending
FIDELITY NATIONAL: Affiliates Defend Third Party Complaint
HOSPIRA INC: Continues to Defend Suit Over Products Sales
HOSPIRA INC: Plaintiffs Appeal Illinois Court's Ruling
MAINE: State Workers Union Files Lawsuit Over Longevity Pay
MATTEL INC: Plaintiffs' Counsel Gets $11 Million in Fees
MATTEL INC: Certification Hearing in "Sharp" Case Set for Nov. 29
MATTEL INC: Fisher-Price Defends Five Suits in Canada Over Cribs
MONSANTO CO: Shareholders File Class Action Over Glyphosate Biz
SOUTH FINANCIAL: Inks Agreement to Settle Consolidated Suit
SP AUSNET: Gets Downgraded on Concerns Over Bushfire Class Suit
TOYOTA MOTOR: Recalls 480,000 Vehicles for Steering Fix
TOYOTA MOTOR: Bernstein Litowitz Named Lead Counsel in Suit
TOYOTA MOTOR: Suit Says Firm Knew Cars Had Electronic Problems
UNITED HEALTHCARE: Facility Claims Not Part of Settlement
UNITED PARCEL: Sued in Calif. for Not Reimbursing for Socks
UNITED STATES: Public Counsel Files Suit on Behalf of Immigrants
WARREN FUNERAL: Court Denies Class Action Status to Johnson Suit
* Zurich Offers Insurance for Defendants in Contract Litigation
*********
ANZ BANK: NY Judge Blasts Lawyer Over Error That Cost Class Suit
----------------------------------------------------------------
Leonie Wood, writing for The Age, reports that it might have been
a fat-finger moment, but when a US lawyer typed "2007" instead of
"2008" it earned a blistering rap from a New York judge -- and
cost him thousands of dollars.
The error proved fatal to a short-lived US class action in which
US-based investors in Australia and New Zealand Banking Group
Limited (ANZ) sued the bank over its public statements regarding
the failed Opes Prime share-lending firm, and it led to the class
action lawyers paying all ANZ's costs.
The case in New York's U.S. District Court focused on a 17-month
period, from March 2, 2007, to July 2008, during which the
investors alleged ANZ had issued statements about its financial
performance that were misleading because, they claimed, the bank
failed to warn them about its exposure to Opes Prime.
The investors claimed that in "March 2007, in a series of internal
emails, executives of ANZ recognized that Opes was in financial
difficulties and that, as a result, ANZ's loans to Opes Prime
would be in jeopardy."
In fact, there were no "internal emails" about Opes Prime at ANZ
in March 2007 -- it was fully 12 months later that Opes Prime
collapsed, crystallizing losses of hundreds of millions of dollars
for its clients.
New York District Court Judge Denise Cote dismissed the class
action case in December but in a recent decision she castigated
the lawyers representing the investors, describing their error as
"an act of gross negligence bordering on recklessness". Judge
Cote said the date was "a material allegation central to the
viability of the entire pleading" and the "spurious allegation"
had opened up a much longer potential period of claim.
The judge said that, considering how crucial the emails may have
been to the investors' "entire theory of fraud, any reasonable
inquiry into the factual basis of the pleading would have
prevented this mistake."
"Such indifference to the truth of the pleading's single most
important factual allegation -- coming ironically in the context
of initiating a lawsuit that accuses another party of making
reckless misstatements of material fact -- is the sort of conduct
that [the US court rules] seek to deter," the judge said.
So how did the lawyers pick up the wrong date?
The plaintiff's lawyer, Kenneth Vianale, Esq., of Boca Raton,
Florida, told the court he had read an article published in June
2008 on the Australian online news and commentary site Business
Spectator that referred to ANZ emails about Opes Prime dated
"March 7".
"While [Mr.] Vianale does take responsibility for the error, he
does not explain how he came to rest his entire case on a misread
news article, nor how he came to conclude that the June 2008
article concerned events that occurred a year earlier than a
natural reading of the article would indicate," Judge Cote said.
Mr. Vianale and his firm and lawyer, Jules Brody, Esq., of New
York firm Stull, Stull & Brody, were ordered to pay all ANZ's
costs. A confidential settlement was finalized in late June.
Plaintiffs' lawyers:
Kenneth Vianale, Esq.
VIANALE & VIANALE, LLP
2499 Glades Road, Suite 112
Boca Raton, Florida 33431
Telephone: 561-392-4750 or 888-657-9960
Facsimile: 561-392-4775
- and -
Jules Brody, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Telephone: (212) 687-7230
Facsimile: (212) 490-2022
BOEING CO: Gets Favorable Ruling in Suit Over Hiring Decisions
--------------------------------------------------------------
The U.S. District Court for the District of Kansas has entered
summary judgment in favor of The Boeing Co., in a putative class
action complaint over the hiring decisions made by Spirit
AeroSystems, Inc., according to the company's July 28, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2010.
On March 2, 2006, the company was served with a complaint filed in
the U.S. District Court for the District of Kansas, alleging that
hiring decisions made by Spirit AeroSystems near the time of the
sale of the Wichita facility were tainted by age discrimination,
violated the Employee Retirement Income Security Act, violated the
company's collective bargaining agreements, and constituted
retaliation.
The case was brought as a class action on behalf of individuals
not hired by Spirit.
The company relates that while it believes that Spirit has an
obligation to indemnify Boeing for claims relating to the 2005
sales transaction, Spirit has refused to indemnify Boeing for all
claims arising from employment activity prior to Jan. 1, 2005.
On June 4, 2008, claims by individuals who filed consents to join
the Age Discrimination Employment Act collective action and were
terminated by Boeing prior to Jan. 1, 2005, were dismissed by
stipulated order.
On June 15, 2009, plaintiffs filed a motion seeking class
certification for certain former Boeing employees at the Wichita,
Tulsa and McAlester facilities over the age of 40 who were laid
off between Jan. 1, 2005 and July 1, 2005, and were not hired by
Spirit on June 17, 2005.
On July 31, 2009, Boeing filed motions opposing class
certification and seeking dismissal of the ERISA and breach of
contract claims. On Aug. 14, 2009, Boeing filed a motion seeking
dismissal, or in the alternative, decertification of the age
claims.
Plaintiffs' reply brief on certification of ERISA Section 510 and
Labor-Management Relations Act Section 301 classes was filed on
Aug. 28, 2009.
Plaintiffs' response to Defendants' motion for summary judgment on
plaintiffs' ERISA Section 510 and LMRA Section 301 claims was
filed on Sept. 11, 2009.
On June 30, 2010, summary judgment was granted in favor of Boeing
and Spirit on all class action claims.
The Boeing Co. -- http://www.boeing.com/-- is involved in the
design, development, manufacture, sale and support of commercial
jetliners, military aircraft, satellites, missile defense, human
space flight, and launch systems and services. The company
operates in five principal segments: Commercial Airplanes,
Precision Engagement and Mobility Systems, Network and Space
Systems, Support Systems and Boeing Capital Corporation. PE&MS,
N&SS and Support Systems comprise the company's Integrated Defense
Systems business. The Other segment classification principally
includes the activities of Engineering, Operations and Technology,
an advanced research and development organization focused on
technologies, processes and the creation of new products.
BOEING CO: Defends ERISA-Related Consolidated Amended Complaint
---------------------------------------------------------------
The Boeing Co. defends a consolidated amended complaint brought
under the Employee Retirement Income Security Act in connection
with the sale of its Wichita facility to Spirit AeroSystems, Inc.,
according to the company's July 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2010.
The alleged class action was filed on Feb. 21, 2007, in the U.S.
District Court for the District of Kansas.
The case is also brought under ERISA, and, in general, claims that
the company has not properly provided benefits to certain
categories of former employees affected by the sale.
On May 22, 2008, plaintiffs filed a third amended complaint and on
June 3, 2008, filed a motion to certify a class.
On July 14, 2008, the court granted class certification for the
purpose of adjudicating liability for the class of employees who
went to work for Spirit, and deferred class certification motions
for the class of employees who did not go to work for Spirit.
A Memorandum and Order on Nov. 3, 2009, resolves discovery
disputes and discovery continues for both groups of employees.
A consolidated amended complaint was filed on March 2, 2010.
Boeing's answer was filed on March 26, 2010.
The Boeing Co. -- http://www.boeing.com/-- is involved in the
design, development, manufacture, sale and support of commercial
jetliners, military aircraft, satellites, missile defense, human
space flight, and launch systems and services. The company
operates in five principal segments: Commercial Airplanes,
Precision Engagement and Mobility Systems, Network and Space
Systems, Support Systems and Boeing Capital Corporation. PE&MS,
N&SS and Support Systems comprise the company's Integrated Defense
Systems business. The Other segment classification principally
includes the activities of Engineering, Operations and Technology,
an advanced research and development organization focused on
technologies, processes and the creation of new products.
BOEING CO: Appeal on Certification Ruling Pending in 7th Circuit
----------------------------------------------------------------
The Boeing Co.'s appeal on the class certification ruling in a
lawsuit concerning the Boeing Company Voluntary Investment Plan
remains pending in the U.S. Seventh Circuit Court of Appeals,
according to the company's July 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2010.
On Oct. 13, 2006, the company was named as a defendant in a
lawsuit filed in the U.S. District Court for the Southern District
of Illinois.
Plaintiffs, seeking to represent a class of similarly situated
participants and beneficiaries in the Boeing Company Voluntary
Investment Plan (the VIP), alleged that fees and expenses incurred
by the VIP were and are unreasonable and excessive, not incurred
solely for the benefit of the VIP and its participants, and were
undisclosed to participants.
The plaintiffs further alleged that defendants breached their
fiduciary duties in violation of Section 502(a)(2) of ERISA, and
sought injunctive and equitable relief pursuant to Section
502(a)(3) of ERISA. Plaintiffs filed a motion to certify the
class, which the company opposed.
On Dec. 14, 2007, the court granted plaintiffs leave to file an
amended complaint, which complaint added the company's Employee
Benefits Investment Committee as a defendant and included new
allegations regarding alleged breach of fiduciary duty. The stay
of proceedings entered by the court on Sept. 10, 2007, pending
resolution by the Seventh Circuit Court of Appeals of Lively v.
Dynegy, Inc., was lifted on April 3, 2008, after notification that
the Lively case had settled.
On April 16, 2008, plaintiffs sought leave to file a second
amended complaint, which the company opposed, which would add
investment performance allegations.
On Aug. 22, 2008, the court granted plaintiffs leave to file their
second amended complaint. On Sept. 29, 2008, the court granted
plaintiffs' motion to certify the class of current, past and
future participants or beneficiaries in the VIP.
On Sept. 9, 2008, the company filed a motion for summary judgment
to dismiss claims arising prior to Sept. 27, 2000, based on the
ERISA statute of limitations.
On Oct. 14, 2008, the company filed a petition for leave to appeal
the class certification order to the Seventh Circuit Court of
Appeals.
On Jan. 15, 2009, the company filed a motion seeking dismissal of
all claims as a matter of law. On Aug. 10, 2009, the Seventh
Circuit Court of Appeals granted Boeing's motion for leave to
appeal the class certification order.
The district court entered a stay of proceedings in the trial
court pending resolution of the class certification appeal.
On Dec. 29, 2009, the district court lifted on plaintiffs' motion
the stay of proceedings previously entered. Boeing responded by
filing an application for stay pending appeal with the Seventh
Circuit Court of Appeals on Jan. 7, 2010, which was granted on
Jan. 21, 2010.
Oral argument before the Seventh Circuit was held on May 27, 2010.
The Boeing Co. -- http://www.boeing.com/-- is involved in the
design, development, manufacture, sale and support of commercial
jetliners, military aircraft, satellites, missile defense, human
space flight, and launch systems and services. The company
operates in five principal segments: Commercial Airplanes,
Precision Engagement and Mobility Systems, Network and Space
Systems, Support Systems and Boeing Capital Corporation. PE&MS,
N&SS and Support Systems comprise the company's Integrated Defense
Systems business. The Other segment classification principally
includes the activities of Engineering, Operations and Technology,
an advanced research and development organization focused on
technologies, processes and the creation of new products.
BOEING CO: Seeks Dismissal of Amended Dreamliner-Related Suit
-------------------------------------------------------------
The Boeing Co. seeks the dismissal of an amended complaint arising
from the announcement that the first flight of the 787 Dreamliner
would be postponed, according to the company's July 28, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2010.
On Nov. 13, 2009, plaintiff shareholders filed a putative
securities fraud class action against the company and two of its
senior executives in federal district court in Chicago.
The lawsuit arises from the company's June 2009 announcement that
the first flight of the 787 Dreamliner would be postponed due to a
need to reinforce an area within the side-of-body section of the
aircraft.
Plaintiffs contend that the company was aware before June 2009
that the first flight could not take place as scheduled due to
issues with the side-of-body section of the aircraft, and that its
determination not to announce this delay earlier resulted in an
artificial inflation of the company's stock price for a multi-week
period in May and June 2009.
In March 2010, the company filed a motion to dismiss the complaint
for failure to state a cognizable claim, and, on May 26, 2010, the
Court granted the motion and dismissed the complaint in its
entirety.
On June 22, 2010, the Court accepted the plaintiff's amended
complaint. On July 2, 2010, the company filed a motion to dismiss
the amended complaint.
The Boeing Co. -- http://www.boeing.com/-- is involved in the
design, development, manufacture, sale and support of commercial
jetliners, military aircraft, satellites, missile defense, human
space flight, and launch systems and services. The company
operates in five principal segments: Commercial Airplanes,
Precision Engagement and Mobility Systems, Network and Space
Systems, Support Systems and Boeing Capital Corporation. PE&MS,
N&SS and Support Systems comprise the company's Integrated Defense
Systems business. The Other segment classification principally
includes the activities of Engineering, Operations and Technology,
an advanced research and development organization focused on
technologies, processes and the creation of new products.
BP PLC: JPML to Streamline & Consolidate Oil Spill Litigation
-------------------------------------------------------------
The work of the Judicial Panel on Multidistrict Litigation has
been in the spotlight recently because of filings related to the
oil spill in the Gulf of Mexico.
The JPML has played a key role in coordinating and consolidating
large-scale federal civil litigation since the panel was created
by Congress more than 40 years ago.
In that time, the panel has considered more than 300,000 cases and
millions of claims in litigation stemming from airplane crashes,
hotel fires, securities fraud, and harm allegedly caused by
asbestos and prescription drugs.
The seven judges who serve on the JPML are appointed by the Chief
Justice of the United States. They determine when to transfer and
centralize civil actions pending in different federal districts.
Such transfers of cases that contain sufficiently common questions
of act avoid duplication of discovery, prevent inconsistent
pretrial rulings, and conserve resources of the parties, counsel,
and the Judiciary.
CMS ENERGY: Class Certification Motion in "Learjet" Suit Pending
----------------------------------------------------------------
The motion of the plaintiffs for class certification in the matter
Learjet, Inc., et al. v. Oneok, Inc., et al., against CMS Energy
Corp.'s subsidiaries remains pending, according to the company's
July 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
CMS Energy, along with CMS Marketing, Services and Trading
Company, CMS Field Services, Cantera Natural Gas, Inc., and
Cantera Gas Company, are named as defendants in various class
action and individual lawsuits arising as a result of alleged
inaccurate natural gas price reporting to publications that report
trade information. Allegations include manipulation of NYMEX
natural gas futures and options prices, price-fixing conspiracies,
restraint of trade, and artificial inflation of natural gas retail
prices in California, Colorado, Kansas, Missouri, Tennessee, and
Wisconsin.
In 2005, CMS MST was served with a summons and complaint that
named CMS Energy, CMS MST, and CMS Field Services as defendants in
a putative class action filed in Kansas state court, Learjet,
Inc., et al. v. Oneok, Inc., et al. The complaint alleges that
during the putative class period, Jan. 1, 2000, through Oct. 31,
2002, the defendants engaged in a scheme to violate the Kansas
Restraint of Trade Act. The plaintiffs, who allege they purchased
natural gas from the defendants and others for their facilities,
are seeking statutory full consideration damages consisting of the
full consideration paid by plaintiffs for natural gas.
After removal to federal court, the Learjet case was transferred
to the MDL case. CMS Energy was dismissed from the case but other
CMS Energy defendants remain parties.
There is a pending plaintiffs' motion for class certification.
The motion is not yet decided.
CMS Energy Corp. -- http://www.cmsenergy.com/-- is a Michigan-
based company that has an electric and natural gas utility,
Consumers Energy, as its primary business and also owns and
operates independent power generation businesses.
CMS ENERGY: Class Certification Motion in "Heartland" Pending
-------------------------------------------------------------
The motion of the plaintiffs for class certification in the matter
Heartland Regional Medical Center, et al. v. Oneok, Inc., et al.,
against CMS Energy Corp.'s subsidiaries remains pending, according
to the company's July 28, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2010.
CMS Energy, along with CMS Marketing, Services and Trading
Company, CMS Field Services, Cantera Natural Gas, Inc., and
Cantera Gas Company, are named as defendants in various class
action and individual lawsuits arising as a result of alleged
inaccurate natural gas price reporting to publications that report
trade information. Allegations include manipulation of NYMEX
natural gas futures and options prices, price-fixing conspiracies,
restraint of trade, and artificial inflation of natural gas retail
prices in California, Colorado, Kansas, Missouri, Tennessee, and
Wisconsin.
In 2007, a class action complaint, Heartland Regional Medical
Center, et al. v. Oneok, Inc. et al., was filed in Missouri state
court alleging violations of Missouri antitrust laws. Defendants,
including CMS Energy, CMS Field Services, and CMS MST, are alleged
to have violated the Missouri antitrust law in connection with
their natural gas price reporting activities.
After removal to federal court, the Heartland case was transferred
to the MDL case. CMS Energy was dismissed from the case in 2009,
but other CMS Energy defendants remain parties.
There is a pending plaintiffs' motion for class certification.
The motion is not yet decided.
CMS Energy Corp. -- http://www.cmsenergy.com/-- is a Michigan-
based company that has an electric and natural gas utility,
Consumers Energy, as its primary business and also owns and
operates independent power generation businesses.
CMS ENERGY: No Appeal Yet on Dismissal From "Breckenridge" Suit
---------------------------------------------------------------
CMS Energy Corp. discloses that the plaintiffs in the matter
Breckenridge Brewery of Colorado, LLC and BBD Acquisition Co. v.
Oneok, Inc., et al., have not appealed the dismissal of the
company and its subsidiaries in the suit, according to the
company's July 28, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
CMS Energy, along with CMS Marketing, Services and Trading
Company, CMS Field Services, Cantera Natural Gas, Inc., and
Cantera Gas Company, are named as defendants in various class
action and individual lawsuits arising as a result of alleged
inaccurate natural gas price reporting to publications that report
trade information. Allegations include manipulation of NYMEX
natural gas futures and options prices, price-fixing conspiracies,
restraint of trade, and artificial inflation of natural gas retail
prices in California, Colorado, Kansas, Missouri, Tennessee, and
Wisconsin.
Breckenridge Brewery of Colorado, LLC and BBD Acquisition Co. v.
Oneok, Inc., et al., a class action complaint brought on behalf of
retail direct purchasers of natural gas in Colorado, was filed in
Colorado state court in May 2006. Defendants, including CMS
Energy, CMS Field Services, and CMS MST, are alleged to have
violated the Colorado Antitrust Act of 1992 in connection with
their natural gas price reporting activities. Plaintiffs are
seeking full refund damages.
After removal to federal court, the Breckenridge case was
transferred to the MDL case.
All CMS Energy defendants were dismissed from the Breckenridge
case in 2009. The company says it expects the plaintiffs in this
case will appeal this decision after all claims against defendants
have been dismissed. At this time, there is no pending appeal.
There is a pending plaintiffs' motion for class certification.
The motion is not yet decided.
CMS Energy Corp. -- http://www.cmsenergy.com/-- is a Michigan-
based company that has an electric and natural gas utility,
Consumers Energy, as its primary business and also owns and
operates independent power generation businesses.
CMS ENERGY: CMS ERM Continues to Defend Consolidated Suit
---------------------------------------------------------
CMS Energy Resource Management Company continues to defend a
consolidated case pending in the Circuit Court in Wood County,
Wisconsin, according to CMS Energy Corp.'s July 28, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2010.
CMS Energy, along with CMS Marketing, Services and Trading
Company, CMS Field Services, Cantera Natural Gas, Inc., and
Cantera Gas Company, are named as defendants in various class
action and individual lawsuits arising as a result of alleged
inaccurate natural gas price reporting to publications that report
trade information. Allegations include manipulation of NYMEX
natural gas futures and options prices, price-fixing conspiracies,
restraint of trade, and artificial inflation of natural gas retail
prices in California, Colorado, Kansas, Missouri, Tennessee, and
Wisconsin.
A class action complaint, Arandell Corp., et al. v. XCEL Energy
Inc., et al., was filed in 2006 in Wisconsin state court on behalf
of Wisconsin commercial entities that purchased natural gas
between Jan. 1, 2000 and Oct. 31, 2002. The defendants, including
CMS Energy, CMS Energy Resource Management Company (CMS ERM), and
Cantera Gas Company, are alleged to have violated Wisconsin's
antitrust statute. The plaintiffs are seeking full consideration
damages, plus exemplary damages, and attorneys' fees.
After dismissal on jurisdictional grounds in 2009, plaintiffs
filed a new Arandell case in Michigan. The CMS Energy defendants
filed a motion to dismiss the new Michigan case on statute-of-
limitations grounds and that motion remains pending.
Another class action complaint, Newpage Wisconsin System v. CMS
ERM, CMS Energy, and Cantera Gas Company, was filed in 2009 in
circuit court in Wood County, Wisconsin, against CMS Energy
defendants and 19 other non-CMS Energy companies. The plaintiff
is seeking full consideration damages, treble damages, costs,
interest, and attorneys' fees.
After removal to federal court, both Arandell cases and the
Newpage case were transferred to the MDL case.
In June 2010, CMS Energy and Cantera Gas Company were dismissed
from the Newpage case; the Arandell (Wisconsin) case was
reinstated against CMS ERM; and the Arandell (Wisconsin) case was
consolidated with the Newpage case. These two consolidated cases
remain pending only against CMS ERM.
CMS Energy Corp. -- http://www.cmsenergy.com/-- is a Michigan-
based company that has an electric and natural gas utility,
Consumers Energy, as its primary business and also owns and
operates independent power generation businesses.
CMS ENERGY: Tennessee Supreme Court Dismisses "Leggett" Suit
------------------------------------------------------------
The Tennessee Supreme Court dismissed all claims against all
defendants in the matter Samuel D. Leggett, et al. v. Duke Energy
Corporation, et al., according to CMS Energy Corp.'s July 28,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
In 2005 a class action complaint brought on behalf of retail and
business purchasers of natural gas in Tennessee, was filed in the
Chancery Court of Fayette County, Tennessee. The defendants
included CMS Energy, CMS Marketing, Services and Trading Company
(CMS MST), and CMS Field Services. In April 2010, the Tennessee
Supreme Court dismissed all claims against all defendants.
CMS Energy Corp. -- http://www.cmsenergy.com/-- is a Michigan-
based company that has an electric and natural gas utility,
Consumers Energy, as its primary business and also owns and
operates independent power generation businesses.
COCA-COLA ENT: Defends Suit in Georgia Over Planned Merger
----------------------------------------------------------
Coca-Cola Enterprises Inc., defends a consolidated suit filed in
the Superior Court of Fulton County, Georgia, in connection with
its planned merger with The Coca-Cola Company, according to the
company's July 28, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended July 2, 2010.
In connection with the agreements entered into between the company
and TCCC on Feb. 25, 2010, three putative class action lawsuits
were filed in the Superior Court of Fulton County, Georgia,
between the announcement date, and the present.
The lawsuits are all similar and assert claims for various
breaches of fiduciary duty in connection with the agreement.
The lawsuits name the company, its board of directors, and TCCC as
defendants. Plaintiffs in each case seek to enjoin the
transaction, to declare the deal void and rescind the transaction
if it is consummated, to require disgorgement of all profits the
defendants receive from the transaction, and to recover damages,
attorneys' fees, and litigation expenses.
The Georgia cases were consolidated by orders entered March 25,
2010 and April 9, 2010 as In re The Coca-Cola Company Shareholder
Litigation, Civil Action No. 10-cv-182035.
Coca-Cola Enterprises Inc. -- http://www.cokecce.com/-- markets,
distributes, and manufactures bottle and can liquid nonalcoholic
refreshment. CCE sells approximately 80% of The Coca-Cola
Company's bottle and can volume in North America and is the sole
licensed bottler for products of The Coca-Cola Company in Belgium,
continental France, Great Britain, Luxembourg, Monaco, and the
Netherlands.
COCA-COLA ENT: Suit in Delaware Over Planned Merger Ongoing
-----------------------------------------------------------
Coca-Cola Enterprises Inc., defends a consolidated suit filed in
the Delaware Chancery Court in connection with its planned merger
with The Coca-Cola Company, according to the company's July 28,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 2, 2010.
In connection with the agreements entered into between the company
and TCCC on Feb. 25, 2010, five putative class action lawsuits
were filed in Delaware Chancery Court between the announcement
date, and the present.
The lawsuits are all similar and assert claims for various
breaches of fiduciary duty in connection with the agreement.
The lawsuits name the company, its board of directors, and TCCC as
defendants. Plaintiffs in each case seek to enjoin the
transaction, to declare the deal void and rescind the transaction
if it is consummated, to require disgorgement of all profits the
defendants receive from the transaction, and to recover damages,
attorneys' fees, and litigation expenses.
The Delaware cases were consolidated on March 16, 2010 as In re
Coca-Cola Enterprises Inc. Shareholders Litigation, Consolidated
C.A. No. 5291-VCN.
Coca-Cola Enterprises Inc. -- http://www.cokecce.com/-- markets,
distributes, and manufactures bottle and can liquid nonalcoholic
refreshment. CCE sells approximately 80% of The Coca-Cola
Company's bottle and can volume in North America and is the sole
licensed bottler for products of The Coca-Cola Company in Belgium,
continental France, Great Britain, Luxembourg, Monaco, and the
Netherlands.
COUNTRYWIDE FINANCIAL: Agrees to Pay $600MM to Settle Lawsuits
--------------------------------------------------------------
The Associated Press reports that Countrywide Financial Corp.
agreed to pay $600 million to settle shareholder lawsuits in the
largest payout so far from the mortgage meltdown.
U.S. District Judge Mariana Pfaelzer in Los Angeles on Monday gave
preliminary approval to the agreement, in which the defendants
admitted no wrongdoing.
The settlement would end several class-action lawsuits that
claimed Countrywide concealed mounting risks as it loosened its
standards for loans during the housing boom.
The Calabasas company was once the nation's largest mortgage
lender and was acquired by Bank of America Corp. in 2008.
The settlement would clear former executives and financial firms
that underwrote Countrywide stock and were named in the class-
action suits.
Former CEO Angele Mozilo, former President David Sambol, former
CFO Eric Sieracki and former board members were named in the
litigation.
The company is being investigated by the Securities and Exchange
Commission, which filed a lawsuit accusing Messrs. Mozilo, Sambol
and Sieracki of misleading investors.
The company and Mozilo are also under criminal investigation by
the Justice Department and the attorneys general of California.
Other states have also sued on behalf of borrowers.
"It is the largest settlement of any shareholder case to come out
of the subprime crisis this far," said Joel Bernstein, attorney
for the New York state and city pension funds that were the lead
plaintiffs.
The settlement doesn't cover investments in mortgage-backed
securities sold by Countrywide.
Countrywide's accounting firm, KPMG, which signed off on the
lender's financial statements from 2005 to 2006, agreed to pay an
additional $24 million as part of the settlement.
Lead plaintiffs' counsel:
Joel H. Bernstein, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: 212-907-0869
Facsimile: 212-883-7069
Email:jbernstein@labaton.com
EBAY INC: Judge Sets Aside Default Judgment
-------------------------------------------
Allison Enright, writing for the Internet Retailer, reports that
EBay Inc. will get a chance to defend itself in federal court
against a lawsuit by sellers complaining that eBay effectively
requires eBay merchants to use PayPal, the online payment service
eBay owns.
U.S. District Judge John Corbett O'Meara set aside a default
judgment in favor of the eBay merchants he issued June 16 after
eBay and PayPal had failed to respond to the suit. EBay requested
that judgment be set aside, and Judge O'Meara agreed last week.
"Federal policy strongly favors allowing parties to resolve their
disputes at trial rather than by default," Judge O'Meara wrote in
his ruling. He added there was no indication that the defendants
had ignored the complaint.
"The company is pleased with the ruling," says Michelle Fang,
associate general counsel at eBay. Peter Macuga, Esq., lead
attorney for the plaintiffs, did not respond to a request for
comment.
Six eBay sellers in four states filed the class action lawsuit in
April alleging that eBay "has implemented accepted payment
policies which effectively limit sellers to accepting payments
only through eBay owned PayPal." The suit says that such policies
restrain trade and violate the Sherman Antitrust Act.
The court filing, submitted in Detroit on behalf of the
plaintiffs, details changes made to eBay's payment policies during
the last 10 years and alleges that other accepted forms of payment
are not viable alternatives because of their higher costs and
entry requirements that shut out new sellers. It states that the
company has "prohibited the use of any forms of payment that are
more favorable than PayPal."
EBay's Web site lists acceptable forms of payments as PayPal,
ProPay, Moneybookers, Paymate, merchant credit cards and payment
upon pickup. PayPal charges sellers up to 3% of the sale price
and 30 cents per transaction. EBay implemented a paperless payment
policy in 2008 that stopped sellers from being able to accept
cash, checks, money orders or other forms of non-electronic
currency except for items sold in particular categories such as
motor vehicles and real estate.
EBay reported $4.41 billion in revenue for the first half of 2010.
PayPal, which eBay bought in 2002, represented more than 37% of
eBay's companywide revenue during the second quarter of 2010.
Plaintiffs' lawyer:
Peter W. Macuga, Esq.
MACUGA, LIDDLE & DUBIN, P.C.
975 East Jefferson Avenue
Detroit, Michigan 48207-3101
Telephone: 313-392-0015
Facsimile: 313-392-0025
FEDERATED INVESTORS: Md. Judges Review Settlement Terms
-------------------------------------------------------
Lorraine Mirabella, writing for The Baltimore Sun, reports that a
wide-reaching and drawn-out legal fight over alleged trading
violations in the mutual fund industry could soon be over, with
federal judges in Baltimore, Md., expected to decide this fall
whether to approve settlements that could total hundreds of
millions of dollars.
Numerous class-action lawsuits were filed on behalf of millions of
investors across the U.S. as early as 2003, accusing mutual fund
companies of breaching securities laws. Investor complaints in
separate cases against 17 mutual fund families were transferred in
2004 to U.S. District Court in Baltimore for coordinated
proceedings.
All but one have reached settlement, and the court gave
preliminary approval to those in April. Judges in October might
approve or modify the settlements -- which could mark the end of
litigation and the beginning of reimbursements to investors.
"These cases started a little over six years ago when it became
public knowledge that mutual fund companies were allowing certain
traders to trade in funds in ways that most shareholders could
not," said John Isbister, Esq., a partner at Tydings and Rosenberg
LLP in Baltimore and the plaintiffs' administrative chair.
"Everyone is very happy to see it wrapped up and see investors in
the mutual funds are being compensated."
Attorneys representing investors in Federated Funds during a five-
year period that ended in September 2003 announced last week a
$1.6 million settlement. The money would be distributed directly
to certain Federated Funds.
That case is one of the smaller ones, representing just part of
the total dollar amount expected to come from settlements with a
number of defendants in each of the cases. But while Mr. Isbister
said the total amount is likely to reach hundreds of millions of
dollars, it would be divided among millions of shareholders.
The proposed settlements resolve allegations that the funds
engaged in "market-timing," permitting some favored traders to
trade in and out of the fund more frequently than others, and
"late-trading," the practice of allowing certain favored investors
to buy and sell mutual fund shares after trading is closed to
other investors.
Proposed settlements have been reached with several mutual fund
families, including a $31.5 million settlement with Pilgrim Baxter
Funds; $20.4 million with Invesco/AIM Funds and $14 million with
Deutsche Investment Management Americas for shareholders in its
Scudder funds. Other defendants include Janus, Putnam and Charles
Schwab.
Contact:
John B. Isbister, Esq.
TYDINGS AND ROSENBERG LLP
100 East Pratt Street, 26th Floor
Baltimore, MD 21202
Telephone: 410-752-9714
Facsimile: 410-727-5460
Email: jisbister@tydingslaw.com
FIDELITY NATIONAL: Faces Amended Complaint Over "Escrow Fee"
------------------------------------------------------------
Fidelity National Financial, Inc., faces an amended complaint over
its alleged "escrow fee," according to the company's July 28,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
There are class actions pending against Fidelity National Title
Company, Fidelity National Title Company of Washington, Inc., and
Chicago Title Insurance Company, alleging that the named
defendants in each case charged unnecessary reconveyance fees
without performing any separate service for those fees which was
not already included as a service for the "escrow fee."
Additionally, one of the cases alleges that the named defendants
wrongfully earned interest or other benefits on escrowed funds
from the time funds were deposited into escrow until any
disbursement checks cleared the account.
Motions for class certification were filed in both of these cases,
and the company then moved for summary judgment in both cases and
to continue the briefing of the class certification motions until
the summary judgment motions were determined.
Both courts granted the motions to continue class certification
briefing until the summary judgment motions were determined and
those motions were fully briefed and submitted.
In one of the cases, the court granted summary judgment for the
defendants. The other motion for summary judgment was partially
granted and denied.
Plaintiffs filed an amended complaint and are expected to file a
motion for class certification.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: West Virginia Suit Remains in Inactive Status
----------------------------------------------------------------
A putative class action against Fidelity National Financial, Inc.,
filed in West Virginia remains inactive, according to the
company's July 28, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
There are class actions pending against several of the Company's
title insurance companies, including Security Union Title
Insurance Company, Fidelity National Title Insurance Company,
Chicago Title Insurance Company, Ticor Title Insurance Company of
Florida, Commonwealth Land Title Insurance Company, Lawyers Title
Insurance Corporation, and Ticor Title Insurance Company, alleging
improper premiums were charged for title insurance. These cases
allege that the named defendant companies failed to provide notice
of premium discounts to consumers refinancing their mortgages,
and/or failed to give discounts in refinancing transactions in
violation of the filed rates.
In February 2008, 13 putative class actions were commenced against
several title insurance companies, including Fidelity National
Title Insurance Company, Chicago Title Insurance Company, Security
Union Title Insurance Company, Alamo Title Insurance Company,
Ticor Title Insurance Company of Florida, Commonwealth Land Title
Insurance Company, LandAmerica New Jersey Title Insurance Company
(now Continental Title Insurance Company), Lawyers Title Insurance
Corporation, Transnation Title Insurance Company (which has merged
into Lawyers Title Insurance Corporation), and Ticor Title
Insurance Company. The complaints also name Fidelity National
Financial, Inc., as a defendant based on its ownership of the
Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
In West Virginia, the case has been placed on the inactive list
pending the resolution of the LandAmerica bankruptcy.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: Court Dismisses Amended NJ Suit
--------------------------------------------------
Fidelity National Financial, Inc.'s motion to dismiss an amended
class action filed in New Jersey has been approved by the court,
according to the company's July 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2010.
There are class actions pending against several of our title
insurance companies, including Security Union Title Insurance
Company, Fidelity National Title Insurance Company, Chicago Title
Insurance Company, Ticor Title Insurance Company of Florida,
Commonwealth Land Title Insurance Company, Lawyers Title Insurance
Corporation, and Ticor Title Insurance Company, alleging improper
premiums were charged for title insurance. These cases allege
that the named defendant companies failed to provide notice of
premium discounts to consumers refinancing their mortgages, and/or
failed to give discounts in refinancing transactions in violation
of the filed rates.
In February 2008, 13 putative class actions were commenced against
several title insurance companies, including Fidelity National
Title Insurance Company, Chicago Title Insurance Company, Security
Union Title Insurance Company, Alamo Title Insurance Company,
Ticor Title Insurance Company of Florida, Commonwealth Land Title
Insurance Company, LandAmerica New Jersey Title Insurance Company
(now Continental Title Insurance Company), Lawyers Title Insurance
Corporation, Transnation Title Insurance Company (which has merged
into Lawyers Title Insurance Corporation), and Ticor Title
Insurance Company. The complaints also name Fidelity National
Financial, Inc., as a defendant based on its ownership of the
Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
In New Jersey, the company's motion to dismiss the amended
complaint was granted.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters - Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title - that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: 9th Cir. Won't Review Interlocutory Order
------------------------------------------------------------
The U.S. Ninth Circuit Court of Appeals has denied Fidelity
National Financial, Inc.'s petition for review of the district
court's interlocutory order, according to the company's July 28,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
There are class actions pending against several of our title
insurance companies, including Security Union Title Insurance
Company, Fidelity National Title Insurance Company, Chicago Title
Insurance Company, Ticor Title Insurance Company of Florida,
Commonwealth Land Title Insurance Company, Lawyers Title Insurance
Corporation, and Ticor Title Insurance Company, alleging improper
premiums were charged for title insurance. These cases allege that
the named defendant companies failed to provide notice of premium
discounts to consumers refinancing their mortgages, and/or failed
to give discounts in refinancing transactions in violation of the
filed rates.
In February 2008, thirteen putative class actions were commenced
against several title insurance companies, including Fidelity
National Title Insurance Company, Chicago Title Insurance Company,
Security Union Title Insurance Company, Alamo Title Insurance
Company, Ticor Title Insurance Company of Florida, Commonwealth
Land Title Insurance Company, LandAmerica New Jersey Title
Insurance Company (now Continental Title Insurance Company),
Lawyers Title Insurance Corporation, Transnation Title Insurance
Company (which has merged into Lawyers Title Insurance
Corporation), and Ticor Title Insurance Company. The complaints
also name Fidelity National Financial, Inc., as a defendant based
on its ownership of the Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
The complaint in California was dismissed with leave to amend, the
plaintiffs have amended, and the companies have moved to dismiss
the amended complaint and the court denied the motion. The
companies moved to appeal from the interlocutory denial of the
motion to dismiss and the motion was granted by the District
Court. The companies filed a petition in the Ninth Circuit Court
of Appeals for review of the interlocutory order, but that
petition was denied.
The parties are engaged in discovery.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: Motion to Dismiss Amended Del. Suit Pending
--------------------------------------------------------------
Fidelity National Financial, Inc.'s motion to dismiss an amended
complaint asserting claims under the Real Estate Settlement
Procedures Act remains pending in Delaware.
There are class actions pending against several of our title
insurance companies, including Security Union Title Insurance
Company, Fidelity National Title Insurance Company, Chicago Title
Insurance Company, Ticor Title Insurance Company of Florida,
Commonwealth Land Title Insurance Company, Lawyers Title Insurance
Corporation, and Ticor Title Insurance Company, alleging improper
premiums were charged for title insurance. These cases allege
that the named defendant companies failed to provide notice of
premium discounts to consumers refinancing their mortgages, and/or
failed to give discounts in refinancing transactions in violation
of the filed rates.
In February 2008, 13 putative class actions were commenced against
several title insurance companies, including Fidelity National
Title Insurance Company, Chicago Title Insurance Company, Security
Union Title Insurance Company, Alamo Title Insurance Company,
Ticor Title Insurance Company of Florida, Commonwealth Land Title
Insurance Company, LandAmerica New Jersey Title Insurance Company
(now Continental Title Insurance Company), Lawyers Title Insurance
Corporation, Transnation Title Insurance Company (which has merged
into Lawyers Title Insurance Corporation), and Ticor Title
Insurance Company. The complaints also name Fidelity National
Financial, Inc., as a defendant based on its ownership of the
Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
The complaint in Delaware was dismissed, but the plaintiffs were
permitted to amend to state a claim for injunctive relief. The
plaintiffs amended, and the defendants have moved to dismiss the
amended complaint.
No further updates were reported in the company's July 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: Defends "RESPA" Violations Suit in New York
--------------------------------------------------------------
Fidelity National Financial, Inc., continues to defend a suit
asserting claims under the Real Estate Settlement Procedures Act
in New York.
There are class actions pending against several of our title
insurance companies, including Security Union Title Insurance
Company, Fidelity National Title Insurance Company, Chicago Title
Insurance Company, Ticor Title Insurance Company of Florida,
Commonwealth Land Title Insurance Company, Lawyers Title Insurance
Corporation, and Ticor Title Insurance Company, alleging improper
premiums were charged for title insurance. These cases allege
that the named defendant companies failed to provide notice of
premium discounts to consumers refinancing their mortgages, and/or
failed to give discounts in refinancing transactions in violation
of the filed rates.
In February 2008, 13 putative class actions were commenced against
several title insurance companies, including Fidelity National
Title Insurance Company, Chicago Title Insurance Company, Security
Union Title Insurance Company, Alamo Title Insurance Company,
Ticor Title Insurance Company of Florida, Commonwealth Land Title
Insurance Company, LandAmerica New Jersey Title Insurance Company
(now Continental Title Insurance Company), Lawyers Title Insurance
Corporation, Transnation Title Insurance Company (which has merged
into Lawyers Title Insurance Corporation), and Ticor Title
Insurance Company. The complaints also name Fidelity National
Financial, Inc., as a defendant based on its ownership of the
Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
In 2009, the complaints filed in New York were dismissed with
prejudice, but the plaintiffs have appealed.
On Feb. 11, 2010, the Second Circuit Court of Appeals in a summary
opinion affirmed the dismissal of the complaint in so far as it
alleged antitrust violations.
A count of the complaint alleging RESPA violations remains.
No further updates were reported in the company's July 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: Bid to Dismiss Penn. Suit Remains Pending
------------------------------------------------------------
Fidelity National Financial, Inc.'s motion for summary judgment in
a complaint filed in Pennsylvania remains pending, according to
the company's July 28, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2010.
There are class actions pending against several of our title
insurance companies, including Security Union Title Insurance
Company, Fidelity National Title Insurance Company, Chicago Title
Insurance Company, Ticor Title Insurance Company of Florida,
Commonwealth Land Title Insurance Company, Lawyers Title Insurance
Corporation, and Ticor Title Insurance Company, alleging improper
premiums were charged for title insurance. These cases allege that
the named defendant companies failed to provide notice of premium
discounts to consumers refinancing their mortgages, and/or failed
to give discounts in refinancing transactions in violation of the
filed rates.
In February 2008, 13 putative class actions were commenced against
several title insurance companies, including Fidelity National
Title Insurance Company, Chicago Title Insurance Company, Security
Union Title Insurance Company, Alamo Title Insurance Company,
Ticor Title Insurance Company of Florida, Commonwealth Land Title
Insurance Company, LandAmerica New Jersey Title Insurance Company
(now Continental Title Insurance Company), Lawyers Title Insurance
Corporation, Transnation Title Insurance Company (which has merged
into Lawyers Title Insurance Corporation), and Ticor Title
Insurance Company. The complaints also name Fidelity National
Financial, Inc., as a defendant based on its ownership of the
Fidelity Affiliates.
The complaints, which are brought on behalf of a putative class of
consumers who purchased title insurance in New York, allege that
the defendants conspired to inflate rates for title insurance
through the Title Insurance Rate Service Association, Inc., a New
York State-approved rate service organization which is also named
as a defendant. Each of the complaints asserts a cause of action
under the Sherman Act and several of the complaints include claims
under the Real Estate Settlement Procedures Act as well as New
York State statutory and common law claims.
The complaints seek monetary damages, including treble damages, as
well as injunctive relief. Subsequently, similar complaints were
filed in many federal courts.
A motion was filed before the Multidistrict Litigation Panel to
consolidate and/or coordinate these actions in the U.S. District
Court in the Southern District of New York. However, that motion
was denied.
Where there are multiple cases in one state they have been
consolidated before one district court judge in each state and
scheduled for the filing of consolidated complaints and motion
practice.
The damage claims in the Pennsylvania cases were dismissed, but
the plaintiffs were permitted to pursue injunctive relief. The
plaintiffs were permitted limited discovery. The defendants filed
a motion for summary judgment on March 22, 2010.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
FIDELITY NATIONAL: Affiliates Defend Third Party Complaint
----------------------------------------------------------
Fidelity National Financial, Inc.'s affiliates remain a defendant
in a fifth amended third party complaint over the matter In Re
Ameriquest Mortgage Lending Practices Litigation, according to the
company's July 28, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
On Sept. 24, 2007, a third party complaint was filed in the In Re
Ameriquest Mortgage Lending Practices Litigation in the U.S.
District Court for the Northern District of Illinois by Ameriquest
Mortgage Company and Argent Mortgage Company against numerous
title insurers and agents, including Chicago Title Company,
Fidelity National Title Company, Fidelity National Title Insurance
Company, American Pioneer Title Insurance Company (n/k/a Ticor
Title Insurance Company of Florida), Chicago Title of Michigan,
Fidelity National Title Insurance Company of New York, Transnation
Title Insurance Company (n/k/a Lawyers Title Insurance
Corporation), Commonwealth Land Title Insurance Company,
Commonwealth Land Title Company, Lawyers Title Insurance
Corporation, Chicago Title Insurance Company, Alamo Title Company,
and Ticor Title Insurance Company.
The third party complaint alleges that Ameriquest and Argent have
been sued by a class of borrowers (and by numerous persons who
have preemptively opted out of any class that may be certified)
alleging that the two lenders violated the Truth in Lending Act by
failing to comply with the notice of right to cancel provisions
and making misrepresentations in lending to the borrowers, who now
seek money damages.
In the third party complaint, Ameriquest and Argent each alleges
that the FNF Affiliates contracted and warranted to close these
loans in conformity with the lender's instructions which correctly
followed the requirements of TILA and contained no
misrepresentations; therefore, if Ameriquest and Argent are
liable to the class or to the opt-out plaintiffs, then the FNF
Affiliates are liable to them for failing to close the lending
transactions as agreed.
Ameriquest and Argent seek to recover the cost of resolving the
class action and other cases against them including their
attorney's fees and costs in the action. The Title Insurer
Defendants organized to form a defense group and, as requested by
the court, are exploring the possibility of filing a single
collective response.
The Seventh Circuit, in which circuit these matters are pending,
ruled in a separate case that TILA violations as alleged in these
complaints could not be the subject of a class action seeking
rescission, though the plaintiffs in the case against Ameriquest
and Argent have not yet sought class certification and so the
court in their case has not yet ruled on the applicability of the
Court of Appeals' decision (which, in any event, would not affect
the cases of individual plaintiffs). Ameriquest filed its fifth
amended third party complaint against the defendants, and the
Title Insurer Defendants moved to dismiss.
On Jan. 19, 2010 the court granted the motion as to the negligence
claims, but denied the motion as to the contract claims and
negligent misrepresentation claims. The Title Insurer Defendants
will answer the Fifth Amended complaint.
Fidelity National Financial, Inc. -- http://www.fnf.com/--
provides title insurance, mortgage services, specialty insurance,
claims management services and information services. FNF is the
nation's largest title insurance company through its title
insurance underwriters -- Fidelity National Title, Chicago Title,
Commonwealth Land Title, Lawyers Title, Ticor Title, Security
Union Title and Alamo Title -- that collectively issue more title
insurance policies than any other title company in the United
States. FNF also provides flood insurance, personal lines
insurance and home warranty insurance through its specialty
insurance business. FNF also is a leading provider of outsourced
claims management services to large corporate and public sector
entities through its minority-owned subsidiary, Sedgwick CMS. FNF
is also a leading information services company in the human
resource, retail and transportation markets through another
minority-owned subsidiary, Ceridian Corporation.
HOSPIRA INC: Continues to Defend Suit Over Products Sales
---------------------------------------------------------
Hospira, Inc., continues to defend a suit being pursued as a class
action relating to sales of products prior to its spin-off from
Abbott Laboratories, according to the company's July 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
Hospira and Abbott are defendants in a number of lawsuits brought
by individual plaintiffs alleging that plaintiffs developed Post-
arthroscopic Glenohumeral Chondrolysis from the use of certain
continuous infusion pain pumps to deliver local anesthetic into
the intra-articular joint space following shoulder surgeries. In
each case, Hospira and/or Abbott is alleged, singularly or with
other anesthetic medication defendants, to have provided the
medication delivered by continuous infusion pain pumps
manufactured by other (non-Hospira/non-Abbott) defendants. The
analgesic medications at issue include MarcaineTM (bupivacaine)
and lidocaine.
As of June 30, 2010, there are a total of 69 cases, involving 87
plaintiffs, in which Hospira is a party. Twenty-eight cases are
pending in federal court and 41 cases are pending in state court.
One case is being pursued as a class action lawsuit.
Pursuant to its separation agreement with Abbott, Hospira is
defending those lawsuits which relate to sales of products prior
to Hospira's spin-off from Abbott. Generally, plaintiffs seek
compensatory damages and, in some cases, punitive damages and
costs.
Hospira, Inc. -- hhtp://www.hospira.com/ -- is a global specialty
pharmaceutical and medication delivery company dedicated to
Advancing Wellness(TM). As the world leader in specialty generic
injectable pharmaceuticals, Hospira offers one of the broadest
portfolios of generic acute-care and oncology injectables, as well
as integrated infusion therapy and medication management
solutions. Through its products, Hospira helps improve the
safety, cost and productivity of patient care. The company is
headquartered in Lake Forest, Illinois, and has approximately
13,500 employees.
HOSPIRA INC: Plaintiffs Appeal Illinois Court's Ruling
------------------------------------------------------
Plaintiffs in the matter Myla Nauman, Jane Roller and Michael
Loughery v. Abbott Laboratories and Hospira, Inc., appealing the
ruling of the U.S. District Court for the Northern District of
Illinois in favor of the defendants, according to Hospira Inc.'s
July 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
Hospira has been named as a defendant in a lawsuit alleging
generally that the spin-off of Hospira from Abbott resulted in a
mass termination of employees so as to interfere with the future
attainment of benefits in violation of the Employee Retirement
Income Security Act of 1974.
The lawsuit was filed on Nov. 8, 2004, in the U.S. District Court
for the Northern District of Illinois.
Plaintiffs generally seek reinstatement in Abbott benefit plans,
disgorgement of profits and attorneys fees. On Nov. 18, 2005, the
complaint was amended to assert an additional claim against Abbott
and Hospira for breach of fiduciary duty under ERISA.
Hospira has been dismissed as a defendant with respect to the
fiduciary duty claim.
By Order dated Dec. 30, 2005, the Court granted class action
status to the lawsuit.
As to the sole claim against Hospira, the court certified a class
defined as: "all employees of Abbott who were participants in the
Abbott Benefit Plans and whose employment with Abbott was
terminated between August 22, 2003, and April 30, 2004, as a
result of the spin-off of the HPD [Hospital Products
Division]/creation of Hospira announced by Abbott on August 22,
2003, and who were eligible for retirement under the Abbott
Benefit Plans on the date of their terminations."
Hospira denies all material allegations asserted against it in the
complaint. Trial of this matter has concluded.
On April 22, 2010, the court issued a ruling in favor of Hospira
and Abbott on all counts. Plaintiffs have appealed that verdict.
In 2008, Hospira received notice from Abbott requesting that
Hospira indemnify Abbott for all liabilities that Abbott may incur
in connection with this litigation. Hospira denies any obligation
to indemnify Abbott for the claims asserted against Abbott in this
litigation.
The suit is Myla Nauman, Jane Roller and Michael Loughery v.
Abbott Laboratories and Hospira, Inc., Case No. 1:04-cv-07199
(N.D. Ill.) (Gettleman, J.).
The Plaintiffs are represented by:
Paul William Mollica, Esq.
MEITES, MULDER, BURGER & MOLLICA
208 South LaSalle Street, Suite 1410
Chicago, IL 60604
Telephone: 312-263-0272
Hospira is represented by:
James F. Hurst, Esq.
WINSTON & STRAWN LLP
35 West Wacker Drive
41st Floor, Chicago, IL 60601
Telephone: 312-558-5230
MAINE: State Workers Union Files Lawsuit Over Longevity Pay
-----------------------------------------------------------
Mal Leary, writing for Capitol News Service, reports that the
Maine State Employees Association has filed a class-action lawsuit
alleging the current state budget that eliminated longevity pay
for state workers in the last budget year discriminates against
older workers.
Attorney General Janet Mills said Monday the suit is moot, because
lawmakers restored longevity pay in this budget year.
"And there are several other legal defenses to this lawsuit, and
we will vigorously defend the state if we are ever served with the
suit," she said.
The complaint was filed in federal District Court. For the case to
advance, the MSEA must formally serve the state within 120 days,
said Jeffrey Young, the attorney for MSEA.
"It is not rational or reasonably related to any goal to balance
the budget of the state on the backs of senior, long-term and
older employees," he said.
Once they have completed 15 years on the job, many state employees
begin receiving longevity pay at the following hourly rates: 30
cents an hour for 15-20 years and 40 cents an hour for 20 or more
years.
Mr. Young said the lawsuit, filed on behalf of union President
Bruce Hodsdon and three other union members, seeks to have the
federal court find the state in violation of the federal Age
Discrimination in Employment Act and the Equal Protection clauses
of both the federal and state constitutions. It also seeks to have
the suit apply to all state workers affected by the budget
provision, which cost the workers -- but saved the state --
roughly $2.3 million, according to the legislative budget office.
"Defendant has engaged in a statewide pattern or practice of
employment discrimination, both intentional and systemic, on the
basis of age in eliminating the longevity pay of long-term senior
state employees effective July 1, 2009," the suit alleges.
Lawmakers who negotiated the budget provision were blunt. The
section eliminating longevity pay in the budget was part of a
package of personnel cost cuts needed to bring the budget into
balance.
"Let's be clear here," said Sen. Bill Diamond, D-Windham,
co-chairman of the Appropriations Committee. "This was all
discussed and negotiated. The alternative was further layoffs."
He said other budget provisions also reduced worker pay instead of
layoffs, including the "shutdown days" where most of state
government is closed and workers have an unpaid day off. He said
lawmakers discussed all of the provisions affecting state workers
as a package, and there certainly was no intent by lawmakers to
discriminate against older workers in any way.
"I think this is a baseless claim," said Sen. Richard Rosen,
R-Bucksport, the GOP senator on the committee. "The package as a
whole impacted all state employees, across the board. I think it
is a false argument to take the longevity out of that overall
package and make a claim of discrimination."
He agreed with Sen. Diamond that there was no intent by lawmakers
to discriminate against any group of state workers and when all of
the personnel cuts are taken as a whole, it is clear all state
workers shared the "pain" of the budget.
Sen. Diamond said the lawsuit is just one more uncertainty for the
budget writers in the next Legislature. He said the $2.3 million
is not a lot in the scope of the overall state budget, but it will
be yet another "budget hole" if the suit is successful.
"I hope the court acts quickly," he said.
Sen. Rosen said while there have been rumors of a lawsuit for
about a year, he still was somewhat surprised the union was going
forward with a suit "against the people of the State of Maine"
after lawmakers restored longevity pay in the current budget year.
"I think we would be better off if we had a positive discussion
about issues instead of filing suits," he said.
Under the union agreement, longtime state workers get the
additional pay on top of any merit pay or inflationary pay
increases. The suit argues the elimination of longevity pay
is significant to those affected. For example Mr. Hodsdon, a
32-year state worker, was receiving $20 a week in longevity pay,
or about $1,040 a year.
Ms. Mills said the state would file a formal response when it is
served with the lawsuit. She said among the arguments the state
will likely use in its formal response is the finding by the
federal Equal Employment Opportunity Commission that there was no
basis for that agency taking action on a similar age complaint
filed with them.
Plaintiffs' lawyer:
Jeffrey N. Young, Esq.
MCTEAGUE HIGBEE CASE COHEN WHITNEY AND TOKER, P.A.
4 Union Pk., P.O. Box 5000
Topsham, ME 04086
Telephone: 207 725-5581
MATTEL INC: Plaintiffs' Counsel Gets $11 Million in Fees
--------------------------------------------------------
The U.S. District Court for the Central District of California
entered an order awarding plaintiffs' counsel approximately
$11 million in fees and expenses in a multidistrict litigation
against Mattel, Inc., related to product recalls and withdrawals,
according to the company's July 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2010.
Twenty-two lawsuits have been filed in the United States asserting
claims arising out of the Aug. 2, Aug. 14, Sept. 4, and/or Oct.
25, 2007 voluntary product recalls by Mattel and Fisher-Price, as
well as the withdrawal of red and green toy blood pressure cuffs
from retail stores or their replacement at the request of
consumers.
Eighteen of those cases were commenced in these U.S. District
Courts:
(a) 10 in the Central District of California:
(1) Mayhew v. Mattel, filed Aug. 7, 2007;
(2) White v. Mattel, filed Aug. 16, 2007;
(3) Luttenberger v. Mattel, filed Aug. 23, 2007;
(4) Puerzer v. Mattel, filed Aug. 29, 2007;
(5) Shah v. Fisher-Price, filed Sept. 13, 2007;
(6) Rusterholtz v. Mattel, filed Sept. 27, 2007;
(7) Jimenez v. Mattel, filed Oct. 12, 2007;
(8) Probst v. Mattel, filed Nov. 5, 2007;
(9) Entsminger v. Mattel, filed Nov. 9, 2007; and
(10) White v. Mattel, filed Nov. 26, 2007 (White II);
(b) three in the Southern District of New York:
(1) Shoukry v. Fisher-Price, filed Aug. 10, 2007;
(2) Goldman v. Fisher-Price, filed Aug. 31, 2007; and
(3) Allen v. Fisher-Price, filed Nov. 16, 2007;
(c) two in the Eastern District of Pennsylvania
(1) Monroe v. Mattel, filed Aug. 17, 2007, and
(2) Chow v. Mattel, filed Sept. 7, 2007;
(d) one in the Southern District of Indiana:
(1) Sarjent v. Fisher-Price, filed Aug. 16, 2007;
(e) one in the District of South Carolina:
(1) Hughey v. Fisher-Price, filed Aug. 24, 2007); and
(f) one in the Eastern District of Louisiana:
(1) Sanders v. Mattel, filed Nov. 14, 2007.
Two other actions originally filed in Los Angeles County Superior
Court were removed to federal court in the Central District of
California (Healy v. Mattel, filed Aug. 21, 2007, and Powell v.
Mattel, filed August 20, 2007).
Another lawsuit commenced in San Francisco County Superior Court
was removed to the federal court in the Northern District of
California (Harrington v. Mattel, filed Aug. 20, 2007).
One other action was commenced in District of Columbia Superior
Court and removed to the U.S. District Court for the District of
Columbia (DiGiacinto v. Mattel, filed Aug. 29, 2007).
Mattel was named as a defendant in all of the actions, while
Fisher-Price was named as a defendant in nineteen of the cases.
Multidistrict Litigation
On Sept. 5, 2007, Mattel and Fisher-Price filed a motion before
the Judicial Panel on Multidistrict Litigation asking that all
federal actions related to the recalls be coordinated and
transferred to the Central District of California and captioned In
re Mattel Inc. Toy Lead Paint Products Liability Litigation.
On Dec. 18, 2007, the JPML issued a transfer order, transferring
six actions pending outside the Central District of California
(Sarjent, Shoukry, Goldman, Monroe, Chow and Hughey) to the
Central District of California for coordinated or consolidated
pretrial proceedings with five actions pending in the Central
District (Mayhew, White, Luttenberger, Puerzer and Shah).
The remaining cases (Healy, Powell, Rusterholtz, Jiminez, Probst,
Harrington, DiGiacinto, Allen, Sanders, Entsminger, and White II),
so-called "potential tag-along actions," are either already
pending in the Central District of California or have been
transferred there pursuant to Jan. 3 and Jan. 17, 2008,
conditional transfer orders issued by the JPML.
These matters are all currently pending in In re Mattel, Inc. Toy
Lead Paint Products Liability Litigation, No. 2:07-ML-01897-DSF-
AJW, MDL 1897 (C.D. Ca.).
On March 31, 2008, plaintiffs filed a Consolidated Amended Class
Action Complaint in the MDL proceeding, which was followed with a
Second Consolidated Amended Complaint, filed on May 16, 2008.
Plaintiffs seek certification of a class of all persons who, from
May 2003 through the present, purchased and/or acquired certain
allegedly hazardous toys. The Consolidated Complaint defines
hazardous toys as those toys recalled between Aug. 2, 2007 and
Oct. 25, 2007, due to the presence of lead in excess of
applicable standards in the paint on some parts of some of the
toys; those toys recalled on Nov. 21, 2006 and Aug. 14, 2007,
related to magnets; and the red and green toy blood pressure cuffs
voluntarily withdrawn from retail stores or replaced at the
request of consumers.
Defendants named in the Consolidated Complaint are Mattel, Fisher-
Price, Target Corporation, Toys "R" Us, Inc., Wal-Mart Stores,
Inc., KB Toys, Inc., and Kmart Corporation. Mattel has assumed
the defense of Target Corporation, Toys "R" Us, Inc., KB Toys,
Inc., and Kmart Corporation, and agreed to indemnify all of the
retailer defendants, for the specific claims raised in the
Consolidated Complaint, which claims relate to the sale of Mattel
and Fisher-Price toys.
In the Consolidated Complaint, plaintiffs assert claims for breach
of implied and express warranties, negligence, strict liability,
violation of the United States Consumer Product Safety Act and
related Consumer Product Safety Rules, various California consumer
protection statutes, and unjust enrichment.
Plaintiffs seek (i) declaratory and injunctive relief enjoining
defendants from continuing the allegedly unlawful practices raised
in the Consolidated Complaint; (ii) restitution and disgorgement
of monies acquired by defendants from the allegedly unlawful
practices; (iii) costs of initial diagnostic blood lead level
testing to detect possible injury to plaintiffs and members of the
class; (iv) costs of treatment for those who test positive to the
initial diagnostic blood lead level testing; (v) reimbursement of
the purchase price for the allegedly hazardous toys; and (vi)
costs and attorneys' fees. On June 24, 2008, defendants filed
motions to dismiss the Consolidated Complaint.
On Nov. 24, 2008, the Court granted defendants' motion with
respect to plaintiffs' claims under the CPSA related to the magnet
toys and the toy blood pressure cuffs and denied defendants'
motions in all other respects.
On Oct. 13, 2009, plaintiffs and Mattel filed a joint motion with
the Court seeking preliminary approval of a class action
settlement of the MDL proceeding, which the Court granted on Oct.
23, 2009.
Pursuant to the Court's order of preliminary approval, the parties
have implemented the settlement.
Under the settlement, Mattel agreed, among other things, to
provide various categories of economic relief for members of the
settlement class, maintain a quality assurance system, make a
charitable contribution to fund child safety programs, and not
object to plaintiffs' counsel's application to the Court for
attorneys' fees and expenses up to a specified amount.
On March 15, 2010, the Court held a hearing on the parties' motion
for final approval of the class action settlement.
The Court subsequently entered a final judgment certifying the
settlement class and approving all aspects of the class action
settlement except plaintiffs' counsel's application to the Court
for attorneys' fees and expenses.
The Court took plaintiff's counsel's application under advisement
and has not yet ruled on it. Two objectors to the settlement have
filed appeals from the final judgment.
On March 26, 2010, the Court entered a final judgment dismissing
the MDL proceeding with prejudice, certifying the settlement
class, and approving all aspects of the class action settlement
except plaintiffs' counsel's application to the Court for
attorneys' fees and expenses.
On May 5, 2010, the Court entered an order awarding plaintiffs'
counsel approximately $11 million in fees and expenses, which was
paid by Mattel during the three months ended June 30, 2010.
Three appeals have been filed relating to the approval of the
settlement, dismissal of the MDL actions, and the award of
attorneys' fees and expenses. In addition, plaintiffs have
appealed the award of attorneys' fees and expenses. All of the
appeals are pending.
Mattel, Inc. -- http://www.mattel.com/-- designs, manufactures
and markets toys and family products. The Mattel family is
comprised of such best-selling brands as Barbie(R), the most
popular fashion doll ever introduced, Hot Wheels(R), Matchbox(R),
American Girl(R), Radica(R) and Tyco R/C(R), as well as Fisher-
Price(R) brands, including Little People(R), Power Wheels(R) and a
wide array of entertainment-inspired toy lines. With worldwide
headquarters in El Segundo, Calif., Mattel employs approximately
27,000 people in 43 countries and territories and sells products
in more than 150 nations.
MATTEL INC: Certification Hearing in "Sharp" Case Set for Nov. 29
-----------------------------------------------------------------
The motion of plaintiffs for class certification in the matter
Sharp v. Mattel Canada, is set to be heard on Nov. 29, 2010,
according to Mattel, Inc.'s July 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2010.
Since Sept. 26, 2007, eight proposed class actions have been filed
in the provincial superior courts of these Canadian provinces:
(a) British Columbia (Trainor v. Fisher-Price, filed
Sept. 26, 2007);
(b) Alberta (Cairns v. Fisher-Price, filed Sept. 26, 2007);
(c) Saskatchewan (Sharp v. Mattel Canada, filed Sept. 26,
2007);
(d) Quebec (El-Mousfi v. Mattel Canada, filed Sept. 27,
2007, and Fortier v. Mattel Canada, filed Oct. 10,
2007);
(e) Ontario (Wiggins v. Mattel Canada, filed Sept. 28,
2007);
(f) New Brunswick (Travis v. Fisher-Price, filed Sept. 28,
2007); and
(g) Manitoba (Close v. Fisher-Price, filed October 3,
2007).
Mattel, Fisher-Price, and Mattel Canada are defendants in all of
the actions, and Fisher-Price Canada is a defendant in two of the
actions (El-Mousfi and Wiggins). All but one of the cases seek
certification of both a class of residents of that province and a
class of all other residents of Canada outside the province where
the action was filed.
The classes are generally defined similarly in all of the actions
to include both purchasers of the toys recalled by Mattel and
Fisher-Price in August and September 2007 and children, either
directly or through their parents as "next friends," who have had
contact with those toys.
The actions in Canada generally allege that defendants were
negligent in allowing their products to be manufactured and sold
with lead paint on the toys and negligent in the design of the
toys with small magnets, which led to the sale of defective
products.
The cases typically state claims in four categories: (i)
production of a defective product; (ii) misrepresentations; (iii)
negligence; and (iv) violations of consumer protection statutes.
Plaintiffs generally seek general and special damages, damages in
the amount of monies paid for testing of children based on alleged
exposure to lead, restitution of any amount of monies paid for
replacing recalled toys, disgorgement of benefits resulting from
recalled toys, aggravated and punitive damages, pre-judgment and
post-judgment interest, and an award of litigation costs and
attorneys' fees. Plaintiffs in all of the actions except one do
not specify the amount of damages sought.
In the Ontario action (Wiggins), plaintiff demands general damages
of CDN$75 million and special damages of Canadian dollar CDN$150
million, in addition to the other remedies. In November 2007, the
class action suit commenced by Mr. Fortier was voluntarily
discontinued.
On Feb. 3, 2010, the plaintiff in the Saskatchewan action (Sharp)
served a notice of motion seeking certification of the action as a
class action. That motion for certification is scheduled to be
heard before the Saskatchewan court on Nov. 29, 2010.
Certification has not yet been sought in any of the other actions
in Canada.
Mattel, Inc. -- http://www.mattel.com/-- designs, manufactures
and markets toys and family products. The Mattel family is
comprised of such best-selling brands as Barbie(R), the most
popular fashion doll ever introduced, Hot Wheels(R), Matchbox(R),
American Girl(R), Radica(R) and Tyco R/C(R), as well as Fisher-
Price(R) brands, including Little People(R), Power Wheels(R) and a
wide array of entertainment-inspired toy lines. With worldwide
headquarters in El Segundo, Calif., Mattel employs approximately
27,000 people in 43 countries and territories and sells products
in more than 150 nations.
MATTEL INC: Fisher-Price Defends Five Suits in Canada Over Cribs
----------------------------------------------------------------
Fisher-Price, Inc., defends five proposed class action in Canada
relating to the Stork Craft cribs, according to Mattel, Inc.'s
July 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
In late November 2009, five proposed class actions were filed in
provincial superior courts in five different Canadian provinces
against Fisher-Price, Inc., and Fisher-Price Canada Inc. alleging
claims based on alleged manufacturing defects in drop-side cribs
manufactured by Stork Craft Manufacturing Inc., between 1993 and
2009, including Fisher-Price branded drop-side cribs manufactured
and sold by Stork Craft pursuant to a License Agreement with
Fisher-Price, Inc.
These claims follow product recalls of Stork Craft-manufactured
drop-side cribs in the United States and Canada.
Stork Craft and the corporate entities of a number of retailers,
including Wal-Mart, Sears, The Bay and Toys R' Us, also have been
named as defendants in the proposed class actions.
The five proposed class actions are:
(1) Cedar Dodd v. Stork Craft Manufacturing Inc. et al.,
filed in the Supreme Court of British Columbia on
Nov. 24, 2009, Victoria Registry, Action No. 09 5327;
(2) Amy St. Pierre et al. v. Fisher-Price Canada Inc.,
et al., filed in the Court of Queen's Bench of Alberta
on Nov. 24, 2009, Judicial District of Calgary, Action
No. 0901-17700;
(3) Kim Riel v. Stork Craft Manufacturing Inc. et al.,
filed in the Court of Queen's Bench of Saskatchewan, on
Nov. 25, 2009, Judicial Centre of Regina, Q.B. No. 1794
of 2009;
(4) Tara Russell v. Stork Craft Manufacturing Inc. et al.,
filed in the Court of Queen's Bench of Manitoba, on
Nov. 25, 2009, Winnipeg Centre,
File No. C1 09-01-63980; and
(5) David Duong et al. v. Stork Craft Manufacturing Inc.
et al., filed in the Ontario Superior Court of Justice
on Nov. 25, 2009, in Ottawa, Court File No. 09-46962.
The five proposed class actions are all brought by the same
plaintiff's law firm and the allegations are essentially the same.
Each of the proposed class actions is based on allegation that the
drop-side mechanisms used in the Stork Craft cribs are dangerously
defective in that they create a risk that infants will be injured
as result falling from or becoming entrapped in the crib.
The claims are based in negligence, waiver of tort and breach of
provincial sale of goods and consumer protection legislation. The
claims seek damages for personal injury and economic loss,
including recovery of the purchase price paid for the cribs, as
well as an accounting, disgorgement or restitution of revenue
earned by the defendants from selling the cribs. The claims
further seek exemplary, aggravated and punitive damages.
No amount of damages is specified in any of the claims, except the
Ontario claim which seeks C$1 million in general damages and CDN$1
million in special damages. Each of the proposed class actions
seeks certification on behalf of a class consisting of all persons
(except defendants) that owned or purchased the drop-side cribs in
question. No motion for certification has yet been filed in any
of the actions.
The License Agreement between Fisher-Price and Stork Craft
includes an indemnity clause whereby Stork Craft agreed to
indemnify Fisher-Price in respect of claims against Fisher-Price
relating to Stork Craft manufactured products.
While Mattel intends for Fisher-Price to seek indemnity from Stork
Craft to cover all costs related to these claims, there can be no
assurance that Fisher-Price ultimately would be successful in
obtaining full indemnity from Stork Craft.
All of the proposed class actions are at a preliminary stage.
Mattel, Inc. -- http://www.mattel.com/-- designs, manufactures
and markets toys and family products. The Mattel family is
comprised of such best-selling brands as Barbie(R), the most
popular fashion doll ever introduced, Hot Wheels(R), Matchbox(R),
American Girl(R), Radica(R) and Tyco R/C(R), as well as Fisher-
Price(R) brands, including Little People(R), Power Wheels(R) and a
wide array of entertainment-inspired toy lines. With worldwide
headquarters in El Segundo, Calif., Mattel employs approximately
27,000 people in 43 countries and territories and sells products
in more than 150 nations.
MONSANTO CO: Shareholders File Class Action Over Glyphosate Biz
---------------------------------------------------------------
Feedstuffs reports that Monsanto Company shareholders upset over
the company's failure to adequately disclose information on its
fledgling glyphosate business are seeking compensation in a class
action lawsuit.
The law firm Robbins Geller Rudman & Dowd LLP stated July 29, that
it is commencing the suit on behalf of an institutional investor
in the United States District Court for the Eastern District of
Missouri on behalf of purchasers of the common stock of Monsanto
Company between January 7, 2009 and May 27, 2010.
The complaint alleges that, throughout the time period, Monsanto
failed to disclose material adverse facts about the company's true
financial condition, business and prospects. Specifically, the
complaint alleges that Monsanto's executives failed to disclose
that demand for the company's herbicide products was substantially
declining as competition from Chinese producers of generic
glyphosate products was causing a collapse in the prices of
glyphosate products.
The complaint also charges that Monsanto would be unable to
maintain herbicide prices as they knew that they had to cut prices
significantly to be able to compete with the avalanche of generic
herbicide products that were entering the market. The suit states
that these positive statements about the company's earnings were
"lacking in a reasonable basis" and were "misleading".
On May 27, 2010, Monsanto said it was "dramatically" repositioning
its Roundup business, lowering its full-year 2010 guidance to
$2.40 to $2.60 a share from $3.10 to $3.30 a share, and lowering
its free cash flow guidance. The company also announced that its
guidance for Roundup and other glyphosate-based products was now
$50 to $200 million, down from $600 million on April 7, 2010. On
this news, the company's stock price fell from a price of $52.66
prior to the announcement to close at $50.27 on extremely heavy
volume.
SOUTH FINANCIAL: Inks Agreement to Settle Consolidated Suit
-----------------------------------------------------------
The South Financial Group, Inc., has entered into a memorandum of
understanding with the plaintiffs to settle a consolidated suit
styled In re The South Financial Group, Inc., CA No. 2010-CP-23-
5001, according to the company's July 28, 2010, Form 8-K filing
with the U.S. Securities and Exchange Commission.
On May 16, 2010, the company, The Toronto-Dominion Bank and a
wholly owned subsidiary of TD entered into an Agreement and Plan
of Merger, providing for TD to acquire TSFG and a Share Purchase
Agreement, pursuant to which TD agreed to purchase 100 newly
issued shares of TSFG's Series M Preferred Stock, which will vote
together with TSFG common stock as a single class and represent
39.9% of the total voting power of holders of TSFG capital stock
entitled to vote, for consideration of 1,000 TD common shares.
Two purported class action lawsuits are pending in the South
Carolina Court of Common Pleas relating to the transactions
contemplated by the Merger Agreement and the Share Purchase
Agreement, naming TSFG, the TSFG directors, and TD as defendants,
and each on behalf of a putative class of TSFG stockholders.
Those actions were submitted for consolidation on June 28, 2010,
under the caption In re The South Financial Group, Inc., CA No.
2010-CP-23-5001.
The plaintiffs in the Consolidated Action generally challenge the
proposed Merger and Issuance.
On July 22, 2010, the defendants entered into a memorandum of
understanding with the plaintiffs regarding the settlement of the
Consolidated Action.
In connection with the settlement contemplated by the MOU, TD
agreed not to engage in any additional purchases of outstanding
TSFG common stock from July 22, 2010 through the record date for
the special meeting of TSFG shareholders to vote on the Merger.
In addition, TSFG and TD agreed to make certain additional
disclosures relating to the Merger in the definitive proxy
statement for the purpose of soliciting the vote of TSFG
shareholders.
The MOU contemplates that the parties will enter into a
stipulation of settlement. The stipulation of settlement will be
subject to customary conditions, including Court approval
following notice to TSFG's shareholders. If the settlement is
finally approved by the court, it will resolve and release all
claims in all actions that were or could have been brought
challenging any aspect of the proposed Merger, the Merger
Agreement and the Share Purchase Agreement, and the transactions
contemplated thereby, and any disclosure made or shareholder vote
held in connection therewith, pursuant to terms that will be
disclosed to shareholders prior to final approval of the
settlement. Upon Court approval, plaintiffs' attorneys are
expected to apply for an award of attorneys' fees and expenses.
There can be no assurance that the parties will ultimately enter
into a stipulation of settlement or that the Court will approve
the settlement even if the parties were to enter into such
stipulation. In such event, the proposed settlement as
contemplated by the MOU may be terminated.
The South Financial Group, Inc. -- http://www.thesouthgroup.com/-
- is a bank holding company focused on serving small businesses,
middle market companies, and retail customers in the Carolinas and
Florida. At September 30, 2009, it had approximately $12.3
billion in total assets and 177 branch offices. TSFG operates
Carolina First Bank, which conducts banking operations in North
Carolina and South Carolina (as Carolina First Bank), in Florida
(as Mercantile Bank), and on the Internet (as Bank CaroLine).
SP AUSNET: Gets Downgraded on Concerns Over Bushfire Class Suit
---------------------------------------------------------------
Michael Bennet, writing for The Australian, reports that analysts
have downgraded SP AusNet on concerns over litigation against the
company stemming from the 2009 Victorian bushfires.
Deutsche Bank and Credit Suisse both took their knives out after
the final report from the Victorian Bushfires Royal Commission
concluded that five of the 11 major fires were started by failed
electricity assets, including the devastating Kilmore East fire.
Credit Suisse analyst Sandra McCullagh is particularly concerned
about a class action with more than 600 claimants against SP
AusNet; the action claims that proper maintenance and correctly
identifying a damaged power line could have avoided the Kilmore
East fire.
Ms. McCullagh cut the stock to "neutral" and cut her price target
4 cents to 85c, despite her view that the report was unclear on
whether the company's actions were responsible for the Kilmore
East fire.
"However, the report identifies several inadequacies in SP
AusNet's line-inspection training programs," she said.
"We view this as a negative development for SP AusNet and likely
to leave the bushfire litigation as an ongoing overhang on the
stock."
But Melbourne-based SP AusNet largely fought off the downgrades on
the morning of August 3, slipping just 1c to 79c by early
afternoon.
This is despite similar treatment of SP AusNet by Deutsche's John
Hirjee, who swapped his "buy" with a "hold" and slashed his target
23.8 per cent to 80c.
Mr. Hirjee reckons the claim against SP AusNet could have legs due
to the commission's findings that the Kilmore East bushfires were
started by an electrical failure on the company's electricity
distribution network and "partly caused" by an incorrectly seated
component.
"The royal commission determined that a line inspection in January
2008 failed to identify the incorrectly positioned component," he
said. "This finding suggests the class action against SP AusNet
in relation to the Kilmore East bushfires may be able to progress
further. We note SP AusNet has bushfire liability insurance
commensurate with industry standards, which does not cover willful
negligence."
An SP AusNet spokesperson said: "SP AusNet rejects any allegation
of negligence and will vigorously defend these claims."
TOYOTA MOTOR: Recalls 480,000 Vehicles for Steering Fix
-------------------------------------------------------
Mike Ramsey at Dow Jones Newswires reports that Toyota Motor Corp.
is voluntarily recalling about 480,000 vehicles world-wide, mostly
Avalon large sedans in the U.S., for steering-system flaws that
could develop over time and lead to a loss of control. The report
relates that Toyota is recalling about 400,000 Avalons -- 373,000
in the U.S.-from model-year 2000-2004. The remaining vehicles are
spread through Japan, Canada and Saudi Arabia.
In a separate recall, the report notes, the auto maker said it
would fix 80,000 Lexus LX 470 or LC 100 SUVs outside North America
from model years 2003-2007. The report relates that about 39,000
of the Lexus models are in the U.S., 8,000 in Europe, 16,000 in
the Middle East, 5,000 in Australia, 1,000 in China and 10,000 in
Japan.
According to the report, both the Avalon and the LX 470 could
develop steering problems over time after an initial problem,
though the issues are different. The report says that there were
three unconfirmed reports of accidents involving the Avalon and no
known accidents involving the LX 470.
The report notes that the auto maker, chastened after being fined
$16.4 million earlier this year by the National Highway Traffic
Safety Administration for failing to recall sticky pedals in a
timely manner, has been making nearly regular recall announcements
in the past several months.
In the Avalon, the report says, an improperly casted steering-
column bracket could crack. The crack could widen over time and
break, making it difficult to get a stationary car out of a
steering lock, the report relates.
In the Lexus, the report discloses, a ring on the steering shaft
could crack during a jarring hit, such as hitting a deep pothole.
Over time, the ring could fail and the steering shaft to
disengage, the report adds.
Toyota Motor Corporation is a multinational corporation
headquartered in Japan.
TOYOTA MOTOR: Bernstein Litowitz Named Lead Counsel in Suit
-----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that Bernstein Litowitz Berger & Grossman was named lead counsel
on Monday in the shareholder class action against Toyota Motor
Corp. over sudden unintended acceleration.
U.S. District Judge Dale Fischer in Los Angeles consolidated seven
class actions against Toyota in June but held off a decision about
lead counsel pending the U.S. Supreme Court's ruling in Morrison
v. National Australia Bank. The high court ruled on June 24 that
investors who purchase a foreign company's stock on a foreign
exchange lack standing to sue in U.S. courts.
Under that definition, Judge Fisher ruled on Monday that Bernstein
Litowitz's client, the Maryland State Retirement and Pension
System, has asserted the largest loss of the pension funds vying
for lead plaintiff status. Judge Fischer appointed Robert
Fairbank, Esq., a partner at Los Angeles-based Fairbank & Vincent,
as liaison counsel to the sudden acceleration claims now pending
in multidistrict litigation before U.S. District Judge James V.
Selna in Santa Ana, Calif.
Judge Fischer indicated that the litigation could be hard fought.
"There's a lot of money involved here," she said. "This is going
to be a long process."
Actually, the shareholder class could end up being much smaller
than first anticipated. In a July 16 preliminary decision, Judge
Fischer indicated that domestic purchasers of Toyota's common
stock might not be allowed to pursue their claims in U.S. courts
in light of Morrison. "The opinion unfortunately does not directly
address what is meant by 'domestic transactions,'" she wrote,
explaining that it was unclear whether Morrison applied to U.S.
investors whose purchases of foreign stock on a foreign exchange
were truly "domestic transactions."
On Monday, Joseph J. Tabacco Jr., Esq., a San Francisco partner at
Boston's Berman DeValerio Pease Tabacco Burt & Pucillo, tried to
make a last-minute case for his client, the Commonwealth of
Massachusetts Pension Reserves Investment Management Board, which
suffered $43 million in losses when including holders of common
stock. He questioned whether the U.S. Supreme Court had intended
to exclude U.S. common stockholders a case like this.
Judge Fischer did not waiver from her position.
Instead, she appointed the Maryland pension fund because it had
the largest loss of American Depository Shares in Toyota, or
shares that are purchased on U.S. stock exchanges. The Maryland
pension fund originally was one of five institutional funds in a
group attempting to be named lead plaintiff, but Judge Fischer
said in her preliminary order that she did not want to appoint a
group.
Representing the Maryland pension fund are Gerald Silk and Blair
Nicholas, both partners at New York's Bernstein Litowitz, and two
representatives of the Maryland attorney general: Campbell
Killefer, deputy chief of the civil litigation division, and John
Kuchno, assistant attorney general.
Toyota was represented during the hearing by Patrick Robbins, a
partner in the San Francisco office of New York's Shearman &
Sterling.
Lead counsel representing Maryland State Retirement and Pension
System:
Gerald H. Silk, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1285 Avenue of the Americas
New York, NY 10019
Telephone: (212) 554-1282
Facsimile: (212) 554-1444
Email: jerry@blbglaw.com
- and -
Blair A. Nicholas, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: (858) 720-3183
Facsimile: (858) 436-0183
Email: blairn@blbglaw.com
Liaison counsel:
Robert H. Fairbank, Esq.
FAIRBANK & VINCENT
444 South Flower Street, Suite 3860
Los Angeles, CA 90071
Telephone: (213) 891-9010
Facsimile: (213) 891-9011
Email: rfairbank@fairbankvincent.com
Commonwealth of Massachusetts Pension Reserves Investment
Management Board's lawyer:
Joseph J. Tabacco, Jr., Esq.
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
Email: jtabacco@bermandevalerio.com
Toyota's lawyer:
Patrick D. Robbins, Esq.
SHEARMAN & STERLING LLP
525 Market Street
San Francisco, CA 94105
Telephone: (415) 616-1210
Facsimile: (415) 616-1199
Email: probbins@shearman.com
TOYOTA MOTOR: Suit Says Firm Knew Cars Had Electronic Problems
--------------------------------------------------------------
Dionne Searcey and Michael Ramsey, writing for The Wall Street
Journal, report that a lawsuit filed Monday accuses Toyota Motor
Corp. of knowing its vehicles had electronic problems long before
several high-profile acceleration incidents that prompted world-
wide recalls.
The complaint, filed in federal court in Santa Ana, Calif.,
alleges that Toyota knew its vehicles with electronic throttles
were more likely to experience sudden acceleration than its
vehicles without them and that the company has known for years it
needed to install brake-override systems to halt the problem.
The new allegations are outlined in a 167-page complaint seeking
class-action status before federal Judge James Selna. It is the
product of the consolidation of dozens of economic suits that aim
to hold Toyota responsible for a drop in resale value that stemmed
from reports of its vehicles speeding out of control.
Toyota faces an investigation by a federal grand jury and the U.S.
Securities and Exchange Commission into sudden-acceleration
incidents and braking-system issues. It said last month it also
had been subpoenaed by a federal grand jury for problems with
steering in its vehicles. It has recalled about eight million
vehicles world-wide because of sudden-acceleration problems.
A Toyota spokesman, Mike Michels, said the company rejects claims
that plaintiffs suffered economic damages because of the recent
recalls.
"To date, plaintiffs have not cited a specific cause that would
support their claim of a defect in Toyota's Electronic Throttle
Control System, and no credible scientific theory or proof has
been advanced to support this allegation," Mr. Michels said.
"Toyota firmly believes that the system is completely safe."
The suit seeks to have Toyota pay owners the drop in value of
their vehicles caused by the bad publicity and other issues
surrounding the sudden-acceleration incidents as well as pay
unspecified damages. It also seeks to force Toyota to pay a fine
and install brake-override systems in all its vehicles with
electronic throttles. Toyota already has said it will install
brake overrides in certain models.
Billions of dollars could be at stake for Toyota if plaintiffs
succeed. Steve Berman, Esq., a Seattle partner in law firm Hagens
Berman, who filed the suit, estimates the class to be as large as
40 million people. A separate body of litigation includes
wrongful-death claims, which could also end up costing Toyota
millions of dollars.
The plaintiffs' allegations in the suit were found in emails and
reports culled from the more than 43,000 documents Toyota produced
as part of the federal civil case. The documents, which also had
been turned over to Congress, include material that Toyota said
was personal information about owners -- and so was blacked out.
Attorneys last week received 23,000 more documents they have yet
to look over.
The case is only in the initial stages and plaintiffs face many
challenges. For instance, the U.S. Department of Transportation
has said it has no evidence of flaws, in early testing, of
Toyota's electronic-throttle control systems.
Monday's suit cites a 2004 email from a National Highway Traffic
Safety Administration investigator to a Toyota official with a
chart showing that Camrys with electronically controlled throttles
had received five times as many complaints of sudden acceleration
than those with manually controlled throttles.
The suit describes a "field technical report" of an incident when
Toyota's technicians investigating a customer complaint of sudden
acceleration experienced it themselves, and decided to buy back
the vehicle. The incident wasn't reported to the NHTSA, the
complaint said.
It also cites a September 2009 internal email apparently
circulated among Toyota engineers indicating that Toyota had
talked about taking action in 2007 to halt unintended acceleration
by installing "a fail safe option similar to that used by other
companies to prevent unintended acceleration," the e-mail said.
The option wasn't installed.
And the suit cites an internal email suggesting that Toyota was
trying to keep engineers with knowledge of electronics problems
from meeting with the NHTSA. "If the engineer who knows the
failures well attends the meeting, NHTSA will ask a bunch of
questions . . . I want to avoid such situation," reads the
February 2007 email from Toyota employee Michiteru Kato to Chris
Santucci, who is Toyota's liaison with U.S. regulators.
Mr. Santucci didn't respond to a request for comment; Mr. Kato
couldn't be reached.
Plaintiffs' lawyer:
Steve W. Berman, Esq.
HAGENS BERMAN LLP
1918 Eighth Ave., Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Email: steve@hbsslaw.com
UNITED HEALTHCARE: Facility Claims Not Part of Settlement
---------------------------------------------------------
A federal court in New York, overseeing a proposed class action
settlement against United Healthcare for underpaying professional
provider claims, has confirmed that the settlement does not cover
claims for services and supplies rendered by facilities.
The order came in response to a request of the court from Hooper,
Lundy & Bookman, P.C., following United's attempt to assert that
some of the claims in a lawsuit pending in Los Angeles federal
court on behalf of all ambulatory surgery centers (ASCs) in the
country were covered by the proposed settlement in New York.
Ultimately, the New York court confirmed that, not only does the
New York settlement exclude ASCs, it excludes hospitals and other
types of facilities. The result is that facilities throughout the
country still have the right to pursue United for underpaying
their claims for their services and supplies.
The issue arose when United sent class action notices to several
ASCs, creating confusion about whether the settlement in the New
York released claims for services provided by ASCs and other
facilities. United initially refused to stipulate that the New
York lawsuit only applied to claims by professional providers, and
not to facility providers. United argued that certain types of
facility claims were covered by the New York settlement, including
bills on certain forms, bills using certain codes, and bills for
drugs submitted in certain ways.
What began as a request on behalf of ASCs, expanded to include
similar requests by the California Hospital Association, which
represents the largest number of hospitals in any state, and other
providers.
"United made this order necessary by sending out unclear class
action notices to providers about the scope of what was being
released and then refusing requests to clarify that facilities
were outside the scope of the New York settlement. Only after a
formal request and hearing by the federal court in New York on the
issue, was United willing," explained Glenn E. Solomon, Esq., co-
lead counsel for the ASCs and CHA. "It became apparent before and
during the court hearing that United was hoping to obtain releases
for facility services and supplies through the class action, even
though no facilities were parties to that class action."
AMA Case
The New York case involves professional claims paid using United's
flawed Ingenix system, and certain other pricing systems used by
United. The case was pursued by the American Medical Association,
along with several professionals, for compensation.
"The AMA did a good job representing professional provider
members," said Daron Tooch, co-lead counsel for the ASCs. "But the
AMA never claimed to represent the interests of facilities as to
their separate underpaid claims for their services and supplies."
Although both the New York and the Los Angeles lawsuits involve
underpayments by United, the Los Angeles case relates only to
services and supplies provided by ASCs.
ASC Case
When the Los Angeles action began, it was alleged that United paid
ASCs based on the same flawed Ingenix system, based in part on
United having represented to ASCs that it had used Ingenix for
this purpose. Through discovery, however, HLB discovered that
United actually paid most ASC claims based on other methods, which
appear to be even more flawed than the Ingenix system.
The amended complaint filed in Los Angeles details how United
represented in its Evidences of Coverage (EOCs) that it would pay
ASC claims based on what is known as the "usual, customary and
reasonable" (UCR) charges; represented in its Explanations of
Benefits (EOBs) that it paid ASC claims based on "reasonable
charges" -- i.e., a shorthand for UCR; and represented during
appeals that ASC claims had been priced using the Ingenix system.
But United now admits that it really paid most ASC claims based on
a multiple of either contracted rates or Medicare rates, which are
not systems that even consider the provider's charges, whether
reasonable or otherwise. "At least the Ingenix system purported to
be based on UCR data, whereas the methods actually used to pay ASC
claims appear to be entirely detached from charges," explains Mr.
Solomon.
As a result of the order, ASCs, hospitals and other facilities
that may have received class action settlement notices from United
need not write-off their underpaid claims for their services and
supplies. The rights of facilities to pursue underpayments for
their own facility services and supplies are retained. A copy of
the New York federal court order with more details can be found at
http://is.gd/e1EbK
About Hooper, Lundy & Bookman, P.C.
HLB -- http://www.health-law.com/-- has obtained more than
$1 billion on behalf of its provider clients, which include
hospitals, surgery centers, dialysis companies, medical groups,
doctors, laboratories, nursing homes and other providers in the
health care industry. HLB also routinely assists providers with a
variety of complex health care issues, against managed care
payors, government entities, and others. The firm's litigation,
business, and regulatory departments provide a full range of legal
services to the provider community. With clients in all 50 states,
and offices in Los Angeles, San Francisco, San Diego, and
Washington, D.C., HLB is the largest law firm in the country
dedicated solely to the representation of health care providers
and suppliers.
Contact co-lead counsel:
Glenn E. Solomon, Esq.
HOOPER, LUNDY & BOOKMAN, P.C.
1875 Century Park East, Suite 1600
Los Angeles, CA 90067
Telephone: 310-551-8179
Email: gsolomon@health-law.com
- and -
Daron L. Tooch, Esq.
HOOPER, LUNDY & BOOKMAN, P.C.
1875 Century Park East, Suite 1600
Los Angeles, CA 90067
Telephone: 310-551-8192
Email: dtooch@health-law.com
UNITED PARCEL: Sued in Calif. for Not Reimbursing for Socks
-----------------------------------------------------------
Courthouse News Service reports that a United Parcel Service
worker says in a new class action that she and her co-workers
weren't reimbursed for socks bearing UPS' logo, which is a
required part of their uniform.
Laura Gallardo says in Los Angeles Superior Court that she
regularly purchased the required socks during her five years as a
driver at the delivery company's Cerritos, Calif. location. But
she says she and other workers were never reimbursed for the
socks.
She seeks class certification and unspecified damages for labor
law violations, and is represented by Michael Nourmand.
UNITED STATES: Public Counsel Files Suit on Behalf of Immigrants
----------------------------------------------------------------
The nation's first class action lawsuit on behalf of immigrant
detainees with severe mental disabilities -- detainees who are
defenseless in a system they cannot comprehend -- was filed late
Monday by a coalition of legal organizations led by Public
Counsel, the American Civil Liberties Union of Southern
California, and Sullivan & Cromwell LLP. Others participating in
the suit include the American Civil Liberties Union's Immigrants'
Rights Project, the ACLU of San Diego & Imperial County, Northwest
Immigrants' Rights Project, and Mental Health Advocacy Services.
The suit asks a federal district court here to order the U.S.
government to create a system for determining which non-citizens
lack the mental competence to represent themselves and to appoint
legal representation for those who are unable to defend
themselves. Unlike the criminal court system -- where appointed
counsel is part of due process -- immigration courts and detention
facilities have no safeguards for ensuring that the rights of
people with serious mental disabilities are protected.
"This broken system unjustly ruins the lives of detainees and
their families," said Talia Inlender, Esq., staff attorney with
Los Angeles-based Public Counsel. "Our country's values demand
that we provide fair treatment for detained immigrants with
serious mental disabilities."
The suit grew out of the case of one man, Jose Franco-Gonzalez,
who was the subject of a habeas petition filed last March. Mr.
Franco was lost in detention facilities in California for nearly
five years because of the government's failure to account for his
mental retardation. His case came to the attention of Public
Counsel, who launched a program in November 2008 to provide legal
services for detained immigrants at the Santa Ana City Jail, where
Mr. Franco was being held. Ms. Inlender explained that, "Mr.
Franco sat in jail for years with no immigration case pending
against him and no opportunity to seek release before a judge. He
was simply forgotten by a system that has no mechanism to deal
with people who suffer from mental disabilities. Unfortunately,
his case is not unique."
The six immigrants represented in the suit filed August 2, 2010,
are from California and Washington, and all have been diagnosed
with severe mental disabilities, such as schizophrenia,
depression, and mental retardation. Several have been found
incompetent to stand trial in other court proceedings.
"Our Constitution and our laws demand fair treatment for people
with severe mental disabilities," said Ahilan Arulanantham,
director of immigrants' rights and national security for the
ACLU/SC. "If someone cannot understand the proceedings against
them, due process requires that they be given a lawyer to help
them."
The exact number of detainees with severe mental disabilities is
unclear, but some reports estimate that at least two to five
percent of the immigrants detained by immigration authorities
nationwide -- or 7,000 to 19,000 individuals -- might have a
serious mental disability.
"The problem worsens day by day as the detention centers swell
with more detainees," said Michael Steinberg, a partner of
Sullivan & Cromwell. "Ignoring the needs of those suffering from
mental illnesses only debases our system of justice."
Public Counsel is the largest pro bono law office in the nation.
Media contact: Ted Zepeda, Director of External Affairs, (213)
385-2977 x125, tzepeda@publiccounsel.org
Contact:
Michael H. Steinberg, Esq.
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, CA 90067-1725
Telephone: 310-712-6670
Facsimile: 310-712-8800
E-mail: steinbergm@sullcrom.com
WARREN FUNERAL: Court Denies Class Action Status to Johnson Suit
----------------------------------------------------------------
Dan Everson, writing for Missourian, reports that Kathy Johnson's
lawsuit against the Warren Funeral Chapel is no longer a class
action.
In a hearing Monday, Boone County Circuit Judge Kevin Crane said
the lawsuit does not meet the purpose of a class-action suit: to
help make the court system more efficient by avoiding multiple
trials on the same facts.
Many claims arose against the funeral home in the wake of state
inspections at the Columbia facility in July 2008.
Among other violations, inspectors found the un-embalmed body of a
woman who had died of hepatitis 10 months earlier.
The attorney general's office filed a lawsuit against the funeral
home and its owners, Harold Warren Sr. and Harold Warren Jr., on
July 25, 2008. The case, which is set for trial in September
according to Missouri Case.net, led to an injunction that shut the
funeral home's doors.
A week later, on Aug. 1, Ms. Johnson sued the funeral home, the
Warrens and Dave Turner, identified as the owner of Rock Bridge
Cemetery, for a violation of her right of sepulcher.
Ms. Johnson's attorney, Pete Nacy, Esq., filed the petition with a
motion to certify the lawsuit as a class action.
According to the petition, Ms. Johnson was unable to locate the
burial site of her mother, Beckie Harris, at Rock Bridge Cemetery
in Columbia. The Warrens and Turner were unable to say
definitively where Ms. Harris was buried.
On three separate occasions, Mr. Turner identified three different
plots as possible locations of her mother's grave, Ms. Johnson
said.
The petition alleged that many others had "suffered similar
indignities, embarrassment, insult and outrage" at the hands of
the Warrens.
Judge Gene Hamilton certified the lawsuit as a class action
Feb. 25, 2009.
Judge Crane's ruling Monday reversed that decision.
The Warrens' defense attorney, James Sullivan, Esq., argued
against the class action because it would not make it any easier
for the courts to process all the claims against Warren Funeral
Chapel.
Two attorneys, Mr. Nacy and Samuel Trapp, Esq., represent the
plaintiffs in the class action. Neither provided an exact number
of plaintiffs in the case.
However, both the plaintiffs and the defense estimate that there
are about 200 potential plaintiffs. That figure is based on the
estimate that Warren Funeral Chapel performed about 40 funerals
each year for five years. (The plaintiff class consists of all
those who made contracts with the Warrens between Aug. 1, 2003,
and Aug. 1, 2008.)
Mr. Sullivan argued that each plaintiff in the lawsuit has unique
claims. Specific, individualized evidence would be required to
prove each claim, he said.
For example, Ms. Johnson's claims deal with difficulties locating
her mother's grave. But other plaintiffs have different
allegations, such as:
* bodies being kept on Warren Funeral Chapel premises
without being embalmed or refrigerated.
* decayed bodies being stored throughout the building.
* bags of internal organs being stored with bodies of other
decedents.
* bodies being cremated in the same container.
To process such a variety of claims in one class-action lawsuit
would require every plaintiff to testify, Mr. Sullivan said. That
would be no better than holding multiple trials to handle each
person's claims, he said. "This case would be completely
unmanageable as a class action," he said.
But Mr. Trapp countered that all the class-action allegations were
similar. Each allegation involves the mishandling of people's
bodies, he argued. "Everybody's mishandling doesn't have to be
identical," Mr. Trapp said.
Mr. Sullivan disagreed, noting that the evidence needed to prove
each claim is not identical. "Just because you have the same
legal claim doesn't mean it's a class action," he said. Mr.
Sullivan also argued that the plaintiff class was defined too
broadly because it included anyone who entered into a contract
with Warren Funeral Chapel from Aug. 1, 2003, to Aug. 1, 2008.
"Not every single person that went to the Warren funeral home has
a claim for the right of sepulcher," he said.
Judge Crane also saw the breadth of the class as a problem. "You
can join the class without having any evidence of mishandling at
all," he said.
As a result of Judge Crane's ruling, those with claims against
Warren Funeral Chapel will have to pursue them individually, Mr.
Sullivan said.
After the hearing, Mr. Trapp said he had no problem with Judge
Crane's decision except that it could lead to a large number of
similar cases. "I think it is ridiculous to have to try the same
case 30 to 50 times," Mr. Trapp said.
Mr. Trapp still represents a number of the plaintiffs from the
class-action suit. He said he would have to consider whether he
wants to file separate lawsuits for each of them or try to include
them in Ms. Johnson's existing lawsuit.
Ms. Johnson was in attendance at Monday's hearing. "It doesn't
bother me," she said of the decision.
All plaintiffs in the lawsuit will now have to be notified that
the class action has been decertified. Mr. Sullivan said the
defense would pay for the notifications.
The Warren Funeral Chapel closed its doors July 30, 2008. The
injunction in the attorney general's lawsuit extended that
closure. Millard Family Investments, which owns several Central
Missouri funeral homes, purchased the building in March 2009.
In November 2009, Mr. Warren Sr. pleaded guilty to criminal
charges of unlawful merchandise practices and misrepresentation.
He was sentenced to 60 days of home detention and five years of
probation.
Representing the plaintiffs:
Samuel E. Trapp, Esq.
TRAPP & ASSOCIATES
522 East Capitol Ave.
Jefferson City, MO 65101-3078
Telephone: (573) 635-0282
* Zurich Offers Insurance for Defendants in Contract Litigation
---------------------------------------------------------------
Zurich, one of the leading property and casualty insurance
providers globally and in North America, disclosed that its
Programs unit is expanding its first-of-its-kind contract
litigation policy to now help protect defendants. The policy will
be provided through Sonoma Risk Insurance Agency.
Similar to its Plaintiff Contract Litigation Insurance (PCLI), the
new Defendant Contract Litigation Insurance (DCLI) program is
designed to insure defendants in contractual lawsuits against the
risk of paying their adversaries' attorneys fees if unsuccessful
in defending against a breach of contract claim.
"Loser Pays" provisions and statutes are on the rise in the U.S.
Also, in many states, plaintiffs have a mandatory statutory right
to recover attorneys' fees in contract disputes, and according to
Sonoma Risk, contracts between businesses and even individuals are
increasingly including these provisions.
"The financial liability of paying your adversary's legal fees is
a serious concern," said Craig Fundum, president of Programs &
Direct Markets for Zurich's North America Commercial business.
"The Bureau of Justice Statistics recently reported that, on
average, two out of three defendants in contract cases lose at
trial. This policy is intended to help mitigate the risk of an
adverse judgment."
Both defendant and plaintiff contract litigation insurance can
offer a variety of benefits to businesses and individuals some of
which might include:
* Reduced financial risk exposure
* The ability for companies and individuals to pursue
strong claims that otherwise may be abandoned due to
potential financial liability
* The ability for general counsels and business owners to
budget litigation costs more effectively
To provide the maximum amount of flexibility to businesses and
individuals, the defendant contract insurance can be applied for
60 days from the date a defendant is served with a complaint.
The policy coverage period matches the duration of the litigation
and is triggered when the plaintiff prevails at trial or if a
summary judgment is issued against the defendant.
"Zurich has been invaluable in helping us meet the strong demand
we've seen since day one for our policies," said Kevin Martin,
founder and CEO of Sonoma Risk. "Now with both plaintiff and
defendant policies, companies and individuals can be protected
from paying their adversary's legal fees -- allowing them to
pursue cases based on merits, not just financial concerns."
According to Damiano Servidio, head of Professional Services for
Zurich's Programs unit, Zurich accelerated the introduction of the
DCLI Program in response to the legal community's strong
receptivity to the PCLI program and their subsequent demand for a
program to cover a defendant in contract litigation.
"Based on the needs expressed by the legal community for a
defendant policy, we expect a strong demand for Defendant Contract
Litigation Insurance, particularly because defendants in lawsuits
have less control over the prosecution, and, according to the
Bureau of Justice Statistics, face a greater chance of losing at
trial," said Mr. Servidio.
"Because the professional and ethical responsibilities demanded of
attorneys to thoroughly assess the strengths, weaknesses and
uncertainties of their clients' cases, many in the legal community
have quickly adopted discussing the benefits of contract
litigation insurance as a best practice," Mr. Fundum added. "There
is simply a greater necessity today for attorneys to be sensitive
to the financial risk exposure of their clients, which is
something our insurance program is designed to address."
For more than 50 years, Zurich in North America's Programs
business has provided specialized insurance to commercial and
professional markets through qualified program administrators. To
learn more about Zurich's Programs business, go to
http://www.zurichna.com/programs
For more information about Sonoma Risk, go to
http://www.sonomarisk.com/ Attorneys or litigants interested in
receiving a quote should contact a Sonoma Risk litigation
insurance specialist at 888-388-7742.
Policy issued by a member company of Zurich in North America. This
coverage is offered only in certain jurisdictions and can be
purchased only on a surplus lines basis from a licensed surplus
lines producer.
About Zurich
Zurich in North America is a part of Zurich Financial Services
Group (Zurich), an insurance-based financial services provider
with a global network of subsidiaries and offices in North America
and Europe as well as in Asia Pacific, Latin America and other
markets. Founded in 1872, the Group is headquartered in Zurich,
Switzerland and employs approximately 60,000 people serving
customers in more than 180 countries, including more than 9,500
employees in North America.
Zurich entered the U.S. market in 1912. According to Highline Data
LLC (NAIC 2008), Zurich in North America --
http://www.zurichna.com/-- is the second-largest writer of
commercial general liability insurance and the fourth-largest
commercial property-casualty insurance company, serving the global
corporate, large corporate, middle market, specialties and
programs sectors. Zurich's risk engineering services in the United
States are provided by Zurich Services Corporation.
About Sonoma Risk
Sonoma Risk is dedicated to providing innovative and affordable
litigation insurance to individuals, businesses and corporations.
Its policies are underwritten by the companies of Zurich in North
America, a leading global insurance carrier.
Based in Los Angeles, with regional offices planned for the
Midwest, Southwest, Southeast and Northeast, Sonoma Risk is
comprised of a skilled management team of seasoned professionals
within the legal and insurance industries.
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