/raid1/www/Hosts/bankrupt/CAR_Public/100812.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, August 12, 2010, Vol. 12, No. 158
Headlines
ADVANTA CORP: RediReserve Notes Lawsuit Removed to District Court
ALMOST FAMILY: Faces Securities Class Action in Kentucky
BOSCH THERMOTECHNOLOGY: Recalls 1,500 Boiler Survey Kits
BP PLC: Sued for Releasing Toxic Chemicals at Texas Refinery
CANADIAN SOLAR: Siskinds LLP Files Securities Class Action
CAREER EDUCATION: Accused of Making Unsolicited Text Messages
CINTAS CORP: Court Approval of Settlement in Veliz Remains Pending
CITIBANK NA: Faces Class Action Over Labor Laws Violations
DOW CHEMICAL: 5th Circuit Holds Orders Remanding Consolidated Suit
ELI LILLY: Appeal on Certification Ruling Remains Pending
ELI LILLY: Reaches Agreement to Resolve Canadian Zyprexa Suits
ELI LILLY: Defends "Fecho" Suit in Washington
ENBRIDGE ENERGY: Sued Over Talmadge Creek Oil Leak
GLOBAL CLIENT: Accused in Missouri Suit of Fraud
GRAND BAHAMA: Sued for Making Unauthorized Text Messages
HURON CONSULTING: Court Denies Motion to Dismiss Class Suit
INTEL CORP: Plaintiffs Must Seek Review of Special Master's Report
INTEL CORP: Calif. Court Delays Ruling on Class Certification Bid
INTUITIVE SURGICAL: Faces Securities Class Action in California
J.B. HUNT: Wage Violations Suit Remains Pending in California
M/I HOMES: Settles Fla. Complaint by Former Employee
M/I HOMES: Remains a Defendant in Suit Over Chinese Drywall
MASSEY ENERGY: Hearing Set This Month on Medical Monitoring Suit
MICROSOFT CORP: Appeals Certification Ruling by Ontario Court
MICROSOFT CORP: Two Antitrust Suits in Canada Remain Stayed
NORFOLK SOUTHERN: Continues to Defend Suits Over Fuel Surcharges
NORTHERN TRUST: Defends Amended ERISA Violations Suit in Ill.
PILGRIMS PRIDE: Settlement in Two Suits Get Final Approval
PILGRIMS PRIDE: Motion to Dismiss Securities Suit Still Pending
PILGRIMS PRIDE: Motion to Dismiss Amended Complaint Pending
PILGRIMS PRIDE: RSP's Motion to Dismiss Amended Suit Pending
SKILLED HEALTHCARE: Hearing on Juror Misconduct Pushed to Friday
T-MOBILE USA: Sued for Deceptively Advertising Data Plans
TEXAS: Plano Employees File Class Suit Over Nonpayment of Overtime
THIN CARE: Calif. Suit Complains About Detox-Cleanse Program
VERIZON WIRELESS: Accused of Improperly Charging Texting Fees
WASHINGTON MUTUAL: District Court Preliminarily Certifies Class
WELLCARE HEALTH: Reaches Settlement of Securities Class Action
*********
ADVANTA CORP: RediReserve Notes Lawsuit Removed to District Court
-----------------------------------------------------------------
Scott+Scott LLP on June 24, 2010, filed a class action against
certain current and former officers and directors of the Advanta
Corporation and KPMG LLP, Advanta's auditor, in the Court of
Common Pleas of Montgomery County, Pennsylvania. On July 23,
2010, the action was removed to the United States District Court
for the Eastern District of Pennsylvania. The action for
violation of the Securities Act of 1933 is brought on behalf of
those purchasing Advanta RediReserve variable rate certificates
and investment notes during the period beginning June 24, 2007
through November 8, 2009, inclusive.
If you purchased RediReserve Notes during the Class Period and
wish to serve as lead plaintiff in the action, you must move the
Court no later than 60 days from the date of this notice. Any
member of the investor class may move the Court to serve as lead
plaintiff through counsel of its choice, or may choose to do
nothing and remain an absent class member. If you wish to discuss
this action or have questions concerning this notice or your
rights, please contact Scott+Scott -- scottlaw@scott-scott.com ;
(800) 404-7770; (860) 537-5537 or visit the Scott+Scott Web site:
http://www.scott-scott.com/for more information. There is no
cost or fee to you.
The complaint in this action alleges that, during the Class
Period, Advanta's registration statements in connection with the
offering of RediReserve Notes contained materially false
statements of facts. These registration statements contained
numerous positive portrayals regarding the state of Advanta's
business, the adequacy of its capital reserves and the
creditworthiness of its customers. These statements are alleged to
be false because (1) Advanta was engaged in "unsafe or unsound
banking practices," (2) Advanta operated with inadequate capital
for its risk profile, (3) Advanta operated in a manner that did
not ensure satisfactory earnings, (4) Advanta was unfairly
increasing the interest rate it charged its credit card customers,
and (5) Advanta's weak underwriting standards caused it to have
numerous customers that were not creditworthy.
The complaint alleges that the individual defendants in this
action signed Advanta's materially false registration statements.
The complaint further alleges that KPMG served as Advanta's
auditor during the Class Period and vouched for the false
statements in Advanta's registration statements.
Scott+Scott has significant experience in prosecuting major
securities, antitrust and employee retirement plan actions
throughout the United States. The firm represents pension funds,
foundations, individuals and other entities worldwide.
ALMOST FAMILY: Faces Securities Class Action in Kentucky
--------------------------------------------------------
Bernstein Liebhard LLP disclosed Monday that a class action has
been filed in the United States District Court for the Western
District of Kentucky on behalf of purchasers of Almost Family,
Inc., common stock during the period of November 4, 2009 and
June 30, 2010, inclusive. Defendants are Almost Family and certain
of its officers and executives.
The complaint charges Almost Family and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. Almost Family is a provider of home health services.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's operations and its business and financial results and
outlook. Defendants misled investors by failing to disclose that:
(i) the Company was deliberately increasing the number of
unnecessary home therapy visits in order to receive increased
Medicare reimbursements; and (ii) as a result of defendants'
conduct, the Company's reported sales and earnings were materially
inflated. As a direct result of defendants' false statements,
Almost Family's common stock traded at artificially inflated
prices during the Class Period, reaching a high of $43.96 per
shares on April 29, 2010.
On April 26, 2010, The Wall Street Journal published an article
entitled "Home Care Yields Medicare Bounty." The article called
into question whether four home healthcare companies, including
Almost Family, were taking advantage of the Medicare reimbursement
system. More specifically, the article revealed that the home
healthcare companies, such as Almost Family, billed a higher
number of the most profitable home therapy visits for their
Medicare patients, while at the same time billing fewer of the
least profitable therapy visits. Then, on July 1, 2010, before the
market opened, Almost Family announced that the Company had
received a civil subpoena for documents and a notice of an
investigation from the SEC. The subpoena seeks all documents
relating to "the Company's home health care services and
operations, including reimbursements under the Medicare home
health prospective payment system, since January 1, 2000." As a
result of this negative news, Almost Family's common stock fell
$3.88 per share or 11.11%, on July 1, 2010, on high volume.
Plaintiffs seek to recover damages on behalf of all Class members
who purchased or otherwise acquired common stock of Almost Family
during the Class Period. If you purchased or otherwise acquired
Almost Family common stock during the Class Period, and either
lost money on the transaction or still hold the stock, you may
wish to join in the action to serve as lead plaintiff. In order to
do so, you must meet certain requirements set forth in the
applicable law and file appropriate papers no later than
October 4, 2010.
A "lead plaintiff" is a representative party that acts on behalf
of other class members in directing the litigation. In order to be
appointed lead plaintiff, the court must determine that the class
member's claim is typical of the claims of other class members,
and that the class member will adequately represent the class.
Under certain circumstances, one or more class members may
together serve as lead plaintiff. Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain Bernstein Liebhard
LLP, or other counsel of your choice, to serve as your counsel in
this action.
Bernstein Liebhard has pursued hundreds of securities and consumer
cases and recovered almost $3 billion for its clients. It has been
named to The National Law Journal's "Plaintiffs' Hot List" in each
of the last seven years.
You can obtain a copy of the complaint from the clerk of the court
for the United States District Court for the Western District of
Kentucky.
The firm can be reached at:
U. Seth Ottensoser, Esq.
Joseph R. Seidman, Jr., Esq.
BERNSTEIN LIEBHARD LLP
10 East 40th Street
New York, NY 10016
Telephone: (877) 779-1414
(212) 779-1414
BOSCH THERMOTECHNOLOGY: Recalls 1,500 Boiler Survey Kits
--------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Bosch Thermotechnology of Londonderry, N.H., announced a voluntary
recall of about 1,500 service kit for gas-fired boiler. Consumers
should stop using recalled products immediately unless otherwise
instructed.
The use of a silver-colored gas pipe adapter included in the
service kit can lead to gas leakage, posing a fire or explosion
hazard to consumers.
No injuries or incidents have been reported.
This recall involves a service kit that was distributed for free
to some contractors and distributors that contained a silver-
colored adapter. The kit, which has the number 8718600187 on the
side of the box, was used as part of a program to evaluate the
effects of heating water quality on components of Buderus gas-
fired condensing gas boilers with model numbers GB142/24,
GB142/30, GB142/45, and GB142/60. The model number is located on
a label on the bottom left side of the boiler. Pictures of the
recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10751.html/
The recalled products were manufactured in Netherlands and
distributed through plumbing and heating contractors and equipment
distributors nationwide from February 2010 through May 2010 for
free.
Consumers with boilers listed above that were serviced after
February 1, 2010, should immediately contact the service provider
to determine if the kit was installed in their boilers. If it
was, consumers should arrange with the service provider for an
immediate free inspection and repair. Contractors and
distributors who received kits from Bosch are directly contacting
consumers who have boilers with the recalled kits installed. For
more information, call Bosch Thermotechnology at (800) 283-3787
between 9:00 a.m. and 5:00 p.m., Eastern Time, Monday through
Friday or visit the firm's Web site at http://www.buderus.net/
BP PLC: Sued for Releasing Toxic Chemicals at Texas Refinery
------------------------------------------------------------
Cameron Langford at Courthouse News Service reports that BP
allowed 17,000 pounds of benzene, "one of the most deadly and
nastiest carcinogens," to spew from a defective operating unit at
its Texas City refinery to avoid losing profits and to duck the
bad publicity of a shut down, workers and residents claim in a
federal class action. They want BP to pay more than $10 billion
in punitive damages for allegedly putting "profits over the safety
of people."
From April 6 to May 16, BP released 538,000 of chemicals and
compounds, including the 17,000 pounds of benzene, when a hydrogen
compressor in an operating unit at its plant went offline,
according to the complaint.
"The hydrogen compressor is responsible for trapping noxious
chemicals, and without it working BP opted to send the gases to a
flare," plant workers and nearby residents claim. "BP did this,
even though it knew the flaring process would be, at best,
incomplete and allow some chemicals to escape into the
atmosphere."
The operating unit produces 65,000 barrels of oil a day, and "each
barrel during this time would have resulted in $5 to $10 in profit
for BP," according to the complaint.
"With this much money at stake, shutting down the [operating
unit], even for just a brief 24 hour period, would have garnered
attention from the financial press and investors," the class says.
BP did not inform Texas City officials of the "scale of the
release" until after it was over, the lawsuit states.
BP's Texas City refinery has a "long and tragic history" of
environmental and safety violations that have resulted in 20
deaths since 2005, the class says.
"Since BP's acquisition of the refinery, there have been hundreds,
if not thousands, of leaks, spills and releases at the refinery,"
workers and residents claim.
BP came under increased federal and state scrutiny after a 2005
explosion and fire at the plant, and company paid more than
$100 million in fines, the lawsuit states.
In a 2009 settlement with the U.S. Environmental Protection
Agency, BP paid $12 million in fines and agreed to "improve
management controls to minimize Benzene wastes, plus implement
major upgrades to the facility and equipment" the class claims.
"As the incident in this case proves, BP failed to live up to its
agreement," the class members claim.
The exact number of the class has yet to be determined, but the
lawsuit says it includes "literally thousands of persons worked at
the refinery and/or resided in Texas City, Texas between April 6,
2010 and May 16, 2010."
The class seeks damages for BP's negligence, assault and battery,
and private nuisance. In addition to the $10 billion in punitive
damages, the class wants $5 million in actual and compensatory
damages.
A copy of the Complaint in Fontenot, et al. v. BP Products North
America, Inc., Case No. 10-cv-00295 (S.D. Tex.), is available at:
http://www.courthousenews.com/2010/08/05/BP.pdf
The Plaintiffs are represented by:
Anthony G. Buzbee, Esq.
THE BUZBEE LAW FIRM
JPMorgan Chase Tower
600 Travis, Suite 7300
Houston, TX 77002
Telephone: 713-223-5393
E-mail: tbuzbee@txattorneys.com
CANADIAN SOLAR: Siskinds LLP Files Securities Class Action
----------------------------------------------------------
The law firm of Siskinds LLP disclosed Tuesday that it has filed a
proposed securities class action against Canadian Solar Inc., as
well as Canadian Solar's Chief Executive Officer and Chairman,
Shawn Xiaohua Qu, and its Chief Financial Officer, Arthur Chien.
The action has been filed in the Ontario Superior Court of
Justice.
The proposed class action is brought on behalf of all persons,
wherever they may reside, who purchased shares of Canadian Solar
over a stock exchange during the period May 26, 2009 to and
including June 1, 2010.
The action relates to Canadian Solar's reported financial results
for 2009. It is alleged in the action that, in 2009, Canadian
Solar prematurely recognized revenue in violation of generally
accepted accounting principles. The plaintiff seeks class damages
of $100 million.
Siskinds LLP , one of Canada's leading class action law firms, has
successfully resolved more securities class actions than any other
law firm in Canada, and is counsel to the plaintiffs in a majority
of the class actions filed under Ontario's new investor protection
legislation -- Part XXIII.1 of the Ontario Securities Act.
Persons who purchased Canadian Solar shares during the Class
Period may obtain further information by calling Nicole Young of
Siskinds LLP at (800) 461-6166, ext. 2380, or by emailing Mrs.
Young at nicole.young@siskinds.com
CAREER EDUCATION: Accused of Making Unsolicited Text Messages
-------------------------------------------------------------
Sheila Fahey, on behalf of herself and others similarly situated
v. Career Education Corporation, Case No. 2010-CH-33686 (Ill. Cir.
Ct., Cook Cty. August 4, 2010)), seeks to stop CEC's practice of
sending unsolicited text messages to potential customers of its
postsecondary education services, which is prohibited under the
Telephone Consumer Protection Act. Ms. Fahey says that because of
these unauthorized text messages, she and the other class members
were harmed because they frequently have to pay their cell phone
providers for the receipt of these unwanted messages.
CEC is an operation of for-profit secondary and vocational schools
including the International Academy of Design & Technology. Ms.
Fahey is a citizen of the State of Illinois.
The Plaintiff demands a trial by jury and is represented by:
Michael J. McMorrow, Esq.
Rafey S. Balabanian, Esq.
EDELSON MCGUIRE, LLC
350 North LaSalle Street
Chicago, IL 60654
Telephone: (312) 589-6470
CINTAS CORP: Court Approval of Settlement in Veliz Remains Pending
------------------------------------------------------------------
The approval of the U.S. District Court, Northern District of
California, Oakland Division, on the proposed settlement of class
action claims in Paul Veliz, et al. v. Cintas Corp., et al.,
Case No. 03-cv-1180, remains pending, according to the company's
July 30, 2010, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended May 31, 2010.
Cintas is a defendant in a purported class action lawsuit filed on
March 19, 2003, alleging that Cintas violated certain federal and
state wage and hour laws applicable to its service sales
representatives, whom Cintas considers exempt employees, and
asserting additional related ERISA claims.
On April 5, 2004 and Feb. 14, 2006, the Court stayed the claims of
all plaintiffs with valid arbitration agreements pending
arbitration of those claims. Claims made in the Veliz action
therefore are pending before the U.S. District Court, Northern
District of California and Judge Bruce Meyerson (Ret.), an
Arbitrator selected by the parties.
On Aug. 5, 2009, the parties in the Veliz action reached a
settlement in principle.
When the settlement is fully documented and approved by the Court,
the settlement will resolve all claims now pending or that could
have been brought relating to the subject matter of the case
before the Court and the Arbitrator.
Cintas expects that the approval process will take several months.
The principal terms of the settlement provide for an aggregate
cash payment of approximately $23,950,000 which is accrued in
current accrued liabilities at Feb. 28, 2010. The pre-tax impact,
net of insurance proceeds, was $19,477.000.
The principal terms of the settlement provide for an aggregate
cash payment of approximately $23,950,000 which is accrued in
current accrued liabilities at May 31, 2010. The pre-tax impact,
net of insurance proceeds, was $19,477,000.
Cintas Corp. -- http://www.cintas.com/-- provides specialized
products and services to businesses of all types primarily
throughout the United States and Canada. The company is a
provider of corporate identity uniforms through rental and sales
programs, as well as a significant provider of related business
services, including entrance mats, restroom products and
services, first aid, safety and fire protection products and
services, document management services and branded promotional
products. Cintas classifies its businesses into four operating
segments: Rental Uniforms and Ancillary Products; Uniform Direct
Sales; First Aid, Safety and Fire Protection Services, and
Document Management Services. The company provides its products
and services to approximately 800,000 businesses of all types,
from small service and manufacturing companies to corporations.
CITIBANK NA: Faces Class Action Over Labor Laws Violations
----------------------------------------------------------
Pomerantz, Haudek, Grossman & Gross LLP has filed an action in the
District Court for the Southern District of New York against
Citibank, N.A., alleging violations of federal and New York state
labor laws concerning the payment of overtime compensation.
The complaint alleges that Citibank failed to pay overtime
compensation to its Personal Bankers that worked in excess of
forty hours per work week. The federal claims, alleged under the
Fair Labor Standards Act, are brought nationwide on behalf of a
Collective Class of all persons currently and formerly employed
since August 6, 2007 by Citibank in the position of Personal
Banker, at Citibank branches in the United States -- Nationwide
Class -- to recover unpaid overtime pursuant to the FLSA. The New
York Class claims are brought on behalf of all current and former
Personal Bankers who were employed by Citibank at any time since
August 6, 2004, at Citibank branches in the State of New York to
recover unpaid overtime pursuant to NY State labor laws.
Anyone who wishes to participate in the Collective Class must file
a consent in writing with the court pursuant to 29 U.S.C. section
216(b). If you were employed by Citibank in the above capacity in
the state of New York, or in any other State, and are interested
in obtaining further information about the action, including a
copy of the complaint, please contact Murielle Steven Walsh at
MJSteven@Pomlaw.com or 888.476.6529 -- or 888.4-POMLAW -- toll
free. Those who inquire by e-mail are encouraged to include their
mailing address and telephone number.
The Pomerantz Firm, founded in 1936, with offices in New York,
Chicago, Washington, D.C., Columbus, Ohio and Burlingame,
California, is acknowledged as one of the premier firms in the
areas of class action litigation, covering various areas of the
law. The Firm has recovered numerous multimillion-dollar damages
awards on behalf of class members.
DOW CHEMICAL: 5th Circuit Holds Orders Remanding Consolidated Suit
------------------------------------------------------------------
The United States Court of Appeals for the Fifth Circuit affirmed
several orders of the district court remanding seven class action
cases consolidated to the state district court in St. Charles
Parish, Louisiana, in the case In re Berniard v. Dow Chemical
Company, Case No. 10-30497 (August 6, 2010).
Two of the cases thus remanded were originally filed in the
district court pursuant to the Class Action Fairness Act, the rest
were initially filed in that state court and were thereafter
removed to the district court by the common defendants, who
asserted federal jurisdiction based on CAFA and, alternatively, on
diversity of citizenship and supplemental jurisdiction.
The orders of the district court appealed held that federal
jurisdiction was lacking under both CAFA and diversity
jurisdiction. The Fifth Circuit does not have jurisdiction to
review the district court's decision to remand for lack of
diversity jurisdiction, but it may review its decision to remand
for lack of CAFA jurisdiction.
CAFA authorizes federal jurisdiction over class actions that
allege (1) the class of plaintiffs would exceed 100 persons, (2)
at least one member of the class is diverse in citizenship from at
least one of the defendants, and (3) the aggregate quantum of
damages suffered by members of the plaintiff class exceeds $5
million (exclusive of interest or costs). The parties do not
contest the presence of the first two requirements, but the
plaintiffs challenged the adequacy of the defendants' showing with
regard to the amount-in-controversy requirement. The district
court agreed with the plaintiffs that the requisite aggregate
quantum of damages was lacking and remanded the case to state
court.
A copy of Fifth Circuit's decision is available at:
http://www.leagle.com/unsecure/page.htm?shortname=infco20100806125
ELI LILLY: Appeal on Certification Ruling Remains Pending
---------------------------------------------------------
Eli Lilly and Company's appeal on the class certification order in
a consolidated lawsuit over Zyprexa remains pending in the U.S.
Second Circuit Court of Appeals, according to the company's July
30, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
In 2005, two lawsuits were filed in the U.S. District Court for
the Eastern District of New York purporting to be nationwide
class actions on behalf of all consumers and third-party payors,
excluding governmental entities, which have made or will make
payments for their members or insured patients being prescribed
Zyprexa.
These actions have been consolidated into a single lawsuit, which
is brought under certain state consumer protection statutes, the
federal civil Racketeer Influenced and Corrupt Organizations Act
statute, and common law theories, seeking a refund of the cost of
Zyprexa, treble damages, punitive damages, and attorneys' fees.
Two additional lawsuits were filed in the Court in 2006 on similar
grounds.
In September 2008, the Hon. Jack B. Weinstein certified a class
consisting of third-party payors, excluding governmental entities
and individual consumers.
The company appealed the certification order, and Judge
Weinstein's order denying the company's motion for summary
judgment, in September 2008.
While the Second Circuit Court of Appeals heard oral arguments on
the appeal in December 2009, no opinions have been rendered.
PETF Claims
In 2007, The Pennsylvania Employees Trust Fund brought claims in
state court in Pennsylvania as insurer of Pennsylvania state
employees, who were prescribed Zyprexa on similar grounds as
described in the New York cases. In general, these lawsuits
allege that the company inadequately tested for and warned about
side effects of Zyprexa and improperly promoted the drug.
In December 2009, the court granted the company's summary judgment
motion, dismissing the case. The Pennsylvania Employees Trust
Fund has agreed to dismiss its appeal.
Eli Lilly and Company -- http://www.lilly.com/-- discovers,
develops, manufactures, and sells products in one business
segment, pharmaceutical products. The company also has an animal
health business segment. It manufactures and distributes its
products through facilities in the United States, Puerto Rico, and
17 other countries. Its products are sold in approximately 128
countries. The company's products include Neuroscience products,
Endocrinology products, Oncology products, Cardiovascular
products, Animal health products, and other pharmaceuticals. In
the United States, Eli Lilly and Company distributes
pharmaceutical products principally through independent wholesale
distributors, with some sales directly to pharmacies.
ELI LILLY: Reaches Agreement to Resolve Canadian Zyprexa Suits
--------------------------------------------------------------
Eli Lilly and Company has reached agreement to resolve all Zyprexa
class-action litigation in Canada, according to the company's July
30, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
In early 2005, the company served with four lawsuits seeking class
action status in Canada on behalf of patients who took Zyprexa.
One of these four lawsuits has been certified for residents of
Quebec, and a second has been certified in Ontario and includes
all Canadian residents except for residents of Quebec and British
Columbia.
The allegations in the Canadian actions are similar to those in
the product liability litigation pending in the U.S.
The company We have reached agreement to resolve all Zyprexa
class-action litigation in Canada.
Eli Lilly and Company -- http://www.lilly.com/-- discovers,
develops, manufactures, and sells products in one business
segment, pharmaceutical products. The company also has an animal
health business segment. It manufactures and distributes its
products through facilities in the United States, Puerto Rico, and
17 other countries. Its products are sold in approximately 128
countries. The company's products include Neuroscience products,
Endocrinology products, Oncology products, Cardiovascular
products, Animal health products, and other pharmaceuticals. In
the United States, Eli Lilly and Company distributes
pharmaceutical products principally through independent wholesale
distributors, with some sales directly to pharmacies.
ELI LILLY: Defends "Fecho" Suit in Washington
---------------------------------------------
Eli Lilly and Company defends a suit captioned Michele Fecho, et
al v. Eli Lilly and Company, et al., pending in the U.S. District
Court in Washington, D.C., according to the company's July 30,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
The suit was filed in Dec. 30, 2009, against Lilly and other
manufacturers seeking to assert product liability claims on
behalf of a putative class of men and women allegedly exposed to
drug-eluting stents who claim to have later developed breast
cancer.
Eli Lilly and Company -- http://www.lilly.com/-- discovers,
develops, manufactures, and sells products in one business
segment, pharmaceutical products. The company also has an animal
health business segment. It manufactures and distributes its
products through facilities in the United States, Puerto Rico, and
17 other countries. Its products are sold in approximately 128
countries. The company's products include Neuroscience products,
Endocrinology products, Oncology products, Cardiovascular
products, Animal health products, and other pharmaceuticals. In
the United States, Eli Lilly and Company distributes
pharmaceutical products principally through independent wholesale
distributors, with some sales directly to pharmacies.
ENBRIDGE ENERGY: Sued Over Talmadge Creek Oil Leak
--------------------------------------------------
Joseph Celentino at Courthouse News Service reports that a broken
pipeline leaked more than 800,000 gallons of oil into the
Kalamazoo River, killing wildlife and creating a toxic stench for
30 miles, Michigan residents claim in a federal class action.
The Enbridge Energy Co.'s 30-inch diameter Lakehead pipeline
carried 8 million gallons of crude oil per day to Sarnia, Ontario,
according to the complaint.
Nearby residents say the pipeline began to leak into Talmadge
Creek, which flows into the Kalamazoo River, on July 25. Drinking
water and air quality have been severely jeopardized, they claim,
and some residents have been forced to leave their homes.
Residents say Enbridge has yet to disclose what caused the spill.
Local news agencies have reported that the Department of
Transportation repeatedly warned Enbridge "to get its act together
with regard to the safety of its Lakehead pipeline system," the
lawsuit states.
The class demands unspecified damages from Enbridge and its
companies for trespass, nuisance, negligence and violations of the
Michigan Natural Resources and Environmental Protection Act.
A copy of the Complaint in Watts, et al. v. Enbridge, Inc., et
al., Case No. 10-cv-00753 (W.D. Mich.) (Neff, J.), is available
at:
http://www.courthousenews.com/2010/08/05/Kalamazoo.pdf
The Plaintiffs are represented by:
David H. Fink, Esq.
E. Powell Miller, Esq.
Marc L. Newman, Esq.
THE MILLER LAW FIRM, P.C.
950 W. University Dr., Suite 300
Rochester, MI 48307
Telephone: 248-841-2200
GLOBAL CLIENT: Accused in Missouri Suit of Fraud
------------------------------------------------
Joe Harris at Courthouse News Service reports that Global Client
Solutions, ONB Bank and Trust, and GHS Solutions charged consumers
outrageous fees for debt-reduction services that they never
provided, according to a class action in St. Louis County Circuit
Court.
Named plaintiff Myra Perkins says she made monthly payments to
GHS, which were then received and processed by Global and ONB for
a fee.
She says she paid them more than $1,600 over five months, only
$90.20 of which was placed into a savings to help settle her
debts.
"The remaining sum of at least $1,546.20 was retained by the
defendants as their fee," she claims.
"Plaintiff is not aware of any effort made on behalf of any of the
three defendants to settle or negotiate any of her debts," the
complaint states. "Additionally, because the defendants allege to
have set aside only $90.20, there is no reasonable likelihood that
they would be able to negotiate any debt settlement with any
creditor."
She says the fees dramatically exceed the amount allowed by
Missouri law, and none of the defendants is registered to work as
a debt adjuster in the state.
The class consists of all Missourians who paid money to the
defendants for debt-reduction services within the last five years.
The class seeks an unspecified amount of damages for fraud and a
ruling barring Global, ONC and GHS from continuing to offer debt-
reduction services in Missouri.
A copy of the Complaint in Perkins v. Global Client Solutions,
LLC, et al., Case No. 10SL-CC03107 (Mo. Cir. Ct., Saint Louis
Cty.), is available at:
http://www.courthousenews.com/2010/08/06/GlobalClient.pdf
The Plaintiff is represented by:
Neil Smith, Esq.
THE SMITH LAW FIRM, LLC
225 S. Meramec Ave., Suite 532
Clayton, MO 63105
Telephone: 314-725-4400
E-mail: neil@neilsmithlaw.com
GRAND BAHAMA: Sued for Making Unauthorized Text Messages
--------------------------------------------------------
Anthony Seaman, individually and on behalf of others similarly
situated v. Grand Bahama Island Promotion Board, Inc. d/b/a Grand
Bahama Island Tourism Board, et al., Case No. 2010-CH-33685 (Ill.
Cir. Ct., Cook Cty. August 4, 2010), brings suit against the
defendants for making unsolicited text message calls to potential
customers of their vacation services, in violation of the
Telephone Consumer Protection Act.
Defends Grand Bahama Island Promotion, a Florida corporation, and
DVI Freeport U.S., LLC, a Delaware limited liability company,
promote travel to The Bahamas. Mr. Seaman is a citizen of the
State of Illinois.
The Plaintiff demands a trial by jury and is represented by:
Michael J. McMorrow, Esq.
Rafey S. Balabanian, Esq.
EDELSON MCGUIRE, LLC
350 North LaSalle Street
Chicago, IL 60654
Telephone: (312) 589-6470
HURON CONSULTING: Court Denies Motion to Dismiss Class Suit
-----------------------------------------------------------
The United States District Court for the Northern District of
Illinois denied a motion to dismiss filed by defendants in the
case In re Hughes v. Huron Consulting Group, Inc., Case No.
09-C-4734 (August 6, 2010).
Jason Hughes, individually and on behalf of all others similarly
situated, brought a class action pursuant to the Private
Securities Litigation Reform Act, in which they assert that
defendants Huron Consulting Group, Inc., Gary E. Holdren, Gary L.
Burge, and Wayne Lipski violated Sections 10(b) and 20(a) of the
Securities Exchange Act, and SEC Rule 10b-5.
District Judge Elaine E. Bucklo concluded that plaintiffs have
adequately pled scienter. "To the extent the particular factual
allegations not expressly addressed here -- the statements of
confidential witnesses, the suspiciously timed stock trades, and
the individual defendants' resignations -- may further contribute
to a 'strong inference' of scienter, these allegations are merely
icing on the cake, and I need not linger on whether they are
sufficient, alone or in combination, to plead scienter. Taking
the complaint as a whole, I am satisfied that plaintiffs have
stated a claim under Section 10(b) and Rule 10b-5."
A copy of the Memorandum Opinion and Order is available at:
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100806a94
INTEL CORP: Plaintiffs Must Seek Review of Special Master's Report
------------------------------------------------------------------
Plaintiffs in a consolidated suit against Intel Corp. pending in
the U.S. District Court for the District of Delaware must request
review of the Special Master's Report and Recommendation denying
the motion to certify a class. Otherwise, the recommendation will
become the Court's ruling, according to the company's July 30,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 26, 2010.
At least 82 separate class actions have been filed in the U.S.
District Courts for the Northern District of California, Southern
District of California, District of Idaho, District of Nebraska,
District of New Mexico, District of Maine, and District of
Delaware, as well as in various California, Kansas, and Tennessee
state courts.
These actions generally repeat the allegations made in a now-
settled lawsuit filed against Intel by AMD in June 2005 in U.S.
District Court for the District of Delaware (AMD litigation).
Like that AMD lawsuit, these class action suits allege that Intel
engaged in various actions in violation of the Sherman Act and
other laws, by, among other things, providing discounts and
rebates to the company's manufacturer and distributor customers
conditioned on exclusive or near exclusive dealing that allegedly
unfairly interfered with AMD's ability to sell its
microprocessors, interfering with certain AMD product launches,
and interfering with AMD's participation in certain industry
standards-setting groups.
The class actions allege various consumer injuries, including that
consumers in various states have been injured by paying higher
prices for computers containing our microprocessors.
All of the federal class actions and the Kansas and Tennessee
state court class actions have been consolidated by the
Multidistrict Litigation Panel to the District of Delaware, and
the Court has appointed a Special Master to address issues in the
litigation as assigned by the Court.
In January 2010, the plaintiffs in the Delaware action filed a
motion for sanctions for the company's failure to preserve
evidence. This motion largely copies a motion previously filed by
AMD in the AMD litigation. The putative class in the coordinated
actions also moved for certification of a class of members who
purchased certain personal computers containing products sold by
Intel.
On July 28, 2010, the Special Master issued a Report and
Recommendation denying the motion to certify a class.
Under the Court's rules, the plaintiffs must request review of
this Report and Recommendation by the District Judge or it will
become the Court's ruling.
Intel Corp. -- http://www.intel.com/-- is a world leader in
computing innovation. The company designs and builds the
essential technologies that serve as the foundation for the
world's computing devices.
INTEL CORP: Calif. Court Delays Ruling on Class Certification Bid
-----------------------------------------------------------------
The Superior Court of California in Santa Clara County has agreed
to delay ruling on the plaintiffs' motion for class certification
in a suit against Intel Corp. pending a ruling on a same motion in
the Delaware Federal Court, according to the company's July 30,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 26, 2010.
At least 82 separate class actions have been filed in the U.S.
District Courts for the Northern District of California, Southern
District of California, District of Idaho, District of Nebraska,
District of New Mexico, District of Maine, and District of
Delaware, as well as in various California, Kansas, and Tennessee
state courts.
These actions generally repeat the allegations made in a now-
settled lawsuit filed against Intel by AMD in June 2005 in U.S.
District Court for the District of Delaware (AMD litigation).
Like that AMD lawsuit, these class action suits allege that Intel
engaged in various actions in violation of the Sherman Act and
other laws, by, among other things, providing discounts and
rebates to the company's manufacturer and distributor customers
conditioned on exclusive or near exclusive dealing that allegedly
unfairly interfered with AMD's ability to sell its
microprocessors, interfering with certain AMD product launches,
and interfering with AMD's participation in certain industry
standards-setting groups.
The class actions allege various consumer injuries, including that
consumers in various states have been injured by paying higher
prices for computers containing our microprocessors.
All California class actions have been consolidated to the
Superior Court of California in Santa Clara County. The
plaintiffs in the California actions have moved for class
certification, which the company is in the process of opposing.
At the company's request, the Court in the California actions has
agreed to delay ruling on this motion until after the Delaware
Federal Court rules on the similar motion in the coordinated
actions.
Intel Corp. -- http://www.intel.com/-- is a world leader in
computing innovation. The company designs and builds the
essential technologies that serve as the foundation for the
world's computing devices.
INTUITIVE SURGICAL: Faces Securities Class Action in California
---------------------------------------------------------------
On August 6, 2010, a class action lawsuit was filed in the United
States District Court for the Northern District of California
against Intuitive Surgical, Inc. The complaint alleges violations
of federal securities laws, Sections 10(b) of the Securities
Exchange Act of 1934 and Rule 10b-5, including allegations of
issuing a series of material misrepresentations to the market
which had the effect of artificially inflating the market price.
The class period is from February 1, 2008 through January 7, 2009.
Plaintiff seeks to recover damages on behalf of the Class. If you
are a member of the Class as described above, you may move the
Court no later than Friday, October 8, 2010, to serve as a lead
plaintiff for the Class. However, in order to do so, you must meet
certain legal requirements pursuant to the Private Securities
Litigation Reform Act of 1995.
If you wish to discuss this action, participate in this or any
other lawsuit, or have any questions or concerns regarding this
notice, or preservation of your rights, please contact:
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Email: wbf@federmanlaw.com
J.B. HUNT: Wage Violations Suit Remains Pending in California
-------------------------------------------------------------
J.B. Hunt Transport Services, Inc., remains a defendant in certain
class-action allegations in which the plaintiffs are current and
former California-based drivers who allege claims for unpaid
wages, failure to provide meal and rest periods, and other items.
Further proceedings have been stayed in these matters pending the
California Supreme Court's decision in a case unrelated to the
company's involving similar issues.
No further details were reported in the company's July 30, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
J.B. Hunt Transport Services, Inc. -- http://www.jbhunt.com/-- is
a holding company. The Company provides a range of transportation
services to a group of customers throughout the continental United
States, Canada and Mexico. It has arrangements with the North
American rail carriers to transport freight in containers and
trailers. It also provides customized freight movement, revenue
equipment, labor, systems and delivery services. It also provides
integrated capacity and transportation and logistics services and
solutions by utilizing a network of thousands of third-party
carriers. Its business operations are primarily organized through
four business segments: intermodal (JBI), dedicated contract
services (DCS), full-load dry-van (JBT) and integrated capacity
solutions (ICS). It transports, or arranges for the transportation
of a range of freight, including general merchandise, specialty
consumer items, food and beverages, building materials, soaps and
cosmetics, and chemicals.
M/I HOMES: Settles Fla. Complaint by Former Employee
----------------------------------------------------
M/I Homes Inc. has reached a full and final settlement of the
claims raised in a complaint filed by a former employee, according
to the company's July 30, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2010.
On March 14, 2008, a former employee filed a complaint in the U.S.
District Court, Middle District of Florida, on behalf of himself
and those similarly situated, against M/I Homes, Inc., alleging
that he and other construction superintendents were misclassified
as exempt and not paid overtime compensation under the Fair Labor
Standards Act and seeking equitable relief, damages and attorneys'
fees.
Six other individuals have filed consent forms to join the action.
The company filed an answer on or about Aug. 21, 2008.
In June 2010, the parties reached a full and final settlement of
the claims raised in the complaint.
Based in Columbus, Ohio, M/I Homes Inc. -- http://www.mihomes.com/
-- is a builder of single-family homes. The company's homes are
marketed and sold under the trade names M/I Homes and Showcase
Homes. The company has homebuilding operations in Columbus and
Cincinnati, Ohio; Chicago, Illinois; Indianapolis, Indiana; Tampa
and Orlando, Florida; Charlotte and Raleigh, North Carolina; and
the Virginia and Maryland suburbs of Washington, D.C.
M/I HOMES: Remains a Defendant in Suit Over Chinese Drywall
-----------------------------------------------------------
M/I Homes Inc., continues to remains a defendant in a suit over
Chinese manufactured drywall.
On March 5, 2009, a resident of Florida and an owner of one of the
company's homes filed a complaint in U.S. District Court for the
Southern District of Ohio, on behalf of himself and other
similarly situated owners and residents of homes in the United
States or alternatively in Florida, against the company and
certain other identified and unidentified parties -- Initial
Action.
The plaintiff alleges that the company built his home with
defective drywall, manufactured and supplied by certain of the
defendants, that contains sulfur or other organic compounds
capable of harming the health of individuals and damaging metals.
The plaintiff alleges physical and economic damages and seeks
legal and equitable relief, medical monitoring and attorney's
fees.
The company filed a responsive pleading on or about April 30,
2009.
This case has been consolidated with other similar actions not
involving the company and transferred to the Eastern District of
Louisiana pursuant to an order from the United States Judicial
Panel on Multidistrict Litigation for coordinated pre-trial
proceedings ("In Re: Chinese Manufactured Drywall Product
Liability Litigation").
In connection with the administration of the In Re: Chinese
Manufactured Drywall Product Liability Litigation, the same
homeowner and five other homeowners are named as plaintiffs in an
omnibus class action complaint filed in December 2009 against a
certain identified manufacturer of drywall and others (including
the company) and one other homeowner is named as a plaintiff in
another omnibus class action complaint filed in March 2010 against
various unidentified manufacturers of drywall and others,
including the company.
As they relate to the company, the Initial Action and the MDL
Omnibus Actions address substantially the same claims and seek
substantially the same relief.
No further updates were reported in the company's July 30, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
Based in Columbus, Ohio, M/I Homes Inc. -- http://www.mihomes.com/
-- is a builder of single-family homes. The company's homes are
marketed and sold under the trade names M/I Homes and Showcase
Homes. The company has homebuilding operations in Columbus and
Cincinnati, Ohio; Chicago, Illinois; Indianapolis, Indiana; Tampa
and Orlando, Florida; Charlotte and Raleigh, North Carolina; and
the Virginia and Maryland suburbs of Washington, D.C.
MASSEY ENERGY: Hearing Set This Month on Medical Monitoring Suit
----------------------------------------------------------------
Vicki Smith, writing for The Associated Press, reports a Raleigh
County judge will hold a hearing later this month on a medical
monitoring lawsuit claiming hundreds of children were exposed to
toxic coal dust from a Massey Energy Co. processing plant and silo
next to Marsh Fork Elementary School.
Williamson attorney Kevin Thompson is suing Virginia-based Massey
and three subsidiaries over alleged exposure from the silo that
sits about 235 feet from the school near Sundial.
Judge Harry L. Kirkpatrick III granted class-action status to the
case in December, but it fell into limbo because his ruling went
to an incorrect address and was returned to the courthouse in
Beckley. Mr. Thompson said he only learned of the ruling after
filing a supplemental motion with the court in June, then calling
to follow up.
The lawsuit, filed on behalf of Woodrow and Elva Dillon and their
two children, accuses Massey and subsidiaries Goals Coal Co., AT
Massey Coal Co. and Massey Coal Services Inc. of negligence and
creating a public nuisance.
It demands unspecified punitive damages, as well as a court-
administered medical monitoring program.
Massey has not yet filed a response with the court, and a company
spokesman did not immediately comment.
Goals Coal has operated the silo since November 2003, and the
plaintiffs argue more than 300 students and faculty could have
been affected by dust that settled both inside and outside the
school.
The judge wrote that although he "remains somewhat skeptical" that
many people would participate in the lawsuit, "the court is
willing to accept the representation and see what develops."
However, Judge Kirkpatrick said he could decertify the class if it
turns out to be significantly smaller than claimed.
The lawsuit was originally filed by different attorneys in 2005,
and the first attempt at class certification was denied in 2007.
The case argues long-term exposure puts the class members at
greater risk of developing health problems.
Court filings show the plaintiffs plan to offer expert opinion
from Maryland epidemiologist Shira Kramer, who says coal dust
contains substances that have been associated with cancer,
respiratory disease, poor lung function, chronic bronchitis, and
renal, cardiovascular and autoimmune diseases.
The 70-year-old elementary school served as a media center during
the Upper Big Branch mine disaster that killed 29 men in April,
and it has been the subject of a fierce public battle for years.
Residents and anti-Massey activists have long complained about the
danger to children and the rest of the Coal River valley from a
dam that sits above the school and holds billions of gallons of
coal slurry.
In June, the state School Building Authority said it would provide
the remaining money needed to replace the school.
Massey and the county school board each have pledged $1.5 million
for the project, and the Los Angeles-based Annenberg Foundation
will donate $2.5 million. Coal River Mountain Watch, an
environmental group, raised $10,400 for the project.
Construction is expected to begin next year.
MICROSOFT CORP: Appeals Certification Ruling by Ontario Court
-------------------------------------------------------------
Microsoft Corporation continues to appeal the ruling of the court
in British Columbia, Ontario, certifying a case as a class action.
The ruling was entered on March 2010.
Microsoft earlier settled private anti-trust suits in 19 other
states and the District of Columbia. In a filing with the U.S.
Securities and Exchange Commission, the company estimates total
costs to resolve all the private anti-trust suits would be between
$1.9 billion and $2.0 billion. According to the company, at June
30, 2010, it has recorded a liability related to these claims of
approximately $651 million, which reflects its estimated exposure
of $1.9 billion less payments made to date of approximately $1.2
billion mostly for vouchers, legal fees, and administrative
expenses.
No further details regarding the British Columbia case was
disclosed in the company's July 30, 2010, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended June 30, 2010.
Microsoft Corporation -- http://www.microsoft.com/-- develops,
manufactures, licenses, and supports a range of software products
and services for different types of computing devices. It has
five business segments: Client, Server and Tools, Online Services
Business, Microsoft Business Division, and Entertainment and
Devices Division. The software products and services include
operating systems for servers, personal computers, and intelligent
devices; server applications for distributed computing
environments; information worker productivity applications;
business solutions applications; computing applications; software
development tools, and video games. The company provide
consulting and product and solution support services, and trains
and certifies computer system integrators and developers. It also
designs and sells hardware, including Xbox 360 video game console,
the Zune digital music and entertainment device, and peripherals.
In December 2009, the company acquired Opalis Software Inc.
MICROSOFT CORP: Two Antitrust Suits in Canada Remain Stayed
-----------------------------------------------------------
Two cases filed against Microsoft Corporation in Canada remain
stayed.
Microsoft earlier settled private anti-trust suits in 19 other
states and the District of Columbia. In a filing with the U.S.
Securities and Exchange Commission, the company estimates total
costs to resolve all the private anti-trust suits would be between
$1.9 billion and $2.0 billion. According to the company, at June
30, 2010, it has recorded a liability related to these claims of
approximately $651 million, which reflects its estimated exposure
of $1.9 billion less payments made to date of approximately $1.2
billion mostly for vouchers, legal fees, and administrative
expenses.
No further details regarding the two Canadian suits were disclosed
in the company's July 30, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended June
30, 2010.
Microsoft Corporation -- http://www.microsoft.com/-- develops,
manufactures, licenses, and supports a range of software products
and services for different types of computing devices. It has
five business segments: Client, Server and Tools, Online Services
Business, Microsoft Business Division, and Entertainment and
Devices Division. The software products and services include
operating systems for servers, personal computers, and intelligent
devices; server applications for distributed computing
environments; information worker productivity applications;
business solutions applications; computing applications; software
development tools, and video games. The company provide
consulting and product and solution support services, and trains
and certifies computer system integrators and developers. It also
designs and sells hardware, including Xbox 360 video game console,
the Zune digital music and entertainment device, and peripherals.
In December 2009, the company acquired Opalis Software Inc.
NORFOLK SOUTHERN: Continues to Defend Suits Over Fuel Surcharges
----------------------------------------------------------------
Norfolk Southern Corp. continues to defend the consolidated
amended complaints filed in several putative class-action suits
against them that were consolidated in the District of Columbia.
In general, the lawsuits allege that the individual railroads
conspired in violation of U.S. antitrust laws.
As of Feb. 14, 2008, 18 antitrust class-action complaints have
been filed against Norfolk Southern and the other Class 1
railroads in various federal district courts regarding fuel
surcharges
On Nov. 6, 2007, these actions were consolidated in the U.S.
District Court for the District of Columbia by the Judicial Panel
on Multi-district Litigation. Consolidated amended class-action
complaints were then filed against Norfolk Southern and three
other railroads on April 15, 2008.
The complaints allege violations of federal antitrust laws and
other laws with regard to the railroads' fuel surcharge programs.
Motions to dismiss the consolidated complaints were filed by the
railroads on May 30, 2008, and discovery has been stayed pending
resolution of these motions.
A lawsuit containing similar allegations against NS and four other
major railroads that was filed on March 25, 2008, in the
U.S. District Court for the District of Minnesota was voluntarily
dismissed by the plaintiff subject to a tolling agreement entered
into in August 2008.
No further updates were reported in the company's July 30, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
Norfolk Southern Corp. -- http://www.nscorp.com/-- controls a
freight railroad, Norfolk Southern Railway Co. Norfolk Southern
Railway Co. is primarily engaged in the rail transportation of raw
materials, intermediate products and finished goods primarily in
the southeast, east and Midwest and, via interchange with rail
carriers, to and from the rest of the U.S. and parts of Canada.
NORTHERN TRUST: Defends Amended ERISA Violations Suit in Ill.
-------------------------------------------------------------
Northern Trust Corp. continues to face an amended complaint in the
purported class-action lawsuit in Illinois, alleging violations of
the Employee Retirement Income Security Act.
On Oct. 15, 2008, a putative class-action lawsuit was filed in
the U.S. District Court for the Northern District of Illinois
against the Corporation, the Northern Trust Employee Benefit
administrative Committee, the Compensation and Benefits Committee
of the Board of Directors and certain officers and directors,
purportedly on behalf of participants in and beneficiaries of The
Northern Trust Company Thrift-Incentive Plan whose individual
accounts held shares of Corporation common stock at any time from
Oct. 19, 2007 to the present.
On Jan. 16, 2009, an amended complaint was filed in the putative
class action lawsuit. The defendants named in the amended
complaint are the Corporation, the Bank, the Northern Trust
Employee Benefits Administrative Committee and its members, the
Northern Trust Employee Benefits Investment Committee and its
members, and certain other officers, including the present Chief
Executive Officer of the Corporation and the former Chief
Executive Officer of the Corporation, purportedly on behalf of
participants in and beneficiaries of the Plan whose individual
accounts held shares of Corporation common stock at any time from
Oct. 19, 2007 to Jan. 14, 2009.
The complaint purports to allege breaches of fiduciary duty in
violation of ERISA related to the Corporation's stock being
offered as an investment alternative for participants in the Plan
and seeks monetary damages.
No further updates were reported in the company's July 30, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2010.
The suit is Patten v. Northern Trust Corp. et al., Case No. 08-cv-
05912 (N.D. Ill.) (Lefkow, J.).
Representing the plaintiffs is:
Edwin J. Mills, Esq.
STULL, STULL & BRODY
6 East 45th Street, Suite 500
New York, NY 10017
Telephone: (212) 687-7230
Representing the defendants is:
James Vincent Hart, Esq.
MAYER BROWN LLP
71 South Wacker Drive
Chicago, IL 60606
Telephone: (312) 782-0600
PILGRIMS PRIDE: Settlement in Two Suits Get Final Approval
----------------------------------------------------------
The U.S. Bankruptcy Court for the Northern District of Texas, gave
its final approval for the settlement of the actions captioned
Randolph Benbow, et al. v. Gold Kist, and MDL 1832 Pilgrim's Pride
Fair Labor Standards Act Litigation, according to Pilgrim's Pride
Corp.'s July 30, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 27, 2010.
The company is a defendant in two collective actions brought by
employees or former employees for unpaid wages, unpaid overtime
wages, liquidated damages, costs and attorneys' fees, based on
time spent donning and doffing uniforms and protective gear.
The actions are Randolph Benbow et al v. Gold Kist, pending in the
U.S. District Court for the District of South Carolina, and MDL
1832 Pilgrim's Pride Fair Labor Standards Act Litigation, pending
in the U.S. District Court for the Western District of Arkansas.
Following the filing of these actions, a similar suit was filed as
an adversary proceeding in the bankruptcy court, entitled Anna
Atkinson, et al. v. Pilgrim's Pride Corporation, Gold Kist, Inc.,
which was subsequently consolidated into the Benbow Action.
Collectively, these actions include approximately 13,900
employees.
Class proofs of claim were filed on behalf of the plaintiffs in
the MDL Action for at least $45 million and for the plaintiffs in
the Benbow Action for at least $11 million.
The parties recently executed a settlement agreement and mutual
release of the Benbow case and the Atkinson Action in exchange for
a settlement payment of $1.75 million to the plaintiffs.
On Nov. 17, 2009, the company filed a motion with the Bankruptcy
Court for authorization to enter into and approval of the
settlement agreement reached in the Benbow case and the Atkinson
Action. The Bankruptcy Court has given preliminary approval for
the settlement, and permitted the plaintiffs to go forward with
the solicitation of additional class members who would be subject
to the settlement.
The parties have entered into active settlement negotiations with
the plaintiffs in the MDL Action.
The settlement reached in the Benbow case and Atkinson Action
received final approval in May 2010. The settlement reached in
the MDL Action received final approval in April 2010.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people and
operates chicken processing plants and prepared-foods facilities
in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: Motion to Dismiss Securities Suit Still Pending
---------------------------------------------------------------
The motion of the defendants to dismiss the consolidated complaint
styled In re: Pilgrim's Pride Corporation Securities Litigation,
remains pending in the U.S. District Court for the Eastern
District of Texas, Marshall Division, according to Pilgrim's Pride
Corp.'s July 30, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 27, 2010.
Acaldo Action
On Oct. 29, 2008, Ronald Acaldo filed suit in the U.S. District
Court for the Eastern District of Texas, Marshall Division,
against the company and individual defendants Lonnie "Bo" Pilgrim,
Lonnie Ken Pilgrim, J. Clinton Rivers, Richard A.
Cogdill and Clifford E. Butler.
The complaint alleged that the company and the individual
defendants violated sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder, by allegedly failing to disclose that:
(a) the company's hedges to protect it from adverse changes
in costs were not working and in fact were harming the
company's results more than helping;
(b) the company's inability to continue to use illegal
workers would adversely affect its margins;
(c) the company's financial results were continuing to
deteriorate rather than improve, such that the
company's capital structure was threatened;
(d) the company was in a much worse position than its
competitors due to its inability to raise prices for
consumers sufficient to offset cost increases, whereas
it competitors were able to raise prices to offset
higher costs affecting the industry; and
(e) the company had not made sufficient changes to its
business to succeed in the more difficult industry
conditions.
Mr. Acaldo further alleged that he purports to represent a class
of all persons or entities who acquired the common stock of the
company from May 5, 2008 through Sept. 24, 2008. The complaint
sought unspecified injunctive relief and an unspecified amount of
damages.
On Nov. 21, 2008, defendants filed a Motion to Dismiss and Brief
in Support Thereof, asserting that plaintiff failed to identify
any misleading statements, failed to adequately plead scienter
against any defendants, failed to adequately plead loss causation,
failed to adequately plead controlling person liability and, as to
the omissions that plaintiff alleged
defendants did not make, defendants alleged that the omissions
were, in fact, disclosed.
Howes Action
On Nov. 13, 2008, Chad Howes filed suit in the U.S. District Court
for the Eastern District of Texas, Marshall Division,
against the company and individual defendants Lonnie "Bo" Pilgrim,
Lonnie Ken Pilgrim, J. Clinton Rivers, Richard A.
Cogdill and Clifford E. Butler.
The allegations in the Howes Complaint are identical to those in
the Acaldo Complaint, as are the class allegations and relief
sought. The defendants were never served with the Howes
Complaint.
Consolidated Action
On May 14, 2009, the Court consolidated the Acaldo and Howes cases
and renamed the style of the case, In re: Pilgrim's Pride
Corporation Securities Litigation.
On May 21, 2009, the Court granted the Pennsylvania Public Fund
Group's Motion for Appointment of Lead Plaintiff. Thereafter, on
June 26, 2009, the lead plaintiff filed a Consolidated (and
amended) Complaint.
The Consolidated Complaint dismissed the company and Clifford E.
Butler as Defendants.
In addition, the Consolidated Complaint added the following
directors as Defendants:
-- Charles L. Black,
-- S. Key Coker,
-- Blake D. Lovette,
-- Vance C. Miller,
-- James G. Vetter, Jr.,
-- Donald L. Wass,
-- Linda Chavez, and
-- Keith W. Hughes.
The Consolidated Complaint alleges four causes of action
violations of Sections 10(b) and 20(a) of the Securities and
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder solely against Lonnie "Bo" Pilgrim, Clint Rivers, and
Rick Cogdill ("Officer Defendants").
Those claims assert that, during the Class Period of May 5, 2008
through Oct. 28, 2008, the Defendants, through various financial
statements, press releases and conference calls, made material
misstatements of fact and/or omitted to disclose material facts by
purportedly failing to completely impair the goodwill associated
with the Gold Kist acquisition.
The Consolidated Complaint also asserts claims under Section 11 of
the Securities Act of 1933 against all Defendants, asserting that,
statements made in a Registration Statement in connection with the
May 14, 2008 secondary offering of the company's common stock were
materially false and misleading for their failure to completely
impair the goodwill associated with the Gold Kist acquisition.
Finally, the Consolidated Complaint asserts a violation of Section
15 of the Securities Act of 1933 against the Officer
Defendants only, claiming that the Officer Defendants were
controlling persons of the company and the other Defendants in
connection with the Section 11 violation.
By the Consolidated Complaint, the lead plaintiff seeks
certification of the Class, undisclosed damages, and costs and
attorneys' fees.
On July 27, 2009, Defendants filed a Motion to Dismiss the
Consolidated Complaint for its failure to adequately plead, as to
the Sections 10(b) and 20(a) claims, scienter and loss causation
and, as to the Sections 11 and 15 claims, for its failure to
adequately plead misrepresentations and omissions.
Defendants requested that the Consolidated Complaint be dismissed
with prejudice.
The Plaintiffs filed an Opposition to the Motion to Dismiss on
Aug. 27, 2009.
Defendants filed a Reply Brief on Sept. 10, 2009, and Plaintiffs
filed a Sur-Reply on Sept. 24, 2009.
The Court has not yet ruled on the Motion to Dismiss.
No discovery has commenced in the consolidated case, and the case
has not been set for trial.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people and
operates chicken processing plants and prepared-foods facilities
in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: Motion to Dismiss Amended Complaint Pending
-----------------------------------------------------------
The motion of the defendants to dismiss an amended consolidated
complaint remains pending, according to Pilgrim's Pride Corp.'s
July 30, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 27, 2010.
Patterson Action
On Dec. 17, 2008, Kenneth Patterson filed suit in the U.S.
District Court for the Eastern District of Texas, Marshall
Division, against Lonnie "Bo" Pilgrim, Lonnie "Ken" Pilgrim,
Clifford E. Butler, J. Clinton Rivers, Richard A. Cogdill, Renee
N. DeBar, Pilgrim's Pride Compensation Committee and other unnamed
defendants.
The complaint, brought pursuant to section 502 of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. Section 1132,
alleges that the individual defendants breached fiduciary duties
to participants and beneficiaries of the Pilgrim's Pride Stock
Investment Plan, as administered through the Pilgrim's Pride
Retirement Savings Plan, and the To-Ricos, Inc. Employee Savings
and Retirement Plan (collectively with the Plan and the RSP, the
"Plans").
The allegations in the complaint are similar to the allegations
made in the case filed by Ronald Acaldo in the same court.
Patterson further alleges that he purports to represent a class of
all persons or entities who were participants in or
beneficiaries of the Plans at any time between May 5, 2008,
through the present and whose accounts held the company's common
stock or units in the company's common stock.
The complaint seeks actual damages in the amount of any losses the
Plans suffered, to be allocated among the participants'
individual accounts as benefits due in proportion to the accounts'
diminution in value, attorneys' fees, an order for
equitable restitution and the imposition of constructive trust,
and a declaration that each of the defendants have breached their
fiduciary duties to the Plans' participants.
Although the company is not a named defendant in this action, its
bylaws require the company to indemnify its current and former
directors and officers from any liabilities and expenses incurred
by them in connection with actions they took in good faith while
serving as an officer or director.
The likelihood of an unfavorable outcome or the amount or range of
any possible loss to the company cannot be determined at this
time.
On Jan. 23, 2009, Patterson filed a motion to consolidate the
subsequently filed, similar to the case filed by Denise M. Smalls
case, into this action. The defendants filed a dispositive motion
seeking to dismiss the Patterson complaint on April 16, 2009.
Mr. Patterson filed a response brief in opposition to the motion
on May 15, 2009, and the defendants filed a reply in support of
their motion on June 1, 2009.
Smalls Action
On Jan. 2, 2009, Denise M. Smalls filed suit in the U.S. District
Court for the Eastern District of Texas, Marshall Division,
against Lonnie "Bo" Pilgrim, Lonnie Ken Pilgrim, Clifford E.
Butler, J. Clinton Rivers, Richard A. Cogdill, Renee N. DeBar,
Pilgrim's Pride Compensation Committee and other unnamed
defendants.
The complaint and the allegations are similar to those filed in
the Patterson case.
Smalls alleges that she purports to represent a class of all
persons or entities who were participants in or beneficiaries of
the Plans at any time between May 5, 2008, through the present and
whose accounts held the company's common stock or units in the
company's common stock.
The complaint seeks actual damages in the amount of any losses the
Plans suffered, to be allocated among the participants'
individual accounts as benefits due in proportion to the accounts'
diminution in value, attorneys' fees; an order for
equitable restitution and the imposition of constructive trust;
and a declaration that each of the defendants have breached their
fiduciary duties to the Plans' participants.
Although the company is not a named defendant in the action, its
bylaws require it to indemnify its current and former directors
and officers from any liabilities and expenses incurred by them in
connection with actions they took in good faith while serving as
an officer or director. The likelihood of an unfavorable outcome
or the amount or range of any possible loss to the company cannot
be determined at this time.
On July 9, 2009, the defendants filed a dispositive motion seeking
to dismiss the complaint.
Consolidated Action
The Court did not rule on either motion to dismiss. Instead, on
July 20, 2009, the Court entered an order consolidating the Smalls
action and the Patterson action and set the consolidated action
for a scheduling conference on July 30, 2009.
On Aug. 12, 2009, following the Scheduling Conference, the Court
ordered that the case will proceed under the caption In re
Pilgrim's Pride Stock Investment Plan ERISA Litigation, No. 2:08-
cv-472-TJW.
Plaintiffs were granted leave to file an Amended (consolidated)
Complaint by or on Sept. 25, 2009.
On Sept. 28, 2009, the Court ordered that deadlines in the
consolidated action be adjourned until Jan. 15, 2010 to allow the
parties to pursue mediation.
The parties mediated on Nov. 20, 2009, but were unable to resolve
this matter at the mediation.
Patterson and Smalls filed a consolidated amended complaint on
March 2, 2010.
The amended complaint names as defendants the Pilgrim's Pride
Board of Directors, Lonnie "Bo" Pilgrim, Lonnie Ken Pilgrim,
Charles L. Black, Linda Chavez, S. Key Coker, Keith W. Hughes,
Blake D. Lovette, Vance C. Miller, James G. Vetter, Jr., Donald L.
Wass, J. Clinton Rivers, Richard A. Cogdill, the Pilgrim's Pride
Pension Committee, Robert A. Wright, Jane Brookshire, Renee N.
DeBar, the Pilgrim's Pride Administrative Committee, Gerry
Evenwel, Stacey Evans, Evelyn Boyden, and "John Does 1-10." The
amended complaint purports to assert claims on behalf of persons
who were participants in or beneficiaries of the RSP or the To-
Ricos Plan at any time between Jan. 29, 2008 through Dec. 1, 2008,
and whose accounts included investments in the Company's common
stock.
Like the original Patterson and Smalls complaints, the allegations
in the amended complaint are similar to those made in the Acaldo
securities case. The amended complaint alleges that the
defendants breached ERISA fiduciary duties to participants and
beneficiaries of the RSP and To-Ricos Plan by permitting both
Plans to continue investing in the company's common stock during
the alleged class period. The amended complaint also alleges that
certain defendants were "appointing" fiduciaries who failed to
monitor the performance of the defendant-fiduciaries they
appointed.
Further, the amended complaint alleges that all defendants are
liable as co-fiduciaries for one another's alleged breaches.
Plaintiffs seek actual damages in the amount of any losses the RSP
and To-Ricos Plan suffered, to be allocated among the
participants' individual accounts as benefits due in proportion to
the accounts' alleged diminution in value, costs and attorneys'
fees, an order for equitable restitution and the imposition of
constructive trust, and a declaration that each of the defendants
have breached their ERISA fiduciary duties to the RSP and To-Ricos
Plan's participants.
The defendants filed a motion to dismiss the amended complaint on
May 2, 2010.
On July 2, 2010, the plaintiffs filed their response to the motion
to dismiss.
The defendants' reply in support of the motion was due on Aug. 2,
2010.
No discovery is expected to commence until after a ruling on these
pleadings is delivered.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people and
operates chicken processing plants and prepared-foods facilities
in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: RSP's Motion to Dismiss Amended Suit Pending
------------------------------------------------------------
The motion of the defendants, which includes the Pilgrim's Pride
Retirement Savings Plan, to dismiss an amended class action
complaint remains pending, according to Pilgrim's Pride Corp.'s
July 30, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 27, 2010.
On Oct. 9, 2009, David Simmons, Carla Simmons, Patty L.
Funkhouser, and Dickie L. Funkhouser filed a putative class
action, styled Simmons et al. v. Pilgrim, et al., Action No.
09-cv-121, against Lonnie A. Pilgrim, Lonnie Ken Pilgrim, Clifford
Butler, O.B. Goolsby, Richard A. Cogdill, S. Key Coker, Blake D.
Lovette, Vance C. Miller, James G. Vetter, Donald L. Wass, Charles
L. Black, Linda Chavez, J. Clinton Rivers, Keith W. Hughes, Don
Jackson, the Administrative Committee of the Pilgrim's Pride
Retirement Savings Plan, Renee DeBar, Jane Brookshire, Gerry
Evenwel, the Prudential Retirement Insurance and Annuity Company,
and other unnamed defendants in the U.S. District Court for the
Northern District of West Virginia, alleging that the fiduciaries
breached their duties to the participants and beneficiaries by,
among other things, amending the Pilgrim's Pride Retirement
Savings Plan ("RSP"), allowing imprudent investments in the
company's common stock, failing to collect the company's
delinquent employer contributions and failing to file unsecured
and priority claims on behalf of the RSP or otherwise protect the
rights of RSP participants in the Bankruptcy Court.
Before the defendants were required to respond to the complaint,
an amended complaint was filed on Dec. 14, 2009, which, among
other things, named additional defendants and amended certain
allegations. More specifically, Dickie L. Funkhouser is no longer
a named plaintiff. Gerry Evenwel and Prudential Retirement
Insurance and Annuity Company are no longer named defendants.
Plaintiffs have added the RSP as a named defendant, as well as
Prudential Bank & Trust, FSB, Prudential Financial, and Prudential
Insurance of America.
Plaintiffs have withdrawn their allegations relating to imprudent
investments in the common stock of the company.
Plaintiffs allege that the defendants breached fiduciary duties by
having adhered to invalid RSP amendments, failed to enforce the
valid terms of the RSP, failed to pursue the RSP's right to
delinquent employer contributions, failed to file a proof of claim
relating to the delinquent contributions in the bankruptcy
proceedings, and by their actions in relation to the vote on the
confirmation of the company's Plan of Reorganization. The company
says it anticipates that plaintiffs will seek certification of a
class of persons or entities who were participants or
beneficiaries in the RSP from Oct. 3, 2002 to the present
(excluding individually named defendants and their immediate
family members), and will seek a determination that the defendants
breached their fiduciary and co-fiduciary duties to the RSP and
the participants and beneficiaries, a fiduciary accounting,
restoration to the RSP and the participants and beneficiaries of
the losses sustained by the RSP and the participants and
beneficiaries, imposition of a constructive trust, prejudgment
interest, attorneys' fees, costs, and expenses, and further legal,
equitable or remedial relief.
On Jan. 14, 2010, the U.S. Bankruptcy Court for the Northern
District of Texas entered an Order addressing, in part, release
provisions and injunctive clauses contained in the company's Plan
of Reorganization.
On Jan. 25, 2010, the Simmons plaintiffs filed a motion for
determination that non-debtor ERISA fiduciaries, certain of whom
are defendants in the Simmons case, are not "Protected Persons"
pursuant to the Order. The parties have stipulated to extend the
deadline for the filing of a responsive pleading to the amended
complaint until 14 days after the Bankruptcy Court's ruling (oral
or written) on the plaintiffs' motion for determination.
As of July 30, 2010, the Bankruptcy Court has not ruled on the
plaintiffs' motion.
The defendants filed a motion to dismiss all claims on May 2,
2010. On June 22, 2010, the plaintiffs filed their response to
the motion to dismiss. The defendants filed a reply in support of
the motion on July 16, 2010.
No discovery is expected to commence until after a ruling on the
pleadings is delivered.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people and
operates chicken processing plants and prepared-foods facilities
in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
SKILLED HEALTHCARE: Hearing on Juror Misconduct Pushed to Friday
----------------------------------------------------------------
The Times-Standard reports that a hearing on the latest motion in
the class-action lawsuit involving Skilled Healthcare is being
pushed back to Friday, the court ruled Monday morning.
Attorneys agreed to address the issue of juror misconduct, along
with a possible injunction sought by Humboldt County District
Attorney Paul Gallegos, on Friday. There is no word yet if
parties in the case have reached a settlement.
Matt Drange, writing for The Times-Standard, reports defense
attorneys filed a motion for a mistrial alleging juror misconduct.
The motion calls for a retrial, and will likely put off any
settlement talks until the court makes a decision to accept or
deny the request. The motion stems around an allegation that a
member of the jury lied on court documents about her previous
employment, and tried to hide the fact that she worked for the
Humboldt County Coroner's Office, something that former Coroner
Frank Jager confirmed last week.
The juror worked as a forensic consultant and autopsy technician,
and is alleged to have done work as a forensic consultant on the
body of a person who died at Granada Healthcare and
Rehabilitation, one of 22 California facilities implicated in the
lawsuit. The motion further asserts that the juror knew a member
of the class, who complained to her about poor treatment at the
Granada nursing home.
The conclusion of the motion reads, in part:
"Given the shockingly high verdict, it comes as no surprise that
the jury process went completely awry, depriving defendants of
their constitutional right to a trial before an impartial jury.
The flawed verdict must be set aside and a new trial ordered."
The news has left the financial world in limbo, with stock
analysts pondering the future of one of the largest nursing home
chains in the country.
Most in the investing world are predicting one of three scenarios,
the first being a settlement in which both sides agree to an
amount somewhere in the range of $40 to $90 million -- an
estimated figure of how much the company can afford to pay without
declaring bankruptcy.
A second possible outcome, and one that most feel is not as likely
given that the parties entered mediation in the first place, is a
final judgment that upholds the jury verdict of $677 million and,
in all likelihood, would force the company to declare bankruptcy
under Title 11 of the United States Bankruptcy code.
The latter would not only put the company out of business, but
would also leave the future of the many nursing homes it owns in
question. Skilled Healthcare operates 78 assisted living
facilities around the country, and it remains to be seen if a
state agency would step in to run the nursing homes in the event
the company goes under.
Arthur Henderson is a stock analyst with Jeffries, an independent
investment firm that follows the health care industry. Mr.
Henderson said the parties would likely come back and ask the
court for more time to continue settlement talks.
"If they (defense attorneys) can't arrive at a resolution, the
best thing for them would be to ask for an extension to keep the
dialogue going," said Mr. Henderson, who added that Skilled
Healthcare is already in a precarious position with the punitive
damages phase of the case still pending. "They already have one
foot in the grave."
T-MOBILE USA: Sued for Deceptively Advertising Data Plans
---------------------------------------------------------
Maria Dinzeo at Courthouse News Service reports that T-Mobile
deceptively markets its myTouch 3G and Nexus One mobile phone data
plans as unlimited, when the company actually caps data at 10 or 5
gigabytes before cutting off access to the 3G network and
drastically reducing Internet speeds.
Lead plaintiff Trent Alvarez says he bought three T-Mobile smart
phones last year that required him to agree to a two-year
contract.
"Nowhere on this contract does T-Mobile disclose its invisible
data cap," he claims in Yolo County Superior Court. He says the
company presented the plan as "unlimited."
T-Mobile's sales representatives also allegedly failed to inform
Alvarez about the data limit.
"In fact, the sale representatives expressly represented to
[Alvarez] that the data plan [he] was to receive was 'unlimited,'"
he says.
Mr. Alvarez says he discovered the limit in May 2010, when T-
Mobile sent him a text message stating, "Your data usage in this
billing cycle has exceeded 10GB; Data throughput for the remainder
of the cycle may be reduced to 50kbps or less."
The reduction has rendered his phone unable to perform the
functions promised in T-Mobile's ads, including sending emails,
downloading music and videos, and uploading photos and
applications, all at blazing fast speeds.
Now Mr. Alvarez says he is locked into a two-year contract without
being able to experience the unlimited data services T-Mobile
promised.
The class demands an injunction preventing T-Mobile from
continuing to deceptively advertise its data plans, as well as
restitution for false advertising and disgorgement of all profits
T-Mobile made from selling the "unlimited" plans.
A copy of the Complaint in Alvarez v. T-Mobile USA, Inc., et al.,
Case No. 10-cv-1895 (Calif. Super. Ct., Yolo Cty.), is available
at:
http://www.courthousenews.com/2010/08/06/T-Mobile.pdf
The Plaintiff is represented by:
Jenelle Welling, Esq.
Nicole D. Reynolds, Esq.
GREEN WELLING, P.C.
595 Market St., Suite 2750
San Francisco, CA 94105
Telephone: 415-477-6700
- and -
Tracey Buck-Walsh, Esq.
LAW OFFICES OF TRACEY BUCK-WALSH
6 Reyes Court
Sacramento, CA 95831
Telephone: 916-392-8990
TEXAS: Plano Employees File Class Suit Over Nonpayment of Overtime
------------------------------------------------------------------
Michelle Massey, writing for The Southeast Texas Record, reports
that employees of the city of Plano have filed a class action to
obtain unpaid overtime they claim to have earned for monitoring
the radio during lunch breaks.
Individually and on behalf of others similar situated, Billy
Horton, Robert Morris, Robert Prunty, Alan Spurgin, David
Ratcliff, and Sam Bigham filed suit against the City of Plano on
July 27 in the Eastern District of Texas, Sherman Division.
The city employees state that they were not paid for breaks and
on-call time during which they were required to monitor their
radio. The employees argue that the time is compensable because
they had to continuously listen for relevant messages.
They state that they had to monitor their radios over their lunch
break and therefore, they were not relieved from work and should
be paid for their time.
According to the complaint, Plano began compensating the employees
for lunchtime hours around the end of 2009.
The employees are also required to work on call during assigned
times. During their call time, they were required to have a thirty
minute response time, refrain from alcohol, and constantly monitor
their radio for relevant assignments and communications. Due to
the restrictions, the employees state they were not relieved from
work and therefore on call time is compensable time.
Causes of action filed against the city include declaratory
judgment, breach of contract, quantum meruit, promissory
estoppels, common law debt and the Texas Payday Act.
Class members will include city employees within three years of
the lawsuit, who were paid hourly and were not paid for breaks or
on call time where they were required to monitor their radio.
Plano is accused of violating the Federal Fair Labor Standards Act
and showing a "reckless disregard for the fact that its failure to
pay workers overtime compensation and minimum wages."
The employees are asking for an award of unpaid wages, liquated
damages, attorney fees, court costs and interest.
The plaintiffs are also seeking injunctive relief stopping future
violations, an order preventing retaliation and requiring
monitoring, training and notice to all employees.
Dallas attorneys Robert J. Wiley and Lindsey A. Watson are
representing the proposed class. Jury trail requested.
U.S. District Judge Richard A. Schell is assigned to the case.
The plaintiffs' lawyers can be reached at:
Robert J. Wiley, Esq.
Lindsey Anne Watson, Esq.
LAW OFFICE OF ROB WILEY P.C.
1825 Market Center Blvd., Suite 385
Dallas, Texas 75207
Telephone: (800) 313-4020
(214) 528-6500
Facsimile: (214) 528-6511
THIN CARE: Calif. Suit Complains About Detox-Cleanse Program
------------------------------------------------------------
Annie Youderian at Courthouse News Service reports that fitness
guru and "Biggest Loser" trainer Jillian Michaels sells a diet
supplement, the Triple Process Total Body Detox & Cleanse, that
"just might kill you," according to a class action in Superior
Court.
"It contains a potentially lethal combination of toxic ingredients
that can cause ulcers, nausea, vomiting, dehydration, liver
damage, and diarrhea," the class claims, "which is not how
consumers expect to be 'detoxed and cleansed.'"
Lead plaintiff R.D., who sued under her initials "due to her very
real fear of retaliation OR harassment," says Ms. Michaels's
detox-cleanse program contains a host of ingredients that "are
dangerous and potentially lethal," including Irish moss powder, a
red seaweed extract that's used in gel form to dissolve ice on
airplane wings; buckthorn, an aged bark that's so dangerous it's
banned in some over-the-counter drugs; bearberry, known to cause
nausea and vomiting; yarrow, a toxic lawn weed; Chinese rhubarb, a
"harsh laxative and dangerous diuretic" that can cause
irreversible liver damage; and Fenugeek seed, "which interferes
with digestion and causes both diarrhea and gas."
Ms. Michaels and Thin Care International, a Utah-based company
affiliated with the celebrity trainer, advertised the detox
program as a way to "make weight loss simple" without "harsh
chemicals" or laxatives, the lawsuit claims.
R.D. says she bought Michaels' detox and cleanse to feel "lighter
and more energized," as advertised. "As such, it was worthless to
her," the lawsuit states.
Though the class demands more than $10 million, R.D. insists the
case "is not about money."
"She simply wants [Michaels and Thin Care] to stop poisoning the
public and give consumers their money back," the complaint states.
The class also demands an injunction and disgorgement for
violations of California's business and professions code.
The Plaintiffs are represented by:
Scott Ferrell
THE NEWPORT TRIAL GROUP
610 Newport Center Dr., Suite 700
Newport Beach, CA 92660
Telephone: 949-706-6464
VERIZON WIRELESS: Accused of Improperly Charging Texting Fees
-------------------------------------------------------------
Barbara Leonard at Courthouse News Service reports that Verizon
improperly applies texting fees to customers who use mobile
broadband devices, which can't send or receive text messages
because they "have no screens or keys," a class claims in Federal
Court.
Lead plaintiff Brokers' Service Marketing Group claims the
Delaware-based Verizon charged its usual rate of 20 cents per text
for messages that the marketing group's mobile broadband device
allegedly sent or received.
"In order to utilize Verizon's mobile broadband services, a
consumer must purchase and use a device that establishes a
connection between the consumer's computer (usually a laptop or
netbook) and Verizon's wireless network," according to the
complaint.
"These devices have no screens or keys, and therefore no ability
to view text messages, and no ability to formulate and/or send
text messages," the lawsuit adds. "Nevertheless Verizon
improperly charges its mobile broadband users for text messages."
The class claims it pays a monthly fee for using a data plan that
connects to a mobile broadband device, such as USB modems, data
cards, PC cards or MiFi devices.
Mobile broadband devices have unique 10-digit numbers like a cell
phone, but do not have screens or keys, which are necessary to
send or view text messages, according to the lawsuit.
"Plaintiff did not send text messages through its mobile broadband
device, did not invite anyone to send text messages to it at the
number assigned to its mobile broadband device, and was unaware
such devices could send or receive text messages," the class
claims.
Cellco Partnership dba Verizon Wireless has violated the Federal
Communications Act and the New Jersey Consumer Fraud Act and
breached its contract with customers, the class claims.
Its members seek declaratory judgment, an injunction, and
compensatory and punitive damages.
A copy of the Complaint in Brokers' Service Marketing Group, LLC
v. Cellco Partnership, Case No. 10-cv-_____, docketed as Doc. 9115
in Case No. 33-av-00001 on Aug. 4 2010 (D. N.J.), is available at:
http://www.courthousenews.com/2010/08/06/Text%20Messages.pdf
The Plaintiff is represented by:
William J. Pinilis, Esq.
KAPLAN FOX & KILSHEIMER LLP
160 Morris St.
Morristown, NJ 07962
Telephone: 973-656-0222
E-mail: wpinilis@kaplanfox.com
- and -
Jason A. Zweig, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Ave., 14th Floor
New York, NY 10022
Telephone: 212-687-1980
E-mail: jzweig@kaplanfox.com
- and -
Laurence D. King, Esq.
KAPLAN FOX & KILSHEIMER LLP
350 Sansome St., Suite 400
San Francisco, CA 94104
Telephone: 418-772-4700
- and -
Anthony J. Bolognese, Esq.
Joshua H. Grabar, Esq.
Jonathan M. Stemerman, Esq.
BOLOGNESE & ASSOCIATES, LLC
Two Penn Center
1500 John F. Kennedy Blvd., Suite 320
Philadelphia, PA 19102
E-mail: abolognese@bolognese-law.com
jgrabar@bolognese-law.com
jstememerman@bolognese-law.com
- and -
Ross Buntrock, Esq.
David Carter, Esq.
ARENT FOX LLP
1050 Connecticut Ave., NW
Washington, DC 20036-5339
Telephone: 202-775-5734
E-mail: buntrock.ross@arentfox.com
carter.david@arentfox.com
- and -
Peter J. Bezek, Esq.
Robert Curtis, Esq.
FOLEY BEZEK BEHLE & CURTIS, LLP
15 West Carillo St.
Santa Barbara, CA 93101
Telephone: 805-962-9495
E-mail: pbezek@foleybezek.com
rcurtis@foleybezek.com
- and -
J. Paul Gignac, Esq.
ARIAS, OZZELLO & GIGNAC LLP
115 St. La Cumbre Lane, Suite 300
Santa Barbara, CA 93105
Telephone: 805-683-7400
E-mail: j.paul@aogllp.com
- and -
Christian A. Jenkins, Esq.
MINNILLO & JENKINS, CO. LPA
2712 Observatory Ave.
Cincinnati, OH 45208
Telephone: 513-723-1600
E-mail: cjenkins@minnillojenkins.com
- and -
Jeffrey Goldenberg, Esq.
GOLDENBERG SCHNEIDER & GROH, LPA
35 East Seventh St., Suite 600
Cincinnati, OH 45202
Telephone: 513-345-8297
E-mail: jgoldenberg@mgsglaw.com
- and -
Stephen L. Dreyfuss, Esq.
HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP
One Gateway Center
Newark, NJ 07102
Telephone: 973-621-9020
E-mail: sldreyfuss@hlgslaw.com
WASHINGTON MUTUAL: District Court Preliminarily Certifies Class
---------------------------------------------------------------
The United States District Court for the Western District of
Washington preliminarily certifies a class involving all persons
who were participants in or beneficiaries of the WaMu Savings Plan
at any time between October 19, 2005 and September 26, 2008,
inclusive, in the Washington Mutual, Inc., Securities, Derivative
And ERISA Litigation.
The Court preliminarily appoints Gregory Bushansky, Dana Marra,
and Marina Ware as class representatives for the Settlement Class,
and Keller Rohrback L.L.P. and Hagens Berman Sobol Shapiro LLP as
Co-Lead Counsel for the Settlement Class.
A Fairness Hearing is scheduled for November 5, 2010.
A copy of the District Court's order is available for free at:
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100806b08
Class Counsel can be reached at:
Lynn Lincoln Sarko, Esq.
Derek W. Loeser, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98109
and
Steve W. Berman, Esq.
Andrew M. Volk, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Defendants' Counsel can be reached at:
Ronald L. Berenstain, Esq.
PERKINS COIE LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101
WELLCARE HEALTH: Reaches Settlement of Securities Class Action
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WellCare Health Plans, Inc., said that it has reached an agreement
on the material terms of a settlement which will resolve the
claims asserted against the Company in the previously disclosed
putative securities class action consolidated complaint filed
against the Company.
The securities class action settlement provides, among other
things, that WellCare will make cash payments to the class of
$52.5 million within thirty days following the Court's preliminary
approval of the settlement, and $35.0 million by July 31, 2011.
The Company also will issue to the class tradable unsecured bonds
having an aggregate face value of $112.5 million, with a fixed
coupon of 6%. The principal portion of the bonds have a maturity
date of December 31, 2016. In addition, if within three years of
the agreement WellCare experiences a change in control at a share
price of $30 or more, the Company will make an incremental $25.0
million payment to the class.
As a result of the agreement, the Company's current estimate for
the resolution of this matter is $200 million, which has been
accrued in the second quarter of 2010 at its estimated fair value
of approximately $194 million. The material terms of the agreement
are described in the Company's second quarter Form 10-Q filed with
the United States Securities and Exchange Commission.
The terms of the settlement will be documented in an agreement
which will require approval by the United States District Court
for the Middle District of Florida following notice to all class
members. There can be no assurance that the settlement will be
finalized and approved, and the actual outcome of this matter may
differ materially from the terms of the settlement.
"We believe we will be able to meet our known near-term monetary
obligations, including the terms of this settlement agreement, and
maintain sufficient liquidity to operate our business," said Tom
Tran, WellCare's chief financial officer.
In addition to the securities class action settlement, on June 24,
2010, WellCare announced it had reached a preliminary settlement
with the Civil Division of the United States Department of Justice
and the Civil Divisions of the United States Attorneys' Offices
for the Middle District of Florida and Connecticut to settle their
pending inquiries. In May 2009, the Company resolved
investigations by the United States Attorney's Office for the
Middle District of Florida, the Florida Attorney General's Office
and the SEC.
"Upon final approval of these two matters, WellCare will have
addressed the financial aspects of the legal proceedings that
began in late 2007," said Chuck Berg, WellCare's executive
chairman. "These resolutions will enable us to focus on our
mission of serving some of the country's most vulnerable
populations and to invest in our priority areas: health care
quality and access, compliance, infrastructure and growth."
Lead Plaintiffs' Statement
In a separate news release, the Court-appointed Lead Plaintiffs in
the securities class action against WellCare Health Plans, Inc.,
and its former senior executives said they have reached a
settlement with WellCare in which the total consideration to be
paid is at least $200 million. The Court appointed Lead Plaintiffs
are Teachers' Retirement System of Louisiana, Public School
Teachers' Pension & Retirement Fund of Chicago, Policemen's
Annuity and Benefit Fund of Chicago, the New Mexico State
Investment Council, and the Public Employees Retirement
Association of New Mexico.
The settlement funds will be distributed to WellCare common stock
purchasers included in a consolidated securities class action
presently pending before the Honorable Virginia M. Hernandez
Covington in the United States District Court for the Middle
District of Florida. Under the terms of the settlement, WellCare
agreed to pay a total of $87.5 million in cash and $112.5 million
in freely tradable, registration-exempt bonds with a maturity date
of December 31, 2016 and a fixed coupon of 6%. WellCare further
agreed to pay an additional $25 million in cash if, at any time in
the next three years, WellCare is acquired or otherwise
experiences a change in control at a share price of $30 or more
after adjustments for dilution or stock splits. WellCare also
agreed that, should it recover any sums from Individual Defendants
Todd S. Farha, Paul Behrens, and Thaddeus Bereday, it shall pay
25% of those proceeds to the Class. The settlement is subject to
approval by the United States District Court.
The New Mexico State Investment Council and the Public Employees
Retirement Association of New Mexico were represented by Labaton
Sucharow LLP. TRSL, Chicago Teachers, and Chicago Police were
represented by Bernstein Litowitz Berger & Grossmann LLP. Labaton
Sucharow LLP and Bernstein Litowitz Berger & Grossmann LLP also
served as Co-Lead Counsel for the Class.
Lead Counsel can be reached at:
Jennifer Bankston, Esq.
LABATON SUCHAROW LLP
Telephone: +1-212-907-0659
Email: jbankston@labaton.com
- and -
Alexander Coxe, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
Telephone: 212-554-1423
Email: alex@blbglaw.com
WellCare Health Plans, Inc. -- http://www.wellcare.com/--
provides managed care services exclusively for government-
sponsored health care programs, focusing on Medicaid and Medicare.
Headquartered in Tampa, Florida, WellCare offers a variety of
health plans for families, children, and the aged, blind and
disabled, as well as prescription drug plans. The Company served
approximately 2.2 million members nationwide as of June 30, 2010.
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