/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/101018.mbx C L A S S A C T I O N R E P O R T E R Monday, October 18, 2010, Vol. 12, No. 205 Headlines AMERICAN INT'L: Opposes Class-Action Status to Rivals' Suit BANKATLANTIC BANCORP: First Witness Called in Class Suit Trial BARNES & NOBLE: Jackson Lewis Disqualified Over Class Settlement BIERMAN GEESING: Sued for Counterfeiting Foreclosure Affidavits BROADWAY BRIDGE: Settles Labor Class Suit for Nearly $2 Million CLASSMATES MEDIA: Class Counsel Agrees to Fee Modification HEALTHPORT: Sued for Illegally Overcharging Medical Patients INDSPEC CHEMICAL: Sued Over Toxic Chemical Release at Plant INTERNET BRANDS: Being Sold for Too Little, Calif. Suit Claims MEREDIA: Merchant Law Group Launches Class Action in Canada NASHVILLE LIMO: Court Denies Motion to Dismiss FLSA Suit in Tenn. NATIONAL CITY: To Settle ERISA Class Action Suit for $43 Million NIAGARA FALLS: School District Faces Class Suit Over Seneca Taxes POTASH CORP: To Contest Purported Class Action Complaint PREMIER CHEMICALS: Sued Over Magnesium Oxide Price-Fixing Scheme REDLINE COMMUNICATIONS: Faces Class Action Suit in Ontario ROSS STORES: Recalls 185 Iron Lover's Benches SIMON & SCHUSTER: Settles TCPA Class Action Suit for $10 Million SKILLED HEALTHCARE: Settles Class Action Suit for $50 Million UNITED LIFE: Judge Grants Preliminary Settlement to Class Suit WYNN RESORTS: Judge Allows Casino Smoking Case to Proceed ZIMMER HOLDINGS: Lawyers to Review Durom Cup Hip Implant Claims * U.S. Lenders to Face Class-Action Lawsuits Over Foreclosures ********* AMERICAN INT'L: Opposes Class-Action Status to Rivals' Suit ----------------------------------------------------------- Serena Ng, writing for The Wall Street Journal, reports American International Group Inc., which has been sued for alleged under- reporting of premiums on workers-compensation policies, asked a federal judge to deny class-action status to a lawsuit brought against it by other insurance companies. AIG has been accused by rivals of under-reporting the size of its workers-compensation business. In documents filed in a federal district court in Illinois on Friday afternoon detailing AIG's opposition to the case, lawyers for AIG accused two insurers that are plaintiffs in the case of acting "at the behest of" Liberty Mutual Insurance Co., a rival that AIG alleges under-reported its own workers-compensation premiums. AIG, which was bailed out by the U.S. government in September 2008, has been embroiled in a long-running fracas with its rivals over the reporting of workers-compensation policies. In many states, insurers are required to contribute funds to a pool to help cover payments to injured workers. The contribution amounts are determined from the size of each insurer's workers- compensation business. AIG has been accused by rivals and others in court filings and other venues of under-reporting the size of its workers- compensation business for decades. The company has, in court documents, in turn accused some of its competitors of understating their own workers-compensation insurance premiums and contributing less than they should have to the pool. In Friday's court filing, AIG said Liberty and several other large insurers "are alleged to have engaged in the very same conduct that is at the core of the putative class action complaint -- the under-reporting of workers compensation premium -- thereby making class certification particularly inappropriate." A Liberty Mutual spokesman said the company had no comment. Liberty Mutual is involved in separate litigation against AIG over the workers-compensation issue. In 2006, AIG agreed to set aside more than $300 million in a settlement with New York insurance regulators and the New York Attorney General over allegations that the company understated its workers-compensation premiums from the mid-1980s to the mid-1990s, without admitting or denying wrongdoing. Most of that settlement money, which is sitting in a fund, is slated to be distributed among various states or players that were hurt by AIG's alleged conduct and have legitimate claims against the company. Last year, Safeco Insurance Company of America and Ohio Casualty Insurance Co. filed a lawsuit against AIG on behalf of a group of insurance companies and have sought class-action status for the case, in which they alleged a $1 billion under-reporting scheme at AIG. AIG in its Friday filing noted that Liberty Mutual is the ultimate parent of Safeco and Ohio Casualty. It said "discovery has confirmed" that the five of the largest members in the putative class "engaged in much the same underreporting conduct of which AIG is accused in this case." Spokespeople for Safeco and Ohio Casualty said their companies don't comment on pending litigation. Ohio Casualty "looks forward to addressing all of the issues on behalf of the class in court," a spokesman said. Michael Carlinsky, a lawyer representing AIG, said, "We have presented the court with a significant amount of actual evidence showing under-reporting by other companies, including Liberty and certain of its subsidiaries." American International Group Inc. is represented by: Michael B. Carlinsky, Esq. QUINN EMANUEL URQUHART & SULLIVAN 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: 212-849-7000 BANKATLANTIC BANCORP: First Witness Called in Class Suit Trial -------------------------------------------------------------- Brian Bandell, writing for South Florida Business Journal, reports the attorney representing shareholders suing BankAtlantic Bancorp told jurors Tuesday he would prove executives lied to investors about a deteriorating loan portfolio. As the shareholder class action suit opened in U.S. District Court in Miami, plaintiffs' attorney Mark Arisohn pointed to internal e-mails from bank officials and the bank's "internal watch list" of problem loans. Mr. Arisohn said they contradicted the bank's public statements to investors during the investor class period, which was Nov. 9, 2005, through Oct. 25, 2007. As a result, shareholders overpaid for the stock, he said. Later in the day, BankAtlantic's defense attorney, Eugene Stearns, countered that the bank was open about the risks its loans faced and investors should have been well-aware that its stock would suffer if Florida real estate values declined, as they did severely. "What you have here is a company that encourages full disclosure," Mr. Stearns told the jury. The trial comes at a crucial time for BankAtlantic (NYSE: BBX), which is seeking to raise up to $125 million as its shares trade at 95 cents. The bank is considered "well capitalized" by regulators, but a recent Fitch Ratings report said the company does not have enough capital to deal with problem loans and operating losses that have totaled $461 million in the past 10 quarters. It is unclear how much in damages the bank might face if the plaintiffs are successful. Problem loans to undeveloped properties held by developers or by borrowers that planned to sell to developers are one of the focal points of the trial, which has the State-Boston Retirement System as the lead plaintiff. Developers, such as Miami-based Lennar Homes and the since-defunct TOUSA, backed out of tentative deals to buy home lots from BankAtlantic borrowers, according to internal bank documents presented at the trial. On Sept. 20, 2006, Lennar alone had plans to buy properties secured by $55.5 million in BankAtlantic loans. The national builder exited a preliminary deal with Priority Entrada (near Cape Coral) and Hernando Oaks (near Brooksville), ultimately leading the borrower to defaults on loans of $12.6 million and $20 million, the documents indicated. As an example of alleged misstatements, Mr. Arisohn pointed to comments BankAtlantic President Jarrett Levan made at an investor conference in New York: "We see no trends to make us nervous; we are very comfortable with our borrowers." That statement was picked up by newswires. When Mr. Levan shared it with his father, BankAtlantic Chairman and CEO Alan Levan, the elder Levan responded back by e-mail: "I also wouldn't be so bold on the credit front. I think that Marcia [Snyder] is going to have problems with her land portfolio." Ms. Snyder, the former chief of land lending at BankAtlantic, is scheduled to testify in the trial. Mr. Arisohn said the e-mail exchange showed the bank's statements to the public were misleading. "Despite the fact that the head of the bank told his son that this was too bold, there was no retraction," Mr. Arisohn said. Land loan issues During his opening statement, Mr. Arisohn sought to characterize BankAtlantic's land loan practices as reckless and unsafe. The attorney started his criticism by running through the bank's builder land bank (BLB) loans, where the source of repayment is the borrower selling property to a major homebuilder. He pointed to four loans totaling $86.6 million in Florida. By October 2006, it was clear that builders, such as Lennar Corp. and D.R. Horton, weren't likely to purchase the properties, Mr. Arisohn said. One of the largest loans was the $27 million Steeplechase loan on a sod farm about 25 miles east of Sarasota, which was the subject of a Dec. 12, 2006, South Florida Business Journal article. Mr. Arisohn said the owner flipped the property before the BankAtlantic loan, and the guarantor had a net worth of $275,000. Of Steeplechase, Mr. Stearns said the bank "screwed up," but it quickly disclosed that to investors. Mr. Arisohn used Steeplechase as an example of why he believes it was false for Alan Levan to say in a February 2007 conference call: "We believe we are conservative in our underwriting and our portfolio is high quality." Mr. Stearns said Mr. Levan relied on the opinion of federal banking regulators in making that statement. He presented an Office of Thrift Supervision examination of BankAtlantic released in May 2006 -- when many of the land loans were in place -- as calling the bank's asset quality strong and its underwriting practices prudent. "The company was describing its loans in the same way the banks examiners were describing its loans," Mr. Stearns said. "But the recession caused property values to fall. So now you have a bank that made a prudent loan at the beginning and found that the property is now worth less than the loan." Although BankAtlantic started disclosing problems in its BLB portfolio in the first quarter of 2007, Mr. Arisohn said it took much longer for bank officials to come clean with investors about problems with non-BLB loans, which are land loans held by borrowers who plan to do the development themselves. For both types of land loans, BankAtlantic maintained an internal watch list that had category 10 as a "special mention" and category 11 as "substandard." The loans in the two categories increased to $67.3 million on April 26, 2007, from $7.4 million on March 31, 2007, Mr. Arisohn said. Mr. Arisohn said most of those were non-BLB loans. The plaintiffs' attorney sought to contradict an April 26, 2007, statement by Alan Levan at a conference call when the banker said: "The portfolios that our borrowers who are buying land for their own development are proceeding in the normal course." Mr. Arisohn said the watch list showed the portfolio was performing anything but normally. Mr. Stearns cited examples from BankAtlantic Bancorp's public filings that he believes made it clear that a decline in the Florida home buying market would hurt the company. He also noted that non-BLB loans caused $9.3 million of the reserve expenses in the third quarter of 2007 -- when the bank's earnings announcement was followed by a 40% decline in its stock. By comparison, the larger sources of that quarterly loss came from the $22.2 million expense from BLB loans and the $15 million expense to reserve for a general decline because of the troubled economy. So even if the bank wasn't honest about its non-BLB loans, which Stearns insists that it was, the impact on its earnings wasn't great enough to merit damages, he said. After the jury left the courtroom, Mr. Stearns, of Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., told Judge Ursula Ungaro that he wasn't happy with the plaintiffs' attorney making it sound like the bank should have made its watch list data public. Mr. Stearns noted that this isn't an SEC requirement, and most other banks don't do that. However, before the trial, the judge barred BankAtlantic from using the disclosure records of other banks as evidence. Judge Ungaro held firm in her position as the trial began, and said that the plaintiffs' argument refers to the banks public statements not reflecting the data in the watch list. The plaintiffs' attorney's goal is to get the jury to rule that BankAtlantic's stock was inflated during the class period, meaning investors who bought during that time should collect damages. Mr. Arisohn said his expert witness would testify that, based on the alleged misleading statements by the bank, its stock was inflated by 37 cents a share from Oct.19, 2006, to April 25, 2007, and then by $3.15 from April 26, 2007, to Oct. 25, 2007. "The plaintiffs will prove to you, through the bank's own documents and the bank's own employees, that the bank broke the golden rule, 'Don't lie to your investors and the public,'" Mr. Arisohn said. The plaintiffs plan to use testimony from Candace L. Preston, principal of Princeton, N.J.-based Financial Markets Analysis, to show the amount of damages caused to shareholders. Mr. Stearns disputed Preston's conclusion in advance. He said it was wrong to compare the performance of BankAtlantic Bancorp stock in an index of national U.S. banks because BankAtlantic was adversely impacted by the troubled Florida real estate market. He showed jurors a chart comparing BankAtlantic Bancorp stock to other Florida-based savings and loan institutions on the market. They plummeted in value in the third quarter of 2007. Back then, BankUnited FSB was the largest bank in Florida and its stock was spiraling downward. The Coral Gables-based bank failed in 2009. In addition, Mr. Stearns said that BankAtlantic was buying shares of its own stock during the class period, a practice that wouldn't make sense if the bank was intentionally inflating the value of its shares. "Now that's a great way to pump up your stock, get in front of the investing public and say, 'Let's keep our fingers crossed,'" Mr. Stearns said, referring to a comment by Alan Levan at an April 2007 investor conference call. Before the trial started, former SEC attorney James Sallah, who is now an attorney in Boca Raton, said the plaintiffs have a tough standard of proof in this case, especially in showing that the allegedly false statements made by bank officials directly caused losses in share value, as opposed to losses from other economic factors. The first witness to take the stand was the point-man on the bank's loan portfolio, BankAtlantic Chief Credit Officer Jeffrey Mindling. Mr. Arisohn walked him through the bank's commercial real estate lending policy, which included recommended loan amount limits based on property values and development costs. Then the plaintiffs' attorney showed him land loans that exceeded those limits. Using an internal bank report from October 2007, Mr. Arisohn pointed out five land loans where the mortgages made up more than 91% of the development costs -- in one case 100%. That left the borrowers with little of their cash in the deals and increased the risks to the bank, the attorney said. Mr. Mindling said that having a high loan-to-development cost ratio was more risky, but exceptions to the bank's loan policies can be made based on "mitigating factors." Mr. Arisohn presented an internal bank memo that showed $413 million in commercial real estate loans with policy exceptions were granted in the third quarter of 2006 alone. Of those, 10% had loan-to-value ratios that exceeded recommended limits and 11% had no or limited personal guarantees from the borrowers. Mr. Mindling said that some of the exceptions granted weren't all that significant. Some were missing or late documentation. All loans above $5 million were approved by the bank's "major loan committee," which includes both Mr. Levans and other executives who are named as defendants in the case along with the bank. Mr. Mindling is also on that committee, but he's not a defendant. Mr. Arisohn is trying to undermine the bank's public statements that its underwriting was conservative. Mr. Mindling testified that the bank realized Florida real estate wasn't such a good investment around the same time everybody else did. "We started to have concerns about BLB loans near the end of 2006," Mr. Mindling said. "We started to hear talk there was potential that the market could slow. I don't believe it was until 2007 that we realized that was happening." The Plaintiffs are represented by: Mark Arisohn, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: 212-907-0840 BankAtlantic Bancorp is represented by: Eugene Stearns, Esq. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON,P.A. Highpoint Center, 106 East College Ave., Suite 720 Tallahassee, FL 32301 Telephone: 305-789-3400 BARNES & NOBLE: Jackson Lewis Disqualified Over Class Settlement ---------------------------------------------------------------- Kate Moser, writing for The Recorder, reports Jackson Lewis was disqualified from a potentially big class action against Barnes & Noble last month, demonstrating the hidden risks of trying to gut class actions by settling with named plaintiffs. Alameda County, Calif., Superior Court Judge Steven Brick acknowledged that ousting the firm was a "drastic" move, but indicated from the bench that it was necessary in this case. Disqualification was a strategy more in vogue with both sides of the bar before the rules of litigating wage-and-hour class actions firmed up in the past five years. But Judge Brick's decision shows the threat is still alive. "It's a trap for the unwary," said Francis "Tripper" Ortman, a partner in Seyfarth Shaw's San Francisco office who wasn't involved in the case. "You've got to be very sensitive when you're dealing with the class representative." Sara Minor, a former community relations manager at a Barnes & Noble store, sued over unpaid mileage and wrongful termination in Merced County, Calif., Superior Court. Then, she became class representative in a suit that San Diego plaintiffs firm Clark & Markham filed in Alameda County, which alleges that Barnes & Noble illegally paid its California workers with checks from out-of- state banks. She said she only took the $13,500 Jackson Lewis offered her to settle her Merced suit because she and her husband were facing eviction. She didn't want to withdraw as class representative, she said, but it was part of the deal, and she needed the money. The trouble stemmed from Clark & Markham's claims that it had no idea Jackson Lewis was luring away its class representative. They were aware some negotiations had taken place, they say, but thought they'd ended. In his tentative ruling, Judge Brick noted that Jackson Lewis had put Minor's lawyer, Amy Carlson of San Jose firm Williams, Pinelli & Cullen, in an ethically compromising position and "intruded upon the attorney-client relationship between Minor and class counsel without the consent of class counsel, thereby threatening that relationship." Judge Brick hasn't issued a final order yet, but R. Craig Clark of Clark & Markham said that at a Sept. 30 hearing, the judge disqualified Jackson Lewis as of the end of October. He also ordered Barnes & Noble to hand over the names and contact information of all potential class members. Robert Pattison, a partner in the San Francisco office of Jackson Lewis, didn't respond to an inquiry about the case, Minor v. Barnes & Noble, RG09450216. Mr. Clark said in a court filing that he had expressed his "indignation" that Jackson Lewis would try to settle the class claims without him to Punam Sarad, the Jackson Lewis associate handling both cases: "It's hard for me to express my professional repugnance" over the matter, he said. But Mr. Sarad has denied that Mr. Clark's firm was out of the loop. A transcript from one hearing on the class action shows that Mr. Sarad said in open court that Minor's withdrawal as class counsel was a condition of the settlement she was negotiating. "The concern to me is if it is outrageous and they were well aware that these negotiations were going on, how come Clark & Markham never reached out to me or anyone?" Mr. Sarad said, according to a transcript of a subsequent hearing. When a named plaintiff has more than one lawyer and a separate suit, it can spell trouble, employment lawyers on both sides say. "It's not uncommon in wage-and-hour class actions for the plaintiffs lawyer to take on a separate individual lawsuit on behalf of a named plaintiff," said Douglas Farmer, managing shareholder of the San Francisco office of Ogletree, Deakins, Nash, Smoak & Stewart. "I just think the plaintiffs lawyers have to be very careful about that, because there's the potential for divided loyalties." And while the reward for securing a release from a class representative is clear, the pitfalls are deep. And new class representatives can easily replace the named plaintiff. "It's a cautionary tale for both sides," said plaintiffs lawyer Jonathan Gertler, who litigates wage-and-hour class actions. "On the defense side, it's as simple as it looks -- if you break the rules, you might get kicked out of the case. On the plaintiff's side, it's a subtler lesson: In this kind of litigation, a great deal of vigilance is required even when the rules should protect you. You've got to stay in really close contact and clear communication with your client." BIERMAN GEESING: Sued for Counterfeiting Foreclosure Affidavits --------------------------------------------------------------- Jamie Smith Hopkins, writing for The Baltimore Sun, reports revelations that attorneys at two Maryland firms had other people sign their names to foreclosure documents brought a rebuke Wednesday from the O'Malley administration, which called the practice a "potential example of further mishandling and mistreatment of Maryland homeowners." Also on Wednesday, several borrowers' lawyers said they have filed a class-action suit against one of the law firms in federal court in Greenbelt. And attorney general offices across the country -- including Maryland's -- teamed up for a joint inquiry into nationwide reports of improper documentation used to foreclose on homeowners. The Baltimore Sun reported Wednesday that two attorneys, Bethesda- based Jacob Geesing and Hunt Valley-based Thomas P. Dore, acknowledged in court filings that earlier documents submitted in foreclosure cases had been signed at their direction but not actually by them. The documents, called affidavits, are the written equivalent of court testimony and cannot be signed on another's behalf. The lawsuit -- filed against Mr. Geesing, Howard Bierman, Carrie Ward and their firm, Bierman, Geesing, Ward & Wood -- alleges that all three were responsible for "fabricated and counterfeit affidavits" in order to take on more cases than they could handle if they followed the law. The suit contends that the attorneys also directed others to sign their names on deeds for the last six years, clouding the titles on potentially thousands of homes sold to new owners. "[T]he Defendants' assembly line foreclosure prosecution became to foreclosure misconduct what Henry Ford was to automobile production," alleges the complaint, which was provided to The Sun by the plaintiffs' attorneys. The lawsuit was not available through the federal court's electronic filing system, but the copy from the attorneys showed the case number and a time stamp dated Wednesday. Geesing, Bierman and Ward did not respond Wednesday to requests for comment. Mr. Dore, who was not named in the suit, also did not return messages seeking comment. Shaun Adamec, a spokesman for Maryland Gov. Martin O'Malley, said Wednesday that the falsely signed affidavits were one reason why the Democrat joined with the state's congressional delegation to ask the courts to halt foreclosures for at least 60 days. "While it's a separate issue from the robo-signings that prompted the latest dust-up in the mortgage lending world, it is nonetheless another disturbing development in the foreclosure process," Mr. Adamec said. In "corrective affidavits" acknowledging the signature issue, both Messrs. Geesing and Dore said that all other information in their foreclosure documents was accurate. Mortgage servicers, meanwhile, have made similar assertions in recent days in response to court depositions of employees now dubbed "robo-signers." These staffers say they signed their own affidavits, but in such volume that they did not personally verify the information in the documents, such as how much borrowers owed. "Our ongoing assessment shows the basis for our past foreclosure decisions is accurate," Bank of America said in a statement last week when it expanded its freeze on foreclosure sales to all 50 states. But Richard Cordray, Ohio's attorney general, said improper affidavits are a serious matter even in cases where the details in the affidavits prove correct. He said the Maryland examples fall into that category. "Whether they signed it for someone else or whether they robo- signed lots of them, regardless, that's fraud," said Mr. Cordray, who has filed suit against mortgage servicer GMAC Mortgage. "You're telling the court under oath, and the court is relying on that evidence to make decisions about taking someone's property." Attorneys general in all 50 states announced Wednesday that they were working together to find out whether mortgage servicers submitted problematic affidavits. Requests from that group carry more weight than initial calls from individual states asking that mortgage companies review their procedures, said a spokeswoman for Maryland Attorney General Douglas F. Gansler. "Now you have . . . AGs all coming together with one voice," said Raquel Guillory, his spokeswoman. Though it supports the inquiry, the Obama administration said this week that it did not want to see a nationwide foreclosure moratorium, warning of "unintended consequences." Foreclosures represent a sizable chunk of the housing market today, and analysts have argued over whether a halt to such sales would help or hurt in the long term. The Mortgage Bankers Association is in the anti-moratorium crowd, saying that servicers move to repossess homes only after "all other foreclosure prevention efforts have failed." "Calls for a blanket national moratorium on all foreclosures are a bad idea and would cause significant harm to communities at risk, the unstable housing market and the fragile economy," the trade group said last week in a letter to Congress that was also signed by other groups representing financial institutions. "A foreclosure moratorium would not change the ultimate outcome for borrowers impacted by this situation." But housing counselors and consumer attorneys have long complained that borrowers who should qualify for loan modifications are given the runaround by overwhelmed servicers -- while lawyers hired by the firms are pushing forward with foreclosure proceedings. Nina Simon, director of litigation with the Center for Responsible Lending, said a general rush to foreclose was harming the country. "We think there needs to be some other process for doing what's in everybody's interest," said Ms. Simon, who is involved in a class- action suit against GMAC Mortgage. "Every time somebody loses their home to foreclosure, it diminishes the value of their neighbor's property, it takes revenue away from the locality, it contributes to increased policing activity." Attorneys involved in the new class-action suit against the Bethesda-based Bierman, Geesing, Ward & Wood include Jerry Solomon, an attorney who represents Maryland and Florida homeowners in foreclosure. Mr. Solomon was looking through case files for clients last fall when he noticed irregularities in signatures. Mr. Geesing agreed to dismiss five cases after Mr. Solomon alleged "fraud on the court." In recent weeks, the Maryland secretary of state removed from office three notaries from Mr. Geesing's firm and three more from Mr. Dore's firm for notary violations. "I think it would be prudent for the courts to immediately stay any open foreclosures filed by these firms," said Mike Morin, an Annapolis attorney who is also involved in the class-action suit. BROADWAY BRIDGE: Settles Labor Class Suit for Nearly $2 Million --------------------------------------------------------------- Crain's New York Business reports the operators of a Manhattan car wash, who for at least five years failed to pay minimum and overtime wages to dozens of employees, have agreed to a nearly $2 million settlement with the state Department of Labor, officials announced Tuesday. It's one of the largest settlements the DOL has reached with operators in the troubled car wash industry, which has been the target of investigators since 2008. David Winter, Ehud Cafri and Ori Apple -- the operators of Broadway Bridge Car Wash, located at the northern tip of Manhattan -- failed to pay employees nearly $1.3 million in minimum wages, overtime and earned tips from June 2003 through August 2008, officials said. Nearly $700,000 in damages, interest and penalties was tacked on. The DOL had originally sought $4.6 million, which included stiffer penalties, but settled for the lesser amount without negotiating away money owed to the workers. "This car wash business did business by ignoring labor laws," said state Labor Commissioner Colleen Gardner. "It was bad enough that workers were not paid minimum wage and overtime for a grueling 72- hour workweek, but the employer also tried to hide its actions by paying many employees off the books." Jeffrey Englander, an attorney for Broadway Bridge, declined comment. Ms. Gardner said that investigators got wind of violations at the Broadway car wash after an employee complained that she was not being paid overtime wages and wasn't being given all of her tips. They interviewed workers and examined payroll records and found that employees generally worked 12 hours a day, six days a week, without being paid overtime as the law requires. Some of the workers earned as little as $3.75 an hour when the minimum wage was $6.75 and $4.00 when it was $7.15. They took home as little as $270 a week and were often forced to share tips with non- service employees. Ivan Bravo, who worked at Broadway Bridge for a year and half, said he was never paid overtime despite regularly logging 72-hour weeks. He left the job to work in a restaurant in 2008 because he wasn't making enough money, he said. "We are happy now, peaceful," he said in Spanish, of the workers, as a result of the settlement. Three dozen employees will get more than $858,322, and an unidentified group that was paid in cash and not reported on payroll will get $415,342. The payouts will range from about $24,000 to $58,000, Ms. Gardner said. The settlement comes as the DOL has focused its attention on the 707 car washes across the state, particularly those in the five boroughs. Investigators found that nearly 80% of car wash operators in New York City are guilty of wage and hour violations. Statewide, investigators have uncovered nearly $10 million in unpaid wages in an industry where workers earn just $16,570 per year. Broadway Bridge Car Wash is represented by: Jeffrey P. Englander, Esq. MORRISON COHEN LLP 909 Third Ave., 27th Floor New York, NY 10022-4731 Telephone: 212-735-8600 CLASSMATES MEDIA: Class Counsel Agrees to Fee Modification ---------------------------------------------------------- Class Counsel in In re Classmates.com Consolidated Litigation, Case No. 09-cv-0045-RAJ (W.D. Wash.) (Jones, J.), has agreed to reduce their fee award from a $1,300,000 cash payment to $1,050,000, and the Defendants have agreed to make a $500,000 cy press contribution to a charity approved by the Court. A rescheduled Fairness Hearing will be held at 1:30 p.m. on Dec. 16, 2010, in Seattle, Wash. In this Litigation, as previously reported in the Class Action Reporter on June 8, 2010, the Plaintiffs assert class action claims against Classmates Online, Inc., Classmates Media Corporation, and United Online, Inc. Complaints filed in the action allege, among other things, that the Defendants sent e-mail messages to subscribers of http://www.classmates.com/that were in violation of the law and engaged in conduct that had the potential to violate Web site users' privacy rights. The Defendants have denied and continue to deny Plaintiffs' allegations and maintain that Defendants have not engaged in any wrongful conduct. The Defendants also contend that the Litigation is not suitable for class action treatment. The Defendants have nevertheless concluded that it is in their best interests that this Litigation be resolved subject to and on the terms and conditions set forth in the Settlement Agreement, a copy of which is available at: http://www.cmemailsettlement.com/notice.php The settlement pact provides $2 credits or $3 cash payments to individuals who subscribed to www.classmates.com between January 1, 2007 and April 19, 2010, and who paid for a Gold Membership subscription to www.classmates.com (and did not previously receive a refund of such payment). The Plaintiff Class is represented by: Mark A. Griffin, Esq. Amy Williams-Derry, Esq. KELLER ROHRBACK L.L.P 1201 Third Avenue, Suite 3200 Seattle, Washington 98101 - and - Richard L. Kellner KABATECK BROWN KELLNER L.L.P. 644 South Figueroa Street Los Angeles, California 90017 Defense counsel is: Stellman Keehnel, Esq. Russ Wuehler, Esq. DLA PIPER LLP 701 Fifth Avenue, Suite 7000 Seattle, WA 98104 Garden City Group, Inc., serves as the claims agent and maintains a Web site at http://www.cmemailsettlement.com/providing additional information about this matter. HEALTHPORT: Sued for Illegally Overcharging Medical Patients ------------------------------------------------------------ John Lyon, writing for Arkansas News, reports a class-action lawsuit alleges a Georgia company has been illegally overcharging Arkansas medical patients who request copies of their medical records. Russellville lawyer Jimmy Streett filed the lawsuit in Pope County Circuit Court on behalf of Russellville resident Theresa Holbrook and "all other Arkansans similarly situated." The lawsuit filed Tuesday alleges that HealthPort, a company in Alpharetta, Ga., that maintains records for health care providers, has charged Holbrook and other Arkansans an illegal fee identified as a "sales tax" when they request copies of their medical records. It seeks reimbursement for all Arkansans who have paid such a fee. HealthPort did not immediately return a call on Wednesday seeking comment. The lawsuit cites an opinion by Arkansas Attorney General Dustin McDaniel stating that Arkansas law permits entities that maintain medical records to recoup their costs for printing and providing copies of the records, but it does not permit them to charge a sales tax for the service. Attached to the complaint as an exhibit is a bill Holbrook received from HealthPort after she requested her medical records from the Milliard Henry Clinic in Russellville. The clinic has a contract with HealthPort to maintain its records. The bill includes a "basic fee," a retrieval fee, a copying fee, a fee for shipping and handling and a "sales tax" of $1.71. Mr. Streett on Wednesday said that the so-called sales tax HealthPort charges is often small, but when a patient has a large file the amount can be significant, and even small fees add up to "a lot of money in the aggregate." Charging a sales tax for providing medical records makes no sense, Mr. Streett said. "It's people asking their own medical providers for their own medical information," he said. "They're not buying a good or service. They're asking for something that should be theirs." Asked if the Arkansas attorney general's opinion is applicable since HealthPort is not in Arkansas, Streett said HealthPort's location should make no difference because when patients in Arkansas request their medical information, they request it from the health care providers that treated them. "They're asking for it from their local hospital or their local clinic or their local doctor. It's just that their local doctor is outsourcing what would otherwise be their service to somebody that happens to be out of state," he said. INDSPEC CHEMICAL: Sued Over Toxic Chemical Release at Plant ----------------------------------------------------------- Courthouse News Service reports that botched work at a resorcinol production plant poisoned the town of Petrolia with a cloud of sulfuric acid on Oct. 11, 2008, a class action claims in Allegheny County Court. Named as defendants are Indspec Chemical Corp., Occidental Chemical Corp., and Oxy Inc. A copy of the Complaint in Ealy, et al. v. Indspec Chemical Corporation, et al., Case No. _____ (Pa. C.P. Ct., Allegheny Cty.), is available at: http://www.courthousenews.com/2010/10/11/Enviro.pdf The Plaintiffs are represented by: William J. Schenck, Esq. SCHENCK & LONG 610 North Main St. Butler, PA 16001 Telephone: (724) 283-7359 - and - Henry T. Dart, Esq. HENRY DART, ATTORNEYS AT LAW, P.C. 510 N. Jefferson St. Covington, LA 70433 Telephone: (985) 809-8093 - and - M. David Karnas, Esq. BELLOVIN & KARNAS, P.C. 131 E. Broadway Tucson, AZ 85701 Telephone: (520) 571-9700 ext. 210 - and - J. Michael Malone, Esq. HENDREN & MALONE, PLLC 4600 Marriott Dr., Suite 150 Raleigh, NC 27612 Telephone: 919-573-1423 - and - Roger W. Orlando, Esq. ORLANDO LAW FIRM 315 West Ponce De Leon Ave., Suite 400 Decatur GA 30030 INTERNET BRANDS: Being Sold for Too Little, Calif. Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Internet Brands is selling itself too cheaply to Hellman & Friedman Capital Partners and concealed information in the preliminary proxy statement, shareholders claim in Los Angeles Superior Court. MEREDIA: Merchant Law Group Launches Class Action in Canada ----------------------------------------------------------- Tony Merchant of Q.C. Merchant Law Group is launching class action lawsuits in Canada on behalf of all former Canadian users of Meridia (Sibutramine), a prescription drug made by Abbott Laboratories, commonly prescribed to treat obesity. "Our Statement of Claim asserts that one of Canada's most commonly prescribed anti-obesity drugs substantially increases a person's risk of a heart attack", Mr. Merchant said. Generic versions of Meridia were also marketed in Canada as Apo- Sibutramine and Novo-Sibutramine. "Merchant Law Group has already been contacted by former Meridia users from Quebec, Ontario, and Alberta, many of whom have suffered serious side effects as a result of using Meridia. Our firm has launched nationwide class action litigation with the courts as a result." said Tony Merchant, Q.C. Meridia was pulled off the market by its manufacturer last week, in response to an independent study published last month in the prestigious New England Journal of Medicine which found that Meridia puts patients at substantial increased risk of heart attacks. The Meridia class action lawsuits include a class action filed with the court in Montreal on October 12 and a class action to be filed with the court in Toronto on October 13. Merchant Law Group LLP is a nationally prominent firm in many areas of the law including class actions, with offices in Montreal, Toronto, St. Catharines, Ottawa, Winnipeg, Regina, Saskatoon, Moose Jaw, Edmonton, Calgary, Fort McMurray, Vancouver, and Victoria. NASHVILLE LIMO: Court Denies Motion to Dismiss FLSA Suit in Tenn. ----------------------------------------------------------------- The United States District Court for the Middle District of Tennessee denied a motion to dismiss a class action lawsuit filed by individual defendants in the case Coats v. Nashville Limo Bus, LLC, No. 3:10-0759. David Coats and his spouse, Tammy Coats, filed suit against Nashville Limo Bus, LLC, Jan Miles, Howard Pulley and Tracy McMurtry alleging a collective class action claim for violation of the Fair Labor Standards Act; a claim for violation of the Tennessee Whistleblower Act, and a claim for common law retaliatory discharge. The individual Defendants filed a Motion To Dismiss Or, In The Alternative, For Judgment On The Pleadings to which Plaintiffs filed a response in opposition and the Defendants filed a reply. Nashville Limo Bus, LLC, is engaged in the business of transporting automobiles for car dealerships and automobile wholesalers. Nashville Limo formerly employed the Plaintiffs as drivers. Individual Defendants Miles, Pulley and McMurtry are co- owners of Nashville Limo. The Court concludes that the individual Defendants are not entitled to dismissal simply because they are individuals. While the factual support offered in the Complaint for individual liability under the FLSA is slim, the Court concludes that Plaintiffs include sufficient facts to state a plausible claim for relief so that they may proceed to discovery, where the issue of individual liability will be examined in greater detail. A copy of District Judge Todd J. Campbell's Memorandum-Opinion is available at http://is.gd/fZD9vfrom Leagle.com. NATIONAL CITY: To Settle ERISA Class Action Suit for $43 Million ---------------------------------------------------------------- Gordon Gibb, writing for LawyersandSettlements.com, reports participants in an ERISA plan associated with National City Corporation will benefit from a proposed $43 million settlement in a class action lawsuit alleging those defendants responsible for administering the National City Savings and Investment Plan (Plan) breached their fiduciary duties under ERISA by making imprudent investments not in the best interests of Plan holders. ERISA denotes the Employee Retirement Income Security Act of 1974, an Act designed to protect participants of investment plans and 401(k) plans by ensuring those responsible for managing such plans and investing on behalf of plan participants do so with the best interests of participants. It was alleged that the defendants responsible for the employee stock plan allowed the investment of Plan assets in National City common stock or National City Stock Fund units during a time when they knew, or should have known that the investments they were making were imprudent. Further, according to a release from the US District Court for the Northern District of Ohio, Eastern Division, the defendants are alleged to have breached their fiduciary duties by allowing the Plan to invest in Allegiant Funds in violation of ERISA. The defendants deny any wrongdoing. The announced settlement of $43 million in the employee savings plan case, as proposed, will be less court-approved legal fees, various other expenses and case contribution awards to named plaintiffs. The remainder, according to the release, will then be allocated to the accounts of Plan participants who saw portions of their Plan accounts invested in National City common stock or fund units in the National City Stock Fund at any time from September 5, 2006 to December 31, 2008 and to Plan participants who held Allegiant Funds in their Plan accounts at any time from March 25, 2002 through December 31, 2009. A hearing is scheduled for November 30th in the US District Court for the Northern District of Ohio (Eastern Division) before US District Judge Solomon Oliver, Jr. Any employee investing in an employee 401(k) plan or other ERISA pension plan (that is, protected under ERISA provisions) does so with the hope that prudent investments and management will yield the necessary funds for a comfortable retirement. Beyond that hope is the expectation, regardless of what the market does, that the plan will be managed prudently -- with the confidence that if it is not, then ERISA benefits under the 1974 ERISA Act will prevail. NIAGARA FALLS: School District Faces Class Suit Over Seneca Taxes ----------------------------------------------------------------- Niagara Falls Reporter reports a class action lawsuit, expected to be filed as early as this week against the city, the Niagara Falls School District and the county, charges that uncollected taxes on non-sovereign land belonging to the Seneca Gaming Corp. has had the effect of keeping taxes for other county property owners artificially high almost since the casino opened in 2002. "This will affect every property owner in Niagara County," said Niagara Falls attorney John Bartolomei, who will be filing the suit. At issue are the tracts of land adjacent to the Seneca Niagara Casino, which is actually owned by the Seneca Nation of Indians rather than the gaming corporation. "Land owned by the Seneca Nation is sovereign and therefore not taxable," Mr. Bartolomei said. "But land owned by the gaming corporation, like the Hickory Stick Golf Course in Lewiston, should be taxed like any other commercial property." Niagara Falls School Board member Johnny Destino concurs with Mr. Bartolomei's assessment. More than a month ago, he wrote a letter to the editor of the Niagara Gazette concerning the matter, a letter the Gazette has thus far refused to print. "Over the past four years, the city has forgone collecting millions in county, city and school taxes by leaving these valuable commercial properties off the tax rolls," Mr. Destino wrote. "Each and every one of us has therefore been subsidizing these properties in the form of higher taxes, and it is time for the city to stop behaving as if they have no recourse. It is time for our leaders to join the fight for us citizens by making sure every property owner in Niagara Falls is paying their fair share." Mr. Destino -- who has been mentioned as a possible candidate in next year's mayoral contest -- said he spoke to the city's Corporation Counsel Craig Johnson about the issue at last week's City Council meeting, and that Mr. Johnson indicated to him that the city had no interest in trying to get the Senecas to pay their fair share. Mr. Bartolomei said he first became aware of the ownership disparity after the Fallsville Splash Park property he had an interest in was seized under the state's eminent domain laws and gifted to the Senecas. At the time, the state argued that the tribe needed the land immediately so that a new hotel complex could be built. Those plans have since been put on hold. Under the compact signed between the Senecas and the state, only sovereign land owned by the Seneca Nation qualifies for tax-exempt status. "I started looking at this and I thought, this isn't right," Mr. Bartolomei said. In addition to the former water park, the property in question includes the site of the former Pizza Hut on Niagara Street, the former Holiday Inn once owned by Dino Dicenzo, a number of former private residences on Fifth Street off Rainbow Boulevard, the former Lackey Plaza and various connecting properties between the parcels. The properties belonging to the gaming corporation have an assessed value of approximately $12.5 million, and proper collection by the city, the school district and the county would have resulted in millions of dollars of additional revenue. To make matters worse, Mr. Bartolomei said, city taxation officials have been aware of the problem for some time. "As soon as I found out about this, I took it to (City Assessor) Dominic Penale," he said. "He said it was part of (the Senecas') 50 acres, and I told him it didn't matter, as it wasn't sovereign land. They've never even applied for it to be sovereign, which they're required to do under the compact." But Mr. Bartolomei's reasoned argument fell on deaf ears at City Hall, where Mayor Paul Dyster was already planning to jack up taxes for home and business owners in Niagara Falls by a whopping 4%. Mr. Destino said not collecting the taxes is simply unacceptable. "The misconception persists that the land transferred by the state's eminent domain action became part of the Seneca Nation of Indians' sovereign territory -- a designation the former convention center site and Seneca Office Building enjoy -- simply because it was within the footprint of the land agreed to in the gaming compact," he said, "but since the land in question was not transferred to the Seneca Nation of Indians, and it is not sovereign land, it cannot be exempt from taxation." Mr. Destino said the Niagara Falls situation was similar to that of Lewiston, where the Senecas' $25 million Hickory Stick Golf Course was granted PILOT status by the county's Industrial Development Agency in 2007. Under the terms of the agreement, the Senecas will pay $1 million to the Town of Lewiston, the Lewiston- Porter School District and Niagara County over a period of five years, as well as generating about $2.4 million in sales tax over the same period. Like the bulk of the property surrounding the Seneca Niagara Casino in Niagara Falls, the golf course is owned by the gaming corporation rather than by the Seneca Nation of Indians. "Why would property owned by the gaming corporation in Lewiston be taxable when property owned by them in Niagara Falls is not?" Mr. Bartolomei asked. "It just doesn't make any sense, and the compact is quite clear on this." Mr. Bartolomei also questioned why city officials would ignore the matter entirely. "They know that this is an issue, and they haven't even asked their own lawyers for an opinion on it," he said. "On top of that, they're now asking the rest of us to pay even more. I just don't understand it." Mr. Destino said he welcomes the class action suit, which may be the only way to get the bumbling Dyster administration to sit up and take notice. "Now is not the time for our city leaders to sit on the sideline and lament the worsened economic condition our city will be in if the Senecas follow through on their threat to suspend casino cash payments to the state," he said. "Rather, it is time to aggressively challenge the assumption that the land transferred to the Seneca Gaming Corp. should continue to be left off the city tax rolls." The Plaintiffs are represented by: John P. Bartolomei, Esq. LAW OFFICES OF JOHN P. BARTOLOMEI 335 Buffalo Ave. Niagara Falls, NY 14303 Telephone: (716) 282-2774 POTASH CORP: To Contest Purported Class Action Complaint -------------------------------------------------------- Alex MacDonald, writing for Dow Jones Newswires, reports Potash Corp. of Saskatchewan Inc. Wednesday said it will defend itself against a purported class action complaint in which a law firm representing owners of 100 company shares called on U.S. courts to declare the company's shareholder rights plan invalid. The complaint is aimed at starting a class action suit and was filed Oct. 6 in a U.S. district court in Illinois by Brower Piven, a firm that specializes in class action suits. The complaint alleges that Potash Corp. omitted or misrepresented material information about the company's recently adopted shareholder rights plan, analysis of BHP Billiton's Ltd. (BHP) $130-a-share unsolicited takeover offer for Potash Corp., and strategic alternatives, among other things. "The complaint seeks declaratory and injunctive relief, including an order declaring the Shareholder Rights Plan invalid and of no force and effect," Potash Corp. said in a regulatory disclosure filed Wednesday. Potash said the allegations "lack merit" and added that it intends to contest them "vigorously." Potash is the world's largest producer of potash, a key ingredient used in fertilizers, and is currently the subject of a hostile $39 billion takeover bid from mining titan BHP Billiton. The company's board of directors adopted a shareholders rights plan in August, better known as a poison pill, aimed at diluting Potash's equity in order prevent third parties such as BHP from acquiring the company without the consent of the board. Brower Piven claims the poison pill prevents Potash shareholders from freely considering BHP's or any other takeover offer. PREMIER CHEMICALS: Sued Over Magnesium Oxide Price-Fixing Scheme ---------------------------------------------------------------- Courthouse News Service reports that an antitrust class action claims Premier Chemicals, Sumitomo Corp. of America, and YAS conspired to fix the price of prime ingredients of magnesium oxide, which is used in animal feed and fertilizers, in Newark Federal Court. A copy of the Complaint in Walker, et al. v. Premier Chemicals, LLC, et al., Case No. 10-cv-_____, docketed as Doc. 9650 in Case No. 33-av-00001 on Oct. 7, 2010 (D. N.J.), is available at: http://www.courthousenews.com/2010/10/11/Antitrust.pdf The Plaintiffs are represented by: Allyn Z. Lite, Esq. Joseph J. DePalma, Esq. LITE DEPALMA GREENBERG, LLC Two Gateway Center, 12th Floor Newark, NJ 07102-5003 Telephone: 973-623-3000 E-mail: alite@litedepalma.com jdepalma@litedepalma.com - and - Steve W. Berman, Esq. Anthony D. Shapiro, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Ave., Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 E-mail: steve@hbsslaw.com tony@hbsslaw.com - and - Elizabeth A. Fegan, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1144 W. Lake St., Suite 400 Oak Park, IL 60302 Telephone: (708) 628-4960 E-mail: beth@hbsslaw.com - and - J. Barton Goplerud, Esq. HUDSON MALLANEY & SHINDLER 5015 Grand Ridge Dr., Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 E-mail: jbgoplerud@hudsonlaw.net REDLINE COMMUNICATIONS: Faces Class Action Suit in Ontario ---------------------------------------------------------- Redline Communications Group Inc. Tuesday disclosed that it has been served with a proposed class action commenced in the Ontario Superior Court on September 10, 2010 by Notice of Action, and Statement of Claim issued September 30, 2010, by Nor-Dor Developments Limited and Deborah Bozh alleging, among other things, that Redline and certain of its officers and directors misrepresented that Redline's financial statements in the years 2006 through 2009 were prepared in accordance with GAAP. Redline intends to vigorously defend these allegations. About Redline Communications Group Redline Communications (TSX: RDL) -- http://www.redlinecommunications.com/-- is a provider of specialized wireless broadband systems used to cost-effectively deploy distributed applications and services. Redline systems are used by municipalities to quickly and easily deploy or extend their public safety networks; by oil and gas companies to connect their digital oil fields; by service providers and enterprises to bring dedicated internet access to business users, and by the military to rapidly deploy secure networks. For over 10 years, Redline has been delivering wireless solutions through certified partners in the Americas; the Middle East, and Africa. ROSS STORES: Recalls 185 Iron Lover's Benches ---------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Ross Stores Inc., Pleasanton, Calif., announced a voluntary recall of about 185 Iron Lover's benches. Consumers should stop using recalled products immediately unless otherwise instructed. The bench may tip over when only one person is seated on it. This could pose a fall hazard to consumers. Ross has received two reports of the bench tipping over. No injuries have been reported. The recalled metal two-seat bench is 51 inches long with SKU number 400051794482 printed on the price tag. The bench is a bronze color. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11008.html The recalled products were manufactured in China and sold through Ross Stores nationwide between July 2010 and September 2010 for about $90. Consumers should immediately stop using these benches and return them to any Ross Store for a full refund. For additional information, contact Ross at (877) 455-7677 anytime. Consumers also can visit the Ross Stores' Web site at http://www.rossstores.com/ SIMON & SCHUSTER: Settles TCPA Class Action Suit for $10 Million ---------------------------------------------------------------- David Sims, contributing editor for TMCnet, reports according to Benjamin Stone, a lawyer of the Seattle office of law firm Cozen O'Connor, who handles Telephone Consumer Protection Act class actions nationwide, Simon & Schuster recently agreed to pay up to $10 million to settle a putative class action by consumers who allegedly received text messages promoting a new Stephen King novel. "Thus, if your company uses any type of dialing hardware or software, or uses vendors that do," Mr. Stone writes, "you should be aware of the provisions of the TCPA and strategies to prevent litigation." Mr. Stone provides a good summary of the key points of TCPA you should be aware of if you're using this technology. Some highlights from his summary: The FCC (News - Alert), which issues regulations interpreting the TCPA, has interpreted "automatic telephone dialing system" broadly. The FCC has ruled that a predictive dialer -- which, in relevant part, stores pre-programmed numbers or receives them from a database -- is an automatic telephone dialing system. Under the TCPA, a customer can sue for calls to a cell phone using an automatic telephone dialing system or artificial or pre- recorded voice and seek $500 for each violation. Although no statute or regulation defines violation, it can be argued that every call is a violation, and since dialers make such a large number of calls, the damages can be significant. If a company "willfully or knowingly violated" the law, the court can increase damages to $1,500 a violation. The safest bet is to install cell phone scrubbing software to remove cell phone numbers from dialer databases. If your company is going to call cell phones using an automatic telephone dialing system, ensure the company received "prior express consent" to make the calls. Some companies are beginning to do this at the point of sale, requesting that customers agree to receiving these calls when they buy the company's product or service. Your company is also allowed by FCC regulations to file a petition with the FCC seeking a ruling that your company's use of the equipment does not violate the TCPA. The petition is relatively simple to file, particularly considering the costs and exposure of litigation, and a favorable ruling from the FCC can shield your company from liability. SKILLED HEALTHCARE: Settles Class Action Suit for $50 Million ------------------------------------------------------------- BigNews.Biz reports in a recent nursing home class action suit, thousands of victims and their families have won a personal injury lawsuit filed against Skilled Healthcare Group. Skilled Healthcare Group is a nursing company based in Orange County who agreed to settle a massive lawsuit for $50 million. Approximately 32,000 former and present patients were represented in the class action suit, or in case of patient's death, their families as heirs. The lawsuit was initially filed last 2006 and was granted as a nursing home class action last 2008. The company has been alleged and accused for sternly understaffing their 22 nursing homes all situated in California. The plaintiffs cited the California state law that an average of 3.2 nursing hours per day of skilled nursing care per patient is required by the aforementioned law. One of the plaintiffs in the class action suit is Cindy Cool, 58. Ms. Cool complained that during her daily visit to the nursing home, she would often chance her father, who is suffering from Alzheimer, drenched in urine-soaked clothes. She further contended that it takes awhile for a staff of the nursing home to attend to them and aid in cleaning her father. Ms. Cool was one of those who provided a vital testimony before a Humboldt County jury against Skilled Healthcare Group. The litigation encompasses the year 2003 to 2009, and postulates that Skilled Healthcare Group failed to supply sufficient staffing to attend to patients at several California facilities. On July 6, the Humboldt County jury ascertained that on several occasions Skilled Healthcare Group did violate California state regulations in regards to nursing homes. Pat McGinnis, executive director and founder of the California advocates for Nursing Home Reform, admitted that the primary quandary of nursing homes in California is concerning nursing staff. Furthermore, the National Center on Elderly Abuse said that elderly abuse is rampant across the country, however, unfortunately, it remains unreported. Moreover, according to surveys approximately 2% to 10% of elderly population has encountered ill-treatment and cruelty and yet again, they continue to be unreported. After months or hearing a verdict was reached last July 6. The verdict stipulated a magnanimous amount that reached $677M. Skilled Healthcare Group settled with the complainants to settle for $50 million so as to dismiss the whooping $677 verdict, which is the largest jury verdict awarded this year. One essential reason for the settlement is the fact that the huge amount might force the company into bankruptcy and lead to closure of their nursing facilities which will be a burden to the patients and their families. The settlement money will be divided among the 32,000 complainants, attorney's fees included. UNITED LIFE: Judge Grants Preliminary Settlement to Class Suit -------------------------------------------------------------- Amelia Flood, writing for The Madison St. Clair Record, reports a 2001 Madison County class action against United Life Insurance Co. has been granted preliminary settlement for $160,000. Circuit Judge David Hylla ruled after a hearing Oct. 8. After brief questioning by Judge Hylla about the opt-out date on the settlement, the parties agreed to a Jan. 14, 2011 fairness hearing date. That hearing is set to begin at 1:00 p.m. although Judge Hylla warned it could be pushed off by a jury trial. United Life Insurance will administer the settlement while attorneys for lead plaintiff Christopher Booher will take home up to 40% of it in fees. Mr. Booher, a high school friend of Bradley Lakin, the managing partner of LakinChapman LLC in Wood River, takes home $2,500 as class representative. Mr. Booher led a class of car purchasers who claim they were sold fraudulent credit insurance. The settlement also finds former friends and current foes from LakinChapman and Freed & Weiss of Chicago agreeing to share credit for the settlement. The two law firms had filed a number of class action suits in Madison County until dissolving their partnership in 2007. The former colleagues have sparred several times over the proceeds from those suits in Madison County courtrooms. The settlement approval hearing had been pushed off at different points this year. It came as the result of mediation last year. Mr. Booher has been the lead plaintiff in at least one other Madison County class action. James Garrison represents United Life Insurance. The class action was certified by then-Madison County Circuit Judge Philip Kardis. Judge Kardis certified a nationwide suit that eventually was whittled to an Illinois-only class. Former Madison County Circuit Judge Don Weber had the case before Judge Hylla. Another defendant in the case, Four Flags Motors, was dropped from the suit. The case is Madison case number 01-L-1824. The class is represented by: Robert Schmieder II, Esq. LAKINCHAPMAN, LLC 300 Evans Avenue, P.O. Box 229 Wood River, IL 62095-0229 Telephone: 618-254-1127 - and - Paul Weiss, Esq. FREED & WEISS LLC 111 West Washington St., Suite 1331 Chicago, IL 60602 Telephone: 312-445-9124 WYNN RESORTS: Judge Allows Casino Smoking Case to Proceed --------------------------------------------------------- A federal judge in Las Vegas has ruled that Wynn Resorts, Ltd. d/b/a Wynn Las Vegas may have liability in a putative class action lawsuit -- brought on behalf of casino employees -- claiming that the casino failed to reasonably safeguard its workers from dangerous conditions caused by secondhand cigarette smoke. Wynn had sought dismissal of the lawsuit arguing that Wynn has no duty under Nevada law to protect its employees from secondhand smoke and that the Court lacked jurisdiction to decide the case. Wynn also argued that the case could not proceed on a class basis. The Court rejected these arguments, finding that it had the authority to hear the case, and that Wynn had failed to carry its burden of showing there were no set of facts upon which the employees could prevail, and that the issue of class certification would be decided later on in the case. "Worker safety is critical and well-recognized under the law. This is a tremendous decision for not only Wynn's employees, but also for workers at other casinos who for years have been unreasonably subjected to secondhand smoke," said Jay Edelson, whose law firm, Edelson McGuire LLC is pursuing the case and plans to seek class action status. "Although this was not a final decision that says 'you win' to the Plaintiffs, it has incredible importance. Wynn can't escape responsibility now by merely filing a motion to dismiss and wiping its hands clean. Wynn will now have to answer and justify its policy that requires its workers to allow patrons to blow cigarette smoke in their faces without protest and to man smoking tables for prolonged periods of time," Mr. Edelson continued. "We look forward to discovery and putting on our case." Mr. Edelson is joined in the lawsuit by Edelson McGuire attorneys Steven L. Lezell and Irina Slavina in Chicago. Steve Green, writing for Las Vegas Sun, also reports attorneys for Wynn sought dismissal of the case, saying Wynn is in compliance with the Nevada Clean Indoor Air Act, which specifically allows smoking in casinos. The Wynn attorneys also said certifying the Kastroll lawsuit as a federal class-action would be impossible under the so-called home state controversy rule, which prohibits federal courts from considering class actions that involve disputes limited to a single state. In this case, Wynn's filing last year said, 99.56% of its 12,264 employees at that time were Nevada residents. Kastroll's suit seeks to represent all former, current and future non-smoking Wynn employees. In his Sept. 23 ruling, Judge Lloyd George indicated the issues of whether the case can be certified as a class action and proceed in Nevada federal court can be dealt with later. The judge noted Wynn's position that it "cannot be made liable [to its employees] for allowing its patrons to smoke freely in a place where the law specifically says that they can." "This position, however, ignores the potentially intricate interrelationship between this statute and common law duties," Judge George wrote in his ruling. Judge George noted that under controlling case law, in order to dismiss a complaint, "it must appear to a certainty that plaintiff would not be entitled to relief under any set of facts that could be proved." Also, when considering a motion to dismiss, the court must accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff. "Construing the allegations in the light most favorable to the plaintiff, Wynn has failed to establish 'to a certainty' that Kastroll 'would not be entitled to relief under any set of facts that could be proved,'" the judge wrote. Wynn's attorneys seem prepared to mount a vigorous defense. After Judge George's ruling, attorneys for Wynn with the Las Vegas law firm Pisanelli Bice PLLC filed their first answer to the lawsuit, reiterating in the Oct. 8 filing that "plaintiff's allegations concern conduct specifically permitted under Nevada law" and "plaintiff has failed to allege a duty under Nevada law." The Wynn attorneys also said in the filing: -- "Dealers in the gaming area are not authorized to designate tables as 'smoke free.' Dealers are required to forward any patron request for a non-smoking table to a casino service team lead who may, under certain conditions, designate a table as non- smoking." -- "Wynn admits that its employees are instructed not to direct guests regarding their smoking or ashtrays or to fan their hands at a guest's tobacco smoke. However, should a guest purposefully direct smoke toward a dealer, the dealer may communicate such action to a casino service team lead who is then authorized to ask the guest to redirect their smoke." -- "Wynn admits that it requests that dealers not protest smoking by guests if they are in a smoking area of the casino. Additionally, Wynn may counsel dealers who express that the habits or actions of a guest are in any way negative to them. However, should a dealer witness or experience behavior by a guest that is counter to the policies and ethics of Wynn, such behavior should be immediately brought to the attention of a casino service team lead or casino manager who will then take appropriate action toward the guest." -- "Wynn admits that it will bring cigars or cigarettes to a guest depending on their level of play but only at that guest's request. Wynn also admits that it provides ashtrays within the gaming area and matchbooks with Wynn's logo emblazoned on the cover." The Wynn attorneys have previously complained the lawsuit appears to be part of a casino dealer organizing drive at Wynn and, if successful, could result in the "staggering remedy of an injunction requiring Wynn to redesign its operations and reconstruct its facilities." The defense attorneys also noted uncertainties about the definition of "unsafe'' levels of second-hand smoke. "Plaintiff's proposed class is described as those employees 'exposed to unsafe levels of second-hand smoke,'" the Wynn attorneys wrote in a February filing. "The question of whether Wynn's employees have been, are, or will be exposed to unsafe levels of second-hand smoke is a legal determination that cannot be made without first determining an ultimate issue in this case (i.e., whether Wynn exposes its employees to levels of second-hand smoke which are unsafe)." ZIMMER HOLDINGS: Lawyers to Review Durom Cup Hip Implant Claims --------------------------------------------------------------- The product liability attorneys working with Class Action.org are available to review claims from patients who were implanted with the Zimmer Durom Hip Cup and required corrective surgery. Some doctors reported Zimmer hip implant failure or loosening in patients, many of whom required revision surgery to correct the problem. If you or a loved one required a second surgery to fix a Zimmer hip implant, visit http://www.classaction.org/zimmer-durom- cup-hip-socket-implant.html to find out if you can recover financial compensation. In July 2008, Zimmer Holdings announced that it would suspend sales of the Durom Cup, after reports showed that the hip implant failed to bond in some patients. Zimmer claims that the hip implant itself is not defective, but rather insists that surgeons are not implanting the device correctly. However, a number of surgeons, many with extensive experience performing hip replacement procedures, found the device difficult to implant and heard patients complain of recurring pain and other symptoms following surgery. Pain upon standing, stiffness, sharp groin pain, decreased walking endurance and difficulty walking were among the symptoms reported in patients who experienced problems with the Zimmer hip implant. If you or a loved one experienced unexplained hip pain more than three months following implantation with a Zimmer Durom Hip Cup or needed a hip replacement revision surgery to correct a problem with the device, visit http://www.classaction.org/zimmer-durom- cup-hip-socket-implant.html and complete the free case evaluation form. The Zimmer hip implant lawyers working with Class Action.org are offering this case review at no cost and are available to represent patients who suffered injuries due to the Zimmer Durom Hip Cup. About Class Action.org Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.orgtoday for a no cost, no obligation case evaluation and information about your consumer rights. * U.S. Lenders to Face Class-Action Lawsuits Over Foreclosures -------------------------------------------------------------- Dan Levine, writing for Reuters, reports U.S. lenders already facing intense scrutiny from lawmakers and regulators over questionable foreclosure practices will likely face class-action lawsuits on behalf of thousands of homeowners nationwide. Bruce Simon, a class-action attorney with Pearson Simon Warshaw & Penny LLP in San Francisco, said a filing from his firm is imminent, while two other prominent firms said they were also exploring filing class-actions. So far, most of the courtroom activity over reports of shoddy documents used by lenders in foreclosure proceedings has come in the form of defenses mounted by individual homeowners, or limited class actions filed in state courts. However, a lawsuit on behalf of homeowners nationwide could seek a court order that would suspend foreclosures much more broadly, class-action lawyers said. "We are all hands on deck at the moment," said Simon of Pearson Simon Warshaw & Penny. Another firm, Lieff Cabraser Heimann & Bernstein LLP, in San Francisco, is set to decide "within the next two weeks" whether to file a lawsuit, according to Eric Fastiff, a partner there. He said the firm, which is on the steering committee for BP Plc (BP.L) oil spill litigation and also plays a leading role in lawsuits against Toyota Motor Corp (7203.T) over acceleration problems, currently has five attorneys and two paralegals assigned to the foreclosure issue. "The absence of government enforcement demands, as always, the need for private enforcement of the laws," Mr. Fastiff said. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2010. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *