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C L A S S A C T I O N R E P O R T E R
Thursday, November 25, 2010, Vol. 12, No. 233
Headlines
AES CORP: Plaintiffs Seek Reinstatement of Suit Dismissal Appeal
AES CORP: Sul Unit Still Discussing With CEEE on Remediation
AES CORP: Appeal on Dismissal of Suit Against AES Sul Is Pending
AT&T MOBILITY: Class Action Victory May Prevent Consumer Redress
AUTOMATIC DATA: Faces Suit on Unlawful Handling of Calls
BASSETT FURNITURE: Recalls 90,000 Bassettbaby Drop-Side Cribs
CARRIAGE SERVICES: Still Faces Leathermon Class Action Suit
CHEESECAKE FACTORY: Awaits Court Approval of Suit Settlement
CHEESECAKE FACTORY: Continues to Defend "Reed" Suit in Calif.
COMPUCREDIT CORP: Still Faces "Knox" Suit in North Carolina
CONSTELLATION ENERGY: Maryland Court Dismisses Consolidated Suit
CONSTELLATION ENERGY: Maryland Court Dismisses ERISA Suit
CROSS COUNTRY: Obtains Court Approval of MedStaff Suit Settlement
CYBERSOURCE CORP: Jan. 14 Class Action Settlement Hearing Set
DIRECTV: Liberty Media Class Suit in Delaware Still Pending
DIRECTV: Continues to Defend Against Early Cancellation Fee Suits
ENRON CORP: 5th Cir. Affirms Dismissal of Brown v. Bilek Case
EQUITABLE PRODUCTION: Law Firm Won't Appeal Fee Cut
EQUITY LIFESTYLE: Class Certification Hearing Set for Feb. 15
EQUITY LIFESTYLE: Awaits Ruling Following Plaintiff's Death
FIDELITY NATIONAL: Appeal Period in "Fresco" Class Suit Expires
FIDELITY NATIONAL: FCRA Case Against eFunds Unit Still Pending
KATADYN NORTH AMERICA: Recalls 7,400 Camping Stoves and Equipment
KELLOGG COMPANY: Settles Class Action for $2.75 Million
KKR FINANCIAL: Court Dismisses Charter Township Class Suit
MATRIXX INITIATIVES: Siracusano Class Action Suit Still Pending
MEDIVATION INC: Faces Consolidated Securities Suit in California
MF GLOBAL: Faces Amended Class Action Complaint in New York
MIRANT CORP: Memorandum of Understanding to Settle Suit Reached
NATIONAL UNION: Sued for Deducting Mandatory Union Dues
NORTHWESTERN MUTUAL: Faces Class Action Lawsuit Over Annuities
NVE INC: Accused in New Jersey Suit of Deceptive Advertising
OCWEN FINANCIAL: Still Finalizing MDL Settlement
PHILIP MORRIS: Still Faces Class Action Suits in Brazil
PHILIP MORRIS: Still Faces Class Action Suits in Canada
PHILIP MORRIS: Still Faces Class Action Suits in Israel
PHILIP MORRIS: Discovery in Kansas Antitrust Class Suit Ongoing
PHILIP MORRIS: Class Action Suit in Bulgaria Still Pending
PHILIP MORRIS: Breach of Contract Action in Canada Still Pending
PRUDENTIAL FINANCIAL: Continues to Defend Against "Garcia" Suit
PRUDENTIAL FINANCIAL: Appeal Period in "Garcia" Suit in NJ Expires
PRUDENTIAL FINANCIAL: Seeks Dismissal of "Lucey" Suit in Mass.
PRUDENTIAL FINANCIAL: Expects Refiling of "Phillips" Suit
PRUDENTIAL FINANCIAL: Defends Against "Huffman" ERISA Suit
PRUDENTIAL FINANCIAL: Continues to Defend "Schultz" Suit in Ill.
PRUDENTIAL FINANCIAL: Obtains Final Judgment Dismissing Claims
PRUDENTIAL FINANCIAL: Settles Mutual Fund Investment Litigation
PRUDENTIAL FINANCIAL: Motion to Dismiss Consolidated Suit Pending
PRUDENTIAL FINANCIAL: Securities Underwriting Cases Still Ongoing
PRUDENTIAL FINANCIAL: Federal Claims Dismissed in NJ Suit
SHOPPERS DRUG: Faces Class Action Lawsuit by Owner-Operators
SIRIUS XM: Continues to Defend NY Copyright Infringement Suits
SOUTHERN COPPER: Consolidated Class Suit Still Pending in Delaware
TALECRIS: Inks Memorandum of Understanding to Settle Delaware Suit
TECUMSEH PRODUCTS: Still Faces Class Action Suit in Quebec
UNITED STATES: World Trade Center Class Settlement Reached
UNIVERSITY OF MIAMI: Faces Discrimination Class Action Lawsuit
US AIRWAYS: Sued in Calif. for Failing to Refund Baggage Fees
UNITED HEALTHCARE: Suit Complains About Subrogation Agreement
UNITED ONLINE: Appeal of IPO Class Action Settlement Still Pending
UNIVERSITY OF HAWAII: Faces Class Action Over Security Breaches
VERIZON COMMUNICATIONS: Class Action Remanded to Federal Court
VISA INC: Faces Class Action Over Deceptive Practices
VOS SPORTS: Recalls 11,700 Hooded Jackets and Sweatshirts
WATERS CORP: Plaintiff's Appeal on Suit Dismissal Still Pending
WILLIS GROUP: Court to Rule on Remanded RICO Claim in 2011
WILLIS GROUP: Gender Discrimination Class Action Remains Pending
WILLIS GROUP: Still Facing Lawsuits Over Standford Collapse
*********
AES CORP: Plaintiffs Seek Reinstatement of Suit Dismissal Appeal
----------------------------------------------------------------
Plaintiffs in a class action complaint relating to greenhouse gas
emissions are asking the U.S. Supreme Court to direct the Fifth
Circuit to reinstate their appeal, according to AES Corporation's
November 4, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
In April 2006, a putative class action complaint was filed in the
U.S. District Court for the Southern District of Mississippi on
behalf of certain individual plaintiffs and all residents and
property owners in the State of Mississippi who allegedly suffered
harm as a result of Hurricane Katrina, and against the company and
numerous unrelated companies, whose alleged greenhouse gas
emissions allegedly increased the destructive capacity of
Hurricane Katrina.
The plaintiffs assert unjust enrichment, civil conspiracy, aiding
and abetting, public and private nuisance, trespass, negligence,
and fraudulent misrepresentation and concealment claims against
the defendants.
The plaintiffs seek damages relating to loss of property, loss of
business, clean-up costs, personal injuries and death, but do not
quantify their alleged damages.
In Aug. 2007, the District Court dismissed the case.
The plaintiffs subsequently appealed to the U.S. Court of Appeals
for the Fifth Circuit, which heard oral arguments in November
2008.
In Oct. 2009, the Fifth Circuit affirmed the District Court's
dismissal of the plaintiffs' unjust enrichment, fraudulent
misrepresentation, and civil conspiracy claims.
However, the Fifth Circuit reversed the District Court's dismissal
of the plaintiffs' public and private nuisance, trespass, and
negligence claims, and remanded those claims to the District Court
for further proceedings.
In Feb. 2010, the Fifth Circuit granted the petitions for en banc
rehearing filed by the Company and other defendants, and thereby
vacated its October 2009 decision. In May 2010, the Fifth Circuit
dismissed the appeal on the ground that it had lost its quorum for
en banc review.
In Aug. 2010, the plaintiffs filed a petition for a writ of
mandamus in the U.S. Supreme Court, requesting the Supreme Court
to direct the Fifth Circuit to reinstate the appeal and return it
to the panel that issued the October 2009 decision.
The Company believes it has meritorious defenses to the claims
asserted against it and will defend itself vigorously in these
proceedings; however, there can be no assurances that it will be
successful in its efforts.
AES CORP: Sul Unit Still Discussing With CEEE on Remediation
------------------------------------------------------------
Discussions between AES Sul and Companhia Estadual de Energia
Eletrica are ongoing in relation to certain contaminants found in
a factory operated by AES Sul's subsidiary that was previously
operated by CEEE, according to AES Corporation's November 4, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
AES Florestal, Ltd., had been operating a pole factory and had
other assets, including a wooded area known as "Horto Renner," in
the State of Rio Grande do Sul, Brazil. Florestal had been under
the control of AES Sul since October 1997, when Sul was created
pursuant to a privatization by the Government of the State of Rio
Grande do Sul.
After it came under the control of Sul, Florestal performed an
environmental audit of the entire operational cycle at the pole
factory. The audit discovered 200 barrels of solid creosote waste
and other contaminants at the pole factory. The audit concluded
that the prior operator of the pole factory, Companhia Estadual de
Energia Eletrica, had been using those contaminants to treat the
poles that were manufactured at the factory.
Sul and Florestal subsequently took the initiative of
communicating with Brazilian authorities, as well as CEEE, about
the adoption of containment and remediation measures. The Public
Attorney's Office has initiated a civil inquiry (Civil Inquiry n.
24/05) to investigate potential civil liability and has requested
that the police station of Triunfo institute a police
investigation (IP number 1041/05) to investigate potential
criminal liability regarding the contamination at the pole
factory.
The parties filed defenses in response to the civil inquiry. The
Public Attorney's Office then requested an injunction which the
judge rejected on September 26, 2008. The Public Attorney's
office has a right to appeal the decision.
The environmental agency ("FEPAM") has also started a procedure
(Procedure n. 088200567/059) to analyze the measures that shall be
taken to contain and remediate the contamination. Also, in March
2000, Sul filed suit against CEEE in the 2nd Court of Public
Treasure of Porto Alegre seeking to register in Sul's name the
Property that it acquired through the privatization but that
remained registered in CEEE's name.
During those proceedings, AES subsequently waived its claim to re-
register the Property and asserted a claim to recover the amounts
paid for the Property. That claim is pending.
In Nov. 2005, the 7th Court of Public Treasure of Porto Alegre
ruled that the Property must be returned to CEEE. CEEE has had
sole possession of Horto Renner since Sept. 2006 and of the rest
of the Property since April 2006.
In Feb. 2008, Sul and CEEE signed a "Technical Cooperation
Protocol" pursuant to which they requested a new deadline from
FEPAM in order to present a proposal. In March 2008, the State
Prosecution office filed a Public Class Action against AES
Florestal, AES Sul and CEEE, requiring an injunction for the
removal of the alleged sources of contamination and the payment of
an indemnity in the amount of R$6 million ($4 million).
The injunction was rejected and the case is in the evidentiary
stage awaiting the judge's determination concerning the production
of expert evidence. The proposal was delivered on April 8, 2008.
FEPAM responded by indicating that the parties should undertake
the first step of the proposal which would be to retain a
contractor.
In its response, Sul indicated that such step should be undertaken
by CEEE as the relevant environmental events resulted from CEEE's
operations. It is estimated that remediation could cost
approximately R$14.7 million ($9 million). Discussions between
Sul and CEEE are ongoing.
AES CORP: Appeal on Dismissal of Suit Against AES Sul Is Pending
----------------------------------------------------------------
The Public Defender's Office of the State of Rio Grande do Sul's
appeal on the dismissal of its class action against AES Sul, which
alleges that AES Sul illegally passed PIS and COFINS taxes to
consumers, remains pending, according to AES Corporation's
November 4, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
AES Sul is owned and operated by AES and distributes electricity
to more than one million customers in the southern state of Rio
Grande do Sul.
In September 2009, the Public Defender's Office of the State of
Rio Grande do Sul filed a class action against AES Sul in
Brazilian state court claiming that AES Sul has been illegally
passing PIS and COFINS taxes (taxes based on AES Sul's income) to
consumers.
According to ANEEL's Order No. 93/05, the federal laws of Brazil,
and the Brazilian Constitution, energy companies such as AES Sul
are entitled to highlight PIS and COFINS taxes in power bills to
final consumers, as the cost of those taxes is included in the
energy tariffs that are applicable to final consumers.
In September 2009, the Public Defender's Office of the State of
Rio Grande do Sul filed a class action against AES Sul in the 16th
District Court of Porto Alegre, Rio Grande do Sul, claiming that
AES Sul has been illegally passing PIS and COFINS taxes (taxes
based on AES Sul's income) to consumers.
Before AES Sul had been served with the action, the District Court
dismissed the lawsuit in October 2009 on the ground that AES Sul
had been properly highlighting PIS and COFINS taxes in consumer
bills in accordance with Brazilian law.
In April 2010, the PDO appealed to the Appellate Court of the
State of Rio Grande do Sul.
If the dismissal is reversed and AES Sul does not prevail in the
lawsuit and is ordered to cease recovering PIS and COFINS taxes
pursuant to its energy tariff, its potential prospective losses
could be approximately R$9.6 million ($6 million) per month, as
estimated by AES Sul. In addition, if AES Sul is ordered to
reimburse consumers, its potential retrospective liability could
be approximately R$1.2 billion ($705 million), as estimated by AES
Sul.
AES Sul believes it has meritorious defenses to the claims
asserted against it and will defend itself vigorously in these
proceedings if it is served with the action. Furthermore, if AES
Sul does not prevail in the litigation it will seek to adjust its
energy tariff to compensate it for its losses, but there can be no
assurances that it would be successful in obtaining an adjusted
energy tariff.
AT&T MOBILITY: Class Action Victory May Prevent Consumer Redress
----------------------------------------------------------------
Jorgen Wouters, writing for Consumer Ally, reports a case before
the United States Supreme Court could allow corporations to use
"fine print" to avoid class-action lawsuits, say consumer advocacy
groups Public Citizen and the Consumer Federation of America.
The case, AT&T Mobility v. Concepcion, concerns two California
residents who argue AT&T defrauded millions of customers by
deceptively advertising phones as "free" and then tacking on an
undisclosed $30 charge.
AT&T claims that a binding, mandatory arbitration clause in its
contract forbids the class-action case and that a California
ruling should be dismissed since it's blocked by a federal law.
The use of mandatory arbitration clauses and bans on class-action
lawsuits has become common in consumer agreements for products and
services such as credit cards, cable and Internet providers, bank
accounts and home-contracting services, the Consumer Federation of
America says.
Were AT&T to prevail, the CFA says, it could establish a precedent
allowing businesses to use binding arbitration clauses to bar
consumers from banding together to pursue class-action suits.
"A ruling by the Supreme Court in AT&T's favor would have dire
consequences for the rights of consumers to obtain redress,"
Rachel Weintraub, CFA's Director of Product Safety and Senior
Counsel, said in a statement. "Without access to class actions,
consumers will be boxed into mandatory arbitration proceedings,
which are held by arbiters often handpicked by the corporation and
most often side with corporations."
Public Citizen, whose attorneys are lead counsel for the
Concepcions, says an AT&T victory would also prevent redress of
discrimination, fraud or other violations of the law, with broad
implications for the enforcement of both civil rights and consumer
protections.
"When a large number of consumers have claims for small amounts,
it is not feasible to pursue the claims without a class action.
Concepcion is exactly that kind of case. The Concepcions allege
that AT&T illegally charged them $30.11," Public Citizen said in a
media advisory.
"Multiplied by the number of AT&T's California customers alone,
the allegations implicate ill-gotten gains in the millions of
dollars. But if consumers can litigate the claims only one by
one, no one will do so, and AT&T will keep the proceeds of its
illegal activity," the group added.
Amicus briefs supporting the Concepcions have been filed by a
number of legal and civil rights organizations and states
including Illinois, Maryland, Minnesota, Montana, New Mexico,
Tennessee and Vermont. Amicus briefs supporting AT&T have been
filed by various business groups, companies DirectTV and Dell, and
the states of South Carolina and Utah.
Attorneys for the Concepcions and AT&T made their oral arguments
before the Supreme Court on Nov. 9. According to a roundup of
day-after coverage on the Public Citizen Consumer Law & Policy
blog, court watchers say the Concepcions have a chance to win.
A decision is expected anytime through June 2011.
AUTOMATIC DATA: Faces Suit on Unlawful Handling of Calls
--------------------------------------------------------
Automatic Data Processing, Inc., is facing a purported class
action lawsuit filed in California, according to the company's
November 4, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
In September 2010, a purported class action lawsuit was filed
against the Company in the Superior Court of the State of
California, County of Los Angeles. The complaint alleges that the
Company unlawfully handled certain client calls and seeks
statutory damages.
The Company intends to defend this matter vigorously and to seek
an early dismissal of the claims. Moreover, the services at issue
were performed by an independent third party vendor, and the
Company believes that it has the contractual right to full
indemnification from this vendor for any potential losses it might
incur with respect to the matter.
While it is too early to determine the potential for exposure to
the claims asserted by the class action, the Company does not
believe the claims, if adversely determined, would ultimately have
a material adverse effect on the Company in light of the
indemnification from the independent third party vendor.
BASSETT FURNITURE: Recalls 90,000 Bassettbaby Drop-Side Cribs
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Bassett Furniture Industries, Inc., of Bassett, Va., announced a
voluntary recall of about 90,000 Bassettbaby drop-side cribs with
external plastic hardware. Consumers should stop using recalled
products immediately unless otherwise instructed.
The cribs' drop-side rail can malfunction, detach or otherwise
fail, causing part of the drop side to detach from the crib. When
a drop-side rail partially detaches, it creates a space between
the drop-side and the crib mattress. An infant or toddler's body
can become entrapped in the space, which can lead to strangulation
and/or suffocation. A child also can fall out of the crib. Drop-
side incidents also can occur due to incorrect assembly and age-
related wear and tear.
The firm and CPSC are aware of 18 reported incidents in which
drop-sides malfunctioned or detached from the crib. No injuries
were reported. In one of the incidents a child became entrapped
between the mattress and the drop-side. In three of the incidents
children fell out of the cribs. The firm also has received 154
reports of drop-side hardware breaking during shipment, assembly
or use.
The recalled cribs are wood with a metal mattress support and have
a drop side with external plastic hardware. The cribs were sold
in a variety of finishes. A label is attached to the footboard or
headboard with the names "Bassettbaby" or "Bassett Furniture
Industries, Inc." as well as the model number, production date and
other information. On some older models the manufacturer's name
appears on a separate label. Pictures of the recalled products
are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11048.html
The recalled products were manufactured in China, Croatia,
Slovenia, Taiwan and Vietnam and sold through children's product
stores, and other retailers nationwide and on-line from January
2000 through August 2010 for between about $200 and $500.
Consumers should immediately stop using the recalled drop-side
cribs and contact Bassettbaby for a free kit that will immobilize
the drop side. In the meantime, parents are urged to find an
alternate, safe sleeping environment for the child, such as a
bassinet, play yard or toddler bed depending on the child's age.
For additional information, contact Bassettbaby at (800) 308-7485
between 10:00 a.m. and 6:00 p.m., Eastern Time, Monday through
Friday, or visit the firm's Web site at
http://www.bassettbaby.com/
CARRIAGE SERVICES: Still Faces Leathermon Class Action Suit
-----------------------------------------------------------
Carriage Services, Inc., continues to defend itself from a class
action lawsuit styled Leathermon, et al., v. Grandview Memorial
Gardens Inc., et al., according to the company's November 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
On August 17, 2007, five plaintiffs filed a putative class action
against the current and past owners of Grandview Cemetery in
Madison, Indiana -- including the Carriage subsidiaries that owned
the cemetery from January 1997 until February 2001 -- on behalf of
all individuals who purchased cemetery and burial goods and
services at Grandview Cemetery. Plaintiffs claim that the
cemetery owners performed burials negligently, breached
Plaintiffs' contracts, and made misrepresentations regarding the
cemetery. The Plaintiffs also allege that the claims occurred
prior, during and after the Company owned the cemetery.
On October 15, 2007, the case was removed from Jefferson County
Circuit Court, Indiana to the Southern District of Indiana. On
April 24, 2009, shortly before Defendants had been scheduled to
file their briefs in opposition to Plaintiffs' motion for class
certification, Plaintiffs moved to amend their complaint to add
new class representatives and claims, while also seeking to
abandon other claims. The Company, as well as several other
Defendants, opposed Plaintiffs' motion to amend their complaint
and add parties.
In April 2009, two Defendants moved to disqualify Plaintiffs'
counsel from further representing Plaintiffs in this action. On
March 31, 2010, the Court granted the Defendants' motion to
disqualify Plaintiffs' counsel. In that order, the Court gave
Plaintiffs 60 days within which to retain new counsel. In
addition, all discovery has been stayed and all pending motions
including Plaintiffs' motion for leave to file an amended
complaint and Plaintiffs' motion for class certification were
dismissed without prejudice to re-file with leave of Court upon
retention of new counsel.
On May 6, 2010, Plaintiffs filed a petition for writ of mandamus
with the Seventh Circuit Court of Appeals seeking relief from the
trial court's order of disqualification of counsel. On May 19,
2010, the Defendants responded to the petition of mandamus.
On July 8, 2010, the Seventh Circuit denied Plaintiffs' petition
for writ of mandamus. Thus, pursuant to the trial court's order,
the Plaintiffs were given 60 days from July 8, 2010, in which to
retain new counsel to prosecute this action on their behalf.
Plaintiffs have now retained new counsel and the trial court has
provided the newly retained Plaintiffs' counsel 90 days to review
the case and advise the Court with respect to whether or not
Plaintiffs will seek leave to amend their complaint to add or
change the allegations as are currently stated therein and whether
or not they will seek leave to amend the proposed class
representatives for class certification. In addition, the trial
court has ordered that discovery in the matter shall proceed
simultaneously with Plaintiffs' counsel's review of the case.
Carriage intends to defend this action vigorously. Because the
lawsuit is in its preliminary stages, Carriage is unable to
evaluate the likelihood of an unfavorable outcome to the Company
or to estimate the amount or range of any potential loss, if any,
at this time.
CHEESECAKE FACTORY: Awaits Court Approval of Suit Settlement
------------------------------------------------------------
The Cheesecake Factory Incorporated is awaiting court approval of
its conditional settlement with plaintiffs in a class action filed
in California for alleged wage and hour laws violations, according
to the company's November 4, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 28,
2010.
On August 5, 2009, two former hourly restaurant employees in the
State of California filed a class action lawsuit in the Los
Angeles County Superior Court (Luque v. The Cheesecake Factory
Restaurants, Inc.; Case No. BC415640) against the company alleging
violations of California's wage and hour laws with respect to
alleged failure to pay proper vacation wages at termination,
failure to furnish wage statements, and violations of the
California Business and Professions Code, among other claims.
This lawsuit seeks unspecified amounts of penalties and other
monetary payments on behalf of the respective plaintiffs and other
purported class members. The plaintiffs also seek attorneys'
fees.
The plaintiffs' deadline for filing their motion for class
certification was June 11, 2010, and they failed to timely file.
On Oct. 12, 2010, the parties conditionally settled Case No.
BC415640 for a nominal amount. The final settlement agreement is
subject to court approval.
CHEESECAKE FACTORY: Continues to Defend "Reed" Suit in Calif.
-------------------------------------------------------------
The Cheesecake Factory Incorporated continues to defend itself
against a class action lawsuit over claims of California Labor
Code violations, according to the company's November 4, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 28, 2010.
On May 10, 2010, three current hourly restaurant employees in the
State of California filed a class action lawsuit in the California
Superior Court, Placer County, against the company alleging
violations of the California Labor Code by requiring employees to
purchase uniforms and other work tools to perform their jobs,
among other claims.
The lawsuit is entitled Reed v. The Cheesecake Factory
Restaurants, Inc., et al; Case No. S CV27073.
The lawsuit seeks unspecified amounts of penalties and other
monetary payments on behalf of the plaintiffs and other purported
class members. The plaintiffs also seek attorneys' fees.
The company intends to vigorously defend this action. Based on
the current status of this matter, the company has not reserved
for any potential future payments.
COMPUCREDIT CORP: Still Faces "Knox" Suit in North Carolina
-----------------------------------------------------------
CompuCredit Corporation continues to defend itself from a class
action lawsuit styled Knox, et al., vs. First Southern Cash
Advance, et al., in North Carolina, according to the company's
November 5, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
CompuCredit Corporation and five other subsidiaries are defendants
in a purported class action lawsuit entitled Knox, et al., vs.
First Southern Cash Advance, et al., No. 5 CV 0445, filed in the
Superior Court of New Hanover County, North Carolina, on Feb. 8,
2005. The plaintiffs allege that in conducting a so-called
"payday lending" business, certain of the company's Retail Micro-
Loans segment subsidiaries violated various laws governing
consumer finance, lending, check cashing, trade practices and loan
brokering. The plaintiffs further allege that CompuCredit
Corporation is the alter ego of the company's subsidiaries and is
liable for their actions. The plaintiffs are seeking damages of
up to $75,000 per class member, and attorney's fees.
CONSTELLATION ENERGY: Maryland Court Dismisses Consolidated Suit
----------------------------------------------------------------
The U.S. District Court of Maryland granted a motion to dismiss a
consolidated amended complaint against Constellation Energy Group
Inc., according to the company's November 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
Three federal securities class action lawsuits have been filed in
the United States District Courts for the Southern District of New
York and the District of Maryland between September 2008 and
November 2008. The cases were filed on behalf of a proposed class
of persons who acquired publicly traded securities, including the
Series A Junior Subordinated Debentures (Debentures), of
Constellation Energy between January 30, 2008 and September 16,
2008, and who acquired Debentures in an offering completed in June
2008. The securities class actions generally allege that
Constellation Energy, a number of its present or former officers
or directors, and the underwriters violated the securities laws by
issuing a false and misleading registration statement and
prospectus in connection with Constellation Energy's June 27, 2008
offering of Debentures. The securities class actions also allege
that Constellation Energy issued false or misleading statements or
was aware of material undisclosed information which contradicted
public statements including in connection with its announcements
of financial results for 2007, the fourth quarter of 2007, the
first quarter of 2008 and the second quarter of 2008 and the
filing of its first quarter 2008 Form 10-Q. The securities class
actions seek, among other things, certification of the cases as
class actions, compensatory damages, reasonable costs and
expenses, including counsel fees, and rescission damages.
The Southern District of New York granted the defendants' motion
to transfer the two securities class actions filed there to the
District of Maryland, and the actions have since been transferred
for coordination with the securities class action filed there.
On June 18, 2009, the court appointed a lead plaintiff, who filed
a consolidated amended complaint on September 17, 2009. On
November 17, 2009, the defendants moved to dismiss the
consolidated amended complaint in its entirety.
On August 13, 2010, the District Court of Maryland issued a ruling
on the motion to dismiss, holding that plaintiffs failed to state
a claim with respect to the claims of the common shareholders
under the Securities Act of 1934 and restricting the suit to those
persons who purchased debentures in the June 2008 offering.
CONSTELLATION ENERGY: Maryland Court Dismisses ERISA Suit
---------------------------------------------------------
The U.S. District Court of Maryland granted a motion to dismiss a
consolidated ERISA class action complaint against Constellation
Energy Group Inc., according to the company's November 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
In the fall of 2008, multiple class action lawsuits were filed in
the United States District Courts for the District of Maryland and
the Southern District of New York against Constellation Energy and
others in their roles as fiduciaries of the Constellation Energy
Employee Savings Plan. The actions, which have been consolidated
into one action in Maryland, allege that the defendants, in
violation of various sections of ERISA, breached their fiduciary
duties to prudently and loyally manage Constellation Energy
Savings Plan's assets by designating Constellation Energy common
stock as an investment, by failing to properly provide accurate
information about the investment, by failing to avoid conflicts of
interest, by failing to properly monitor the investment and by
failing to properly monitor other fiduciaries. The plaintiffs
seek to compel the defendants to reimburse the plaintiffs and the
Constellation Energy Savings Plan for all losses resulting from
the defendants' breaches of fiduciary duty, to impose a
constructive trust on any unjust enrichment, to award actual
damages with pre- and post-judgment interest, to award appropriate
equitable relief including injunction and restitution and to award
costs and expenses, including attorneys' fees.
On October 2, 2009, the defendants moved to dismiss the
consolidated complaint in its entirety. On August 13, 2010, the
District Court of Maryland granted the motion to dismiss the
plaintiffs' ERISA complaint, and the time for plaintiffs to file
an appeal of the District Court's ruling has expired, thereby
concluding this matter.
CROSS COUNTRY: Obtains Court Approval of MedStaff Suit Settlement
-----------------------------------------------------------------
Cross Country Healthcare, Inc., has obtained preliminary court
approval of its settlement of a class action suit filed against
its subsidiary in California, according to November 5, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
On February 18, 2005, the Company's MedStaff subsidiary became the
subject of a purported class action lawsuit captioned Maureen
Petray and Carina Higareda v. MedStaff, Inc., filed in the
Superior Court of California in Riverside County.
The lawsuit relates to only MedStaff corporate employees working
in California.
The lawsuit alleges, among other things, violations of certain
sections of the California Labor Code, the California Business and
Professions Code, and recovery of unpaid wages and penalties.
MedStaff currently has less than 50 corporate employees in
California.
The Plaintiffs, Maureen Petray and Carina Higareda, purport to sue
on behalf of themselves and all others similarly situated, and
allege that MedStaff failed, under California law, to provide meal
periods and rest breaks and pay for those missed meal periods and
rest breaks; failed to compensate the employees for all hours
worked; failed to compensate the employees for working overtime;
failed to keep appropriate records to keep track of time worked;
failed to pay Plaintiffs and their purported class as required by
law.
Plaintiffs seek, among other things, an order enjoining MedStaff
from engaging in the practices challenged in the complaint and for
full restitution of all monies, for interest, for certain
penalties provided for by the California Labor Code and for
attorneys' fees and costs.
On February 5, 2007, the court granted class certification.
On October 16, 2008, MedStaff filed a Motion to Decertify the
class which was denied on December 19, 2008.
Trial was scheduled to occur in the second quarter of 2010;
however, in December 2009, the Company reached an agreement in
principle to settle this matter. As a result, the Company accrued
a pre-tax charge of $345,000 (approximately $209,000 after taxes)
related to this lawsuit.
In October 2010, the court granted preliminary approval of the
settlement.
CYBERSOURCE CORP: Jan. 14 Class Action Settlement Hearing Set
-------------------------------------------------------------
The following statement is being issued by The Weiser Law Firm
P.C. and Spector Roseman Kodroff & Willis, P.C. pursuant to an
order of the Superior Court of the State of California, County of
Santa Clara:
TO:
ALL PERSONS OR ENTITIES WHO HELD, INCLUDING EITHER OF RECORD OR
BENEFICIALLY, SHARES OF THE COMMON STOCK OF CYBERSOURCE
CORPORATION ("CYBERSOURCE") AT ANY TIME FROM APRIL 21, 2010,
THROUGH AND INCLUDING JULY 21, 2010, AND THEIR SUCCESSORS-IN-
INTEREST, ASSIGNS AND TRANSFEREES, OTHER THAN DEFENDANTS IN THIS
CONSOLIDATED ACTION AND THEIR AFFILIATES (THE "SETTLEMENT CLASS").
YOU ARE HEREBY NOTIFIED, pursuant to California Code of Civil
Procedure section 382 and an Order of the Court, that a settlement
("Settlement") has been reached in the action captioned In re
CyberSource Corporation Shareholder Litigation, Lead Case. No. 1-
10 CV 170563, pending in the Superior Court for the State of
California, County of Santa Clara (the "Consolidated Action"). A
hearing will be held on January 14, 2011, at 9:00 a.m., in the
Superior Court of the State of California, for the County of Santa
Clara, 191 N. First Street, San Jose, California ("Settlement
Hearing") to: (i) determine whether the Court should certify the
Consolidated Action as a class action, without opt-out rights,
pursuant to California Code of Civil Procedure section 382 and
California Rules of Court 3.760, 3.764, and 3.765, on behalf of
the Settlement Class consisting of all persons or entities who
held, either of record or beneficially, shares of the common stock
of CyberSource at any time from April 21, 2010, through and
including July 21, 2010, and their successors-in-interest and
transferees, other than defendants in this Consolidated Action and
their affiliates; (ii) determine whether the proposed Settlement
should be approved by the Court as fair, reasonable, adequate, and
in the best interests of the plaintiffs and the Settlement Class;
(iii) determine whether plaintiffs and plaintiffs' counsel have
adequately represented the Settlement Class; (iv) consider the
application of The Weiser Law Firm, P.C. and the law firm of
Spector Roseman Kodroff & Willis, P.C., which have been appointed
co-lead counsel ("Co-Lead Counsel") for the Settlement Class, for
an award of attorneys' fees and expenses; (v) to hear and rule
upon any objections to the Settlement or to Co-Lead Counsel's
application for an award of attorneys' fees and expenses to be
paid by CyberSource or its successor(s) in interest or their
insurers; and (vi) to hear such other matters as may properly come
before the Court.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS DESCRIBED ABOVE, YOUR
RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THE CONSOLIDATED
ACTION. This is a Summary Notice only. You should also have
received a full-length printed Notice of Pendency of Class Action,
Proposed Class Action Determination, Proposed Settlement of Class
Action, Settlement Hearing and Right to Appear (the "Notice") in
the mail. If you have not already received the Notice, you may
obtain a copy by contacting:
GILARDI & CO. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
Telephone: (877) 246-8812
Fax: (415) 461-0412
If you wish to obtain additional information about the claims
asserted in the Consolidated Action and the terms of the proposed
Settlement, you may also contact Co-Lead Counsel for Plaintiffs:
Henry J. Young, Esq.
THE WEISER LAW FIRM, P.C.
121 N. Wayne Avenue, Suite 100
Wayne, PA 19087
E-mail: hjy@weiserlawfirm.com
- and -
Robert Roseman, Esq.
SPECTOR ROSEMAN KODROFF & WILLIS, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
E-mail: rroseman@srkw-law.com
If you are a member of the Settlement Class (i.e., a Settlement
Class Member), you will be bound by the order and final judgment
of the Court approving the Settlement. Any Settlement Class
Member who wishes to object to the Settlement may do so at any
time prior to, or during, the Settlement Hearing, by either
appearing at the Settlement Hearing or by submitting a written
objection to the Settlement in accordance with the procedures set
forth in the Notice.
DATED: November 10, 2010
BY ORDER OF THE COURT
SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA
DIRECTV: Liberty Media Class Suit in Delaware Still Pending
-----------------------------------------------------------
A class action complaint that stemmed from a merger between a
subsidiary of DIRECTV and Liberty Entertainment Inc. is still
pending, according to the company's November 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
A purported class action complaint was filed on February 9, 2010,
and amended on April 23, 2010, in Delaware Chancery Court against
certain past and present directors of Liberty Media Corporation
alleging, among other things, that the defendants breached their
fiduciary duties as Liberty board members in connection with the
business terms and approval process by Liberty stockholders of the
merger of Liberty Entertainment, Inc., with a subsidiary of
DIRECTV as part of the Liberty Transaction. The plaintiff
purports to represent approximately 85 former Liberty Media
Corporation stockholders (other than the defendants) that
allegedly held approximately 1.8 million Liberty Media Corporation
shares prior to the consummation of the Liberty Transaction. The
complaint alleges, among other things, that John Malone and
certain other Liberty Media Corporation stockholders received
disparate allocation of consideration in the Liberty Transaction.
The complaint seeks equitable reallocation and disgorgement of the
improper consideration received by the defendants and other
relief.
The defendants have requested indemnification and have tendered
defense of this litigation to DIRECTV pursuant to agreements
executed as part of the Liberty Transaction and DIRECTV has
elected to take control of the defense.
DIRECTV: Continues to Defend Against Early Cancellation Fee Suits
-----------------------------------------------------------------
DIRECTV continues to defend itself against putative class action
lawsuits in state and federal courts challenging the early
cancellation fees it assesses its customers, according to the
company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
In 2008, a number of plaintiffs filed putative class action
lawsuits in state and federal courts challenging the early
cancellation fees DIRECTV assesses its customers when they do not
fulfill their programming commitments. Several of these lawsuits
are pending -- some in California state court purporting to
represent statewide classes, and some in federal courts purporting
to represent nationwide classes. The lawsuits seek both monetary
and injunctive relief. While the theories of liability vary, the
lawsuits generally challenge these fees under state consumer
protection laws as both unfair and inadequately disclosed to
customers. Each of the lawsuits is at an early stage.
Where possible, DIRECTV is moving to compel these cases to
arbitration in accordance with the company's Customer Agreement,
but in states such as California where the enforceability of the
arbitration provision is limited, DIRECTV intends to defend
against these allegations in court. DIRECTV believes that the
company's early cancellation fees are adequately disclosed, and
represent reasonable estimates of the costs the company incurs
when customers cancel service before fulfilling their programming
commitments.
ENRON CORP: 5th Cir. Affirms Dismissal of Brown v. Bilek Case
-------------------------------------------------------------
The United States Court of Appeals for the Fifth Circuit affirmed
the dismissal of the case BROWN v. BILEK, No. 09-20654, which grew
out of a securities fraud class action lawsuit against Enron Corp.
Plaintiff-Appellant Michael L. Brown appealed the district court's
dismissal of his complaint with prejudice.
The Fifth Circuit concluded that the district court did not err in
dismissing Mr. Brown's complaint with prejudice.
Following the collapse of Enron in 2001, shareholders across the
nation filed securities fraud class action lawsuits, which Mr.
Brown is a member of the class. The various shareholder lawsuits
were consolidated in the United States District Court for the
Southern District of Texas as Civil Action No. H-01-3624,
captioned as In re Enron Corp. Securities Litigation, 206 F.R.D.
427 (S.D. Tex. 2002), and heard by Judge Melinda Harmon. Judge
Harmon appointed the Regents of the University of California as
lead plaintiff. In their role as lead plaintiff, the Regents
selected, and the district court approved, the California law firm
of Milberg Weiss Bershad Hynes & Lerach LLP to serve as lead
counsel for the Enron class of plaintiffs. Lead Counsel, in turn,
chose attorney Thomas E. Bilek and his law firm as one of two
Houston-based firms to serve as local counsel.
Approximately seven years into the In re Enron litigation, the
parties reached various settlements totaling approximately $7.2
billion. The district court approved Lead Counsel's requested fee
based on the contingency agreement, finding that it was a "fair
and reasonable fee." Lead Counsel allocated and distributed
approximately $16 million of the $688 million attorneys' fee award
to Mr. Bilek.
Nine months after the district court approved Lead Counsel's fee
request, Mr. Brown filed a complaint asserting claims for fraud
and breach of fiduciary duty against Mr. Bilek, The Bilek Law
Firm, L.L.P., and Hoeffner & Bilek, L.L.P. Mr. Brown filed his
complaint in Texas state court on behalf of the putative class of
persons or entities who participated in the Enron securities class
action settlement.
Mr. Bilek removed the case from Texas state court to the Southern
District of Texas and moved to dismiss Mr. Brown's case. The
district court granted Mr. Bilek's motion to dismiss. Among
others, the district court held that Mr. Brown could not represent
his purported class because it was already represented by the
Regents, pursuant to their appointment as lead plaintiff in the In
re Enron litigation. Thus, the district court held, any claims
asserted on behalf of the class should have been brought by the
Regents.
The Fifth Circuit agreed and noted that given the specific
requirements of the Private Securities Litigation Reform Act of
1995, as well as the facts of the case, Mr. Brown's allegations
must be brought, if at all, in a motion under Rule 60(b) of the
Federal Rules of Civil Procedure by the Regents in their capacity
as lead plaintiff.
After reviewing the facts of the case, the Fifth Circuit agrees
that Mr. Brown's complaint failed plead his allegations with the
particularity required by Rule 9(b).
A copy of the Fifth Circuit's opinion is available at
http://is.gd/hCHg3from Leagle.com.
EQUITABLE PRODUCTION: Law Firm Won't Appeal Fee Cut
---------------------------------------------------
Ry Rivard, writing for The Charleston Daily Mail, reports that in
an order that reduced fees for several local lawyers by hundreds
of thousands of dollars, U.S. District Court Judge Joseph Goodwin
said he is "discomforted" by large chunks of class action
settlement monies going to lawyers rather than plaintiffs.
Judge Goodwin reduced fees in a natural gas royalty dispute from
25% to 20% in a multi-million settlement. He said, in essence,
that lawyers can at times collect more money in large class action
lawsuits without actually doing more work simply because they
represent more people.
"I am often discomforted by the award of fees of this magnitude in
class action cases where the total amount of the settlement fund
is very much a product of the number of plaintiffs rather than of
the legal work performed," Judge Goodwin said in a 25-page Nov. 5
order in the case The Kay Company LLC et al v. Equitable
Production Company.
The settlement in this case ranges from $28 million to $33 million
for some 9,000 class members. The suit was a breach of contract
case brought by several landowners who alleged Equitable, also
known as EQT, underpaid royalties.
The plaintiffs' lawyers and their firms in the case would have
taken home between $6.75 million and $8.25 million before
Judge Goodwin's order. But there was one objection from a member
of the class to the 25% fee.
After Judge Goodwin's order, the total cannot exceed about $6.6
million for lawyers.
Several prominent Charleston attorneys were involved in the case
on behalf of the plaintiffs, including Marvin Masters, Michael
Carey and Scott Segal. Also involved were Barboursville attorney
Thomas Pettit and David Romano, a Clarksburg attorney.
Lawyers can appeal Judge Goodwin's order, but Mr. Segal, of The
Segal Law Firm, said there were no plans to.
Mr. Segal declined to comment on the particulars of Judge
Goodwin's order.
Class action attorneys' fees between 25% and 30% are not unusual.
Like personal injury cases, class action lawyers agree to take
cases for free in exchange for fees if they win.
Judge Goodwin cited a study that found over the past 15 years that
the average lawyer's fee has been about 22% in class action cases
with awards similar in size to what EQT agreed to pay.
There are two basic methods to use when deciding how much lawyers
can take in class action cases.
The first, known as the "lodestar" method, essentially pays
attorneys an hourly rate based on the work they put into the case,
with the possibility of adjustments based on the size of the
eventual award in the case and its complexity.
But that method can tend to give lawyers incentive to "over-
litigate" a case by drawing it out to raise their fees,
Judge Goodwin said.
The other method, which was used in the natural gas case, is to
give lawyers a percentage of the award.
But that too has its drawbacks.
Judge Goodwin said lawyers can benefit from an increase in size of
the class in a class action case rather than the work of lawyers,
known in class actions suits as "class counsel."
"It is not at all clear to me that the increased risk to class
counsel of investing time and resources to prosecute class actions
justifies the treatment of such cases as entirely analogous to
individual claims for fee award purposes," Judge Goodwin said.
The judge sought to distinguish the class action payouts from the
contingency fees lawyers ask for when they agree to take a
personal injury case.
"Increasing the number of class action plaintiffs does not
necessarily increase the amount of time class counsel spends on a
case, and the connection between the amount of work involved in a
claim and the size of the eventual award may be much less
entangled than that of an individual contingent fee case," Judge
Goodwin said.
The plaintiffs' attorneys in the EQT case spent about 4,735 hours
working on the case over the past four years. They expect to do
some 1,200 hours more in the future handling the settlement.
Excluding the 1,200 projected hours, Judge Goodwin said under the
lodestar method, the attorneys were entitled to about $1.9
million.
But Judge Goodwin said he had to balance two public policy
considerations.
The first is the "public perception that class action plaintiffs'
attorneys receive artificially high windfalls, often at the
expense of the class members."
"Attorneys are officers of the court, and their fees must be
reasonable beyond reproach and worthy of our justice system,"
Goodwin said.
The second is making sure that fees remain high enough that
lawyers will take class action cases. The lawyers are essentially
working for free based on the chance that they'll win.
"The risks of investing time and resources in a class action
cannot be discounted," Judge Goodwin said. "It is equally
important, however, to consider that fees deemed reasonable by the
bar and the judiciary appear unseemly to the general public, and
to ensure that those awards are not so large as to unjustly enrich
attorneys simply because they have represented a large number of
claimants."
EQUITY LIFESTYLE: Class Certification Hearing Set for Feb. 15
-------------------------------------------------------------
The California state court will convene a hearing on February 15,
2011, to consider a motion for class certification in connection
with a complaint against Equity LifeStyle Properties, Inc.,
according to the company's November 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
On Oct. 16, 2008, the company was served with a class action
lawsuit in California state court filed by a single named
plaintiff. The suit alleges that, at the time of the PA
Transaction, the company and other named defendants willfully
failed to pay former California employees of Privileged Access and
its affiliates who became employees of the company all of the
wages they earned during their employment with PA, including
accrued vacation time.
The suit also alleges that the company improperly "stripped" those
employees of their seniority.
The suit asserts claims for alleged violation of the California
Labor Code; alleged violation of the California Business &
Professions Code and for alleged unfair business practices;
alleged breach of contract; alleged breach of the duty of good
faith and fair dealing; and for alleged unjust enrichment.
The complaint seeks, among other relief, compensatory and
statutory damages; restitution; pre-judgment and post-judgment
interest; attorney's fees, expenses and costs; penalties; and
exemplary and punitive damages.
The complaint does not specify a dollar amount sought.
On Dec. 18, 2008, the company filed a demurrer seeking dismissal
of the complaint in its entirety without leave to amend.
On May 14, 2009, the Court granted the company's demurrer and
dismissed the complaint, in part without leave to amend and in
part with leave to amend.
On June 2, 2009, the plaintiff filed an amended complaint.
On July 6, 2009, the company filed a demurrer seeking dismissal of
the amended complaint in its entirety without leave to amend.
On Oct. 20, 2009, the Court granted the company's demurrer and
dismissed the amended complaint, in part without leave to amend
and in part with leave to amend.
On Nov. 9, 2009, the plaintiff filed a third amended complaint.
On Dec. 11, 2009, the Company filed a demurrer seeking dismissal
of the third amended complaint in its entirety without leave to
amend.
On Feb. 23, 2010, the court dismissed without leave to amend the
claim for breach of the duty of good faith and fair dealings, and
otherwise denied the Company's demurrer. Discovery is proceeding.
A hearing on the plaintiff's motion for class certification is set
for February 15, 2011. The Company will vigorously defend the
lawsuit.
EQUITY LIFESTYLE: Awaits Ruling Following Plaintiff's Death
-----------------------------------------------------------
Equity LifeStyle Properties, Inc., is awaiting a ruling on a class
action lawsuit after the plaintiff died in an unrelated accident,
according to the company's November 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
On Dec. 16, 2008, the company was served with a class action
lawsuit in Washington state court filed by a single named
plaintiff, represented by the same counsel as the plaintiff in the
California class action. The complaint asserts on behalf of a
putative class of Washington employees of PA who became employees
of the company substantially similar allegations as are alleged in
the California class action.
The company moved to dismiss the complaint.
On April 3, 2009, the court dismissed:
(1) the first cause of action, which alleged a claim under
the Washington Labor Code for failure to pay accrued
vacation time;
(2) the second cause of action, which alleged a claim under
the Washington Labor Code for unpaid wages on
termination;
(3) the third cause of action, which alleged a claim under
the Washington Labor Code for payment of wages less
than entitled; and
(4) the fourth cause of action, which alleged a claim under
the Washington Consumer Protection Act..
The court did not dismiss the fifth cause of action for breach of
contract, the sixth cause of action of the breach of the duty of
good faith and fair dealing; and the seventh cause of action for
unjust enrichment.
On May 22, 2009, the company filed a motion for summary judgment
on the causes of action not previously dismissed, which was
denied.
With leave of court, the plaintiff filed an amended complaint, the
material allegations of which the company denied in an answer
filed on Sept. 11, 2009.
On July 30, 2010, the named plaintiff died as a result of an
unrelated accident. The court has subsequently issued an order to
show cause as to why the case should not be dismissed for failure
to prosecute, the response to which on behalf of the plaintiff was
due on November 8, 2010.
The Company will vigorously defend the lawsuit.
FIDELITY NATIONAL: Appeal Period in "Fresco" Class Suit Expires
---------------------------------------------------------------
A putative class action lawsuit styled Richard Fresco, et al., v.
Automotive Directions, Inc., et al., was filed against eFunds
Corporation, a wholly-owned subsidiary of Fidelity National
Information Services, Inc., and seven other non-related parties in
the U.S. District Court for the Southern District of Florida
during the second quarter of 2003.
The complaint alleged that eFunds purchased motor vehicle records
that were used for marketing and other purposes that are not
permitted under the Federal Driver's Privacy Protection Act. The
plaintiffs sought statutory damages, plus costs, attorney's fees
and injunctive relief.
eFunds and five of the other seven defendants settled the case
with the plaintiffs. That settlement was approved by the court
over the objection of a group of Texas drivers and motor vehicle
record holders.
The Fresco plaintiffs moved to amend the court's order approving
the settlement in order to seek a greater attorneys' fee award and
to recover supplemental costs.
In the meantime, the objectors filed two class action complaints
styled Sharon Taylor, et al. v. Biometric Access Company et al.
and Sharon Taylor, et al. v. Acxiom et al. in the U.S. District
Court for the Eastern District of Texas during the first quarter
of 2007 alleging similar violations of the DPPA.
The Acxiom action was filed against the Company's ChexSystems,
Inc. subsidiary, while the Biometric suit was filed against the
Company's Certegy Check Services, Inc. subsidiary.
The judge recused himself in the Biometric action against Certegy
because he was a potential member of the class. The lawsuit was
then assigned to a new judge and Certegy filed a motion to
dismiss.
The district court granted Certegy's motion to dismiss with
prejudice in the third quarter of 2008. The Biometric plaintiffs
appealed and after several extensions, arguments on appeal were
heard on November 4, 2009. On July 14, 2010, the Fifth Circuit
Court of Appeals affirmed the district court's order of dismissal
with prejudice. On October 13, 2010, appellants filed a writ with
the U.S. Supreme Court asking the Court to hear their appeal.
In the Acxiom case, ChexSystems filed a motion to dismiss or in
the alternative, stay the action against it based on the earlier
settlement, and the court granted the motion to stay pending
resolution of the Florida case. The court dismissed the
ChexSystems lawsuit with prejudice against the remaining
defendants in the third quarter of 2008.
The Acxiom plaintiffs moved the court to amend the dismissal to
exclude defendants that were parties to the Florida settlement,
and that motion was granted. In the fourth quarter of 2008, the
court in the ChexSystems case dismissed with prejudice all claims
of the plaintiffs who were not also plaintiffs in the Florida
case, against ChexSystems and the other defendants.
The plaintiffs appealed the dismissal order, but excluded
ChexSystems and the other settling defendants from the appeal.
The Florida case was dismissed without prejudice during the fourth
quarter of 2009. After final resolution of the Florida case, the
parties in the Acxiom case stipulated to a dismissal of
ChexSystems and the other defendants from this action, and the
court issued its final order of dismissal without prejudice.
The time for appeals in the Acxiom case has now expired, according
to the Company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
FIDELITY NATIONAL: FCRA Case Against eFunds Unit Still Pending
--------------------------------------------------------------
A lawsuit filed against a subsidiary of Fidelity National
Information Services, Inc., remains pending, according to the
Company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
The lawsuit, captioned Searcy, Gladys v. eFunds Corporation, is a
nationwide putative class action that was originally filed against
eFunds Corporation and its affiliate Deposit Payment Protection
Services, Inc. in the U.S. District Court for the Northern
District of Illinois during the first quarter of 2008.
eFunds is a wholly-owned subsidiary of Fidelity National
Information Services, Inc.
The complaint seeks damages for an alleged willful violation of
the Fair Credit Reporting Act in connection with the operation of
the Shared Check Authorization Network.
Plaintiff's principal allegation is that consumers did not receive
appropriate disclosures pursuant to Section 1681g of the FCRA
because the disclosures did not include: (i) all information in
the consumer's file at the time of the request; (ii) the source of
the information in the consumer's 'file; and (iii) the names of
any persons who requested information related to the consumer's
check writing history during the prior year.
The Company answered the complaint and is vigorously defending the
matter.
Plaintiff filed a motion for class certification which was granted
with respect to two subclasses during the first quarter of 2010.
The motion was denied with respect to all other subclasses. The
Company filed a motion for reconsideration. The motion was
granted and the two subclasses were decertified.
The plaintiff also filed motions to amend her complaint to add two
additional plaintiffs to the lawsuit. The court granted the
motions. Discovery regarding the new plaintiffs is ongoing.
During the second quarter of 2010, the Company filed a motion for
summary judgment as to the original plaintiff and a motion for
sanctions against the plaintiff and her counsel based on
plaintiff's alleged false statements that were filed in support of
the motion for class certification.
In the third quarter of 2010, the court denied the motion for
summary judgment and granted in part and denied in part the motion
for sanctions. The Company filed a motion requesting the Court to
allow it to file an interlocutory appeal on the order denying the
motion for summary judgment.
KATADYN NORTH AMERICA: Recalls 7,400 Camping Stoves and Equipment
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Katadyn North America Inc. of Minneapolis, Minn., announced a
voluntary recall of about 5,300 Camping Stoves and Equipment and
2,400 in Canada. Consumers should stop using recalled products
immediately unless otherwise instructed.
Damaged fuel lines and/or O-rings may cause fuel leakage, posing a
fire hazard to consumers.
There are 70 reports of incidents involving the stove's fuel line
leaking or damage to O-rings. No injuries or fires have been
reported.
This recall involves Optimus Nova and Nova+ camping stoves and
equipment, including the stove's fuel pump and spare parts/repair
kits. The stoves are black metal, measure about 6 inches in
diameter and 3 1/2 inches high and can be used with multiple types
of fuel. Stove serial numbers QA000011 through QA007313 are
included in this recall. The serial number and "Optimus" are
printed on the side of the camping stove. Pumps and spare parts
kits also were sold separately. vPumps have a green open/close
valve. Spare parts kits model numbers include 80163051, 8520,
80176321 and 8511 and are printed on the packaging. Pictures of
the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11047.html
The recalled products were manufactured in China and sold through
specialty outdoor and sporting goods retailers in the United
States and Canada and on the Internet from January 2009 through
September 2010 for between $150 and $180. The pumps and spare
parts kits were also sold separately for between $15 and $50.
Consumers should immediately stop using the camping stove and
equipment and contact Katadyn to receive a free repair.
For additional information, call Katadyn at (800) 755-6701 between
8:00 a.m. and 5:00 p.m., Central Time, Monday through Friday.
Consumers can also register for the recall on the firm's Web site
at http://www.optimusstoves.com/usen/
KELLOGG COMPANY: Settles Class Action for $2.75 Million
-------------------------------------------------------
Shane Starling, writing for FoodNavigator-USA.com, reports the
Kellogg Company will pay consumers up to $2.75 million over
misleading kids' attention claims for its Frosted Mini-Wheats
cereals, after a federal judge reached a class action settlement.
Kellogg agreed to pay disgruntled consumers who bought the cereals
that claimed to be "clinically shown to improve children's
attentiveness by nearly 20%" between $5 and $15 each from a fund
of $2.75 million.
It also agreed to give $5.5 million to charities working to
improve nutrition among underprivileged American citizens and
cease making the attention claims for three years.
The settlement follows a similar 2009 settlement with the
increasingly claims-active Federal Trade Commission where
Michigan-based Kellogg agreed to amend the claims.
Washington DC-based legal firm, Manatt, Phelps & Phillips,
observed that although Kellogg could no longer make that specific
claim, it could make similar claims if it could back them with
appropriate data.
"However, Kellogg may make claims about the impact on
attentiveness from eating the product, as long as it limits and
qualifies its claims," the firm said in a blog.
It said statements such as, "Clinical studies have shown that kids
who eat a filling breakfast like Frosted Mini-Wheats have an 11%
better attentiveness in school than kids who skip breakfast,"
could be acceptable under the settlement if backed by appropriate
evidence.
But despite recent FTC settlements with Nestle and Iovate Health
Sciences that have highlighted the fact such substantiation must
include two randomized, clinical trials, there is no official
standard in place.
Indeed at the recent NutraIngredients weight management virtual
trade show, the FTC attorney Devin Domond affirmed that the FTC
views such substantiation matters very much on a case-by-case
basis.
Joel Rothman from the Florida office of the legal firm Arnstein &
Lehr noted no such standard was in place.
"The FTC standard of adequate and substantial scientific evidence
has always been elusive," he said.
"This settlement does not clarify the issue. However, prior
settlements between FTC and Kellogg's did," he added referring to
the FTC- Frosted Mini-Wheats settlement of April 2009, and a
settlement over unvalidated immunity claims being made for Rice
Krispies reached in March this year.
In the April 2009 Frosted Mini-Wheats settlement, the FTC stated
only that, "competent and reliable scientific evidence means test,
analyses, research, or studies that have been conducted and
evaluated in an objective manner by qualified persons and are
generally accepted in the profession to yield accurate and
reliable results."
KKR FINANCIAL: Court Dismisses Charter Township Class Suit
----------------------------------------------------------
KKR Financial Holdings LLC Monday disclosed that the United States
District Court for the Southern District of New York dismissed the
putative class action complaint filed by the Charter Township of
Clinton Police and Fire Retirement. As the Company disclosed
previously, plaintiffs in the Charter Litigation alleged the
Company's April 2007 registration statement and prospectus and the
financial statements incorporated therein contained material
omissions in violation of the Securities Act regarding the risks
and potential losses associated with the Company's real estate-
related assets, the Company's ability to finance its real estate-
related assets, and the adequacy of the Company's loss reserves
for its real estate-related assets. By order issued November 17,
2010, the Court ruled that these claims were without merit and
dismissed the Charter Litigation with prejudice. Plaintiffs have
thirty days from the entry of the judgment to a file an appeal.
Two related actions asserting derivative claims based on the same
facts operative in the Charter Litigation -- one filed in the
Superior Court of California, County of San Francisco and the
other filed in the United States District Court for the Southern
District of New York -- remain outstanding. The Company intends
to defend these actions vigorously.
About KKR Financial Holdings LLC
KKR Financial Holdings LLC is a specialty finance company with
expertise in a range of asset classes. KFN's core business
strategy is to leverage the proprietary resources of its manager
with the objective of generating both current income and capital
appreciation. KFN is externally managed by KKR Financial Advisors
LLC, a wholly-owned subsidiary of KKR Asset Management LLC, which
is a wholly-owned subsidiary of Kohlberg Kravis Roberts & Co. L.P.
KFN executes its core business strategy through majority-owned
subsidiaries. Additional information regarding KFN is available
at http://www.kkr.com/
MATRIXX INITIATIVES: Siracusano Class Action Suit Still Pending
---------------------------------------------------------------
A consolidated class action lawsuit styled Siracusano, et al., vs.
Matrixx Initiatives, Inc., et al., filed in Arizona is still
pending, according to the company's November 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
Two class action lawsuits were filed in April and May 2004 against
the Company, its previous President and Chief Executive Officer,
Carl J. Johnson, and William J. Hemelt, President and Chief
Executive Officer, alleging violations of federal securities laws.
On January 18, 2005, the cases were consolidated and the court
appointed James V. Siracusano as lead plaintiff. The amended
complaint also includes Vice President of Research and
Development, Timothy L. Clarot, as a defendant and was filed
March 4, 2005.
The consolidated case is Siracusano, et al. vs. Matrixx
Initiatives, Inc., et al., in the United States District Court,
District of Arizona, Case No. CV04-0886 PHX DKD. Among other
things, the lawsuit alleges that between October 2003 and February
2004, Matrixx made materially false and misleading statements
regarding its Zicam Cold Remedy products, including failing to
adequately disclose to the public the details of allegations that
its products caused damage to the sense of smell and of certain
product liability lawsuits pending at that time.
Matrixx filed a motion to dismiss this lawsuit and, on March 8,
2006, the Company received an Order dated December 15, 2005,
granting the motion to dismiss the case, without prejudice.
On April 3, 2006, the plaintiff appealed the Order to the United
States District Court of Appeals, Ninth Circuit and on October 28,
2009, the Ninth Circuit Court reversed the decision of the United
States District Court, District of Arizona.
On June 14, 2010, the United States Supreme Court granted
certiorari review and will hear the case during the Court's 2010-
2011 term.
MEDIVATION INC: Faces Consolidated Securities Suit in California
----------------------------------------------------------------
Medivation, Inc., is facing a consolidated securities class action
lawsuit in California, according to the company's November 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
On March 9, 2010, the first of three purported securities class
action lawsuits was commenced in the United States District Court
for the Northern District of California, naming as defendants
Medivation and certain of its officers. The lawsuits are largely
identical and allege violations of the Securities Exchanges Act of
1934 in connection with allegedly false and misleading statements
made by Medivation related to dimebon.
The plaintiffs allege among other things that the defendants
disseminated false and misleading statements about the
effectiveness of dimebon for the treatment of Alzheimer's disease,
making it impossible for stockholders to gain a realistic
understanding of the drug's progress toward FDA approval. The
plaintiffs purport to seek damages, an award of its costs and
injunctive relief on behalf of a class of stockholders who
purchased or otherwise acquired Medivation common stock between
July 17, 2008 and March 2, 2010.
On September 17, 2010, the court entered an order consolidating
the actions and setting a discovery and briefing schedule for
issues related to appointment of a lead plaintiff. Once a lead
plaintiff is appointed, the plaintiffs will have 30 days to file
their consolidated, amended complaint.
MF GLOBAL: Faces Amended Class Action Complaint in New York
-----------------------------------------------------------
MF Global Holdings Ltd. is facing an amended consolidated class
action complaint filed on behalf of traders of platinum and
palladium futures contracts, according to the company's Nov. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
On August 4, 2010, MFGI was added as a defendant to a consolidated
class action complaint filed against Moore Capital Management and
related entities in the United States District Court for the
Southern District of New York which alleged claims of manipulation
and aiding and abetting manipulation in violation of the
Commodities Exchange Act. Specifically, the complaint alleged
that, between October 25, 2007 and June 6, 2008, Moore Capital
directed MFGI, as its executing broker, to enter "large" market on
close orders (at or near the time of the close) for platinum and
palladium futures contracts, which allegedly caused artificially
inflated prices.
On August 10, 2010, MFGI was added as a defendant to a related
class action complaint filed against the Moore-related entities on
behalf of a class of plaintiffs who traded the physical platinum
and palladium commodities in the relevant time frame, which
alleges price fixing under the Sherman Act and violations of the
civil Racketeer Influenced and Corrupt Organizations Act.
On September 30, 2010, plaintiffs filed an amended consolidated
class action complaint that includes all of the allegations and
claims identified on behalf of subclasses of traders of futures
contracts of platinum and palladium and physical platinum and
palladium. Plaintiffs' claimed damages have not been quantified.
This matter is in its earliest stages and no provision for losses
has been recorded in connection with this claim.
MIRANT CORP: Memorandum of Understanding to Settle Suit Reached
---------------------------------------------------------------
Mirant Corporation entered into a memorandum of understanding to
settle a consolidated case filed against the company in Georgia,
according to the company's November 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
In April 2010, Mirant, RRI Energy and the members of the Mirant
board of directors were named defendants in four purported class
action lawsuits filed in the Superior Court of Fulton County,
Georgia, brought on behalf of proposed classes consisting of
holders of Mirant common stock, excluding the defendants and their
affiliates: Rosenbloom v. Cason, et al., No. 2010CV184223, filed
April 13, 2010; The Vladmir Gusinsky Living Trust v. Muller, et
al., No, 2010CV184331, filed April 15, 2010; Ng v. Muller, et al.,
No. 2010CV184449, filed April 16, 2010; and Bayne v. Muller, et
al., No. 2010CV184648, filed April 21, 2010.
The complaints allege, among other things, that the individual
defendants breached their fiduciary duties by failing to maximize
the value to be received by Mirant's public stockholders, and that
the other defendants aided and abetted the individual defendants'
breaches of fiduciary duties. In three of the actions, amended
complaints were filed adding allegations that defendants breached
their fiduciary duties by failing to disclose certain information
in the preliminary joint proxy statement and prospectus of RRI
Energy and Mirant. The complaints seek, among other things, (a)
to enjoin defendants from consummating the merger; (b) rescission
of the merger, if completed, and (c) granting the class members
any profits or benefits allegedly improperly received by
defendants in connection with the merger. Motions to dismiss the
complaints for failure to state a claim have been filed on behalf
of all of the defendants.
On August 17, 2010, the court entered an order, consented to by
all parties, consolidating the four cases under the caption In re
Mirant Corporation Shareholder Litigation, No 2010CV184223,
directing that the amended complaint in Rosenbloom v. Cason, et
al., No. 2010CV1c824223, serve as the operative complaint, and
appointing co-lead counsel.
On August 26, 2010, the parties entered into a memorandum of
understanding under the terms of which the parties will negotiate
in good faith to enter into a stipulation of settlement based on
additional disclosures, to be presented to the court for approval
following consummation of the merger.
NATIONAL UNION: Sued for Deducting Mandatory Union Dues
-------------------------------------------------------
Courthouse News Service reports that the National Union of
Hospital and Health Care Employees deducted money for its
organizers' "mandatory union dues," though as their employer, it
is barred from representing them in collective bargaining, workers
claim in a federal class action.
A copy of the Complaint in Downs, et al. v. National Union of
Hospital and Health Care Employees, et al., Case No. 10-cv-06710
(E.D. Pa.) (Shapiro, J.), is available at:
http://www.courthousenews.com/2010/11/19/LaborCA.pdf
The Plaintiffs are represented by:
Richard S. Swartz, Esq.
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1878 Marlton Pike East, Suite 10
Cherry Hill, NJ 08003
Telephone: (856) 685-7420
NORTHWESTERN MUTUAL: Faces Class Action Lawsuit Over Annuities
--------------------------------------------------------------
Bruce Vielmetti, writing for the Journal Sentinel, reports that a
class-action lawsuit against Northwestern Mutual Life Insurance
Co. -- quietly plodding away in an out-of-the-way courtroom before
an out-of-town judge for the past two weeks -- could have
multimillion dollar and reputational consequences for the local
financial giant.
A Fort Atkinson woman contends that in 1985, Northwestern Mutual
improperly changed the way it paid people who had purchased
annuities from the company without notice to or permission from
the buyers, resulting in their loss of dividend income over the
next 20 years. The company says the change was a normal part of
business.
The trial was held without a jury, perhaps because no jury could
be expected to stay awake through days of arcane testimony about
actuarial standards, insurance laws and musty memos. But the
number of lawyers filling the small courtroom each day, usually
about 10, gives a pretty clear signal about the stakes of the
case.
Marleen LaPlant bought her annuity with a guaranteed return of 3%
in 1975 for $20,000. When she rolled it over -- or surrendered
it, according to Northwestern Mutual -- in 2006 it had grown in
value to $93,000.
She filed her lawsuit in 2008.
"This case arises from a long-running, sophisticated, and ongoing
scheme by Northwestern to quietly, deliberately and repeatedly
cheat owners of certain Northwestern annuities out of millions of
dollars in dividends to which they were and are clearly entitled
under the explicit, unambiguous provisions of both the annuity
contract language and controlling Wisconsin state law,"
Ms. LaPlant contends in her complaint.
While annuity holders continued to receive what were called
dividends, the lawsuit contends they were merely interest payments
from short-term bonds into which the company had switched the
annuity assets. The original contracts, according to the claim,
called for annuity holders to share in a surplus generated by
Northwestern Mutual's general portfolio.
Changes approved
A spokeswoman for Northwestern Mutual said the plaintiffs are just
trying to get more than their fair share of dividends.
"Our approach is considered a best practice in the industry," said
Jean Towell, "and the fairest to all policyholders."
Ms. Towell noted that the changes in question were shared in
advance with and "expressly approved by" regulators in New York
and Wisconsin.
"Lawyers and courts shouldn't be able to second-guess business
judgment," and other courts have agreed, she said.
So far, Ms. LaPlant has prevailed against vigorous Northwestern
Mutual efforts to have the suit dismissed, and to defeat its
certification as a class action on behalf of about 3,600 other
Wisconsin holders of similar annuities. Ms. LaPlant is
represented by attorneys from Kersten & McKinnon in Mequon and two
Washington, D.C., firms. Northwestern Mutual has been represented
at trial by three of its own lawyers, and three litigators from
Quarles & Brady.
Northwestern Mutual had $21 billion in revenue last year, and
expects to pay out $4.9 billion in dividends in 2011, according to
the company's Web site, including about $27 million to holders of
fixed and variable annuities.
Lead plaintiff attorney George Kersten said in his closing
argument Friday that people like his client counted on the
company's promise and reputation for long-term strength.
"They thought they would prosper as the company prospered," he
said, "not as an atypical fund would prosper."
Northwestern Mutual stopped selling the subject annuities in 1985,
after creating the new class of annuities that expressly did not
participate in the overall surplus of the company. For the older
annuities, it blended short-term bond interest and traditional
dividends for a few years until the older annuities were treated
essentially like the post-1985 species, as nonparticipating.
Northwestern Mutual says markets, interest rates and other factors
in the early 1980s required them to make the change, which
resulted in annuity holders getting higher returns than other
Northwestern Mutual policyholders for several years. The change
was approved by insurance commissioners in New York and Wisconsin.
They say it was up to sales agents to explain the change to
annuity holders.
The company argues the change did not harm the plaintiffs or
unjustly enrich Northwestern Mutual.
In his summary of the evidence Friday, defense attorney Eric Van
Vugt said the plaintiffs' theory that dozens of executives
conspired over three to four years against the annuity holders,
for some unclear reason, is "so illogical, it's completely
ludicrous."
He said the company stands by its decisions, its records and its
outcomes.
"Having a long-term perspective doesn't mean we only invest in
long-term investments."
Judge sued first
A nearly identical lawsuit was filed against Northwestern Mutual
six years earlier, in 2002, but got bogged down in its own furious
litigation and never went to trial.
Milwaukee County Circuit Judge Daniel Noonan and his wife bought
similar annuities. Their lawsuit came a couple months after
Northwestern Mutual had announced a record-breaking dividend
payout of $3.7 billion. The couple claimed the company had
breached its contracts and its fiduciary duty to annuity holders.
Like Ms. LaPlant, the couple were seeking a declaratory judgment
regarding the rights and duties of annuity buyers and Northwestern
Mutual. Another reserve judge, William Eich, dismissed the case,
but the state Court of Appeals in June 2004 reversed and
reinstated it, coming down against Northwestern Mutual on several
key points.
The couple then litigated the effort to make Judge Noonans' case a
nationwide class action, and prevailed. The case had sought to
include all buyers of the pre-1985 annuities.
But that case has now been put on hold pending the outcome of the
LaPlant case.
Noonan testifies
Judge Noonan was the first witness to testify in the current
trial. He declined to talk with a reporter later.
Reserve Judge Dennis J. Flynn, from Racine, has been hearing the
LaPlant case. At the close of the trial Friday afternoon, he set
deadlines for the parties to submit their last pleadings. A
decision is not likely until February.
NVE INC: Accused in New Jersey Suit of Deceptive Advertising
------------------------------------------------------------
Chris Fry at Courthouse News Service reports that two class
actions claim that Stacker-2 and 5-Hour Energy drinks are just
"nondisclosed caffeine shots," lacking the folic acid and vitamin
B that the companies claim for them. Both complaints were filed
by the same attorney-plaintiff, in Bergen County Court.
Harold Hoffman claims that NVE Pharmaceuticals (Stacker-2) and
Living Essentials (5-Hour Energy) both advertise their products as
"two fluid ounces of a liquid that if consumed . . . enhances the
consumer's sharpness, alertness and energy level for five hours,"
thanks to a "specifically formulated blend of B-vitamins" and
other ingredients.
Mr. Hoffman calls the vitamin claims deceptive advertising, a
claim he says he can support with a "detailed, independent, third-
party laboratory analysis."
Mr. Hoffman says that NVE Pharmaceuticals pushes Stacker-2 with
the bogus claim that it contains "400 mg of folic acid." He says
analysis shows the drug "contains approximately 40% of the
represented concentration."
Mr. Hoffman adds that Stacker-2 contains 156 mg of caffeine, far
more than is delivered by a "brewed cup of coffee" as the company
states in its advertising.
He says Living Essentials misrepresents the contents of its 5-Hour
Energy product, also by overstating its folic acid content.
Mr. Hoffman claims this drug contains "207 mg of caffeine," even
more than Stacker-2, and that it "lacks the energy producing
capabilities promised by defendant."
Folic acid is believed to reduce the incidence of some birth
defects. And though the defendant companies might contest use of
the word "drug" instead of "diet supplement," the distinction is
purely legal and regulatory -- not scientific.
Mr. Hoffman seeks punitive damages for consumer fraud.
A copy of the Complaint in Hoffman v. N.V.E., Inc., Case No.
10993-10 (N.J. Super. Ct., Bergen Cty.), is available at:
http://www.courthousenews.com/2010/11/19/Stacker1.pdf
The Plaintiff is represented by:
Harold M. Hoffman, Esq.
240 Grand Avenue
Englewood, NJ 07631
Telephone: (201) 569-0086
E-mail: hoffman.esq@verizon.net
OCWEN FINANCIAL: Still Finalizing MDL Settlement
------------------------------------------------
Parties in a multi-district litigation, including Ocwen Financial
Corporation, are still finalizing definitive written settlement
documents to be submitted for court approval, according to the
company's November 4, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
The company has been included as a defendant in multi-party
lawsuits brought by borrowers in various federal and state courts
challenging the defendants' mortgage servicing practices,
including charging improper or unnecessary fees, misapplying
borrower payments, and similar allegations. In April 2004,
defendants' petition was granted to transfer and consolidate a
number of such lawsuits into a single proceeding pending in the
U.S. District Court for the Northern District of Illinois (the MDL
Proceeding).
Additional lawsuits similar to the MDL Proceeding have
subsequently been brought in other courts, some of which have been
or may be transferred to and consolidated in the MDL Proceeding.
The borrowers in many of these lawsuits seek class action
certification. Others have brought individual actions. No class
has been certified in the MDL Proceeding or any related lawsuits.
In April 2005, the trial court in the MDL Proceeding entered a
partial summary judgment in favor of defendants holding that
plaintiffs' signed loan contracts authorized the collection of
certain fees by Ocwen as servicer for the related mortgages. In
May 2006, plaintiffs filed an amended complaint containing various
claims under several federal statutes, state deceptive trade
practices statutes and common law. No specific amounts of damages
are asserted, however, plaintiffs may amend the complaint to seek
damages should the matter proceed to trial.
In June 2007, the U.S. Court of Appeals for the Seventh Circuit
issued an opinion holding that many of the claims were preempted
or failed to satisfy the pleading requirements of the applicable
rules of procedure and directing the trial judge to seek
clarification from the plaintiffs so as to properly determine
which particular claims must be dismissed.
In March 2009, the trial court struck the amended complaint in its
entirety on the grounds of vagueness. In April 2009, plaintiffs
filed a third amended complaint which defendants moved to dismiss.
The motion is fully briefed and pending decision by the trial
court.
The company says it believes the allegations in the MDL Proceeding
are without merit. However, in the interests of obtaining
finality and cost certainty with regard to this complex and
protracted litigated matter, in July 2010, defendants, including
Ocwen, have reached an agreement in principle with plaintiffs'
counsel with respect to a class settlement.
Ocwen's portion of the proposed settlement would be $5,163,000
plus certain other non-cash consideration.
The parties are in the process of finalizing and executing
definitive written settlement documents to be submitted for court
approval. If a final settlement is not reached and approved by
the court, the company says it will continue to vigorously defend
the MDL Proceeding.
PHILIP MORRIS: Still Faces Class Action Suits in Brazil
-------------------------------------------------------
Philip Morris International Inc.'s subsidiaries continue to defend
themselves from two class actions filed in Brazil, according to
the company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
In the first class action pending in Brazil, The Smoker Health
Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris
Marketing, S.A., Nineteenth Lower Civil Court of the Central
Courts of the Judiciary District of Sao Paulo, Brazil, filed
July 25, 1995, Philip Morris' subsidiary and another member of the
industry are defendants. The plaintiff, a consumer organization,
is seeking damages for smokers and former smokers, and injunctive
relief. In February 2004, the trial court found defendants liable
without hearing evidence. The court did not assess moral or
actual damages, which were to be assessed in a second phase of the
case. The size of the class was not defined in the ruling. In
April 2004, the court clarified its ruling, awarding "moral
damages" of R$1,000 (approximately $600) per smoker per full year
of smoking plus interest at the rate of 1% per month, as of the
date of the ruling. The court did not award actual damages, which
were to be assessed in the second phase of the case. The size of
the class still has not been estimated. Defendants appealed to the
Sao Paulo Court of Appeals. In November 2008, the Sao Paulo Court
of Appeals annulled the ruling finding that the trial court had
inappropriately ruled without hearing evidence and returned the
case to the trial court for further proceedings. In addition, the
defendants filed a constitutional appeal to the Federal Supreme
Tribunal on the basis that the plaintiff did not have standing to
bring the lawsuit. This appeal is still pending.
In the second class action pending in Brazil, Public Prosecutor of
Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda, Civil
Court of the City of Sao Paulo, Brazil, filed August 6, 2007,
Philip Morris' subsidiary is a defendant. The plaintiff, the
Public Prosecutor of the State of Sao Paulo, is seeking (1)
unspecified damages on behalf of all smokers nationwide, former
smokers, and their relatives; (2) unspecified damages on behalf of
people exposed to environmental tobacco smoke nationwide, and
their relatives; and (3) reimbursement of the health care costs
allegedly incurred for the treatment of tobacco-related diseases
by all Brazilian States and Municipalities, and the Federal
District. In an interim ruling issued in December 2007, the trial
court limited the scope of this claim to the State of Sao Paulo
only. In December 2008, the Seventh Civil Court of Sao Paulo
issued a decision declaring that it lacked jurisdiction because
the case involved issues similar to the ADESF case discussed above
and should be transferred to the Nineteenth Lower Civil Court in
Sao Paulo where the ADESF case is pending. The court further
stated that these cases should be consolidated for the purposes of
judgment. The company's subsidiary appealed this decision to the
State of Sao Paulo Court of Appeals, which subsequently declared
the case stayed pending the outcome of the appeal. In April 2010,
the Sao Paulo Court of Appeals reversed the Seventh Civil Court's
decision that consolidated the cases, finding that they are based
on different legal claims and are progressing at different stages
of proceedings. This case will now be returned to the Seventh
Civil Court of Sao Paulo.
PHILIP MORRIS: Still Faces Class Action Suits in Canada
-------------------------------------------------------
Philip Morris International Inc. and its subsidiaries continue to
defend themselves from a series of class actions filed in Canada,
according to the company's November 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
In the first class action pending in Canada, Cecilia Letourneau v.
Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI
Macdonald Corp., Quebec Superior Court, Canada, filed in September
1998, Philip Morris' subsidiary and other Canadian manufacturers
are defendants. The plaintiff, an individual smoker, is seeking
compensatory and unspecified punitive damages for each member of
the class who is deemed addicted to smoking. The class was
certified in 2005. Pre-trial discovery is ongoing. A trial date
has been scheduled for October 2011.
In the second class action pending in Canada, Conseil Quebecois
Sur Le Tabac Et La Sant‚ and Jean-Yves Blais v. Imperial Tobacco
Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp.,
Quebec Superior Court, Canada, filed in November 1998, Philip
Morris' subsidiary and other Canadian manufacturers are
defendants. The plaintiffs, an anti-smoking organization and an
individual smoker, are seeking compensatory and unspecified
punitive damages for each member of the class who allegedly
suffers from certain smoking-related diseases. The class was
certified in 2005. Pre-trial discovery is ongoing. A trial date
has been scheduled for October 2011.
In the third class action pending in Canada, Kunta v. Canadian
Tobacco Manufacturers' Council, et al., The Queen's Bench,
Winnipeg, Canada, filed June 12, 2009, Philip Morris, its
subsidiaries and indemnitees (PM USA and Altria Group, Inc.), and
other members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and chronic obstructive pulmonary disease, severe asthma, and mild
reversible lung disease resulting from the use of tobacco
products. She is seeking compensatory and unspecified punitive
damages on behalf of a proposed class comprised of all smokers,
their estates, dependents and family members, as well as
restitution of profits, and reimbursement of government health
care costs allegedly caused by tobacco products.
In the fourth class action pending in Canada, Adams v. Canadian
Tobacco Manufacturers' Council, et al., The Queen's Bench,
Saskatchewan, Canada, filed July 10, 2009, Philip Morris, its
subsidiaries and indemnitees (PM USA and Altria Group, Inc.), and
other members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and COPD resulting from the use of tobacco products. She is
seeking compensatory and unspecified punitive damages on behalf of
a proposed class comprised of all smokers who have smoked a
minimum of 25,000 cigarettes and have suffered, or suffer, from
COPD, emphysema, heart disease, or cancer, as well as restitution
of profits. Preliminary motions are pending.
In the fifth class action pending in Canada, Semple v. Canadian
Tobacco Manufacturers' Council, et al., The Supreme Court (trial
court), Nova Scotia, Canada, filed June 18, 2009, Philip Morris,
its subsidiaries and indemnitees (PM USA and Altria Group, Inc.),
and other members of the industry are defendants. The plaintiff,
an individual smoker, alleges his own addiction to tobacco
products and COPD resulting from the use of tobacco products. He
is seeking compensatory and unspecified punitive damages on behalf
of a proposed class comprised of all smokers, their estates,
dependents and family members, as well as restitution of profits,
and reimbursement of government health care costs allegedly caused
by tobacco products.
In the sixth class action pending in Canada, Dorion v. Canadian
Tobacco Manufacturers' Council, et al., The Queen's Bench,
Alberta, Canada, filed June 15, 2009, Philip Morris, its
subsidiaries and indemnitees (PM USA and Altria Group, Inc.), and
other members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and chronic bronchitis and severe sinus infections resulting from
the use of tobacco products. She is seeking compensatory and
unspecified punitive damages on behalf of a proposed class
comprised of all smokers, their estates, dependents and family
members, restitution of profits, and reimbursement of government
health care costs allegedly caused by tobacco products. To date,
Philip Morris, its subsidiaries and indemnitees have not been
properly served with the complaint.
In the seventh class action pending in Canada, McDermid v.
Imperial Tobacco Canada Limited, et al., Supreme Court, British
Columbia, Canada, filed June 25, 2010, Philip Morris, its
subsidiaries and indemnitees (PM USA and Altria Group, Inc.), and
other members of the industry are defendants. The plaintiff, an
individual smoker, alleges his own addiction to tobacco products
and heart disease resulting from the use of tobacco products. He
is seeking compensatory and unspecified punitive damages on behalf
of a proposed class comprised of all smokers who were alive on
June 12, 2007, and who suffered from heart disease caused by
smoking, their estates, dependents and family members, plus
disgorgement of revenues earned by the defendants from January 1,
1954 to the date the claim was filed.
In the eighth class action pending in Canada, Bourassa v. Imperial
Tobacco Canada Limited, et al., Supreme Court, British Columbia,
Canada, filed June 25, 2010, Philip Morris, its subsidiaries and
indemnitees (PM USA and Altria Group, Inc.), and other members of
the industry are defendants. The plaintiff, the heir to a
deceased smoker, alleges that the decedent was addicted to tobacco
products and suffered from emphysema resulting from the use of
tobacco products. She is seeking compensatory and unspecified
punitive damages on behalf of a proposed class comprised of all
smokers who were alive on June 12, 2007, and who suffered from
chronic respiratory diseases caused by smoking, their estates,
dependents and family members, plus disgorgement of revenues
earned by the defendants from January 1, 1954 to the date the
claim was filed.
PHILIP MORRIS: Still Faces Class Action Suits in Israel
-------------------------------------------------------
Philip Morris International Inc.'s subsidiaries continue to defend
themselves from two class actions filed in Israel, according to
the company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
In the first class action pending in Israel, El-Roy, et al. v.
Philip Morris Incorporated, et al., District Court of Tel-
Aviv/Jaffa, Israel, filed January 18, 2004, Philip Morris'
subsidiary and indemnitees (PM USA and former importer Menache H.
Eliachar Ltd.) are defendants. The plaintiffs filed a purported
class action claiming that the class members were misled by the
descriptor "lights" into believing that lights cigarettes are
safer than full flavor cigarettes. The claim seeks recovery of
the purchase price of lights cigarettes and compensation for
distress for each class member. Hearings took place in November
and December 2008 regarding whether the case meets the legal
requirements necessary to allow it to proceed as a class action.
The parties' briefing on class certification is scheduled to be
completed in December 2010.
The claims in a second class action pending in Israel, Navon, et
al. v. Philip Morris Products USA, et al., District Court of Tel-
Aviv/Jaffa, Israel, filed December 5, 2004, against Philip Morris'
indemnitee (distributor M.H. Eliashar Distribution Ltd.) and other
members of the industry are similar to those in El-Roy, and the
case is currently stayed pending a ruling on class certification
in El-Roy.
PHILIP MORRIS: Discovery in Kansas Antitrust Class Suit Ongoing
---------------------------------------------------------------
A court-ordered mediation was held on October 18, 2010, in
connection with an antitrust class action filed against Philip
Morris International, Inc., in Kansas, according to the company's
November 5, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
In the antitrust class action in Kansas, Smith v. Philip Morris
Companies Inc., et al., District Court of Seward County, Kansas,
filed February 7, 2000, Philip Morris and other members of the
industry are defendants. The plaintiff asserts that the defendant
cigarette companies engaged in an international conspiracy to fix
wholesale prices of cigarettes and sought certification of a class
comprised of all persons in Kansas who were indirect purchasers of
cigarettes from the defendants. The plaintiff claims unspecified
economic damages resulting from the alleged price-fixing, trebling
of those damages under the Kansas price-fixing statute and counsel
fees. The trial court granted plaintiff's motion for class
certification and refused to permit the defendants to appeal. The
case is now in the discovery phase. A court-ordered mediation was
held on October 18, 2010. Philip Morris filed a summary judgment
motion in advance of the mediation. No trial date has yet been
set.
PHILIP MORRIS: Class Action Suit in Bulgaria Still Pending
----------------------------------------------------------
A class action lawsuit styled Yochkolovski v. Sofia BT AD, et al.,
filed against the subsidiaries of Philip Morris International,
Inc., in Bulgaria is still pending, according to the company's
November 5, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
In the class action in Bulgaria, Yochkolovski v. Sofia BT AD, et
al., Sofia City Court, Bulgaria, filed March 12, 2008, Philip
Morris' subsidiaries and other members of the industry are
defendants. The plaintiff brought a collective claim on behalf of
classes of smokers who were allegedly misled by tar and nicotine
yields printed on packages and on behalf of a class of minors who
were allegedly misled by marketing. Plaintiff seeks damages for
economic loss, pain and suffering, medical treatment, and
withdrawal from the market of all cigarettes that allegedly do not
comply with tar and nicotine labeling requirements. The trial
court dismissed the youth marketing claims. This decision has
been affirmed on appeal. The trial court also ordered plaintiff
to provide additional evidence in support of the remaining claims
as well as evidence of his capacity to represent the class and
bear the costs of the proceedings. Philip Morris' subsidiaries
have not been served with the complaint.
PHILIP MORRIS: Breach of Contract Action in Canada Still Pending
----------------------------------------------------------------
A class action lawsuit filed against a subsidiary of Philip Morris
International Inc. for alleged breach of contract is still pending
in Canada, according to the company's November 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
In the breach of contract action in Ontario, Canada, The Ontario
Flue-Cured Tobacco Growers' Marketing Board, et al. v. Rothmans,
Benson & Hedges Inc., Superior Court of Justice, London, Ontario,
Canada, filed November 5, 2009, Philip Morris' subsidiary is a
defendant. Plaintiffs in this putative class action allege that
the subsidiary breached contracts with the class members (Ontario
tobacco growers and their related associations) concerning the
sale and purchase of flue-cured tobacco from January 1, 1986 to
December 31, 1996.
Plaintiffs allege that Philip Morris' subsidiary was required by
the contracts to disclose to plaintiffs the quantity of tobacco
included in cigarettes to be sold for duty free and export
purposes (which it purchased at a lower price per pound than
tobacco that was included in cigarettes to be sold in Canada), but
failed to disclose that some of the cigarettes it designated as
being for export and duty free purposes were ultimately sold in
Canada. Philip Morris' subsidiary has been served but there is
currently no deadline to respond to the statement of claim.
PRUDENTIAL FINANCIAL: Continues to Defend Against "Garcia" Suit
---------------------------------------------------------------
In April 2010, a purported state-wide class action, Garcia v. The
Prudential Insurance Company of America, was filed in the Second
Judicial District Court, Washoe County, Nevada.
The complaint was brought on behalf of Nevada beneficiaries of
life insurance policies sold by Prudential Financial, Inc., for
which, unless the beneficiaries elected another settlement method,
death benefits were placed in retained asset accounts, which earn
interest and are subject to withdrawal in whole or in part at any
time by the beneficiaries.
The complaint alleges that by failing to disclose material
information about the accounts, the Company wrongfully delayed
payment and improperly retained undisclosed profits, and seeks
damages, injunctive relief, attorneys' fees and prejudgment and
post-judgment interest.
In June 2010, the Company filed a motion to dismiss the complaint.
No further updates were reported in the Company's November 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
PRUDENTIAL FINANCIAL: Appeal Period in "Garcia" Suit in NJ Expires
------------------------------------------------------------------
In December 2009, a purported nationwide class action, Garcia v.
Prudential Insurance Company of America, filed in the United
States District Court for the District of New Jersey, was
dismissed.
The time for appeal in the New Jersey Garcia case has expired,
according to Prudential Financial, Inc.'s November 5, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
PRUDENTIAL FINANCIAL: Seeks Dismissal of "Lucey" Suit in Mass.
--------------------------------------------------------------
Prudential Financial, Inc., has asked a Massachusetts court to
dismiss a lawsuit filed against the Company over veterans' life
insurance contracts, according to the Company's November 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
In July 2010, a purported nationwide class action relating to
retained asset accounts of beneficiaries of a group life insurance
contract owned by the United States Department of Veterans Affairs
that covers the lives of members and veterans of the U.S. armed
forces, Lucey et al. v. Prudential Insurance Company of America,
was filed in the United States District Court for the District of
Massachusetts.
In October 2010, the Company filed a motion to dismiss the
complaint.
PRUDENTIAL FINANCIAL: Expects Refiling of "Phillips" Suit
---------------------------------------------------------
Prudential Financial, Inc., expects a class action lawsuit over
insurance policies issued to U.S. veterans to be refiled after it
was voluntarily dismissed, according to the Company's November 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
A purported nationwide class action brought on behalf of
beneficiaries of a group life insurance policy covering the lives
of members and veterans of the U.S. armed forces, Phillips v.
Prudential Insurance Company of America and Prudential Financial,
Inc., was filed in the United States District Court for the
Southern District of California, challenging the use of retained
asset accounts to settle death benefit claims, asserting
violations of federal and state law, breach of contract and fraud
and seeking compensatory and treble damages and equitable relief.
In October 2010, the Phillips complaint was voluntarily dismissed
but it is expected that the complaint will be refiled in another
jurisdiction.
PRUDENTIAL FINANCIAL: Defends Against "Huffman" ERISA Suit
----------------------------------------------------------
Prudential Financial, Inc., is defending itself against a lawsuit
alleging purported violations of the Employee Retirement Income
Security Act of 1974, according to the Company's November 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
In September 2010, Huffman v. The Prudential Insurance Company, a
purported nationwide class action brought on behalf of
beneficiaries of group life insurance contracts owned by ERISA-
governed employee welfare benefit plans was filed in the United
States District Court for the Eastern District of Pennsylvania.
The Complaint alleges that using retained asset accounts in
employee welfare benefit plans to settle death benefit claims
violates ERISA, and seeks injunctive relief and disgorgement of
profits.
PRUDENTIAL FINANCIAL: Continues to Defend "Schultz" Suit in Ill.
----------------------------------------------------------------
Prudential Financial, Inc., is facing a lawsuit in Illinois for
alleged violations of the Employee Retirement Income Security Act
of 1974, according to the Company's November 5, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
In April 2009, a purported nationwide class action, Schultz v. The
Prudential Insurance Company of America, was filed in the United
States District Court for the Northern District of Illinois.
In January 2010, the court dismissed the complaint without
prejudice.
In February 2010, plaintiff sought leave to amend the complaint to
add another plaintiff and to name the ERISA welfare plans in which
they were participants individually and as representatives of a
purported defendant class of ERISA welfare plans for which
Prudential offset benefits.
The proposed amended complaint alleged that Prudential Insurance
and the welfare plans violated ERISA by offsetting family Social
Security benefits against Prudential contract benefits and seeks a
declaratory judgment that the offsets are unlawful as they are not
"loss of time" benefits and recovery of the amounts by which the
challenged offsets reduced the disability payments.
In August 2010, the court denied leave to amend as to Prudential
and plaintiffs subsequently filed a third amended complaint
asserting claims on behalf of a purported nationwide class against
a purported defendant class of ERISA welfare plans for which
Prudential offset family Social Security benefits.
The action, now captioned Schultz v. Aviall, Inc., Long Term
Disability Plan, asserts the same ERISA violations.
PRUDENTIAL FINANCIAL: Obtains Final Judgment Dismissing Claims
--------------------------------------------------------------
Prudential Financial, Inc., obtained a final judgment dismissing
claims asserted in a consolidated class action lawsuit in New
Jersey, according to the company's Nov. 5, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended September 30, 2010.
The Company, along with a number of other insurance companies,
received formal requests for information from the State of New
York Attorney General's Office, the Securities and Exchange
Commission, the Connecticut Attorney General's Office, the
Massachusetts Office of the Attorney General, the Department of
Labor, the United States Attorney for the Southern District of
California, the District Attorney of the County of San Diego, and
various state insurance departments relating to payments to
insurance intermediaries and certain other practices that may be
viewed as anti-competitive.
In December 2006, Prudential Insurance reached a resolution of the
NYAG investigation. Under the terms of the settlement, Prudential
Insurance paid a $2.5 million penalty and established a $16.5
million fund for policyholders, adopted business reforms and
agreed, among other things, to continue to cooperate with the NYAG
in any litigation, ongoing investigations or other proceedings.
Prudential Insurance also settled the litigation brought by the
California Department of Insurance and agreed to business reforms
and disclosures as to group insurance contracts insuring customers
or residents in California and to pay certain costs of
investigation.
In April 2008, Prudential Insurance reached a settlement of
proceedings relating to payments to insurance intermediaries and
certain other practices with the District Attorneys of San Diego,
Los Angeles and Alameda counties. Pursuant to this settlement,
Prudential Insurance paid $350,000 in penalties and costs. These
matters are also the subject of litigation brought by private
plaintiffs, including purported class actions that have been
consolidated in the multidistrict litigation in the United States
District Court for the District of New Jersey, In re Employee
Benefit Insurance Brokerage Antitrust Litigation. In August and
September 2007, the court dismissed the antitrust and RICO claims.
In January and February 2008, the court dismissed the ERISA claims
with prejudice and the state law claims without prejudice.
Plaintiffs appealed the dismissal of the antitrust and RICO claims
to the United States Court of Appeals for the Third Circuit.
In August 2010, the Third Circuit Court of Appeals affirmed the
dismissal of the federal antitrust and RICO claims and remanded
the state law claims for further proceedings.
In September 2010, the district court entered final judgment
dismissing all remaining federal claims with prejudice and the
state law claims without prejudice.
PRUDENTIAL FINANCIAL: Settles Mutual Fund Investment Litigation
---------------------------------------------------------------
Prudential Financial, Inc.'s settlement of a consolidated class
action stemming from a mutual fund investment litigation gained
court approval, according to the Company's November 5, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
In October 2004, the Company and Prudential Securities were named
as defendants in several class actions brought on behalf of
purchasers and holders of shares in a number of mutual fund
complexes. The actions are consolidated as part of a multi-
district proceeding, In re: Mutual Fund Investment Litigation,
pending in the United States District Court for the District of
Maryland.
The complaints allege that the purchasers and holders were harmed
by dilution of the funds' values and excessive fees, caused by
market timing and late trading, and seek unspecified damages.
In August 2005, the Company was dismissed from several of the
actions, without prejudice to repleading the state claims, but
remains a defendant in other actions in the consolidated
proceeding.
In July 2006, in one of the consolidated mutual fund actions,
Saunders v. Putnam American Government Income Fund, et al., the
United States District Court for the District of Maryland granted
plaintiffs leave to refile their federal securities law claims
against Prudential Securities.
In August 2006, the second amended complaint was filed alleging
federal securities law claims on behalf of a purported nationwide
class of mutual fund investors seeking compensatory and punitive
damages in unspecified amounts.
In June 2008, the Company was dismissed with prejudice from the
remaining actions consolidated in In re: Mutual Fund Investment
Litigation other than Saunders v. Putnam American Government
Income Fund, et al.
In May 2010, in Saunders, plaintiffs moved for preliminary
approval of the class settlements with all defendants, including
Prudential Securities, and for certification of a settlement
class.
In October 2010, the Court approved the class settlements with all
defendants.
PRUDENTIAL FINANCIAL: Motion to Dismiss Consolidated Suit Pending
-----------------------------------------------------------------
A motion to dismiss a consolidated class action complaint filed
against Prudential Financial, Inc., in New Jersey is pending,
according to the Company's November 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
In March 2009, a purported class action, Bauer v. Prudential
Financial, et al., was filed in the United States District Court
for the District of New Jersey.
The case names as defendants, the Company, certain Company
directors, the chief financial officer, controller and former
chief executive officer and former principal accounting officer,
underwriters and the Company's independent auditors.
The complaint, brought on behalf of purchasers of the Company's 9%
Junior Subordinated Notes (retail hybrid subordinated debt),
alleges that the Company's March 2006 Form S-3 Registration
Statement and Prospectus and the June 2008 Prospectus Supplement,
both of which incorporated other public filings, contained
material misstatements or omissions.
In light of the Company's disclosures in connection with its 2008
financial results, plaintiffs contend that the earlier offering
documents failed to disclose impairments in the Company's asset-
backed securities collateralized with subprime mortgages and
goodwill associated with certain subsidiaries and other assets,
and that the Company had inadequate controls relating to the
reporting.
The complaint asserts violations of the Securities Act of 1933,
alleging Section 11 claims against all defendants, Section
12(a)(2) claims against the Company and underwriters and Section
15 claims against the individual defendants, and seeks unspecified
compensatory and rescission damages, interest, costs, fees,
expenses and injunctive relief as may be deemed appropriate by the
court.
In April 2009, two additional purported class action complaints
were filed in the same court, Haddock v. Prudential Financial,
Inc. et al. and Pinchuk v. Prudential Financial, Inc. et al.
The complaints essentially allege the same claims and seek the
same relief as Bauer.
In June 2009, Pinchuk was voluntarily dismissed and the Haddock
and Bauer matters were consolidated.
In July 2009, an amended consolidated complaint was filed that
added claims regarding contingent liability relating to the
auction rate securities markets and reserves relating to annuity
contract holders. The complaint restates the claims regarding
impairments related to mortgage backed securities, but does not
include prior claims regarding goodwill impairments.
The complaint names all of the same defendants as the prior
complaints, with the exception of the Company's independent
auditors.
In September 2009, defendants filed a motion to dismiss the
complaint.
In June 2010, the court dismissed without prejudice the claim
relating to contingent liability in connection with auction rate
securities and denied the motion with respect to the other claims.
In July 2010, plaintiffs filed an amended complaint restating
their contingent liability claim and, in September 2010,
defendants moved to dismiss the restated claim.
PRUDENTIAL FINANCIAL: Securities Underwriting Cases Still Ongoing
-----------------------------------------------------------------
Prudential Securities was a defendant in a number of industry-wide
purported class actions in the United States District Court for
the Southern District of New York relating to its former
securities underwriting business, captioned In re: Initial Public
Offering Securities Litigation, alleging, among other things, that
the underwriters engaged in a scheme involving tying agreements,
undisclosed compensation arrangements and research analyst
conflicts to manipulate and inflate the prices of shares sold in
initial public offerings in violation of the federal securities
laws.
In September 2009, the court entered a final order approving
settlement of In re: Initial Public Offering Securities
Litigation.
In October 2009, an objector filed a notice of appeal challenging
the certification of the settlement class.
The appeal is pending before the United States Court of Appeals
for the Second Circuit.
No further updates were reported in Prudential Financial, Inc.'s
November 5, 2010, Form 0-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
PRUDENTIAL FINANCIAL: Federal Claims Dismissed in NJ Suit
---------------------------------------------------------
A New Jersey court dismissed federal claims filed against
Prudential Financial, Inc., in a consolidated class action
lawsuit, according to the Company's November 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
In October 2006, a class action lawsuit, Bouder v. Prudential
Financial, Inc. and Prudential Insurance Company of America, was
filed in the United States District Court for the District of New
Jersey, claiming that Prudential Insurance failed to pay overtime
to insurance agents who were registered representatives in
violation of federal and Pennsylvania law, and that improper
deductions were made from these agents' wages in violation of
state law. The complaint seeks back overtime pay and statutory
damages, recovery of improper deductions, interest, and attorneys'
fees. In March 2008, the court conditionally certified a
nationwide class.
Also in March 2008, a purported nationwide class action lawsuit
was filed in the United States District Court for the Southern
District of California, Wang v. Prudential Financial, Inc. and
Prudential Insurance, on behalf of agents who sold the Company's
financial products. The complaint alleges claims that the Company
failed to pay overtime and provide other benefits in violation of
California and federal law and seeks compensatory and punitive
damages in unspecified amounts.
In September 2008, Wang was transferred to the United States
District Court for the District of New Jersey and consolidated
with the Bouder matter.
In January 2009, an amended complaint was filed in the
consolidated matter which adds wage claims based on the laws of 13
additional states.
In March 2009, a second amended complaint was filed which dropped
the breach of contract claims. The Company moved to dismiss
certain of the state claims in the consolidated complaint.
In December 2009, certain of the state claims were dismissed.
In February 2010, Prudential moved to decertify the federal wage
and hour class conditionally certified in March 2008, and moved
for summary judgment as to the federal wage and hour claims of the
named plaintiffs.
In July 2010, plaintiffs filed a motion for class certification on
the state law claims.
In August 2010, the district court granted Prudential's motion for
summary judgment, dismissing the federal claims.
SHOPPERS DRUG: Faces Class Action Lawsuit by Owner-Operators
------------------------------------------------------------
MONEY reports that Shoppers Drug Mart Corp. has been slapped with
a proposed $1-billion class action lawsuit led by two of its
owner-operators.
The Ontario Superior Court of Justice has notified the retailer
that two owner-operators allege Shoppers has breached its
agreement with them by collecting, receiving and/or retaining more
funds and/or benefits than allowed. If granted class action
status, the plaintiffs would represent some 1,181 pharmacists and
store owner-operators nationwide.
"Shoppers Drug Mart believes that the claim is without merit and
will vigorously defend the claim," the company said in a release
Monday.
Shoppers provides capital and financial support to owner-operators
in return for fees that represent a cut of associate share
profits.
The chain is also fending off a separate lawsuit related to its
loyalty program. Customer Pierre Gaumond has asked a judge to
grant him class action status in a case which says Shoppers was
wrong to reduce the value of the Optimum points on July 1.
SIRIUS XM: Continues to Defend NY Copyright Infringement Suits
--------------------------------------------------------------
Sirius XM Radio, Inc., continues to defend itself against lawsuits
in the U.S. District Court for the Southern District of New York
alleging copyright infringement, according to the company's
November 4, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
Commencing in May 2006, holders of copyrights in sound recordings
and holders of copyrights in musical works brought three actions
against XM for copyright infringement in the Federal District
Court in the Southern District of New York; namely, Atlantic
Recording Corp. et al. v. XM Satellite Radio Inc., Famous Music
LLC, et al. v. XM Satellite Radio, Inc., and In re XM Satellite
Radio Copyright Litigation.
These actions sought monetary damages and equitable relief in
connection with the advanced recording functionality included in
the XM Inno, the XM NeXus, the XM Helix, the XM SkyFi3 line of
satellite radios. XM settled these claims with the major record
companies and a significant number of music publishers, resulting
in the dismissal of two of the three actions.
XM has also reached agreement with certain independent holders of
sound recordings and musical works to settle the third action, a
purported class action.
Prior to introducing retail sales of the SIRIUS S50 and the SIRIUS
Stiletto line of satellite radio receivers with advanced recording
functionality, SIRIUS entered into agreements with the major
recording companies concerning such devices. SIRIUS has also
reached agreement with the National Music Publishers Association
to settle the copyright infringement claims which is now being
offered to the principal holders of copyrights for musical works.
SIRIUS is also in negotiation to settle the Nota Music Publishing,
Inc., et al. v. Sirius Satellite Radio Inc. action, a purported
class action, brought on behalf of certain independent record
companies and music publishers.
SIRIUS and XM believe that the distribution and use of their
products do not violate applicable copyright laws or any other
statutory or common laws.
SOUTHERN COPPER: Consolidated Class Suit Still Pending in Delaware
------------------------------------------------------------------
Southern Copper Corporation continues to defend itself from a
consolidated class action complaint filed in Delaware, according
to the company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
Three purported class action derivative lawsuits have been filed
in the Delaware Court of Chancery (New Castle County) late in
December 2004 and early January 2005 relating to the acquisition
of Minera Mexico by SCC. On January 31, 2005, the three actions
Lemon Bay, LLP v. Americas Mining Corporation, et al., Civil
Action No. 961-N, Therault Trust v. Luis Palomino Bonilla, et al.,
and Southern Copper Corporation, et al., Civil Action No. 969-N,
and James Sousa v. Southern Copper Corporation, et al., Civil
Action No. 978-N were consolidated into one action titled, In re
Southern Copper Corporation Shareholder Derivative Litigation,
Consol. Civil Action No. 961-N and the complaint filed in Lemon
Bay was designated as the operative complaint in the consolidated
lawsuit. The consolidated action purports to be brought on behalf
of the Company's common stockholders.
The consolidated complaint alleges, among other things, that the
acquisition of Minera Mexico is the result of breaches of
fiduciary duties by the Company's directors and is not entirely
fair to the Company and its minority stockholders. The
consolidated complaint seeks, among other things, a preliminary
and permanent injunction to enjoin the acquisition, the award of
damages to the class, the award of damages to the Company and such
other relief that the court deems equitable, including interest,
attorneys' and experts' fees and costs.
TALECRIS: Inks Memorandum of Understanding to Settle Delaware Suit
------------------------------------------------------------------
Talecris Biotherapeutics Holdings Corp. entered into a memorandum
of understanding to settle claims in a consolidated class action
filed in Delaware, according to the company's November 5, 2010,
Form 8-K filing with the U.S. Securities and Exchange Commission.
On October 29, 2010, parties to the consolidated class action
captioned In re Talecris Biotherapeutics Holdings Shareholder
Litigation, Consol. C.A. No. 5614-VCL, which is pending in the
Court of Chancery of the State of Delaware entered into a
Memorandum of Understanding reflecting an agreement in principle
to settle all claims in the Delaware Litigation. The Amendment
and the Appraisal Indemnity Agreement were entered into in light
of the agreement reflected in this MOU. The MOU also provides
that the parties will enter into a settlement agreement providing
for dismissal of the action with prejudice and a release of all
claims. The settlement is subject, among other things, to formal
documentation, notice to the class and final court approval.
TECUMSEH PRODUCTS: Still Faces Class Action Suit in Quebec
----------------------------------------------------------
A class action lawsuit filed against Tecumseh Products Co. in
Quebec is still pending, according to the company's November 4,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
On May 3, 2010, a class action was commenced in the Superior Court
of the Province of Quebec by Eric Liverman and Sidney Vadish
against Tecumseh and several other defendants. Plaintiffs seek
undetermined money damages, punitive damages, interest, costs, and
equitable relief. Snowstorm Acquisition Corporation and Platinum
Equity, LLC, the purchasers of Tecumseh Power Company and its
subsidiaries and Motoco a.s. in November 2007, have notified
Tecumseh that they claim indemnification with respect to the
lawsuit under its Stock Purchase Agreement with them.
UNITED STATES: World Trade Center Class Settlement Reached
----------------------------------------------------------
Mark Hamblett, writing for The New York Law Journal, reports
enough plaintiffs have accepted a massive settlement of claims
alleging respiratory and other health problems from the post-9/11
response and cleanup at the World Trade Center site to seal the
deal.
Plaintiffs' lawyers succeeded in getting more than 95 percent of
their clients in In re World Trade Center Litigation to opt into
the settlement, a threshold requirement for the deal to become
effective.
All told, 10,043 of 10,563 eligible plaintiffs, or 95.1%, signed
on to the settlement, which sets four tiers of eligible plaintiffs
based on the severity of injuries they suffered in their response
to the 9/11 terrorist attacks on the World Trade Center.
Among those most severely injured, the so-called Tier 4
plaintiffs, 5,308 of 5,411, or 98.1% opted in, according to a
report sent Friday to Southern District Judge Alvin K. Hellerstein
by Matthew Garretson of Garretson Resolution Group Inc., the firm
hired to serve as allocation neutral and process the claims.
The settlement was negotiated by plaintiffs' liaison counsel Paul
Napoli of Worby Groner Edelman & Napoli Bern and Margaret Warner
of McDermott Will & Emery, who is the lead lawyer for the
federally funded World Trade Center Captive Insurance Co., which
insured New York City and several of its contractors.
Ms. Warner said Friday in a statement that crafting the settlement
was "especially challenging given the emotional significance of
the work done by all, plaintiffs and defendants, in aid of our
country in those difficult days and months.
"This process has been intense for all, but the numbers of people
opting in show that the settlement we developed and the process to
obtain compensation have been judged fair and transparent by those
plaintiffs," Ms. Warner said.
The settlement calls for plaintiffs to receive as much as
$712.5 million depending on the percentage of those who opt in.
The first checks could be distributed within weeks. However,
there is still sorting out to be done as Judge Hellerstein has
asked for information on how many plaintiffs actually remain in
the litigation and are intent on pushing to trial and pursuing
individual negotiations.
There also are plaintiffs whose addresses are no longer known or
who may have lost interest in the litigation. Plaintiffs' counsel
must deliver to the judge by Monday, Nov. 22, a list of people who
expressly decided against opting in as well as those who could not
be located "despite diligent efforts."
The judge has set Feb. 2 for the next date in the proceedings but
lawyers say he will probably meet with all sides well before then
and the judge is still presiding over the claims against the some
200 defendants who have yet to settle.
Kenneth Feinberg, who was special master for the original federal
September 11 Victim Compensation Fund, is handling appeals from
Mr. Garretson's decisions.
The deadline for opting in was midnight Tuesday. It had been
extended twice to give plaintiffs more time to consider the deal.
Mr. Napoli said Friday that the additional time helped increase
somewhat the number of Tier 4 plaintiffs who elected to opt in,
but it was also useful for allowing people to "take care of
technicalities on a lot of the documents" that, in some cases,
required as many as 20 different signatures.
"We sort of had the numbers in the last several weeks, but we did
add some numbers in the higher categories," he said. "You don't
want people to be rushed at the last minute."
On March 19, Judge Hellerstein rejected an initial settlement
hailed by Mr. Napoli, Ms. Warner and James Tyrrell Jr. of Patton
Boggs, the lead lawyer for the city and its contractors. But a
reworked pact won the judge's enthusiastic approval in June.
A remaining obstacle appeared to be overcome with the passage in
the U.S. House of Representatives in September of the James
Zadroga 9/11 Health and Compensation Act, or the Zadroga bill,
which will provide billions of dollars in additional compensation
and health care coverage for Ground Zero responders.
Although the bill is pending in the Senate, it was amended this
summer so that plaintiffs in the World Trade Center litigation
would not have to choose between the settlement and the potential
payout in the bill.
In a statement Friday, Corporation Counsel Michael A. Cardozo said
the settlement "avoids costly and time consuming litigation that
serves no one's interests.
He added, "The lawsuits between the City and its contractors on
one hand, and the rescue and recovery workers on the other, pit
one set of heroes against another. We will continue to urge the
Senate to pass the Zadroga Act and re-open the WTC Victim
Compensation Fund."
A settlement for roughly $104 million in additional funds has been
reached by plaintiffs' lawyers and attorneys for defendants who
were not insured by the WTC Captive, such as the Port Authority
and several other contractors.
Talks are ongoing between plaintiffs and roughly 200 remaining
defendants -- real estate owners, managing companies, contractors
and utility companies who were involved in the cleanup of
buildings surrounding Ground Zero.
PoliticalNews.me also reports U.S. Senator Frank R. Lautenberg
(D-NJ) released a statement in response to the announcement of a
class action lawsuit settlement being reached with thousands of
9/11 World Trade Center workers and first responders.
"This settlement will help provide critical assistance for
thousands who suffer long-term effects from the toxic dust they
breathed in at the World Trade Center site," Mr. Lautenberg said.
"We need to step up as a nation to ensure the care of every man
and woman who came to our rescue during this national emergency.
I will continue working to pass the James Zadroga 9/11 health bill
in the Senate to create a long-term solution that meets our
responsibility to the heroes of September 11th."
Mr. Lautenberg is a co-sponsor of the "James Zadroga 9/11 Health
and Compensation Act," which would create a program to pay for the
monitoring and treatment of health conditions that resulted from
the 9/11 World Trade Center attacks.
In addition, the bill would reopen the 9/11 Victims Compensation
Fund to provide compensation to individuals who did not file an
application because they were not sick at the time of the filing
deadline in December 2003. Individuals who take part in the
class-action lawsuit settlement will also be eligible to apply for
compensation through the federal fund.
The House of Representatives passed the bill in September, and it
now awaits action in the Senate.
UNIVERSITY OF MIAMI: Faces Discrimination Class Action Lawsuit
----------------------------------------------------------
The University of Miami conducts background checks that
discriminate against African Americans and Latinos, a class action
lawsuit filed in Miami federal court Monday alleges. The lawsuit,
filed on behalf of Loudy Appolon of Miami, Florida, accuses the
University of violating Title VII of the Civil Rights Act by
rejecting or firing qualified individuals because of their credit
background, even though credit history does not predict employment
performance. In fact, there is no correlation between credit
history and job performance or trustworthiness, and credit reports
are often rife with inaccuracies.
Samuel R. Miller, a senior attorney at Outten & Golden LLP, said,
"By all accounts, Ms. Appolon was well-qualified for the position
-- that's why the University of Miami offered her the job. But
instead of evaluating Ms. Appolon on an individual basis, as a
person who -- like many Americans today -- may have struggled with
and overcome some personal financial difficulties, and who showed
promise to be an excellent employee, the Hospital stigmatized her
based on her credit history. When companies act this way, they
make it impossible for Americans to break the cycle of lending and
bad credit, rebuild their lives, and contribute to their families
and communities. And the employers hurt themselves by losing out
on some of their best potential workers."
Sarah Crawford, counsel with the Lawyers' Committee for Civil
Rights Under Law, stated, "The University of Miami's policies and
practices are illegal because they adopt and perpetuate the racial
disparities in the credit system. We see this problem occurring
in private and public employment across the country, despite the
fact that employers, credit reporting agencies, and researchers
have found no link between credit history and job performance.
At a time when unemployment rates are skyrocketing, particularly
for minority jobseekers, this unjustified and discriminatory
practice only exacerbates the problem. Employers need to know
that the practice is discriminatory and must end." Ms. Crawford
testified about the discriminatory effects of credit checks at an
October 20, 2010 hearing of the Equal Employment Opportunity
Commission.
According to the Complaint, "Defendants' hiring policy duplicates
the racial discrimination present in the credit reporting system
. . . This discriminatory denial of employment affects not only
the individuals who are rejected or terminated, but also their
families and entire communities, replicating minority under-
employment and compounding credit inequities in the process."
The lawsuit alleges that Ms. Appolon interviewed for a senior
medical collector position with the University of Miami, Miller
School of Medicine in June 2009. She was offered the position, but
the day before she was due to start her new job -- after she had
already resigned from her previous job -- the University informed
Ms. Appolon that she would not be hired because of her credit
history. "I was shocked," says Ms. Appolon. "I've worked in this
industry for years, and my credit was never a problem."
Attorneys Adam T. Klein, Justin M. Swartz, Samuel R. Miller, and
Juno Turner of Outten & Golden LLP, of New York; Santiago J.
Padilla, Law Offices of Santiago J. Padilla, P.A., of Miami, and
Sarah Crawford, of the Lawyers' Committee for Civil Rights Under
Law, in Washington, D.C., represent Ms. Appolon.
The lawsuit seeks to require that the University stop using credit
history as a screen for employment, that it make Ms. Appolon and
other class members eligible for hire, and that the University pay
lost wages.
More information about the lawsuit is available at
http://www.creditdiscrimination.net/
The case is "Loudy Appolon v. University of Miami, et al." Class
Action Complaint No. 1:10-cv-24166, in the U.S. District Court,
Southern District of Florida.
US AIRWAYS: Sued in Calif. for Failing to Refund Baggage Fees
-------------------------------------------------------------
Courthouse News Service reports that US Airways charges for
checking baggage but won't refund the money when it loses or
damages it, according to a federal class action.
A copy of the Complaint in Huffman v. US Airways, Inc., et al.,
Case No. 10-cv-05193 (N.D. Calif.), is available at:
http://www.courthousenews.com/2010/11/19/USAirways.pdf
The Plaintiff is represented by:
Thomas G. Foley, Jr., Esq.
Justin P. Karczag, Esq.
FOLEY BEZEK BEHLE & CURTIS, LLP
15 West Carillo Street
Santa Barbara, CA 93101
Telephone: (805) 962-9495
E-mail: tfoley@foleybezek.com
jkarczag@foleybezek.com
UNITED HEALTHCARE: Suit Complains About Subrogation Agreement
-------------------------------------------------------------
Courthouse News Service reports that United Healthcare Insurance
refuses to pay claims from college students in Wisconsin unless
students agree to give the insurer rights to "first dollar" on
subrogation claims, which is illegal in Wisconsin, a class action
claims in Milwaukee County Court.
A copy of the Complaint in Zhang v. United Healthcare Insurance
Company, Case No. _____ (Wis. Cir. Ct., Milwaukee Cty.), is
available at:
http://www.courthousenews.com/2010/11/19/Insure.pdf
The Plaintiff is represented by:
Douglas P. Dehler, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
111 East Wisconsin Avenue, Suite 1750
Milwaukee, WI 53202
Telephone: 414-226-9900
E-mail: ddehler@sfmslaw.com
- and -
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
35 East State Street
Media, PA 19063
Telephone: 610-891-9880
E-mail: jshah@sfmslaw.com
- and -
Nathan Zipperian, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
1640 Town Center Circle, Suite 216
Weston, FL 33326
Telephone: 854-515-0123
E-mail: nzipperian@sfmslaw.com
UNITED ONLINE: Appeal of IPO Class Action Settlement Still Pending
------------------------------------------------------------------
In April 2001 and in May 2001, lawsuits were filed in the United
States District Court for the Southern District of New York
against one of United Online's brands, NetZero, Inc., certain
officers and directors of NetZero and the underwriters of
NetZero's initial public offering, Goldman Sachs Group, Inc.,
BancBoston Robertson Stephens, Inc. and Salomon Smith Barney, Inc.
A consolidated amended complaint was filed in April 2002.
The complaint alleges that the prospectus through which NetZero
conducted its initial public offering in September 1999 was
materially false and misleading because it failed to disclose,
among other things, that (i) the underwriters had solicited and
received excessive and undisclosed commissions from certain
investors in exchange for which the underwriters allocated to
those investors material portions of the restricted number of
NetZero shares issued in connection with the offering; and (ii)
the underwriters had entered into agreements with customers
whereby the underwriters agreed to allocate NetZero shares to
those customers in the offering in exchange for which the
customers agreed to purchase additional NetZero shares in the
aftermarket at pre-determined prices.
Plaintiffs are seeking injunctive relief and damages.
The case against NetZero was coordinated with approximately 300
other suits filed against more than 300 issuers that conducted
their initial public offerings between 1998 and 2000, their
underwriters and an unspecified number of their individual
corporate officers and directors.
The parties in the approximately 300 coordinated class actions,
including NetZero, the underwriter defendants in the NetZero class
action, and the plaintiff class in the NetZero action, have
reached an agreement in principle under which the insurers for the
issuer defendants in the coordinated cases will make a settlement
payment on behalf of the issuers, including NetZero.
On October 5, 2009, the district court issued an order granting
final approval of the settlement and certifying the settlement
class.
Certain individuals have appealed the October 5, 2009 order and
one objector has filed a brief in support of his appeal of the
judgment approving the settlement. The schedule for filing an
opposition to the appeal has not yet been determined.
No further updates were reported in the Company's November 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
UNIVERSITY OF HAWAII: Faces Class Action Over Security Breaches
---------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
that security breaches in University of Hawaii computers exposed
tens of thousands of students and alumni to identity theft and
other hazards.
A copy of the Complaint in Gross v. University of Hawai'i, et al.,
Case No. 10-cv-00684 (D. Haw.), is available at:
http://www.courthousenews.com/2010/11/19/IDTheft.pdf
The Plaintiffs are represented by:
Thomas R. Grande, Esq.
GRANDE LAW OFFICES
1164 Bishop Street, Suite 124-24
Honolulu, HI 96813
Telephone: (808) 52-7500
E-mail: tgrande@grandelawoffices.com
- and -
Bruce F. Sherman, Esq.
1164 Bishop Street 124
Honolulu, HI 96813
Telephone: (808) 221-0901
E-mail: bfs@bfshermanlaw.com
VERIZON COMMUNICATIONS: Class Action Remanded to Federal Court
--------------------------------------------------------------
Tim Hull at Courthouse News Service reports that a class action
accusing Verizon of charging customers for phone services they
never ordered belongs in Federal Court, the United States Court of
Appeals for Ninth Circuit ruled, as Verizon "has borne its burden
to show the amount in controversy exceeds $5 million."
The federal appeals court in San Francisco vacated a federal
judge's order remanding the action to California state court.
Lead plaintiff Delores Lewis sued Verizon in 2009, claiming the
company charged her for "premium content," such as weather and
traffic reports, that she never ordered. Verizon allegedly billed
her landline for the services through the independent telephone
service provider Enhanced Services Billing Inc.
She did not specify a demand for damages in her complaint.
Verizon, arguing that the potential damages would exceed the
$5 million threshold established by the Class Action Fairness Act,
sought to remove the case to Federal Court.
The company cited the research of consultant Paul E. Glover, who
said "records show that these subscribers were billed more than
$5 million, exclusive of fees and interest, from March 1, 2006
until the present for ESBI charges."
Ms. Lewis called Glover's research "incompetent," claiming her
complaint challenged only "unauthorized" charges, not "Verizon's
gross billings to consumers for ESBI content."
The district court agreed with Ms. Lewis and remanded the class
action, but the 9th Circuit sided with Verizon.
Calling the lower court's decision "a semantic misunderstanding,"
Judge Mary Schroeder found "no evidence to support the premise
that some portion of the charges alleged in the complaint were
'authorized.'"
"Indeed . . . the defendant has conceded that where proposed class
members have been billed for services they did not order, they are
entitled to a refund," Schroeder wrote. "Hence, on this record,
the entire amount of the billings is 'in controversy.' The amount
in controversy is simply an estimate of the total amount in
dispute, not a prospective assessment of defendant's liability."
To establish jurisdiction, the judge said, "Verizon need not
concede liability for the entire amount, which is what the
district court was in essence demanding by effectively asking
Verizon to admit that at least $5 million of the billings were
'unauthorized' within the meaning of the complaint."
The appellate panel vacated the lower court's order and sent the
case back to the federal judge.
A copy of the Opinion in Lewis v. Verizon Communications, Inc.,
No. 10-56512 (9th Cir.), is available at http://is.gd/hz3gc
VISA INC: Faces Class Action Over Deceptive Practices
-----------------------------------------------------
Andrea Dearden, writing for The Madison St. Clair Record, reports
an East Alton woman and her father-in-law have filed a class
action against a Visa and local credit unions accusing them of
deceptive practices.
The class action was filed Nov. 12 in Madison County Circuit Court
on behalf of all Illinois citizens who bought a Visa gift card
from Services Credit Union or Olin Community Credit Union and had
the card's value reduced before its expiration date.
Karen and Gene Rhodes are the lead plaintiffs and are represented
by Mark C. Goldenberg and Thomas P. Rosenfeld, of Edwardsville.
Ms. Rhodes says she bought a $50 Visa gift card from Olin
Community Credit Union in November 2007. She says the card had
"valid through December 2008" printed on the front. Ms. Rhodes
says she gave the gift card to her father-in-law, Gene. However,
when the first time Gene tried to use the Visa in late November or
early December 2008, he was allegedly told there was only $2
available to use.
Ms. Rhodes contends she later found out that when she first bought
the card for $50, its actual value was only $35 due to
administrative fees of $2.50 deducted monthly. Because it was a
pre-activated gift card, those fees had allegedly been subtracted
for several months prior to Ms. Rhodes' purchase. She says she
wasn't told of the charges at the time of purchase.
Ms. Rhodes says the $2.50 administrative fees continued to be
deducted each month, reducing the card's value to just $2 before
it was ever used.
The class action accuses Visa, Services Credit Union and Olin
Community Credit Union of deceptive business practices, unjust
enrichment and for violations of the Illinois Consumer Fraud Act.
The Rhodes are asking for an unspecified amount of money for
damages and court costs.
Madison County Circuit Court case no. 10-L-1155.
VOS SPORTS: Recalls 11,700 Hooded Jackets and Sweatshirts
---------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
VOS Sports Inc., City of Industry, Calif., announced a voluntary
recall of about 11,700 Hooded jackets and sweatshirts. Consumers
should stop using recalled products immediately unless otherwise
instructed.
The children's hooded sweatshirts have a drawstring through the
hood and/or waist that can pose a strangulation or entrapment
hazard to children. In February 1996, CPSC issued guidelines,
which were incorporated into an industry voluntary standard in
1997, to help prevent children from strangling or getting
entangled on neck and waist drawstrings in upper garments, such as
jackets or sweatshirts.
No injuries or incidents have been reported.
This recall involves all children's hooded sweatshirts and nylon
hooded jackets with drawstring sold under the brand name "VOS
Sports." The sweatshirt and jackets were sold in assorted sizes
including S-M or L and in up to 14 colors. "VOS Sports" and
"RN#94353" are printed on the sewn-in label.
Style Number Colors Description Sizes
------------ ------ ----------- -----
A1071 Nylon Jacket black, navy, hood drawstrings Small &
Hunter green, Medium
gold, royal,
burgundy, red
B300 Nylon Jacket black, Carolina hood & waist Small,
blue, green, drawstrings Medium
gold, maroon, Large
navy, orange,
purple, red,
royal blue,
white
B600 Nylon Jacket black, Carolina hood & waist Small
blue, green, drawstrings Medium
Kelly green, Large
maroon, navy,
red, royal blue
B700 Nylon Jacket black/black, hood drawstrings Small
black Medium
/blue, black/red,
navy/gold,
navy/navy
B900 Sweatshirt black, brown, hood drawstrings Small
Carolina blue, Medium
charcoal, gold,
grey, green,
maroon, navy,
orange, purple,
red, royal blue
1066 Nylon Jacket white, black hood & waist Small
drawstrings Medium
Large
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11046.html
The recalled products were manufactured in China and Vietnam sold
through various sweatshirts and jacket outlet stores nationwide
from January 2005 through February 2010 for approximately between
$17 and $34.
Consumers should immediately remove the drawstrings from the
sweatshirts and jackets to eliminate the hazard or contact VOS
Sports Inc. for instructions on how to return the item for a full
refund. Consumer Contact: For additional information, contact VOS
Sports Inc. toll-free at (888) 268-6867 between 8:30 a.m. and 5:00
p.m., Pacific Time, Monday through Friday or visit the company's
Web site at http://www.vossports.com/
WATERS CORP: Plaintiff's Appeal on Suit Dismissal Still Pending
---------------------------------------------------------------
An appeal on the dismissal of an amended class action complaint
filed against Waters Corporation is still pending, according to
the company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
October 2, 2010.
In November 2008, the City of Dearborn Heights Act 345 Police &
Fire Retirement System filed a purported federal securities class
action against the Company, Douglas Berthiaume and John Ornell in
the United States District Court for the District of
Massachusetts. In April 2009, lead plaintiff, Inter-Local Pension
Fund GCC/IBT, filed a complaint that alleges, on behalf of a
purported class of all persons who purchased stock of the Company
between July 24, 2007 and January 22, 2008, that between those
dates the Company misrepresented or omitted material information
about its projected annual revenues and earnings, its projected
effective annual tax rate and the level of business activity in
Japan. The amended complaint seeks to recover under Section 10(b)
of the Exchange Act, Rule 10b-5 thereunder and Section 20(a) of
the Exchange Act.
In March of 2010, the District Court granted the Company's motion
to dismiss the case. Plaintiff filed an appeal of that dismissal
in April 2010. Oral arguments were made on November 1, 2010, and
a decision on this matter has not been rendered.
WILLIS GROUP: Court to Rule on Remanded RICO Claim in 2011
----------------------------------------------------------
Willis Group Holdings Public Limited Company expects its motion to
dismiss a remanded RICO claim to be ruled on next year, according
to the Company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
Since August 2004, Willis Group Holdings Public Limited Company
and Hilb Rogal & Hobbs Company (along with various other brokers
and insurers) have been named as defendants in purported class
actions in various courts across the United States. All of these
actions have been consolidated into a single action in the US
District Court for the District of New Jersey.
There are two amended complaints within the MDL, one that
addresses employee benefits (EB Complaint) and one that addresses
all other lines of insurance (Commercial Complaint).
HRH was a named defendant in the EB Complaint, but has since been
voluntarily dismissed. HRH is a named defendant in the Commercial
Complaint. The Company is a named defendant in both MDL
complaints.
Each of the EB Complaint and the Commercial Complaint seeks
monetary damages, including punitive damages, and equitable relief
and makes allegations regarding the practices and conduct that
have been the subject of the investigation of state attorneys
general and insurance commissioners, including allegations that
the brokers have breached their duties to their clients by
entering into contingent compensation agreements with either no
disclosure or limited disclosure to clients and participated in
other improper activities.
The complaints also allege the existence of a conspiracy among
insurance carriers and brokers and allege violations of federal
antitrust laws, the federal Racketeer Influenced and Corrupt
Organizations (RICO) statute and the Employee Retirement Income
Security Act of 1974 (ERISA).
In separate decisions issued in August and September 2007, the
antitrust and RICO Act claims were dismissed with prejudice and
the state claims were dismissed without prejudice from the
Commercial Complaint.
In January 2008, the Judge dismissed the ERISA claims with
prejudice from the EB Complaint and the state law claims without
prejudice.
Plaintiffs filed a notice of appeal regarding the dismissal of the
antitrust and RICO claims and oral arguments on this appeal were
heard in April 2009.
In August 2010, the United States Court of Appeals for the Third
Circuit issued its decision on plaintiffs' appeal. The Court
upheld the dismissal of all claims against HRH and the Company,
with the exception of one RICO related claim. The Court
remanded the RICO claim to the District Court for further
consideration.
The District Judge is allowing HRH and the Company (and the other
affected defendants) to submit new motions to dismiss the remanded
RICO claim.
The motion is being briefed, but a decision is not expected until
sometime in 2011.
Willis Group says additional actions could be brought in the
future by individual policyholders. The Company disputes the
allegations in all of these suits and has been and intends to
continue to defend itself vigorously against these actions.
WILLIS GROUP: Gender Discrimination Class Action Remains Pending
----------------------------------------------------------------
A gender discrimination class action filed against Willis Group
Holdings Public Limited Company in New York is ongoing, according
to the Company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
In March 2008, Willis Group settled an action in the United States
District Court for the Southern District of New York commenced
against the Company in 2001 on behalf of an alleged nationwide
class of present and former female officer and officer equivalent
employees alleging that the Company discriminated against them on
the basis of their gender and seeking injunctive relief, money
damages, attorneys' fees and costs.
Although the Court had denied plaintiffs' motions to certify a
nationwide class or to grant nationwide discovery, it did certify
a class of approximately 200 female officers and officer
equivalent employees based in the Company's offices in New York,
New Jersey and Massachusetts.
The settlement agreement provides for injunctive relief and a
monetary payment, including the amount of attorney fees
plaintiffs' counsel are entitled to receive, which was not
material to the Company.
In December 2006, a former female employee, whose motion to
intervene in the class action was denied, filed a purported class
action in the United States District Court, Southern District of
New York, with almost identical allegations as those contained in
the suit that was settled in 2008, except seeking a class period
of 1998 to the time of trial (the class period in the settled suit
was 1998 to the end of 2001).
The Company's motion to dismiss this suit was denied and the Court
did not grant the Company permission to immediately file an appeal
from the denial of its motion to dismiss.
The parties are in the discovery phase of the litigation. The
suit was amended to include one additional plaintiff and another
has filed an arbitration demand that includes a class allegation.
The Court has decided that, to the extent a class is ever
certified, the class period will end at the end of 2007 and not up
to the time of trial as plaintiffs had sought.
WILLIS GROUP: Still Facing Lawsuits Over Standford Collapse
-----------------------------------------------------------
Willis Group Holdings Public Limited Company continues to face
lawsuits over the collapse of Stanford Financial Group, according
to the Company's November 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
On July 2, 2009, a putative class action complaint, captioned
Troice, et al. v. Willis of Colorado, Inc., et al., C.A. No. 3:09-
CV-01274-N, was filed in the U.S. District Court for the Northern
District of Texas against Willis Group Holdings, Willis of
Colorado, Inc. and a Willis associate, among others, relating to
the collapse of The Stanford Financial Group, for which Willis of
Colorado, Inc. acted as broker of record on certain lines of
insurance.
The complaint generally alleged that the defendants actively and
materially aided Stanford's alleged fraud by providing Stanford
with certain letters regarding coverage that they knew would be
used to help retain or attract actual or prospective Stanford
client investors. The complaint alleged that these letters, which
contain statements about Stanford and the insurance policies that
the defendants placed for Stanford, contained untruths and omitted
material facts and were drafted in this manner to help Stanford
promote and sell its allegedly fraudulent certificates of deposit.
The putative class consisted of Stanford investors in Mexico and
the complaint asserted various claims under Texas statutory and
common law and sought actual damages in excess of $1 billion,
punitive damages and costs.
On August 12, 2009, the plaintiffs filed an amended complaint,
which, notwithstanding the addition of certain factual allegations
and Texas common law claims, largely mirrored the original and
sought the same relief.
On July 17, 2009, a putative class action complaint, captioned
Ranni v. Willis of Colorado, Inc., et al., C.A. No. 09-22085, was
filed against Willis Group Holdings and Willis of Colorado, Inc.
in the U.S. District Court for the Southern District of Florida,
relating to the same alleged course of conduct as the Troice
complaint. Based on substantially the same allegations as the
Troice complaint, but on behalf of a putative class of Venezuelan
and other South American Stanford investors, the Ranni complaint
asserts a claim under Section 10(b) of the Securities Exchange Act
of 1934 and Rule 10b-5 thereunder, as well as various claims under
Florida statutory and common law, and seeks damages in an amount
to be determined at trial and costs.
On July 24, 2009, a motion was filed by certain individuals with
the U.S. Judicial Panel on Multidistrict Litigation to consolidate
and coordinate in the Northern District of Texas nine separate
putative class actions -- including the Troice and Ranni actions,
as well as other actions against various Stanford-related entities
and individuals and the Commonwealth of Antigua and Barbuda --
relating to Stanford and its allegedly fraudulent certificates of
deposit.
On August 6, 2009, a putative class action complaint, captioned
Canabal, et al. v. Willis of Colorado, Inc., et al., C.A. No.
3:09-CV-01474-D, was filed against Willis Group Holdings, Willis
of Colorado, Inc. and the same Willis associate, among others,
also in the Northern District of Texas, relating to the same
alleged course of conduct as the Troice complaint. Based on
substantially the same allegations as the Troice complaint, but on
behalf of a putative class of Venezuelan investors, the Canabal
complaint asserted various claims under Texas statutory and common
law and sought actual damages in excess of $1 billion, punitive
damages, attorneys' fees and costs.
On August 10, 2009, the Movants filed with the JPML a Notice of
Related Action that referred the Canabal action to the JPML. On
October 6, 2009, the JPML ruled on the transfer motion,
transferring seven of the subject actions (including the Troice
and Ranni actions) -- i.e., the original nine actions minus two
that had since been dismissed -- for consolidation or coordination
in the Northern District of Texas. On October 27, 2009, the
parties to the Canabal action stipulated to the designation of
that action as an 'xyz case' properly part of the new Stanford MDL
proceeding in the Northern District of Texas.
On September 14, 2009, a complaint, captioned Rupert, et al. v.
Winter, et al., Case No. 2009C115137, was filed on behalf of 97
Stanford investors against Willis Group Holdings, Willis of
Colorado, Inc. and the same Willis associate, among others, in
Texas state court (Bexar County). Based on substantially the same
allegations as the Troice complaint, the Rupert complaint asserts
claims under the Securities Act of 1933, as well as various Texas
statutory and common law claims, and seeks rescission, damages,
special damages and consequential damages of $79.1 million, treble
damages of $237.4 million under the Texas Insurance Code,
attorneys' fees and costs.
On October 20, 2009, certain defendants, including Willis of
Colorado, Inc., (i) removed the Rupert action to the U.S. District
Court for the Western District of Texas, (ii) notified the JPML of
the pendency of this additional 'tag-along' action and (iii) moved
to stay the action pending a determination by the JPML as to
whether it should be transferred to the Northern District of Texas
for consolidation or coordination with the other Stanford-related
actions. In November 2009, the JPML issued a conditional transfer
order for the transfer of the Rupert action to the Northern
District of Texas. On December 22, 2009, the plaintiffs filed a
motion to vacate, or alternatively stay, the CTO, to which Willis
of Colorado, Inc. responded on January 4, 2010.
On April 1, 2010, the JPML denied the plaintiffs' motion to vacate
the CTO and issued a final transfer order for the transfer of the
Rupert action to the Northern District of Texas.
On December 18, 2009, the parties to the Troice and Canabal
actions stipulated to the consolidation of those actions and, on
December 31, 2009, the plaintiffs therein, collectively, filed a
Second Amended Class Action Complaint, which largely mirrors the
Troice and Canabal predecessor complaints, but seeks relief on
behalf of a worldwide class of Stanford investors. Also on
December 31, 2009, the plaintiffs in the Canabal action filed a
Notice of Dismissal, dismissing the Canabal action without
prejudice.
On February 25, 2010, the defendants filed motions to dismiss the
Second Amended Class Action Complaint in the consolidated
Troice/Canabal action. Those motions are currently pending.
On May 24, 2010, the plaintiffs in the consolidated Troice/Canabal
action filed a motion for leave to file a Third Amended Class
Action Complaint, which, among other things, adds several Texas
statutory claims. That motion is also currently pending.
The defendants have not yet responded to the Ranni or Rupert
complaints.
Willis Group says additional actions could be brought in the
future by other investors in certificates of deposit issued by
Stanford and its affiliates. The Company disputes these
allegations and intends to defend itself vigorously against these
actions.
*********
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,
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USA. 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.
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