/raid1/www/Hosts/bankrupt/CAR_Public/101230.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 30, 2010, Vol. 12, No. 257
Headlines
ACTIVIDENTITY CORP: Awaits Court Approval of Suits Settlement
AUSTRALIA: Faces Class Action Over Human Rights Violation
AVIS BUDGET: Faces Class Actions Over Operator Misclassification
BAYER CANADA: Yasmin Pill Class Action Promoted Via Facebook
BLOCKBUSTER INC: Customers Seek Approval of Class Claim
BUCYRUS INT'L: Robbins Geller Files Securities Class Action
CANAL ENERGY: Accused in Louisiana Suit of Race Discrimination
CANADA: Class Action Over Military Veterans' Pensions Reinstated
CAPITAL GOLD: Faces 11 Class Suits Over Gammon Gold Merger
COMMONWEALTH BANK: Faces Class Action Over Storm Collapse
COVENTRY HEALTHCARE: To Reach Definitive Pact on Louisiana Lawsuit
CPI INTERNATIONAL: Still Defending Merger-Related Suit in Calif.
DEAN FOODS: Settles Antitrust Class Action for $30 Million
FAIRFAX FINANCIAL: Still Defending Consolidated Securities Suit
FERRELLGAS LP: Faces Consumer Protection Class Suit in Kansas
FIRST NATIONS: Judge Certifies Class Action Over Sea Lice
FORD MOTOR: Sued for Selling Vehicles with Defective Tailgates
FORTUNE HI-TECH: Accused of Running Illegal Pyramid Scheme
GERON CORP: Sued for Violations of Federal Securities Laws
HENRY BROS: In Talks to Settle New Jersey Lawsuit Over Hammer Deal
J. CREW: Levi & Korsinsky Files Class Action
JACKSON HEWITT: "Carriere" Suit Claims Dismissed, Except One
JACKSON HEWITT: Appeal From "Thomas" Suit Dismissal Still Pending
JACKSON HEWITT: Appeal on "Fugate" Suit Dismissal Remains Pending
JACKSON HEWITT: Appeal on Dismissal of "Gomez" Suit Pending
JACKSON HEWITT: Appeal From "Norris" Suit Dismissal Still Pending
JACKSON HEWITT: Still Awaits Ruling on Wooley Certification Plea
JACKSON HEWITT: To File Rehearing Petition in West Virginia Suit
KEYNOTE SYSTEMS: Appeals to IPO Suit Settlement Remain Pending
LUXOTTICA RETAIL: Removes "Sandoval" Labor Complaint to N.D. Calif
MONIER CO: Faces Class Action Over Slurry-Coated Roofing Tiles
MULTIMEDIA GAMES: Awaits Ruling on Motion to Dismiss "Bussey" Suit
MULTIMEDIA GAMES: Discovery in "Hardy I" Suit Ongoing
MULTIMEDIA GAMES: Continues to Defend "Hardy II" Suit
NETWORK ENGINES: Appeals Pending in IPO Suit Settlement
POSSIBILITIES COUNSELING: Social Workers Can Pursue Class Action
RHODES COLLEGE: Accused in Calif. Suit of Defrauding Students
RIDGELAND, SC: Faces Class Action Over Freeway Speed Camera
ROYAL BANK: Investors Mull Class Action to Recover Losses
STUDENT LOAN: Agrees to Settle Shareholder Class Actions
SUNNY DELIGHT: Sued for Making False Claims About Fruit2O Product
TODD LILLIBRIDGE: Disgorgement of Unlawful Payments Sought
TOYS "R" US: Awaits Court Approval of Consolidated Suit Settlement
TRUMP ORGANIZATION: Two Claims in Class Action Could Proceed
VERINT SYSTEMS: Continues to Defend Class Suit in Tel Aviv
VODAFONE GROUP: May Face Customer Class Action in Australia
WASHINGTON: Sued Over Plan to Cut In-Home Medicaid Services
WASHINGTON MUTUAL: Judge Junks Workers' FLSA Action V. JPMorgan
XANODYNE PHARMA: May Face Class Suit Over Recalled Pain Killers
* Harvard Cancer Center Gets $11.7MM in Lupron Class Settlement
*********
ACTIVIDENTITY CORP: Awaits Court Approval of Suits Settlement
-------------------------------------------------------------
ActivIdentity Corporation is awaiting court approval of its
settlement of class action lawsuits related to its merger
agreement with ASSA ABLOY, Inc., according to the company's
Dec. 10, 2010, Form 10-K filed with the Securities and Exchange
Commission for the fiscal year ended September 30, 2010.
On October 11, 2010, the Company, ASSA ABLOY Inc. and
FitAcquisition, Inc., a wholly owned subsidiary of ASSA ABLOY,
entered into an Agreement and Plan of Merger, pursuant to which,
subject to the satisfaction or waiver of certain conditions,
Merger Sub will merge with and into the Company. As a result of
the merger, Merger Sub will cease to exist, and the Company will
survive as a wholly owned subsidiary of ASSA ABLOY. ASSA ABLOY has
indicated its intent after the merger to make the Company part of
ASSA ABLOY's HID Global business.
Beginning on October 12, 2010, several putative class action
lawsuits were filed purportedly on behalf of ActivIdentity's
stockholders in the Superior Court of Alameda County, California,
the Delaware Chancery Court, the United States District Court for
Northern California and the United States District Court in
Delaware. The complaints name ActivIdentity and each member of
the ActivIdentity Board as defendants. The lawsuits allege a
variety of claims, including that the company's board members
breached fiduciary duties owed to ActivIdentity stockholders by
failing to engage in a fair process and failing to maximize
stockholder value in approving the Merger. Several of the
complaints also allege that ActivIdentity aided and abetted the
members of the ActivIdentity Board in the alleged breach of their
fiduciary duties. The Plaintiffs seek relief that includes, among
other things, an injunction prohibiting the consummation of the
Merger, rescission -- to the extent the Merger terms have already
been implemented, and the payment of plaintiffs' attorneys' fees
and costs.
On December 9, 2010, ActivIdentity and the individual defendants
in the following actions entered into a memorandum of
understanding: (i) in the Superior Court of Alameda County,
California, captioned Vladimir Gusinsky Revocable Trust v.
ActivIdentity Corp., et al., RG10541071, Lin v. ActivIdentity
Corp., et al., RG10541379, Weisleder v. ActivIdentity Corp., et
al., RG10541759, and Gallagher v. Evans, et al., RG10542346, (ii)
in the United States District Court for the Northern District of
California captioned Beverley & Lionel Sacks v. ActivIdentity, et
al., 10-4705-JCS, and (iii) in Delaware Chancery Court captioned
Tomaselli v. ActivIdentity, et al., 5928. The memorandum of
understanding provides for the settlement and dismissal with
prejudice of the Actions, subject to customary conditions,
including completion of appropriate settlement documentation,
consummation of the Merger and all necessary court approvals.
Although the company believes that the Actions are without merit,
it has entered into the memorandum of understanding to avoid any
risk of materially delaying the Merger and to minimize the expense
of defending the actions. The settlement and dismissal with
prejudice -- if completed and approved by the court -- will
resolve all of the claims that were or could have been brought by
the plaintiffs in the Actions. In connection with the settlement
and dismissal with prejudice, defendants agreed to cause to be
paid to plaintiffs' counsel an amount up to $475,000 for its fees
and expenses in the action, provided plaintiffs obtain court
approval for any such amount. As part of the memorandum of
understanding, the company also agreed to file supplemental
disclosures on (i) the background information leading up to the
Merger, and (ii) the opinion of its financial advisor.
AUSTRALIA: Faces Class Action Over Human Rights Violation
---------------------------------------------------------
Jenna Hand, writing for Canberra Times, reports the Commonwealth
of Australia and two former police officers have been accused of
torturing citizens and breaking human rights law in what could
prove a landmark class action filed in the ACT Supreme Court.
A Canberra law firm has lodged unprecedented claims of negligence,
systemic abuse and police misconduct on behalf of eight clients
sprayed with capsicum foam in separate incidents at Canberra city
watch-house in 2006.
Their request for compensation for physical and psychological pain
and suffering could cost the government and the former police
officers hundreds of thousands of dollars. Each of the men
alleges he was assaulted with capsicum foam by former watchhouse
sergeant John Arthur Birch or his colleague, Joanne Theta
Apostoloff, while detained at the city watch-house for being
intoxicated.
The aggrieved men, who include an Aboriginal elder, builders and
public servants, say they were tortured and subjected to cruel,
inhumane and degrading conduct by the officers and, by extension,
the Australian Federal Police and the Commonwealth.
Lawyer Mark Barrow, of Ken Cush & Associates, said a ruling in his
clients' favor would be the first finding against the Commonwealth
for torturing its citizens and breaching their entitlements under
the ACT's Human Rights Act.
But in a document filed in the Supreme Court, lawyers for the
Commonwealth say the case cannot proceed due to legislation
stipulating personal injury claims must be made within three years
of an event.
In their defense against one of the men, the lawyers deny their
client tortured the man and say the Commonwealth was not liable
for the conduct of the AFP or its members. Closed-circuit TV
footage of some of the incidents has been filed with the Supreme
Court.
In one recording, Mr. Birch tells detainee David Helmhout he is
being videoed and to "shut up and listen" before spraying him with
the foam. Three seconds later, Ms. Apostoloff reaches for the
can, says "You going to listen now?" and sprays him again.
Mr. Helmhout, a 53-year-old indigenous man, said the action was
unwarranted. "You wouldn't treat an animal in that way," he said.
"It was torture. There was no respect. It was criminal."
Another man, 30-year-old builder Dale Reynders, said the officers'
behavior was routine. "They were so sure they would get away with
it, they did it right in front of the camera," he said.
Allan Mitchell said he was helping a friend move house in October
2006 when police detained him, sprayed him twice with capsicum
spray and repeatedly hit him in the head with the canister.
Later, when Mr. Mitchell was naked and handcuffed in the
watchhouse, Mr. Birch allegedly sprayed him in the face.
The lawyer leading the class action said some people who watched
footage of the incidents dubbed the city watchhouse "Canberra's
Abu Ghraib", in reference to the Baghdad prison where US military
personnel abused Iraqi prisoners.
"These eight cases are the tip of the iceberg, and given the
findings of the 2007 joint review [of watchhouse operations] by
the AFP and the Ombudsman, I expect there are [more] victims of
the culture that was allowed to flourish . . . at the city
watchhouse," Mr. Barrow said.
Three former members of the AFP have already faced criminal
charges over the misuse of the chemical agent and two have been
found guilty.
Mr. Birch, 55, who resigned from the force in 2007, was convicted
that year of administering an injurious substance causing pain and
discomfort to nine watch-house detainees between February and
September 2006.
Mr. Birch, who lives in Wamboin in New South Wales, was sentenced
on Supreme Court appeal to 500 hours of community service and
given a 12-month suspended jail term after initially walking away
from the ACT Magistrates Court with a three-month suspended
sentence. Four of his victims are plaintiffs in the class action.
He said he was defending the lawsuits.
Ms. Apostoloff, 31, was found guilty of misusing capsicum spray on
a detainee but escaped a conviction for the June 2006 attack. S he
is no longer a member of the AFP and is believed to be living
overseas.
AVIS BUDGET: Faces Class Actions Over Operator Misclassification
----------------------------------------------------------------
Janet Sparks, writing for BlueMauMau, reports Avis Budget Group
has been fighting class action lawsuits for misclassifying its
airport and shift managers as exempt in violation of The Fair
Labor Standards Act. But that's not the only segment of the
business accusing Avis of misclassification.
Its independent agency operators are also challenging the car
rental giant for placing them in a category outside the arena of
employment.
Nathan Copeland, Jr., president and CEO of Faith Enterprises
Group, one of the state's original and longest running operators,
is now speaking out on the business practices of Avis Budget Group
(NASDAQ: CAR). He started his agency in 1999 in northern
Atlanta's exclusive Buckhead district.
"It appears that Avis' intentions for its agency operator model is
to covertly exploit the independent contractor as an employee, to
spread both brands inexpensively while avoiding paying benefits,
overtime, workers compensation and all applicable taxes and
withholdings required by federal, state and local governments."
Mr. Copeland adds that Avis Budget wants the best of both worlds
by not only depriving independent contractors of their rights as
employees, but also as business owners due to misclassification.
In past years, Avis Budget has been aggressively advertising on
Web sites such as careerbuilder.com stating, "Do you have what it
takes to be the boss? Could you make a business profitable with
the solid support of an internationally-recognized brand? If so,
Avis has the opportunity for you!"
Avis stresses that its independent agency operator program is
"well suited for those with an entrepreneurial spirit who may not
have the financial resources to get a new location off the
ground." They explain that there are no start-up franchise fees
or ongoing royalties to pay to the parent company adding, "Avis
Budget retains site control and authorizes the contractor to
operate the location on the corporation's behalf."
The "job description" ads do have a disclaimer: "This is an
Independent Agency Operator opportunity, subject to the terms of
that program, and it is not an employment relationship or a
franchise."
By categorizing agency operators somewhere between employees and
franchisees, Mr. Copeland said Avis Budget is in charge of
virtually every aspect of the agency operator business and
determines the location's revenue through exploitation of their
reservation system, fleet and rates.
Avis' "Be the Boss" Model
The Atlanta operator also emphasizes that contrary to the Avis
Budget Group rhetoric, the independent contractor is not "the
boss" and there are earning limitations determined by the car
rental conglomerate. "They are fully aware that the agency
operator model giving 12% commission can't support a staff or
operations similar to their corporate managed off airport
locations. The agency operator can barely afford to hire two
personnel including the owner, in which the other is an
independent contractor that is 1099. The cost and liabilities
would be tremendous if they had employees at the off airport
locations similar to their competitors like Hertz and Enterprise,"
he declares.
Mr. Copeland said another way Avis cheats independent contractors
is by shutting down their reservations to prevent them from
generating revenue. He explained that the company determines the
profit or loss of an agency operator location through almost
weekly reservation suspensions or length of rental restrictions,
known as LORs. He says the suspensions are usually three to four
days during weekdays. "In fact, one of our locations in Buckhead
area of Atlanta experienced reservation suspensions 156 days in
2009. This impediment prevents customers from renting from the
agency operator location because it will reflect as being sold out
on Avis.com, Expedia, Travelocity, Orbitz, Priceline and other
sites."
Avis then diverts the business and vehicles to the company-owned
airport locations where the rates are much higher during weekdays.
If Avis decides to leave the agency operator reservations open,
the rates are usually higher and non-competitive with Hertz and
Enterprise, Mr. Copeland said.
"This business practice causes significant financial losses to the
independent contractor because the agency operator is still
expected to maintain a staff and full operation hours without any
compensation. It also puts us in a vulnerable and disadvantage
position because of the financial obligations we already invested
in the business," he stated.
As a result, Mr. Copeland said agency operators become dependent
on Avis Budget Group because they cannot sell the business to make
a profit or recuperate the losses created by company. "Avis'
greed creates economic conditions in which the independent
contractor is compelled to seek monetary resources through loans,
credit, pensions, 401k and employment in order for the business to
survive," he exclaims.
Class Action Goes to Higher Court
Mr. Copeland isn't the only agency owner disenchanted with Avis'
independent agency operator program. In 2006, a group in
California filed their third amended class action complaint
against Avis Budget alleging that despite their classification as
independent contractors, they are actually employees. The
document asserts that they were "entitled to wages, overtime pay,
meal and rest breaks, payment of the employer's portion of tax
withholdings, reimbursement of business expenses, and other
employment benefits."
Last month, an appeals court affirmed a trial court decision in
the Duke v. Avis Rent A Car System case, denying plaintiff
operators class certification. Attorneys for the agency operators
are now preparing their cert petition seeking a review of the
ruling by the California Supreme Court.
Operators Go Missing in Avis Annual Report
Recognizing that independent agency operators are not listed in
Avis' annual report, Blue MauMau contacted its investor relations
division. Although it addresses "company-owned agencies" and
"franchised units", there is no mention of the independent agency
operators. After questioning the company on this, Alice Pereira,
Avis senior manager of public relations replied stating, "They are
grouped in with the company-owned locations. It reads " . . .
approximately 84% (or $2.6 billion) was derived from U.S.
operations, including locations which are operated by our third
party agency operators." She said the number of Avis company-
owned locations, which includes agency-operated locations, is
1,000. Ms. Pereira explained, "We do not break the information
down any further."
Mr. Copeland isn't surprised that Avis buries its agency operators
in its annual report. He asserts that the Avis Budget Group has
false misrepresentation in their solicitations for operators and
omits many pertinent facts not in their agreements. As examples
he give reservation suspensions, revenue control, rate
manipulation, labor exploitation, unfair competition (from Avis),
fleet issues, hostility from their employees and absolute control
of the independent contractor.
"Being an Agency Operator enables the Avis Budget Group to take
advantage of, abuse, discriminate and defraud us without the
protections of state and federal employment laws. I believe their
actions need to be investigated in order to stop this abuse and to
make them accountable to the agency operator, federal, state and
local governments for their dishonest behavior," Mr. Copeland
declares.
Avis Budget Group declined an interview and requests for comments
regarding these issues related to its independent agency
contractor program. Due to the holidays, no one was available
until after January 4.
BAYER CANADA: Yasmin Pill Class Action Promoted Via Facebook
------------------------------------------------------------
Gordon Gibb, writing for LawyersandSettlements.com, reports a
Canadian class-action lawsuit alleging Yaz side effects and other
grievous health issues stemming from Yasmin birth control is being
promoted to prospective plaintiffs in a unique, and decidedly
modern way -- through social networking via Facebook. In
attempting to reach out to victims of the problematic
contraceptive products, the attorneys are going to where the
people are. . . .
For Yasmin Birth Control Lawsuit, Canadian Lawyers Go to Where the
People Are Many law firms also advertise on YouTube. But Matt
Baer, Esq. -- matt.baer@siskinds.com -- of the London [Ontario]
law firm of Siskinds LLP, decided to take that strategy one step
further and two steps away from the traditional newspapers ad and,
instead, created a Facebook page to take advantage of the way in
which young people are communicating with one another.
"[The newspaper is] very ineffective in most cases in getting the
people's attention that the case applies to," Mr. Baer said in a
telephone interview with Canadian Press. "So what we thought we
would do in this case, especially because the demographic of this
class is young women who are more Internet savvy and tend to use
Facebook, we thought, 'why not make a Facebook page to spread
awareness of the class action?'"
The lawsuit contends that the Yasmin pill, as well as Yaz birth
control pills, pose a danger to women of blood clots that can lead
to death, even in young women.
"Bayer did not provide adequate safety data to Health Canada with
respect to Yasmin and Yaz," Siskinds said in the statement of
claim. "Bayer knew or should have known that Yasmin and Yaz were
unsafe, defective, unreasonably dangerous, and not fit for their
intended purposes."
The legal team championing the class-action lawsuit alleges
further that the birth control duo contains a chemical unique to
those two products and, thus, increases the risk of developing
heart attacks, stroke, gall bladder and kidney stones, as well as
the aforementioned blood clots.
A spokesperson for Bayer Canada indicated the manufacturer stood
behind the safety and efficacy of its products.
The Facebook experiment seems to be paying off for the law firm.
Entitled "Take Your Body Back," the page has attracted 1,763
Facebook fans since October, and has become a go-to central hub
for the pending Yasmin side effects and Yaz blood clots lawsuit.
Visitors to the page can read updates, share photos and engage in
discussion about Yasmin and Yaz with other users and potential
victims.
The Yasmin blood clot and Yaz birth control pills lawsuit has yet
to be certified and will likely not commence until late next year.
BLOCKBUSTER INC: Customers Seek Approval of Class Claim
--------------------------------------------------------
Bill Rochelle, the bankruptcy columnist at Bloomberg News, reports
customers who paid late fees want the bankruptcy judge to
authorize the filing of a class claim against Blockbuster Inc.
A class-action suit was begun in Illinois state court in 1999 on
behalf of customers who either paid late fees or were forced to
purchase unreturned merchandise for about 10 years ending in 2004.
The suit was certified as a class action. The state judge later
decertified the class. The plaintiffs had a motion for
recertification under consideration when Blockbuster filed in
Chapter 11.
The plaintiffs want the bankruptcy judge to allow them to file a
class claim for at least $2 million. A hearing on the motion is
set for Jan. 20.
An ad hoc group of 35 individuals with more than 27.5 million
shares of Blockbuster stock filed a motion asking for the ability
to conduct discovery. The group believes they can prove the movie
rental chain is worth "considerably more" than the $1.2 billion
necessary to pay claims in full. The group's motion is on the
bankruptcy court's calendar for Jan. 20.
About Blockbuster Inc.
Based in Dallas, Texas, Blockbuster Inc. (Pink Sheets: BLOKA,
BLOKB) -- http://www.blockbuster.com/-- is a global provider of
rental and retail movie and game entertainment. It has a library
of more than 125,000 movie and game titles. Blockbuster said it
had assets of $1,017,035,832 and debts of $1,464,939,759 as of
August 1, 2010.
Blockbuster Inc. and 12 U.S. affiliates initiated Chapter 11
bankruptcy proceedings with a pre-arranged reorganization plan
in Manhattan on September 23, 2010 (Bankr. S.D.N.Y. Case No.
10-14997). The Plan was negotiated with holders of 80% of the
$630 million in 11.75% senior-secured notes. The Plan proposes to
give the noteholders stock in the reorganized company. General
unsecured creditors would receive warrants for 3% of the stock.
Holders of the $300 million in 9% subordinated notes would receive
nothing. The Debtors' deadline for filing the Plan has been
extended to January 14, 2011.
Martin A. Sosland, Esq., and Stephen Karotkin, Esq., at Weil,
Gotshal & Manges, serve as counsel to the Debtors. Rothschild
Inc. is the financial advisor. Alvarez & Marsal is the
restructuring advisor with A&M managing director Jeffery J.
Stegenga as chief restructuring officer. Kurtzman Carson
Consultants LLC is the claims and notice agent.
A steering group of senior secured noteholders is represented by
James P. Seery, Esq., and Paul S. Caruso, Esq., at Sidley Austin
LLP. U.S. Bank National Association as trustee and collateral
agent for the senior secured notes is represented by David
McCarty, Esq., and Kyle Mathews, Esq., at Sheppard Mullin Richter
& Hampton LLP. BDO Consulting is the financial advisor for U.S.
Bank.
Lenders led by Wilmington Trust FSB are providing the DIP
financing. The DIP Agent is represented by Peter Neckles, Esq.
and Alexandra Margolis, Esq., at Skadden, Arps, Slate, Meagher &
Flom LLP, in New York.
The Official Committee of Unsecured Creditors has retained Cooley
LLP as its counsel.
Blockbuster's non-U.S. operations and its domestic and
international franchisees, all of which are legally separate
entities, were not included in the filings and are not parties to
the Chapter 11 proceedings.
Bankruptcy Creditors' Service, Inc., publishes BLOCKBUSTER
BANKRUPTCY NEWS. The newsletter tracks the Chapter 11 proceeding
undertaken by Blockbuster Inc. and its units.
(http://bankrupt.com/newsstand/or 215/945-7000)
BUCYRUS INT'L: Robbins Geller Files Securities Class Action
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on December 22 disclosed that a
class action has been commenced on behalf of an institutional
investor in the United States District Court for the Eastern
District of Wisconsin on behalf of all persons who held shares of
the common stock of Bucyrus International, Inc. (NASDAQ:BUCY) on
November 15, 2010, against Bucyrus and its Board of Directors for
violations of Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934 in connection with the tender offer by Caterpillar
Inc. for Bucyrus.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from December 22. If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact plaintiff's counsel, Darren Robbins
of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail
at djr@rgrdlaw.com
If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.rgrdlaw.com/cases/bucyrus/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
The complaint alleges that on November 15, 2010, defendants
announced that they had entered into an Agreement and Plan of
Merger pursuant to which Caterpillar will purchase all of
Bucyrus's outstanding shares for the inadequate price of $92.00
per share. The Proposed Merger is expected to close in mid-2011.
The complaint alleges that the Proposed Merger is the product of a
fundamentally flawed process, undertaken in breach of the Board's
fiduciary duties, and designed to engineer the sale of Bucyrus to
Caterpillar on terms preferential to Caterpillar and provide
material benefits to the Company's insiders. he complaint further
alleges that in an attempt to secure shareholder support for the
Proposed Merger, on December 8, 2010, defendants issued a
materially false and misleading Preliminary Proxy on Schedule 14A.
The Proxy, which recommends that Bucyrus shareholders vote in
favor of the Proposed Merger, omits and/or misrepresents material
information about the unfair sales process for the Company,
conflicts of interest that corrupted the sales process, the unfair
consideration offered in the Proposed Merger, and the actual
intrinsic value of the Company on a stand-alone basis and as a
merger partner for Caterpillar. This information is material to
the impending decision of Bucyrus's shareholders whether or not to
vote in favor of the Proposed Merger.
Plaintiff seeks injunctive relief on behalf of all holders of
Bucyrus common stock on November 15, 2010. The plaintiff is
represented by Robbins Geller, which has expertise in prosecuting
investor class actions and extensive experience in actions
involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com/-- is a 180-lawyer firm
with offices in San Diego, San Francisco, New York, Boca Raton,
Washington, D.C., Philadelphia and Atlanta. The firm is active in
major litigations pending in federal and state courts throughout
the United States and has taken a leading role in many important
actions on behalf of defrauded investors, consumers, and
companies, as well as victims of human rights violations.
CANAL ENERGY: Accused in Louisiana Suit of Race Discrimination
--------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
that Canal Energy & Services marks black job applicants'
applications with a "B," to screen them out.
A copy of the Complaint in Brown, et al. v. Canal Energy &
Services Inc., Case No. 10-cv-04607 (E.D. La.), is available at:
http://www.courthousenews.com/2010/12/23/Racial.pdf
The Plaintiffs are represented by:
Ronnie G. Penton, Esq.
MaryAnna Penton, Esq.
THE PENTON LAW FIRM
209 Hoppen Place
Bogalusa, LA 70427
Telephone: (985) 732-5651
E-mail: fedcourtmail@rgplaw.com
- and -
Michael T. Tusa, Jr., Esq.
James C. Rather, Jr., Esq.
SUTTON & ALKER, LLC
4080 Lonesome Road, Suite A
Mandeville, LA 70448
Telephone: (985) 727-7501
CANADA: Class Action Over Military Veterans' Pensions Reinstated
----------------------------------------------------------------
Janice Tibbetts, writing for Postmedia News, reports the Supreme
Court of Canada knocked down a legal roadblock on Dec. 23 and
paved the way for a class-action lawsuit over military veterans'
pensions.
Military mechanic Dennis Manuge filed the suit on behalf of about
6,500 injured veterans and it was certified by the Federal Court.
But that certification was later rejected by the Federal Court of
Appeal.
The Supreme Court reinstated the original decision in one of six
related rulings on a technical legal issue that has real-life
implications for how lawsuits are allowed to move through the
courts.
In Mr. Manuge's case and five others, seven justices of the court
unanimously agreed that parties in the various court actions
should not be forced to jump through procedural hoops in their
quest for justice.
Mr. Manuge, of Porters Lake, N.S., was injured in 2002 at Canadian
Forces Base Petawawa. The government later decided to take back
$10,000 of his disability pension after he left the military.
Mr. Manuge filed suit and got Federal Court approval for a class
action.
But the government appealed and won a stay of proceedings. The
Federal Court of Appeal rejected Mr. Manuge's class action, ruling
he should have applied for "judicial review" of the pension
clawback at the Federal Court, instead of opening a full-fledged
lawsuit.
Wrong, said the Supreme Court.
"In my view, with respect, the discretion to grant a stay should
not be exercised in this case," Justice Rosalie Abella wrote on
behalf of the Supreme Court.
Previously, an investigation by the military ombudsman found the
clawback "profoundly unfair."
New Democrat MP Peter Stoffer said the case never should have
wound its way all the way up to the Supreme Court. He urged the
government to sit down with the veterans and settle the matter.
"The choice is very clear," said Mr. Stoffer, his party's veterans
affairs critic. "You can spend millions and millions of dollars
fighting this in the courts, or you can spend those millions
dealing with the disabled veterans in a fair and reasonable
manner."
The Defence Department said it would take some time to analyze the
decision.
"As such, it is premature to provide further comment at the
moment," said spokeswoman Jennifer Eckersley.
The principle at play in Mr. Manuge's case was decided in one of
the companion rulings that involved a $250 million lawsuit filed
by TeleZone Inc., against Industry Canada.
The consortium of telephone companies accused the government of
unfairly denying it a license for wireless communication services.
The Ontario Superior Court of Justice allowed the legal action,
saying it wasn't necessary for TeleZone to seek "judicial review"
at the Federal Court. In this case, the Ontario Court of Appeal
agreed, and so did the Supreme Court, which rejected the federal
government's last appeal.
"This appeal is fundamentally about access to justice," Justice
Ian Binnie wrote on behalf of the court in the TeleZone ruling.
"People who claim to be injured by government action should have
whatever redress the legal system permits through procedures that
minimize unnecessary costs and complexity. The court's approach
should be practical and pragmatic with that objective in mind."
CAPITAL GOLD: Faces 11 Class Suits Over Gammon Gold Merger
----------------------------------------------------------
Capital Gold Corporation is facing 11 class action lawsuits
related to its merger with Gammon Gold Inc., according to the
company's Dec. 10, 2010, Form 10-Q filed with the Securities and
Exchange Commission for the quarter ended October 31, 2010.
On October 1, 2010, the Company and Gammon entered into a
definitive merger agreement pursuant to which, if consummated,
Gammon will acquire all of the issued and outstanding common
shares of Capital Gold in a cash and share transaction.
Subsequent to the announcement of the merger, eleven putative
shareholder class action complaints were filed challenging the
transaction. Five complaints were filed in the Supreme Court of
the State of New York, New York County, the New York Actions, and
six were filed in the Delaware Court of Chancery, the Delaware
Actions. The New York complaints captioned Jenkins v. Capital Gold
Corp., et al., Index No. 651651/2010; Schroeder v. Capital Gold
Corp., et al., Index No. 651652/2010; and Leone v. Capital Gold
Corp., et al., Index No. 651690/2010, name as defendants the
directors of CGC, as well as CGC and Gammon Gold. The New York
complaint captioned Kramer v. Capital Gold Corp., et al., Index
No. 651678/2010, names as defendants the directors of CGC, CGC's
Chief Financial Officer and Secretary as well as CGC and Gammon
Gold. The New York complaint captioned Stanford v. Cooper, et
al., Index No. 651827/2010, names as defendants the directors of
CGC, as well as CGC, Gammon Gold and Capital Gold AcquireCo, Inc.,
Gammon Gold's wholly-owned subsidiary. The New York plaintiffs
allege generally that the CGC officers and directors breached
their fiduciary duties to CGC stockholders by agreeing to an
unfair price and an inappropriate sale process, and that the
individual defendants agreed to the merger to benefit themselves
personally at the expense of stockholder interests. The Kramer and
Stanford complaints allege in addition that the proposed
transaction involves unreasonable deal protection devices,
including a nonsolicitation agreement, matching rights, and an
unreasonable termination fee. The New York Actions further claim
that CGC and Gammon Gold aided and abetted the purported breaches
of fiduciary duties. The New York Actions seek injunctive relief,
including enjoining the transaction and rescinding all agreements
made in anticipation of the transaction or awarding the plaintiffs
and the purported class rescissory damages. The New York Actions
additionally seek attorneys' and other fees and costs, in addition
to seeking other relief.
The Delaware complaints captioned Boehm v. Capital Gold Corp., et
al. Case No. 5887-VCL; and Wood v. Capital Gold Corp., et al.,
Case No. 5920- , name as defendants the directors of CGC, as well
as CGC, Gammon Gold, and Capital Gold AcquireCo, Inc. The Delaware
complaint captioned Pait v. Sutherland, et al., Case No. 5899-VCN,
names as defendants the directors of CGC and Gammon Gold. The
Delaware complaints captioned Reggio v. Capital Gold Corp., et
al., Case No. 5939- , Blumenthal v. Capital Gold Corp., Case No.
5940- , and McClure v. Capital Gold Corp., et al., Case No.
5945- , name as defendants CGC and its directors, as well as
Gammon Gold. The Delaware Actions allege generally that the CGC
directors breached their fiduciary duties to CGC's stockholders by
agreeing to an unfair price, an inappropriate sale process, and
unreasonable deal protection devices, including a non-solicitation
agreement, matching rights, an unreasonable termination fee, and
an impermissible director voting agreement. The Boehm, Wood,
Reggio, Blumenthal and McClure complaints further claim that CGC,
Gammon Gold, and/or Capital Gold AcquireCo, Inc. aided and abetted
the purported breaches of fiduciary duties. The Delaware Actions
seek injunctive relief, including enjoining the transaction,
rescinding all agreements made in anticipation of the transaction
or awarding the plaintiff and the purported class rescissory
damages, and directing the individual defendants to account to the
plaintiff and the purported class upon any damages suffered as a
result of individual defendant wrongdoing. The Delaware Actions
also seek attorneys' and other fees and costs, in addition to
seeking other relief.
On November 2, 2010, a putative shareholder class action was filed
regarding the Company's merger with Gammon: Bromberg v. Capital
Gold Corp., Case No. 651904/2010 (NY Sup.). The claims stated and
relief sought are substantially identical to the claims made and
relief sought in the Jenkins and Schroeder lawsuits.
On Nov. 12, 2010, the Delaware Court of Chancery entered an Order
of Consolidation and a Stipulation and Scheduling Order, whereby
the Court, inter alia, consolidated the Delaware Actions except
for Boehm, which had been withdrawn, and set a schedule for
expedited discovery. On November 16, 2010, plaintiffs in the
Delaware Actions filed an amended and consolidated class action
complaint in the Court of Chancery.
On November 22, 2010, Helmut Boehm filed a suit in the United
States District Court for the Southern District of New York,
captioned Boehm v. Capital Gold, et al., 10-CIV-8818 (RMB), naming
as defendants CGC and its directors, as well as Gammon Gold and
Capital Gold AcquireCo. The complaint alleges that CGC and its
directors violated Section 14(a) and Section 20(a) of the
Securities Exchange Act by issuing or causing to be issued a
registration statement containing material misleading statements
and omissions. The complaint also asks the District Court to
exercise its jurisdiction over putative class action claims under
Delaware law against CGC and its directors for breach of fiduciary
duty and against CGC, Gammon and Capital Gold AcquireCo for aiding
and abetting breach of fiduciary duty. The basis for all claims
and request for relief are substantially identical to those in the
amended and consolidated class action complaint filed in Delaware.
The defendants believe the Delaware Actions and the New York
Actions lack merit and will contest them vigorously.
COMMONWEALTH BANK: Faces Class Action Over Storm Collapse
---------------------------------------------------------
Courtney Trenwith, writing for The Sydney Morning Herald, reports
former Storm Financial clients facing a budget Christmas have
called for a quick resolution to court action launched against
three banks as their fight for compensation enters its third year.
The Australian Securities and Investments Commission on Dec. 22
initiated proceedings against the Commonwealth Bank, Bank of
Queensland and Macquarie Bank after they failed to meet the
Dec. 22 deadline to reach compensation deals with about 14,000
investors caught up in last year's $3 billion corporate collapse.
The banks are accused of helping Storm operate as an unregistered
managed investment scheme by approving inappropriate margin loans
for the financial planner's clients.
Most of the former Storm investors, including many retirees,
borrowed against their homes to buy into index funds, which
collapsed during the global financial crisis, leaving many of them
unable to pay their mortgages.
Storm Investors Consumer Action Group co-chairman Noel O'Brien
said it was frustrating that it had taken two years for ASIC to
initiate legal proceedings.
The corporate watchdog had been waiting for the banks to make
their own resolutions with customers.
"We probably expected [Wednes]day's outcome but we are very, very
disappointed that it now has to go down the legal path,"
Mr. O'Brien said.
"It will slow things down and we are looking for some sort of
resolution.
"The majority of the Storm investors are retirees and time is of
an essence. A lot of them just want the problem to go away, now
this court action will just drag it on. I would have thought the
[banks] that were involved could have been a bit more responsible
and come to the table and helped us get on with our lives."
CBA admitted limited liability earlier this year and negotiated a
compensation deal for 2000 people, although about 300 dissatisfied
investors have started a class action.
Mr. O'Brien said if the CBA deal had been acceptable court action
would not have been required.
"The CBA resolution scheme fell far short of the mark and that's
indicated by ASIC's involvement," he said.
"We were expecting that they'd go to court because they're being
very hard-nosed about the whole thing."
Lawyers running the CBA class action were expected on Dec. 23 to
launch similar proceedings against Macquarie Bank on behalf of
about 150 clients.
Lorna Abdy, from Charters Towers, on Dec. 22 said she became
involved in the CBA class action because ASIC was sitting on its
hands.
"They should have done [legal action] a long time ago," she said.
"They've put everyone through all that heartache."
Mrs. Abdy's 29-year-old son Raymond, who has an acquired brain
injury from an accident, lost $120,000 in the Storm fiasco, and
she and her husband had also remortgaged their home to invest
through the company in a bid to set up Raymond for life.
They are now living practically hand-to-mouth.
"We're not having any flash Christmas dinner . . . we're not
buying many presents, just one present each," she said. "We live
a very quiet life.
"We didn't want to be millionaires or anything, we were just
helping our son, who'd had an accident, get into a position to
look after himself when we're gone."
Mrs. Abdy said the legal proceedings would be too late for many
Storm investors.
"I know a lot of people who've passed away and committed suicide,"
she said.
"There's only the strong ones that are getting through to this
stage. That's the saddest part about it -- making sure there's a
quick resolution."
The banks have rejected ASIC's allegations and declared they would
defend the legal action.
They argue they did not provide personal financial advice to Storm
clients, provide home mortgages through Storm, or pay or receive
any commissions from the financial planner.
In a statement on Dec. 22, CBA said ASIC's arguments did not
fairly reflect the role played by other parties, including the
corporate watchdog.
"The bank maintains its view that the losses incurred by many
Storm clients were caused by Storm's financial advice," the
statement says.
"It is apparent that because Storm, its principals and the Storm
financial advisers are unable to provide compensation the focus
has moved to the banks.
"ASIC's legal proceedings can only create further uncertainty and
delay for former Storm Financial clients. This is in stark
contrast to the tangible results already provided for Bank
customers through the Resolution Scheme."
Macquarie described ASIC's action as "unsustainable and
speculative" and said "the bank maintains that its conduct, and
that of its staff, has been ethical, lawful and professional".
BOQ managing director David Liddy said the bank had not acted
illegally or dishonestly and it would "vigorously" defend the
court action.
He said BOQ had employed independent valuers to assess home equity
loans of its 370 Storm-referred customers and that all customers
had been able to fully service their loans until Storm collapsed.
"We had a zero default rate and no complaints from customers who
had invested in Storm Financial prior to its collapse," he said.
ASIC is also pursuing Storm's founders, Townsville couple Emmanuel
and Julie Cassimatis.
Their lawyer, Steve Russell, said on Dec. 22 the couple would not
comment.
COVENTRY HEALTHCARE: To Reach Definitive Pact on Louisiana Lawsuit
------------------------------------------------------------------
Coventry Health Care, Inc., disclosed in its Dec. 10, 2010, Form
8-K filed with the Securities and Exchange Commission that it has
entered into talks to settle a pending lawsuit against one of its
subsidiaries in the state of Louisiana.
On December 6, 2010, First Health Group Corp., a subsidiary of the
Company, entered into a Memorandum of Understanding with attorneys
representing the plaintiffs and the class setting forth the
settlement terms of the class action lawsuit filed in Louisiana
state court against FHGC and certain payors. The Memorandum of
Understanding provides that subject to the execution of a
settlement agreement acceptable to FHGC and final non-appealable
approval of such settlement by the Louisiana state court, FHGC
will pay $150.5 million to resolve claims for which Coventry in
July 2010 announced a pre-tax charge of $278 million. In
addition, Coventry will assign to the class certain rights it has
to the proceeds of FHGC's insurance policies relating to the
claims asserted by the class. Pursuant to the Memorandum of
Understanding, the parties have also agreed to request that the
appropriate courts stay all related proceedings and consideration
of any pending appellate writ applications and to stay the effect
of any outstanding judgments until the settlement agreement is
prepared, executed and receives final court approval.
The lawsuit alleged that FHGC violated Louisiana's Any Willing
Provider Act, which requires a payor accessing a preferred
provider network contract to give a one-time notice 30 days before
that payor uses the discount rate in the preferred provider
network contract to pay the provider for services rendered to a
member insured under that payor's health benefit plan. After the
Louisiana state court class action had been filed, FHGC and
certain payors who access FHGC's provider contracts, filed suit in
federal district court against the same four provider plaintiffs
who filed the state court class action, seeking a declaratory
judgment that FHGC's contracts are valid and enforceable; that its
contracts are not subject to the Act because the Act does not
apply to medical services rendered to injured workers; and that
FHGC is exempt from the notice requirements of the Act. The
federal district court granted judgment in favor of FHGC.
Despite the federal court's judgment and subsequent order
enjoining them from pursuing any claim under the Act against FHGC,
the plaintiffs continued to pursue their state court class action
against FHGC and filed a motion for partial summary judgment
seeking damages of $2,000 for each provider visit where the
provider was not given a benefit identification card at the time
the service was performed. The state trial court granted the
plaintiffs' motion and entered judgment against FHGC for $262
million.
FHGC's appeal of the partial summary judgment order to the state's
intermediate appellate court was denied. FHGC has filed an
application for a writ of appeal with the Louisiana Supreme Court
with respect to the partial summary judgment order. The decision
to grant or deny the application for a writ of appeal is at the
discretion of the Louisiana Supreme Court. The application is
still pending before the Louisiana Supreme Court.
As a result of the Louisiana appellate court's decision on July 1,
2010 to affirm the state trial court's summary judgment order,
Coventry recorded a $278 million pre-tax charge to earnings during
the second quarter of 2010. This amount represents the $262
million judgment amount plus post judgment interest. Coventry has
accrued for legal fees expected to be incurred related to this
case as well as post judgment interest subsequent to the second
quarter charge and will continue to accrue post judgment interest
until a final non-appealable court approval of the settlement has
been obtained.
In exchange for the settlement payment by FHGC, class members will
release FHGC and all of its affiliates and clients for any claims
relating in any way to re-pricing, payment for, or reimbursement
of a workers' compensation bill, including but not limited to
claims under the Act. Plaintiffs have also agreed to a notice
procedure that FHGC may follow in the future to comply with the
Act. As noted, the Memorandum of Understanding is contingent upon
the execution of a definitive settlement agreement acceptable to
FHGC. Under Louisiana law, once the parties have executed such a
settlement agreement, they must apply to the court for approval of
the settlement following a court-supervised process of notice to
the class and an opportunity for the class to be heard about the
fairness of the settlement or exclude themselves from the
settlement. FHGC expects to be able to arrive at such a
definitive settlement agreement in the next 30 days.
CPI INTERNATIONAL: Still Defending Merger-Related Suit in Calif.
----------------------------------------------------------------
CPI International, Inc., continues to defend itself against a
lawsuit in California accusing the Company of breaching its
fiduciary duties, according to the Company's Dec. 10, 2010, Form
10-K filed with the Securities and Exchange Commission for the
fiscal year ended October 1, 2010.
On July 1, 2010, a putative stockholder class action complaint was
filed against CPI International, the members of the CPI
International board of directors, and Comtech Telecommunications
Corp. in the California Superior Court for the County of Santa
Clara, entitled Continuum Capital v. Michael Targoff, et al. (Case
No. 110CV175940). The lawsuit concerns the proposed merger
between the Company and Comtech, and generally asserts claims
alleging, among other things, that each member of CPI's board of
directors breached his fiduciary duties by agreeing to the terms
of the previously proposed merger and by failing to provide
stockholders with allegedly material information related to the
proposed merger, and that Comtech aided and abetted the breaches
of fiduciary duty allegedly committed by the members of CPI's
board of directors. The lawsuit seeks, among other things, class
action certification and monetary relief.
On July 28, 2010, the plaintiff filed an amended complaint, making
generally the same claims against the same defendants, and seeking
the same relief. In addition, the amended complaint generally
alleges that the consideration that would have been paid to CPI
International's stockholders under the terms of the proposed
merger was inadequate.
On September 7, 2010, the Company terminated the Comtech sale
agreement.
On November 24, 2010, the Company entered in an agreement and plan
of merger with Catalyst Holdings, Inc., and Catalyst Acquisition,
Inc., which are affiliates of The Veritas Capital Fund IV, L.P.
On December 9, 2010, the plaintiff filed a motion for leave to
file a second amended complaint which, among other things, (i)
amends its breach of fiduciary duty claims to allege that CPI and
its board of directors, as well as Cypress Associates II LLC,
breached fiduciary duties in connection with its proposed merger
with a Veritas affiliate, (ii) adds a claim for attorneys' fees
for the benefit the plaintiff purportedly obtained as a result of
its previous prosecution of this action, and (iii) adds claims
against Veritas and its affiliates for aiding and abetting the
breaches of fiduciary duties.
The action continues to seek, among other things, class action
certification and monetary relief.
DEAN FOODS: Settles Antitrust Class Action for $30 Million
----------------------------------------------------------
Northeast Dairy Farmers on Dec. 24 reached a settlement agreement
with Dean Foods Company in their class action antitrust lawsuit
against Dean, Dairy Farmers of America and Dairy Marketing
Services. The agreement will include $30 million in monetary
damages and injunctive relief that calls for Dean to purchase a
portion of its raw milk from multiple Northeast sources.
"This is a major win for dairy farmers in the Northeast who have
been squeezed by monopolization and price-fixing," said Benjamin
Brown, an attorney at Cohen Milstein Sellers & Toll, PLLC, which
represents the plaintiff dairy farmers. "We are pleased that Dean
Foods is working with plaintiffs to put this practice behind
them."
The lawsuit -- Alice H. Allen, et al. vs. Dairy Farmers of America
-- is far from resolved, however, added Kit A. Pierson of Cohen
Milstein.
"The case is continuing against the remaining defendants, Dairy
Farmers of America and its marketing affiliate Dairy Marketing
Services," explained Mr. Pierson. "Still at issue are charges
that the DFA -- the nation's largest cooperative -- monopolized a
level of distribution of fluid milk in the Northeast and forced
dairy farmers to join DFA or its marketing affiliate DMS to
survive."
DFA and DMS have been named in the suit for engaging in
monopolization, price-fixing, and other anticompetitive conduct.
"The fact that Dean has agreed to purchase raw milk from multiple
sources is a big step in the right direction," said Robert Abrams
of Howrey, LLP, which also represents the plaintiff dairy farmers.
"What dairy farmers want is a choice between different bottlers.
They have been living in a world that is monopolized and they pay
the prices that are offered to them or they don't sell milk. What
we want is choice and competition."
The next step is for the U.S. District Court for the District of
Vermont -- where the lawsuit was filed in August 2009 -- to grant
preliminary approval of the settlement agreement. Notice will
then go out to the estimated 5,000 to 10,000 Northeast dairy
farmers who could be eligible to file a claim for monetary
damages.
Mr. Abrams added, "We are pleased that a settlement with Dean has
been reached and look forward to a timely court approval."
FAIRFAX FINANCIAL: Still Defending Consolidated Securities Suit
---------------------------------------------------------------
Fairfax Financial Holdings Limited continues to defend itself
against a consolidated securities class action lawsuit pending in
New York, according to the Company's Dec. 10, 2010, Form F-10
Registration Statement filing with the U.S. Securities and
Exchange Commission.
During 2006, several lawsuits seeking class action status were
filed against Fairfax and certain of the company's officers and
directors in the U.S. District Court for the Southern District of
New York. The Court made an order consolidating the various
pending lawsuits and granted the single remaining motion for
appointment as lead plaintiffs. The Court also issued orders
approving scheduling stipulations filed by the parties to the
consolidated lawsuit.
On Feb. 8, 2007, the lead plaintiffs filed an amended
consolidated complaint, which states that the lead plaintiffs
seek to represent a class of all purchasers and acquirers of
securities of Fairfax between May 21, 2003 and March 22, 2006
inclusive. The amended consolidated complaint names as defendants
Fairfax, certain of the company's officers and directors,
OdysseyRe and its auditors. The amended consolidated complaint
alleges that the defendants violated U.S. federal securities laws
by making material misstatements or failing to disclose certain
material information regarding, among other things, Fairfax's and
OdysseyRe's assets, earnings, losses, financial condition, and
internal financial controls. The amended consolidated complaint
seeks, among other things, certification of the putative class;
unspecified compensatory damages (including interest); unspecified
monetary restitution; unspecified extraordinary, equitable and/or
injunctive relief; and costs (including reasonable attorneys'
fees).
Pursuant to the scheduling stipulations, the various defendants
filed their respective motions to dismiss the amended
consolidated complaint, the lead plaintiffs filed their
oppositions thereto, the defendants filed their replies to those
oppositions and the motions to dismiss were argued before the
Court in December 2007.
In March 2010, the Court granted the defendants' motions to
dismiss the Amended Consolidated Complaint, on the grounds that
the Court lacked subject matter jurisdiction, and denied as futile
the request by the plaintiffs for leave to file a further amended
complaint.
Previously, in November 2009, the Court had granted a motion by
the lead plaintiffs to withdraw as lead plaintiffs, and allowed
other prospective lead plaintiffs 60 days to file motions seeking
appointment as replacement lead plaintiff. Two entities filed
such motions and subsequently asked the Court to appoint them as
co-lead plaintiffs. These motions had not been ruled upon prior
to the Court's issuance of its judgment dismissing the Amended
Consolidated Complaint.
The original lead plaintiffs and the proposed replacement co-lead
plaintiffs filed a motion asking the Court to alter or amend its
March 2010 judgment. That motion was denied. One of the proposed
replacement co-lead plaintiffs filed a motion asking the Court to
grant it leave to intervene for the purpose of pursuing an appeal.
That motion was denied in late July 2010. The same proposed
replacement co-lead plaintiff filed a notice of appeal of the
March 2010 judgment and denial of the motion to alter or amend the
judgment.
Fairfax, OdysseyRe and the named officers and directors intend to
oppose the appeal.
Fairfax Financial Holdings Limited -- http://www.fairfax.ca/--
is a financial services holding company which, through its
subsidiaries, is engaged in property and casualty insurance and
reinsurance and investment management.
FERRELLGAS LP: Faces Consumer Protection Class Suit in Kansas
-------------------------------------------------------------
Ferrellgas, L.P. has been named as a defendant in a class action
lawsuit filed in the United States District Court in Kansas,
according to the Company's Dec. 10, 2010, Form 10-Q filed with
the Securities and Exchange Commission for the quarter ended
October 30, 2010.
The complaint alleges that the Company violates consumer
protection laws in the manner it sets prices and fees for
customers.
Based on Ferrellgas, L.P.'s business practices, Ferrellgas, L.P.
believes that the claims are without merit and intends to defend
the claims vigorously.
FIRST NATIONS: Judge Certifies Class Action Over Sea Lice
---------------------------------------------------------
A B.C. Supreme Court judge has certified a class action lawsuit
that would see First Nations go after both the province and the
federal government for fish farms that allegedly harmed wild
salmon stocks in the Broughton archipelago.
According to court documents dated December 1, Chief Robert
Chamberlin of the Kwicksutaineuk/Ah-Kwa-Mish First Nation is
representing a class of plaintiffs including numerous bands that
assert fishing rights in the Broughton archipelago near the north
end of Vancouver Island.
B.C.'s Ministry of Agriculture and Lands and the Attorney General
of Canada have been named defendants in the case.
Mr. Chamberlin alleges the province's issuance of fish farm
licenses in the archipelago has resulted in sea lice infestations
in wild salmon stocks, according to court documents.
It is further alleged those infestations have infringed on
aboriginal fishing rights to the area.
Both Victoria and Ottawa opposed the certification of the class
action suit, saying First Nations are generally barred from class
proceedings.
The province and the federal government allege the bands would
face serious challenges establishing fishing rights in a class
proceeding because of overlapping territorial claims, which
essentially puts the plaintiffs in conflict with one another.
The defendants also allege the evidence in the application "fails
to establish a colorable claim to adverse impacts on wild salmon
stocks attributable to sea lice contamination from fish farms."
In his decision to certify the class action, Judge Harry Slade
found the plaintiffs are not in conflict with one another.
"No injunction is being sought against the existing fish farm
operations, and no attempt is being made to 'shut down' the
industry," Judge Slade wrote. "Rather, Chief Chamberlin seeks to
hold the province accountable in damages for the decrease in wild
salmon stocks (if any) attributable to the province's conduct, and
to force the province to remediate the wild salmon stocks in the
Broughton archipelago."
Mr. Chamberlin and members of the First Nations Fisheries Council
held a protest outside of a Department of Fisheries and Oceans
office in downtown Vancouver.
Mr. Chamberlin said the federal government didn't properly consult
with First Nations before it assumed oversight of B.C.'s
aquaculture industry this month.
The U.S. National Academy of Sciences published a study that
suggested sea lice were not the cause of one of the largest
declines in pink salmon in the Broughton archipelago in 2002.
FORD MOTOR: Sued for Selling Vehicles with Defective Tailgates
--------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
2002-2006 model year Ford Explorers, Mercury Mountaineers and
Lincoln Aviators have defective tailgates that crack.
A copy of the Complaint in Iler, et al. v. Ford Motor Company, et
al., Case No. 10-cv-02648 (S.D. Calif.) (Sabraw, J.), is available
at:
http://www.courthousenews.com/2010/12/23/Ford.pdf
The Plaintiffs are represented by:
Keith G. Bremer, Esq.
Alison K. Hurley, Esq.
BREMER WHYTE BROWN & O'MEARA LLP
20320 S.W. Birch Street, Second Floor
Newport Beach, CA 92660
Telephone: (949) 221-1000
FORTUNE HI-TECH: Accused of Running Illegal Pyramid Scheme
----------------------------------------------------------
Courthouse News Service reports that a federal RICO class action
claims that Fortune Hi-Tech Marketing, Scott Aguilar, Molly
Aguilar, Paul Orberson, Jeff Orberson, Thomas Mills, and David
Mills are running an illegal pyramid scheme.
A copy of the Complaint in Wallace, et al. v. Fortune Hi-Tech
Marketing, Inc., et al., Case No. 10-cv-02641 (S.D. Calif.), is
available at:
http://www.courthousenews.com/2010/12/23/Pyramid.pdf
The Plaintiffs are represented by:
Alexander M. Schack, Esq.
Geoffrey J. Spreter, Esq.
LAW OFFICES OF ALEXANDER M. SHACK
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127
Telephone: (858) 485-6535
E-mail: alexschack@amslawoffice.com
geoffspreter@amslawoffice.com
GERON CORP: Sued for Violations of Federal Securities Laws
----------------------------------------------------------
Edward A. Ahola, individually and on behalf of others similarly
situated v. Geron Corporation, et al., Case No. 10-cv-05822 (N.D.
Calif. December 21, 2010), brings claims on behalf of all
purchasers of the common stock of Geron Corporation between
July 30, 2010, and December 6, 2010, against the Company and its
Chief Financial Officer David L. Greenwood for violations of the
Securities Exchange Act of 1934.
Geron, which is headquartered in Menlo Park, Calif., develops
biopharmaceuticals for the treatment of cancer and chronic
degerative diseases. Geron purportedly advances anti-cancer
therapies through multiple Phase 2 clinical trials in different
cancers by targeting the enzyme telomerase with compounds designed
to penetrate the blood-brain barrier (BBB). Geron also develops
cell therapy products from differentiated human embryonic stem
cells for multiple indications, including central nervous system
(CNS) disorders, heart failure, diabetes and osteoarthritis, and
has initiated a Phase 1 clinical trial in spinal cord injury.
Mr. Ahola says Defendant Greenwood twice stated that Geron was
funded for the "near-term," and had cash on hand of $156 million
at the end of July 2010, and $146 million at the end of
October 2010. Further, Defendant Greenwood said that Geron had a
"running net burn number" of $48 million annualized in
October 2010, and $48 to $50 million annualized in July 2010,
which according to Mr. Ahola, indicated that the Company would not
need any additional funding for a period of 3 years. Yet, on
December 6, 2010, after market clos, Geron announced an
$87 million secondary public offering, which, with the
underwriters over-allotment became a $93 million offering. The
following day, December 7, 2010, defendants announced the pricing
of the offering -- $5.00 per share -- when Geron shares were
trading at $6.12 per share on December 6, 2010. This caused Geron
stock to fall almost 20%, from $6.12 at December 6, 2010, to $5 at
December 7, 2010. In the Prospectus for the Offering, Geron said
that it intends to use the proceeds from the offering for research
and development, including clinical trials of its product
candidates and product candidates it has in-licensed, and for
working capital and general corporate purposes.
The Complaint says that this rapid u-turn, just 5 weeks after
stating that Greenwood was funded for the "near term," shows that
Defendant Greenwood's statements about funding were misleading
when made. As a result of their purchases of Geron stock during
the Class Period, plaintiff Ahola says he and other class members
suffered economic loss.
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
GLANCY BINKOW & GOLDBERG, LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Telephone: (310) 201-9150
- and -
U. Seth Ottensoser, Esq.
Joseph R. Seidman, Jr., Esq.
BERNSTEIN LIEBHARD LLP
10 East 40th Street
New York, NY 10016
Telephone: (212) 779-1414
HENRY BROS: In Talks to Settle New Jersey Lawsuit Over Hammer Deal
------------------------------------------------------------------
Henry Bros. Electronics, Inc., entered into a memorandum of
understanding on December 8, 2010, that provides for the
settlement of a putative shareholder class action suit, captioned
Atoll Advisors v. Henry, Docket No.: C-378-10, filed in the
Superior Court of New Jersey, Law Division, Bergen County against
the Company, certain of its officers and directors, and Kratos
Defense & Security Solutions, Inc., according to the company's
Form 8-K filed with the Securities and Exchange Commission on
Dec. 10, 2010.
Although the Company believes that the action is without merit, it
entered into the memorandum of understanding to avoid the risk of
materially delaying the proposed merger with Kratos and to
minimize the expense of defending the action. The settlement and
dismissal with prejudice, if completed and approved by the court,
will resolve all of the claims that were or could have been
brought in the action, including all claims relating to the
proposed merger between the Company and Kratos.
In connection with the settlement and dismissal with prejudice of
the action, the defendants agreed to make certain disclosures
concerning the proposed merger in a supplement to the Company's
Definitive Proxy Statement dated November 9, 2010. That
supplement is being mailed on or about December 9, 2010 to the
Company's stockholders of record on November 2, 2010 and is
available for review on the SEC's EDGAR website at
http://www.sec.gov.
In order to allow the Company's stockholders of record an
opportunity to consider the additional information disclosed in
the proxy statement supplement, the Company's annual meeting of
stockholders, which was convened on December 9, 2010 at 10:00 a.m.
at the Company's offices located at 17-01 Pollitt Drive, Fair
Lawn, NJ 07410, was adjourned upon the vote of a majority of the
shares present at the meeting in person or by proxy until 10:00
a.m., Eastern Time, on December 15, 2010. The reconvened meeting
was held at the Company's offices located at 17-01 Pollitt Drive,
Fair Lawn, NJ 07410. The record date and the agenda will remain
the same for the reconvened meeting.
J. CREW: Levi & Korsinsky Files Class Action
--------------------------------------------
Levi & Korsinsky, LLP has filed a class action lawsuit in the
United States District Court for the Southern District of New York
on behalf of current stockholders of J.Crew Group, Inc. (NYSE:JCG)
in connection with the planned acquisition of the company by TPG
Capital L.P. and Leonard Green & Partners, L.P. The lawsuit,
entitled Caywood v. Drexler, Index No. 10-cv-09328, alleges, among
other things, that the defendants violated Section 14(a) of the
Securities Exchange Act of 1934 and corresponding Rule 14a-9. In
particular, the plaintiff alleges that the defendants have issued
materially false or misleading statements regarding the proposed
acquisition.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from Dec. 23. If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact plaintiff's counsel, Eduard
Korsinsky, at Levi & Korsinsky, LLP, (212) 363-7500 or, or via
e-mail at ek@zlk.com
If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.zlk.com/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice or may choose to do
nothing and remain an absent class member.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. AT THIS TIME YOU MAY DO NOTHING AND REMAIN AN ABSENT
CLASS MEMBER. YOU MAY ALSO RETAIN COUNSEL OF YOUR CHOICE.
Levi & Korsinsky, LLP is a national law firm that represents the
rights of shareholders and victims of corporate abuse. It is
headquartered in New York City and have offices in Los Angeles,
California and New Jersey. With over 50 years of combined
litigation experience, the members of L|K have been involved in
hundreds of class action lawsuits and have obtained multi-million
dollar recoveries.
JACKSON HEWITT: "Carriere" Suit Claims Dismissed, Except One
------------------------------------------------------------
Jackson Hewitt Tax Service Inc. has been dismissed from all
claims, except one, by the court in the purported class action
complaint filed by Cecile Carriere, according to the company's
Dec. 10, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended October 31, 2010.
On April 29, 2010, Cecile Carriere brought a purported class
action complaint against the company in the District Court for the
Parish of St. Tammany, Louisiana, on behalf of Louisiana customers
who obtained RALs and other loans facilitated by the company, for
an alleged failure to comply with Louisiana loan broker statutes,
for rescission, payment of a thing not owed, and seeking damages
and injunctive and declaratory relief.
On June 9, 2010, the Company removed the matter to the U.S.
District Court for the Eastern District of Louisiana. On June 16,
2010, the Company filed a motion to dismiss. On November 3, 2010,
the Court issued its opinion, and granted the Company's motion to
dismiss in all respects except for a remaining claim for
rescission.
The Company filed an answer on November 17, 2010, with respect to
the remaining claim. The Company believes it has meritorious
defenses and will continue to contest this matter vigorously.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/-
- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: Appeal From "Thomas" Suit Dismissal Still Pending
-----------------------------------------------------------------
On Sept.2, 2009, Nancee Thomas brought a purported class action
complaint against Jackson Hewitt Tax Service, Inc., in the Ohio
Court of Common Pleas, Cuyahoga County, on behalf of Ohio
customers who obtained RALs facilitated by the company, for an
alleged failure to comply with Ohio's Credit Services Organization
Act, and seeking damages and injunctive relief.
On Oct. 15, 2009, the company filed a motion to dismiss.
On Dec. 8, 2009, Plaintiffs filed a First Amended Complaint adding
Paul Thomas as an additional plaintiff.
On Dec. 11, 2009, the parties filed a joint motion to apply the
previously filed motion to dismiss briefing regarding the original
Complaint to the First Amended Complaint.
On March 25, 2010, the Court granted the company's motion to
dismiss. On April 23, 2010, Plaintiff filed a notice of appeal.
The Company believes it has meritorious arguments in opposing this
appeal and will continue to contest this matter vigorously.
No further updates were disclosed in the Company's Dec. 10, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended October 31, 2010.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: Appeal on "Fugate" Suit Dismissal Remains Pending
-----------------------------------------------------------------
Sherita Fugate has filed a notice of appeal from the Circuit Court
of Missouri, Jackson County's dismissal of her purported class-
action complaint against Jackson Hewitt Tax Service Inc.
On April 29, 2009, Sherita Fugate brought a purported class-action
complaint against the company in the Circuit Court of Missouri,
Jackson County, on behalf of Missouri customers who obtained RALs
facilitated by the company, for an alleged failure to comply with
Missouri's Credit Services Organization Act, for an alleged
violation of Missouri's Merchandising Practices Act, and seeking
damages and injunctive relief.
On May 29, 2009, the company filed a motion to dismiss.
On March 10, 2010, the Court granted the company's motion to
dismiss in all respects, dismissing the Plaintiff's complaint.
Plaintiff has the right to appeal. If Plaintiff appeals the
Court's decision, the company will continue to contest this matter
vigorously.
On April 13, 2010, Plaintiff filed a notice of appeal.
The Company believes it has meritorious arguments in opposing this
appeal and will continue to contest this matter vigorously.
No updates were reported in the company's Dec. 10, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 31, 2010.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: Appeal on Dismissal of "Gomez" Suit Pending
-----------------------------------------------------------
The appeal of Alicia Gomez on the dismissal of her purported
class-action complaint against Jackson Hewitt Tax Service Inc.,
remains pending in the Maryland Court of Special Appeals.
On Feb. 16, 2009, Ms. Gomez brought a purported class-action
complaint against the company in the Circuit Court of Maryland,
Montgomery County, on behalf of Maryland customers who obtained
RALs facilitated by the company, for an alleged failure to comply
with Maryland's Credit Services Businesses Act, and for an alleged
violation of Maryland's Consumer Protection Act, and seeking
damages and injunctive relief.
On March 18, 2009, the company filed a motion to dismiss.
On June 18, 2009, the Court granted the company's motion to
dismiss in all respects, dismissing the plaintiff's complaint. On
July 17, 2009, Plaintiff filed an appeal in the Maryland Court of
Special Appeals.
The Company believes it has meritorious arguments in opposing the
appeal and will continue to contest this matter vigorously.
No updates were reported in the company's Dec. 10, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 31, 2010.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: Appeal From "Norris" Suit Dismissal Still Pending
-----------------------------------------------------------------
Quiana Norris's appeal from the dismissal of her amended complaint
against Jackson Hewitt Tax Service Inc. remains pending in
Indiana.
On April 14, 2009, Quiana Norris brought a purported class-action
complaint against the company in the Superior Court of Indiana,
Marion County, on behalf of Indiana customers who obtained RALs
facilitated by the company, for an alleged failure to comply with
Indiana's Credit Services Organization Act, and seeking damages
and injunctive relief.
On May 1, 2009, the company filed a notice removing the complaint
to the U.S. District Court for the Southern District of Indiana.
On June 8, 2009 the company filed a motion to dismiss. On Dec. 7,
2009, the Court granted the company's motion to dismiss in all
respects, dismissing the Plaintiff's complaint.
On Jan. 18, 2010, Plaintiff filed a First Amended Complaint. On
Feb. 4, 2010, the Company filed a motion to dismiss the First
Amended Complaint.
On June 28, 2010, the Court granted the Company's motion to
dismiss in all respects, dismissing the Plaintiff's First Amended
Complaint with prejudice.
On July 28, 2010, Plaintiff filed a notice of appeal.
The Company believes it has meritorious arguments in opposing the
appeal and will continue to contest this matter vigorously.
No updates were reported in the company's Dec. 10, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 31, 2010.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: Still Awaits Ruling on Wooley Certification Plea
----------------------------------------------------------------
Jackson Hewitt Tax Service Inc., continues to await a court ruling
on Brent Wooley's motion for class certification, which it has
opposed.
On April 20, 2007, Brent Wooley brought a purported class-action
complaint against the company and certain unknown franchisees in
the U.S. District Court, Northern District of Illinois. The
complaint, which was subsequently amended, was brought on behalf
of customers who obtained tax return preparation services that
allegedly included false deductions without support by the
customer that resulted in penalties being assessed by the IRS
against the taxpayer for violations of the Illinois Consumer Fraud
and Deceptive Practices Act, and the Racketeering and Corrupt
Organizations Act, and alleging unjust enrichment and breach of
contract, seeking compensatory and punitive damages, restitution,
and attorneys' fees. The alleged violations of the Illinois
Consumer Fraud and Deceptive Practices Act relate to
representations regarding tax return preparation, Basic Guarantee
and Gold Guarantee coverage and denial of Gold Guarantee claims.
Following dispositive motions, on Dec. 24, 2008, the company
answered Plaintiff's fourth amended complaint with respect to the
remaining breach of contract claim. On Aug. 18, 2009, Plaintiff
filed a motion seeking leave to file a Fifth Amended Complaint.
On Jan. 29, 2010, Plaintiffs filed a Fifth Amended Complaint. On
Feb. 12, 2010, the company answered the Fifth Amended Complaint.
On April 14, 2010, Plaintiffs filed a motion for class
certification. The company opposed that motion. A decision by
the Court is currently pending. The case is in its pretrial
stage. The Company believes it has meritorious defenses and is
contesting this matter vigorously.
No updates were reported in the company's Dec. 10, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 31, 2010.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
JACKSON HEWITT: To File Rehearing Petition in West Virginia Suit
----------------------------------------------------------------
Jackson Hewitt Tax Service Inc. said it will file a Petition for
Rehearing before the West Virginia Supreme Court of Appeals in
relation to a class action lawsuit originally filed by Linda
Hunter, according to the company's Dec. 10, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 31, 2010.
On Oct. 30, 2006, Linda Hunter (now substituted by Christian
Harper and Elizabeth Harper as proposed class representatives)
brought a purported class-action complaint against the company in
the U.S. District Court, Southern District of West Virginia, on
behalf of West Virginia customers who obtained RALs d by the
company, seeking damages for an alleged breach of fiduciary duty,
for alleged breach of West Virginia's Credit Service Organization
Act, for alleged breach of contract, and for alleged unfair or
deceptive acts or practices in connection with the company's RAL
facilitation activities.
On March 13, 2008, the Court granted the company's partial motion
for summary judgment on plaintiff's breach of contract claim. On
July 15, 2008, the company answered the first amended complaint.
On Feb. 10, 2009, Plaintiffs filed a motion to certify a class.
The company opposed that motion. On Feb. 11, 2009, Plaintiffs
filed a motion for partial summary judgment. On the same day, the
company filed a motion for summary judgment.
On March 6, 2009, the company opposed Plaintiffs' motion for
partial summary judgment. On April 7, 2009, Plaintiffs filed a
motion seeking the certifications of four legal questions to the
West Virginia Supreme Court of Appeals.
On Nov. 12, 2009, the West Virginia Supreme Court of Appeals
ordered the review of those four certified legal questions.
The West Virginia Supreme Court of Appeals issued its answers to
the certified questions on November 23, 2010, and held that the
Company met the definition of a "Consumer Services Organization"
and that the Plaintiff was a "Buyer" under the CSOA. The Company
intends to file a Petition for Rehearing before the West Virginia
Supreme Court of Appeals on those two issues and intends to argue
that the Court erred in making those two determinations. Following
a decision by the West Virginia Supreme Court of Appeals, the
Company will continue to litigate this matter vigorously in the
United States District Court, Southern District of West Virginia.
The case there is still in its pretrial stage.
Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/
-- provides computerized preparation of federal, state and local
individual income tax returns through a network of franchised and
company-owned tax offices operating under the brand name Jackson
Hewitt Tax Service in the U.S. The Company provides its customers
with accurate tax return preparation services and electronic
filing.
KEYNOTE SYSTEMS: Appeals to IPO Suit Settlement Remain Pending
--------------------------------------------------------------
Keynote Systems, Inc.'s settlement of a consolidated class action
lawsuit related to its initial public offering remains subject to
appeals pending before the United States Court of Appeals for the
Second Circuit, according to the company's Dec. 10, 2010, Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended September 30, 2010.
In August 2001, and the Company and its former officers were named
as defendants in two securities class-action lawsuits based on
alleged errors and omissions concerning underwriting terms in the
prospectus for the Company's initial public offering. A
Consolidated Amended Class Action Complaint for Violation of the
Federal Securities Laws was filed on or about April 19, 2002, and
alleged claims against the Company, certain of its officers, and
underwriters of its September 24, 1999 initial public offering,
under Sections 11 and 15 of the Securities Act of 1933, as
amended, and under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended. The lawsuit alleged that the
defendants participated in a scheme to inflate the price of the
Company's stock in its initial public offering and in the
aftermarket through a series of misstatements and omissions
associated with the offering. The lawsuit is one of several
hundred similar cases pending in the Southern District of New York
that have been consolidated by the court.
The Company is a party to a global settlement with the plaintiffs
that would have disposed of all claims against the Company with no
admission of wrongdoing by the Company or any of its present or
former officers or directors. The settlement agreement had been
preliminarily approved by the Court. However, while the settlement
was awaiting final approval by the District Court, in December
2006 the Court of Appeals reversed the District Court's
determination that six focus cases could be certified as class
actions. In April 2007, the Court of Appeals denied plaintiffs'
petition for rehearing, but acknowledged that the District Court
might certify a more limited class. At a June 26, 2007 status
conference, the Court approved a stipulation withdrawing the
proposed settlement. On August 14, 2007, plaintiffs filed amended
complaints in the focus cases, and a motion for class
certification in the focus cases on September 27, 2007.
On November 13, 2007, defendants in the focus cases filed a motion
to dismiss the amended complaints for failure to state a claim,
which the District Court denied on March 2008. Plaintiffs, the
issuer defendants (including the Company), the underwriter
defendants, and the insurance carriers for the defendants, have
engaged in mediation and settlement negotiations.
The parties reached a settlement agreement, which was submitted to
the District Court for preliminary approval on April 2, 2009. As
part of this settlement, the Company's insurance carrier has
agreed to assume the Company's entire payment obligation under the
terms of the settlement. On June 10, 2009, the District Court
granted preliminary approval of the proposed settlement. After a
September 10, 2009 hearing, the District Court gave final approval
to the settlement on October 5, 2009.
Several objectors have filed notices of appeal to the United
States Court of Appeals for the Second Circuit from the District
Court's October 5, 2009 order approving the settlement. Although
the District Court has granted final approval of the settlement,
there can be no guarantee that it will not be reversed on appeal.
The Company believes that it has meritorious defenses to these
claims. If the settlement is not implemented and the litigation
continues against the Company, the Company would continue to
defend against this action vigorously.
LUXOTTICA RETAIL: Removes "Sandoval" Labor Complaint to N.D. Calif
------------------------------------------------------------------
Michael Sandoval, on behalf of himself and others similarly
situated v. Luxottica Retail North America, et al., Case No.
RG10540197 (Calif. Super. Ct., Alameda Cty.), was filed on
October 6, 2010. The plaintiff accuses the eyewear retailer of
failing to pay overtime wages, failing to timely pay wages due at
termination, failing to provide itemized employee wage statements,
and failing to provide rest and meal periods, in violation of
California state wage and hour laws.
On the basis of diversity jurisdiction, Luxottica Retail North
America, on December 21, 2010, removed the lawsuit to the Northern
District of California, and the Clerk assigned Case No.
10-cv-05824 to the proceeding.
The Plaintiff is represented by:
James R. Hawkins, Esq.
Greg E. Mauro, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
- and -
Sean Sasan Vahdat, Esq.
LAW OFFICES OF SEAN S. VAHDAT & ASSOCIATES APLC
7700 Irvine Center Drive, Suite 800
Irvine, CA 92618
Telephone: (949) 788-2949
The Defendant is represented by:
Lynne C. Hermle, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
Telephone: (650) 614-7400
E-mail: lchermle@orrick.com
- and -
Julie A. Totten, Esq.
Sara E. Dionne, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814-4497
Telephone: (916) 447-9200
E-mail: jatotten@orrick.com
sdionne@orrick.com
MONIER CO: Faces Class Action Over Slurry-Coated Roofing Tiles
--------------------------------------------------------------
A statewide notice program authorized by the Placer County
Superior Court began on December 23, to issue notice to all
individuals and entities who own homes or other structures in the
State of California with Monier brand slurry-coated roofing tiles.
The notices are a result of the Court establishing or
"certifying," a class action lawsuit against Monier involving
representations made by Monier about the longevity and performance
of the exterior surface of the tiles.
The lawsuit includes (i) all individuals or entities in the State
of California who own structures with slurry-coated roof tiles
sold by Monier Company, Monier Roof Tile, Inc. or Monier Inc.
between January 1, 1978 and August 14, 1997 and (ii) all
Californian individuals and entities who paid to replace or repair
such Tiles. Membership in the Class is limited to those who were
exposed to a statement that the Tiles would have a 50 year life,
permanent color, or would be maintenance free. The Class excludes
the trial judge and his family, and defendants and their counsel.
There is also a CLRA Class that includes all Class members who own
or owned homes with the Tiles for personal, family or household
use.
Plaintiff alleges that Monier, a manufacturer and marketer of roof
tiles, has made false and misleading representations over a period
of years that its tiles:
(1) are free from manufacturing defects and will remain
structurally sound for a period of 50 years; are warranted for 50
years; and will last a lifetime and do not wear out
(2) have a permanent color glaze that requires no resurfacing;
have a virtually impenetrable color glaze; have color that will
last as long as the tile, with red tiles remaining red and brown
tiles remaining brown (with some softening of color to a uniform
finish); will always look good and have permanent color; and never
lose their basic aesthetic appeal; and
(3) need no care at all; and require no maintenance
Plaintiff alleges that Monier, against the backdrop of these
representations, knowingly failed to disclose that its tiles are
defective such that their material composition causes the exterior
surface of the tiles (including the glaze and slurry-coated color
exterior) to deteriorate, degrade, and disperse from the tiles
well in advance of their warranted 50-year useful life.
Monier denies the claims and allegations in the lawsuit and says
it has no liability for any of these issues. The Court has not
decided whether the Plaintiffs or Monier are right. By
establishing the Class and ordering that this Notice be provided,
the Court is not suggesting the Plaintiffs will win or lose this
case. The lawyers for the Plaintiffs must prove their case at a
trial. The date for trial has not yet been set.
The notices will appear in Sunday newspaper inserts, daily
newspapers and consumer magazines across the State of California
starting on December 24, 2010 and continuing through the end of
January 2011.
The Court appointed:
Jeffrey Cereghino, Esq.
MERRILL NOMURA & MOLINEUX
350 Rose Ave
Danville, CA 94526
Telephone: (925) 833-1000
- and -
Michael Ram, Esq.
LEVY, RAM & OLSON
639 Front Street, 4th Floor
San Francisco, CA 94111
Telephone: (415) 433-4949
Facsimile: (415) 433-7311
E-mail: mfr@lrolaw.com
to represent the Class as co-lead "Class Counsel."
Those who wish to remain members of the Class don't have to do
anything at this time and will be informed about any claims
process that results from the trial or any proposed settlement.
Class members will be bound by all orders and judgments of the
Court.
Individuals that are part of the Class may exclude themselves from
the Class. To do so, they must mail a written request. Exclusion
requests must be postmarked by February 21, 2011, and sent to
Monier Tile Exclusions, PO Box 4068, Portland, OR 97208-4068.
Class members who exclude themselves cannot get any money from the
case, and will not be bound by any court orders or judgments.
More information is available at the settlement Web site,
http://www.RoofingTilesClassAction.com/
The Court of Appeals Opinion on Remand, the Second Amended
Complaint, Monier's answer to the Second Amended Complaint and
other relevant documents are also available at the Web site.
Interested parties may also call toll-free at 1-877-797-6085 for
more information, or write to Monier Tile Class Action, P.O. Box
4068, Portland, OR 97208-4068.
MULTIMEDIA GAMES: Awaits Ruling on Motion to Dismiss "Bussey" Suit
------------------------------------------------------------------
Multimedia Games, Inc., is awaiting a court ruling on its motion
to dismiss a class action lawsuit filed by Walter Bussey in
Alabama, according to the Company's Dec. 10, 2010 Form 10-K filed
with the Securities and Exchange Commission for the fiscal year
ended September 30, 2010.
Walter Bussey, et al., v. Macon County Greyhound Park, Inc., et
al., a civil action, was filed on March 8, 2010 in the United
States District Court for the Middle District of Alabama Eastern
Division against the Company, Macon County Greyhound Park, Inc.
(VictoryLand), International Gaming Technologies, Inc., Cadillac
Jack, Inc., Colossus, Inc., Rocket Gaming Systems, LLC, Nova
Gaming, LLC, and Bally Gaming, Inc.
The plaintiffs, who were patrons of VictoryLand, originally sought
actual damages, compensatory damages, treble damages and/or
punitive damages based on both Ala. Code, Sec 8-1-150(A), and the
Racketeer Influenced and Corruption Organizations Act, 18 U.S.C.
sec 1961(1) and claim, in part, that the defendants conspired to
promote gambling and/or to advance or profit from gambling
activity in violation of Ala. Code Sec. 13 A-12-23 and have
requested that the court certify the action as a Class Action as
required under the Federal Rules of Civil Procedure.
On April 28, 2010, the Company filed a motion to dismiss the
entire complaint pursuant to Rules 12(b)(2), (5) and (6) of the
Federal Rules of Civil Procedure based, in part, on the grounds
that the plaintiffs failed to state a claim against the Company
upon which relief could be granted. After the Company filed its
motion to dismiss, Plaintiffs voluntarily dismissed their RICO
claim, leaving only a claim for recovery of gambling losses under
Ala. Code Sec. 8-1-150(A). All briefing on the Company's motion
has been completed. The court is expected to rule on the motion
in the near future. The Company continues to vigorously defend
this matter. Given the inherent uncertainties in this litigation,
the Company is unable to make any prediction as to the ultimate
outcome.
MULTIMEDIA GAMES: Discovery in "Hardy I" Suit Ongoing
-----------------------------------------------------
Multimedia Games, Inc., is engaged in discovery on class
certification issues in a lawsuit filed by Ozetta Hardy pending
Alabama, according to the Company's Dec. 10, 2010, Form 10-K filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended September 30, 2010.
Ozetta Hardy v. Whitehall Gaming Center, LLC, et al., a civil
action, was filed against White Hall Gaming Center, LLC,
Cornerstone Community Outreach, Inc., and Freedom Trail Ventures,
Ltd., in the Circuit Court of Lowndes County, Alabama. On June 3,
2010, Plaintiffs filed an amended complaint adding the Company,
IGT, Bally, Inc., Eclipse Gaming Systems, LLC, Video Gaming
Technologies, Inc., Cadillac Jack, Inc., and AGS, LLC. The
plaintiffs, who were patrons of White Hall, seek recovery of
gambling losses based on Ala. Code, Sec 8-1-150(A) and have
requested that the court certify the action as a Class Action as
required under the Federal Rules of Civil Procedure.
On July 2, 2010, the defendants removed the case to the United
States District Court for the Middle District of Alabama Northern
Division.
On July 9, 2010, the Company filed a motion to dismiss the
complaint pursuant to Rules 12(b)(2), (5) and (6) of the Federal
Rules of Civil Procedure based, in part, on the grounds that the
plaintiffs failed to state a claim against the Company upon which
relief could be granted. Plaintiffs had until August 13, 2010, to
respond to the motion.
On September 7, 2010, the court, without opinion, denied the
Company's (and other manufacturers') motion to dismiss. The court
has entered a scheduling order that bifurcates the case to allow
for resolution of class certification issues before consideration
of the merits. The parties are engaged in discovery on class
certification issues.
The Company continues to vigorously defend this matter. Given the
inherent uncertainties in this litigation, the Company is unable
to make any prediction as to the ultimate outcome.
MULTIMEDIA GAMES: Continues to Defend "Hardy II" Suit
-----------------------------------------------------
Multimedia Games, Inc., continues to defend itself against a class
action lawsuit filed by Ozetta Hardy, which seeks to recover
gambling losses, according to the Company's Dec. 10, 2010 Form
10-K filed with the U.S. Securities and Exchange Commission for
the fiscal year ended September 30, 2010.
Ozetta Hardy (II), a civil action, was filed on October 27, 2010,
in the United States District Court for the Middle District of
Alabama against the Company and other manufacturers of bingo
equipment, including IGT, Bally Gaming, Inc., Eclipse Gaming
Systems, LLC, Video Gaming Technologies, Inc., Cadillac Jack,
Inc., AGS, LLC, Nova Gaming, LLC, Gateway Gaming, LLC, WMS Gaming,
Inc., Rocket Gaming Systems, LLC, and Konami Gaming, Inc. The
plaintiffs, who were patrons of any one of three bingo facilities
in Alabama operated by the Poarch Band of Creek Indians, seek
recovery of gambling losses based on Ala. Code, Sec 8-1-150(A) and
have requested that the court certify the action as a Class Action
as required under the Federal Rules of Civil Procedure.
The Company filed a responsive pleading in mid-December 2010. The
Company continues to vigorously defend the matter.
NETWORK ENGINES: Appeals Pending in IPO Suit Settlement
-------------------------------------------------------
Network Engines, Inc., disclosed in its Dec. 10, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended September 30, 2010, that its settlement of a
class action lawsuit related to its initial public offering
remains subject to pending appeals.
On or about December 3, 2001, a putative class action lawsuit was
filed in the United States District Court for the Southern
District of New York against the company, Lawrence A. Genovesi
(its former Chairman and Chief Executive Officer), Douglas G.
Bryant (its Chief Financial Officer), and several underwriters of
its initial public offering. The suit alleges, inter alia, that
the defendants violated the federal securities laws by issuing and
selling securities pursuant to the company's initial public
offering in July 2000 without disclosing to investors that the
underwriter defendants had solicited and received excessive and
undisclosed commissions from certain investors. The suit seeks
damages and certification of a plaintiff class consisting of all
persons who acquired shares of the company's common stock between
July 13, 2000 and December 6, 2000.
In October 2002, Lawrence A. Genovesi and Douglas G. Bryant were
dismissed from this case without prejudice. On December 5, 2006,
the United States Court of Appeals for the Second Circuit
overturned the District Court's certification of a plaintiff
class. On April 6, 2007, the Second Circuit denied plaintiffs'
petition for rehearing, but clarified that the plaintiffs may seek
to certify a more limited class in the District Court. On
September 27, 2007, plaintiffs filed a motion for class
certification in certain designated "focus cases" in the District
Court. That motion has since been withdrawn. On November 13, 2007,
the issuer defendants in certain designated "focus cases" filed a
motion to dismiss the second consolidated amended class action
complaints that were filed in those cases. On March 26, 2008, the
District Court issued an Opinion and Order denying, in large part,
the motions to dismiss the amended complaints in the "focus
cases." On April 2, 2009, the plaintiffs filed a motion for
preliminary approval of a new proposed settlement between
plaintiffs, the underwriter defendants, the issuer defendants and
the insurers for the issuer defendants. On June 10, 2009, the
District Court issued an opinion preliminarily approving the
proposed settlement, and scheduling a settlement fairness hearing
for September 10, 2009. On October 5, 2009, the District Court
issued an opinion granting plaintiffs' motion for final approval
of the settlement, approval of the plan of distribution of the
settlement fund, and certification of the settlement classes. An
Order and Final Judgment was filed on December 30, 2009. Various
notices of appeal of the District Court's October 5, 2009 order
were filed. On October 7, 2010, all but two parties who had filed
a notice of appeal filed a stipulation with the District Court
withdrawing their appeals with prejudice, and the two remaining
objectors filed briefs in support of their appeals.
POSSIBILITIES COUNSELING: Social Workers Can Pursue Class Action
----------------------------------------------------------------
Kathryn Skelton, writing for Sun Journal, reports a U.S.
Bankruptcy Court judge agreed to drop an involuntary Chapter 7
bankruptcy action against Possibilities Counseling on Dec. 22,
clearing the way for two law firms to pursue the defunct Auburn
mental health agency in a class-action lawsuit on behalf of 550
social workers.
Attorney Greg Hansel, Esq. -- ghansel@preti.com -- at Preti,
Flaherty, Beliveau & Pachios, said the suit had been on hold while
the bankruptcy action, brought by some Possibilities Counseling
creditors, had been in place.
Possibilities Counseling, headed by Wendy Bergeron and
headquartered on Center Street, drew the state's attention in
August when most of its staff quit. Shortly after that, the
agency stopped paying the hundreds of therapists and case managers
who worked as independent contractors. Possibilities had served
as a billing go-between, submitting claims to MaineCare and other
insurers on the social workers' behalf and channeling money back
to them.
After receiving a conditional license and a list of issues to
address from the Maine Department of Health and Human Services,
Bergeron told the state she was going out of the mental health
business on Oct. 31.
Mr. Hansel estimated that the 550 people are owed more than $1
million. He said Preti Flaherty had agreed to work with the firm
Taylor, McCormack & Frame, which had also been pursuing a class-
action suit.
When Possibilities Counseling and Affiliate Funding, a local
company that had provided bridge-loan funding to Ms. Bergeron when
MaineCare payments lagged, both asked for the Chapter 7 status to
be dropped, and none of the creditors objected, Mr. Hansel said
U.S. Bankruptcy Court Judge James Haines Jr. agreed to dismiss it.
Lawyers for Possibilities and Affiliate Funding, owned by Emile
Clavet and Kevin Dean, did not return a call for comment on
Dec. 22.
Mr. Hansel said he planned to ask for a hearing in front of the
Maine Supreme Judicial Court's Business and Consumer docket to
pick the case back up and "appoint a referee and preserve funds so
they're not dissipated or incorrectly distributed."
The two firms are suing Possibilities, Bergeron, Affiliate,
Clavet, Dean and Foster Care Billing LLC on the social workers'
behalf.
"Possibilities and Affiliate are trying to dispense with the
independent referee," Mr. Hansel said. They want the social
workers to trust them, but the trust is gone. Our main goal is to
get the class members paid in full and accurately as soon as
possible."
RHODES COLLEGE: Accused in Calif. Suit of Defrauding Students
-------------------------------------------------------------
Courthouse News Service reports that a federal class action
accuses Rhodes College dba Everest College and their corporate
parent, Corinthian Colleges, of defrauding students through
misrepresentations.
A copy of the Complaint in Kimble v. Rhodes College, et al., Case
No. 10-cv-05786 (N.D. Calif.), is available at:
http://www.courthousenews.com/2010/12/23/ForProfit.pdf
The Plaintiff is represented by:
Matthew J. Zevin, Esq.
STANLEY IOLA LLP
525 B Street, Suite 760
San Diego, CA 92101
Telephone: (619) 235-5306
- and -
Marc R. Stanley, Esq.
Martin Woodward, Esq.
STANLEY IOLA LLP
3100 Monticello Avenue, Suite 750
Dallas, TX 75205
Telephone: (214) 443-4300
E-mail: marcstanley@mac.com
mwoodward@stanleyiola.com
- and -
Julie E. Johnson, Esq.
LAW OFFICE OF JULIE JOHNSON, PLLC
7557 Rambler Road, Suite 950
Dallas, TX 75231
Telephone: (214) 290-8001
E-mail: julie@juliejohnsonlaw.com
- and -
Brian R. Sherman, Esq.
LAW OFFICE OF BRIAN SHERMAN, PLLC
7557 Rambler Road, Suite 950
Dallas, TX 75231
Telephone: (214) 290-8001
RIDGELAND, SC: Faces Class Action Over Freeway Speed Camera
-----------------------------------------------------------
A federal class action lawsuit was filed on Dec. 20 against the
notorious speed camera trap in Ridgeland, South Carolina. Three
law firms teamed up to make the case against the town's outspoken
mayor, Gary Hodges, members of "the local police department and
iTraffic, the private company that operates the cameras on
Interstate 95. The case was filed on behalf of residents of
Greer, South Carolina; and Dunnellon and Kissimmee, Florida.
"Defendants have conspired to deprive plaintiffs' and class
members' property through illegal and unlawful arrests and have
collected fines and bonds absent jurisdiction in violation of the
constitution, the Fourth, Fifth, and Fourteenth Amendments and 42
U.S.C. Section 1985," attorney Pete Strom wrote in his filing with
the court.
The lawsuit questions whether Ridgeland can legally use a state
uniform traffic ticket to issue a citation under a municipal
ordinance. It questions whether a municipal court can take
jurisdiction over a driver served with a ticket in the mail, or
whether personal service is required. It also asks whether the
ticket issuing procedure represents a violation of the
constitutional right to due process.
"The plaintiffs and the class alleged that defendants conspired to
violate their civil rights to issue and improperly serve illegal
State of South Carolina Uniform Traffic Tickets primarily for the
purpose to generate revenue for the town," Mr. Strom wrote. "The
plaintiffs and the class have suffered damages as a result of the
defendants' civil rights violations, resulting in improper
forfeiture of bond and costs associated with court procedures."
The suit seeks an injunction prohibiting use of the freeway speed
camera program and monetary damages. Speed cameras and red light
cameras are illegal under South Carolina law. The Strom Law Firm,
Rutherford Law Firm, and Lord Law Firm will argue the case.
ROYAL BANK: Investors Mull Class Action to Recover Losses
---------------------------------------------------------
Louise Armitstead, writing for The Sunday Telegraph, reports a
group of British investors is considering bringing an American-
style class action legal case against the Royal Bank of Scotland
(RBS) in a bid to recover millions of pounds of losses incurred
when the bank collapsed in 2008.
The shareholders, thought to be mostly institutional managers, are
investigating the grounds on which a case could be based with a
view to bringing legal action early in the New year, The Sunday
Telegraph can reveal.
The claims are likely to focus on the RBS rights issue when the
now-nationalized bank tapped investors for GBP12 billion shortly
before requiring a GBP45 billion taxpayer bail-out.
One expert said: "In Britain, the legal case against RBS is
difficult because the Financial Services and Market Act requires
quite a high degree of 'intent' on the part of directors to bring
down a company -- mere negligence isn't enough. There are
some that believe the rights issue debacle might be enough to
build a case on."
Sources said that any legal action in the UK is likely to be led
by Andrew Onslow QC, one of the leading financial services
barristers.
On his chamber's Web site, Mr. Onslow is described as a specialist
in international and domestic banking and professional negligence,
"especially credit crunch disputes".
When contacted by The Sunday Telegraph, Mr. Onslow said he was
aware of a potential class action against RBS in the
UK, but he declined to answer any questions or comment further.
A potential case, which would be the first combined shareholder
effort brought against RBS in the UK, is likely to lean on the
cases being prepared on behalf of American shareholders in RBS.
The bank is the subject of at least two group cases in America
where class actions are often used as a cheaper way for a large
number of claimants to pursue similar legal action.
An American law firm, Girard Gibbs, has filed its class action
lawsuit in a Manhattan court to pursue the grievances of US
investors who purchased preferred shares in RBS between March 2007
and January 2009.
RBS has rejected the claims, but the lawyers are hopeful a New
York judge will make a ruling on whether there is a case to answer
in the New year.
So far, British and European investors have pursued individual
claims.
Cherie Blair has been hired by two local authority funds to seek
compensation for the "massive losses" incurred when RBS was bailed
out and the share price collapsed.
They claim that on multiple occasions RBS and Sir Fred Goodwin,
its former chief executive, "falsely reassured" investors that the
bank was in good health when it was "effectively insolvent"
because of bad loans.
The lawsuit is being taken on behalf of North Yorkshire and
Merseyside council pension funds, which have a combined value of
about GBP4 billion.
It names RBS and its entire board of directors, including the
former chairman Sir Tom McKillop, as defendants.
The collapse of RBS was again in the headlines recently when the
Financial Services Authority (FSA) refused to publish details of
an investigation into the bank it commissioned from
PricewaterhouseCoopers.
After coming under government pressure, the FSA relented and
agreed that it would publish some form of report in spring 2011.
Lawyers involved in the US class action have demanded that they
are allowed to see details of the FSA inquiry.
"We certainly think the report should be made public," Jonathan
Levine, an attorney at US law firm Girard Gibbs, told The Sunday
Telegraph in an interview earlier this month.
"Given the magnitude of what happened and the fact that RBS is now
essentially a governmental entity, there should be disclosure to
the public.
"The failure to make the report public also begs the question of
whether there is something to hide.
STUDENT LOAN: Agrees to Settle Shareholder Class Actions
--------------------------------------------------------
The Student Loan Corporation on Dec. 23 disclosed that the Company
and the other named defendants have entered into a memorandum of
understanding with plaintiffs' counsel in connection with putative
class action lawsuits filed in the Chancery Court for the State of
Delaware and the Superior Court of the State of Connecticut in
connection with (i) the Company's merger agreement with Discover
Financial Services and the merger contemplated thereby; (ii) the
Company's agreement with SLM Corporation pursuant to which
affiliates of SLM Corporation will acquire from the Company
certain securitized federal student loans and related assets; and
(iii) the Company's agreement with Citibank, N.A., pursuant to
which Citibank will acquire from the Company certain federal and
private student loans and other assets.
Under the terms of the memorandum, The Student Loan Corporation,
the other named defendants, and the plaintiffs have agreed to
settle the lawsuits, subject to court approval. The Company and
the other defendants deny all of the allegations of wrongdoing in
the lawsuits and believe their actions and the relevant
disclosures with respect to such actions are appropriate under the
law. Nevertheless, the Company and the other defendants have
agreed to settle the putative class action lawsuits in order to
avoid the burden and expense of continued litigation.
Pursuant to the terms of the memorandum, subject to the
effectiveness of the DFS Merger and certain other customary
conditions, including court approval of a final settlement
agreement, in consideration for the full settlement and release of
all defendants, the amount of $2.50 cash per share will be
distributed by Citibank to those persons who are the Company's
stockholders of record immediately prior to the effective time of
the DFS Merger (excluding Citibank, Discover and their
affiliates). At this point, the settlement agreement is not final
and is subject to a number of future events including approval of
the settlement by the Court. There can be no assurance as to the
timing of the payments described above.
The Student Loan Corporation (NYSE: STU) claims to be one of the
nation's leading originators and holders of student loans
providing a full range of education financing products and
services to meet the needs of students, parents, schools and
lenders. The company was previously a division of Citibank and
became a NYSE-listed corporation in 1992. Citibank, N.A. is the
majority shareholder. Citibank was one of the first banks to
finance higher education, beginning in 1958.
SUNNY DELIGHT: Sued for Making False Claims About Fruit2O Product
-----------------------------------------------------------------
Katie Lynn Burley, individually and on behalf of others similarly
situated v. Sunny Delight Beverages Co., Case No. 10-cv-05796
(N.D. Calif. December 21, 2010), accuses Sunny Delight Beverages,
which markets various fruit-flavored beverages, including a brand
of fruit beverages named "Fruit2O" essentials(TM)", of making
false, misleading, deceptive and fraudulent representations about
the Product, in violation of California's False Advertising Law.
Specifically, the Complaint says Sunny Delight's advertising
representation that the Product was "fortified with nutrients
equal to 2 servings of fruit" was misleading because the nutrient
levels contained in the Product were significantly less than the
levels found in the relevant fruit referred to in the Product
label. As a result of these misleading claims, Ms. Burley says
that Sunny Delight was able to charge a price premium for the
Product over other similar products that did not make those
misleading claims. As a direct result, she and other class
members suffered actual damages.
The Plaintiff is represented by:
Robert Chaffin, Esq.
THE CHAFFIN LAW FIRM
4265 San Felipe, Suite 1020
Houston, TX 77027
Telephone: (713) 528-1000
E-mail: robert@chaffinlawfirm.com
- and -
Howard W. Rubinstein, Esq.
THE LAW OFFICES OF HOWARD W. RUBINSTEIN
P.O. Box 4839
Aspen, CO 81612
Telephone: (832) 715-2788
E-mail: howardr@pdq.net
- and -
Harold M. Hewell, Esq.
HEWELL LAW FIRM
105 West F Street, Second Floor
San Diego, CA 92101
Telephone: (619) 235-6854
E-mail: hmhewell@hewell-lawfirm.com
TODD LILLIBRIDGE: Disgorgement of Unlawful Payments Sought
----------------------------------------------------------
Sydney Scarborough, on behalf of herself others similarly situated
v. Todd Lillibridge, et al., Case No. 2010-CH-53823 (Ill. Cir.
Ct., Cook Cty. December 21, 2010), accuses Todd Lillibridge and
Joseph Kurzydym, individually, and as former officers of
Lillibridge Healtcare companies n/k/a Lillibridge Healthcare
Services, Inc., of negotiating excessive and improper "parachute"
payments (nearly $14,700,000 in excess compensation which is
equivalent to roughly 75% of the net proceeds available to
minority shareholders after debt and transaction costs) for
themselves in the "cash-out" sale of LHRET, LHPT and LHP-B to
Veritas, Inc., for roughly $381,000,000.
Prudential Real Estate Investors, the majority shareholder of the
LHRET companies, Veritas, the acquiring company, and Lillibridge
Healthcare Services, now a wholly owned subsidiary of Veritas,
were named as Respondents in Discovery.
The Complaint requests accounting and disgorgement of the unlawful
payments made to Defendants from the sales proceeds of the
Companies on July 1, 2010, to return fair value to shareholders.
According to the Complaint, each Respondent in Discovery possesses
material and relevant information concerning the complicated
mergers-to-acquisition of the Lillibridge Companies necessary to
determine: (a) whether the special excess payments to Defendants
constituted self-interested transactions and deprived shareholders
of fair value; and, (b) whether the transactions, approved without
notice to minority shareholders in the absence of fairness
opinions, independent valuations or competitive bids, resulted in
deprivation of fair value to shareholders.
The Complaint further alleges that, based on evidence that sale
pricing was $37 million lower due to atypical cap rates applied,
and that improper allocations enriched Defendants at the expense
of minority shareholders, discovery from Respondents is needed to
determine fair value, particularly in light of "concealment of
critical documents, the absence of indicia of fairness and the
hastiness of the complex cash-out merger-to-acquisition."
Plaintiff Sydney Scarborough is a former Director, Executive
Officer and shareholder of the Lillibridge Healthcare companies at
the time of the mergers and "cash-out" sale to Veritas.
The Plaintiff is represented by:
Stephanie L. Matthews, Esq.
LAW OFFICES OF STEPHANIE MATTHEWS
520 N. Kingsbury, Suite 401
Chicago, IL 60654
TOYS "R" US: Awaits Court Approval of Consolidated Suit Settlement
------------------------------------------------------------------
Toys "R" Us, Inc., is still awaiting court approval of its
settlement of a consolidated class action lawsuit pending in
Pennsylvania, according to the company's Dec. 10, 2010, Form 10-Q
filed with the U.S. Securities and Exchange Commission for the
quarter ended October 30, 2010.
On July 15, 2009, the United States District Court for the Eastern
District of Pennsylvania granted the class plaintiffs' motion for
class certification in a consumer class action commenced in
January 2006, which was consolidated with an action brought by two
internet retailers that was commenced in December 2005. Both
actions allege that Babies "R" Us agreed with certain baby product
manufacturers to impose, maintain and/or enforce minimum price
agreements in violation of antitrust laws.
In addition, in December 2009, a third internet retailer filed a
similar action and another consumer class action was commenced
making similar allegations involving most of the same Defendants.
On or about May 19, 2010, the parties in the consumer class
actions reached a settlement in principle. As part of the
settlement, the Company will contribute $17 million to the overall
settlement for which the Company recorded a reserve in the first
quarter of fiscal 2010. The parties expect to negotiate a written
settlement agreement that will be subject to District Court
approval.
In addition, on or about October 6, 2010, the Plaintiffs, the
Company and certain other Defendants in the internet retailer
actions reached a settlement in principle pursuant to which the
Company will make a $5 million settlement payment. The parties
expect to enter a settlement agreement in the near future.
Finally, on or about November 23, 2010, the Company entered into a
Stipulation with the Federal Trade Commission ending the FTC's
investigation related to the Company's compliance with a 1998 FTC
Final Order and settling all claims in full. Pursuant to the
settlement, the Company will pay approximately $1 million in a
civil penalty.
TRUMP ORGANIZATION: Two Claims in Class Action Could Proceed
------------------------------------------------------------
South Florida Business Journal reports several claims in a lawsuit
against Donald Trump over a troubled resort in Fort Lauderdale
have survived the first attempts by his lawyers to dismiss them.
A federal judge in Miami ruled Dec. 23 that two claims against
Mr. Trump in a proposed class action lawsuit could proceed to the
next stage: certifying a class of plaintiffs.
Mr. Trump and his company, the Trump Organization, will face
further litigation over civil claims that they violated two
Florida laws in promoting the 298-unit beachfront project,
formerly known as the Trump International Hotel and Tower, which
has yet to open. A successor to the failed Corus Bank filed a
foreclosure action March 11 against developer SB Hotel Associates.
Mr. Trump's attorney, Alan Garten, claimed victory because U.S.
District Judge Adalberto Jordan dismissed many claims.
Buyers at the stalled project, including Trilogy Properties and
Gaetano Salerno and Joseph Salerno, filed the suit in May 2009.
Miami attorney Jared Beck represents the buyers.
Judge Jordan ruled that Mr. Trump could not be held responsible as
a developer in the project because purchase agreements made it
clear he was not. But, he also ruled that the lawsuit could go
forward on claims that Mr. Trump was an "agent" in the promotion
of the project.
"The judge threw out the substantive claims at an early stage in
the case," Mr. Garten said. "I believe it will be next to
impossible for the plaintiff to certify a class."
The resort was planned as a condo-hotel that presold in 2006, but
ran into trouble during construction and with its original lender,
the now-failed Corus Bank.
Mr. Trump's name was used on promotional literature, but he and
his company had argued they were not the developer and that they
had only licensed their name to the project, a deal that has been
cancelled. The building has stood empty for years.
Judge Jordan ruled on Dec. 23 that "nowhere do the plaintiffs
allege facts showing that Mr. Trump, Trump Organization or Trump
Florida either created a condominium or offered condominium
parcels for sale or lease in the ordinary course of business."
The Trump International project was co-developed by Stillman
Development International and Bayrock Group, both of New York
City. Representatives from both developers did not immediately
return calls seeking comment.
Several more substantive claims against SB Hotel Associates
survived. According to Judge Jordan's ruling: "The plaintiffs
allege that SB Hotel breached . . . contracts by not finishing the
building on time and by warning that the plaintiffs may not be
allowed to occupy their units even if they closed. The plaintiffs
have given SB Hotel deposits and nevertheless may not occupy the
units for which they contracted. I find that the plaintiffs have
alleged a valid contract, a material breach and damages, and so
have pleaded a breach-of-contract claim."
The two surviving claims against Mr. Trump are related to
Florida's Interstate Land Sales Act and the Florida Deceptive and
Unfair Trade Practices Act. Judge Jordan issued a 24-page order
in the suit.
He threw out one claim against Mr. Trump that he said could be
reinstated later if more evidence is uncovered regarding
Mr. Trump's license agreement with SB Hotel.
Construction started in 2005 with a design by internationally
renowned architect Michael Graves. Plans included a 5,000-square-
foot health club and spa, fitness center, restaurant, concierge,
valet, room service and 24-hour security.
The $200 million project was scheduled to open last year. The
developers have not announced when it will open. Financing for
individual condo-hotel unit buyers nearly disappeared when the
credit markets froze.
VERINT SYSTEMS: Continues to Defend Class Suit in Tel Aviv
----------------------------------------------------------
On March 26, 2009, a motion to approve a class action lawsuit and
the class action lawsuit itself (Labor Case No. 4186/09) were
filed against Verint Systems, Inc.'s subsidiary, Verint Systems
Limited, by a former employee of VSL, Orit Deutsch, in the Tel
Aviv Labor Court. Ms. Deutsch purports to represent a class of the
company's employees and ex-employees who were granted options to
buy shares of Verint and to whom allegedly, damages were caused as
a result of the blocking of the ability to exercise Verint options
by the company's employees or ex-employees. The Labor Motion and
the Labor Class Action both claim that the company is responsible
for the alleged damages due to its status as employer and that the
blocking of Verint options from being exercised constitutes
default of the employment agreements between the members of the
class and VSL. The Labor Class Action seeks compensatory damages
for the entire class in an unspecified amount.
On July 9, 2009, the company filed a motion for summary dismissal
and alternatively for the stay of the Labor Motion. A preliminary
session was held on July 12, 2009. Ms. Deutsch filed her response
to the company's response on November 10, 2009. On February 8,
2010, the Tel Aviv Labor Court dismissed the case for lack of
material jurisdiction and ruled that it will be transferred to the
District Court in Tel Aviv.
No further updates were reported in Verint Systems Inc.'s Dec. 10,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended October 31, 2010.
VODAFONE GROUP: May Face Customer Class Action in Australia
-----------------------------------------------------------
ABC News reports telecommunications company Vodafone could be sued
by thousands of its customers in a class action over reception
issues, drop-outs and poor data performance.
Vodafone customers have been using the grassroots Web site
vodafail.com -- set up two weeks ago by a disgruntled customer --
to vent their frustration about service.
Adam Brimo set up the site and says it has had more than 1,000
complaints since going live.
He believes a class action will attract a lot of customers.
"I'd be surprised if it was less than the number of complaints
we've had so far," he said.
Law firm Piper Alderman says it is investigating a class action
against the company to recover losses suffered by its customers
over the past three years.
It is calling for customers to register their interest in a class
action.
The law firm says "customers who signed up with Vodafone over the
last three years may be entitled to compensation if they were
misled into signing contracts or if Vodafone didn't live up to its
end of the bargain".
Mr. Brimo says he welcomes the news of a possible class action.
"We still don't know when these problems will be fixed," he said.
"If this class action helps that, then I think it's a great
victory."
Meanwhile, the ACCC has issued a statement saying it is aware of
reports that some of Vodafone's customers have been experiencing
problems, including call failures and slow data speeds.
But it says consumers should not break their contracts as a means
of addressing their concerns.
Vodafone's director of customer service has issued an apology on
the company's Web site for its "recent intermittent network
issues".
WASHINGTON: Sued Over Plan to Cut In-Home Medicaid Services
-----------------------------------------------------------
Courthouse News Service reports that Washington state is cutting
in-home Medicaid services by 10 percent on Jan. 1 "for budgetary
reasons alone," in violation of federal law and regulations,
patients and caregivers say in a federal class action.
A copy of the Complain in M.R., et al. v. Dreyfus, Case No.
10-cv-02052 (W.D. Wa.), is available at:
http://www.courthousenews.com/2010/12/23/MedicaidCuts.pdf
The Plaintiffs are represented by:
Andrea Brenneke, Esq.
MACDONALD HOAGUE & BAYLESS
705 Second Avenue, Suite 1500
Seattle, WA 98104
Telephone: (206) 622-1604
- and -
Stacey Leyton, Esq.
ALTSHULER BERZON
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
WASHINGTON MUTUAL: Judge Junks Workers' FLSA Action V. JPMorgan
---------------------------------------------------------------
Bankruptcy Law360 reports that a federal judge has ruled that
former underwriter employees for defunct Washington Mutual Inc.
can't sue the collapsed bank's parent company JPMorgan Chase & Co.
over wage-and-hour violations in a putative class action because
they failed to follow special procedures for suits against failed
institutions.
Based in Seattle, Washington, Washington Mutual Inc. --
http://www.wamu.com/-- is a holding company for Washington Mutual
Bank as well as numerous non-bank subsidiaries.
Washington Mutual Bank was taken over on Sept. 25, 2008, by U.S.
government regulators. The next day, WaMu and its affiliate, WMI
Investment Corp., filed separate petitions for Chapter 11 relief
(Bankr. D. Del. 08-12229 and 08-12228, respectively). WaMu owns
100% of the equity in WMI Investment. When WaMu filed for
protection from its creditors, it disclosed assets of
$32,896,605,516 and debts of $8,167,022,695. WMI Investment
estimated assets of $500,000,000 to $1,000,000,000 with zero
debts.
WaMu is represented by Brian Rosen, Esq., at Weil, Gotshal &
Manges LLP in New York City; Mark D. Collins, Esq., at Richards,
Layton & Finger P.A. in Wilmington, Del.; and Peter Calamari,
Esq., and David Elsberg, Esq., at Quinn Emanuel Urquhart Oliver &
Hedges, LLP. Fred S. Hodera, Esq., at Akin Gump Strauss Hauer &
Fled LLP in New York City and David B. Stratton, Esq., at Pepper
Hamilton LLP in Wilmington, Del., represent the Official Committee
of Unseucred Creditors. Stephen D. Susman, Esq., at Susman
Godfrey LLP and William P. Bowden, Esq., at Ashby & Geddes, P.A.,
represent the Equity Committee. Stacey R. Friedman, Esq., at
Sullivan & Cromwell LLP and Adam G. Landis, Esq., at Landis Rath &
Cobb LLP in Wilmington, Del., represent JP Morgan Chase, which
acquired WaMu's assets prior to the Petition Date.
XANODYNE PHARMA: May Face Class Suit Over Recalled Pain Killers
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Recently pulled from the market, Darvon and Darvocet prescription
pain relievers were commonly prescribed to patients undergoing
surgery, including cosmetic, knee and dental procedures. Darvon
and Darvocet contained the active ingredient propoxyphene, a
relatively weak narcotic designed to treat mild to moderate pain.
As of Nov. 2010, however, the FDA decided that propoxyphene's pain
relief benefits no longer outweighed its risks, which include
abnormal heart rhythms and fatal overdose, and requested that a
Darvon and Darvocet recall be issued. As a result of this action,
patients who used propoxyphene and suffered from Darvon or
Darvocet side effects may be entitled to financial compensation.
Visit http://www.classaction.org/darvon-and-darvocet.htmland
complete the free case evaluation form to find out if you can
participate in a Darvon class action lawsuit.
Darvon and Darvocet work to relieve pain by acting on the central
nervous system, rather than directly at the site of pain. Both
recalled propoxyphene products were prescribed for long-term and
short-term pain, including the discomfort experienced following a
surgical procedure. Darvon was helpful in certain individuals,
including those allergic to acetaminophen, while Darvocet aimed to
maximize pain relief benefits in users, as it contained both
propoxyphene and acetaminophen.
The drugs, however, were not without side effects. Darvon and
Darvocet received a black box warning in 2009 to highlight the
risk of fatal overdoses, both accidental and intentional
(suicide), in patients taking large doses and/or propoxyphene in
combination with alcohol or central nervous system depressants.
Most recently, Darvon and Darvocet were part of a propoxyphene
recall; this was issued after the FDA reviewed a study which
indicated that, even when taken in recommended dosages,
propoxyphene can dangerously interact with the electrical activity
of the heart.
Patients who have experienced Darvon heart problems, as well as
family members who lost loved ones due to a Darvocet suicide,
overdose or sudden cardiac death, may have legal recourse. The
Darvon attorneys working with Class Action.org are offering a free
legal evaluation to anyone affected by the serious side effects of
propoxyphene.
Class Action.org -- http://www.classaction.org/-- is dedicated to
protecting consumers and investors in class actions and complex
litigation throughout the United States. Class Action.org keeps
consumers informed about product alerts, recalls, and emerging
litigation and helps them take action against the manufacturers of
defective products, drugs, and medical devices. Information about
consumer fraud issues and environmental hazards is also available
on the site. Visit today for a no cost, no obligation case
evaluation and information about your consumer rights.
* Harvard Cancer Center Gets $11.7MM in Lupron Class Settlement
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Dana Farber/Harvard Cancer Center (DF/HCC) will launch a new
multi-million dollar grant award program focused on prostate
cancer research. It will be administered in collaboration with
the Prostate Cancer Foundation.
Judge Richard G. Stearns of the United States District Court for
the District of Massachusetts awarded DF/HCC approximately $11.7
million in a cy pres -- near as possible -- distribution of
unclaimed funds from the settlement of a nationwide class action
involving the marketing of the cancer drug Lupron(R). Judge
Stearns made the award to DF/HCC after reviewing a number of
proposals solicited from class members and the public.
The DF/HCC grant program will emphasize large-scale research
collaborations on a national level and smaller-scale innovative
pilot projects as well as research conducted by promising young
investigators and talented graduate students. The goal is to
catalyze innovative and collaborative research that will translate
to meaningful clinical advances for prostate cancer patients and
others.
"It is our vision that this program will further our scientific
and clinical understanding of prostate cancer, lead to better and
new treatments, and provide critical funds to young investigators
to help them develop into the next generation of prostate cancer
researchers," said Philip Kantoff, M.D, director of DF/HCC
prostate cancer program.
Under the direction of Mr. Kantoff, who also leads the prostate
cancer program at Dana-Farber Cancer Institute, the A. David
Mazzone Awards Program will primarily fund research in the causes
of prostate cancer as well as research in other diseases, like
precocious puberty, for which Lupron has proven an effective
treatment. The program leverages existing DF/HCC infrastructure
and funding mechanisms, as well as a longstanding, collaborative
relationship with PCF. DF/HCC and PCF will each administer
research funds through their respective competitive grant
programs. A call for applications is expected to occur in early
2011.
Dana-Farber/Harvard Cancer Center is the largest comprehensive
cancer center in the country, bringing together the cancer
research efforts of seven Harvard or Harvard-affiliated
institutions: Beth Israel Deaconess Medical Center, Brigham and
Women's Hospital, Children's Hospital Boston, Dana-Farber Cancer
Institute, Harvard Medical School, Harvard School of Public
Health, and Massachusetts General Hospital. Funded by a grant from
the National Cancer Institute, DF/HCC consists of more than 1,000
researchers with a singular goal -- to find new and innovative
ways to combat cancer.
The Prostate Cancer Foundation is the world's largest
philanthropic source of support for accelerating the world's most
promising research for discovering better treatments and cures for
prostate cancer. Founded in 1993, the PCF has raised more than
$400 million and provided funding to more than 1,500 researchers
at nearly 200 institutions worldwide.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Copyright 2010. All rights reserved. ISSN 1525-2272.
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