/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110110.mbx C L A S S A C T I O N R E P O R T E R Monday, January 10, 2011, Vol. 13, No. 6 Headlines ADELPHIA COMMS: Plaintiff Firms Shortchanged in Class Action BEACON, NY: Business Owners Mull Class Action to Get Tax Refund BLACK DIAMOND EQUIP: Recalls 3,500 Avalung Backpacks CERTAINTEED CORP: ClassAction.Org to Review Bad Siding Claims GETFUGU INC: Faces Shareholder Class Action in Delaware GOOGLE INC: Faces Class Action in Canada Over Buzz Program GREYHOUND LINES: Stranded Passengers Mull Class Action HELZBERG DIAMONDS: Sued Over Hearts & Arrows Diamonds JC PENNEY: Sued for Not Paying Overtime to Workers JPMORGAN CHASE: Faces Class Action in Wisconsin Over Robo-calls LERNER SAMPSON: Sued in Ohio Over Frivolous Foreclosure Actions POWER BALANCE: Faces Class Action for False Advertising RADIOSHACK CORP: Sued in Fla. for Misclassifying Store Managers SOCORRO ELECTRIC: Former Co-Op Officials Face Class Action SYNDERO INC: Sued Over False Claims on Dermitage Product TORONTO COMMUNITY: Fire Victims to Get More From Class Action VODAFONE GROUP: 9,000 Customers to Join Aussie Class Action GLAXOSMITHKLINE PLC: Lawyers to Review Claims Over Avandia Drug US TELECOM FIRMS: 7th Cir. Allows "Text Message" Suit to Proceed * Seyfarth Sees 2011 as Tipping Point for Workplace Class Action ********* ADELPHIA COMMS: Plaintiff Firms Shortchanged in Class Action ------------------------------------------------------------ Nate Raymond, writing for The American Lawyer, reports a $22 million New York state supreme court suit filed late last month by Bernstein Litowitz Berger & Grossmann and Berman DeValerio reveals the dealmaking that led up to the selection of lead counsel in the Adelphia Communications case -- and it ain't pretty. Here's the backstory. The Adelphia class action ended in 2006 with $455 million in settlements from Deloitte & Touche and almost three dozen banks. In 2007 Manhattan federal district court judge Lawrence McKenna approved $97 million in fees for the plaintiffs lawyers, who were led by class counsel from Abbey Spanier Rodd & Abrams and Kirby McInerney. But it turns out that Abbey Spanier and Kirby McInerney had a little help en route to their lead counsel appointment, according to the Bernstein Litowitz and Berman DeValerio complaint. The complaint asserts that Bernstein and Berman agreed in 2003 to withdraw a competing bid to lead the case. All four plaintiffs firms, according to the complaint, signed a contract in which, in exchange for Bernstein and Berman dropping their lead counsel motion, Abbey and Kirby pledged to support the other firms' clients as class representatives in future complaints in the Adelphia litigation and to give Bernstein and Berman 25 percent of the legal work in the case. In the years since, Bernstein Litowitz and Berman DeValerio assert, they "completed every assignment they were given and repeatedly sought out additional assignments" from Abbey Spanier and Kirby McInerney. But Abbey and Kirby "rebuffed" the firms' "good faith efforts" to take on more work, the complaint says. Bernstein Litowitz and Berman DeValerio alleged that they did not even know about the Deloitte and bank settlements until they were already negotiated, despite the firms' right, under their deal, to participate in all major decisions. Part of the problem, the complaint suggests, is that the four plaintiffs firms actually had two different contracts. The first agreement, signed in September 2003, stipulated that Abbey and Kirby would give "not more than 25 percent" of the legal work to Bernstein Litowitz and Berman DeValerio. But according to the complaint, that wasn't what Bernstein and Berman believed they had agreed to. So Max Berger at Bernstein Litowitz talked to Abbey Spanier partners Arthur Abbey and Judith Spanier, and both sides agreed to revise the language to say that Berman and Bernstein would get assignments "intended to generate 25 percent" of the combined legal work. Nevertheless, after the 2006 settlement, Robert Stone of Kirby McInerney claimed the original contract prevailed, according to the suit. After Judge McKenna awarded $97 million in fees, Abbey and Kirby kept $84 million, allocating only $3.5 million to Bernstein and Berman. This is not the first time a law firm has disputed the allocation of fees by Abbey Spanier and Kirby McInerney in the Adelphia litigation. In October, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled against Chimicles & Tikellis, which had sued to boost its share of the Adelphia fees from a lowly $155,610 to $17 million. "Although Abbey and Kirby were no doubt on the stingy side when it came to compensating their brethren, we have not been convinced that the district court abused its discretion in approving class counsel's allocation," the panel ruled. The American Lawyer reached out to lawyers and spokespeople at Bernstein, Berman, Abbey, and Kirby but did not hear back. Bernstein Litowitz and Berman DeValerio are represented by Gregory Joseph of the Gregory P. Joseph Law Offices. He did not return a call seeking comment. Gregory P. Joseph Law Offices may be reached at: GREGORY P. JOSEPH LAW OFFICES 485 Lexington Avenue, 30th Floor New York, NY 10017 Telephone: (212) 407-1200 BEACON, NY: Business Owners Mull Class Action to Get Tax Refund --------------------------------------------------------------- Susan Campriello, writing for Poughkeepsie Journal, reports a group of business owners will seek a class action suit against Beacon and its former administrator to recover taxes it says it overpaid during a 12-year span beginning in the mid-1990s. The taxpayers seek a refund of the money they overpaid between 1996 and 2008 due to a tax rate miscalculation made during the time Joseph Braun was the city's administrator. Jamie Piccone, a plaintiff, estimated he and other business owners overpaid $2 million in total. If the lawsuit is successful, that amount would be divided among all the business owners in the class action, he said. "We just want our fair share back," he said. The city's lawyer in the case, Michael Rhodes-Devy, of Albany, declined to comment. In December, Dutchess County Judge James D. Pagones ruled that the owners of 63 commercial properties who originally brought a lawsuit against the city at the end of 2009 to recoup their overpaid taxes did so too late. The ruling dismissed the claim for recovery but allowed the taxpayers to amend their lawsuit to include Mr. Braun as a defendant, said Timothy P. McElduff Jr., a New Windsor attorney representing the business owners. He may be reached at: Timothy P. McElduff Jr., Esq. DRAKE, LOEB, HELLER, KENNEDY, GOGERTY, GABA, RODD PLLC 555 Hudson Valley Avenue Suite 100 New Windsor, NY 12553 Telephone: 845-561-0550 E-mail: tmcelduff@drakeloeb.com Mr. McElduff said the ruling also permits his clients to amend the lawsuit to become a class action. Mr. McElduff said his clients are pleased with the decision despite its rejection of their original claim for recovery. "While this is just the beginning of this lawsuit, it is the first step to holding Beacon and its former administrator responsible for the injustices they have committed," Mr. McElduff said. The class action petition was received by the Dutchess County Clerk's Office on Dec. 30. The business owners also have filed a case against the city, Dutchess County and the Beacon school district before the court in which they seek a tax credit or refund for property taxes they say they overpaid in 2007 and 2008 and a refund of school taxes they say were overpaid between 2006 and 2008. BLACK DIAMOND EQUIP: Recalls 3,500 Avalung Backpacks ---------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Black Diamond Equipment, Ltd., of Salt Lake City, Utah, announced a voluntary recall of about 3,500 Avalung backpacks. Consumers should stop using recalled products immediately unless otherwise instructed. The air intake tubing can crack under cold temperatures, causing the unit not to function as intended, posing a suffocation hazard. The company has received one report of an air intake tubing cracking. No injuries have been reported. This recall involves the following Black Diamond 2010 Avalung backpacks. These backpacks have an air intake system that the company states extracts air from the snow, allowing the victim of an avalanche to breathe while buried under the snow. The model name and color are printed on the side of the backpack. The PO number is printed on a white label inside the backpack. Backpack Model Color Size PO Number -------------- ----- ---- --------- Anarchist Black M/L 101153, 101254 S/M 101104 Bandit Black One Size 101052, 100981 Green Olive One Size 100957 Seth Plaid Red One Size 101030 Seth Plaid Orange One Size 101254 Outlaw Black M/L 101104, 101271, 101254 Green Olive S/M 100981, 101052 Agent Black M/L 101104, 101153 Ocean Print S/M 101104 Covert Black M/L 101104, 101254, 101330, 101287 S/M 101030 Revelation Black M/L 101254, 101104, 101287 Chili M/L 101213, 101254, 101030, 101052 S/M 101104 Bandit Avalung Package Black One Size 101322, 101330, 101052 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11084.html The recalled products were manufactured in China and sold through specialty outdoor and ski shops nationwide from January 2010 through December 2010 for between $180 and $280. Consumers should immediately stop using these recalled backpacks and contact Black Diamond Equipment to receive a free replacement product or a full refund. For additional information, contact Black Diamond collect at (801) 278-5533 anytime or visit the company's Web site at http://www.BlackDiamondEquipment.com/AvaLungRecall/ CERTAINTEED CORP: ClassAction.Org to Review Bad Siding Claims ------------------------------------------------------------- Homeowners who have experienced problems with CertainTeed WeatherBoards fiber cement exterior siding may have legal recourse. CertainTeed Corp is facing a putative class action which alleges that this product is defective and that the company has failed to uphold the terms of its product warranties. The complaint alleges that since at least 2002 the company has manufactured and sold defective siding and failed to properly design and test its products before their release into the marketplace. If you have experienced CertainTeed fiber cement siding problems, you may be able to file a claim for damages. Visit http://www.classaction.org/certainteed-fiber-cement-siding.html today and complete the free case evaluation form to find out if you have legal recourse. Property owners who are experiencing problems with the CertainTeed WeatherBoards fiber cement exterior siding products have reported a number of issues. Potential CertainTeed siding problems include the following: cracking; warping; shrinking; and gapping between siding boards. Additionally, two plaintiffs in the putative class action against CertainTeed allege that they submitted a claim for their fiber cement siding problems, but the company failed to uphold the warranty's terms. If you have experienced cracking, warping, gapping or shrinking of CertainTeed siding, visit Class Action.org to receive a free review of your potential fiber cement siding problems claim. The attorneys working with the site are offering this online consultation at no cost and remain dedicated to protecting the rights of homeowners who have experienced CertainTeed fiber cement siding problems. Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.org/today for a no cost, no obligation case evaluation and information about your consumer rights. GETFUGU INC: Faces Shareholder Class Action in Delaware ------------------------------------------------------- Courthouse News Service reports that Remington Global Capital bought up all of GetFugu's assets, valued at $35 million to $52 million, through a $170,000 short-term loan, shareholders say in a derivative class action in Federal Court. A copy of the Complaint in Warnock v. GetFugu, Inc., et al., Case No. 99-mc-09999 (D. Del.), is available at: http://www.courthousenews.com/2011/01/05/GetFugu.pdf The Plaintiff is represented by: Kenneth L. Dorsney, Esq. Peter B. Ladig, Esq. MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801-1494 Telephone: (302) 888-6855 E-mail: kdorsney@morissjames.com - and - Richard J. Oparil, Esq. PATTON BOGGS LLP 2550 M Street, NW Washington, DC 20037 Telephone: (202) 457-6000 GOOGLE INC: Faces Class Action in Canada Over Buzz Program ---------------------------------------------------------- Kevin Rollason, writing for Winnipeg Free Press, reports a Manitoban is suing Google for unspecified damages in a class- action suit over alleged problems with the launch of Google's Buzz program earlier this year. It took information from user email and integrated it with social networking accounts like Facebook. Lawyer Norman Rosenbaum is acting for Tyler Wereha, of Rosa, Manitoba. Mr. Rosenbaum alleges that even though Google told users on Feb. 9 they had a choice whether or not to activate Buzz, Google automatically activated it on users' Gmail accounts. "It's a breach of privacy," Mr. Rosenbaum said. "It automatically affected all of your followers. Even if you said you didn't want to have your email list forwarded, it did it anyway." The statement of claim, filed in Manitoba Court of Queen's Bench last week, alleges anyone who has exchanged at least one email with a person could add that person to their Buzz "following" list and immediately see private information, including the user's profile, Buzz posts and follower and followings lists. Information available to everyone "following" the user could contain the user's occupation, where they live and contact information. The lawsuit asks the courts to put a permanent injunction on Google, preventing it from operating Buzz in "a deceptive and unfair manner whereby causing the unwanted disclosure of personal information." Because it's a class-action suit, other complainants can sign on. Mr. Rosenbaum said it has been alleged that some of the email addresses forwarded in the U.S. included doctors' email addresses from patient email directories. "When Facebook made changes, they provided hard-to-follow directions, but at least there were some," Mr. Rosenbaum said. Google Buzz troubled the federal privacy commissioner's office when it was launched in February. In November, Google proposed an $8.5-million settlement in the U.S. over a Buzz class-action privacy lawsuit, but didn't admit fault and suggested users had misunderstood the system. Mr. Rosenbaum said under Manitoba law, each privacy breach can bring $5,000 in damages. None of the allegations in the statement of claim has been proven in court A spokesman for Google could not be reached for comment. Rosa is 85 kilometres south of Winnipeg on Highway 59. GREYHOUND LINES: Stranded Passengers Mull Class Action ------------------------------------------------------ Jodi Lundmark, writing for tbnewswatch.com, reports Greyhound Lines Inc. could have avoided a possible class action lawsuit if they'd spoken to the more than 100 passengers stranded for 14 hours in White River on Jan. 3 and offered a formal apology. "We were OK with refunds, possibly credits, but now we're past that point because we feel they've ignored us," said Elaine Legarde. "We're angry now, so we've had enough." The Thunder Bay woman was traveling from Oshawa, where she was visiting her son, to Thunder Bay when the bus stopped for a routine driver-switch in White River. The two buses had stopped at 3:00 a.m. and were stuck in the north shore community because of highway closures on both sides of the town one of the drivers told Ms. Legarde. The closures also delayed the arrival of the replacement drivers. Ms. Legarde said the passengers were initially told their driver would arrive at 2:00 p.m. Then it was 2:30 p.m., then 3:00 p.m. and then 4:00 p.m. An OPP officer told Ms. Legarde the highways had reopened at 6:00 a.m. that day. The buses finally left White River at 5:00 p.m. The normally 22-hour trip from Oshawa to Thunder Bay took a total of 32 hours, Ms. Legarde said. Passengers passed the time on the bus or by waiting in a nearby doughnut shop. She phoned three different Greyhound offices around 2 p.m.; all of them were closed. She also tried the bus service's toll free number and received no answer. "The worst part was not being spoken to, being ignored, the feeling of abandonment," she said, adding that while one of the drivers was in contact with a Greyhound official, no inquiries were made about the passengers comfort or safety. "They never said anything about coffee, blankets, warmth, medication, if there were special needs, if there were seniors, children, pregnant women, diabetics, heat patients, nothing," said Ms. Legarde, a registered nurse. The first concern for Ms. Legarde was Greyhound's lack of safety protocol. "I feel they need to put something in place so this doesn't ever happen again," she said. "In light of past horrendous tragedies that have happened on Greyhound (recently), nothing has been done. There is no behavioral change on the part of management or at the corporate level. Greyhound issued a statement laying the blame for the delay on "unforeseen weather conditions and resulting road closures." "We sincerely apologize for the lack of communication provided to our passengers, as well as the inconvenience and concern this caused," it said. The company says they are conducting a full investigation and modify their procedures to ensure something like this does not happen again. Greyhound spokesman Tim Stokes told the Canadian Press the company "will be working with each customer individually" over compensation. But it may be too late as some passengers, including Ms. Legarde, have already retained a lawyer who she says has experience with class action suits involving Greyhound. Greyhound Offered $100 Consolation Colin Perkel, writing for The Canadian Press, reports that passenger Paul Hitchin said some passengers had been offered $100, which he called inadequate. According to Canadian Press, paramedic student, Steve Youden, 28, discovered he had missed his connection from Thunder Bay, Ont., to Fort Frances, Ontario. Greyhound told him he would have to wait two days at the terminal for another bus or could buy a ticket at triple the price of the original for a roundabout route to his destination. "It was basically 'Sorry, there's nothing else we can do'," Mr. Youden said. Instead, he found a cheap hotel, and managed to bum a ride to Fort Frances with other guests. Canadian Press relates Elaine Legarde, 47, a registered nurse from Thunder Bay, Ont., said she was looking into launching a class- action lawsuit. Her ticket from Toronto cost $234.48, but the $100 she saved by taking the bus rather than flying was eaten up by the costs incurred at the stop, she said. "There was just no safety plan; these drivers just left us to fend on our own," Ms. Legarde said Tuesday. "Five hours is an inconvenience. Thirteen hours is an injustice. That's on the border of abuse and abandonment." Roofer Jason Hollingsworth, 24, who was en route from Truro, N.S., to Calgary, said the delay cost him two days of work. "They didn't offer us an apology, no nothing," he said. "I'm never going to use Greyhound again." Canadian Press also relates a Greyhound driver told the passengers it was snowing out and to "sit tight." He then checked in at a nearby motel. "That was the last we seen of our driver," said Mr. Hitchin, who paid $600 for his round trip, and was en route from Barrie, Ontario. Canadian Press says the passengers weren't buying Greyhound's weather explanation. They said there was a short-lived road closure, but complained they watched in frustration as other buses, trucks and cars whizzed for hours before they finally got going again. HELZBERG DIAMONDS: Sued Over Hearts & Arrows Diamonds ----------------------------------------------------- Rob Bates, writing for Jewelers' Circular Keystone, reports a class action complaint filed Jan. 3 alleges diamonds advertised by Helzberg Diamonds as being "hearts and arrows" stones do not actually show that pattern. The suit was filed in the U.S. District Court for the Western District of Missouri by Sara Khaliki, a California citizen who claims to have purchased a Helzberg Diamond Masterpiece in 2010. It seeks class action status. The suit says that while Helzberg Diamond Masterpieces are advertised as "hearts and arrows" stones, "in 2005, Helzberg decided to increase its revenues by selling its customers Helzberg Diamond Masterpieces that . . . were instead "princess" diamonds . . . cut using very different faceting patterns and proportions than hearts and arrows diamonds." "The quality of the princess-cut is highly subjective, lacking the objective certainty of a premium cut that the presence of hearts and arrows provides consumers," the suit continues. It asks for unspecified damages. Helzberg declined comment. At press time, the company had not filed a response to the suit. JC PENNEY: Sued for Not Paying Overtime to Workers -------------------------------------------------- Courthouse News Service reports that a Los Angeles Superior Court class action claims J.C. Penney stiffs workers for overtime. JPMORGAN CHASE: Faces Class Action in Wisconsin Over Robo-calls --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims JPMorgan Chase Bank and Chase Auto Finance use robo-dialing systems to call cell phones of people who have no accounts with Chase, but who are billed for the unwanted robo-calls. A copy of the Complaint in Eichner v. JPMorgan Chase Bank, NA, et al., Case No. 11-cv-_____ (E.D. Wis.), is available at: http://www.courthousenews.com/2011/01/05/ChaseBank.pdf The Plaintiff is represented by: Robert K. O'Reilly, Esq. John D. Blythin, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 E-mail: roreilly@ademilaw.com - and - Peter G. Safirstein, Esq. Andrei V. Rado, Esq. Anne Marie Vu, Esq. MILBERG LLP One Pennsylvania Plaza, 49th Floor New York, NY 10119 Telephone: (212) 594-5300 E-mail: avu@milberg.com LERNER SAMPSON: Sued in Ohio Over Frivolous Foreclosure Actions --------------------------------------------------------------- Courthouse News Service reports that a class action claims the Lerner, Sampson & Rothfuss law firm has a pattern of filing and prosecuting foreclosure actions on behalf of clients who lack the standing to bring such actions, and files misleading affidavits to try to persuade the court that their clients do have such standing. A copy of the Complaint in Turner, et al. v. Lerner, Sampson & Rothfuss, Case No. 11-cv-744997 (Ohio C.P. Ct., Cuyahoga Cty.) (Russo, J.), is available at: http://www.courthousenews.com/2011/01/05/Foreclose.pdf The Plaintiffs are represented by: James R. Douglass, Esq. JAMES R. DOUGLASS CO. LPA 20521 Chagrin Blvd., Suite D Shaker Heights, OH 44122 Telephone: (216) 991-7640 E-mail: firedcoach@aol.com - and - Marc E. Dann, Esq. LAW OFFICES OF MARC DANN 20521 Chagrin Blvd., Suite D Shaker Heights, OH 44122 Telephone: (216) 373-0539 E-mail: mdann@dannlaw.com POWER BALANCE: Faces Class Action for False Advertising ------------------------------------------------------- On Tuesday, January 4, 2011, plaintiff attorneys Panish Shea & Boyle and Filippo Marchino of the X-Law Group filed a nationwide class-action lawsuit against the makers of the Power Balance bracelet. The suit alleges unfair business practices and false advertising. The suit was filed in the United States District Court for the Central District of California, Southern Division, and has been assigned to Judge Cormac J. Carney. The suit alleges that Power Balance advertised that "Mylar holograms" at the center of their bracelets were "embedded with frequencies that react positively with a body's natural energy field." Power Balance touted that their bracelets would produce "faster synaptic response (brain function), enhanced muscle response (in both fast and slow twitch tissues), increased stamina (better oxygen uptake and recovery), more flexibility (faster recovery) and very improved gravitational balance." But upon investigation by Australian authorities, Power Balance ultimately admitted in writing that they had no credible scientific evidence that their bracelets worked, and that it had in fact engaged in misleading conduct in breach of Australian law. An investigation by the two southern California law firms that filed the suit revealed that Power Balance was engaged in the same misleading trade practices in the United States. The law firms filed the suit hours before the Associated Press published a nationwide story about Power Balance's admission of having no evidence that their product worked. It is estimated that in excess of 3 million people were deceived, including numerous high-profile athletes. Information for consumers who purchased Power Balance products will be available on http://www.powerbalanceclassaction.com/ The case is Batungbacal vs. Power Balance LLC et al., Case No. 11-cv-18 (C.D. Calif.). RADIOSHACK CORP: Sued in Fla. for Misclassifying Store Managers --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims RadioShack classifies workers as store managers though they cannot hire or fire and spend most of their time on sales, and pays them only $3 an hour extra for overtime. A copy of the Complaint in Hancock, et al. v. RadioShack Corporation, Case No. 11-cv-00011 (M.D. Fla.), is available at: http://www.courthousenews.com/2011/01/05/RadioShack.pdf The Plaintiffs are represented by: Mark W. Fox, Esq. FELDMAN, FOX AND MORGADO, P.A. 1805 SE 16th Avenue, Suite 902 Ocala, FL 34471 Telephone: (352) 402-0947 E-mail: mfox@fllitigation.com SOCORRO ELECTRIC: Former Co-Op Officials Face Class Action ---------------------------------------------------------- El Defensor Chieftain reports District 5 trustee Charlie Wagner was on the defensive during Socorro Electric Cooperative's board of trustees meeting on Dec. 22, charged with some of the same transgressions he's accused his colleagues of in the past. Mr. Wagner is, in fact, named as representative of the class of member-owners in a proposed class action lawsuit against his fellow trustees and four other former co-op officials. The request for class action certification comes as part of a counterclaim in response to a lawsuit the co-op filed against its approximately 10,000 member-owners last summer. Among other things, the counterclaim alleges trustees engaged in "fraudulent behavior or acts or omissions done in bad faith." Several trustees spoke out against Mr. Wagner during the meeting, saying he was guilty of that same kind of behavior. In Defense of Wagner At the outset of the meeting during the public comment period, Virginia Martin, a member-owner residing in District 1, admonished the board and trustee Donald Wolberg in particular for their treatment of Mr. Wagner. "Mr. Wolberg's attacks on Mr. Wagner are totally uncalled for and totally offensive," she said, and referred to the November meeting when Mr. Wolberg turned to Mr. Wagner and told him, "senility is not an excuse for stupidity." "That was beyond the pale," she said. Ms. Martin went on to say that because the other trustees allowed Mr. Wolberg to be so rude, "that makes me think the rest of you are unprofessional." Ms. Martin returned to Mr. Wolberg, calling him "ignorant" for repeatedly making insinuations that Mr. Wagner was using co-op money to fund the countersuit and pay "his Texas attorneys." She said the truth was that attorneys were being paid by members contributing to a fund set up for their legal defense. But that didn't stop Mr. Wolberg and others from making accusations against Mr. Wagner over the course of a meeting that lasted nearly 3 1/2 hours. Mountain or Molehill? During approval of expenditures, District 3 trustee Milton Ulibarri questioned two payments made to Mr. Wagner for attending New Mexico Rural Electric Cooperatives Association and Environmental Improvement Board meetings. "The spreadsheet shows $1,200 was paid twice for attending meetings, and he hasn't paid that back," Mr. Ulibarri said. Mr. Ulibarri made the point that when he was the co-op's NMREC representative that he paid back $2,501 worth of expenses he incurred for attending three meetings last summer, then got up from the table and provided an El Defensor Chieftain reporter with a receipt to prove it. Mr. Wagner said he fully intended to pay the money back. He told the others that he had written a letter to co-op attorney Dennis Francish inquiring where he stood in terms of the $10,000 expense limit trustees are allowed to incur in a year so he could pay back the balance. Mr. Wagner said he only got a written response from Mr. Francish that night and he hadn't even opened the envelope. Trustee Leo Cordova claimed what Mr. Wagner was doing was no different than what two former co-op managers fired in August did when they borrowed money from the co-op and didn't pay it back in a timely manner. To that, Mr. Wagner responded, "You're making a mountain out of a molehill," which drew laughter from several members of the board. Out of Order The matter came up again later in the meeting when co-op President Paul Bustamante said that Mr. Wagner was in violation of the bylaw covering spending limits by attending the NMRECA meeting. Trustee Dave Wade added that Mr. Wagner violated it again when he went to the EIB meeting. Mr. Wade also claimed that Mr. Wagner had taken $900 for a trip to Biloxi, Miss., that he didn't have coming and accused him of referring to a Hispanic trustee as a "Mexican Chihuahua." "Do we let this man do what he wants and tell us all what to do?" Mr. Wade asked. Messrs. Wade and Cordova both charged Wagner with trying to "steal" money from the co-op. Mr. Ulibarri then made a motion, seconded by Mr. Wolberg, that Wagner pay back the money he owed and the motion easily passed. That wasn't the end of it, however. Mr. Wolberg made the claim that Mr. Wagner had accrued $210,000 in expenses over the course of four years. "Add to that that I'm a serial killer," Mr. Wagner responded in jest. Tensions increased further a few minutes later when Mr. Bustamante called for an executive session just before Mr. Wagner was going to bring up a matter under the agenda item "subjects by trustees." When Mr. Bustamante failed to acknowledge him, Mr. Wagner whacked the table with papers he was holding and stood up. "Mr. Chairman, you're out of order. You didn't give me a chance to make my motion," Mr. Wagner said. Mr. Ulibarri, who was seated to Mr. Wagner's left, then stood up, turned to Mr. Wagner and said, "You're out of order right now. You're out of order right now," repeating the phrase several times while Mr. Wagner continued his protest. Getting His Chance After the 35-minute executive session Mr. Wagner did have a chance to make his motion, which was to seek outside counsel to eliminate the risk of EEOC claims before hiring a new general manager. The motion died for lack of a second. Mr. Wagner made another motion that trustees not be allowed to "borrow" from their expense allowance from the upcoming year, which also failed to be seconded. Yet another motion from Wagner did receive a second from Prescilla Mauldin. That motion called for trustees and employees to produce receipts for reimbursements when money was advanced to them. It was defeated 7-2, with Mr. Wagner and Ms. Mauldin voting in favor. The board of trustees will hold a special meeting on Tuesday, Jan. 11, at 5:30 p.m. to elect officers to 2011. The matter of a petition to recall Bustamante as trustee will also be addressed at that meeting. The next regular meeting of the board is scheduled for Wednesday, Jan. 26, at 5:30 p.m. SYNDERO INC: Sued Over False Claims on Dermitage Product -------------------------------------------------------- Courthouse News Service reports that a Superior Court class action claims that Syndero and Iconic Labs push their Dermitage anti- aging skin treatment with false claims, including "fabricated before and after pictures." A copy of the Complaint in Johnson v. Syndero, Inc., et al., Case No. 1100111 (Calif. Super. Ct., Riverside Cty.), is available at: http://www.courthousenews.com/2011/01/05/CCA.pdf The Plaintiff is represented by: Scott J. Ferrell, Esq. James B. Hardin, Esq. Michael E. Velarde, Esq. NEWPORT TRIAL GROUP 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Telephone: (949) 706-6464 E-mail: sferrell@trialnewport.com jhardin@trialnewport.com mvelarde@trialnewport.com TORONTO COMMUNITY: Fire Victims to Get More From Class Action ------------------------------------------------------------- Cynthia Vukets and Donovan Vincent, writing for Toronto Star, report frustrated residents affected by the Wellesley St. apartment fire have been given a simple choice: take the $4,000 to $10,000 in compensation offered by Toronto Community Housing, or wait for a class action suit that could net about $25,000 per one-bedroom apartment. After legal fees are paid out, residents could see an estimated $17,000 for a one-bedroom unit, lawyer Brian Shell told a meeting on Jan. 4 attended by about 150 people affected by last September's fire at 200 Wellesley St. E. The figure was provided by National Fire Adjustment Co., a company that Mr. Shell's law firm is working with in a class action bid launched against TCHC and Greenwin Property Management. Greenwin operated the building at the time of the fire. TCHC is currently offering residents base amounts of $3,300 if they live in a bachelor suite and $5,300 for a two-bedroom apartment. If they accept, residents must agree not to go ahead with the class action or take further legal action. But Mr. Shell told the meeting that TCHC's offer is woefully inadequate, and that his adjusters will sit down with each claimant to determine exactly what they had in their units and the value, along with emotional or physical trauma. "We're concerned TCHC is trying to persuade people to take a deal that is much less that you're likely to receive in a class action proceeding," Mr. Shell said, adding the lawsuit could be settled in three to five months. Meanwhile, Toronto Community Housing has given residents more time to consider its compensation offer, after legal aid lawyers shut down a free clinic to protest the scheme they said was taking advantage of vulnerable tenants. The lawyers who had agreed to advise tenants on the compensation package walked out on the process just before Christmas, saying they needed more time to evaluate the plan versus the class action lawsuit. That forced TCHC to drop a Jan. 21 deadline it had imposed, said Jeffrey Ferrier, a spokesman for the agency. "It's a small improvement, but it really doesn't make a whole lot of difference," said Jack de Klerk, a lawyer with Neighbourhood Legal Services. "The deadline was completely arbitrary and it had no purpose." Hundreds of tenants were forced from their apartments. Many have moved back, but 237 are still staying in hotels and 75 moved permanently. Lawyers for the class action and TCHC were in court Dec. 23 to set a certification date, which the judge scheduled for the beginning of July. Mr. De Klerk said tenants deserve an "interim payment" that would allow them to make a decision between the compensation package and the class action without feeling desperate for funds to replace lost and ruined possessions. TCHC said it is not considering such a payment. Tenant Beverly White said she won't take the compensation. "That's a ridiculous amount of money. That's an insult," she said. "The class action is the way to go." Cliff Martin, the tenant rep for 200 Wellesley, said he hopes TCHC will offer more money. "All they're doing now is damage control," he said. VODAFONE GROUP: 9,000 Customers to Join Aussie Class Action ----------------------------------------------------------- Josh Taylor, writing for ZDNet.com.au, reports Vodafone customers in droves have registered interest in joining a potential class action lawsuit against the telco over 3G network and call dropping issues on its mobile network. Since Sydney-based law firm Piper Alderman announced it was investigating the possibility of a class action suit against Vodafone for problems with its network over the past few months, it has been inundated with registrations of interest from customers. The law firm posted an update on its site on Jan. 5, stating that approximately 9,000 customers had registered interest in the action. The law firm said it would be using the next 10 business days to investigate the specific circumstances of people who had registered for the action and said three customers (now part of Vodafone Hutchison Australia) could also register their interest in making a potential claim against the company. The firm is also accepting interest from mobile broadband customers who have been affected by the ongoing issues on the 3G network. There is no cost to join onto the action if the law firm proceeds, it states on the site, but should the action be successful, the firm would seek a commission of 25% to 40% of the compensation received. The entire process is expected to take between 12 and 24 months. Vodafone on Jan. 4 pledged to fix its network in 2011 with a series of upgrades. The telco is planning to upgrade or build more than 2,500 mobile base stations in 2011. GLAXOSMITHKLINE PLC: Lawyers to Review Claims Over Avandia Drug --------------------------------------------------------------- The Avandia heart attack lawyers working with Class Action.org are available to review claims from patients who have suffered a heart attack or stroke while taking the drug, as well as loved ones who have lost someone to an Avandia-related cardiac death. Over the years, the diabetes drug has been associated with a number of Avandia cardiac side effects, and users who have suffered heart problems while taking the medication may have legal recourse. To find out if you can participate in an Avandia lawsuit to recover compensation, visit http://www.classaction.org/avandia.htmland complete the free case evaluation form. Used to treat Type 2 diabetes, Avandia has received considerable attention from the U.S. Food and Drug Administration. Most recently, the FDA issued new Avandia restrictions, allowing the drug to be taken only by patients who had unsuccessfully tried other diabetes drugs and were fully aware of the potential Avandia heart risks. In November 2007, the FDA added new information to the Avandia black box warning about the potential risk for heart attacks. The previous upgraded warning, issued to certain diabetes drugs in August 2007, pointed out that these types of medications may worsen heart failure, a condition in which the organ cannot provide the body with sufficient blood flow, in some individuals. If you or a loved one has suffered an Avandia stroke, heart attack or other cardiac side effect, you may be able to participate in an Avandia lawsuit to recover compensation for medical bills and other damages. Visit Class Action.org for a free evaluation of your claim. The Avandia litigation attorneys working with Class Action.org are offering this online consultation at no cost and remain dedicated to patients and loved ones who were affected by an Avandia heart attack or other cardiac side effect of this diabetes drug. Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.org/today for a no cost, no obligation case evaluation and information about your consumer rights. US TELECOM FIRMS: 7th Cir. Allows "Text Message" Suit to Proceed ---------------------------------------------------------------- Joe Celentino at Courthouse News Service reports that a class action that accuses Verizon, T-Mobile, AT&T and Sprint of conspiring to fix text message prices will proceed to discovery after the United States Court of Appeals for the Seventh Circuit ruled that the amended complaint stated a legally sufficient claim. The complaint was filed just after Sen. Herbert Kohl, chairman of the antitrust subcommittee of the Senate Judiciary Committee, sent a letter on Sept. 9, 2008, to the CEOs of the four carriers expressing concern about antitrust violations. The companies allegedly discussed price-fixing in trade association meetings and then hiked rates despite steeply falling costs. The class claims that the companies also met through the association's "leadership council," which had a stated mission to substitute "co-opetition" for competition among members. "This is anomalous behavior because falling costs increase a seller's profit margin at the existing price, motivating him, in absence of agreement, to reduce his price slightly in order to take business from his competitors," Judge Richard Posner wrote for a panel of three 7th Circuit judges. The cost of text messages, commonly priced at 10 cents per message in 2005, rose to 20 cents per message by 2008. The defendants have adopted a uniform pricing structure which "the complaint suggests . . . could not have been accomplished without agreement on the details of the new structure, the timing of its adoption and the specific uniform price increase that would ensue on its adoption." An Illinois federal judge had dismissed the class's first complaint and approved a second amended complaint for discovery proceedings, but the wireless providers moved for an interlocutory appeal, arguing that the amended complaint should also be dismissed for not presenting a plausible claim. The appeals court upheld the district court's decision, finding the complaint sufficiently plausible even without direct evidence. "Discovery may reveal the smoking gun or bring to light additional circumstantial evidence that further tilts the balance in favor of liability," Judge Posner wrote. "All that we conclude at this early stage in the litigation is that the district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery." * Seyfarth Sees 2011 as Tipping Point for Workplace Class Action ---------------------------------------------------------------- The year just ended was a seismic one for employment-related class action litigation, paving the way for more far-reaching judgments, court rulings, and changes to class action law in 2011. The value of employment discrimination class action settlements also increased four-fold in 2010 over 2009 and the top ten settlements of wage & hour, ERISA, and governmental enforcement class actions increased to $1.16 billion, the highest amount ever. The "tipping point" aspect of these changes is well captured in the 2011 edition of Seyfarth Shaw's Workplace Class Action Litigation Report. The 664-page Report, the seventh annual edition, is the most comprehensive analysis of workplace-related class actions in the U.S. It examines 848 decisions rendered in 2010 against employers in state and federal courts, including private plaintiff and government enforcement actions. As it has since its launch in 2004, the Report is authored and edited by Seyfarth Shaw partner Gerald L. Maatman, Jr., co-chair of the firm's class action defense group. Mr. Maatman, who represents companies facing labor and employment-related class actions, won several key workplace class action decisions in 2010, including a gender discrimination class action that was the first case testing the U.S. Supreme Court's ruling regarding arbitration clauses in Stolt-Nielsen v. Animalfeeds. The Report is the sole compendium in the U.S. dedicated exclusively to workplace class action litigation, and has become to "go to" research and resource guide for businesses and corporate counsel facing complex litigation. A preview of the Seyfarth Shaw 2011 Report can be found at http://is.gd/kcv57 The new Report makes clear that while securities, shareholder and commercial class actions remained stable in 2010, workplace class actions -- especially those brought under the Fair Labor Standards Act -- spiked considerably. Employment litigation costs represent a substantial portion of corporate legal budgets, and constitute a significant reputational issue for companies. While the financial stakes often force class actions to settle before trial, 2010 witnessed a landmark exception: Velez v. Novartis not only went before a jury, but ended in a $253 million plaintiffs' verdict; the subsequent $175 million settlement is one of the largest employment discrimination class action settlements ever. In its current term, the U.S. Supreme Court has three cases that may effectuate substantial changes to class action law. In March the Supreme Court will hear oral arguments in the Title VII gender discrimination case Dukes v. Wal-Mart, covering more than 1.5 million class members. In AT&T Mobility v. Concepcion, argued in November of 2010, the Supreme Court must resolve whether service agreements favoring non-class-wide arbitration abrogate consumers' right to bring a class arbitration -- the outcome could well impact workplace arbitration agreements. And in Smith v. Bayer, scheduled for argument later this month, the Justices must determine how far one court's rejection of class certification can go in determining another court's capacity to certify a class on the same issue. "The past several years have placed several important issues governing class action law on the table and 2011 looks like the year many of these questions will be answered by the Supreme Court," said Mr. Maatman. He noted that the Supreme Court's rulings in all three cases could have profound effects on the way class actions are brought against companies, including wage & hour class actions and collective actions. "Wage & hour cases in particular have yet to slow down, even as the economy is starting to improve," Mr. Maatman noted. "For most companies that is their Number 1 exposure -- and we expect to see even more and bigger cases brought in 2011." Feb. 8 Webinar Seyfarth Shaw has scheduled a 90-minute webinar on February 8, to examine the key trends, rulings, and developments in workplace class action cases this past year and to assess what changes in the coming year could mean for class action law going forward. The latest edition of the Workplace Class Action Litigation Report draws attention to a number of key trends certain to have carry- over effect into the year ahead: * Successful cases brought by plaintiffs' class action lawyers are likely to inspire copy-cat filings as well as drive up settlement demands by those bringing workplace actions, especially in the wake of the $253 million discrimination judgment against Novartis, the largest employment class action trial verdict on record. The case not only increased awareness of the class action option among employees but broadened the appeal of class actions among the plaintiffs bar. * The Supreme Court's grant of certiorari in Dukes v. Wal-Mart in December sets the stage for a potentially landmark decision regarding Rule 23 of the Federal Rules of Civil Procedure, which governs the standards and parameters for constituting a class and its claims. The Ninth Circuit's en banc ruling to certify the 1.5 million-person class in Dukes, the largest employment discrimination class ever. Among the issues the Supreme Court will decide is the extent of commonality that must hold among plaintiffs' grievances for a class to be certified. * The economic downturn and resulting layoffs sparked a major jump in FLSA collective actions for unpaid overtime wages. Wage & hour cases remain the most common form of workplace class action. (Chapter 5 of the Report analyzes key FLSA decisions from 2010, while the most significant state-level wage & hour rulings are addressed in chapter 7.) * Setbacks to the Democrats' legislative agenda in the November mid-term elections will likely place greater emphasis by the Obama Administration on regulatory means of enforcement. Increased budgets and renewed hiring at the Department of Labor and Equal Employment Opportunity Commission suggest that employers should prepare themselves for more investigations and lawsuits in the coming year -- a trend at the federal level that state labor departments have already begun to follow. * The latest EEOC annual report asserts that its goal is to shift emphasis from smaller suits on behalf of individuals to systemic "pattern or practice" lawsuits encompassing much larger groups of workers. * The Bush Administration's Class Action Fairness Act, designed to tighten access to state courts in filing class actions, has prompted a surprisingly large number of decisions, driven by the high volume of wage & hour filings in California. Moreover, CAFA rulings have triggered new litigation strategies by both plaintiffs' and defense class action attorneys, making class action law one of the most quickly evolving areas of jurisprudence. * The size of damages settlements in class actions is growing. In 2010, employment discrimination class action settlements increased four-fold over 2009. Plaintiffs' attorneys are pursuing new methods for expanding the dimensions of classes and the size of damages sought. Mr. Maatman says the sluggish economy also will continue to generate employment-related class actions. "The current trend -- which might or might not be diverted or arrested by upcoming Supreme Court decisions -- is toward a more aggressive plaintiffs' bar and government enforcement philosophy, which combine to dramatically increase the financial exposure companies face," Mr. Maatman said. "Clearly, the dominant lesson of 2010 is that shoring up potential weaknesses in compliance and identifying class action vulnerabilities should remain a priority for corporate counsel." Seyfarth Shaw -- http://www.seyfarth.com-- has over 750 attorneys located in 10 offices throughout the United States, including: Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco, and Washington D.C., as well as internationally in Brussels, Belgium. Seyfarth Shaw provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate, and real estate. The firm's practice reflects virtually every industry and segment of the country's business and social fabric. Clients include over 300 of the Fortune 500 companies, financial institutions, newspapers and other media, hotels, health care organizations, airlines and railroads. The firm also represents a number of federal, state and local governmental and educational entities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *