/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110203.mbx C L A S S A C T I O N R E P O R T E R Thursday, February 3, 2011, Vol. 13, No. 24 Headlines 2038724 ONTARIO: SCC to Rule on Franchise Class Action Today ALTERNATIVE ENERGY: Strauss & Troy Investigates Potential Claims AMAZON.COM INC: Audible Suit Settlement Agreement Under Appeal APPLE INC: Sued for Sharing iPhone Users' Info to Third Parties AT&T MOBILITY: Sued Over Rigged iPhone Data Billing System CHOICE HOTELS: Faces Class Action Over Additional Royalty Fee COUNTRYWIDE FINANCIAL: Three Pension Plans File Individual Suits DICK'S SPORTING: Settles Overtime Pay Class Action for $15-Mil. DIRECTV INC: Sued Over Unauthorized Installation of TV Equipment EBAY INC: Plaintiffs' Appeal on Summary Judgment Ruling Pending EBAY INC: Continues to Defend Two PayPal-Related Suits in Calif. KOSS CORP: Continues to Defend Amended Class Suit in Wisconsin KRAFT FOODS: Faces Class Action Over Failure to Pay Proper Wages LAW SOCIETY OF NSW: Clients Mull Class Action to Recover Money LEXISNEXIS: Faces Class Action for Concealing E-Filing Charges SASSY INC: Recalls 37,000 Refreshing Rings Infant Teethers/Rattles SELECT COMFORT: Sued in Ill. for Non-Payment of Overtime Wages SNAPPLE BEVERAGE: Judge Grants Motion for Summary Judgment TACO BELL: Mulls Countersuit Against Alabama Law Firm TIBCO SOFTWARE: Awaits Court OK of Merger-Related Suit Settlement TIBCO SOFTWARE: Appeals Still Pending in IPO Allocation Suit TOSHIBA AMERICA: HR Managers Files Employment Class Action TURNER INDUSTRIES: Workers File Racial Discrimination Suit UNITED PANAM: Faces Class Action Over Proposed Merger WAL-MART STORES: Defense Bar Files Amicus Curiae Brief in Dukes WELLS FARGO: Sued in Washington Over Unjustified "Fax Fee" WESTERN DIGITAL: Final Hearing on Class Action Pact Set This Month WESTERN DIGITAL: Defends "Wage-Hour" Lawsuit in California XO HOLDINGS: Shareholders Sue D&Os Over ACF Deal * Number of Securities Class Actions in Canada Slips ********* 2038724 ONTARIO: SCC to Rule on Franchise Class Action Today ------------------------------------------------------------ Julius Melnitzer, writing for the Financial Post, reports the Supreme Court of Canada will announce its decision on whether to grant leave in Quizno's Canada Restaurant Corporation v. 2038724 Ontario Ltd. at 9:45 a.m. on Thursday, Feb. 3. The Ontario Court of Appeal certified the franchisees of a fast food restaurant chain as a class in an action against the franchisors and certain suppliers. The issues include a wide range of important questions relating to class actions. Quizno's Canada Restaurant Corporation, Quiz-Can LLC, and The Quizno's Master LLC are the franchisors of a chain of fast food restaurants in Canada. Gordon Food Service, Inc. and GFS Canada Company Inc. are the distributors of food and other supplies to Quiznos restaurants. The respondents are former Quiznos franchisees in Ontario who seek to represent a class of all Canadian Quiznos franchisees in business on or after May 12, 2006. The respondents allege that they have been charged exorbitant prices for food and other supplies they are contractually required to purchase for use in their restaurants. They commenced an action asserting claims for breach of the price maintenance provisions of the Competition Act; civil conspiracy by Quiznos and GFS to fix prices, and breach of contract. The respondents brought a motion under s. 5 of the Class Proceedings Act to certify the action as a class action. Quiznos brought a motion to stay the proceedings. ALTERNATIVE ENERGY: Strauss & Troy Investigates Potential Claims ---------------------------------------------------------------- The law firm of Strauss & Troy on Jan. 31 disclosed that a class action lawsuit has been filed in the U.S. District Court for the District of Idaho against Alternative Energy Holdings, Inc. on behalf of all persons or entities who purchased common shares of AEHI during the period between September 20, 2006 through December 14, 2010 for potential violations of state and federal law by issuing false and misleading statements. The Complaint names AEHI and certain of the Company's executive officers and directors as defendants. The plaintiff in the case alleges that the Company, its CEO Donald L. Gillispie, and Senior Vice President Jennifer Ransom (both currently on leave from the Company) engaged in a scheme to manipulate and artificially inflate the market price of AEHI shares. On December 14, 2010, the Securities and Exchange Commission announced the temporary suspension of trading in AEHI stock. On December 16, 2010, the SEC charged the company's top officers of fraudulently raising millions of dollars from investors while manipulating its stock price through misleading public statements that concealed the secret profits reaped by Mr. Gillispie and Ms. Ransom. Strauss & Troy is investigating a possible claim to recover damages on behalf of individuals and entities who purchased AEHI common stock between September 20, 2006 and December 14, 2010. If you purchased common stock during that period, you may, no later than February 18, 2011, request that the Court appoint you as lead plaintiff. A lead plaintiff is a representative party that acts on behalf of the class members. In order to be appointed lead plaintiff, the Court must determine that you meet certain legal requirements. If you wish to review a copy of the Complaint, discuss this action, or have any questions, please contact: Richard S. Wayne, Esq. Thomas P. Glass, Esq. STRAUSS & TROY 150 East Fourth Street Cincinnati, OH 45202 Telephone: 800-669-9341 E-mail: rswayne@strausstroy.com tpglass@strausstroy.com AMAZON.COM INC: Audible Suit Settlement Agreement Under Appeal -------------------------------------------------------------- In June 2001, Audible, Inc., Amazon.com, Inc.'s subsidiary acquired in March 2008, was named as a defendant in a securities class-action filed in U.S. District Court for the Southern District of New York related to its initial public offering in July 1999. The lawsuit also named certain of the offering's underwriters, as well as Audible's officers and directors as defendants. Approximately 300 other issuers and their underwriters have had similar suits filed against them, all of which are included in a single coordinated proceeding in the Southern District of New York. The complaints allege that the prospectus and the registration statement for Audible's offering failed to disclose that the underwriters allegedly solicited and received "excessive" commissions from investors and that some investors allegedly agreed with the underwriters to buy additional shares in the aftermarket in order to inflate the price of Audible's stock. Audible and its officers and directors were named in the suits pursuant to Section 11 of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934, and other related provisions. The complaints seek unspecified damages, attorney and expert fees, and other unspecified litigation costs. In March 2009, all parties, including Audible, reached a settlement of these class actions that would resolve this dispute entirely with no payment required from Audible. The settlement was approved by the Court in October 2009, and that settlement is currently under appeal to the Court of Appeals for the Second Circuit, according to Amazon.com's Jan. 27, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. APPLE INC: Sued for Sharing iPhone Users' Info to Third Parties --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Apple transmits data from iPhones and iPads to third parties, revealing "the most intimate details" of the lives of people who use Apple's iPhone operating system. A copy of the Complaint in Chiu v. Apple, Inc., Case No. 11-cv-00407 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/01/31/AppleCA.pdf The Plaintiff is represented by: Jeff S. Westerman, Esq. Sabrina S. Kim, Esq. MILBERG LLP 300 S. Grand Avenue, Suite 3900 Telephone: (213) 617-1200 E-mail: jwesterman@milberg.com skim@milberg.com - and - Sanford P. Dumain, Esq. Peter E. Seidman, 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: sdumain@milberg.com pseidman@milberg.com arado@milberg.com avu@milberg.com - and - Michael R. Reese, Esq. Kim Richman, Esq. REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: (212) 579-4625 E-mail: mreese@reeserichman.com krichman@reeserichman.com AT&T MOBILITY: Sued Over Rigged iPhone Data Billing System ----------------------------------------------------------- Courthouse News Service reports that AT&T Mobility faces another federal class action involving its iPhone and iPad services. This one claims that "AT&T's bills systematically overstate the amount of data used on each data transaction involving an iPhone or iPad account," and bills customers for data transactions even if they disable their phones and leave them untouched -- as the plaintiff's experts did. The class says AT&T's billing system "is like a rigged gas tank that charges pump that charges for a full gallon when it pumps only nine-tenths of a gallon into your car's tank." AT&T has faced a welter of class actions since rolling out its iPhone service with Apple, which is not named as a party to this complaint. Previous class actions have claimed AT&T charged for downloads its customers never made, reneged on its billing plans for iPhones, charged for services it could not or did not deliver, and promised but failed that the phones could send text messages and photos. In the new complaint, named plaintiff Patrick Hendricks claims that AT&T's overbilling "was discovered by an independent consulting firm retained by plaintiff's counsel, which conducted a two-month study of AT&T's billion practices for data usage, and found that AT&T systematically overstate web server traffic by 7 percent to 14 percent, and in some instances by over 300 percent. So, for example, if an iPhone user downloads a 50 KB website, AT&T's bill would typically overstated the traffic as 53.5 KB (a 7 percent overcharge) to as high as 150 KB (a 300 percent overcharge)." But wait, Mr. Hendrick's claim continues: "It gets worse. Not only does AT&T systematically overbill for every data transaction, it also bills for phantom data traffic when there is no actual data usage initiated by the customer. This was discovered by the same independent consulting firm, which purchased an iPhone from an AT&T store, immediately disabled all push notifications and location services, confirmed that no email account was configured on the phone, closed all applications, and let the phone sit untouched for 10 days. During this 10-day period, AT&T billed the test account for 35 data transactions totaling 2,292 KB of usage. This is like the rigged gas pump charging you when you never even pulled your car into the station." The class claims that though AT&T's overcharges "have a modest effect on an individual customer's bill, they have a huge effect on AT&T's bottom line. AT&T has 92,8 million customers. In the fourth quarter of 2010, AT&T reported its wireless data revenues increased $1.1 billion, or 27.4 percent, from the year-earlier quarter, to $4.9 billion. A significant portion of those data revenues were inflated by AT&T's rigged billing system for data transactions." Mr. Hendricks seeks restitution and class damages for money had and received, breach of contract, unjust enrichment, unfair and fraudulent business practices, unfair competition, and violations of the federal Communications Act. A copy of the Complaint in Hendricks v. AT&T Mobility, LLC, Case No. 11-cv-00409 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/01/31/AT&T.pdf The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 2121 North California Blvd., Suite 1010 Walnut Creek, CA 94596 Telephone: (925) 482-1515 E-mail: ltfisher@bursor.com - and - Barry L. Davis, Esq. Daniel R. Lever, Esq. Aaron P. Davis Esq. THORNTON, DAVIS & FEIN, P.A. 80 SW 8th Street, 29th Floor Miami, FL 33130 Telephone: (305) 446-2646 E-mail: davis@tdflaw.com lever@tdflaw.com adavis@tdflaw.com CHOICE HOTELS: Faces Class Action Over Additional Royalty Fee ------------------------------------------------------------- Chris Huntemann, writing for The Gazette, reports franchisees in several states are suing Choice Hotels International of Silver Spring, claiming the company engaged in "unfair and deceptive acts" that have cost them millions of dollars. In the class action complaint, filed in December in U.S. District Court in Orlando, Fla., the plaintiffs say Choice is charging them a fee not included in their original franchise contracts. The fee, of up to 5%, comes from gross room sales generated by hotel stays by customers who are members of the Choice Privileges rewards program, according to the suit. The program is designed to reward customers for staying at Choice- brand hotels, which include Comfort Inn, Comfort Suites, Quality, Sleep Inn, Clarion, Cambria Suites, MainStay Suites, Suburban, Econo Lodge and Rodeway Inn, according to Choice's Web site. The plaintiffs include Choice franchisees in Florida, Louisiana, Missouri and Texas. They are seeking $225 million in damages, plus attorneys' fees and costs. "Plaintiffs' action against Choice also arises from violation of law based on unfair and deceptive conduct by Choice," the franchisees allege. The 5% fee was not included in the original franchise agreements, the plaintiffs claim, saying it "was created by Choice as part of Choice's proactive matching program and was initiated by Choice." "In essence, Choice has created a group of reward members, the majority of whom are not even aware of that status, and siphoned 5% of the gross room sales revenue from the Plaintiff franchisees in relation to the stays by these reward members and without any contractual or other basis to do so," the plaintiffs claim. The franchisees say Choice customers can sign up for the rewards program, but the program also automatically enrolls guests who stay at its hotels and has an "opt-out" provision for them. Therefore, the plaintiffs claim, many members don't know they are in the program, which now has more than 1 million members. In the first nine months of last year, Choice reported a profit of $83.3 million, up from $74.6 million a year earlier. Revenues also grew, to $441.1 million from $423.5 million. Choice Hotels franchises more than 6,000 hotels worldwide. Choice spokesman David Peikin declined to comment on the suit. Choice attorney Barry Heller of DLA Piper in Reston, Va., did not immediately return phone and e-mail messages seeking comment. The plaintiffs are represented by Ruden McClosky of Orlando. "The additional royalty fee was not authorized by the franchise agreement," said David S. Wood, a shareholder with Ruden McClosky. A hearing has not been scheduled, he said. COUNTRYWIDE FINANCIAL: Three Pension Plans File Individual Suits ---------------------------------------------------------------- Arleen Jacobius, writing for Pensions & Investments, reports three public pension plans opted out of a federal class-action lawsuit against Bank of America's Countrywide Financial and filed separate cases claiming the firm misled investors into buying risky securities. The $47.5 billion Michigan Retirement Systems, East Lansing, Mich., filed suit Jan. 26 in U.S. District Court in Los Angeles, against Countrywide, a number of company executives and more than a dozen investment firms and banks. The Michigan lawsuit seeks $65 million in damages for a "risky scheme to artificially inflate earnings," the complaint states. Joy Yearout, spokeswoman, for Michigan Attorney General Bill Schuette, who filed the suit on behalf of the pension system, declined to comment on why it opted out of the class action. Oregon Investment Council, Salem, Tigard, which filed a lawsuit against Countrywide in Oregon state court Jan. 26, opted out of the class action because it would have compensated Oregon less than $500,000 for the $14 million in losses, including $13 million for the pension fund, allegedly caused by Countrywide, said James Sinks, spokesman for the council, which oversees the $56.7 billion Oregon Public Employees Retirement Fund, Salem. Fresno County (Calif.) Employees' Retirement Association also filed a separate lawsuit against Countrywide on Jan. 26 in U.S. District Court in Los Angeles. Roberto Pena, administrator, could not be reached for comment by press time. Six other pension plans that also opted out of the class action -- including CalPERS and the Florida State Board of Administration -- have not decided whether to file a new lawsuit together or individually, said Blair A. Nicholas, partner with the law firm of Bernstein Litowitz Berger & Grossmann, who represents 16 plaintiffs that had opted out of the class action. In addition to the $228.5 billion California Public Employees' Retirement System and $152.2 billion FSBA, the plans are the $94.9 billion Texas Teacher Retirement System, $1.5 billion Government of Guam Retirement Fund, $36 billion Maryland State Retirement & Pension System and Montana Board of Investments, which manages $7.4 billion in pension fund assets. "It is unfortunate that select investors chose to opt out of a fair and equitable agreement to settle these issues. We intend to vigorously defend these claims," Bank of America spokesman Lawrence Grayson wrote in an e-mailed request for comment. DICK'S SPORTING: Settles Overtime Pay Class Action for $15-Mil. --------------------------------------------------------------- Joe Napsha, writing for Pittsburgh Tribune-Review, reports Dick's Sporting Goods Inc. of Findlay on Jan. 31 said it has agreed to pay up to $15 million to settle federal and state lawsuits claiming the company violated wage and labor laws affecting 190,000 current and former workers, according to the company and court documents. The settlement resolves a class action lawsuit filed in May 2005 in federal court in Rochester, N.Y. It also settled related wage and hour class action lawsuits filed in 22 states, including Pennsylvania, West Virginia and Ohio that are pending against the company and five individual defendants, according to documents filed in federal court in Rochester. The lawsuit named the former Gaylan's Trading Co. Inc. of Indianapolis, which Dick's acquired in 2004, as well as CEO Edward Stack as defendants. The settlement of the Rochester class action lawsuit, filed by 68 Dick's hourly employees, still must be approved by federal court in Rochester at a hearing yet to be scheduled. As part of the settlement, those suing Dick's agreed to drop lawsuits filed in the 22 state courts. The total amount of the claims depends on the number of claims submitted by employees. The settlement covers claims under laws of 36 states. The lawsuit filed in Rochester claims that Dick's violated New York labor laws when supervisors made employees work through their lunch hour, or interrupted their lunch hour, without compensation. The suit also claimed that Dick's supervisors permitted employees to work more than 40 hours one week, then let them take time off the following week or pay them their regular hourly rate in the following week rather than at their overtime rate. Spokesman William J. Colombo, vice chairman of Dick's board of directors and one of the defendants in the lawsuit, could not be reached for comment. The settlement and related fees will result in a pre-tax charge of about $15.5 million against Dick's profits, which will be recorded in the fourth quarter. DIRECTV INC: Sued Over Unauthorized Installation of TV Equipment ---------------------------------------------------------------- Maria Dinzeo at Courthouse News Service reports that a federal class action claims that DirecTV permanently installs TV equipment on rental properties without the owners' consent. Jacen Management, of Connecticut, says DirecTV leases its antennae and satellite dishes and sets them up on privately owned buildings without permission from the landlords. "Defendant knows that it is improper and illegal to install the equipment on a building without first obtaining the authorization of the landlord," the complaint states. Jacen says that in adopting TV equipment regulations in the 1990s, the Federal Communications Commission "did not diminish the ability of landlords to prohibit the installation or use of such equipment in areas -- including but not limited to common areas or restricted access areas -- not within the tenant's exclusive use or control." Jacen claims that since tenants do not have control over the exterior walls of leased buildings, the FCC regulations do not authorize DirecTV to install satellite dishes without landlord authorization. To circumvent this, Jacen claims, DirecTV gives its subscribers the option of signing a release form stating that the landlord has "verbally approved" the installation, "which they could easily complete without actually obtaining any permission at all, knowing that DirecTV will accept their representation that the landlord has given 'verbal' permission." The complaint contrasts DirecTV unfavorably to a competitor, DishNetwork. "Unlike defendant, DishNetwork will not install its satellite antennae upon a residential property without first obtaining written authorization from the landlord," the complaint states. Jacen claims that DirecTV has installed satellite equipment for at least three of its tenants within the past 3 years, without even attempting to get permission. Jacen demands injunctive relief and damages for unfair competition. A copy of the Complaint in Jacen Management LLC v. DIRECTV, Inc., Case No. 11-cv-00384 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/01/31/DirecTV.pdf The Plaintiff is represented by: Alan R. Plutzik, Esq. Jennifer S. Rosenberg, Esq. BRAMZON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598 Telephone: (925) 945-0200 E-mail: aplutzik@bramsonplutzik.com jrosenberg@bramsonplutzik.com - and - Jeffrey S. Nobel, Esq. Robert A. Izard, Esq. Mark P. Kindall, Esq. IZARD NOBEL LLP 29 South Main Street, Suite 215 West Hartford, CT 06107 Telephone: (860) 493-6292 E-mail: jnobel@izardnobel.com rizard@izardnobel.com mkindall@izardnobel.com EBAY INC: Plaintiffs' Appeal on Summary Judgment Ruling Pending --------------------------------------------------------------- The appeal of plaintiffs from a court order granting summary judgment in favor of eBay, Inc., still remains pending before the Ninth Circuit Court of Appeals, according to the company's Jan. 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2010. In March 2007, a plaintiff filed a purported antitrust class action lawsuit against eBay in the Western District of Texas alleging that eBay and its wholly owned subsidiary PayPal "monopolized" markets through various anticompetitive acts and tying arrangements. The plaintiff alleged claims under sections 1 and 2 of the Sherman Act, as well as related state law claims. In April 2007, the plaintiff re-filed the complaint in the U.S. District Court for the Northern District of California (No. 07-CV-01882-RS), and dismissed the Texas action. The complaint seeks treble damages and an injunction. In 2007, the case was consolidated with other similar lawsuits (No. 07-CV-01882JF). In June 2007, the Company filed a motion to dismiss the complaint. In March 2008, the court granted the motion to dismiss the tying claims with leave to amend and denied the motion with respect to the monopolization claims. Plaintiffs subsequently decided not to refile the tying claims. The plaintiffs' motion on class certification and the Company's motion for summary judgment were heard by the court in December 2009. In March 2010, the District Court granted the Company's motion for summary judgment, denied plaintiffs' motion for class certification as moot, and entered judgment in the Company's favor. Plaintiffs have appealed the District Court's decision, and the matter is fully briefed before the Ninth Circuit Court of Appeals. The Company intends to vigorously oppose plaintiffs' appeal. EBAY INC: Continues to Defend Two PayPal-Related Suits in Calif. ---------------------------------------------------------------- eBay, Inc., and its subsidiary, PayPal, Inc., continue to defend themselves against two class action lawsuits alleging violations of the Electronic Fund Transfer Act pending in California, according to the Company's Jan. 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2010. In the second quarter of 2010, two putative class-action lawsuits (Devinda Fernando and Vadim Tsigel v. eBay Inc. and PayPal, Inc.; and Moises Zepeda v. PayPal, Inc.) were filed in the U.S. District Court in the Northern District of California. These lawsuits contain allegations related to violations of aspects of the Electronic Fund Transfer Act and Regulation E and violations of a previous settlement agreement related to Regulation E, and/or allege that PayPal improperly held users' funds or otherwise improperly limited user's accounts. These lawsuits seek damages as well as changes to PayPal's practices among other remedies. A determination that there have been violations of the Electronic Fund Transfer Act, Regulation E or violations of other laws relating to PayPal's practices could expose PayPal to significant liability. Changes to PayPal's practices that may result from these lawsuits could require PayPal to incur significant costs and to expend product resources, which could cause delay to other planned product improvements, which would further harm eBay's business. KOSS CORP: Continues to Defend Amended Class Suit in Wisconsin -------------------------------------------------------------- In December 2009, Koss Corporation learned of significant unauthorized transactions which totaled approximately $31,500,000 from fiscal 2005 through December 2009. The volume of these unauthorized transactions was $10,286,988 from July 1, 2009 until the unauthorized transactions were discovered in December 2009. In the three months ended December 31, 2009, the unauthorized transactions were $4,962,824. On January 15, 2010, a class action complaint was filed in federal court in Wisconsin against the Company, Michael Koss and Sujata Sachdeva. The suit alleges violations of Section 10(b), Rule 10b- 5 and Section 20(a) of the Exchange Act relating to the unauthorized transactions and requests an award of compensatory damages in an amount to be proven at trial. An amended complaint was filed on September 10, 2010, adding Grant Thornton LLP as a defendant. No updates were reported in the Company's Jan. 28, 2011, Form 10-Q filed with the Securities and Exchange Commission for the quarter ended December 31, 2010. Koss Corporation -- http://www.koss.com/-- is engaged in the design, manufacture and sale of stereo headphones and related accessory products. The company's products are sold through audio specialty stores, the Internet, direct mail catalogs, regional department store chains, discount department stores, military exchanges, prisons and national retailers under the Koss name and dual label. The company also sells products to distributors for resale to school systems and directly to other manufactures for inclusion with their own products. KRAFT FOODS: Faces Class Action Over Failure to Pay Proper Wages ---------------------------------------------------------------- Amelia Flood, writing for The Madison St. Clair Record, reports workers at the Kraft Foods Global Inc. plant in Granite City are seeking to lead a class of fellow workers in a suit that claims they were not paid for all the hours they worked. The class action filed Jan. 27 is the first class action filed in Madison County this year. Lead plaintiff Joan L. Jones claims that she and other hourly workers at the plant were not paid for attending safety and other meetings and were not paid for the time it takes to put on protective gear mandated by Kraft. Ms. Jones claims that the failures to pay constitute violations of the Illinois Minimum Wage Law. The suit seeks a judgment in the amount of the wages not paid to the approximately 400 to 500 hundred potential class members and other relief. Jones is represented by Joseph Phebus, Ryan Bradley and William Graham Jr. of Phebus & Koester LLP of Urbana, Ill. Kraft has yet to enter an appearance in the case and has not yet answered the claims. Last year, there were nine class actions filed in Madison County. The Jones case is the first to be filed this year. The case is Madison case number 11-L-082. LAW SOCIETY OF NSW: Clients Mull Class Action to Recover Money -------------------------------------------------------------- Bev Jordan, writing for Hills Shire Times, reports shattered clients of former Dural solicitor John Gordon Bradfield are hoping they can mount a class action against the Law Society of NSW in a bid to get their money back. More than 100 clients lost a total of $30 million that they had entrusted to the well-known and liked solicitor. It has been just over two years since the Law Society suspended his practicing certificate, effectively closing down his practice which had operated in the Hills for more than 40 years. Many clients are still waiting for justice. Bob Furness told the Times last week he was hoping former clients would join a class action to force the Law Society to accept liability for the actions of Mr. Bradfield who lost the money through a mortgage lending scheme. Mr. Furness and his wife Jan invested a total of $200,000 with Bradfield Anderson Solicitors at Round Corner after he told them a developer needed money and was offering 10% interest. What they did not know was that he was not licensed to offer the mortgage investment. Changes to legislation introduced after an Albury legal firm lost more than $70 million meant that after October 2005 lawyers had to obtain government licenses to lend money and had to conduct their mortgage lending practices separately from their legal practices. Peter Dawson, the Dural solicitor who blew the whistle on Mr. Bradfield and reported him to the Law Society, said Mr. Bradfield "ignored" the legal changes and continued to run a mortgage practice. His clients had no idea he was breaching the Legal Profession Act. The "Ponzi"-style scheme meant he had to attract new investors continually so he could pay the interest owed to other investors. The Law Society suspended Mr. Bradfield's license for breaches of the Legal Profession Act and the misappropriation of trust funds. Mr. Dawson, who is representing 11 former Bradfield clients, said while the Fidelity Fund was paying clients for investments made before October 2005 it was wrong that they were not compensating all clients. "I believe the Law Society has been negligent in not ensuring that Bradfield had closed his lending practice and that ex gratia payments should be made to those who lost their money. "I'm appalled by my society's attempt to sweep it under the carpet of legislative protection. "It's not at all professional or ethical -- it's just wrong. I'd really like to see these people get their money back." Former clients of John Bradfield who have lost money are urged to call Mr. Furness on 0427 159 220. LEXISNEXIS: Faces Class Action for Concealing E-Filing Charges -------------------------------------------------------------- Cameron Langford at Courthouse News Service reports that LexisNexis faces class actions in state and federal courts, which claim that it's illegally concealing charges and overbilling litigants who must file documents electronically in a Texas state court. As a federal judge considered whether to dismiss lead plaintiff Karen McPeters' case against the publishing giant, Ms. McPeters last week filed a deceptive trade claim against LexisNexis in San Antonio state court. Ms. McPeters' claims are based on a 2003 order from 9th Montgomery County District Court Judge Frederick Edwards, who ordered private litigants in his court to file records online through LexisNexis. Montgomery County is just north of Houston. In the federal case, Ms. McPeters says Montgomery County District Clerk Barbara Gladden-Adamick enforced the e-filing requirement by refusing to file any document given to her in person; by returning unfiled any document mailed to her office for filing; and by returning a document filed in person with a "Void" mark over the clerk's file stamp, with a letter instructing the litigant to file through LexisNexis. "It is a violation of the Texas Constitution that requires access to open courts," Ms. McPeter's attorney Robert Mays said. "If it was an option, I would have no problem. But the way it is implemented, if you hand documents or mail them to the district clerk, she returns them unfiled." Ms. McPeters filed the federal class action in April 2010 against Montgomery County, Barbara Gladden-Adamick, Judge Edwards, and Netherlands-based Reed Elsevier dba LexisNexis. Ms. McPeters claimed Judge Edwards' order restricts litigants' access to court by forcing them to "pay illegal filing fees, services, charges and taxes, not authorized by statute, and exceeding the amounts required by statute." "Everybody who files a lawsuit is entitled to be treated the same and charged the same fee for filing and that's not what's happening in Montgomery County," Mr. Mays said. Lawsuits filed by the State of Texas, Child Protective Services, adoptions and new divorce and annulment cases are exempt from the order -- and from LexisNexis fees. LexisNexis conceals that it charges almost $16 for every document filed in a case, while a competing e-file provider, Texas On-Line, for example, charges $7.24 to file a document and "shows the charge at the time of filing," according to Ms. McPeters' state complaint. Ms. McPeters filed a discrimination complaint against Montgomery County in 2007 and it came under Judge Edwards' order when it was transferred to his court. But since neither Montgomery County nor LexisNexis gives litigants a list of the e-filing charges, Ms. McPeters says, she did not learn about the e-filing rates until the company billed her lawyer, in March 2009. U.S. District Judge Keith Ellison heard Montgomery County's motion to dismiss Ms. McPeters' case in December 2010. The county argued that Judge Edwards' order is legal because it is based on a 1997 miscellaneous order from the Texas Supreme Court, which said that a district court in the county could "from time to time, by written order, select and designate those cases which shall be assigned to the electronic filing system." Ms. McPeters' attorney particularly objected to the clerk's refusing to accept documents that are hand-delivered. Ms. McPeters, who as of April 2010 had paid LexisNexis $444, also claims that LexisNexis' fees duplicate part of the clerk's charges when each lawsuit is filed. In her federal complaint, Ms. McPeters wants Montgomery County enjoined from requiring that court documents in its 9th District Court be filed electronically with LexisNexis. She says the order violates her constitutional rights to due process and equal protection. In the December hearing, Judge Ellison said he was worried about an "issue of standing, as the Supreme Court has found that filing fees don't necessarily violate due process or equal protection laws." The judge said that three federal courts "have held that filing fees are not a violation of due process." He told Mr. Mays his client's case may be better suited for state court. So on Jan. 25, in San Antonio Mays filed a state class action under the Texas Deceptive Trade Practices-Consumer Protection Act, claiming that Lexis Nexis' failure to disclose its charges, and its threats of unlawful collection measures, including reporting nonpaying litigants' attorneys to the Texas State Bar and presiding judge, violate state law. LexisNexis is also violating the Texas Consumer Protection Act by passing off its goods or services as those of the Montgomery County District Clerk, and confusing its affiliation with the clerk, Ms. McPeters says in her complaint in Bexar County Court. More than 16,000 Montgomery County litigants have been subject to LexisNexis' filing fees since 2000, Ms. McPeters says. "LexisNexis charges are an unconstitutional barrier to open courts according to authority from both the Texas Supreme Court and the Texas Attorney General," Ms. McPeters says in her state complaint. "There is no precedent for this barrier. The charges are like a poll tax. Minorities, the poor, elderly and the less educated are likely to be denied their day in court. Is it reasonable to require them to be computer literate? Payment for justice is now a fact of life, but should it be?" A copy of the Complaint in McPeters v. LexisNexis, Case No. 2011CI-01119 (Tex. Dist. Ct., Bexar Cty.), is available at: http://www.courthousenews.com/2011/01/31/McPeters.pdf The Plaintiff is represented by: Robert L. Mays, Jr., Esq. 8626 Tesoro Drive, Suite 820 San Antonio, TX 78217 Telephone: 210-657-7772 SASSY INC: Recalls 37,000 Refreshing Rings Infant Teethers/Rattles ------------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Sassy Inc., of Kentwood, Mich., announced a voluntary recall of about 37,000 Refreshing Rings Infant Teethers/Rattles. Consumers should stop using recalled products immediately unless otherwise instructed. Small pieces of the plastic ball can detach as a result of children chewing on the teether/rattle, posing an ingestion hazard. The firm has received one report of pieces of the black plastic from the polka dot ball detaching while being chewed. No injuries have been reported. This recall involves Refreshing Rings infant teethers/rattles intended for babies ages three months and older. The product has a red, water-filled ring on one end and a black and white polka dot ball on the other end. The two ends of the rattles/teethers are connected by a black and white, flexible plastic rod with three floating rings. Style number 80026 is printed on the packaging. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11114.html The recalled products were manufactured in China and sold through http://www.cpsc.gov/cpscpub/prerel/prhtml11/11114.html/ Consumers should immediately take the teethers/rattles from children and contact Sassy Inc. for instructions on how to return the product for a free replacement toy. For additional information, contact Sassy Inc. at (800) 323-6336 between 8:00 a.m. and 4:30 p.m., Eastern Time, Monday through Friday or visit the firm's Web site at http://www.sassybaby.com/ SELECT COMFORT: Sued in Ill. for Non-Payment of Overtime Wages -------------------------------------------------------------- Courthouse News Service reports that Select Comfort Corp. cheats workers of overtime pay, according to a federal class action. A copy of the Complaint in Cioe v. Select Comfort Corporation, et al., Case No. 11-cv-00647 (N.D. Ill.), is available at: http://www.courthousenews.com/2011/01/31/Employ.pdf The Plaintiff is represented by: Ilan Chorowsky, Esq. Lindsey Goldberg, Esq. PROGRESSIVE LAW GROUP LLC 505 N. LaSalle Street, Suite 350 Chicago, IL 60654 Telephone: (312) 787-2717 E-mail: ilan@progressivelaw.com lindsey@progressivelaw.com - and - Robin Potter, Esq. ROBIN POTTER & ASSOCIATES, P.C. 111 East Wacker Drive, Suite 2600 Chicago, IL 60601 Telephone: (312) 861-1800 E-mail: robin@potterlaw.org SNAPPLE BEVERAGE: Judge Grants Motion for Summary Judgment ---------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that Snapple does not owe class damages for advertising "All Natural" ingredients on juices that contained high-fructose corn syrup, a federal judge ruled. U.S. District Judge Denise Cote granted summary judgment because plaintiffs "failed to present reliable evidence that they paid a premium for Snapple's 'All Natural' label." Evan Weiner and Timothy McClausland filed the class action on Oct. 10, 2007. They claimed Snapple's label was misleading because high-fructose corn syrup "does not exist in nature." They sought damages for deceptive trade, unjust enrichment and breach of warranty. Their first amended complaint stated that to "produce HFCS [high- fructose corn syrup] cornstarch is first treated with a purified enzyme, alpha-amylase, to produce shorter chains of sugars called polysaccharides." This process requires use of a bacterium, usually Bacillus.sp, the complaint states. A second enzyme, glucoamylase, which is industrially produced with a fungus, is added to produce glucose. Then a third enzyme converts the glucose to fructose, which requires two more steps to produce a concentrate, the complaint states. In a 2002 op-ed piece for The New York Times, Michael Pollan, author of "The Omnivore's Dilemma," wrote: "It's probably no coincidence that the wholesale switch to corn sweeteners in the 1980s marks the beginning of the epidemic of obesity and Type 2 diabetes in this country. Sweetness became so cheap that soft drink makers, rather than lower their prices, super-sized their serving portions and marketing budgets." Snapple started substituting sugar for high-fructose corn syrup in all of its products labeled "All Natural" in 2009, Judge Cote wrote. She denied class certification for the plaintiffs in September 2010. Snapple sought summary judgment on Sept. 17, 2010, which Judge Cote granted. "According to Snapple, because the plaintiffs have not offered evidence showing either the price they paid for Snapple or the prices charged by competitors for comparable beverages, they cannot demonstrate that they paid a premium for the 'All Natural' Snapple product and thus cannot show harm stemming from the allegedly misleading label . . . "Neither of the plaintiffs has any record of his purchases of Snapple. Their most recent purchases were made in 2005 and 2007, or 3 to 5 years before their deposition testimony was taken. Not surprisingly, they had only vague recollections of the locations, dates, and prices of their purchases of Snapple," the judge wrote. The plaintiffs could not determine the prices they paid for the Snapple products, nor could they recall the prices of competing beverages made without corn syrup. Judge Cote wrote that it "would be difficult to recall" such information because prices in the "retail market vary widely," but it is necessary for the lawsuit to have merit. "While the difficulty that the plaintiffs face in showing injury is great, it is nonetheless their burden to make such a showing, and they have failed to offer sufficient evidence to permit a jury to render an award in their favor," the judge wrote. She said that the plaintiffs gave only rough estimates of the prices of their Snapple purchases in their depositions, testifying that the bottles cost "somewhere south of $2" and "$1.50 to $1.75, around there." "Snapple is entitled to summary judgment on the ground that the plaintiffs have failed to identify sufficient evidence to permit a jury to find that they suffered any injury." A copy of the Opinion and Order in Weiner, et al. v. Snapple Beverage Corporation, Case No. 07-cv-08742 (S.D.N.Y.), are available at: http://www.courthousenews.com/2011/01/31/SnappleRuling.pdf The Plaintiffs were represented by: Daniel R. Lapinski, Esq. Lynne M. Kizis, Esq. Philip A. Tortoreti, Esq. WILENTZ, GOLDMAN & SPITZER P.A. 90 Woodbridge Center Drive Woodbridge, NJ 07095 Telephone: 732-636-8000 Snapple Beverage Corporation was represented by: Van H. Beckwith, Esq. Ryan L. Bangert, Esq. BAKER BOTTS LLP 2001 Ross Avenue Dallas, TX 75201 Telephone: 214-953-6500 - and - Seth T. Taube, Esq. Maureen P. Reid, Esq. BAKER BOTTS LLP 30 Rockefeller Plaza New York, NY 10112 Telephone: 212-408-2500 TACO BELL: Mulls Countersuit Against Alabama Law Firm ----------------------------------------------------- Gergana Koleva, writing for Wallet Pop, reports The Taco Bell controversy over whether its meat really is "ground beef," as the company claims, or some mysterious concoction of fillers and additives has dominated consumer news since word got out that the Mexican-style food franchise was slapped with a class action lawsuit last week. In a new advertising campaign run in major daily newspapers, the Yum! Brands chain defends the quality of its beef in an effort to counter negative perceptions. "Thank you for suing us. Here's the truth about our seasoned beef," the ad copy reads, before launching into a detailed description of the percentages of beef and Secret Recipe seasonings the company uses. Those include salt, chili pepper, onion powder, tomato powder, garlic powder, cocoa powder, oats, caramelized sugar, yeast, citric acid, and "other ingredients that contribute to the flavor, moisture, consistency, and quality of our seasoned beef," the ad says. "Plain beef tastes boring," the ad also says, explaining that the only reason Taco Bell adds anything to its beef is to enhance its flavor. "Otherwise we'd end up with nothing more than the bland flavor of ground beef, and that doesn't make for great-tasting tacos." While the ads are explanatory in nature and clearly aimed at re-educating consumers, Taco Bell has also threatened to countersue the Alabama law firm that filed the suit against it. In an earlier statement, Taco Bell President Greg Creed said the lawyers had gotten their facts "absolutely wrong." Bill Marler, a foodborne illness and product liability attorney who has represented clients in at least three previous food- related lawsuits against Taco Bell, said the company has made a clever move by counterattacking its accusers. "Taco Bell has done an effective job of taking on the lawyers, [regardless] of whether or not they were selling the definition of the meat," Mr. Marler told Consumer Ally. "Lawyers are such an easy target to take on." However, Mr. Marler noted, the legal roots of the controversy lie just as much with Taco Bell. "It's inconceivable to me that a company as sophisticated as Yum! Brands didn't vet with their lawyers the words that they use to advertise their food," he said of the claims that landed the company in trouble, namely that it uses "ground beef" or "seasoned ground beef" in its products. The class action suit alleges the company only uses about 35% real beef, with the remaining 65% made up of various fillers, binders, and extenders. Such percentages do not meet USDA's minimum requirements for the food mixture to be labeled and advertised as "beef," according to the suit. "Just because the food is cheap doesn't mean they should be able to tell you that it's something it is not," Mr. Marler said. "But my strong suspicion is that their aggressive behavior in the ads is likely justified." TIBCO SOFTWARE: Awaits Court OK of Merger-Related Suit Settlement ----------------------------------------------------------------- TIBCO Software Inc. is awaiting court approval of its settlement of a class action lawsuit filed in connection with its acquisition of Proginet, according to the Company's Jan. 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Nov. 30, 2010. On June 28, 2010, a putative shareholder class action suit was filed by individual stockholders in the Supreme Court of the State of New York, Nassau County, against Proginet (which the Company acquired on September 15, 2010), certain of its officers and directors, the Company and its subsidiary created for the purpose of effectuating the acquisition of Proginet. The complaint generally alleged that the individual defendants breached their fiduciary duties by failing to maximize shareholder value in negotiating and approving the merger agreement, and that Proginet and the Company aided and abetted those alleged breaches of fiduciary duties. The complaint seeks, among other relief, class certification, certain forms of injunctive relief, including enjoining the proposed merger, and unspecified damages. The Company, Proginet and the other defendants in this action entered into an agreement providing for the settlement and dismissal with prejudice of this action. The agreement is subject to approval of the court. Although the Company and Proginet believe that the action is without merit, they entered into the settlement to avoid the risk of delaying the merger and to minimize the expense of defending the action. The settlement and dismissal with prejudice, if 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 merger (other than claims for appraisal under Section 262 of Delaware law). In connection with the settlement and dismissal with prejudice, Proginet has agreed, subject to court approval, that it will pay plaintiffs' counsel the amount of up to $200,000 for its fees and expenses in the action. TIBCO SOFTWARE: Appeals Still Pending in IPO Allocation Suit ------------------------------------------------------------ TIBCO Software Inc., certain of its directors and officers, and certain investment bank underwriters have been named in a putative class action for violation of the federal securities laws in the United States District Court for the Southern District of New York, captioned "In re TIBCO Software Inc. Initial Public Offering Securities Litigation." This is one of a number of cases challenging underwriting practices in the initial public offerings of more than 300 companies, which have been coordinated for pretrial proceedings as "In re Initial Public Offering Securities Litigation." Plaintiffs generally allege that the underwriters engaged in undisclosed and improper underwriting activities, namely the receipt of excessive brokerage commissions and customer agreements regarding post-offering purchases of stock in exchange for allocations of IPO shares. Plaintiffs also allege that various investment bank securities analysts issued false and misleading analyst reports. The complaint against the Company claims that the purported improper underwriting activities were not disclosed in the registration statements for the Company's IPO and secondary public offering and seeks unspecified damages on behalf of a purported class of persons who purchased the Company's securities or sold put options during the time period from July 13, 1999 to December 6, 2000. A lawsuit with similar allegations of undisclosed improper underwriting practices, and part of the same coordinated proceedings, is pending against Talarian, which the Company acquired in 2002. That action is captioned "In re Talarian Corp. Initial Public Offering Securities Litigation." The complaint against Talarian, certain of its underwriters and certain of its former directors and officers claims that the purported improper underwriting activities were not disclosed in the registration statement for Talarian's IPO and seeks unspecified damages on behalf of a purported class of persons who purchased Talarian securities during the time period from July 20, 2000 to December 6, 2000. The parties have reached a global settlement of the litigation, including the actions against the Company and Talarian. Under the settlement, the insurers will pay the full amount of settlement share allocated to the Company (its financial liability will be limited to paying the remaining balance of the applicable retention under Talarian's directors and officers liability insurance policy). In addition, the Company, and the other defendants will receive complete dismissals from the case. On October 5, 2009, the Court granted final approval of the settlement. Certain objectors have filed appeals. No updates were reported in TIBCO Software Inc.'s Jan. 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Nov. 30, 2010. TOSHIBA AMERICA: HR Managers Files Employment Class Action ---------------------------------------------------------- The Human Resources Manager of Toshiba America Nuclear Energy Corporation filed a class action employment lawsuit in the United States District Court for the Southern District of New York on Jan. 31 in an effort to end systemic, companywide gender discrimination against herself and other female employees by TANE and its parent corporation, Toshiba America, Inc. Elaine Cyphers joined TANE as its Human Resources Manager in June 2008. Prior to joining Toshiba, she had more than 25 years of human resources experience. According to the Complaint, although Toshiba publicly touts its commitment to gender diversity and its efforts to promote more female employees to managerial positions, discrimination against women is pervasive in the company. The Complaint details a pattern of discrimination against women employed by the giant technology manufacturer and energy system supplier. The Complaint asserts that Toshiba engages in systemic gender discrimination against female employees by paying them less than their male counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment as employees. The Complaint also details preferential treatment that males at Toshiba receive with respect to salary, benefits, bonuses and promotions. Ms. Cyphers is represented in the matter by David Sanford in the Washington D.C. office of Sanford Wittels & Heisler, LLP. The firm recently secured the largest jury award in the U.S. in an employment discrimination case, in this same court, in May 2010 when a jury returned a verdict of $253 million in compensatory and punitive damage at Novartis Pharmaceuticals Corporation. After weeks of negotiations, the parties settled that case for $175 million. "Ms. Cyphers has experienced personal and painful gender discrimination at Toshiba America Nuclear Energy," said David Sanford. "As an experienced human resources professional, she is very aware of the requirements of the Fair Labor Standards Act, the Civil Rights Act and the Equal Pay Act, which Toshiba has systematically violated in its treatment of her and its other female employees. The company added insult to injury by retaliating against Elaine. This suit will remedy that retaliation and discriminatory conduct." In January 2009, Ms. Cyphers and another employee reported discriminatory conduct by Toshiba's Vice President of Human Resources to the company's General Counsel. After Ms. Cyphers lodged her complaint, the Vice President and General Counsel launched a campaign to force Ms. Cyphers out of TANE by retaliating against her in ways that harmed her reputation, hindered her advancement and limited her earning potential. The Complaint describes this retaliatory response as typical of Toshiba's pattern and practice of facilitating and perpetuating gender discrimination against female employees by discouraging employees from complaining about such discrimination, failing to properly investigate reports of such discrimination, and failing to remedy or prevent the recurrence of gender discrimination reported to the company. Subsequent to Ms. Cyphers' interviewing for and accepting TANE's "top" HR job, Toshiba created a new HR position above her, and did not publicize the new position or inform Ms. Cyphers about it. TANE filled the new position from within Toshiba with a male less qualified and experienced than she. After that male's promotion, Ms. Cyphers was stripped of her primary duties as HR Manager and assigned low-level administrative and clerical tasks. Ms. Cyphers' responsibilities for recruiting and hiring were taken away and assigned to a less qualified and experienced male contract employee. The proposed class includes all females employed by Toshiba in the U.S. Ms. Cyphers is seeking declaratory and injunctive relief, back pay, front pay and lost benefits, as well as compensatory, nominal and punitive damages in an amount of $100 million or more for herself and similarly situated female Toshiba employees. Toshiba America is a subsidiary of Tokyo-based Toshiba Corporation, a technology manufacturer with 364 consolidated subsidiaries worldwide. With some 8,000 employees throughout the US, it is the parent company of a group of technology companies that develop, manufacture and market electronic products. Toshiba America is incorporated in Delaware and headquartered in New York City. TANE is a subsidiary of Toshiba America that markets and promotes advanced boiling water nuclear power plants and related supports and services. It is incorporated in Delaware and headquartered in Falls Church, VA. Sanford Wittels & Heisler LLP (SWH) -- http://www.swhlegal.com/-- is a boutique class-action litigation law firm with offices in New York, Washington, D.C., and San Francisco. SWH specializes in civil rights and general public interest cases, representing plaintiffs with employment discrimination, labor and wage violations, predatory lending, whistleblower, consumer fraud, and other claims. Along with an expertise in class actions, SWH also represents select individuals and has developed a particular expertise in the representation of executives in employment disputes. TURNER INDUSTRIES: Workers File Racial Discrimination Suit ---------------------------------------------------------- Leslie Eaton, writing for The Wall Street Journal, reports nearly 250 workers sued Turner Industries Group of Baton Rouge on Jan. 30, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment. The lawsuit against the closely held industrial construction and fabrication company, filed electronically in the U.S. Court for the Eastern District of Texas in Marshall, escalates in scope and size a dispute that Turner seemed to have put behind it last summer. In July, Turner settled similar allegations of discrimination in an agreement with the U.S. Equal Employment Opportunity Commission and half a dozen workers at its pipe plant in Paris, Texas. Terms of the settlement are confidential. Last March, the EEOC had issued a letter saying it found "reasonable cause to believe" that Turner discriminated against black employees. After the EEOC finding became public in April, hundreds of current and former Turner employees from across Texas and Louisiana came forward with similar allegations, said James Vagnini, a partner of Valli, Kane & Vagnini in Garden City, N.Y., which represents the workers who filed suit. The company, a large industrial contractor that does work for oil refineries across the Gulf Coast, has adamantly disputed that African-American employees were mistreated. Nina Taylor, a fire watch, is a plaintiff in an EEOC lawsuit against Turner Industries, one of hundreds of workers filing racial discrimination complaints about the Baton Rouge, La heavy- construction company. John Fenner, Turner's corporate counsel, didn't respond to requests for comment Sunday. But in an interview Friday, he said the company's policy is clear: "We don't tolerate any activity that in any way disparages any of our employees." Employment discrimination has been at the heart of some high- profile class-action lawsuits, in which several plaintiffs sue claiming to represent a large group of unnamed people. The Supreme Court is set to decide later this year whether women who feel they were discriminated against by Wal-Mart Stores Inc. can sue as a class representing half a million employees or if each woman who claims discrimination must file an individual lawsuit. Wal-Mart denies the allegations. In the Turner case, hundreds of named plaintiffs are filing their own individual experiences, which experts said is uncommon. "Even just to have multiple plaintiffs is unusual," said Laura Beth Nielsen, a professor of sociology at Northwestern University in Chicago and a research professor at the American Bar Foundation. In their 374-page complaint, current and former hourly workers for Turner allege "disparate treatment and derogatory slurs." They say they weren't given opportunities for advancement and promotion, and in some cases were replaced with less experienced white workers. The workers also describe racial epithets allegedly made by co- workers and supervisors, and the appearance of racist graffiti and nooses. When they complained, the workers said in the suit, they were ignored or retaliated against. The workers are seeking actual and punitive damages, as well as an array of changes in the company's personnel practices. UNITED PANAM: Faces Class Action Over Proposed Merger ----------------------------------------------------- A shareholder that owns more than 150,000 common shares of United PanAm Financial Corp. has filed a class action lawsuit alleging breaches of fiduciary duties against UPFC, its directors, including its Chairman Guillermo Bron, and certain other entities in connection with the proposed merger of UPFC announced on December 28, 2010. The case has been filed in the Superior Court for the State of California, County of Orange, and been assigned Civil Case No. 30-2011-00442721-CU-BT-CXC. The complaint filed in the lawsuit alleges that the proposed merger, which was approved by the Company's board of directors, is the product of unfair dealing and is at an unfair price. The entity that will be acquiring UPFC if the merger is approved by shareholders is controlled by Mr. Bron and his affiliates. Mr. Bron, as the Company's largest shareholder, and the other directors who approved the merger, owe a duty to shareholders to obtain a fair price pursuant to a fair process. The Complaint alleges that this did not occur because, among other things, there is no indication that the Company was shopped to other potential purchasers, or that the proposed merger represents the best offer available. Further, the Complaint alleges that, based on the publicly available information, the proposed merger price of $7.05 per common share is facially inadequate and significantly below UPFC's book value at the time of the announced merger. The Complaint further alleges that the merger price is significantly below the multiple-to-book value obtained by shareholders of similar companies that have recently been acquired, including by shareholders of AmeriCredit Corporation, which was acquired by General Motors Corp. on July 22, 2010, and by shareholders of Chrysler Financial Corporation, which was acquired by Toronto- Dominion Bank on December 21, 2010. Finally, the Complaint alleges that the timing of the merger is suspect because it is designed to prevent shareholders from continuing to enjoy the fruits of the Company's recent turnaround effort, which included shedding all risky loans from its books, reducing its overhead and costs, and bringing in new management. The Complaint alleges that, as a result of these actions, the Company's common stock price has rebounded from lows reached during the heart of the recent global recession. It also alleges that the Company, and its industry, is poised for growth as the economy begins to expand, and that the merger aims to secure the benefits of the growth for Company insiders to the economic detriment of UPFC's public shareholders. The merger is subject to approval by vote of a majority of the unaffiliated (minority) shareholders, and has been set for a vote on February 24, 2011. If you would like further information about this action, you may speak with the following attorneys: Contacts: David Wissbroecker, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: djr@rgrdlaw.com - or - Robert Plosky, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 E-mail: rplosky@wolfpopper.com WAL-MART STORES: Defense Bar Files Amicus Curiae Brief in Dukes --------------------------------------------------------------- The Voice of the Defense Bar recently filed an amicus curiae brief in the United States Supreme Court in the case of Wal-Mart Stores Inc. v. Dukes, et al. (No. 10-277). In the brief, DRI asks the Court to overturn the Ninth Circuit Court's decision that allows 1.5 million plaintiffs' claims to proceed as a nationwide class action. "The Court's careful consideration of the class certification of this case is essential, as the outcome will affect class action cases in all contexts." In what originated as a sexual discrimination case by Wal-Mart employees Betty Dukes and other females, the Supreme Court will rule on the validity of the class action mechanism itself, not the merits of the respondents' grievances. The respondents accused Wal-Mart Corporation of engaging in a pattern and practice of pay and promotion discrimination based on gender. DRI's brief argues that both the size and proposed make-up of the class, which includes hundreds of thousands of female current and former Wal-Mart employees, violates due process and lowers the burden on plaintiffs to show that they were victims of intentional, institutionalized discrimination. Granting class action status in the suit would also eliminate Wal-Mart's right to present individualized defenses for the numerous and varied claims the company faces from suit plaintiffs. "Allowing hundreds of thousands of individuals to file a singular, overly-generalized claim clearly disregards the requirement of individualized proof," said R. Matthew Cairns, president of DRI. "While we hope justice is served for anyone who faces discrimination, this enormous aggregation of truly disparate claims could not result in any kind of just and fair ruling." The Supreme Court's ruling would affect the formation of future class actions because a failure to overturn the Ninth Circuit decision would likely trigger "an explosion of meritless class actions filed solely to force settlements," according to DRI's brief. "The Court's careful consideration of the class certification of this case is essential, as the outcome will affect class action cases in all contexts," said Mr. Cairns. "The Ninth Circuit's ruling clearly manipulated Rule 23, misinterpreting the Rules Enabling Act, which is essential to assessing class action cases fairly in the civil justice system." Immediately following oral arguments before the Court, DRI will host a webinar addressing the key issues the Court must address as well as the wide-reaching implications that the decision will have on business litigation. The Voice of the Defense Bar -- http://www.dri.org/-- is the national organization of more than 22,000 defense trial lawyers and corporate counsel. DRI provides numerous educational and informational resources to members and offers many opportunities for liaison among defense trial lawyers, Corporate America, and state and local legal defense organizations. DRI also has an international presence, seeking to enhance understanding of the law among members of the defense community who have reason to be concerned with the expanding globalization of litigation defense. WELLS FARGO: Sued in Washington Over Unjustified "Fax Fee" ---------------------------------------------------------- Courthouse News Service reports that Wells Fargo Home Mortgage charges an unjustified "fax fee" of $10 in property transactions, a class action claims in King County Court. A copy of the Complaint in Hammer, et al. v. Wells Fargo Home Mortgage, Inc., Case No. 11-2-04830-6 (Wash. Super. Ct., King Cty.), is available at: http://www.courthousenews.com/2011/01/31/WellsFargo.pdf The Plaintiffs are represented by: SCHOETER GOLDMARK & BENDER 500 Central Building 810 Third Avenue Seattle, WA 98104 Telephone: (206) 622-8000 WESTERN DIGITAL: Final Hearing on Class Action Pact Set This Month ------------------------------------------------------------------ The hearing for the final approval of a settlement resolving a putative class action complaint filed against Western Digital Corporation is set for February 2011, according to Western Digital's Jan. 27, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On March 20, 2009, plaintiff Ghazala H. Durrani, a former employee of the Company, filed a putative class action complaint in the Alameda County (California) Superior Court. The complaint alleges that certain of the Company's engineers have been misclassified as exempt employees under California state law and are, therefore, due unspecified amounts for unpaid hourly overtime wages and other amounts, as well as penalties for allegedly missed meal and rest periods. By court order dated April 24, 2009, the case was transferred to the Orange County (California) Superior Court, where it is now pending. On or about June 16, 2009, the Company was dismissed from the case without prejudice by stipulation, leaving WDTI as the sole remaining defendant. On or about June 4, 2009, WDTI filed its answer to the complaint, denying the substantive allegations thereof and raising several affirmative defenses. Formal discovery has commenced. The parties participated in a mediation of the case on June 3, 2010, which led to a proposed settlement of the case. The proposed settlement would resolve the case on a class-wide basis for an immaterial amount that was accrued by the Company in the fourth quarter of fiscal 2010. The proposed class action settlement must receive preliminary and final approval by the court before the settlement will become final and binding. A hearing for preliminary approval of the settlement was heard on October 18, 2010, and the court preliminarily approved the settlement. The final approval hearing is currently scheduled for February 2011. If the court does not grant final approval of the settlement, and the Company is unsuccessful in its defense of this matter, potential liability could include unpaid wages, interest, penalties, attorneys' fees and costs. Absent final approval of the settlement, the Company intends to continue to defend itself vigorously in this matter. WESTERN DIGITAL: Defends "Wage-Hour" Lawsuit in California ---------------------------------------------------------- Western Digital Corporation continues to defend itself against a "wage-hour" lawsuit filed in Orange County, California, according to the Company's Jan. 27, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On February 26, 2010, and as thereafter amended on August 23, 2010, and December 22, 2010, plaintiff Tarriq Sadaat, a former employee of the Company, filed a putative class action complaint in the Orange County (California) Superior Court against the Company; WDTI; Kelly Services, Inc.; and certain other unnamed individuals. The named plaintiff seeks to represent certain hourly employees who were assigned to work at certain of the Company's facilities by Kelly Services, a temporary staffing agency. In this regard, the complaint alleges that the hourly employees are due unspecified sums for unpaid overtime wages and other amounts, as well as penalties for allegedly missed meal and rest periods. The complaint seeks unspecified damages including lost wages, penalties under the California Labor Code and other statutes, compensatory and punitive damages, declaratory relief, injunctive relief, interest, attorneys' fees and costs. The Company's response to the complaint was filed and served in January 2011. The Company denies the allegations and intends to defend itself vigorously. XO HOLDINGS: Shareholders Sue D&Os Over ACF Deal ------------------------------------------------ Robert Murphy, IRA, on behalf of himself and others similarly situated v. Carl C. Icahn, et al., Case No. 650241/2011 (N.Y. Sup. Ct., New York Cty. January 28, 2011), accuses XO Holdings, Inc. Board Chairman Icahn and other members of the Company's Board of Directors of breaching their fiduciary duties to the Company's public shareholders in connection with their unlawful scheme and plan to sell to ACF Industries Holding Corp. all outstanding common shares of the Company not currently owned by ACF and Mr. Icahn for $0.70 offer price per share. Mr. Murphy (through his IRA) is the beneficial owner of XO Common Stock. Mr. Icahn is the beneficial owner of a majority of the outstanding shares of the Company through ACF or other of his affiliates. Specifically, directly and indirectly through his affiliates, including ACF, Mr. Icahn beneficially owns over 60% of the outstanding common stock of XO, and over 91.5% of the voting control of XO. Defendant XO provides 21st century communications services for businesses and communications services providers, including 50 percent of the Fortune 500 and leading cable companies, carriers, content providers and mobile operators. XO common stock is traded over the counter under the symbol "XOHO". Defendant ACF is a privately held company that is an affiliate of and controlled by Mr. Icahn. The Complaint says the $0.70 offer price per share, made by ACF on January 19, 2011, is grossly inadequate. Among other things, it is below the current market price and recent trading prices, and is even below the $0.80 per share price at which Mr. Icahn proposed to acquire the same public shares in a buyout barely a year earlier, which price was rejected as being too low and inadequate. Mr. Murphy said XO and the Board have further breached their fiduciary duties to the public shareholders of XO by creating a "rigged" process designed to approve the ACF offer. Mr. Murphy relates that the "independent" special committee selected to evaluate the ACF's offer and also to negotiate over the terms of the transaction is composed of directors elected by Mr. Icahn and two of three members that have longstanding business and financial connections to Mr. Icahn. The Plaintiff is represented by: Lester L. Levy, Esq. Patricia I. Avery, Esq. Joshua W. Ruthizer, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 * Number of Securities Class Actions in Canada Slips ---------------------------------------------------- Jeff Gray, writing for Globe and Mail, reports that not too long ago, legal experts warned that Ontario's move to boost the rights of shareholders by allowing them to sue boards they accused of fibbing or manipulating stock prices would result in a U.S.-sized wave of litigation. Six years later, Canadian shareholders have been more vocal, with proxy fights and arguments against things like exorbitant executive pay on the rise. But Ontario's ruling on secondary market liability -- which recognizes the right of shareholders to sue a board not just when it issues stock, but over shares already on the market -- hasn't brought on an unrelenting wave of lawsuits. The latest numbers from NERA Economic Consulting count a record 28 securities class action cases under way in Canada, with $15.9-billion in outstanding claims. However, the number of new cases filed continues to slip. In 2010, eight new securities class actions were filed, compared to nine in 2009 and 10 in 2008. Five cases were settled last year, with an average payout of $13.5-million. Regardless of whether shareholders are suing in Canada, companies here have also long had to keep an eye on the U.S., where this kind of litigation is more common. There are currently 13 active securities class actions in the U.S. against Canadian-domiciled companies, NERA says. But as Mark Berenblut, a co-author of the study, points out, a ruling last year by the U.S. Supreme Court may shield some Canadian firms from U.S. courts. The decision, Morrison v. Australia National Bank, appears to limit the extraterritorial reach of U.S. litigation to companies listed on a U.S. stock exchange or to securities purchased in the United States. ********* 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 * * *