/raid1/www/Hosts/bankrupt/CAR_Public/110322.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 22, 2011, Vol. 13, No. 57
Headlines
ALLIS-CHALMERS ENERGY: Continues to Defend Seawell Merger Suits
AGENUS INC: Continues to Defend Appeals in IPO Suit in New York
AU OPTRONICS: Judge Remands Flat-Panel Display Class Action
BERKSHIRE HILLS: Awaits Court Approval of "Rome" Suit Settlement
BLUEKNIGHT ENERGY: Has Not Yet Reached Definitive Settlement Pact
BROADWIND ENERGY: Defends Class Action Suit in Illinois
CAPITAL GOLD: Signs MOU to Settle Delaware Actions
CHINA INTEGRATED: Director Continues to Defend Suit vs. Fushi
CHINA MEDIAEXPRESS: Class Action Lead Plaintiff Deadline Nears
CHINA VALVES: Faces Three Securities Class Suits in New York
COMMUNITY BANK SYSTEM: Defends Lawsuits Over Wilber Merger
COWEN GROUP: Appeal From Settlement Order Remains Pending
COWEN GROUP: Discovery Stayed in "Huff" and "Appaloosa" Suits
COWEN GROUP: No Appeal Filed in Unit's Dismissal
COWEN GROUP: Continues to Defend WorldSpace IPO Class Suit
COWEN GROUP: Motion to Remand "CardioNet" Suit Remains Pending
COWEN GROUP: Unit Continues to Defend "Fuqi" Lawsuit
COWEN GROUP: Faces Two Suits Over LaBranche Buy-Out
COWEN GROUP: Unit Faces Class Suit on Alphatec 2010 Offering
CHURCHILL DOWNS: Time to Appeal in "Youbet" Suits Has Expired
DEERE & CO: Accused of Discriminating Against Female Applicants
DELL INC: Appeals From Securities Suit Settlement Still Pending
DELL INC: Awaits Ruling on Interlocutory Appeal From Certification
DISCOVER CARD: Defends "Bennett" Lawsuit in California
DRUG STORES: No Class Action Filed by W.Va. AG, Decisions Show
DULUTH, MN: Rental Licensing Operations Shut Down After Suit
FALCONSTOR SOFTWARE: Awaits Amended Complaint in Securities Suit
FLORIDA: Judge Approves $790,000 FPU Class Action Settlement
GOOGLE INC: Faces Class Action in Texas for Invasion of Privacy
GOOGLE INC: Sued for Breach of Contract and Unfair Bus. Practices
HANSEN MEDICAL: Motion to Dismiss Suit in Calif. Still Pending
HARBIN ELECTRIC: Lawsuits Over Stock Acquisition Still Pending
ING GROUP: Faces Securities Class Action in New York
INSMED INCORPORATED: Faces Class Suit Relating to Transave Merger
INTERNET CAPITAL: Awaits Court Decision in "Bechtold" Appeal
INTERSECTIONS INC: Appeal in Texas Class Suit Remains Pending
INTERSECTIONS INC: Discovery Remains Ongoing in California Suit
KENEXA CORP: Court Denies Motion to Reconsider Suit Dismissal
LABRANCHE: Continues to Defend Suits Related to Merger With Cowen
LABRANCHE: Discovery Ongoing in NYSE Specialists Securities Suit
LIFE PARTNERS: Class Action Lead Plaintiff Deadline Nears
LOCAL.COM CORP: Class Action Suit in California Still Pending
LOJACK CORP: Seeks Consolidation of Employee Suits in California
LOJACK CORP: Mediation Hearing Set for March 29 in Consumer Suit
MEDIVATION INC: Continues to Defend Dimebon-Related Class Suit
MEDQUIST HOLDINGS: Awaits Court Okay of Shareholder Settlement
MEDQUIST HOLDINGS: Continues to Monitor Kahn Class Action
MERCER INSURANCE: Yet to Present Settlement Stipulation to Court
NAVISITE INC: Continues to Defend in "Tansey" Suit in Mass.
NAVISITE INC: Continues to Defend "Chain" Suit in Massachusetts
NETFLIX: Faces Class Action in California Over Streaming Service
NOVAMED INC: Hearing in Merger-Related Suit Set for April 4
NOVATEL WIRELESS: Trial in Consolidated Securities Suit Set May 10
NOVELL INC: Faces 14 Actions Over Merger With Attachmate
NVIDIA CORP: Enforcement Motion in GPU Suit to be Heard March 28
NVIDIA CORP: Awaits Ruling on Motion to Dismiss Securities Suit
PACIFIC SEAFOOD: Charges Against Three Defendants Dismissed
PHI INC: Motion for Summary Judgment Still Pending in Delaware
PORNOGRARPHY DOWNLOADERS: EFF Seeks Dismissal of Class Action
UNITED STATES: Oklahomans to Get Cobell Settlement Payments
RADIENT PHARMA: Retains DLA Piper as Class Action Counsel
RADIO ONE: Continues to Defend Appeals in IPO Securities Suit
REDBOX: Class Action Over Late Fee Charges Pending
SANFORD BROWN: Class Action Pending in Appellate Court
SD-3C LLC: Accused of Conspiring to Fix Prices for SD Cards
SILVERLEAF RESORTS: Being Sold to Cerberus for Too Little
SOLTA MEDICAL: Aesthera's Motion to Settle Suit Still Pending
SPECTRANETICS CORP: Awaits Final Order in Securities Suit
SPECTRANETICS CORP: "Vagle" Suit Settled and Dismissed
TECUMSEH PRODUCTS: Appeals in Horsepower Label Suits Dismissed
TECUMSEH PRODUCTS: Continues to Defend Price-Fixing Suit in Quebec
TECUMSEH PRODUCTS: Continues to Defend Compressor Industry Suits
TOYOTA MOTOR: Calif. Court Tosses Class Action Over Warranty
TRAVELERS CASUALTY: Judges Reverse Class Certification Ruling
UTSTARCOM INC: Appeals in IPO Allocation Suit Remains Pending
WILLIAM HOWARD: Relocation Suit Granted Class Action Status
YORK AVENUE PRESCHOOL: Accused of Fraudulent Misrepresentation
YRC WORLDWIDE: Discovery Continues in "401(k)" Litigation
YRC WORLDWIDE: Defending Securities Class Action Suit in Kansas
*********
ALLIS-CHALMERS ENERGY: Continues to Defend Seawell Merger Suits
---------------------------------------------------------------
Allis-Chalmers Energy, Inc., continues to defend itself against
several class action lawsuits over its merger with Seawell
Limited, according to the Company's March 15, 2011, Form 10-D
filing with the U.S. Securities and Exchange Commission.
On August 12, 2010, the Company entered into a merger agreement
with Seawell Limited, or Seawell, and Wellco Sub Company, a wholly
owned subsidiary of Seawell. On February 23, 2011, the merger
transactions closed and the Company merged with and into Wellco
Sub Company, becoming a wholly owned subsidiary of Seawell under
the name "Allis-Chalmers Energy Inc." Following the merger,
Seawell and its subsidiaries, including the Company, have begun
operating under the name Archer; however, the Company's legal name
will remain "Allis-Chalmers Energy Inc." until further notice.
Shortly following the announcement of the merger agreement, ten
putative stockholder class-action petitions and compliants were
filed against various combinations of the Company, members of the
Company's board of directors, Seawell, and Wellco. Seven of the
lawsuits were filed in the District Court of Harris County, Texas,
which the Company refers to as the Texas Actions, and three
lawsuits were filed in the Court of Chancery of the State of
Delaware, which the Company refers to as the Delaware Actions.
These lawsuits challenge the proposed merger and generally allege,
among other things, that the Company's directors have breached
their fiduciary duties owed to the Company's public stockholders
by approving the proposed merger and failing to take steps to
maximize the Company's value to the Company's public stockholders,
that the Company, Seawell, and Wellco aided and abetted such
breaches of fiduciary duties, and that the merger agreement
unreasonably dissuades potential suitors from making competing
offers and restricts the Company from considering competing
offers. The lawsuits generally seek, among other things,
compensatory damages, attorneys' and experts' fees, declaratory
and injunctive relief concerning the alleged breaches of fiduciary
duties, and injunctive relief prohibiting the defendants from
consummating the merger.
Various plaintiffs in the Texas Actions filed competing motions to
consolidate the suits, to appoint their counsel as interim class
counsel and to compel expedited discovery. On September 16, 2010,
the defendants filed joint motions to stay the Texas Actions in
favor of a first-filed Delaware lawsuit, and opposing the motions
for expedited discovery. There is no hearing date set for these
motions. The parties to the Texas State Court actions have agreed
that the various defendants need not respond to the petitions
until after lead counsel is appointed, a consolidated amended
petition is filed and served or, alternatively, an active petition
is designated by lead counsel.
On September 21, 2010, the plaintiffs in the Delaware Actions
wrote the court seeking consolidation of the Delaware cases.
Defendants did not oppose consolidation and took no position
regarding lead plaintiff. On September 29, 2010, the Delaware
court granted the motion to consolidate. Previously, on
September 16, 2010, Seawell and Wellco answered the first-filed
Girard Complaint, which is the operative complaint post-
consolidation. The Company answered the consolidated complaint on
October 4, 2010. On January 26, 2011, the plaintiffs in the
Delaware Actions filed an amended complaint that included, among
other claims, allegations that the disclosures made by Defendants
concerning the merger are incomplete and misleading. Also on
January 26, 2011, the plaintiffs in the Delaware Actions filed a
motion to expedite proceedings for discovery and briefing and to
set a date and time to hear their application for a preliminary
injunction to enjoin the merger. Following a hearing, on
February 3, 2011, the Delaware court denied plaintiffs' motion.
The Company believes all of these lawsuits are without merit and
intend to defend them vigorously.
AGENUS INC: Continues to Defend Appeals in IPO Suit in New York
---------------------------------------------------------------
Agenus Inc. continues to defend itself against appeals from the
settlement of a class action lawsuit related to its initial public
offering, according to the Company's March 16, 2011 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
Agenus, the Company's Chairman and Chief Executive Officer, Garo
H. Armen, Ph.D., and two investment banking firms that served as
underwriters in the Company's initial public offering were named
as defendants in a federal civil class action lawsuit in the
United States District Court for the Southern District of New
York. Substantially similar actions were filed concerning the
initial public offerings for more than 300 different issuers, and
the cases were coordinated for pre-trial purposes as In re Initial
Public Offering Securities Litigation, 21 MC 92. The suit alleges
that the brokerage arms of the investment banking firms charged
secret excessive commissions to certain of their customers in
return for allocations of the Company's stock in the offering. The
suit also alleges that shares of the Company's stock were
allocated to certain of the investment banking firms' customers
based upon agreements by such customers to purchase additional
shares of the Company's stock in the secondary market. The parties
have reached a global settlement of the litigation. Under the
settlement, the insurers will pay the full amount of settlement
share allocated to the defendants, and the defendants will bear no
financial liability. Agenus and the other defendants will receive
complete dismissals from the case. In October 2009, the Court
entered an order granting final approval of the settlement, and
subsequently judgment was entered. Various objectors have filed
appeals. If for any reason the settlement does not become
effective, the Company believes it has meritorious defenses to the
claims and intend to defend the action vigorously. The Company is
unable to predict the likelihood of an unfavorable outcome or
estimate its potential liability, if any.
Agenus Inc., formerly Antigenics Inc., develops and commercializes
immunotherapies for cancer and infectious diseases. Agenus is
focused in the areas of oncology and infectious diseases.
AU OPTRONICS: Judge Remands Flat-Panel Display Class Action
-----------------------------------------------------------
Westlaw Journals reports that the Class Action Fairness Act does
not confer federal jurisdiction on suits brought by states against
manufacturers of flat-panel monitor components over alleged price
fixing, a federal judge in California has ruled.
U.S. District Judge Susan Illston of the Northern District of
California granted motions by the attorneys general of California
and Washington to remand to state court their lawsuits against AU
Optronics Corp. and seven other manufacturers of the devices,
including Hitachi, LG, Samsung and Toshiba.
The suits allege a price-fixing campaign by the manufacturers of
the devices, technically known as thin-film transistor liquid
crystal displays, beginning in the early 2000s.
Washington and California are two of several states suing the
firms allegedly involved. The suits were brought on the states'
behalf and on behalf of their citizens to recover allegedly higher
prices they paid for monitors, laptop computers, mobile phones and
other TFT-LCD-equipped devices.
The TFT-LCD price-fixing scandal also has spawned federal civil
and criminal investigations of AU and the other defendants. These
investigations have yielded hundreds of millions of dollars in
civil and criminal fines. To date, four executives from the
involved firms have been sentenced to jail terms.
Citing CAFA, 28 USCA Sec. 1332, the defendants in the California
and Washington suits removed their cases to federal court. The
statute allows class-action and mass-tort cases involving citizens
of different states and potential damages exceeding $5 million to
be heard in federal court.
The Judicial Panel for Multidistrict Litigation consolidated the
cases in the District Court, and the attorneys general moved for
remand.
They argued that CAFA did not apply because the cases were not
class or mass actions. Further, the states contended they are not
"citizens" for purposes of diversity jurisdiction.
Judge Illston agreed with the states' arguments and granted
remand. She rejected the defendants' argument that CAFA applied
because the states were suing on behalf of large numbers of their
citizens, noting that neither case was filed under state law
class-action procedures.
The judge also found no diversity of citizenship because the
states were suing on their own behalf for monies they paid.
Finally, Judge Illston said, the cases are not qualifying "mass
actions" under CAFA because each has only one party -- the state
-- rather than 100 or more parties, as the statute requires.
In re TFT-LCD (Flat Panel) Antitrust Litigation, No. 07-MD-01827-
SI, 2011 WL 560593 (N.D. Cal. Feb. 15, 2011).
BERKSHIRE HILLS: Awaits Court Approval of "Rome" Suit Settlement
----------------------------------------------------------------
Berkshire Hills Bancorp is awaiting court approval of a settlement
resolving the issues raised in the stockholder class action
lawsuit filed against the Company and Rome Bancorp, Inc.,
according to the Company's March 16, 2011 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
Following the public announcement of the execution of the
Agreement and Plan of Merger, dated October 12, 2010, by and among
the Company and Rome Bancorp, Inc., on October 18, 2010, Stephen
Bushansky filed a stockholder class action lawsuit in the Supreme
Court of the State of New York, County of the Bronx. On
October 27, 2010, James and Liliana DiCastro filed a stockholder
class action lawsuit in the Chancery Court of the State of
Delaware, and on November 15, 2010, Samuel S. Rapasodi filed a
stockholder class action lawsuit in the Supreme Court of the State
of New York, County of Oneida. Each suit was brought against Rome
Bancorp, the Directors of Rome Bancorp, and the Company. The
lawsuit filed in Delaware was subsequently withdrawn voluntarily.
The active lawsuits in New York state purport to be brought on
behalf of all of Rome Bancorp's public stockholders and allege
that the directors of Rome Bancorp breached their fiduciary duties
to Rome Bancorp's stockholders by failing to take steps necessary
to obtain a fair and adequate price for Rome Bancorp's common
stock and that the Company knowingly aided and abetted Rome
Bancorp directors' breach of fiduciary duty.
On February 23, 2011, solely to avoid the costs, risks and
uncertainties inherent in litigation and to allow stockholders to
vote on the proposals required in connection with the merger at
the scheduled meeting, Rome Bancorp entered into a memorandum of
understanding with plaintiffs' counsel and other named defendants
regarding the settlement of the Rome shareholder litigation.
Under the terms of the memorandum negotiated by Rome Bancorp, Rome
Bancorp, the other named defendants and the plaintiffs have agreed
to settle the two lawsuits subject to court approval. If the court
approves the settlement contemplated in the memorandum, the Rome
shareholder litigation will be dismissed with prejudice. Pursuant
to the terms of the memorandum, Rome Bancorp has agreed to make
available additional information to its stockholders. In return,
the plaintiffs have agreed to the dismissal of the Rome
shareholder litigation and to withdraw all motions filed in
connection with such lawsuits, including any motions seeking to
enjoin the proposed merger from proceeding.
In connection with the settlement, plaintiffs intend to seek an
award of attorneys' fees and expenses subject to court approval.
Rome Bancorp and its insurance carrier have agreed to pay the
legal fees and expenses of plaintiffs' counsel, in an amount not
to exceed $395 thousand. This payment is not being made by the
Company and will not affect the amount of merger consideration to
be paid in the merger. If the settlement is finally approved by
the court, it is anticipated that it will resolve and release all
claims in all actions that were or could have been brought
challenging any aspect of the proposed merger, the Merger
Agreement, and any disclosure made in connection therewith (but
excluding claims for appraisal under Section 262 of the Delaware
General Corporation Law).
Rome Bancorp, the Company and the other defendants have vigorously
denied, and continue to vigorously deny, that they have committed
or aided and abetted in the commission of any violation of law or
engaged in any of the wrongful acts that were or could have been
alleged in the Rome shareholder litigation, and expressly maintain
that, to the extent applicable, they diligently and scrupulously
complied with their fiduciary and other legal burdens and are
entering into the contemplated settlement solely to eliminate the
burden and expense of further litigation, to put the claims that
were or could have been asserted to rest, and to avoid any
possible delay in the consummation of the merger. As a result of
the settlement, management of the Company believes the Rome
shareholder litigation will not have any material adverse effect
on the financial condition or operations of the Company.
Berkshire Hills Bancorp is the holding company for Berkshire Bank,
which serves individuals and small businesses through about 45
branches in western Massachusetts, eastern New York, and southern
Vermont. Established in 1846, the bank provides standard deposit
products such as savings, checking, and money market accounts,
CDs, and IRAs, in addition to credit cards, investments, private
banking, wealth management, and lending services. Residential
mortgages and commercial mortgages together make up approximately
three-quarters of Berkshire Hills Bancorp's loan portfolio, which
also includes business and consumer loans.
BLUEKNIGHT ENERGY: Has Not Yet Reached Definitive Settlement Pact
-----------------------------------------------------------------
A settlement entered by Blueknight Energy Partners, L.P. and
parties to a consolidated lawsuit captioned In Re: SemGroup Energy
Partners, L.P. Securities Litigation remains tentative, according
to the Company's March 16, 2010 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
Between July 21, 2008 and September 4, 2008, the following class
action complaints were filed:
1. Poelman v. SemGroup Energy Partners, L.P., et al., Civil Action
No. 08-CV-6477, in the United States District Court for the
Southern District of New York (filed July 21, 2008). The
plaintiff voluntarily dismissed this case on August 26, 2008;
2. Carson v. SemGroup Energy Partners, L.P. et al., Civil Action
No. 08-cv-425, in the Northern District of Oklahoma (filed July
22, 2008);
3. Charles D. Maurer SIMP Profit Sharing Plan f/b/o Charles D.
Maurer v. SemGroup Energy Partners, L.P. et al., Civil Action
No. 08-cv-6598, in the United States District Court for the
Southern District of New York (filed July 25, 2008);
4. Michael Rubin v. SemGroup Energy Partners, L.P. et al., Civil
Action No. 08-cv-7063, in the United States District Court for
the Southern District of New York (filed August 8, 2008);
5. Dharam V. Jain v. SemGroup Energy Partners, L.P. et al., Civil
Action No. 08-cv-7510, in the United States District Court for
the Southern District of New York (filed August 25, 2008); and
6. William L. Hickman v. SemGroup Energy Partners, L.P. et al.,
Civil Action No. 08-cv-7749, in the United States District
Court for the Southern District of New York (filed September 4,
2008).
Pursuant to a motion filed with the MDL Panel, the Maurer case has
been transferred to the Northern District of Oklahoma and
consolidated with the Carson case. The Rubin, Jain, and Hickman
cases have also been transferred to the Northern District of
Oklahoma.
A hearing on motions for appointment as lead plaintiff was held in
the Carson case on October 17, 2008. At that hearing, the court
granted a motion to consolidate the Carson and Maurer cases for
pretrial proceedings, and the consolidated litigation is now
pending as In Re: SemGroup Energy Partners, L.P. Securities
Litigation, Case No. 08-CV-425-GKF-PJC. The court entered an
order on October 27, 2008, granting the motion of Harvest Fund
Advisors LLC to be appointed lead plaintiff in the consolidated
litigation. On January 23, 2009, the court entered a Scheduling
Order providing, among other things, that the lead plaintiff may
file a consolidated amended complaint within 70 days of the date
of the order, and that defendants may answer or otherwise respond
within 60 days of the date of the filing of a consolidated amended
complaint. On January 30, 2009, the lead plaintiff filed a motion
to modify the stay of discovery provided for under the Private
Securities Litigation Reform Act. The court granted Plaintiff's
motion, and the Company and certain other defendants filed a
Petition for Writ of Mandamus in the Tenth Circuit Court of
Appeals that was denied after oral argument on April 24, 2009.
The lead plaintiff filed a consolidated amended complaint on
May 4, 2009. In that complaint, filed as a putative class action
on behalf of all purchasers of the Company's units from July 17,
2007 to July 17, 2008, lead plaintiff asserts claims under the
federal securities laws against the Company, its general partner
Blueknight Energy Partners G.P., certain of the Company's current
and former officers and directors, certain underwriters in the
Company's initial and secondary public offerings, and certain
entities who were investors in SemCorp and their individual
representatives who served on SemCorp's management committee.
Among other allegations, the amended complaint alleges that the
Company's financial condition throughout the class period was
dependent upon speculative commodities trading by SemCorp and its
Chief Executive Officer, Thomas L. Kivisto, and that defendants
negligently and intentionally failed to disclose this speculative
trading in the Company's public filings during the class period.
The Amended Complaint further alleges there were other material
omissions and misrepresentations contained in the Company's
filings during the class period. The amended complaint alleges
claims for violations of sections 11, 12(a)(2), and 15 of the
Securities Act of 1933 for damages and rescission with respect to
all persons who purchased the Company's units in the initial and
secondary offerings, and also asserts claims under section 10b,
Rule 10b-5, and section 20(a) of the Securities and Exchange Act
of 1934. The amended complaint seeks certification as a class
action under the Federal Rules of Civil Procedure, compensatory
and rescissory damages for class members, pre-judgment interest,
costs of court, and attorneys' fees.
On July 22, 2009, all of the defendants filed motions to dismiss
the amended complaint. The lead plaintiff filed a response in
opposition to the defendants' motion to dismiss on September 1,
2009. On October 8, 2009, the defendants filed a reply in support
of their motion to dismiss. The lead plaintiff filed a
supplemental opposition to the defendants' motion to dismiss on
October 29, 2009. On April 30, 2010, the court dismissed all
claims against Brent Cooper (SemCorp's former treasurer) and
dismissed the Section 10(b) and Rule 10b-5 claim against W.
Anderson Bishop (a former member of the Board) and Brian F.
Billings (a former member of the Board). The court denied the
remainder of the motions to dismiss, including the motion to
dismiss that the Company filed. Under the operative scheduling
order, the remaining defendants filed their answers on June 21,
2010.
The General Partner, the Company and the other defendants in the
litigation have reached a tentative understanding with lead
plaintiff to resolve the claims asserted in the amended complaint.
This tentative understanding is subject to negotiating and
completing a definitive settlement agreement and documentation and
obtaining court approval. Based upon this tentative
understanding, the Company has accrued a contingent loss of $20.2
million as of December 31, 2010. Of this amount, the Company
expects to receive insurance proceeds of $13.0 million to $14.0
million and accordingly has recognized an insurance recovery
receivable of $13.0 million as of December 31, 2010. There can be
no assurance that a settlement will be finalized or approved or as
to the ultimate outcome of the litigation. The ultimate
resolution of these actions could have a material adverse effect
on the business, financial condition, results of operations, cash
flows of the Company, ability to make distributions to its
unitholders, the trading price of its common units and its ability
to conduct business.
Blueknight Energy Partners, L.P., also disclosed that its
financial results for the fourth quarter of 2010 were impacted by
expenses of approximately $2.4 million related to the refinancing
of its debt and equity issuance as well as the establishment of a
reserve of $7.2 million relating to the potential settlement of
the Partnership's class action litigation for the fourth quarter
and year ended December 31, 2010.
BROADWIND ENERGY: Defends Class Action Suit in Illinois
-------------------------------------------------------
Broadwind Energy Inc. is defending itself against a putative class
action lawsuit filed by investors in Illinois, according to the
Company's March 16, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On February 11, 2011, a putative class action was filed in the
United States District Court for the Northern District of
Illinois, Eastern Division, against Broadwind and certain of its
current or former officers and directors. The lawsuit is
purportedly brought on behalf of purchasers of its common stock
between March 17, 2009 and August 9, 2010. The complaint seeks to
allege that the defendants violated Section 10(b) of the Exchange
Act, and Rule 10b-5 promulgated thereunder, and Section 20(a) of
the Exchange Act by issuing a series of allegedly false and/or
misleading statements concerning their financial results,
operations, and prospects, including with respect to the January
2010 secondary public offering of the Company's common stock.
Between February 15, 2011 and March 9, 2011, three putative
shareholder derivative lawsuits were filed in the United States
District Court for the Northern District of Illinois, Eastern
Division, and one putative shareholder derivative lawsuit was
filed in the Circuit Court of Cook County, Illinois, Chancery
Division, against certain of the Company's current and former
officers and directors, and certain Tontine entities, seeking to
challenge alleged breaches of fiduciary duty, waste of corporate
assets, and unjust enrichment, including in connection with the
January 2010 secondary public offering of the Company's common
stock. One of the lawsuits also alleges that certain directors
violated Section 14(a) of the Exchange Act in connection with the
Company's Proxy Statement for its 2010 Annual Meeting of
Stockholders. Because of the preliminary nature of these lawsuits,
the Company is not able to estimate a loss or range of loss, but
based on currently available information it expects that any
liability resulting from these claims would be substantially
covered by its insurance policies.
CAPITAL GOLD: Signs MOU to Settle Delaware Actions
--------------------------------------------------
Parties to the class action lawsuits filed in Delaware against
Capital Gold Corporation and other defendants entered into a
Memorandum of Understanding to settle the issues asserted in the
actions, according to the Company's March 14, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended January 31, 2011.
On February 10, 2010, Capital Gold Corporation entered into a
business combination agreement, as amended and extended, with
Nayarit Gold Inc., a corporation organized under the Ontario
Business Corporation Act pursuant to which, on August 2, 2010,
Nayarit became a wholly-owned subsidiary of Capital Gold. The
Company effected the amalgamation of Nayarit and a corporation,
organized under the OBCA as a wholly-owned subsidiary of the
Company, to form a combined entity ("AmalgSub" or "Surviving
Company"), with AmalgSub continuing as the surviving entity
following the Amalgamation. By virtue of the Amalgamation, the
separate existence of each of Nayarit and Merger Sub cease, and
AmalgSub, as the surviving company in the Amalgamation, continue
its corporate existence under the OBCA as a wholly-owned
subsidiary of the Company.
Subsequent to the announcement of the merger, eleven putative
shareholder class action complaints were filed challenging the
transaction. Five complaints were filed in the Supreme Court of
the State of New York, New York County, the New York Actions, and
six were filed in the Delaware Court of Chancery, the Delaware
Actions. The New York complaints captioned Jenkins v. Capital
Gold Corp., et al., Index No. 651651/2010; Schroeder v. Capital
Gold Corp., et al., Index No. 651652/2010; and Leone v. Capital
Gold Corp., et al., Index No. 651690/2010, name as defendants the
directors of CGC, as well as CGC and Gammon Gold Inc. The New
York complaint captioned Kramer v. Capital Gold Corp., et al.,
Index No. 651678/2010, names as defendants the directors of CGC,
CGC's Chief Financial Officer and Secretary as well as CGC and
Gammon Gold. The New York complaint captioned Stanford v. Cooper,
et al., Index No. 651827/2010, names as defendants the directors
of CGC, as well as CGC, Gammon Gold and Capital Gold AcquireCo,
Inc., Gammon Gold's wholly-owned subsidiary. The New York
plaintiffs allege generally that the CGC officers and directors
breached their fiduciary duties to CGC stockholders by agreeing to
an unfair price and an inappropriate sale process, and that the
individual defendants agreed to the merger to benefit themselves
personally at the expense of stockholder interests. The Kramer
and Stanford complaints allege in addition that the proposed
transaction involves unreasonable deal protection devices,
including a nonsolicitation agreement, matching rights, and an
unreasonable termination fee. The New York Actions further claim
that CGC and Gammon Gold aided and abetted the purported breaches
of fiduciary duties. The New York Actions seek injunctive relief,
including enjoining the transaction and rescinding all agreements
made in anticipation of the transaction or awarding the plaintiffs
and the purported class rescissory damages. The New York Actions
additionally seek attorneys' and other fees and costs, in addition
to seeking other relief. On February 15, 2011, the New York court
entered an order consolidating the New York actions, and on
March 2, 2011, lead plaintiffs served an amended complaint. The
defendants' date to answer or move to dismiss the consolidated
complaints is April 18, 2011.
The Delaware complaints captioned Boehm v. Capital Gold Corp., et
al. Case No. 5887-VCL; and Wood v. Capital Gold Corp., et al.,
Case No. 5920- , name as defendants the directors of CGC, as well
as CGC, Gammon Gold, and Capital Gold AcquireCo, Inc. The Delaware
complaint captioned Pait v. Sutherland, et al., Case No. 5899-VCN,
names as defendants the directors of CGC and Gammon Gold. The
Delaware complaints captioned Reggio v. Capital Gold Corp., et
al., Case No. 5939- , Blumenthal v. Capital Gold Corp., Case No.
5940- , and McClure v. Capital Gold Corp., et al., Case No. 5945-,
name as defendants CGC and its directors, as well as Gammon Gold.
The Delaware Actions allege generally that the CGC directors
breached their fiduciary duties to CGC's stockholders by agreeing
to an unfair price, an inappropriate sale process, and
unreasonable deal protection devices, including a non-solicitation
agreement, matching rights, an unreasonable termination fee, and
an impermissible director voting agreement. The Boehm, Wood,
Reggio, Blumenthal and McClure complaints further claim that CGC,
Gammon Gold, and/or Capital Gold AcquireCo, Inc. aided and abetted
the purported breaches of fiduciary duties. The Delaware Actions
seek injunctive relief, including enjoining the transaction,
rescinding all agreements made in anticipation of the transaction
or awarding the plaintiff and the purported class rescissory
damages, and directing the individual defendants to account to the
plaintiff and the purported class upon any damages suffered as a
result of individual defendant wrongdoing. The Delaware Actions
also seek attorneys' and other fees and costs, in addition to
seeking other relief.
On November 2, 2010, a putative shareholder class action was filed
regarding the Company's merger with Gammon, captioned Bromberg v.
Capital Gold Corp., Case No. 651904/2010 (NY Sup.). The claims
stated and relief sought are substantially identical to the claims
made and relief sought in the Jenkins and Schroeder lawsuits.
On November 12, 2010, the Delaware Court of Chancery entered an
Order of Consolidation and a Stipulation and Scheduling Order,
whereby the Court, inter alia, consolidated the Delaware Actions
except for Boehm, which had been withdrawn, and set a schedule for
expedited discovery. On November 16, 2010, plaintiffs in the
Delaware Actions filed an amended and consolidated class action
complaint in the Court of Chancery. Answers to the amended and
consolidated class action complaint, which deny the allegations
and assert affirmative defenses, were filed on December 6, 2010,
by defendants CGC and its directors, and on December 7, 2010, by
defendants Gammon Gold and Gammon Gold AcquireCo.
On November 22, 2010, Helmut Boehm filed a suit in the United
States District Court for the Southern District of New York,
captioned Boehm v. Capital Gold, et al., 10-CIV-8818 (RMB), naming
as defendants CGC and its directors, as well as Gammon Gold and
Capital Gold AcquireCo. The complaint alleges that CGC and its
directors violated Section 14(a) and Section 20(a) of the
Securities Exchange Act by issuing or causing to be issued a
registration statement containing material misleading statements
and omissions. The complaint also asks the District Court to
exercise its jurisdiction over putative class action claims under
Delaware law against CGC and its directors for breach of fiduciary
duty and against CGC, Gammon and Capital Gold AcquireCo for aiding
and abetting breach of fiduciary duty. The basis for all claims
and request for relief are substantially identical to those in the
amended and consolidated class action complaint filed in Delaware.
On February 25, 2011, defendants filed a joint motion to dismiss
or stay the District Court action. The District Court granted
Plaintiff Boehm's request to file a motion for a preliminary
injunction to enjoin the motion as a cross-motion on or by
March 4, 2011, and briefing on all motions was to be completed by
March 12, 2011.
On March 9, 2011, counsel to the parties to the Delaware Actions
entered into a Memorandum of Understanding that expresses an
agreement in principle to settle the Delaware Actions, subject to
approval by the Delaware Court of Chancery and on terms and
conditions that include, among other things, certain supplemental
disclosures that are contained in the supplement to the proxy
filed on March 10, 2011, and certain amendments to the terms of
the merger agreement, as discussed elsewhere in the supplement to
the proxy. If the Delaware Court of Chancery approves the
settlement contemplated in the MOU, upon approval of the
settlement by the Delaware Vice Chancellor, a non-opt out class of
Capital Gold shareholders will be certified and a final judgment
will be entered dismissing the Delaware Actions with prejudice and
releasing all claims that could be asserted by the class against
the defendants relating to the proposed merger between Capital
Gold and Gammon Gold, including any claims under federal law.
Subject to court approval of the settlement, counsel for the
purported class will apply to the Delaware Court of Chancery for
reimbursement of its reasonable fees and expenses incurred in
connection with the actions. The settlement will not take effect
unless the merger between Gammon Gold and Capital Gold is
consummated.
The defendants believe the Delaware Actions, the New York Actions
and Boehm lack merit and intend to defend their positions in these
matters vigorously to the extent they are not fully resolved by
the settlement.
CHINA INTEGRATED: Director Continues to Defend Suit vs. Fushi
-------------------------------------------------------------
Wenbing Wang, one of China Integrated Energy, Inc.'s independent
directors, continues to defend himself in class action lawsuits
filed against Fushi Copperweld, Inc., according to the Company's
March 16, 2011 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
Mr. Wang, who is also serving as president and director of Fushi
Copperweld, is named as a defendant in several class action
lawsuits filed against Fushi Copperweld and certain of its
officers and directors in connection with a proposal by Fushi
Copperweld's chairman and chief executive officer and others to
acquire all of the outstanding shares of the Company's common
stock not currently owned by the chairman and chief executive
officer and his affiliates in a going private transaction for
$11.50 per share in cash, subject to certain conditions.
Plaintiffs challenge the Proposal and allege, among other things,
that the consideration to be paid in the Proposal is grossly
inadequate. Plaintiffs are seeking to enjoin the Proposal and
have asserted claims for breach of fiduciary duty against certain
of the Company's officers and its directors, and for aiding and
abetting such breach of fiduciary duty against the Company. The
legal proceeding of Fushi Copperweld is pending.
China Integrated Energy, Inc. --
http://www.chinaintegratedenergy.com/-- is a leading non-state-
owned integrated energy company in China engaged in three business
segments: the production and sale of biodiesel, the wholesale
distribution of finished oil and heavy oil products, and the
operation of thirteen retail gas stations. The Company operates at
200,000-ton biodiesel production capacity with two plants located
in Tongchuan City, Shaanxi Province and one plant in Chongqing
City, China. The Company utilizes a distribution network covering
16 provinces and municipalities, established over the past 11
years, to distribute both heavy oil and finished oil, including
gasoline, petro-diesel and biodiesel.
CHINA MEDIAEXPRESS: Class Action Lead Plaintiff Deadline Nears
--------------------------------------------------------------
Dyer & Berens LLP provided an update with respect to the class
action lawsuit it filed on behalf of investors who purchased
China MediaExpress Holdings, Inc. securities between Nov. 8, 2010
and Feb. 3, 2011, inclusive.
On Feb. 4, 2011, Dyer & Berens filed a class action lawsuit
charging China MediaExpress with violations of the Securities
Exchange Act of 1934. Citing to a Muddy Waters Research report,
among other things, the complaint alleges that defendant's public
statements were materially false and misleading because it
misrepresented and overstated the financial condition of the
company. Thereafter, on March 11, 2011, the NASDAQ halted trading
in the company's stock and has reportedly requested additional
information. Then, on March 14, 2011, the company announced that
its independent accounting firm, Deloitte Touche Tohmatsu, had
formally resigned its engagement, stating that it was no longer
able to rely on the representations of management and recommending
that certain issues be addressed by an independent investigation.
Dyer & Berens believes that these significant developments
strongly support the allegations in the original class action
complaint.
Dyer & Berens also encourages CCME investors, particularly those
with significant financial losses, to consider their legal options
prior to the upcoming April 5, 2011 lead plaintiff deadline. Any
investor who purchased between Nov. 8, 2010 and Feb. 3, 2011 may:
(i) request a lead plaintiff appointment through counsel of its
choice; or (ii) choose to do nothing and remain an absent class
member.
The plaintiff is represented by several law firms, including
Dyer & Berens LLP, which has significant expertise in prosecuting
investor class actions involving financial fraud.
CONTACT: Jeffrey A. Berens
Dyer & Berens LLP
303 East 17th Avenue, Suite 300
Denver, CO 80203
Tel: (888) 300-3362 x302
E-mail: jeff@dyerberens.com
Web site: http://www.DyerBerens.com/
CHINA VALVES: Faces Three Securities Class Suits in New York
------------------------------------------------------------
China Valves Technology, Inc., was named a defendant in three
purported class actions filed in the U.S. District Court for
the Southern District of New York, according to the Company's
March 16, 2011 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
On February 4, 2011, a plaintiff filed a purported class action
naming the Company, its Chairman and certain present and former
senior executives as defendants, asserting claims for certain
violations of the securities laws and seeking unspecified damages.
The complaint, which is styled Donald Foster, et al. v. China
Valves Technology, Inc., et al., is currently pending in the U.S.
District Court for the Southern District of New York.
Substantially identical complaints, styled Donald London, et. al.
v. China Valves Technology, Inc., et. al., and Elliott Greenberg,
et. al. v. China Valves Technology, Inc. et al., were filed in the
same court on February 17, 2011 and March 8, 2011, respectively.
The complaints purport to assert claims on behalf of a purported
class of persons and entities who purchased shares of the
Company's common stock at allegedly artificially high prices
during the period between January 12, 2010 and January 13, 2011
and who suffered damages as a result of such purchases. The
allegations in the complaints relate to the Company's acquisitions
of Changsha Valve and Hanwei Valve and include allegations
regarding the Company's financial statements and press releases.
The complaints allege, among other things, that the Company's
statements about the nature and quality of the Company's
acquisition of Changsha Valve were materially false and misleading
and that the Company's statements failed to describe the role in
the transaction of an alleged related party. In addition, the
complaints allege that the Company's statements about the Hanwei
Valve acquisition were materially false and misleading because
they failed to disclose the alleged involvement of certain related
parties and allegedly misdescribed the transaction as a purchase
of assets rather than as a purchase of an entity. The Company has
not yet responded to any complaint, but intends to contest the
allegations and to defend itself vigorously.
China Valves Technology, Inc. -- http://www.cvalve.com/-- through
its subsidiaries, Zhengzhou Zhengdie Valve Co, Ltd., Henan Kaifeng
High Pressure Valve Co., Ltd., Tai Zhou Taide Valve Co., Ltd.,
Yangzhou Rock Valve Lock Technology Co., Ltd., Able Delight
(Changsha) Valve Co., Ltd. and Shanghai Pudong Hanwei Valve Co.,
Ltd., is engaged in the development, manufacturing and sale of
high-quality metal valves for the electricity, petroleum,
chemical, water, gas and metallurgy industries. The Company has
one of the best known brand names in China's valve industry, and
its history can be traced back to 1959 when it was formed as a
state-owned enterprise. The Company develops valve products
through extensive research and development and owns a number of
patents. It enjoys significant domestic market share and exports
to Asia and Europe.
COMMUNITY BANK SYSTEM: Defends Lawsuits Over Wilber Merger
----------------------------------------------------------
Community Bank System, Inc., is defending itself against putative
class action lawsuits over its merger with The Wilber Corporation,
according to the Company's March 15, 2011, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
On October 25, 2010, the Company announced that it has entered
into a definitive agreement to acquire The Wilber Corporation,
parent company of the Wilber National Bank in Oneonta, NY, for
$101.8 million in stock and cash. The acquisition will extend the
Company's Central New York service area to the contiguous Central
Leatherstocking, Greater Capital District and Catskills regions of
Upstate New York. The acquisition is expected to close during the
second quarter of 2011, pending both customary regulatory and
Wilber shareholder approval. Upon the completion of the merger,
Community Bank will add 22 branch locations in eight counties and
approximately $870 million of assets, including loans of $510
million, and over $720 million of deposits. The Company expects
to incur certain one-time, transaction-related costs in 2011
On November 3, 2010, a shareholder of The Wilber Corporation filed
a lawsuit in the New York Supreme Court captioned Robert E. Becker
v. The Wilber Corporation, et al., Index No. 20101266 (Otsego
County). On November 17, 2010, another shareholder filed a
lawsuit in the New York Supreme Court captioned Richard N. Soules
v. The Wilber Corporation, et al., Index No. 20101317 (Otsego
County). Both lawsuits are brought on behalf of a putative class
of Wilber's common shareholders and seek an order that they are
properly maintainable as class actions. Both complaints name
Wilber, Wilber's directors, and the Company as defendants and
allege that the director defendants breached their fiduciary
duties by failing to maximize shareholder value in connection with
the merger of the Company and Wilber and allege that the Company
aided and abetted those alleged breaches of fiduciary duty. The
complaints seek declaratory and injunctive relief to prevent the
consummation of the merger, a constructive trust over any benefits
improperly received by defendants, and costs including plaintiffs'
attorneys' and experts' fees.
The Company and Wilber have answered the complaints and moved for
summary judgment dismissing the cases. Plaintiff in the Becker
action has served discovery demands requesting the production of
documents by defendants. Plaintiffs have moved to consolidate the
Becker and Soules lawsuits into one action. They also seek the
appointment of Robert Becker and Richard Soules as Co-Lead
Plaintiffs and their respective attorneys as Co-Lead Counsel.
Plaintiffs have moved for leave to amend their complaints, to file
one consolidated amended complaint. Plaintiffs also seek
permission to file an amended pleading once the Form S-4
Registration Statement is filed. The court heard argument on the
motions on January 14, 2011 and reserved decision.
The Company believes the claims asserted are without merit and
intends to vigorously defend against these lawsuits.
COWEN GROUP: Appeal From Settlement Order Remains Pending
---------------------------------------------------------
An appeal from the final order approving the settlement of a class
action lawsuit involving the defendants' initial public offering
remains pending, according to Cowen Group, Inc.'s March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
Cowen and Company, LLC (Cowen and Company) is one of the many
financial institutions named as a defendant in a number of
putative securities class actions entitled In re: Initial Public
Offering Securities Litigation, filed in the United States
District Court for the Southern District of New York relating to
numerous initial and other public offerings of common stock from
approximately 1998 through 2000. The various complaints allege
that the underwriters of certain initial public offerings,
including Cowen and Company, made material misrepresentations and
omissions to purchasers of the stock sold in the IPOs, thereby
inflating the value of the stock. Specifically, the plaintiffs
allege that the defendants failed to disclose, among other things,
the purported existence of improper tie-in and compensation
arrangements they had with certain purchasers of the stock and
alleged conflicts of interest relating to research published by
the underwriters, all in violation of federal securities laws.
The district court granted plaintiffs' motion to certify six
"focus" cases as class actions. Cowen and Company was a named
defendant in one of these "focus" cases. Cowen and Company
appealed the class certification decision to the Second Circuit
Court of Appeals and on December 4, 2006, the Second Circuit
reversed the SDNY's decision and remanded the matter for
reconsideration in light of the Second Circuit's opinion.
Plaintiffs petitioned for rehearing and rehearing en banc by the
Second Circuit.
On December 14, 2006, the SDNY stayed discovery. On April 6,
2007, the Second Circuit denied plaintiffs' petition for rehearing
en banc. Plaintiffs amended their complaints and revised their
class definitions in an attempt to comply with the Second
Circuit's December 4, 2006 decision. Defendants in the six focus
cases, including Cowen and Company, moved to dismiss the amended
complaints in each case and opposed plaintiffs' motion for class
certification. On March 26, 2008, the SDNY denied defendants'
motion to dismiss the amended complaints. On October 3, 2008,
plaintiffs withdrew their motion for class certification without
prejudice. On April 2, 2009, counsel for plaintiffs filed a
Motion for Preliminary Approval of Settlement with the SDNY. On
June 10, 2009, the SDNY granted plaintiffs' Motion for Preliminary
Approval of Settlement and, on June 11, 2009, issued a Preliminary
Order in Connection with Settlement Proceedings.
On October 5, 2009, the SDNY issued a final order approving the
settlement. On October 23, 2009, certain class members filed with
the Second Circuit Court a petition pursuant to Federal Rule of
Civil Procedure 23(f) for leave to appeal the portion of the
SDNY's October 5, 2009 order certifying a settlement class.
Separately, certain other class members filed appeals with the
Second Circuit of the SDNY's final order approving the settlement.
On April 16, 2010, plaintiffs filed a motion with the SDNY
requesting that those class members who appealed the SDNY's final
order approving the settlement be required to post appeal bonds.
On June 17, 2010, the SDNY granted the motion and set the bond
amount at $25,000. On July 16, 2010, those class members
appealing the SDNY's final order approving the settlement posted a
$25,000 appeal bond. Plaintiffs thereafter settled the objections
with all but two of the objecting class members. On November 3,
2010, the appeal of one of the objecting class members was
dismissed by the Second Circuit Court. To the extent that the
Company incurs legal fees, costs or expenses related to this
settlement, it will be indemnified by Societe Generale.
No further updates were reported in the Company's latest SEC
filing.
COWEN GROUP: Discovery Stayed in "Huff" and "Appaloosa" Suits
-------------------------------------------------------------
Discovery in the lawsuits involving W.R. Huff Asset Management and
Appaloosa remain stayed until the pending motions to dismiss have
been resolved in the several litigations relating to Adelphia
Communications, according to Cowen Group, Inc.'s March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
Cowen and Company, LLC (Cowen and Company) were named defendants
in several litigations relating to Adelphia Communications, a
cable company that filed for bankruptcy in June 2002. The
complaints generally allege that the Rigas family, who controlled
Adelphia, took advantage of Adelphia's assets, including through
the use of certain loans, or "co-borrowing facilities," that
allowed the family to take more than $3 billion for their private
use. Cowen and Company has been named as a defendant in four
actions arising out of certain offerings of Adelphia securities in
which Cowen and Company participated as a member of the
underwriting syndicate. All four actions are pending before the
United States District Court for the Southern District of New
York. The complaints in each of these actions raise a variety of
claims arising out of the sale of Adelphia securities, including
claims under the federal securities laws.
These actions are generally referred to as the "Adelphia
Securities Class Action," "W.R. Huff Asset Management" (or
"Huff"), "Appaloosa" and "Stocke." The SDNY granted Cowen and
Company's motion to dismiss all federal securities claims brought
against Cowen and Company in the Adelphia Securities Class Action.
Thereafter, the financial institution defendants reached a
settlement with the plaintiffs. On June 15, 2006, the SDNY
preliminarily approved the settlement. A fairness hearing was
held on November 10, 2006, and the settlement was approved on
November 20, 2006. Cowen and Company's share of the settlement is
approximately $1.7 million plus interest at 4.37% beginning
December 1, 2006 (all of which is covered by the Indemnification
Agreement). In November 2006, this amount was placed in an
attorneys' escrow account bearing the required rate of interest.
On December 8, 2006, a group of class members appealed the order
approving the settlement agreement with the class plaintiffs to
the Second Circuit. The SDNY also has granted in part, and denied
in part, certain motions to dismiss filed by various defendants,
including Cowen and Company, in Huff, Appaloosa and Stocke. On
April 7, 2008, the Stocke action was dismissed by stipulation and
order following a ruling by the Second Circuit that affirmed in
all respects the SDNY's approval of the class settlement, which
ruling is now final. Accordingly, the claims made by all class
members who did not opt out, including the Stocke plaintiffs, have
been dismissed and released. On April 19, 2010, the Appaloosa
plaintiffs filed with the SDNY a Stipulation and Order of
Dismissal with Prejudice, which was signed by the SDNY on
April 20, 2010.
In addition, in August 2005, the SDNY denied Cowen and Company's
motion to dismiss based on Huff's lack of standing, and
subsequently granted leave to file an interlocutory appeal to the
Second Circuit of that ruling. The Second Circuit granted Cowen
and Company's petition to appeal under 28 U.S.C. Section 1292. In
December 2008, the Second Circuit held that Huff lacks standing to
pursue the claims it had asserted, and remanded the case. In
January 2009, the SDNY issued an order dismissing the Huff case.
Huff subsequently moved to vacate the dismissal order, which was
denied, and for reconsideration, which also was denied.
Thereafter, Huff moved to (among other things) amend the complaint
in an effort to overcome the effect of the Second Circuit's
ruling. On May 21, 2009, the SDNY issued an opinion and order
granting plaintiff Huff leave to amend the complaint to add the
actual purchasers of the securities, but in addition, granted
defendants leave to serve discovery regarding the identity of
those purchasers and the circumstances under which Huff was
purportedly prosecuting claims on their behalf. That discovery
has now been completed, and the defendants (including Cowen and
Company) have moved to dismiss many of the newly named plaintiffs.
Further, following Appaloosa's amendment of the complaint, Cowen
and Company (and most of the other defendants) have filed answers.
Certain defendants in Appaloosa have filed a motion to dismiss
challenging the newly amended complaint. Discovery in Huff and
Appaloosa remains stayed until the pending motions have been
resolved, which motion is still pending.
COWEN GROUP: No Appeal Filed in Unit's Dismissal
------------------------------------------------
No appeal was filed in a court order dismissing the case against
Cowen and Company LLC in the HealthSouth Corporation Bondholder
Litigation, according to Cowen Group, Inc.'s March 14, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
Cowen and Company, LLC (Cowen and Company) was named as a
defendant in a purported class action filed in the United States
District Court for the Northern District of Alabama on January 8,
2004 as a result of Cowen and Company's predecessor's involvement
as one of the initial purchasers in a March 1998 private placement
of debt securities issued by HealthSouth Corporation, which were
subsequently exchanged for materially identical registered
securities. The complaint alleges that the offering materials for
the private placement and the registration statement in the
associated offering violated federal securities laws by failing to
disclose HealthSouth's subsequently revealed accounting
irregularities. On June 8, 2006, the District Court, among other
things, dismissed the claims arising out of the March 1998
private placement (the only claims against Cowen and Company).
On August 21, 2006, following plaintiffs' subsequent submission
of amendments to the complaint, the District Court so-ordered a
stipulation and order dismissing all amended counts against Cowen
and Company. The dismissal was not yet a "final" judgment from
which an appeal may be taken by plaintiffs. However, on July 26,
2010, the District Court for the Northern District of Alabama
approved a settlement between plaintiffs and certain other
defendants, entered a partial final judgment as to those
defendants, and dismissed the case as to another defendant. By
virtue of the District Court's rulings, plaintiffs had 30 days
from July 26, 2010, to appeal the District Court's dismissal of
Cowen and Company from the case. No appeal was filed. To the
extent that the Company incurs additional legal fees or pays any
fine or monetary sanction, it will be indemnified by Societe
Generale.
No updates were reported in the Company's latest SEC filing.
COWEN GROUP: Continues to Defend WorldSpace IPO Class Suit
----------------------------------------------------------
Cowen Group, Inc.'s subsidiary continues to defend itself in the
litigation relating to WorldSpace, Inc.'s initial public offering,
according to the Company's March 14, 2011, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
Cowen and Company, LLC is named as an underwriter defendant in
several putative securities class actions brought in the United
States District Court for the Southern District of New York in
2007. In all of the cases, plaintiffs seek to recover for losses
allegedly caused by misrepresentations and omissions in connection
with the August 4, 2005 IPO of WorldSpace, Inc., a satellite radio
provider. The complaints allege that the WorldSpace prospectus
referenced a subscriber count that improperly included subscribers
who had stopped paying for the service and failed to disclose that
WorldSpace lacked the internal systems necessary to accurately
determine the number of subscribers to its service. On June 21,
2007, the SDNY issued an order consolidating the actions and
appointing a lead plaintiff. The consolidated amended complaint
was filed on August 9, 2007. On October 9, 2007, Cowen and
Company filed a motion to dismiss the consolidated amended
complaint, which was denied by the SDNY on July 21, 2008. On
August 25, 2008, Cowen and Company filed an answer to the
consolidated amended complaint. On October 17, 2008, WorldSpace
filed for Chapter 11 bankruptcy protection with the United States
Bankruptcy Court for the District of Delaware. The SDNY
subsequently entered a stay of the securities class action
litigation in light of the ongoing WorldSpace bankruptcy
proceedings. On August 16, 2010, the Delaware Bankruptcy Court
granted lead plaintiff's motion for limited modification of the
automatic stay to permit plaintiff to obtain document discovery
from WorldSpace, effective October 14, 2010. On September 14,
2010, the SDNY lifted the stay in the securities class action
litigation, permitting lead plaintiff to move forward with
discovery as of October 14, 2010. The SDNY subsequently referred
the matter to a magistrate and instructed the parties to submit a
proposed scheduling order for discovery and an eventual motion for
summary judgment.
COWEN GROUP: Motion to Remand "CardioNet" Suit Remains Pending
--------------------------------------------------------------
The plaintiffs' motion to transfer and remand a lawsuit against
Cowen and Company LLC and other defendants in connection with the
2008 follow-on offering for CardioNet, Inc., remains pending,
according to Cowen Group, Inc.'s March 14, 2011, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2010.
On March 5, 2010, Cowen and Company LLC was named as a defendant,
along with several other underwriters, in a putative class action
filed in the San Diego Superior Court, in connection with an
August 2008 follow-on offering for CardioNet, Inc. The complaint
alleges, among other things, that the prospectuses for CardioNet's
March 2008 initial public offering (in which Cowen and Company did
not participate) and subsequent follow-on equity offering (in
which Cowen and Company did participate) were false and misleading
and failed to disclose, among other things, that CardioNet
incorrectly reported revenue and failed to disclose certain risks
relating to Medicare reimbursement rates for CardioNet's services.
On April 5, 2010, Cowen and Company and the other defendants moved
to remove the case to the United States District Court for the
Southern District of California and, on April 7, 2010, moved to
transfer the case to the United States District Court for the
Eastern District of Pennsylvania. On April 23, 2010, plaintiffs
moved to remand the case back to California state court. The
motions to transfer and remand remain pending. The Company says
it cannot presently predict the ultimate outcome of the litigation
or estimate the possible loss or range of loss, if any.
COWEN GROUP: Unit Continues to Defend "Fuqi" Lawsuit
----------------------------------------------------
Cowen and Company LLC continues to defend against a consolidated
lawsuit relating to the July 2009 follow-on offering for Fuqi
International, Inc., according to Cowen Group, Inc.'s March 14,
2011, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2010.
In March 2010, Cowen and Company LLC was named, along with several
other underwriters, as a defendant in two putative class actions
filed in the United States District Court for the Southern
District of New York in connection with a July 2009 follow-on
offering for Fuqi International, Inc. The complaint alleges,
among other things, that the prospectus for Fuqi's follow-on
offering was false and misleading and contained materially
inaccurate financial statements that overstated Fuqi's gross
profit and net income. On July 26, 2010, the court consolidated
the two putative class actions in which Cowen and Company was
named as a defendant with several related actions and appointed
lead plaintiffs. On August 20, 2010 the court ordered that
plaintiffs shall file their consolidated complaint no later than
30 days after Fuqi publicly releases its financial statements for
the fiscal year ended December 31, 2009 and its restated financial
statements for the periods ended March 31, June 30, and
September 30, 2009. The court further ordered that defendants
will have 45 days after the date on which plaintiffs file their
complaint at answer, plead, or otherwise response to the
complaint.
The Company says it cannot presently predict the ultimate outcome
of the litigation or estimate the possible loss or range of loss,
if any.
COWEN GROUP: Faces Two Suits Over LaBranche Buy-Out
---------------------------------------------------
Cowen Group, Inc., is facing two lawsuits challenging LaBranche &
Co.'s decision to sell all of its outstanding shares of common
stock to Cowen, according to the Company's March 14, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
On February 22, 2011, a putative class action, captioned Moskal v.
LaBranche & Co., et. al., was filed in the Supreme Court of the
State of New York, County of New York, naming as defendants the
Cowen Group, Inc., LaBranche & Co. and members of the board of
directors of LaBranche & Co., and Louisiana Merger Sub, Inc. On
February 26, 2011, a separate lawsuit was filed, captioned Borowka
v. LaBranche & Co., et al., in the Supreme Court of the State of
New York, County of New York naming as defendants the same
parties. The lawsuits challenge LaBranche's decision to sell all
of its outstanding shares of common stock to the Company for
$192.8 million. The complaints allege, among other things, that
the Company aided and abetted the LaBranche defendants in
breaching their fiduciary duties to shareholders by failing to
maximize the sale price for LaBranche.
The Company says it cannot presently predict the ultimate outcome
of the litigation or estimate the possible loss or range of loss,
if any.
COWEN GROUP: Unit Faces Class Suit on Alphatec 2010 Offering
------------------------------------------------------------
Cowen and Company LLC and other defendants are facing a class
action in California relating to the April 2010 offering of common
stock of Alphatec Holdings, Inc., according to Cowen Group, Inc.'s
March 14, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
On February 22, 2011, a putative class action, captioned Mallen v.
Alphatec Holdings, Inc., et. al., was filed in the United States
District Court for the Southern District of California, naming as
defendants Alphatec Holdings, Inc., members of the Alphatec board
of directors, Healthpoint Capital Partners, LLP, Healthpoint
Capital Partners II, LLP, as well as Jefferies & Co., Inc.,
Canaccord Adams, Inc., Lazard Capital Markets, LLC, and Cowen and
Company LLC. The complaint brings claims against the Underwriter
Defendants under Sections 11 and 12 of the Securities Act of 1933
for alleged materially inaccurate and misleading statements and
omissions in the registration statement and prospectus for an
April 2010 offering of common stock of Alphatec regarding the
success of Alphatec's acquisition of a company named Scient'x.
The Company says it cannot presently predict the ultimate outcome
of the litigation or estimate the possible loss or range of loss,
if any.
CHURCHILL DOWNS: Time to Appeal in "Youbet" Suits Has Expired
-------------------------------------------------------------
The time to appeal the order approving a settlement in the
lawsuits challenging Churchill Downs Incorporated's acquisition of
Youbet.com, LLC, has expired without the plaintiffs filing for
reconsideration, according to the Company's March 14, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
On November 17, 2009, a putative class action lawsuit, Wayne
Witkowski v. Youbet.com, Inc., et al., was filed in the Superior
Court of Los Angeles, California against Youbet.com, LLC, several
of its directors, the Company and the Company's wholly-owned
subsidiaries, Tomahawk Merger Corp. and Tomahawk Merger LLC.
Subsequently, five additional lawsuits were also filed in the Los
Angeles Superior Court, two of which name Youbet and its directors
as defendants and three of which also name the Company as a
defendant. All six lawsuits, which the Company refers
collectively as the Los Angeles litigation, are putative class
actions brought on behalf of Youbet's stockholders. Plaintiffs in
the Los Angeles litigation have since moved to consolidate the Los
Angeles litigation, to file a single consolidated complaint and to
appoint lead counsel. That motion was granted on January 22,
2010.
The complaints in the Los Angeles litigation all allege that
Youbet's directors breached their fiduciary duties, including
alleged duties of loyalty, due care and candor, in connection with
the merger transaction. In that regard, the various complaints
include, among other things, allegations that the transaction is
the result of an inadequate sales process which was designed to
maximize stockholder value; that the consideration to be received
by Youbet shareholders was unfair and inadequate; that the merger
agreement included inappropriate "no solicitation," "matching
rights," no standstill waiver, and termination fee provisions;
that the combined effect of these provisions, together with
Youbet's waiver of the Youbet stockholder rights agreement with
respect to the Company and the entry of voting agreements by
defendants and certain others pursuant to which they agreed to
vote in favor of the merger, was to "lock up" the merger
transaction, foreclose potential alternative bidders and illegally
restrain Youbet's ability to solicit or engage in negotiations
with a third party; that various defendants acted for their own
benefit in approving the merger, including for the purpose of
obtaining positions or pursuing opportunities at the Company; and
that material information was not provided in connection with the
transaction and was not provided at the time that Youbet submitted
the Youbet stockholder rights agreement to a stockholder vote.
Those lawsuits which name the Company or its affiliates as
defendants also allege that the Company aided and abetted the
alleged breaches of fiduciary duty by Youbet's directors. Youbet
is also alleged to have aided and abetted the alleged breaches of
fiduciary duty by its directors. Among the relief sought by the
complaints are unspecified damages, together with payment of
attorneys' fees and costs.
On December 23, 2009, a putative class action lawsuit, Raymond
Balch v. Youbet.com, Inc., et al., was filed in the Delaware Court
of Chancery against Youbet, various of its directors, the Company,
Merger Sub and Merger LLC alleging claims similar to the Los
Angeles Litigation. On January 8, 2010, Mr. Balch amended his
complaint to add counts asserting that Youbet's directors breached
their fiduciary duties to Youbet stockholders by allegedly failing
to disclose material information regarding the sale of Youbet in a
preliminary registration statement filed with the Securities and
Exchange Commission on December 24, 2009, and that Youbet and the
Company aided and abetted such alleged breaches.
On March 2, 2010, Youbet, Youbet's directors, the Company, Merger
Sub, and Merger LLC entered into a memorandum of understanding
with the plaintiffs in the Los Angeles Litigation and the
plaintiffs in the Balch litigation reflecting an agreement in
principle to settle the cases based on, among other things,
defendants' agreement to include in an amended registration
statement certain additional disclosures relating to the sale of
Youbet . The memorandum of understanding provides that the
settlement is subject to customary conditions including the
completion of appropriate settlement documentation and completion
of confirmatory discovery. Pursuant to the memorandum of
understanding, an amended registration statement was filed
containing the additional agreed disclosures.
On or about July 14, 2010, the parties to the Los Angeles
Litigation and the Balch litigation entered into a settlement
agreement consistent with the terms of the memorandum of
understanding. The settlement agreement provided, among other
things, for a certification of a class for settlement purposes,
dismissal with prejudice of the Los Angeles Litigation and the
Balch litigation, releases by class members and payment of
attorneys' fees and expenses approved by the court, with the
settlement agreement being subject to court approval. In both the
memorandum of understanding and the settlement agreement, Youbet,
Youbet's directors, the Company, Merger Sub, and Merger LLC each
denied that they committed or aided and abetted in the commission
of any violation of law or engaged in any of the wrongful acts
alleged in the complaints, and expressly maintained that they
diligently and scrupulously complied with any and all of their
legal duties. Although Youbet, Youbet's directors, the Company,
Merger Sub, and Merger LLC believed the lawsuits were without
merit, they entered into the memorandum of understanding and
settlement to eliminate the burden and expense of further
litigation. On July 14, 2010, plaintiffs in the Los Angeles
Litigation filed the settlement agreement with the Superior Court
of California, County of Los Angeles, together with a request for
preliminary approval of the settlement and of a proposed class
notice and for the scheduling of a hearing date for final approval
of the settlement. On August 19, 2010, the court presiding over
the Los Angeles litigation granted preliminary approval to the
proposed settlement. On December 20, 2010, the Los Angeles court
granted final approval of the settlement and entered an order and
final judgment, which, among other things, dismissed the Los
Angeles Litigation with prejudice and approved a release to
defendants from or on behalf of all of Youbet's non-affiliated
public stockholders who held Youbet common stock at any time from
November 10, 2009, through the date of the consummation of the
merger. The deadline for an appeal from the order and final
judgment in Los Angeles Litigation expired on February 18, 2011,
with no appeal having been filed. Under the settlement agreement,
the parties are to submit an agreed order to dismiss the Balch
litigation with prejudice within 10 business days after the
expiration of the time to file an appeal from the order and final
judgment in the Los Angeles Litigation, which expired on March 7,
2011. The Company says it will not incur any material loss or
expense as a result of this settlement.
DEERE & CO: Accused of Discriminating Against Female Applicants
---------------------------------------------------------------
Karen Gullo, writing for Bloomberg News, reports that Deere & Co.,
the world's largest maker of agricultural equipment, was accused
in an amended lawsuit of systematically discriminating against
women seeking entry-level positions.
Holly Artis, who sued last year in San Francisco federal court,
filed an amended complaint on March 16 seeking class-action, or
group, status for her lawsuit on behalf of female applicants
denied jobs. Ms. Artis, 33, said she was rejected by John Deere
Landscapes in Livermore, California, in favor of a man with less
experience, and said the company and its landscaping division bar
women from customer-service and sales jobs.
All 19 executives in Deere's equipment and landscaping divisions
are men, and women hold only 2.2% of sales jobs at its larger
landscaping facilities, while the average for nursery, garden-
center and farm-supply stores is more than 50%, Brad Seligman,
Ms. Artis's attorney, said in an e-mailed statement.
"Deere has strong nondiscriminatory hiring practices and recruits
and hires qualified candidates for employment regardless of
gender," Ken Golden, a spokesman for Moline, Illinois-based Deere,
said in a phone interview. The lawsuit is one person's
perspective, inaccurate and "not representative of Deere & Co.'s
overall hiring practices," he said.
Ms. Artis is seeking a court order ending the alleged
discriminatory hiring practices and reimbursement of lost pay to
applicants denied jobs.
Mr. Seligman is the lead lawyer in a class action against
Wal-Mart Stores Inc., the largest-ever private gender bias case in
U.S. history, representing as many as 1 million women. The U.S.
Supreme Court is scheduled to hear arguments in the case March 29.
Wal-Mart denies wrongdoing.
The case is Artis v. Deere, 10-5289, U.S. District Court, Northern
District of California (San Francisco).
DELL INC: Appeals From Securities Suit Settlement Still Pending
---------------------------------------------------------------
Appeals from the final approval of a settlement Dell, Inc.,
entered into with plaintiffs of a consolidated securities class
action lawsuit are still pending, according to the Company's
March 15, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
Four putative securities class actions filed between September 13,
2006, and January 31, 2007, in the U.S. District Court for the
Western District of Texas, Austin Division, against Dell and
certain of its current and former directors and officers were
consolidated as In re Dell Securities Litigation, and a lead
plaintiff was appointed by the court. The lead plaintiff asserted
claims under Sections 10(b), 20(a), and 20A of the Exchange Act
based on alleged false and misleading disclosures or omissions
regarding Dell's financial statements, governmental
investigations, internal controls, known battery problems and
business model, and based on insiders' sales of Dell securities.
This action also included Dell's independent registered public
accounting firm, PricewaterhouseCoopers LLP, as a defendant. On
October 6, 2008, the court dismissed all of the plaintiff's claims
with prejudice and without leave to amend. On November 3, 2008,
the plaintiff appealed the dismissal of Dell and the officer
defendants to the Fifth Circuit Court of Appeals. The appeal was
fully briefed, and oral argument on the appeal was heard by the
Fifth Circuit Court of Appeals on September 1, 2009. On
November 20, 2009, the parties to the appeal entered into a
written settlement agreement whereby Dell would pay $40 million to
the proposed class and the plaintiff would dismiss the pending
litigation. The settlement was preliminarily approved by the
District Court on December 21, 2009. The settlement was subject to
certain conditions, including opt-outs from the proposed class not
exceeding a specified percentage and final approval by the
District Court. During the first quarter of Fiscal 2011, the
original opt-out period in the notice approved by the District
Court expired without the specified percentage being exceeded. The
District Court subsequently granted final approval for the
settlement and entered a final judgment on July 20, 2010. Dell
paid $40 million into an escrow account to satisfy this settlement
and discharged the liability during the second quarter of Fiscal
2011. Certain objectors to the settlement have filed notices of
appeal to the Fifth Circuit Court of Appeals with regard to
approval of the settlement.
While there can be no assurances with respect to litigation, the
Company believes it is unlikely that the settlement will be
overturned on appeal.
DELL INC: Awaits Ruling on Interlocutory Appeal From Certification
------------------------------------------------------------------
Dell, Inc., is awaiting a ruling on its interlocutory appeal
regarding the certification of a class composed of certain
California residents, according to the Company's March 15, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2010.
Chad Brazil and Steven Seick filed a class action suit against
Dell in March 2007 in the U.S. District Court for the Northern
District of California. The plaintiffs allege that Dell advertised
discounts on its products from false "regular" prices, in
violation of California law. The plaintiffs seek compensatory
damages, disgorgement of profits from the alleged false
advertising, injunctive relief, punitive damages and attorneys'
fees. In December 2010, the District Court certified a class
consisting of all California residents who had purchased certain
products advertised with a former sales price on the consumer
segment of Dell's website during an approximately four year period
between March 2003 and June 2007. The Court of Appeals is
currently considering Dell's request for an interlocutory appeal
of the certification order. Dell disputes the claims and is
vigorously defending the case. The ultimate resolution of this
matter and the associated financial impact to Dell, if any, remain
uncertain at this time.
DISCOVER CARD: Defends "Bennett" Lawsuit in California
------------------------------------------------------
Discover Card Master Trust I's subsidiary is defending itself
against a class action lawsuit alleging violations of the
Telephone Consumer Protection Act, according to the Company's
March 15, 2011, Form 10-D filing with the U.S. Securities and
Exchange Commission.
On November 16, 2010, a putative class action lawsuit was filed
against DFS Services LLC by a cardmember in the U.S. District
Court for the Southern District of California (Michele Bennett et
al. v. Discover Card, a/k/a DFS Services LLC). The plaintiff
alleges that Discover contacted her, and members of the putative
class, on their cellular telephones without their express consent
in violation of the Telephone Consumer Protection Act. The TCPA
provides for statutory damages of $500 for each violation ($1,500
for willful violations). Plaintiff seeks statutory damages for
alleged negligent and willful violations of the TCPA, attorneys'
fees, costs and injunctive relief. Discover will seek to
vigorously defend all claims asserted against it. Discover is not
in a position at this time to assess the likely outcome or its
exposure, if any, with respect to this matter.
DRUG STORES: No Class Action Filed by W.Va. AG, Decisions Show
--------------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that West
Virginia Attorney General Darrell McGraw says two recent decisions
from California and Connecticut show that he has not filed a class
action lawsuit against a group of retail drug stores.
That group -- which includes Target, Wal-Mart and CVS -- is
calling a lawsuit filed by Mr. McGraw over their generic drug-
pricing policies a class action because Mr. McGraw is
representing, they say, a class of individuals allegedly affected
by the prices. Mr. McGraw has called some of the group's
arguments "weak" and "absurd."
Mr. McGraw says he is acting under his parens patriae authority to
protect the state's interests in "enforcing its own laws." On
March 11, the private attorneys he hired to pursue the case wrote
the court to notify it of two decisions involving under states.
If the case is deemed a class action, the defendants say it should
remain in federal court. Mr. McGraw wants it remanded to Boone
County Circuit Court.
A federal judge in Charleston agreed with Mr. McGraw, but the
pharmacies appealed to the U.S. Court of Appeals for the Fourth
Circuit.
Mr. McGraw says arguments made by the defendants have been shot
down in a California federal court decision entered on Feb. 15 and
in a Connecticut federal court's decision entered on Jan. 5.
It was written in the California decision that, "The fact that
private parties may benefit from (California's and Washington's)
actions does not negate the states' substantial interests in these
cases."
In Connecticut's case against Moody's Corp., the decision found
that the State was a real party in interest because of its
sovereign interest in enforcing its laws, Mr. McGraw's attorneys
wrote.
"These on-point decisions strongly and persuasively support the
conclusion that (the Class Action Fairness Act) does not confer
subject matter jurisdiction in this case," wrote John Barrett of
Charleston firm, W.Va., Bailey & Glasser.
In its appeal brief, the group of pharmacies claims Mr. McGraw's
lawsuit satisfies the jurisdictional requirements of the federal
Class Action Fairness Act.
"The AG's allegations make abundantly clear that more than $5
million and the interests of more than 100 persons are at issue.
If the rightful interests of the West Virginia consumers on whose
behalf the AG has brought suit are recognized, there also is
undeniably minimal diversity between at least some plaintiffs (who
are West Virginia citizens) and all defendants (as none of the
defendants reside in or is a citizen of West Virginia," it wrote.
The pharmacies add that any consumer who was allegedly overcharged
is a real party in interest to the case.
McGraw hired two private firms -- Bailey & Glasser and DiTrapano
Barrett & DiPiero -- to pursue the case, and another one against
Rite Aid. The two firms have contributed more than $60,000 to
McGraw's campaign fund over the years, including $11,800 for his
2008 race against Republican Dan Greear.
The pharmacies brought up Mr. McGraw's use of outside counsel in
their appeal brief.
"First, and at the outset, the defendants' premise -- that the
State's use of outside counsel somehow affects the jurisdictional
analysis -- is absurd," Mr. McGraw wrote in response. "The text
of the statute makes no distinction between state enforcement
actions brought exclusively by state attorneys general and actions
brought by attorneys general with the support of private counsel."
DULUTH, MN: Rental Licensing Operations Shut Down After Suit
------------------------------------------------------------
Jacob Kittilstad, writing Fox 21 News, reports that in response to
the rental reform lawsuit filed against Duluth the city has shut
down all licensing operations.
The process stalled because of a restraining order intended to
block an amendment to the city's rental reform ordinance. A class
action lawsuit is expected to start in the next few weeks.
Landlords involved in the lawsuit say they're upset with unfair
fees and parking rules.
Jonathan Thornton, a Duluth property manager who undecided whether
he will sign onto the class-action suit, went to Duluth's Life
Safety Office on March 16 hoping to renew his rental license.
"It would have been nice to at least accept payment and take some
type of a [payment]. And I may even need to go back in there to
document the fact that I was here so I'm not going to receive a
fine," Mr. Thornton said.
Duluth's Head Housing Inspector says people who are unable to make
payments will not be fined for delinquency.
Attorney for the landlords, Jerome D. Feriancek, delivered a
message to the city that read "Although you may be disappointed
with the stay, the court's order does not prevent the city from
conducting its business pursuant to the ordinances currently in
force."
Duluth city attorney Gunnar Johnson responds "I'm only following
the judge's order. If he thinks the order is unclear, he should
have had a better copy drafted."
FALCONSTOR SOFTWARE: Awaits Amended Complaint in Securities Suit
----------------------------------------------------------------
FalconStor Software, Inc., is awaiting the filing of an amended
complaint in the consolidated securities class action pending in
New York, according to the Company's March 14, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
In October 2010, two purported securities class actions were filed
in the United States District Court for the Eastern District of
New York on behalf of purchasers of the common stock of the
Company between February 5, 2009, and September 29, 2010. The two
Actions contain substantially similar allegations and causes of
actions. The complaint in each of the Actions name as defendants
the Company and ReiJane Huai, its former president and chief
executive office, as well as Wayne Lam an officer of the Company
and James Weber the Company's Chief Financial Officer and interim
Chief Operating Officer. The complaints in each of the actions
allege that the defendants made a series of materially false and
misleading statements related to the Company's business and
operations in violation of the Securities Exchange Act of 1934, as
amended. The following adverse facts are alleged: (i) that
FalconStor was experiencing weak demand for its products and
services; (ii) that FalconStor was making improper payments to
secure a contract with at least one of its customers; and (iii) as
a result of the foregoing, the defendants lacked a reasonable
basis for their positive statements about FalconStor and its
prospects. The plaintiffs in each Action seek damages from the
defendants. On November 1, 2010, the parties to one of the two
Actions entered into a stipulation setting forth a schedule for an
amended complaint and an answer or other response thereto. On
November 3, 2010, the Actions were consolidated before Judge
Edward R. Korman, and the Company anticipates that it will be
receiving an amended complaint.
The Company says it is, thus, unable to determine what claims will
ultimately be asserted in the Class Action. In addition key
issues such as whether a class will be certified and, if so, who
the members of the class will be and what time period the class
will cover, have not yet been determined. The Company believes it
has meritorious defenses to some or all of the claims of the
Actions as filed and intends to file a motion to dismiss. The
Company is, therefore, unable to estimate reasonably its exposure
for the Class Action.
FLORIDA: Judge Approves $790,000 FPU Class Action Settlement
------------------------------------------------------------
Miami Herald Staff reports that the 15th Judicial Circuit of
Florida in Miami on March 11 approved a $790,000 class-action
settlement between Florida Public Utilities Co. and more than
18,000 Florida residents and businesses.
The Miami-based law firm of Harke Clasby & Bushman LLP served as
lead class counsel. The class includes all persons and businesses
in Florida who paid FPU's "Regulatory Compliance" charges on their
propane bills between May 27, 2006 and Sept. 24, 2010. Checks are
expected to be mailed by May 12 and will vary according to each
residential and commercial customers' share of the settlement, the
law firm said.
The settlement also requires FPU to add a disclosure about the
Regulatory Compliance fee in any future contracts with its
customers.
GOOGLE INC: Faces Class Action in Texas for Invasion of Privacy
---------------------------------------------------------------
Michelle Massey, writing for The Southeast Texas Record, reports
that Google is facing a class action that accuses the company of
invading the privacy of people who use its Gmail by scanning
e-mails for advertising opportunities.
Kelly Michaels, individually and representative of a class of
similarly situated persons, filed suit against Google Inc. on
March 8 in the Eastern District of Texas, Tyler Division.
The class action accuses Google of invading the privacy of its
users by scanning and capturing the contents of every email sent
and received through Gmail in an effort to target advertising
campaigns.
Ms. Michaels argues that Google does not inform users that it
regularly and routinely scans, captures and disseminates the
content of every email sent through Gmail. The suit states that
content is analyzed to derive the concepts of the email and then,
based on identifying keywords, Google targets the user with
specific advertisements.
"Google derives income from Gmail by marketing their ability to
target advertisements to individual Gmail users based on the scan
of such users' email and the concepts derived from the analysis of
users' email contents," the lawsuit states.
Google is accused of violating the Federal Wiretap Act, violating
Texas Civil Practice and Remedies Code regarding electronic
communications, violating the Texas Penal Code regarding
electronic communications, invasion of privacy and fraud.
The proposed class is asking the court for a permanent injunction
against Google; for an order requiring Google to pay $100 a day
for each violation or $10,000, whichever is greater; an award of
$10,000 for each violation of Texas Civil Practice and Remedies
Code; $100 a day up to $1,000 for violation of Texas Penal Codes
and for an award of punitive damages, mental anguish, court costs
and attorneys' fees.
Ms. Michaels is represented by:
Eric H. Findlay, Esq.
Brian Craft, Esq.
FINDLAY CRAFT LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, TX 75703
Tel: 903-534-1100
Fax: 903-534-1137
E-mail: efindlay@findlaycraft.com
bcraft@findlaycraft.com
A jury trial is requested.
U.S. District Judge Leonard E. Davis is assigned to the case.
Case No. 6:11-cv-00107
GOOGLE INC: Sued for Breach of Contract and Unfair Bus. Practices
-----------------------------------------------------------------
Rick Woods, individually and on behalf of others similarly
situated v. Google, Inc., Case No. 11-cv-01263 (N.D. Calif.
March 15, 2011), asserts breach of contract, breach of the implied
covenant of good faith and fair dealing, unlawful, unfair and
fraudulent business practices in violation of Cal. Bus. & Prof.
Code Sec. 17200, untrue and misleading advertising in violation of
Cal. Bus. & Prof. Code Sections 17500, et seq.
Specifically, Mr. Woods accuses Google of methodically pilfering
the advertising budgets of Google's unwary advertisers by charging
for invalid click activity.
Mr. Woods says Google and some of its closest partners - including
IAC/InterActiveCorp, Infospace, Inc., Value Click, Inc., and
Network Solutions LLC - have devised, implemented and conducted a
massive surreptitious click-laundering scheme to extract and share
together in billions of dollars in advertising fees from the
Class.
Additionally, Mr. Woods says Google violated its express agreement
to apply the promised "Smart Pricing" discount which, if applied,
would automatically discount charges for all clicks originating
from sites other than google.com. Smart Pricing is a feature that
automatically reduces the price advertisers pay for a click where
Google's data shows that a click is less likely to result in a
conversion.
Mr. Woods is an individual who resides and operates a law practice
in Fayetteville, Washington County, Arkansas and who opened a
Google AdWords account on or about September 24, 2009, for the
purpose of advertising his law practice online.
Defendant Google, a Delaware corporation with headquarters located
in Mountain View, California, operates the most widely used
Internet search engine in the world. It hosts and develops a
number of Internet-based services and products, including its
search engine. Google generates revenue primarily from displaying
the online advertisements of its customers.
The Plaintiff is represented by:
Ramzi Abadou, Esq.
Stacey M. Kaplan, Esq.
Erik D. Peterson, Esq.
BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP
580 California Street, Suite 1750
San Francisco, CA 94104
Telephone: (415) 400-3000
E-mail: rabadou@btkmc.com
skaplan@btkmc.com
epeterson@btkmc.com
- and -
Sean M. Handler, Esq.
Joseph H. Meltzer, Esq.
Peter H. LeVan, Jr., Esq.
Naumon A. Amjed, Esq.
Ryan T. Degnan, Esq.
BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610)667-7706
E-mail: shandler@btkmc.com
jmeltzer@btkmc.com
plevan@btkmc.com
namjed@btkmc.com
rdegnan@btkmc.com
- and -
Jeffrey J. Angelovich, Esq.
Brad E. Seidel, Esq.
NIX, PATTERSON & ROACH, LLP
3600 N. Capital of Texas Hwy, Bldg. B, Suite 350
Austin, TX 78746
Telephone: (512) 328-5333
E-mail: jangelovich@npraustin.com
bradseidel@nixlawfirm.com
HANSEN MEDICAL: Motion to Dismiss Suit in Calif. Still Pending
--------------------------------------------------------------
Hansen Medical Inc. is awaiting a court ruling on its motion to
dismiss the second amended securities class complaint filed
against the Company in California, according to the Company's
March 16, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
Following the Company's October 19, 2009 announcement that the
Company would restate certain of its financial statements, a
securities class action lawsuit was filed on October 23, 2009 in
the United States District Court for the Northern District of
California, naming the Company and certain of its officers. Curry
v. Hansen Medical, Inc. et al., Case No. 09-05094. The complaint
asserts claims for violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 on behalf of a putative class of
purchasers of Hansen stock between May 1, 2008 and October 18,
2009, inclusive, and alleges, among other things, that defendants
made false and/or misleading statements and/or failed to make
disclosures regarding the Company's financial results and
compliance with GAAP while improperly recognizing revenue; that
these misstatements and/or nondisclosures resulted in
overstatement of the Company's revenue and financial results
and/or artificially inflated the Company's stock price; and that
following the Company's October 19, 2009 announcement, the price
of the Company's stock declined. On November 4, 2009 and
November 13, 2009, substantively identical complaints were filed
in the Northern District of California by other purported Hansen
stockholders asserting the same claims on behalf of the same
putative class of Hansen stockholders. Livingstone v. Hansen
Medical, Inc. et al., Case No. 09-05212 and Prenter v. Hansen
Medical, Inc., et al., Case No. 09-05367. All three complaints
seek certification as a class action and unspecified compensatory
damages plus interest and attorneys fees. On December 22, 2009,
two purported Hansen stockholders, Mina and Nader Farr, filed a
joint application for appointment as lead plaintiffs and for
consolidation of the three actions. On February 25, 2010, the
Court issued an order granting Mina and Nader Farr's application
for appointment as lead plaintiffs and consolidating the three
securities class actions. On July 15, 2010, the Court entered an
order granting lead plaintiffs' motion for leave to file a second
amended complaint. Lead plaintiffs' second amended complaint, in
addition to alleging that shareholders suffered damages as a
result of the decline in the Company's stock price following the
October 19, 2009 announcement, also alleges that shareholders
suffered additional damages as the result of share price declines
on July 28, 2009, July 31, 2009, January 8, 2009, July 6, 2009,
and August 4, 2009, all of which lead plaintiffs allege were
caused by the disclosure of what they claim was previously
misrepresented information. The defendants filed their motion to
dismiss the second amended complaint on October 13, 2010. The
Company and the named officers intend to defend themselves
vigorously against these actions.
HARBIN ELECTRIC: Lawsuits Over Stock Acquisition Still Pending
--------------------------------------------------------------
Harbin Electric Inc. continues to defend itself from shareholder
class action lawsuits, which stem from a proposal by its chief
executive and Baring Private Equity Asia Group Limited to acquire
its common stock, according to the Company's March 16, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2010.
Ten shareholder class action lawsuits have been filed against the
Company and/or certain officers and the members of its Board of
Directors in connection with the October 10, 2010 non-binding
proposal made by the Company's Chairman and Chief Executive
Officer, Mr. Tianfu Yang, and Baring Private Equity Asia Group
Limited to acquire all of the outstanding shares of the Company's
Common Stock not currently owned by Mr. Yang and his affiliates
for $24.00 per share in cash. Five actions were filed in Nevada
state court (Carson City, Clark County, or Washoe County); two
actions were filed in Nevada federal district court; and three
actions were filed in New York state court. All of the actions
assert claims against the Company and/or members of the Board for
allegedly breaching their fiduciary duties in connection with the
Proposal.
On or about October 19, 2010, the Company became aware that the
first of the shareholder class actions had been filed against the
Company and its Board members in connection with the Proposal.
Plaintiffs allege, among other things, that the proposed buyout
price and the process of evaluating the Proposal are unfair and
inadequate. Plaintiffs seek, among other relief, to enjoin
defendants from consummating the Proposal and to direct defendants
to exercise their fiduciary duties to obtain a transaction that is
in the best interests of the Company's shareholders.
The Company has moved, or will move, to dismiss Plaintiffs' claims
in their entirety. The Company has reviewed the allegations
contained in the complaints and believes they are without merit.
The Company intends to defend the litigation vigorously.
ING GROUP: Faces Securities Class Action in New York
-----------------------------------------------------
Jacob Gaffney, writing for Housing Wire, reports that Netherlands-
based ING Group divulged in a filing with the Securities and
Exchange Commission that it is the focus of several lawsuits in
the United States.
"In certain of such proceedings, very large or indeterminate
amounts are sought, including punitive and other damages," the
insurance conglomerate reveals in its annual 20-F report.
ING is winding down its United States real estate holdings by
2013, a mandate that is part of its $13.5 billion bailout deal
from the Dutch government.
Class litigation filed in the United States District Court in New
York alleges violations of federal securities laws. The lawsuit
charges that ING failed to make certain disclosures in connection
with the 2007 and 2008 offerings of ING's Perpetual Hybrid Capital
Securities.
The Court dismissed the claims relating to the 2007 offerings.
Yet the challenge to the June 2008 offering still stands as it
relates to ING Group investments in certain residential mortgage-
backed securities.
"Additional purported class litigation challenges the operation of
the ING Americas Savings Plan and ESOP and the ING 401(k) Plan for
ILIAC Agents," the statement adds.
"These matters are being defended vigorously; however, at this
time, ING is unable to assess their final outcome," the form
states.
INSMED INCORPORATED: Faces Class Suit Relating to Transave Merger
-----------------------------------------------------------------
Insmed Incorporated was named a defendant in a class action
lawsuit arising from the Company's 2001 merger with Transave,
Inc., according to the Company's March 16, 2011 Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2010.
On February 24, 2011, an action was filed against the Company, its
subsidiary Transave, LLC, Transave, its directors and the former
directors of Transave, captioned Mackinson et al. v. Insmed
Incorporated et al., C.A. No. 6216, as a purported class action
seeking a quasi-appraisal remedy for alleged violations of
Delaware's appraisal statute and the fiduciary duty of disclosure
in connection with the merger consummated pursuant to that certain
Agreement and Plan of Merger, dated as of December 1, 2001, by and
among Insmed Incorporated, River Acquisition Co., Transave, LLC,
Transave, Inc. and TVM V Life Science Ventures GmbH & Co. KG, in
its capacity as stockholders' agent. The Company intends to
vigorously defend this action. It is not possible at this time to
estimate the amount of loss or range of possible loss, if any,
that might result from an adverse resolution of this action.
Insmed Inc. -- http://www.insmed.com.-- is a biopharmaceutical
company with unique protein development experience and a
proprietary protein platform aimed at niche markets with unmet
medical needs.
INTERNET CAPITAL: Awaits Court Decision in "Bechtold" Appeal
------------------------------------------------------------
Internet Capital Group, Inc., is awaiting a court decision on the
appeal filed by Theodore Bechtold in the stockholders class action
lawsuit against the Company, according to the Company's March 16,
2011 Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2010.
In May and June 2001, certain of the Company's present directors,
along with the Company, certain of its former directors, certain
of its present and former officers and its underwriters, were
named as defendants in nine class action complaints filed in the
United States District Court for the Southern District of New
York. The plaintiffs and the putative classes they seek to
represent include present and former stockholders of the Company.
The complaints generally allege violations of Sections 11 and 12
of the Securities Act of 1933, as amended, and Rule 10b-5
promulgated under the Exchange Act, based on, among other things,
the dissemination of statements allegedly containing material
misstatements and omissions concerning the commissions received by
the underwriters of the initial public offering and follow-on
public offering of the Company as well as failure to disclose the
existence of purported agreements by the underwriters with some of
the purchasers in these offerings to buy additional shares of the
Company's stock subsequently in the open market at pre-determined
prices above the initial offering prices. The plaintiffs seek for
themselves and the alleged class members an award of damages and
litigation costs and expenses. The claims in these cases have been
consolidated for pre-trial purposes (together with claims against
other issuers and underwriters) before one judge in the Southern
District of New York federal court. In April 2002, a consolidated,
amended complaint was filed against these defendants which
generally alleges the same violations and also refers to alleged
misstatements or omissions that relate to the recommendations
regarding the Company's stock by analysts employed by the
underwriters. In June and July 2002, defendants, including the
Company defendants, filed motions to dismiss plaintiffs'
complaints on numerous grounds. The Company's motion was denied in
its entirety in an opinion dated February 19, 2003. In July 2003,
a committee of the Company's Board of Directors approved a
proposed settlement with the plaintiffs in this matter, which was
preliminarily approved by the District Court overseeing the
litigation in February 2005. A final fairness hearing on the
settlement was held on April 24, 2006. On December 5, 2006,
however, the Second Circuit Court of Appeals reversed the
certification of plaintiff classes in six actions related to other
issuers that had been designated as test cases with respect to the
non-settling defendants in those matters and made other rulings
that drew into question the legal viability of the claims in the
Focus Cases. The Court of Appeals later rejected the plaintiffs'
request that it reconsider that decision. As a result, on June 25,
2007, the District Court approved a stipulation and order
terminating the proposed settlement. While the Court of Appeals
decision did not automatically apply to the case against the
Company, the defendants moved for, and the Court granted, an order
that would apply the decision to all cases, including the
consolidated action against the Company. On August 14, 2007, the
plaintiffs filed an amended "master" complaint containing
allegations purportedly common to all defendants in all actions
and filed amended complaints containing specific allegations
against the six issuer defendants in the Focus Cases. In addition,
on September 27, 2007, the plaintiffs again moved to certify
classes in each of the Focus Cases. The defendants in the Focus
Cases moved to dismiss the amended complaints. Rulings on both the
motion to certify the Focus Cases as class actions and to dismiss
those cases remain outstanding. The District Court has approved a
stipulation extending the time within which the plaintiffs must
file amended pleadings containing specific allegations against the
other issuer defendants, including the Company, and the time
within which those defendants must move, answer or otherwise
respond to those specific allegations.
On April 2, 2009, the plaintiffs filed a motion for preliminary
approval of a proposed global settlement of all claims asserted in
the coordinated class action securities litigation on behalf of
the class plaintiffs in the respective actions against the various
issuer and underwriter defendants, including all claims asserted
against the Company. The motion further seeks certification of
settlement classes as to each action against the defendants,
including the Company. The Company has assented to the proposed
settlement, which does not require any monetary contribution from
the Company and would be funded by various underwriter defendants
and the defendants' insurers. On June 10, 2009, the District Court
granted preliminary approval of the proposed settlement and of the
form of notice of the proposed settlement to be provided to
members of the proposed settlement class. The District Court
scheduled a hearing for September 10, 2009 to determine whether to
approve the proposed settlement. The final hearing was held on
September 10, 2009. On October 5, 2009, the District Court granted
final approval of the proposed global settlement, subject to the
rights of the parties to appeal the settlement within 30 days of
such approval. Pursuant to the terms of the approved settlement,
the Company is not required to make any monetary contribution to
fund the required settlement payments, which are being funded by
various underwriter defendants and the defendants' insurers.
On or about October 23, 2009, three members of the settlement
class who had been shareholders of an issuer other than the
Company filed a petition seeking leave to appeal the District
Court's final approval to the Second Circuit Court of Appeals on
an interlocutory basis. No judicial ruling or action has been
taken on the motion. On or before November 6, 2009, three notices
of appeal were filed with respect to the District Court's order
granting final approval of the global settlement. On December 14,
2009, the District Court entered a final judgment approving and
giving effect to the global settlement as it related to the
consolidated actions against the Company. The final judgment
created a settlement class of plaintiffs comprised of persons who
purchased or otherwise acquired the common stock and call options
of the Company during the period of August 4, 1999 through
December 6, 2000, provided for the distribution of settlement
proceeds to the members of the class and approval of attorneys'
fees to class counsel consistent with the terms of the global
settlement, barred prosecution of all settled claims by members of
the class and their representatives, released the defendants and
other protected persons from such claims and dismissed all claims
against the Company and other defendants in the consolidated
amended action with prejudice.
The appeals referenced in the November 6, 2009 notices of appeal
have been docketed in the Court of Appeals for the Second Circuit.
By order dated April 7, 2010, the District Court directed that the
appealing class members identify the specific class, by company,
to which they purport to belong. The District Court's order
further directed the clerk of the court to enter the appealing
class members' notices of appeal only in those cases as to which
the appealing class members identify themselves as members of the
class certified. No such notice of appeal has been entered in the
action against the Company. Separately, on June 17, 2010, the
District Court entered an order requiring the appellants to post a
bond in the amount of $25,000, jointly and severally, as a
condition of pursuing their appeals from the October 5, 2009 order
approving the global settlement. The bond was posted and a
briefing schedule with respect to the appeals was set. The
distribution of settlement proceeds is currently being held in
abeyance.
Since September 2010, four of the six individuals or groups that
filed appeals from the class settlement have dropped their
appeals, leaving two, a pro se appeal by James Hayes and an appeal
filed by Theodore Bechtold, an attorney filing on his own behalf.
Each filed opening briefs challenging the settlement and class
certification on a variety of grounds. Responsive briefs from
the appellees were due to be filed by December 17, 2010. On
December 8, 2010, however, the plaintiff-appellees moved to
dismiss the Bechtold appeal on a variety of technical grounds.
That motion is still pending before the Court of Appeals for the
Second Circuit. Its filing suspended the date by which the
responsive briefs in both appeals were to be filed. Accordingly,
completion of briefing on the two remaining appeals will await
resolution of the motion to dismiss Mr. Bechtold's appeal.
Internet Capital Group, Inc. -- http://www.internetcapital.com/-
- is focused on acquiring and building Internet software and
services companies. During the year ended Dec. 31, 2008, the
company hold ownership interests in 14 companies that are
considered to be the partner companies. The results for the
operation of the partner companies are reported in two business
segments: the core reporting segment and the other holdings
reporting segment. The core reporting segment includes those
partner companies in which ICG's management takes a role in
providing direction and management assistance. The other
holdings reporting segment includes partner companies over which
the Company have less influence, because they are public
companies and/or have a relatively small ownership stake in those
partner companies.
INTERSECTIONS INC: Appeal in Texas Class Suit Remains Pending
-------------------------------------------------------------
An appeal from a Texas court order dismissing a class action
lawsuit against Intersections Inc. remains pending, according to
the Company's March 16, 2011 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
On September 11, 2009, a putative class action complaint was filed
against Intersections Inc., Intersections Insurance Services Inc.,
Loeb Holding Corp., Bank of America of America, NA, Banc of
America Insurance Services, Inc., American International Group,
Inc., National Union Fire Insurance Company of Pittsburgh, PA, and
Global Contact Services, LLC, in the U.S. District Court for the
Southern District of Texas. The complaint alleges various claims
based on telemarketing of an accidental death and disability
program. On February 22, 2011, the U.S. District Court dismissed
all of the plaintiff's claims against the Company and the other
defendants. The plaintiff has filed a notice of appeal to the U.S.
Court of Appeals for the Fifth Circuit.
Intersections Inc. -- http://www.intersections.com/-- is a
leading global provider of consumer and corporate identity risk
management services. Its premier identity theft, privacy, and
consumer solutions are designed to provide high-value
opportunities to its marketing partners, including leading
financial institutions, Fortune 100 corporations, and other
businesses. Intersections also markets full identity theft
protection solutions under its brand, Identity Guard(R).
Intersections' consumer identity theft protection services have
protected more than 30 million consumers.
INTERSECTIONS INC: Discovery Remains Ongoing in California Suit
---------------------------------------------------------------
Discovery is ongoing in a class action lawsuit filed in the U.S.
District Court for the Northern District of California against
Intersections Inc., according to the Company's March 16, 2011 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
On February 16, 2010, a putative class action complaint was filed
against Intersections Inc., Bank of America Corporation, and FIA
Card Services, N.A., in the U.S. District Court for the Northern
District of California. The complaint alleges various claims based
on the provision of identity protection services to the named
plaintiff. The Company believes it has meritorious and complete
defenses to the plaintiff's claims but believe that it is too
early in the litigation to form an opinion as to the likelihood of
success in defeating the claims. Defendants filed answers to the
complaint on May 24, 2010. Discovery is ongoing.
Intersections Inc. -- http://www.intersections.com/-- is a
leading global provider of consumer and corporate identity risk
management services. Its premier identity theft, privacy, and
consumer solutions are designed to provide high-value
opportunities to its marketing partners, including leading
financial institutions, Fortune 100 corporations, and other
businesses. Intersections also markets full identity theft
protection solutions under its brand, Identity Guard(R).
Intersections' consumer identity theft protection services have
protected more than 30 million consumers.
KENEXA CORP: Court Denies Motion to Reconsider Suit Dismissal
-------------------------------------------------------------
A Pennsylvania district court denied a motion for reconsideration
of its prior ruling that dismissed two putative class actions
against Kenexa Corporation, according to the Company's March 16,
2011, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2010.
On June 11, 2009 and July 16, 2009, two putative class actions
were filed against Kenexa Corporation and its Chief Executive
Officer and Chief Financial Officer in the United States District
Court for the Eastern District of Pennsylvania, purportedly on
behalf of a class of its investors who purchased its publicly
traded securities between May 8, 2007 and November 7, 2007. On
September 28, 2010, the court granted Kenexa's motion to dismiss
the complaint filed on June 11, 2009. The plaintiffs filed a
motion for reconsideration of the court's decision on October 12,
2010, which was denied by the court on November 29, 2010. The
plaintiffs failed to file a timely appeal, and, as a result, the
actions were concluded in Kenexa's favor.
LABRANCHE: Continues to Defend Suits Related to Merger With Cowen
-----------------------------------------------------------------
LaBranche & Co. Inc. continues to defend itself in class action
lawsuits relating to the Company's merger with Cowen Group, Inc.,
according to the Company's March 16, 2011 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
On or about February 22 and 24, 2011, two purported class actions
were filed in the United States Supreme Court, County of New York,
allegedly on behalf of all owners of shares of the Company's
common stock. Plaintiffs in both actions challenge a stock-for-
stock merger agreement entered into by Cowen Group Inc. and the
Company, pursuant to which holders of shares of the Company's
common stock will receive 0.9980 of a share of Cowen Class A
common stock per share of the Company's common stock if its
stockholders approve the merger and the merger is consummated. The
actions allege that the Company's directors, Michael LaBranche,
Alfred O. Hayward, Jr., Katherine Elizabeth Dietze, Donald E.
Kiernan and Stuart M. Robbins, breached their fiduciary duties of
care and loyalty in approving the merger agreement and that they
"failed to properly value LaBranche," "failed to take steps to
maximize the value of LaBranche to its public shareholders," "took
steps to avoid competitive bidding," "agreed to terms in the
Merger Agreement and other terms that favor Cowen and deter
alternative bids," and "ignored or did not protect against the
numerous conflicts of interest resulting from the directors' own
interrelationships or connection with the Proposed Transaction."
The actions also allege that the Company, Cowen and Louisiana
Merger Sub, Inc., a wholly-owned subsidiary of Cowen created to
effectuate the proposed transaction, aided and abetted the alleged
breaches of fiduciary duty. Plaintiffs allege that they seek an
order enjoining the merger or rescinding and setting it aside,
money damages, the costs of the actions, including attorneys'
fees, and such other relief as the Court deems just and proper.
The defendants have not yet responded to the complaints in the
actions.
The Company believes that the claims asserted against it in these
proceedings are without merit, and denies all allegations of
wrongdoing. There can be no assurance, however, as to the outcome
or timing of the resolution of this proceeding. The Company,
therefore, is unable to estimate the amount or potential range of
any loss that may arise out of this proceeding. The range of
possible resolutions could include a determination and judgment
against the Company or a settlement that could require a
substantial payment by the Company that could have a material
adverse effect on its financial condition, results of operations
and cash flows.
LaBranche, a Delaware corporation, operates, through its
subsidiaries, as a registered broker-dealer. It operates as
market-maker in options, futures, and exchange-traded funds (ETF)
traded on various exchanges.
LABRANCHE: Discovery Ongoing in NYSE Specialists Securities Suit
----------------------------------------------------------------
Discovery is ongoing in the consolidated class action lawsuits
brought by persons or entities who purchased and sold shares of
stocks of New York Stock Exchange-listed companies, including
LaBranche & Co. Inc., according to the Company's March 16, 2011
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
On or about October 16, 2003 through December 16, 2003, four
purported class action lawsuits were brought by persons or
entities who purchased and sold shares of stocks of NYSE-listed
companies, including Pirelli v. LaBranche & Co Inc., et al., No.
03 CV 8264, Marcus v. LaBranche & Co Inc., et al., No. 03 CV 8521,
Empire v. LaBranche & Co Inc., et al., No. 03 CV 8935, and
California Public Employees' Retirement System (CalPERS) v. New
York Stock Exchange, Inc., et al., No. 03 CV 9968. On March 11,
2004, a fifth action asserting similar claims, Rosenbaum Partners,
LP v. New York Stock Exchange, Inc., et al., No. 04 CV 2038, was
filed in the United States District Court for the Southern
District of New York by an individual plaintiff who does not
allege to represent a class.
On May 27, 2004, the court consolidated these lawsuits under the
caption In re NYSE Specialists Securities Litigation, No. CV 8264.
The court named the following lead plaintiffs: California Public
Employees' Retirement System and Empire Programs, Inc.
On September 15, 2004, plaintiffs filed a Consolidated Complaint
for Violation of the Federal Securities Laws and Breach of
Fiduciary Duty alleging that they represent a class consisting of
all public investors who purchased and sold shares of stock listed
on the NYSE from October 17, 1998 to October 15, 2003. Plaintiffs
allege that the Company, LaBranche & Co. LLC, Mr. LaBranche, other
NYSE specialist firms, including Bear Wagner Specialists LLC,
Fleet Specialist, Inc., SIG Specialists, Inc., Spear, Leeds &
Kellogg Specialists LLC, Performance Specialist Group, LLC and Van
der Moolen Specialists USA, LLC, and certain parents and
affiliates of those firms, and the NYSE, violated Section 10(b) of
the Exchange Act and Rule 10b-5 promulgated thereunder by failing
to disclose alleged improper specialist trading that was the
subject of the specialist trading investigations described above,
improperly profiting on purchases and/or sales of NYSE listed
securities, and breaching and aiding and abetting breaches of
fiduciary duty. Section 20(a) control person claims also are
alleged, including against the Company,LaBranche & Co. LLC and Mr.
LaBranche. Plaintiffs seek unspecified money damages, restitution,
forfeiture of fees, commissions and other compensation, equitable
and injunctive relief, including an accounting and the imposition
of a constructive trust and asset freeze on trading proceeds, and
attorneys' fees and reimbursement of expenses.
On December 12, 2005, motions to dismiss were granted in part and
denied in part. The court dismissed plaintiffs' Section 10(b) and
Section 20(a) claims against all defendants for conduct that
occurred before January 1, 1999 and dismissed plaintiffs' breach
of fiduciary duty claims against all defendants. The court also
dismissed all claims against the NYSE and certain claims against
certain parents and affiliates of specialists other than LaBranche
& Co. LLC.
On February 2, 2006, plaintiffs filed an Amended Consolidated
Complaint for Violation of the Federal Securities Laws and Breach
of Fiduciary Duty, adding Robert A. Martin as a plaintiff. This
complaint is otherwise identical to plaintiffs' Consolidated
Complaint for Violation of the Federal Securities Laws and Breach
of Fiduciary Duty.
On February 23, 2006, the Company, LaBranche & Co. LLC, Mr.
LaBranche and the other defendants in the case filed answers to
plaintiffs' Amended Consolidated Complaint for Violation of the
Federal Securities Laws and Breach of Fiduciary Duty, denying
liability and asserting affirmative defenses.
On February 22, 2007, the court removed Empire Programs, Inc. as
co-lead plaintiff, leaving CalPERS as the sole lead plaintiff.
On June 28, 2007, CalPERS moved for class certification of "[a]ll
persons and entities who submitted orders (directly or through
agents) to purchase or sell NYSE-listed securities between
January 1, 1999 and October 15, 2003, which orders were listed on
the specialists' display book and subsequently disadvantaged by
defendants," and for the certification of CalPERS and Market
Street Securities Inc. as class representatives.
On September 18, 2007, the United States Court of Appeals for the
Second Circuit reinstated certain of the claims against the NYSE
that previously had been dismissed.
On March 14, 2009, the court granted CalPERS' motion for class
certification.
On April 13, 2009, the Company, LaBranche & Co. LLC, Mr. LaBranche
and the other specialist firm defendants and their affiliates
filed a petition in the United States Court of Appeals for the
Second Circuit, pursuant to Federal Rule of Civil Procedure 23(f),
for permission to appeal the class certification order. On
October 1, 2009, the United States Court of Appeals for the Second
Circuit denied the petition, and, on October 21, 2009, the
Company, LaBranche & Co. LLC, Mr. LaBranche and the other
specialist firm defendants and their affiliates filed a motion for
reconsideration. On February 24, 2010, the Second Circuit denied
this motion for reconsideration.
On October 5, 2009, CalPERS and the NYSE informed the court that
they had agreed to settle all claims against the NYSE.
On or about March 31, 2010, CalPERS and the NYSE submitted a
stipulation of settlement to the Court, not involving any money
payment by the NYSE to CalPERS. On April 2, 2010 the Court
approved this settlement, and, on April 6, 2010, the Court entered
a final judgment dismissing CalPERS's claims against the NYSE with
prejudice.
Discovery is ongoing.
LaBranche, a Delaware corporation, operates, through its
subsidiaries, as a registered broker-dealer. It operates as
market-maker in options, futures, and exchange-traded funds (ETF)
traded on various exchanges.
LIFE PARTNERS: Class Action Lead Plaintiff Deadline Nears
---------------------------------------------------------
Hagens Berman Sobol Shapiro LLP on March 16 reminded investors who
purchased significant quantities of NASDAQ: LPHI stock that they
have only 19 days to file a motion to serve as lead plaintiff in a
class-action lawsuit against Life Partners Holdings, Inc. The
lawsuit, filed in the U.S. District Court in Texas, alleges that
Life Partners Holdings conducted deceptive business practices that
may have misled its investors.
Investors who purchased more than $100,000 worth of LPHI stock
between May 29, 2007 and Jan. 20, 2011 are encouraged to call
Hagens Berman partner Reed R. Kathrein at 510-725-3000 before
April 4, 2011 for a personal consultation. Investors can also
contact the Hagens Berman legal team through e-mail at
LPHI@hbsslaw.com
"We are gratified by the progress made in our investigation, and
we intend to hold Life Partners Holdings responsible for apparent
dubious sales and marketing practices that decreased the company's
stock value by more than 35 percent in only three months," said
Mr. Kathrein.
Mr. Kathrein also encouraged investors who purchased large
quantities of LPHI stock and wish to serve as lead plaintiff to
carefully consider the qualifications of the counsel they choose
to represent them.
Life Partners Holdings, headquartered in Waco, Texas, is engaged
in the secondary market for life insurance, commonly called "life
settlements." Life Partners Holdings helps investors buy the life
insurance policies of terminally ill patients and the elderly at a
discount of the policies' face value.
Shares of LPHI dipped by $2.61, or about 17%, to $12.43 after Life
Partners Holdings confirmed an SEC investigation and The Wall
Street Journal article. On March 16, 2011, the stock trades for
less than $6.71 per share. In December 2010, and prior to news
articles from The Wall Street Journal, the LPHI stock traded as
high as $18.34.
More details of the investigation can be found at:
http://www.hbsslaw.com/LPHI
Seattle-based Hagens Berman Sobol Shapiro LLP --
http://www.hbsslaw.com/-- is class-action law firm with offices
in Boston, Chicago, Colorado Springs, Los Angeles, Minneapolis,
New York, Phoenix, San Francisco and Washington, D.C. Founded in
1993, we represent plaintiffs in class actions and multi-state,
large-scale litigation that seek to protect the rights of
investors, consumers, workers and whistleblowers.
LOCAL.COM CORP: Class Action Suit in California Still Pending
-------------------------------------------------------------
Local.com Corporation continues to defend itself from a putative
class action lawsuit filed in California, according to the
Company's March 16, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On March 9, 2011, a putative class action was filed in the
Superior Court for the State of California, County of Orange,
against Local.com, DigitalPost Interactive, Inc. and the directors
of DGLP, Michael Sawtell, Steven Dong, and Brian Goss by Chris
Leite, an individual and purported shareholder of DGLP on behalf
of himself and others alleged to be similarly situated. The
complaint alleges that DGLP and its directors have breached their
fiduciary duties to DGLP's shareholders and that the Company aided
and abetted such breach in connection with the proposed
acquisition by the Company of the assets of Rovion, Inc., the
wholly-owned subsidiary of DGLP, pursuant to that certain Asset
Purchase Agreement by and between DGLP and the Company dated
February 11, 2011. The claim seeks an injunction preventing the
Company from completing the Proposed Transaction. The claim also
seeks to have certified as a class of plaintiffs certain holders
of DGLP common stock that are unaffiliated with DGLP directors
named in the action. The claim further seeks a court order
requiring that all of the directors of DGLP exercise certain
fiduciary duties that were alleged by the plaintiff not to have
been previously undertaken by such defendants. The claim also
seeks a court order requiring DGLP to obtain a fairness opinion
with respect to the Proposed Transaction. Additionally, the claim
seeks certain disclosures with respect to retention bonuses
proposed to be received by certain of the employees, including the
directors of DGLP, pursuant to the Proposed Transaction and
certain modifications to the escrow provisions of the Asset
Purchase Agreement. Finally, the claim seeks an award of fees,
expenses and costs to the plaintiff and plaintiff's counsel. The
Company is investigating the merits of the claims and intend to
vigorously defend itself.
LOJACK CORP: Seeks Consolidation of Employee Suits in California
----------------------------------------------------------------
LoJack Corporation filed a Notice of Removal to remove a state
court case against it in California to the federal court, where a
similar case is pending, and to consolidate both cases to be heard
in the Federal Court, according to the Company's March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
In April 2006, a suit was filed against LoJack Corporation in the
United States District Court for the Central District of
California by an employee alleging violations of the Fair Labor
Standards Act, the California Labor Code and the California
Business & Professions Code, and seeking class action status. In
September 2007, the Company's motion for summary judgment was
granted and the district court dismissed all of the plaintiff's
federal law claims. The plaintiff appealed the dismissal to the
Ninth Circuit Court of Appeals and in August 2009, the Ninth
Circuit affirmed the district court's grant of summary judgment on
all claims except as to the claim for compensation for the
required postliminary data transmission, or the data transmission
claim, for which the dismissal was vacated. The plaintiff filed a
petition for rehearing to the Ninth Circuit and on March 2, 2010,
the Ninth Circuit affirmed the district court's grant of summary
judgment on all claims except as to (a) the claim for compensation
for commuting under state law and (b) the data transmission claim,
which are the two remaining claims. The plaintiff seeks to pursue
the claim for compensation for commuting time in the State Court
case referenced below. The plaintiff moved for conditional class
certification for the data transmission claim and on January 14,
2011, the District Court for the Central District of California
granted the plaintiff's motion for conditional certification.
Trial for this claim in federal court currently scheduled for
November 2011.
Due to the dismissal of the plaintiff's claims in federal court in
September 2007, in November 2007, the plaintiff also filed state
law claims in California State Court. In June 2009, the
California State Court granted class certification with respect to
nine claims and denied class certification with respect to five
claims. The Company appealed this decision and on March 26, 2010,
the California State Appellate Court granted the Company's appeal
in part, denying certification with respect to certain claims and
affirming certification with respect to other claims, including
claims related to meal and rest breaks, postliminary data
transmission, and time traveling to UPS stores. There are
currently six claims that are class certified in this State Court
case. The plaintiff seeks to pursue the claim for compensation
for commuting time in California State Court.
In both the Federal and State Court cases, the plaintiff, on
behalf of the class, seeks unpaid wages, penalties, interest and
attorneys' fees. In November 2010, the parties had a mediation
hearing to address all remaining Federal and State claims.
However, the parties did not reach any resolution as a result of
the mediation.
On February 14, 2011, the Company filed a Notice of Removal to
remove the State Court case to the Federal Court, thereby
requesting to consolidate both the Federal and State Court cases
to be heard in the Federal Court. The Company believes that it
has substantial legal and factual defenses to these claims and
intends to defend its interests vigorously.
LOJACK CORP: Mediation Hearing Set for March 29 in Consumer Suit
----------------------------------------------------------------
Parties to the lawsuit filed by a consumer against LoJack
Corporation in the Los Angeles County Superior Court have
scheduled a mediation hearing for March 29, 2011, to address all
claims in the case, according to the Company's March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
On June 15, 2010, a suit was filed by a consumer against LoJack
Corporation in the Los Angeles County Superior Court of the State
of California (Central District) alleging, amongst other claims,
violations of the California Consumers Legal Remedies Act, the
California Business and Professions Code Section 17200 (unfair
competition) and Section 17500 (false advertising), and breach of
implied warranty with respect to LoJack Early Warning for
motorcycles, and seeking class action status. On July 29, 2010,
the Company removed the case to the United States District Court
for the Central District Court of California. On August 23, 2010,
the Company filed a motion to dismiss all claims, which was
granted by the Court on September 27, 2010, without prejudice.
The dismissal without prejudice provided plaintiff with the
opportunity to amend its complaint, and on October 25, 2010, the
plaintiff filed an amended complaint, for alleged fraud,
violations of the California Consumers Legal Remedies Act, the
California Business and Professions Code Section 17200 (unfair
competition) and Section 17500 (false advertising), and breach of
implied warranty and again seeks class certification.
On November 12, 2010, the Company filed a motion to dismiss all
claims and a motion to strike certain claims. On December 28,
2010, the Court denied the Company's motion to dismiss. The
plaintiff, on behalf of the class, seeks injunctive relief,
restitution, disgorgement, punitive damages, and attorneys' fees
in unspecified amounts. The parties are currently engaged in
discovery. On March 3, 2011, the plaintiff filed a motion for
class certification. The Company is currently preparing its
opposition to class certification. The parties have scheduled a
mediation hearing for March 29, 2011, to address all claims.
The Company says there can be no guarantee of the possible outcome
of the mediation between the parties, and there may or may not be
a resolution of the matters as a result of the mediation. The
Company believes that it has substantial legal and factual
defenses to these claims and intends to defend its interests
vigorously.
MEDIVATION INC: Continues to Defend Dimebon-Related Class Suit
--------------------------------------------------------------
Medivation, Inc., continues to defend itself against a
consolidated class action related to the drug, dimebon, according
to the Company's March 16, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On March 9, 2010, the first of three purported securities class
action lawsuits was commenced in the U.S. District Court for the
Northern District of California, naming as defendants the Company
and certain of its officers. The lawsuits are largely identical
and allege violations of the Exchange Act in connection with
allegedly false and misleading statements made by the Company
related to dimebon. The plaintiffs allege, among other things,
that the Company disseminated false and misleading statements
about the effectiveness of dimebon for the treatment of
Alzheimer's disease, making it impossible for stockholders to gain
a realistic understanding of the drug's progress toward Food and
Drug Administration approval. The plaintiffs purport to seek
damages, an award of its costs and injunctive relief on behalf of
a class of stockholders who purchased or otherwise acquired the
Company's common stock between July 17, 2008 and March 2, 2010.
On September 17, 2010, the court entered an order consolidating
the actions and setting a discovery and briefing schedule for
issues related to appointment of a lead plaintiff. At the end of
December 2010, plaintiffs submitted a briefing on the issues
related to appointment of a lead plaintiff. Following the court's
consideration of the briefing, an order appointing a lead
plaintiff will be entered. Once a lead plaintiff is appointed,
the plaintiffs will have 30 days to file their consolidated,
amended complaint.
Medivation is a biopharmaceutical company focused on the rapid
development of novel small molecule drugs to treat serious
diseases for which there are limited treatment options.
MEDQUIST HOLDINGS: Awaits Court Okay of Shareholder Settlement
--------------------------------------------------------------
MedQuist Holdings Inc. is awaiting court approval of the
settlement of a consolidated action filed by Victor N. Metallo and
Joseph Lawrence, purported shareholders of the Company, according
to the Company's March 16, 2011 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
On February 8, 2011 and February 10, 2011, plaintiffs Messrs.
Metallo and Lawrence, respectively, filed purported shareholder
class action complaints in the Superior Court of New Jersey,
Burlington County. In their complaints, the plaintiffs purported
to be shareholders of MedQuist Inc. and sought to represent a
class of MedQuist Inc. minority shareholders in pursuit of claims
against the Company, MedQuist Inc. and board members of MedQuist
Inc. Plaintiffs alleged that the defendants breached certain
fiduciary duties they owed to minority shareholders of MedQuist
Inc. in connection with the structuring and disclosure of the
Registered Exchange Offer. Among other things, the plaintiffs
alleged that (a) the Registered Exchange Offer is procedurally and
financially unfair, (b) the January 21, 2011 and February 16, 2011
Schedules 14D-9 that MedQuist Inc. filed with the SEC and the
February 3, 2011 Prospectus that the Company filed with the SEC
are materially misleading and incomplete, and (c) the Registered
Exchange Offer was structured by the defendants in order to
circumvent the provisions of the New Jersey Shareholders'
Protection Act. Plaintiffs sought, among other things,
preliminary and permanent injunctive relief enjoining consummation
of the Registered Exchange Offer, unspecified damages, pre- and
post-judgment interest and attorneys' fees and costs. The two
Plaintiff actions were consolidated on February 22, 2011 under the
caption In Re: MedQuist Inc. Shareholder Litigation, Docket Number
C-018-11. On March 4, 2011, the parties entered into a memorandum
of understanding (the MOU) that outlined the material terms of the
Shareholder Litigation. Under the terms of the MOU, the Company
agreed to extend the expiration of the Registered Exchange Offer
until 5:00 p.m., New York City time, on Friday, March 11, 2011 and
further agreed that if, as a result of the Registered Exchange
Offer, the Company obtained ownership of at least 90% of the
outstanding common stock of MedQuist Inc., the Company will
conduct a short-form merger under applicable law to acquire the
remaining shares of MedQuist Inc. common stock that the Company
does not currently own at the same exchange ratio applicable under
the Registered Exchange Offer. MedQuist Inc. agreed to make
certain supplemental disclosures concerning the Registered
Exchange Offer, which were contained in an amendment to Schedule
14D-9 that MedQuist Inc. filed with the SEC on March 7, 2011. The
settlement of the Shareholder Litigation is conditioned upon,
among other things, execution of a Stipulation of Settlement,
notice to all class members, a fairness hearing and final approval
of the settlement by the court.
MEDQUIST HOLDINGS: Continues to Monitor Kahn Class Action
---------------------------------------------------------
MedQuist Holdings Inc.'s subsidiary continues to monitor an action
referred to as the Kahn putative class action because the lawsuit
involves that subsidiary's former directors, according to the
Company's March 16, 2011 Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended December 31, 2010.
In 2008, one shareholder of MedQuist Inc., the Company's
subsidiary, filed a shareholder putative class action lawsuit
against MedQuist Inc., Koninklijke Philips Electronics N.V.
(Philips), MedQuist Inc.'s former majority shareholder and four of
its former non-independent directors. MedQuist Inc. is no longer
a defendant in this matter, but MedQuist Inc. is monitoring the
matter since it involves claims against its former directors.
MERCER INSURANCE: Yet to Present Settlement Stipulation to Court
----------------------------------------------------------------
Mercer Insurance Group, Inc., has yet to present a stipulation of
the settlement contemplated in a memorandum of understanding it
reached with plaintiffs in a consolidated lawsuit related to its
merger with United Fire & Casualty Company, according to the
Company's March 16, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
A putative class action lawsuit relating to the merger captioned
as Rubin v. Mercer Insurance Group, Inc., et al., was filed in the
Superior Court of New Jersey of Mercer County, Chancery Division.
The complaint, which purports to be brought as a class action on
behalf of all of Mercer's shareholders, excluding the members of
the Company's board of directors, alleges that the consideration
that shareholders will receive in connection with the merger is
inadequate and that Mercer's directors breached their fiduciary
duties to shareholders in negotiating and approving the merger
agreement. The complaint also alleges that Mercer failed to
adequately disclose the "auction" process undertaken by Mercer
prior to entering into the merger agreement, information regarding
the owners of the outstanding options to purchase Mercer common
stock and the owners of restricted stock units, and the accurate
financial condition of Mercer. The complaint further alleges that
United Fire, Red Oak Acquisition Corp., and Mercer aided and
abetted the alleged breaches by Mercer's directors. The complaint
seeks various forms of relief, including injunctive relief that
would, if granted, prevent the merger from being consummated in
accordance with the agreed-upon terms.
On December 29, 2010, a second group of shareholders filed a
putative class action lawsuit relating to the merger in the Court
against Mercer, its directors, United Fire, and Acquisition Corp.
The action is captioned Braun v. Mercer Insurance Group, Inc., et
al. Like the Rubin lawsuit, the Braun plaintiffs claim that the
consideration that shareholders will receive in connection with
the merger is inadequate. The complaint alleges that Mercer's
directors breached their fiduciary duties to the shareholders in
negotiating and approving the merger agreement by failing to
engage in a market check to assess the value of Mercer and to
ensure that the merger maximized shareholder value. The complaint
further alleges that United Fire aided and abetted the alleged
breaches by Mercer's directors. The complaint seeks various forms
of relief, including injunctive relief that would, if granted,
prevent the merger from being consummated in accordance with the
agreed-upon terms.
The Rubin and Braun cases were consolidated by the Court on
February 25, 2011. Subsequently, the defendants and the
plaintiffs in the lawsuits entered into a memorandum of
understanding dated as of March 4, 2011, regarding settlement of
the lawsuits. In connection with the settlement, the parties
agreed that the Company would make certain additional disclosures
to its shareholders relating to the proposed merger, in addition
to the information contained in the proxy statement issued in
connection with the Merger Agreement.
The memorandum of understanding also contemplates that the parties
will seek to enter into and present to the Court a stipulation of
settlement. The stipulation of settlement will be subject to
customary conditions, including Court approval. In the event that
the parties enter into a stipulation of settlement, a hearing will
be scheduled at which the Court will consider the fairness,
reasonableness and adequacy of the settlement. There can be no
assurance that the parties will ultimately enter into a
stipulation of settlement or that the Court will approve the
settlement even if the parties were to enter into such a
stipulation. In such event, the proposed settlement as
contemplated by the memorandum of understanding may be terminated.
If the Court approves the settlement, the settlement will resolve
all of the claims that were or could have been brought in the
lawsuits, including all claims relating to the Merger, the Merger
Agreement and any disclosure made in connection therewith.
The Company and the other defendants have vigorously denied, and
continue to vigorously deny, that they have committed, or aided
and abetted in the commission of, any violation of law or engaged
in any of the wrongful acts that were or could have been alleged
in the lawsuits, and expressly maintain that they diligently and
scrupulously complied with their fiduciary and other legal duties
and are entering into the contemplated settlement solely to
eliminate the burden and expense of further litigation, to put the
claims that were or could have been asserted to rest, and to avoid
any possible delay in the consummation of the Merger. Nothing in
the Company's annual report, the parties' memorandum of
understanding or any stipulation of settlement shall be deemed to
be an admission of liability or wrongdoing by any defendant in the
lawsuits nor shall anything in this annual report, the parties'
memorandum of understanding or any stipulation of settlement be
deemed an admission of the materiality of any of the additional
disclosures that the Company agreed to make in connection with
entering into the memorandum of understanding.
Mercer Insurance is engaged in the business of selling property
and casualty insurance. On November 30, 2010, the Company entered
into a Agreement and Plan of Merger with United Fire & Casualty
Company , an Iowa corporation, and Red Oak Acquisition Corp., a
Pennsylvania corporation and wholly-owned subsidiary of United
Fire, pursuant to which the Acquisition Sub will merge with and
into Mercer, with Mercer surviving the Merger as a wholly owned
subsidiary of United Fire.
NAVISITE INC: Continues to Defend in "Tansey" Suit in Mass.
-----------------------------------------------------------
NaviSite, Inc., continues to defend itself in the class action
lawsuit under the caption Tansey v. NaviSite, Inc., et al.,
according to the Company's March 16, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
January 31, 2011.
On February 8, 2011, a purported class action lawsuit was filed
against NaviSite, Time Warner Cable Inc., Avatar Merger Sub Inc.,
a wholly-owned subsidiary of TWC, the Company's directors and
certain of its officers in the United States District Court for
the District of Massachusetts, under the caption Tansey v.
NaviSite, Inc., et al. The lawsuit alleges, among other things,
breach of fiduciary duty by the directors and officers in
connection with the acquisition contemplated by that certain
Agreement and Plan of Merger, dated as of February 1, 2011 by and
among NaviSite, TWC and Merger Sub, and asserts aiding and
abetting claims against NaviSite, TWC and Merger Sub.
Subsequently, on March 9, 2011, the plaintiff in this lawsuit
filed an amended complaint, including the same allegations
described above and adding an allegation that the directors and
officers breached their fiduciary duty by making inadequate
disclosures in the Company's preliminary proxy statement. The
plaintiff seeks certain equitable relief, including enjoining the
acquisition, and attorney's fees and other costs. The Company
believes that this lawsuit is without merit and intend to
vigorously defend the Company's position.
Based in Andover, Massachusetts, NaviSite Inc. --
http://www.navisite.com/-- provides enterprise hosting and
application solutions. Customers depend on NaviSite for managed
application services, application development, implementation and
management on its web infrastructure platforms in 16 state-of-the-
art data centers supported by more than 650 professionals.
NAVISITE INC: Continues to Defend "Chain" Suit in Massachusetts
---------------------------------------------------------------
NaviSite, Inc., continues to defend itself in a class action
lawsuit captioned Chain v. Ruhan, et al., according to the
Company's March 16, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended January 31, 2011.
On February 9, 2011, a purported class action lawsuit, captioned
Chain v. Ruhan, et al., C.A. No. 11-0514-BLS, was filed against
NaviSite, TWC, Merger Sub and the Company's directors in the
Superior Court, Business Litigation Session, of Suffolk County of
the Commonwealth of Massachusetts. The lawsuit alleges, among
other things, that the Company's directors breached their
fiduciary duties in connection with the acquisition contemplated
by the Merger Agreement by, among other things, failing to
maximize the value of NaviSite, and asserts a claim for aiding and
abetting the breach of fiduciary duty claim against NaviSite, TWC
and Merger Sub. The plaintiff seeks equitable relief, including
enjoining the acquisition, to rescind the transaction if not
enjoined, damages, attorneys' fees and other costs. The Company
believes the claims are without merit and intend to vigorously
defend against the claims asserted in the lawsuit.
Based in Andover, Massachusetts, NaviSite Inc. --
http://www.navisite.com/-- provides enterprise hosting and
application solutions. Customers depend on NaviSite for managed
application services, application development, implementation and
management on its web infrastructure platforms in 16 state-of-the-
art data centers supported by more than 650 professionals.
NETFLIX: Faces Class Action in California Over Streaming Service
----------------------------------------------------------------
Eriq Gardner, writing for The Hollywood Reporter, reports that
Netflix is contending with a new class action lawsuit that alleges
the streaming service violates customer privacy by retaining
viewing and payment records even after a customer cancels his or
her service.
Peter Comstock, a Virginia resident, filed the proposed class
action last week in U.S. District Court in California on behalf of
himself and others. The plaintiffs claim that Netflix keeps
comprehensive digital records of every streaming video and video
rental ordered by each of its subscribers and that their retention
of both payment and video viewing habits of millions of
individuals constitutes a violation of both state and federal
laws.
The complaint notes that Netflix uses the data as part of a
recommendation algorithm that helps its customers find videos they
might enjoy.
Such tracking is "hardly surprising," says the lawsuit, but what
"subscribers do not realize (is) that Netflix maintains this
video-viewing information, along with confidential subscriber
payment information . . . in its databases long after subscribers
cancel their Netflix subscription."
The plaintiffs, represented by attorneys at the law firm of Parish
& Havens, believe this constitutes a violation of several laws,
particularly the federal Video Privacy Protection Act, which makes
it a crime to disclose personally identifiable information
concerning any consumer as related to their videotape rental or
sales habits.
That law was passed in the late 1980s as the result of a backlash
when the video rental history of Supreme Court nominee Robert Bork
was published during his nomination process. It became the basis
of a previous class action lawsuit against Netflix, when a group
of plaintiffs claimed the company had illegally shared customer
information to derive a better recommendation algorithm. That
case never got to judgment. Last March, Netflix settled with the
plaintiffs under confidential terms. Similarly, another class
action lawsuit against Blockbuster for breaking provisions of the
VPPA was also settled last year before establishing the data
privacy obligations of a digital video rental service.
The Comstock lawsuit also alleges violations of California's
Customer Records Act, California's Unfair Competition Law, unjust
enrichment, and breach of fiduciary duty. Plaintiffs demand
$2,500 per violation of the VPPA, $3,000 per violation of the
Consumer Records Act, and further punitive damages.
Netflix hasn't yet responded to inquiries.
NOVAMED INC: Hearing in Merger-Related Suit Set for April 4
-----------------------------------------------------------
A hearing in the consolidated class action lawsuit related to
Novamed, Inc.'s proposed merger with Surgery Center Holdings,
Inc., is set for April 4, according to the Company's March 16,
2011 Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2010.
Since the announcement of the proposed Merger with Surgery Center
Holdings, Inc., four putative class actions have been filed
against the Company, the members of its board of directors,
Surgery Center Holdings, Inc. and Merger Sub. Three of these
actions have been filed in the Court of Chancery of the State of
Delaware. One was filed in the Circuit Court of Cook County,
Illinois but was subsequently dismissed by the plaintiff without
prejudice. The three actions in the Court of Chancery of the State
of Delaware have been consolidated as In re NovaMed, Inc.
Shareholder Litigation, C.A. No. 6151-VCP. The plaintiffs in the
Delaware Action allege, among other things, that the members of
the Company's Board of Directors breached their fiduciary duties
by failing to maximize the value to be received by its
stockholders and by failing to disclose all material information
necessary for its stockholders to make an informed decision
regarding the merger and that Parent and the Merger Sub aided and
abetted the Company's Board of Directors' breach of fiduciary
duties. The Court has scheduled a hearing for April 4, 2011 on the
plaintiffs' anticipated motion for a preliminary injunction
barring the defendants from consummating the proposed transaction.
The Company believes the allegations in the Delaware Action are
without merit and intends to vigorously defend the action.
NovaMed operates, develops and acquires ambulatory surgery centers
in partnership with physicians and holds majority ownership
interests in 37 surgery centers located in 19 states. Defendant
Thomas Hall has been the President, Chief Executive Officer, and a
director of the Company since 2005, and Chairman of the Board of
the Company since 2007. Surgery Center Holdings owns and operates
twelve ambulatory surgical centers, and is an affiliate of H.I.G.
Capital, LLC, a leading global private equity investment firm.
NOVATEL WIRELESS: Trial in Consolidated Securities Suit Set May 10
------------------------------------------------------------------
A trial date of May 10, 2011, has been set in the consolidated
securities litigation involving Novatel Wireless, Inc., the
Company disclosed in its March 16, 2011, Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On September 15, 2008 and September 18, 2008, two putative
securities class action lawsuits were filed in the United States
District Court for the Southern District of California on behalf
of persons who allegedly purchased the Company's stock between
February 5, 2007 and August 19, 2008. On December 11, 2008, these
lawsuits were consolidated into a single action entitled Backe v.
Novatel Wireless, Inc., et al., Case No. 08-CV-01689-H (RBB)
(Consolidated with Case No. 08-CV-01714-H (RBB)) (U.S.D.C., S.D.
Cal.). In May 2010, the district court re-captioned the case In
re Novatel Wireless Securities Litigation. The plaintiffs filed
the consolidated complaint on behalf of persons who allegedly
purchased Novatel Wireless stock between February 27, 2007 and
November 10, 2008. The consolidated complaint names the Company
and certain of its current and former officers as defendants. The
consolidated complaint alleges generally that the defendants
issued materially false and misleading statements during the
relevant time period regarding the strength of the Company's
products and market share, the Company's financial results and the
Company's internal controls. The plaintiffs are seeking an
unspecified amount of damages and costs. The court has denied
defendants' motions to dismiss. In May 2010, the court entered an
order granting the plaintiffs' motion for class certification and
certified a class of purchasers of the Company's common stock
between February 27, 2007 and September 15, 2008. On February 14,
2011, following extensive discovery, the defendants filed a motion
for summary judgment on all of plaintiffs' claims. The motion was
set for hearing on March 21, 2011. The court has set a trial date
of May 10, 2011.
The Company intends to defend the litigation vigorously.
Novatel is a provider of wireless broadband access solutions for
the worldwide mobile communications market. Its broad range of
products principally includes intelligent mobile hotspots, USB
modems, embedded PCI and wireless PC-card modems, and
communications and applications software.
NOVELL INC: Faces 14 Actions Over Merger With Attachmate
--------------------------------------------------------
As of March 4, 2011, Novell, Inc., and other defendants are facing
14 actions in connection with the Company's proposed merger with
Attachmate Corporation, according to the Company's March 14, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended January 31, 2011.
In November and December 2010, individuals and entities claiming
to be the Company's stockholders filed putative class action
lawsuits challenging its pending merger with Attachmate
Corporation. As of March 4, 2011, fourteen actions had been filed
in the Delaware Court of Chancery (which have been consolidated by
Court order), one action had been filed in the Superior Court of
Massachusetts, and four actions had been filed in the United
States District Court for the District of Massachusetts. Two of
the four actions that were filed in the United States District
Court for the District of Massachusetts were voluntarily dismissed
by the plaintiffs. The consolidated Delaware action and the
pending Massachusetts actions are brought against the members of
the Company's Board of Directors, and all but one of the actions
also name the Company as a defendant. In addition: (i) all of the
actions name Attachmate as a defendant; (ii) three of the actions
name Merger Sub as a defendant; (iii) two actions name CPTN
Holdings LLC as a defendant; and (iv) one action names Microsoft
and Elliott Associates, L.P. as defendants.
The plaintiffs allege, among other things, that the Company's
directors failed to fulfill their fiduciary duties with regard to
the Company's pending merger with Attachmate by failing to
maximize the Company's value to its public stockholders and that
the entities named in the complaints aided and abetted those
alleged breaches. Three of the pending actions also allege, among
other things, that the Company's directors failed to fulfill their
fiduciary duties with regard to the pending patent sale to CPTN.
The plaintiffs seek orders that, among other things, certify the
cases as class actions, enjoin the merger with Attachmate and/or
award plaintiffs and the putative class damages in the event that
the Company's merger with Attachmate is consummated, and award
plaintiffs costs and expenses, including attorneys' fees.
The Company believes that there are substantial legal and factual
defenses to the claims and intend to pursue them vigorously.
While there can be no assurance as to the ultimate disposition of
the litigation, the Company does not believe that its resolution
will have a material adverse effect on its consolidated financial
position, results of operations or cash flows.
NVIDIA CORP: Enforcement Motion in GPU Suit to be Heard March 28
----------------------------------------------------------------
A California federal court is set to consider a motion to enforce
a class settlement in the GPU class action complaint against
NVIDIA Corporation on March 28, 2011, according to the Company's
March 16, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
In September, October and November 2008, several putative consumer
class action lawsuits were filed against NVIDIA, asserting various
claims arising from a weak die/packaging material set in certain
versions of the Company's previous generation products used in
notebook configurations. Most of the lawsuits were filed in
Federal Court in the Northern District of California, but three
were filed in state court in California, in Federal Court in New
York and in Federal Court in Texas. Those three actions have
since been removed or transferred to the United States District
Court for the Northern District of California, San Jose Division,
where all of the actions now are currently pending. The various
lawsuits are titled Nakash v. NVIDIA Corp., Feinstein v. NVIDIA
Corp., Inicom Networks, Inc. v. NVIDIA Corp. and Dell, Inc. and
Hewlett Packard, Olivos v. NVIDIA Corp., Dell, Inc. and Hewlett
Packard, Sielicki v. NVIDIA Corp. and Dell, Inc., Cormier v.
NVIDIA Corp., National Business Officers Association, Inc. v.
NVIDIA Corp., and West v. NVIDIA Corp. The First Amended
Complaint was filed on October 27, 2008, which no longer asserted
claims against Dell, Inc. The various complaints assert claims
for, among other things, breach of warranty, violations of the
Consumer Legal Remedies Act, Business & Professions Code sections
17200 and 17500 and other consumer protection statutes under the
laws of various jurisdictions, unjust enrichment and strict
liability.
The District Court has entered orders deeming all of the cases
related under the relevant local rules. On December 11, 2008,
NVIDIA filed a motion to consolidate all of the consumer class
action cases. On February 26, 2009, the District Court
consolidated the cases, as well as two other cases pending against
Hewlett Packard, under the caption "The NVIDIA GPU Litigation" and
ordered the plaintiffs to file lead counsel motions by March 2,
2009. On March 2, 2009, several of the parties filed motions for
appointment of lead counsel and briefs addressing certain related
issues. On April 10, 2009, the District Court appointed Milberg
LLP lead counsel. On May 6, 2009, the plaintiffs filed an Amended
Consolidated Complaint, alleging claims for violations of
California Business and Professions Code Section 17200, Breach of
Implied Warranty under California Civil Code Section 1792, Breach
of the Implied Warranty of Merchantability under the laws of 27
other states, Breach of Warranty under the Magnuson-Moss Warranty
Act, Unjust Enrichment, violations of the New Jersey Consumer
Fraud Act, Strict Liability and Negligence, and violation of
California's Consumer Legal Remedies Act.
On August 19, 2009, NVIDIA filed a motion to dismiss the Amended
Consolidated Complaint, and the Court heard arguments on that
motion on October 19, 2009. On November 19, 2009, the Court
issued an order dismissing with prejudice plaintiffs causes of
action for Breach of the Implied Warranty under the laws of 27
other states and unjust enrichment, dismissing with leave to amend
plaintiffs' causes of action for Breach of Implied Warranty under
California Civil Code Section 1792 and Breach of Warranty under
the Magnuson-Moss Warranty Act, and denying NVIDIA's motion to
dismiss as to the other causes of action. The Court gave
plaintiffs until December 14, 2009 to file an amended complaint.
On December 14, 2009, plaintiffs filed a Second Amended
Consolidated Complaint, asserting claims for violations of
California Business and Professions Code Section 17200, Breach of
Implied Warranty under California Civil Code Section 1792, Breach
of Warranty under the Magnuson-Moss Warranty Act, violations of
the New Jersey Consumer Fraud Act, Strict Liability and
Negligence, and violation of California's Consumer Legal Remedies
Act. The Second Amended Complaint seeks unspecified damages. On
January 19, 2010, NVIDIA filed a motion to dismiss the Breach of
Implied Warranty under California Civil Code Section 1792, Breach
of Warranty under the Magnuson-Moss Warranty Act, and California's
Consumer Legal Remedies Act claims in the Second Amended
Consolidated Complaint. In addition, on April 1, 2010, Plaintiffs
filed a motion to certify a class consisting of all people who
purchased computers containing certain of NVIDIA's MCP and GPU
products. On May 3, 2010, NVIDIA filed an opposition to
Plaintiffs' motion for class certification. A hearing on both
motions was held on June 14, 2010. On July 16, 2010, the parties
filed a stipulation with the District Court advising that,
following mediation, they had reached a settlement in principle in
The NVIDIA GPU Litigation. The settlement in principle was
subject to certain approvals, including final approval by the
court. As a result of the settlement in principle, and the other
estimated settlement and offsetting insurance reimbursements,
NVIDIA recorded a net charge of $12.7 million to sales, general
and administrative expense during the second quarter of fiscal
year 2011. In addition, a portion of the $181.2 million of
additional charges the Company recorded against cost of revenue
related to the weak die/packaging set during the second quarter of
fiscal year 2011 relates to estimated additional repair and
replacement costs related to the implementation of these
settlements. On August 12, 2010, the parties executed a
Stipulation and Agreement of Settlement and Release. On September
15, 2010, the Court issued an order granting preliminary approval
of the settlement and providing for notice to the potential class
members. The Final Approval Hearing was held on December 20,
2010, and on that same day the Court approved the settlement and
entered Final Judgment over several objections. In January 2011,
several objectors filed Notices of Appeal of the Final Judgment to
the United States Court of Appeals for the Ninth Circuit.
On February 28, 2011, a group of purported class members filed a
motion with the District Court purporting to seek enforcement of
the settlement. The Motion claimed that NVIDIA was not properly
complying with its obligations under the settlement in connection
with the remedies provided to purchasers of Hewlett-Packard
computers included in the settlement. On March 4, 2011, NVIDIA
and Class Counsel at Milberg LLP filed oppositions to the Motion.
A hearing is scheduled for March 28, 2011.
NVIDIA invented the graphics processing unit, or GPU, in 1999.
Since then, it has strived to set new standards in visual
computing with interactive graphics available on devices ranging
from tablets and smart phones to notebooks and workstations.
NVIDIA CORP: Awaits Ruling on Motion to Dismiss Securities Suit
---------------------------------------------------------------
NVIDIA Corporation is awaiting a court ruling on its motion to
dismiss a second amended consolidated securities class action
complaint, the Company disclosed in its March 16, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010.
In September 2008, three putative securities class actions, or the
Actions, were filed in the United States District Court for the
Northern District of California arising out of the Company's
announcements on July 2, 2008, that it would take a charge against
cost of revenue to cover anticipated costs and expenses arising
from a weak die/packaging material set in certain versions of the
Company's previous generation MCP and GPU products and that the
Company was revising financial guidance for its second quarter of
fiscal year 2009. The Actions purport to be brought on behalf of
purchasers of NVIDIA stock and assert claims for violations of
Sections 10(b) and 20(a) of the Exchange Act. On October 30,
2008, the Actions were consolidated under the caption In re NVIDIA
Corporation Securities Litigation, Civil Action No. 08-CV-04260-JW
(HRL). Lead Plaintiffs and Lead Plaintiffs' Counsel were
appointed on December 23, 2008. On February 6, 2009, co-Lead
Plaintiff filed a Writ of Mandamus with the Ninth Circuit Court of
Appeals challenging the designation of co-Lead Plaintiffs'
Counsel. On February 19, 2009, co-Lead Plaintiff filed with the
District Court a motion to stay the District Court proceedings
pending resolution of the Writ of Mandamus by the Ninth Circuit.
On February 24, 2009, Judge Ware granted the stay. On November 5,
2009, the Court of Appeals issued an opinion reversing the
District Court's appointment of one of the lead plaintiffs'
counsel, and remanding the matter for further proceedings. On
December 8, 2009, the District Court appointed Milberg LLP and
Kahn Swick & Foti, LLC as co-lead counsel. On January 22, 2010,
Plaintiffs filed a Consolidated Amended Class Action Complaint for
Violations of the Federal Securities Laws, asserting claims for
violations of Section 10(b), Rule 10b-5 and Section 20(a) of the
Exchange Act. The consolidated complaint sought unspecified
compensatory damages. NVIDIA filed a motion to dismiss the
consolidated complaint in March 2010 and a hearing was held on
June 24, 2010 before Judge Seeborg. On October 19, 2010, Judge
Seeborg granted the Company' motion to dismiss with leave to
amend. On
December 2, 2010, co-Lead Plaintiffs filed a Second Consolidated
Amended Complaint and NVIDIA filed a motion to dismiss on
February 14, 2011.
NVIDIA invented the graphics processing unit, or GPU, in 1999.
Since then, it has strived to set new standards in visual
computing with interactive graphics available on devices ranging
from tablets and smart phones to notebooks and workstations.
PACIFIC SEAFOOD: Charges Against Three Defendants Dismissed
-----------------------------------------------------------
Dee Moore at Courthouse News Service reports that a federal judge
dismissed three proposed defendants from a class action that
claims the country's largest seafood processor uses
anticompetitive tactics to hurt independent fishermen, but claims
against dozens of other defendants can proceed to a trial set for
next year.
The original 2008 complaint filed by Lloyd Whatley and his son,
Todd, accuses Pacific Seafood Group and its 54 subsidiaries of
price fixing and cornering the West Coast market on Dungeness
crab, shrimp, ground and whiting fish since 2005.
To drive down the prices that local commercial fishermen can get
for their catch, Pacific Seafood has conspired with Ocean Gold, a
large Westport, Wash.-based whiting processor, the Whatleys claim.
U.S. District Judge Owen Panner ruled on March 15 that the lawsuit
could proceed over the companies' objection that the Whatleys had
failed to state a claim. He also ruled to dismiss the charges
against three Ocean Gold subsidiaries, Ocean Protein, Ocean Gold
Transport and Ocean Cold.
The decision comes on the heels of a ruling last month that the
Whatleys, fishermen based in Brookings, Ore., were not entitled to
an injunction that would prohibit the seafood processors from
communicating with each other about what they pay fishermen for
their products.
Although the Whatleys claim that Pacific Seafood and Ocean Gold
has been suppressing competition in the Pacific coast fish
markets, Judge Panner ruled that a 2006 agreement between the
companies is evidence that shows the processors' combined
operations have expanded the whiting market.
The other fish markets could not be substantially affected since
Ocean Gold has "little or no share" of those areas, Judge Panner
wrote on Feb. 28.
He added that the Whatleys could not get an injunction because
they failed to prove that they were being hurt by price-fixing,
while Pacific Seafood and Ocean Gold showed that an injunction
would hurt their business.
The men are seeking $520 million in damages and injunctions
against the company.
A copy of the Order in Whaley, et al. v. Pacific Seafood Group, et
al., Case No. 10-03057 (D. Or.), is available at:
http://www.courthousenews.com/2011/03/17/fisherman%20ruling.pdf
The Plaintiffs are represented by:
Michael Haglund, Esq.
HAGLUND KELLEY HORNGREN JONES & WILDER LLP
200 SW Market St #1777
Portland, OR 97201
Telephone: (503) 225-0777
E-mail: haglund@hk-law.com
PHI INC: Motion for Summary Judgment Still Pending in Delaware
--------------------------------------------------------------
PHI Inc. and other defendants' motion for summary judgment in a
purported class action in Delaware remains pending, according to
the Company's March 14, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
Superior Offshore International Inc. v. Bristow Group Inc., ERA
Helicopters, LLC, Seacor Holdings Inc., ERA Group Inc., ERA
Aviation, Inc., and PHI, Inc., Civil Action No. 1:09-cv-00438 on
the docket of the United States District Court for the District of
Delaware. This purported class action was filed on June 12, 2009,
on behalf of a class defined to include all direct purchasers of
offshore helicopter services in the Gulf of Mexico from the
defendants at any time from January 1, 2001, through December 31,
2005. The suit alleged that the defendants acted jointly to fix,
maintain, or stabilize prices for offshore helicopter services
during the time frame in violation of the federal antitrust laws.
The plaintiff sought unspecified treble damages, injunctive
relief, costs, and attorneys' fees. On September 14, 2010, the
Court granted defendants' motion to dismiss (filed on September 4,
2009) and dismissed the complaint. On November 30, 2010, the
court granted plaintiff leave to amend the complaint, limited
discovery to the new allegations, and established a schedule for
briefing dispositive motions in February 2011. The permitted
discovery is now complete, and defendants filed a motion for
summary judgment on February 11, 2011.
The Company's management says it is unable to estimate a range of
reasonably possible loss for the case because a dispositive motion
is pending, and discovery relating to potential damages has not
commenced.
PORNOGRARPHY DOWNLOADERS: EFF Seeks Dismissal of Class Action
-------------------------------------------------------------
The Electronic Frontier Foundation has asked an Illinois judge to
quash subpoenas issued in a "reverse class action" lawsuit
accusing thousands of people of illegally downloading pornography,
and urged the court to dismiss the case. In a friend of the court
brief filed on March 15, EFF argued that the plaintiff's "class
action" strategy is an improper attempt to sidestep the rights of
the defendants.
EFF has been involved in a number of copyright troll cases where
content owners and lawyers team up to try to obtain the identities
of thousands of anonymous alleged file sharers at once in order to
extract settlements from them. In response, judges across the
country have been cracking down on such abusive strategies.
Thousands of unnamed "John Does" targeted in lawsuits filed in
California, Washington D.C., Texas, and West Virginia have been
severed, effectively dismissing over 40,000 defendants. These
rulings may have a significant impact on this misguided business
model, which relies on being able to sue thousands of Does at once
with a minimum of administrative expense.
In this case, OpenMind Solutions v. Does, the plaintiff has taken
a new approach: calling its complaint a "class action" lawsuit
against the alleged infringers. Normally a class action is used
by a group of plaintiffs with similar complaints of a single
defendant -- not a single plaintiff targeting thousand of
defendants with no attorney in place to defend the rights of the
accused. OpenMind then asked the court for permission to issue
subpoenas seeking identifying information for the Does, which was
granted without the opportunity for anyone to speak on the unknown
defendants' behalf.
"There is a short window here, before the defendants' identities
are disclosed, in which the court can ensure that these
individuals are treated fairly and justly," said EFF Senior Staff
Attorney Matt Zimmerman. "The class action process was never
intended to be used this way. We're asking the court to call a
halt to the gamesmanship from OpenMind Solutions."
"When adult film companies file predatory lawsuits, there is the
added embarrassment associated with pornography, which can
convince people to quickly pay what's demanded of them even if
they have legitimate defenses," said EFF Intellectual Property
Director Corynne McSherry. "We hope the court takes immediate
steps to restore fairness to this process."
Charles Lee Mudd Jr. and Mark Petrolis of Mudd Law Offices
assisted EFF with the filing of this brief.
A copy of the full amicus brief is available at:
http://is.gd/S4eb1A
UNITED STATES: Oklahomans to Get Cobell Settlement Payments
-----------------------------------------------------------
Wayne Greene, writing for Tulsa World, reports that a proposed
settlement to a massive federal class-action lawsuit alleging
mismanagement of American Indian trust assets could mean tax-free
payments of millions of dollars to Oklahomans -- some of whom may
be unaware of the case or the money awaiting them.
More than half a million American Indians in the western half of
the United States -- including about 35,000 in Oklahoma -- would
be eligible for payments under the proposed settlement of the 1996
federal class-action lawsuit, which attorney Keith Harper said was
the largest settlement against the U.S. government ever.
But, he pointed out, the settlement deals with more than a century
of gross government mismanagement of Indian assets.
"There is a temptation to say it is not enough," Mr. Harper said.
The settlement falls short of compensating every Indian fully, but
it is a fair settlement in light of what is achievable in the
case, he said. The settlement is larger than all previous Indian
case judgments and settlements in U.S. history combined, he said.
Attorneys in the so-called Cobell settlement spoke to more than
100 people at the March 16 meeting at the Creek Community Building
in Tulsa.
The meeting was one of a series taking place in almost every state
west of the Mississippi River as attorneys try to reach as many
plaintiffs as possible.
Most of the potential beneficiaries of the case would receive much
smaller payments, but some people have very big paydays awaiting
them if the settlement is completed, Geoffrey Rempel, an
accountant for the case's lead plaintiff, said in a telephone
interview.
Members of the Osage Nation who have individual Indian money
accounts with the federal government are among those eligible for
some of the biggest settlement amounts, he said.
The 1996 federal class-action lawsuit, filed by Elouise Cobell, a
member of the Blackfeet tribe, alleges that the government
mismanaged American Indian assets -- including land, oil, natural
gas, timber and grazing -- for decades, resulting in the loss of
billions of dollars.
After years of litigation, a federal judge gave preliminary
approval to a $3.4 billion settlement on Dec. 21.
Only people with Individual Indian Money accounts with the federal
government are eligible for settlement money.
The settlement puts account holders in two groups: the historical
accounting class -- those who had an open account with the federal
government between Oct. 25, 1994, and Sept. 30, 2009, and whose
account had at least one cash transaction; and the trust
administration class -- those who had an account recorded in
federal data between 1985 and Sept. 30, 2009.
Account holders or their heirs can be included in either or both
classes.
Each member of the historical accounting class will receive
$1,000, and each member of the trust administration class will
receive about $800, but people who have had a great deal of money
in their accounts for a long time can qualify for much more.
A Web site associated with the settlement shows examples of
settlements that could go as high as $125,000, but Mr. Rempel said
settlements could go much higher, especially for people whose
trust accounts included management of petroleum assets.
Mr. Harper told those gathered on March 16 that the payments would
be tax-free and could not be used in deciding eligibility for any
federal aid programs.
If the settlement receives final approval in federal court, the
$1,000 payments to historical accounting class members will begin
as soon as September. Payments in the trust administration class
will be distributed after the court is satisfied that most of the
class members have been identified and their payments have been
calculated.
Leonard Maker, an Osage Indian from Hominy, congratulated Harper
and lead plaintiff Cobell, who was not present. "It's a great
victory for us," Mr. Maker said.
Others at the meeting objected that the amount of the settlement
was too low to compensate for more than a century of government
mismanagement. Others were concerned that attorneys' fees would be
too high.
Mr. Harper said the judge in the case would set the attorneys'
fees but that the contingency fee with plaintiffs called for 14.75
percent of a $1.5 billion portion of the settlement.
People who are not satisfied with their settlements or the fees
can write their objections to the court or opt out of the
agreement, Mr. Harper said.
RADIENT PHARMA: Retains DLA Piper as Class Action Counsel
---------------------------------------------------------
Radient Pharmaceuticals Corporation on March 17 disclosed that it
has retained law firm DLA Piper to represent the Company in a
class action suit filed 2011 by The Rosen Law Firm, P.A. on
March 11, alleging RPC has violated federal securities laws by
misrepresenting the relationship of RPC with third parties in the
Company's clinical studies of its Onko-Sure(R) in vitro diagnostic
cancer test. The Company has been fully transparent in its
relationship with third parties not only in its press releases but
also by having attached the actual agreement defining the precise
nature of that relationship in its public filings. Any claims to
the contrary are meritless. DLA Piper will be defending the
Company in the above suit.
The Company stated there is no basis to the suit filed by The
Rosen Law Firm and it intends to vigorously defend against the
class action suit. Furthermore, it intends to seek action against
various parties who have spread false, misleading and malicious
rumors against Radient Pharmaceuticals, its business, and business
practices.
Radient Pharmaceuticals Executive Chairman and CEO Douglas
MacLellan commented, "RPC is determined to create and protect
shareholder value and we have tasked DLA Piper's counsel to
aggressively explore every option available to the Company in
response to the above mentioned situations. We remain confident
in the Company and believe RPC is in a solid position to build and
grow the business on behalf of loyal shareholders."
For additional information on Radient Pharmaceuticals Corporation
and its products visit: http://www.radient-pharma.com/or send
e-mail to info@radient-pharma.com
For Investor Relations contact Kristine Szarkowitz at
IR@RadientPharma.com or 1.206.310.5323.
Headquartered in Tustin, California, Radient Pharmaceuticals --
http://www.radient-pharma.com/-- is dedicated to saving lives and
money for patients and global healthcare systems through the
deployment of its FDA-cleared In Vitro Diagnostic Onko-Sure(R)
Test Kits for colon-rectal cancer recurrence monitoring. The
company's focus is on the discovery, development and
commercialization of unique high-value diagnostic tests that help
physicians answer important clinical questions related to early
disease-state detection, treatment strategy, and the monitoring of
disease progression or recurrence.
RADIO ONE: Continues to Defend Appeals in IPO Securities Suit
-------------------------------------------------------------
Radio One, Inc., continues to defend itself against appeals
asserted against a court's final approval of a class settlement in
a consolidated securities litigation.
In November 2001, Radio One and certain of its officers and
directors were named as defendants in a class action shareholder
complaint filed in the United States District Court for the
Southern District of New York, captioned, In re Radio One, Inc.
Initial Public Offering Securities Litigation, Case No. 01-CV-
10160. Similar complaints were filed in the same court against
hundreds of other public companies that conducted initial public
offerings of their common stock in the late 1990s ("the IPO
Cases"). In the complaint filed against Radio One, as amended,
the plaintiffs claimed that Radio One, certain of its officers and
directors, and the underwriters of certain of its public offerings
violated Section 11 of the Securities Act. The plaintiffs' claim
was based on allegations that Radio One's registration statement
and prospectus failed to disclose material facts regarding the
compensation to be received by the underwriters, and the stock
allocation practices of the underwriters. The complaint also
contains a claim for violation of Section 10(b) of the Securities
Exchange Act of 1934 based on allegations that these omissions
constituted a deceit on investors. The plaintiffs seek
unspecified monetary damages and other relief.
In July 2002, Radio One joined in a global motion, filed by the
IPO Issuers, to dismiss the IPO Lawsuits. In October 2002, the
court entered an order dismissing the Company's named officers and
directors from the IPO Lawsuits without prejudice, pursuant to an
agreement tolling the statute of limitations with respect to Radio
One's officers and directors until September 30, 2003. In
February 2003, the court issued a decision denying the motion to
dismiss the Section 11 and Section 10(b) claims against Radio One
and most of the Issuers.
In July 2003, a Special Litigation Committee of Radio One's board
of directors approved in principle a tentative settlement with the
plaintiffs. The proposed settlement would have provided for the
dismissal with prejudice of all claims against the participating
Issuers and their officers and directors in the IPO Cases and the
assignment to plaintiffs of certain potential claims that the
Issuers may have against their underwriters. In September 2003,
in connection with the proposed settlement, Radio One's named
officers and directors extended the tolling agreement so that it
would not expire prior to any settlement being finalized. In June
2004, Radio One executed a final settlement agreement with the
plaintiffs. In 2005, the court issued a decision certifying a
class action for settlement purposes and granting preliminary
approval of the settlement. On February 24, 2006, the court
dismissed litigation filed against certain underwriters in
connection with the claims to be assigned to the plaintiffs under
the settlement. On April 24, 2006, the court held a Final
Fairness Hearing to determine whether to grant final approval of
the settlement. On December 5, 2006, the Second Circuit Court of
Appeals vacated the district court's earlier decision certifying
as class actions the six IPO Cases designated as "focus cases."
Thereafter, the district court ordered a stay of all proceedings
in all of the IPO Cases pending the outcome of plaintiffs'
petition to the Second Circuit for rehearing en banc and
resolution of the class certification issue. On April 6, 2007,
the Second Circuit denied plaintiffs' rehearing petition, but
clarified that the plaintiffs may seek to certify a more limited
class in the district court. Accordingly, the settlement was
terminated pursuant to stipulation of the parties and did not
receive final approval.
Plaintiffs filed amended complaints in the six "focus cases" on or
about August 14, 2007. Radio One is not a defendant in the focus
cases. In September 2007, Radio One's named officers and
directors again extended the tolling agreement with plaintiffs.
On or about September 27, 2007, plaintiffs moved to certify the
classes alleged in the "focus cases" and to appoint class
representatives and class counsel in those cases. The focus cases
issuers filed motions to dismiss the claims against them in
November 2007 and an opposition to plaintiffs' motion for the
class certification in December 2007. On March 16, 2008, the
district court denied the motions to dismiss in the focus cases.
In August 2008, the parties to the IPO Cases began mediation
toward a global settlement of the IPO Cases. In September 2008,
Radio One's board of directors approved in principle participation
in a tentative settlement with the plaintiffs. On October 2,
2008, the plaintiffs withdrew their class certification motion.
In April 2009, a global settlement was reached in the IPO Cases
and submitted to the district court for approval. On June 9,
2009, the court granted preliminary approval of the proposed
settlement and ordered that notice of the settlement be published
and mailed to class members. On September 10, 2009, the court
held a Final Fairness Hearing. On October 6, 2009, the court
certified the settlement class in each IPO Case and granted final
approval of the settlement. On or about October 23, 2009, three
shareholders filed a Petition for Permission To Appeal Class
Certification Order, challenging the court's certification of the
settlement classes. Beginning on October 29, 2009, a number of
shareholders also filed direct appeals, objecting to final
approval of the settlement. If the settlement is affirmed on
appeal, the settlement will result in the dismissal of all claims
against Radio One and its officers and directors with prejudice,
and the Company's pro rata share of the settlement fund will be
fully funded by insurance.
No updates were reported in the Company's March 16, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2010.
Radio One is an urban-oriented, multi-media company that primarily
targets African-American consumers. Its core business is its
radio broadcasting franchise that is the largest broadcasting
operation in the United States that primarily targets African-
American and urban listeners. It currently own 53 broadcast
stations located in 16 urban markets in the United States.
REDBOX: Class Action Over Late Fee Charges Pending
--------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
that no action has taken place in a St. Clair County proposed
class action over late fees charged by the owner of Redbox DVD
rental kiosks since January.
Laurie Piechur is the lead plaintiff who claims she and other
Redbox customers were charged allegedly illegal fees for keeping
DVDs past a scheduled drop-off time.
The last action in Piechur's case came when attorney Jeffrey
Millar and his Missouri law firm, the Millar Law Firm, became
plaintiff's counsel Jan. 21.
The Millar firm substituted the Glen Carbon firm of Saville and
Flint.
Millar had previously been with Saville and Flint.
Before that, Millar was part of the firm Brent Coon & Associates
which had entered an appearance in the case.
That firm bowed out of the suit in 2010.
If certified, the Piechur class could be a nationwide class.
The suit currently seeks damages in excess of $350,000 and other
relief.
Redbox denies that the fees it charged were illegal.
It has tried to have the suit thrown out, without success.
Thomas and Peter Maag are also part of the Piechur legal team.
Robert Sprague, Eric Brandfonbrener and others represent Redbox.
The Piechur suit was filed in 2009.
The case is St. Clair case number 09-L-562.
SANFORD BROWN: Class Action Pending in Appellate Court
------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
that there has been no action in a class action brought against
the Collinsville campus of Sanford Brown Colleges by former
students who claim that the school did not deliver on promises
about their degree and future career path.
The last action in the suit brought by Jenna and Jessica Lilley on
behalf of just over 2,000 students at the school's Collinsville
site was Feb. 11.
That action was an order by the Fifth District Appellate Court in
Mount Vernon that granted Sanford Brown and its parent company,
Career Education Corporation, leave to appeal.
It denied them the leave to file a reply.
Sanford Brown is fighting class certification granted to the
Lilley class in December 2010 by then-Madison County Circuit Judge
Daniel Stack.
Judge Stack certified the class on claims that the colleges
violated the Illinois Private Business and Vocational Schools Act.
The judge had previously thrown out fraud counts contained in the
Lilley complaint.
The plaintiffs claim they and other students were misled about the
value of a medical assistant's degree from the school, how it
would transfer to traditional colleges and what careers it would
lead to.
Sanford Brown had argued that the plaintiffs were attempting to
argue "educational malpractice," an issue not covered by Illinois
law and that their complaints lacked causation.
Plaintiffs counsel John Carey had argued that the school had given
the class members "a worthless piece of paper," in hearings
leading up to the class certification order.
The suit is one of several that have been filed against Sanford
Brown in recent years.
The St. Louis firm of Carey & Danis LLC and the Klamann Law Firm
of Kansas City are designated as class counsel in the order.
The Klamann firm has played a role in several similar individual
suits against Sanford Brown in Missouri.
James Monafo, John Richmond and others represent Sanford Brown and
Career Education Corp.
Judge Stack retired last year.
Madison County Circuit Judge William Mudge now presides.
The case is Madison case number 08-L-113.
SD-3C LLC: Accused of Conspiring to Fix Prices for SD Cards
-----------------------------------------------------------
Dr. Dan Oliver and Jeannie Oliver, on behalf of themselves and
others similarly situated v. SD-3C LLC, et al., Case No.
11-cv-01260 (N.D. Calif. March 15, 2011), accuse all defendants of
conspiring to fix or inflate prices for SD Cards, SD Card
Intellectual Property, and NAND Flash Memory Card Intellectual
Property in the United States and in the State of California among
other places, in violation of Sections 1 & 2 of the Sherman Act.
According to the plaintiffs, these acts harmed competition in the
relevant markets. Plaintiffs were harmed because costs were in
whole or in part passed on to them and other consumers.
Plaintiffs allege that the defendants conspired and combined to
charge multiple royalties on the same royalty base and fixed the
cost bases of the royalties charged.
Plaintiffs, Dr. Dan Oliver and Ms. Jeannie Oliver, are residents
of California who have purchased SD Cards for end use and not for
resale at retail outlets in California, Hawaii, Nevada, and
Arizona, among other places. In doing so they indirectly
purchased during the Class Period SD Cards, SD Card Intellectual
Property, and NAND Flash Card Intellectual Property from
one or more of the Panasonic, Toshiba, SanDisk and/or the SD-3C
LLC defendants.
Defendant SD-3C LLC is a Delaware limited liability company with
its principal place of business at 180 Montgomery Street, Suite
1840, in San Francisco, California. SD-3C is a combination of
Panasonic, Toshiba, and SanDisk, and acts on their behalf in
licensing essential utility patents individually owned by each of
them, essential design patents jointly owned by the three of them,
design patents owned by SanDisk, and copyrights and trademarks
owned by the SD-3C, for making SD Cards, and by extension NAND
Flash Memory Cards, from its offices in San Francisco.
The Plaintiffs are represented by:
Max L. Tribble Jr.
Joseph S. Grinstein
Eric J. Mayer
SUSMAN GODFREY L.L.P.
1000 Louisiana, Suite 5100
Houston, TX 77002-5096
Telephone: (713) 651-9366
E-mail: mtribble@susmangodfrev.com
jgrinste@susmangodfrey.com
emayerf@susmangodfrev.com
- and -
David J. Healey
Ana E. Kadala
FISH & RICHARDSON P.C.
One Houston Center, Suite 2800
1221 McKinney St.
Houston, TX 77010
Telephone: (713) 654-5300
E-mail: healey@fr.com
kadala@fr.com
- and -
Michael J. Kane, Esq.
FISH & RICHARDSON P.C.
3200 RBC Plaza
60 South Sixth Street
Minneapolis, MN 55402
Telephone: (612) 335-5070
E-mail: kane@fr.com
- and -
Jay P. Smith III, Esq.
FISH & RICHARDSON P.C.
1180 Peachtree Street NE, 21st Floor
Atlanta, GA 30309
Telephone: (404) 892-5005
E-mail: jay.smith@fr.com
- and -
John M. Farrell, Esq.
FISH & RICHARDSON P.C.
500 Arguello Street, Suite 500
Redwood City, CA 94063
Telephone: (650) 839-5070
E-mail: jfarrell@fr.com
SILVERLEAF RESORTS: Being Sold to Cerberus for Too Little
---------------------------------------------------------
Courthouse News Service reports that shareholders claim directors
of Silverleaf Resorts are selling the company too cheaply through
an unfair process to Cerberus Capital Management, for $2.50 a
share or $94.4 million.
A copy of the Complaint in Dias v. Mead, et al., Case No. DC-11-
03187 (Tex. Dist. Ct., Dallas Cty.), is available at:
http://www.courthousenews.com/2011/03/17/SCA.pdf
The Plaintiff is represented by:
Gregory Jones, Esq.
Craig D. Dillard, Esq.
BOYAR MILLER
4265 San Felipe, Suite 1200
Houston, TX 77027
Telephone: 713-850-7766
E-mail: gjones@boyarmiller.com
- and -
Douglas G. Thompson, Esq.
Richard M. Volin, Esq.
Thomas M. Gottschlich, Esq.
FINKELSTEIN THOMPSON LLP
1050 30th Street, NW
Washington, DC 20007
Telephone: (202) 337-8000
E-mail: dthompson@finkelsteinthompson.com
SOLTA MEDICAL: Aesthera's Motion to Settle Suit Still Pending
-------------------------------------------------------------
A motion for certification of a settlement class and preliminary
approval of an agreement to settle a class action complaint
against Aesthera Corporation remains pending, according to Solta
Medical Inc.'s March 16, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On December 4, 2009, Aesthera was served with a class action
complaint filed in the United States District Court for the
District of Connecticut alleging that Aesthera caused unsolicited
fax advertisements to be sent to the plaintiffs in violation of
the Telephone Consumer Protection Act, or TCPA, and Connecticut
state law. The complaint purports to be filed on behalf of a
class, and it alleges that Aesthera caused unsolicited fax
advertisements to be sent from August 1, 2006 through the present.
Plaintiffs seek statutory damages under the TCPA and Connecticut
state law, attorneys' fees and costs of the action, and an
injunction to prevent any future violations.
The Company acquired Aesthera Corporation in February 2010.
In May 2010, the parties reached an agreement in principle to
settle the matter on a class-wide basis by consenting to
certification of a settlement class to receive payment out of a
settlement fund. On November 5, 2010, the plaintiffs filed an
unopposed motion for certification of a settlement class and for
preliminary approval of the parties' settlement. Discovery in this
action has been stayed since May 6, 2010, and on December 9, 2010,
the Court extended that stay until March 9, 2011 so as to permit
itself "an opportunity to review and rule upon plaintiffs' pending
motion." The Court has not yet taken any action on that unopposed
motion. If the process does not result in approval of a
settlement, then Company anticipates that the parties will engage
in discovery and that Aesthera will vigorously oppose
certification of a class. Solta Medical believes that it has
meritorious defenses in this action and intend to defend the
action vigorously if the proposed settlement is not approved by
the Court. It does not believe the final disposition of this
action will have a material adverse effect on its financial
statements and future cash flows.
SPECTRANETICS CORP: Awaits Final Order in Securities Suit
---------------------------------------------------------
The Spectranetics Corporation is awaiting the entry of a written
order approving its settlement with plaintiffs of a consolidated
class action lawsuit, according to the Company's March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
Several securities class action lawsuits were filed against the
Company and certain of its executives and directors in 2008. In
2009, these cases were consolidated into one case styled as In re
Spectranetics Corporation Securities Litigation, Case No. 08-2049
in the United States District Court for the District of Colorado,
and a group of investors identified as the Spectranetics Investor
Group was appointed lead plaintiff. On August 4, 2009, the
Spectranetics Investor Group filed its consolidated class action
complaint.
On June 22, 2010, the Company announced that it had agreed in
principle to settle both the securities class action litigation
and the stockholder derivative case. Under the proposed class
action settlement, the claims against Spectranetics and its
officers and directors will be dismissed with prejudice and
released in exchange for a cash payment of $8.5 million to be
funded by Spectranetics' insurers. On September 7, 2010, the
parties submitted a formal Stipulation of Settlement to the court.
The court issued an order preliminarily approving the settlement
and approving the form and manner of notice on September 13, 2010,
and orally indicated at a final approval hearing on January 21,
2011, that it would grant final approval of the settlement as soon
as practicable.
Under the proposed derivative settlement, plaintiffs (on their own
behalf and derivatively on behalf of Spectranetics) will dismiss
the stockholder derivative case with prejudice and release their
claims in exchange for formalizing certain corporate governance
procedures and payment of attorneys fees of $350,000. On
September 16, 2010, the plaintiffs submitted a formal Stipulation
of Settlement to the court. The court issued an order
preliminarily approving the settlement and approving the form and
manner of notice on December 15, 2010, and orally indicated at a
final approval hearing on March 11, 2011, that it would grant
final approval of the settlement as soon as practicable.
The Company and the individual defendants have steadfastly
maintained that the claims raised in the class action litigation
and stockholder derivative case were without merit, and have
vigorously contested those claims. As part of the settlements,
the Company and the individual defendants continue to deny any
liability or wrongdoing under the securities laws.
SPECTRANETICS CORP: "Vagle" Suit Settled and Dismissed
------------------------------------------------------
On May 28, 2010, three stockholders of The Spectranetics
Corporation filed an individual lawsuit in the United States
District Court for the District of Colorado (Vagle et al. v. The
Spectranetics Corp. et al.) asserting various federal and state
claims arising out of the same facts alleged in the securities
class action against Spectranetics and certain of its current and
former officers and directors. The case was dismissed and the
claims against the defendants released in November 2010 in
exchange for a cash payment of $600,000 funded by Spectranetics'
insurers. As part of the settlement, the Company and the
individual defendants continued to deny any liability or
wrongdoing in connection with the claims asserted.
No further updates were reported in the Company's March 14, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
TECUMSEH PRODUCTS: Appeals in Horsepower Label Suits Dismissed
--------------------------------------------------------------
All appeals from the approval of the settlements in the numerous
lawsuits filed against Tecumseh Products Company and other
lawnmower and component manufacturers have been dismissed,
according to the Company's March 14, 2011, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
A nationwide class-action lawsuit filed against the Company and
other defendants (Ronnie Phillips et al v. Sears Roebuck
Corporation et al., No. 04-L-334 (20th Judicial Circuit, St. Clair
County, IL)) alleged that the horsepower labels on the products
the plaintiffs purchased, which included products manufactured by
the Company's former Engine & Power Train business, were
inaccurate. The plaintiffs sought certification of a class of all
persons in the United States who, beginning January 1, 1995,
through the present, purchased a lawnmower containing a two stroke
or four stroke gas combustible engine up to 20 horsepower that was
manufactured by the defendants. On March 30, 2007, the Court
issued an order granting the defendants' motion to dismiss, and on
May 8, 2008, the Court issued an opinion that (i) dismissed all
the claims made under the Racketeer Influenced and Corrupt
Organization Act with prejudice; (ii) dismissed all claims of the
93 non-Illinois plaintiffs with instructions to re-file amended
claims in individual state courts; and (iii) ordered that any
amended complaint for the three Illinois plaintiffs be re-filed by
May 30, 2008. Since that time, eleven plaintiff's firms have
filed 64 class action matters in 48 states, the District of
Columbia and Puerto Rico, asserting claims on behalf of consumers
in each of those jurisdictions with respect to lawnmower purchases
from January 1, 1994 to the present. The Company has joined the
joint defense group with other lawnmower and component
manufacturers who are defendants. In the fourth quarter of 2009,
a conceptual offer by a group of the defendants, including
Tecumseh, of $51 million was accepted in principle with the actual
settlement terms to be negotiated. On February 24, 2010,
Tecumseh, along with the other settling defendants, executed a
settlement agreement with plaintiffs resolving claims against the
group of settling defendants in exchange for a group payment of
$51 million, a one-year warranty extension for qualifying class
members and injunctive relief regarding future lawnmower engine
labeling practices.
On February 26, 2010, the court entered an order preliminarily
approving the group settlement, certifying the settlement class,
appointing settlement class counsel and staying proceedings
against the settling defendants. The settlement class consists of
all persons or entities in the United States who, beginning
January 1, 1994, up to the date when notice of the preliminary
approval was published (April 12, 2010) purchased, for their own
use and not for resale, a lawn mower containing a gas combustible
engine up to 30 horsepower provided that either the lawn mower or
the engine of the lawn mower was manufactured or sold by a
defendant. On August 16, 2010, the District Court entered orders
approving each of the settlements. A number of objectors filed
appeals regarding the settlement approval orders and other related
orders in the United States Court of Appeals for the Seventh
Circuit, but as of February 16, 2011, all of those appeals have
now been dismissed.
As of December 31, 2010, Tecumseh has paid $3.1 million of its
allocable portion of approximately $6.2, and the balance was paid
on March 1, 2011.
TECUMSEH PRODUCTS: Continues to Defend Price-Fixing Suit in Quebec
------------------------------------------------------------------
Tecumseh Products Company continues to defend itself against a
class action lawsuit pending in Quebec, Canada, according to the
Company's March 14, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
On May 3, 2010, a class action was commenced in the Superior Court
of the Province of Quebec by Eric Liverman and Sidney Vadish
against the Company and several other defendants advancing
allegations that defendants conspired to fix prices of lawnmowers
and lawn mower engines in Canada, to lessen competition in
lawnmowers and lawn mower engines in Canada, and to mislabel the
horsepower of lawnmower engines and lawnmowers in violation of the
Canadian Competition Act, civil conspiracy prohibitions and the
Consumer Packaging and Labeling Act. Plaintiffs seek undetermined
money damages, punitive damages, interest, costs, and equitable
relief. Snowstorm Acquisition Corporation and Platinum Equity,
LLC, the purchasers of Tecumseh Power Company and its subsidiaries
and Motoco a.s. in November 2007, have notified the Company that
they claim indemnification with respect to this lawsuit under the
Company's Stock Purchase Agreement with them.
At this time, the Company says it does not have a reasonable
estimate of the amount of the Company's ultimate liability, if
any, or the amount of any potential future settlement, but the
amount could be material to the Company's financial position,
consolidated results of operations and cash flows.
TECUMSEH PRODUCTS: Continues to Defend Compressor Industry Suits
----------------------------------------------------------------
Tecumseh Products Company continues to defend itself from the
numerous lawsuits filed against it in connection with the
compressor industry antitrust investigation, according to the
Company's March 14, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
On February 17, 2009, the Company received a subpoena from the
United States Department of Justice Antitrust Division and a
formal request for information from the Secretariat of Economic
Law of the Ministry of Justice of Brazil (the "SDE") related to
investigations by these authorities into possible anti-competitive
pricing arrangements among certain manufacturers in the compressor
industry. The European Commission began an investigation of the
industry on the same day.
The Company is cooperating fully with these investigations. In
addition, the Company has entered into a conditional amnesty
agreement with the DOJ under the Antitrust Division's Corporate
Leniency Policy. Pursuant to the agreement, the DOJ has agreed to
not bring any criminal prosecution with respect to the
investigation against the Company as long as the Company, among
other things, continue its full cooperation in the investigation.
The Company has received similar conditional immunity from the
European Commission, the SDE, and the competition authorities in
other jurisdictions.
While the Company has taken steps to avoid fines, penalties and
other sanctions as the result of proceedings brought by regulatory
authorities, the amnesty grants do not extend to civil actions
brought by private plaintiffs. The public disclosure of these
investigations has resulted in class action lawsuits filed in
Canada and numerous class action lawsuits filed in the United
States, including by both direct and indirect purchaser groups.
All of the U.S. actions have been transferred to the U.S. District
Court for the Eastern District of Michigan for coordinated or
consolidated pretrial proceedings under Multidistrict Litigation
procedures.
On June 24, 2010, Tecumseh Products Company, Tecumseh Compressor
Company, Tecumseh do Brasil, Ltda, and Tecumseh do Brasil U.S.A.
LLC entered into a settlement agreement with the direct-purchaser
plaintiffs to resolve claims in the action in order to avoid the
costs and distraction of this ongoing class action litigation.
The Settlement Agreement was made by and between Tecumseh and its
subsidiaries and affiliates, and plaintiffs, both individually and
on behalf of a class of persons who purchased in the United
States, its territories and possessions, directly from a defendant
during the period from January 1, 2004 through December 31, 2008:
(a) compressors of less than one horsepower used for
refrigeration, freezing or cooling purposes, and/or (b)
refrigeration products, including condensers, containing
compressors of less than one horsepower used for refrigeration,
freezing or cooling purposes (the "Covered Products").
Compressors used for air-conditioning applications are
specifically excluded.
Under the terms of the Settlement Agreement, in exchange for
plaintiffs' full release of all U.S. direct-purchaser claims
against Tecumseh relating to the Covered Products, Tecumseh agreed
to pay a settlement amount of $7.0 million and, in addition,
agreed to pay up to $250,000 for notice and administrative costs
associated with administering the settlement. These costs were
accrued as an expense in the second quarter of 2010 (and paid in
the third quarter of 2010). Tecumseh also agreed to assist
plaintiffs in obtaining the Court's approval of the settlement and
to share with plaintiffs information relating to the anti-
competitive conduct alleged in the action. If the Court refuses
to approve the Settlement Agreement or if the Settlement Agreement
is modified or set aside on appeal, plaintiffs and Tecumseh each
may rescind the Settlement Agreement and the settlement amount
will be returned to Tecumseh. In addition, if Tecumseh customers
representing a significant percentage of purchases of Covered
Products choose not to participate in the settlement (opt-out),
Tecumseh has the right under certain circumstances to withdraw
from the Settlement Agreement and have the settlement funds
returned. The Court has not yet scheduled a hearing for
preliminary approval of the Settlement Agreement.
In the United States, the remaining indirect purchaser class
actions are in a preliminary stage. A consolidated amended
complaint was filed on June 30, 2010. Tecumseh and other
defendants filed motions to dismiss the indirect purchaser class
action on August 30, 2010. Briefing on the motions has been
completed and the motions are still pending before the Court.
Persons, who engage in price-fixing in violation of U.S. antitrust
law, generally are jointly and severally liable to private
claimants for three times the actual damages caused by their joint
conduct. As a conditional amnesty recipient, however, Tecumseh's
civil liability will be limited pursuant to the Antitrust Criminal
Penalty Enhancement and Reform Act of 2004, as amended. As long
as Tecumseh continues to cooperate with the civil claimants and
complies with the requirements of ACPERA, the Company will be
liable only for actual, as opposed to treble, damages and will not
be jointly and severally liable for claims against other
participants in the alleged anticompetitive conduct being
investigated.
In Canada, the class actions are in a preliminary stage. Due to
uncertainty of the Company's liability in these cases, or other
cases that may be brought in the future, the Company says it has
not accrued any liability in its financial statements, other than
for the claims subject to the Settlement Agreement. The Company
says its ultimate liability, if any, or the amount of any
potential future settlements or resolution of these claims could
be material to its financial position, consolidated results of
operations and cash flows.
The Company anticipates that it will incur additional expenses as
it continues to cooperate with the investigations and defend the
lawsuits. The Company says it expenses all legal costs as
incurred in the consolidated statements of operations. Such
expenses and any restitution payments could negatively impact the
Company's reputation, compromise its ability to compete and result
in financial losses in an amount which could be material to its
financial position, consolidated results of operations and cash
flows.
TOYOTA MOTOR: Calif. Court Tosses Class Action Over Warranty
------------------------------------------------------------
Zach Bowman, writing for Autoblog, reports the California court
system has found that Toyota Motor Insurance Services does not
violate the state's consumer warranty law. According to
Automotive News, a court of appeal found that the contracts offer
enough services outside of the factory warranty to be considered
legal. Toyota was originally sued after Weber DeSiqueira
purchased a then-new 2007 Tundra. At the time, the vehicle came
with a three-year, 36,000 mile warranty, but Mr. DeSiqueira also
laid down $1,145 for a Toyota Extra Care Vehicle Service
Agreement. The lawsuit alleged that the service agreement covered
the same items as the factory, putting the Japanese automaker in
violation of the California warranty law.
But a Los Angeles judge dismissed the case without allowing it to
go to trial. Mr. DeSiqueira appealed, and a three-judge panel
unanimously decided that the automaker's service agreement and the
factory warranty are not identical. The plaintiff sought damages
and retribution in the form of a refund for the price of the
service agreement for himself and other car buyers who had opted
into the program.
Despite the fact that the appeals court effectively scuttled Mr.
Desiqueira's lawsuit, one judge did suggest that the consumer may
have a legitimate claim that Toyota engages in deceptive sales
practices by leading buyers to believe that the service agreement
offers greater protection than it actually does.
TRAVELERS CASUALTY: Judges Reverse Class Certification Ruling
-------------------------------------------------------------
Steve Korris, writing for The Madison St. Clair Record, reports
that former Madison County Circuit Judge Daniel Stack abused his
discretion when he certified a LakinChapman class action against
Travelers Casualty and Surety, Fifth District appellate court
judges ruled on March 14.
Justices Stephen Spomer, Bruce Stewart and James Wexstten reversed
Judge Stack, who certified a class of health care providers
claiming breach of contract, consumer fraud and unjust enrichment.
"Because the plaintiffs have not stated a valid claim for relief
against Travelers, the circuit court abused its discretion in
certifying the class," Justice Spomer wrote.
Local chiropractors Richard Coy and Frank Bemis alleged that
Travelers discounted their workers' compensation bills under a
preferred provider plan without steering patients to them.
"Despite their deposition testimony that they expected that every
patient for whom discounts would be taken would be steered to them
by the payor by the use of financial incentives, no such promise
was contained in the preferred provider agreements,"
Justice Spomer wrote.
Though Coy and Bemis alleged breaches of contracts, they signed
preferred provider agreements with a management company, First
Health, not with Travelers.
They persuaded Judge Stack to link their First Health agreements
to a payor contract between First Health and Travelers, but they
didn't persuade Justice Spomer.
"Even if it could be said that the plaintiffs are third party
beneficiaries to the payor agreement, the payor agreement does not
contain any language mandating that Travelers provide financial
incentives to a patient in order to take a preferred provider
discount," Justice Spomer wrote.
"The simple fact is that neither the preferred provider agreements
nor the payor agreement make financial incentives a prerequisite
to accessing the network."
He rejected the consumer fraud claim, writing that it realleged
the breach of contract claim.
"To the extent that the plaintiffs are alleging that Travelers
misrepresented the fact that it belonged to the First Health
workers' compensation network, it is clear from the record that
Travelers did belong to that network," he wrote.
He rejected the unjust enrichment claim, finding Messrs. Coy and
Bemis promised to accept discounted reimbursements from any payor
in the network.
He wrote that to the extent they assert a right to coverage by
Travelers, they are bound to exclusive remedies at the Illinois
Workers' Compensation Commission.
The former Lakin Law Firm sued Travelers in 2005.
Judge Stack certified a class action in 2008.
Travelers petitioned the Fifth District for review, and judges
there denied the petition.
Travelers petitioned the Illinois Supreme Court for review, and in
2009 the Justices directed the Fifth District to accept the
appeal.
Troy Bozarth and Jill Sundberg, both of Hepler Broom in
Edwardsville, represented Travelers.
So did Robert Johnson, Jeffrey Lenard and Steven Levy, all of
Sonnenschein, Nath and Rosenthal in Chicago, and Lisa Lilly of
Chicago.
Robert Schmieder, Jonathan Piper and Andrew Kuhlmann of
LakinChapman represented Messrs. Coy and Bemis, along with Timothy
Campbell of Godfrey.
Judge Stack retired last December.
UTSTARCOM INC: Appeals in IPO Allocation Suit Remains Pending
-------------------------------------------------------------
UTStarcom, Inc., continues to defend itself against appeals
asserted against a final settlement order in a consolidated IPO
allocation lawsuit, according to the Company's March 16, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2010.
On October 31, 2001, a complaint was filed in United States
District Court for the Southern District of New York against the
Company, some of its directors and officers and various
underwriters for the Company's initial public offering.
Substantially similar actions were filed concerning the initial
public offerings for more than 300 different issuers, and the
cases were coordinated as In re Initial Public Offerings
Securities Litigation, Civil Action No. 01-CV-9604. Plaintiffs
allege violations of the Securities Act of 1933 and the Securities
Exchange Act of 1934 through undisclosed improper underwriting
practices concerning the allocation of IPO shares in exchange for
excessive brokerage commissions, agreements to purchase shares at
higher prices in the aftermarket and misleading analyst reports.
Plaintiffs seek unspecified damages on behalf of a purported class
of purchasers of the Company's common stock between March 2, 2000
and December 6, 2000. On February 19, 2003, the Court granted in
part and denied in part a motion to dismiss the claims brought by
defendants, including the Company. The order dismissed all claims
against the Company except for a claim brought under Section 11 of
the Securities Act of 1933, which alleges that the registration
statement filed in accordance with the IPO was misleading.
The parties have reached a global settlement of the litigation.
Under the settlement, the insurers will pay the full amount of the
settlement share allocated to the Company, and the Company will
bear no financial liability. The Company, and other defendants
will receive complete dismissals from the case. On October 5,
2009, the Court entered an Opinion and Order granting final
approval of the settlement. Certain objectors have filed appeals;
plaintiffs have filed motions to dismiss the appeals. No hearing
date has been set. If for any reason the settlement does not
become effective, the Company believes it has meritorious defenses
to the claims and intend to defend the action vigorously.
UTStarcom is a provider of interactive, Protocol-based network
solutions including the integration and support services in
Internet Protocol TV ("IPTV"), Interactive ("iD")TV, Internet TV
and Broadband for cable and telecom operators. It also provides
the telecommunications carriers and other customers with increased
revenue opportunities by enhancing their subscribers' user
experience. The majority of UTStarcom's sales have been to
service providers in China, Japan and India. It also sells to
service providers in selective markets in Asia Pacific, Latin
America and Europe.
WILLIAM HOWARD: Relocation Suit Granted Class Action Status
-----------------------------------------------------------
Matt Miller, writing for The Patriot-News, reports that a federal
judge has ruled that more than 100 low-income households in the
William Howard Day Homes complex can join a class-action lawsuit
against the Harrisburg Housing Authority.
U.S. Middle District Chief Judge Yvette Kane granted class-action
status for the suit after the move wasn't opposed by the
authority.
The suit is being pursued by four present and former residents of
the public housing complex who claim authority officials are
violating federal regulations by not allowing residents to return
to the complex after they are displaced by renovations.
Kadejah Holton, Christine Brooks, Kiesha Maclin and Elizabeth
Whitley contend in the suit that Howard Day residents have
improperly been forced to relocate to other public housing in the
city, including the Hall Manor development, which they regard as
more dangerous areas.
At issue is whether the authority violated federal housing
regulations, including rules that require it to consider resident
input regarding projects that will involve relocations. The
authority hasn't filed a reply to the residents' suit.
YORK AVENUE PRESCHOOL: Accused of Fraudulent Misrepresentation
--------------------------------------------------------------
Nicole Imprescia, individually and on behalf of others similarly
situated v. York Ave Preschool, Case No. 103085/2011 (N.Y. Sup.
Ct., New York Cty. March 11, 2011), accuses the preschool of
promising services that were never provided, in violation of New
York State General Business Law Sec. 349, which "prohibits
educational institutions from engaging in false advertising,
misrepresentations of the nature or quality of service provided,
and bait and switch tactics."
Defendant York Avenue Preschool is a New York City preschool
located at 1520 York Avenue. The owner and president of defendant
is Michael Branciforte, who resides in Mount Kisco, New York.
Plaintiff has one daughter named Lucia Imprescia, who is of
preschool age. The two live on the upper east side of Manhattan.
Plaintiff relates that in the fall of 2009, she considered
enrolling her daughter into defendant's preschool program.
Defendant claimed to plaintiff that the school would prepare her
daughter for the ERB, an exam required for admission into nearly
all the elite private elementary schools. Defendant had claimed
to plaintiff to be a certified ERB testing site. Defendant also
boasted to plaintiff that it had a high success rate in getting
its students into high caliber Manhattan elementary schools, both
public and private.
Based on these representations, plaintiff enrolled her daughter
into defendant's preschool program. By 2010, however, it became
obvious that defendant's promises were a complete fraud.
At age four, defendant was still teaching plaintiff's daughter
about shapes and colors -- a two-year old's learning environment.
In other words, there was no "curriculum designed for a specific
age group" also as promised.
Plaintiff brought her concerns to the attention of defendant's
administrators. The administrators, according to the plaintiff,
acknowledged the falsehood. In the fall of 2010, plaintiff
demanded return of that year's advance payment of $19,000, but
defendant refused to return her money.
The plaintiff is represented by:
Mathew Paulose Jr., Esq.
KOEHLER & ISAACS LLP
61 Broadway, 25th Floor
New York, NY 10006
Telephone: (917) 551-1353
E-mail: mpaulose@koehler-isaacs.com
YRC WORLDWIDE: Discovery Continues in "401(k)" Litigation
---------------------------------------------------------
Parties are continuing discovery on the merits of the plaintiffs'
claims in the consolidated lawsuit against YRC Worldwide Inc.
relating to its retirement plan, according to the Company's
March 14, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
Four class action complaints were filed in the U.S. District Court
for the District of Kansas against the Company and certain of its
officers and directors, alleging violations of the Employee
Retirement Income Security Act of 1974 based on similar
allegations and causes of action. On November 17, 2009, Eva L.
Hanna and Shelley F. Whitson, former participants in the Yellow
Roadway Corporation Retirement Plan, filed a class action
complaint on behalf of certain persons participating in the plan
(or plans that merged with the plan) from April 6, 2009, to the
present; on December 7, 2009, Daniel J. Cambra, a participant in
the Yellow Roadway Corporation Retirement Savings Plan, filed a
class action complaint on behalf of certain persons participating
in the plan (or plans that merged with the plan) from October 25,
2007, to the present; and on January 15, 2010, Patrick M. Couch, a
participant in one of the merged 401(k) plans, filed a class
action complaint on behalf of certain persons participating in the
plan (or plans that merged with the plan) from March 23, 2006, to
the present; and on April 21, 2010, Tawana Franklin, a participant
in the YRC Worldwide 401(k) Plan, filed a class action complaint
on behalf of certain persons participating in the plan (or plans
that merged with the plan) from October 25, 2007 to the present.
In general, the complaints allege that the defendants breached
their fiduciary duties under ERISA by providing participants
Company common stock as part of their matching contributions and
by not removing the stock fund as an investment option in the
plans in light of the Company's financial condition. Although
some Company matching contributions were made in Company common
stock, participants were not permitted to invest their own
contributions in the Company stock fund. The complaints allege
that the defendants failed to prudently and loyally manage the
plans and assets of the plans; imprudently invested in Company
common stock; failed to monitor fiduciaries and provide them with
accurate information; breached the duty to properly appoint,
monitor, and inform the Benefits Administrative Committee;
misrepresented and failed to disclose adverse financial
information; breached the duty to avoid conflict of interest; and
are subject to co-fiduciary liability. Each of the complaints
seeks, among other things, an order compelling defendants to make
good to the plan all losses resulting from the alleged breaches of
fiduciary duty, attorneys' fees, and other injunctive and
equitable relief. Based on the four separate complaints
previously filed, the Company believes the allegations are without
merit and intends to vigorously contest the claims.
On March 3, 2010, the Court entered an order consolidating three
of the four cases and, on April 1, 2010, the plaintiffs filed a
consolidated complaint. The consolidated complaint asserted the
same claims as the previously-filed complaints but named as
defendants certain former officers of the Company in addition to
those current officers and directors that had already been named.
The fourth case (Franklin) was consolidated with the first three
cases on May 12, 2010. The defendants moved to dismiss the
consolidated complaint on June 1, 2010. The court granted the
defendants' motion to dismiss with respect to the claim that
defendants breached their fiduciary duties by failing to disclose
information to plan participants but refused to dismiss the
remainder of the plaintiffs' claims.
The plaintiffs filed a motion on October 1, 2010, requesting that
the court certify a class consisting of all persons, excluding
defendants and their immediate family members, who were
participants in the YRC Worldwide 401(k) Plan (or plans that
merged with the plan), at any time between October 25, 2007, and
the present and whose plan accounts included investments in YRCW
common stock (directly and/or through shares in the Company stock
fund). Defendants' filed their opposition to this motion on
January 20, 2011. In the meantime, the parties are continuing
discovery on the merits of the plaintiffs' claims.
YRC WORLDWIDE: Defending Securities Class Action Suit in Kansas
---------------------------------------------------------------
YRC Worldwide Inc. is defending itself against a putative class
action filed in the United States District Court for the District
of Kansas on behalf of purchasers of the Company's securities
between April 24, 2008, and November 2, 2009, according to the
Company's March 14, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
On February 7, 2011, a putative class action was filed in the
United States District Court for the District of Kansas on behalf
of purchasers of the Company's securities between April 24, 2008,
and November 2, 2009, inclusive, seeking to pursue remedies under
the Securities Exchange Act of 1934, as amended. The complaint
alleges that, throughout the Class Period, the Company and certain
of its officers failed to disclose material adverse facts about
the Company's true financial condition, business and prospects.
Specifically, the complaint alleges that defendants' statements
were materially false and misleading because they misrepresented
and overstated the financial condition of the Company and caused
shares of the Company's common stock to trade at artificially
inflated levels throughout the Class Period. The plaintiff seeks
to recover damages on behalf of all purchasers of the Company's
securities during the Class Period. The Company believes the
allegations are without merit and intends to vigorously defend the
claims.
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S U B S C R I P T I O N I N F O R M A T I O N
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