/raid1/www/Hosts/bankrupt/CAR_Public/110404.mbx
C L A S S A C T I O N R E P O R T E R
Monday, April 4, 2011, Vol. 13, No. 66
Headlines
ADDUS HOMECARE: Court Sets Final Settlement Hearing for July 21
AT&T MOBILITY: Sued for Misclassifying Laborers, Overtime Pay
BANK OF AMERICA: Labaton Sucharow Files Securities Class Action
BANK OF AMERICA: Privacy Assist Class Action Ongoing in Calif.
BJ'S WHOLESALE: Has No Reserves for "Caissie" Suit
CAMPBELL SOUP: Fails to Dismiss Tomato Soup Class Action
CHINA AGRITECH: Class Action Lead Plaintiff Deadline Approaches
CHINA INTEGRATED: Faces Securities Class Action
CHINA MEDIAEXPRESS: Class Action Lead Plaintiff Deadline Nears
GRADY COUNTY, OK: Wins Age Discrimination Class Action
HORIZON LINES: Continues to Defend Suits vs. Shipping Carriers
HORIZON LINES: Signs MOU With Indirect Purchasers & Puerto Rico
HORIZON LINES: Appeal in Roseville Suit Remains Pending
HURONIA REG'L CENTRE: Crown Blames Class Action on Government
KID BRANDS: Faces Securities Class Action in New Jersey
LIVE NATION: Sued in Ark. Over Additional Surcharges on Tickets
LOWE'S HIW: Sued for Non-Payment of Overtime Wage
LVNV FUNDING: Sued for Unlawful Debt Collection Activities
MARVELL TECHNOLOGY: Appeals From IPO Suit Settlement Still Pending
MARVELL TECHNOLOGY: Trial on Suit Against Unit Set for Sept. 26
MASSEY ENERGY: Spartan Unit's Appeal in Class Suit Still Pending
MCCARRAN AIRPORT: Sued Over Self-Service Ticketing Kiosks
MI WINDOWS: Law Firm Investigates Window-Related Water Intrusion
NIVS INTELLIMEDIA: Faces Securities Class Action in California
PIZZA HUT: Minimum Wage Suit Granted Conditional Certification
OPTIONSXPRESS HOLDINGS: D&Os Sued Over Sale to Schwab
PT CHICAGO: Sued for Violations of Landlord and Tenant Ordinance
REACHLOCAL INC: Second Wage & Hour Suit Won't Affect Settlement
RTFX INC: Sued for Uninhabitable Conditions at Chicago Apt. Bldg.
SERVICEMASTER CO: Unit Awaits Final Okay of "Rudd" Suit Settlement
SYNERON MEDICAL: Court Okays Settlement in Candela-Related Suit
TEXAS: Faces Class Action Over Shortfalls in Foster Care System
WAL-MART STORES: Class Action Reveals Gender Gap at Court
WELLS FARGO: Sued for Failing to Pay For All Hours Worked
*********
ADDUS HOMECARE: Court Sets Final Settlement Hearing for July 21
---------------------------------------------------------------
The United States District Court for the Northern District of
Illinois has preliminarily approved the settlement in the class
action lawsuit filed against Addus HomeCare Corporation, and has
scheduled a July 21, 2011, hearing to consider whether to finally
approve the settlement, according to the Company's March 28, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
On March 26, 2010, a class action lawsuit was filed in the United
States District Court for the Northern District of Illinois on
behalf of a class consisting of all persons or entities who
purchased or otherwise acquired the Company's common stock between
October 27, 2009 and March 18, 2010, in connection with the
Company's initial public offering. The Complaint, which was
amended on August 10, 2010, asserts claims against the Company and
individual officers and directors pursuant to Sections 11 and 15
of the Securities Act of 1933 and alleges, inter alia, that the
Company's registration statement was materially false and/or
omitted these: (1) that the Company's accounts receivable included
at least $1.5 million in aging receivables that should have been
reserved for; and (2) that the Company's home health segment's
revenues were falling short of internal forecasts due to a
slowdown in admissions from the Company's integrated services
program due to the State of Illinois' effort to develop new
procedures for integrating care. A motion to dismiss the
Complaint was filed on behalf of the defendants on September 20,
2010. The Company and the other defendants have denied and
continue to deny all charges of wrongdoing or liability arising
out of any conduct, statements, acts or omissions alleged in the
Complaint. The Company believes the claims are without merit and
intends to defend the litigation vigorously.
In addition, on April 16, 2010, Robert W. Baird & Company, on
behalf of the underwriters of the IPO, notified the Company that
the underwriters are seeking indemnification in respect of the
action pursuant to the underwriting agreement entered into in
connection with the IPO.
On March 21, 2011, the Company and the other named defendants
entered into a stipulation of settlement with the plaintiffs with
respect to the class action, pursuant to which the Company is to
cause $3,000,000 to be paid into a settlement fund. The monetary
amount of this settlement is covered by insurance.
On March 22, 2011, the United States District Court for the
Northern District of Illinois preliminarily approved the
settlement and scheduled a July 21, 2011 hearing to consider,
among other things, whether to finally approve the settlement of
the class action. If the settlement is given final approval by
the court, the class action will be dismissed with prejudice. The
effectiveness of the stipulation of settlement and the settlement
incorporated therein is conditioned on these remaining conditions:
(i) the court finally approving the settlement, (ii) any judgment
of dismissal entered by the court becoming final and (iii) any
judgment of dismissal entered in the derivative action described
below becoming final. There can be no assurance the settlement
will be approved or become effective.
AT&T MOBILITY: Sued for Misclassifying Laborers, Overtime Pay
-------------------------------------------------------------
Sandra Perry, on behalf of herself and others similarly situated
v. AT&T Mobility LLC, et al., Case No. 11-cv-01488 (N.D. Calif.
March 28, 2011), accuses AT&T of misclassifying laborers --
employed by AT&T by and through co-defendant Arise Virtual
Solutions Inc., as an agent of AT&T -- as independent contractors,
non-payment of overtime wages and minimum wages, failing to
reimburse employees for unpaid business expenses, and failing to
maintain accurate records of overtime hours worked, in violation
of applicable provisions of California law.
AT&T operates as a subsidiary of AT&T, Inc., providing wireless
and data communication services and products to individual,
business and government users in the United States. Arise Virtual
Solutions Inc. is one the nation's leading providers of virtual
business services for brands seeking to improve business results
through their sales and service channels.
Sandra Perry has been employed by AT&T in California as a "Virtual
Call-Center Agent" since September 2010 and currently works in
that position for defendants.
The plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik , Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Website: http://www.bamlawca.com/
- and -
Mark A. Osman, Esq.
LAW OFFICES OF MARK A. OSMAN
401 West A Street, 17th Floor
San Diego, CA 92101
Telephone: (619) 232-8862
E-mail: mark@osmanlawfirm.com
BANK OF AMERICA: Labaton Sucharow Files Securities Class Action
---------------------------------------------------------------
Labaton Sucharow LLP filed a class action lawsuit on March 30,
2011 in the United States District Court for the Southern District
of New York. The lawsuit was filed on behalf of purchasers of
Bank of America Corporation securities between July 23, 2009 and
Oct. 19, 2010, inclusive.
The action charges BAC and certain of its officers and directors
with violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. In
July 2008, BAC acquired Countrywide Financial Corporation, and,
along with it, mortgages upon which BAC could not readily
foreclose. The action alleges that BAC made false and misleading
statements relating to BAC's exposure to several forms of risk,
thereby artificially inflating the price of BAC's stock throughout
the Class Period.
If you are a member of this class you can view a copy of the
complaint and join this class action online at
http://www.labaton.com/en/cases/Newly-Filed-Cases.cfm/
If you purchased BAC securities during the Class Period, you may
move to serve as Lead Plaintiff. Lead Plaintiff motion papers
must be filed with the United States District Court for the
Southern District of New York no later than April 4, 2011. A lead
plaintiff is a court-appointed representative for absent Class
members. You do not need to seek appointment as lead plaintiff to
share in any Class recovery in this action. If you are a Class
member and there is a recovery for the Class, you can share in
that recovery as an absent Class member. You may retain counsel
of your choice to represent you in this action.
If you would like to consider serving as lead plaintiff or have
any questions about the lawsuit, you may contact one of our
representatives or Rachel A. Avan, Esq. of Labaton Sucharow LLP,
at 888-753-2796 or (212) 907-0700, or via email at
ravan@labaton.com
Labaton Sucharow LLP, with offices in New York, New York and
Wilmington, Delaware, -- http://www.labaton.com/-- is a law firm
representing institutional investors in class action and complex
securities litigation, as well as consumers and businesses in
class actions seeking to recover damages for anticompetitive
practices. The Firm has been a champion of investor and consumer
rights for over 45 years, seeking recovery of current losses and
necessary governance reforms to protect investors and consumers.
Labaton Sucharow has been recognized for its excellence by the
courts and its peers.
BANK OF AMERICA: Privacy Assist Class Action Ongoing in Calif.
--------------------------------------------------------------
Glancy Binkow & Goldberg LLP is continuing to pursue claims on
behalf of Californians with respect to Bank of America's
aggressive sales and marketing of its Privacy Assist product. The
amended complaint in the class action lawsuit in the United States
District Court for the Northern District of California against
Bank of America, N.A. and others is captioned Chavez v. Bank of
America Corporation et al, Case No. 10-cv-00653-JCS.
A copy of the First Amended Complaint is available from the court
or from Glancy Binkow & Goldberg LLP. Please contact us by phone
to discuss this action or to obtain a copy of the Complaint at
(310) 201-9150, Toll Free at (888) 773-9224, or by email to
pa@glancylaw.com
The lawsuit alleges that Bank of America and others violated
consumer protection statutes, including the California Unfair
Competition Act and the California Consumers Legal Remedies Act,
by charging customers for Privacy Assist when they did not agree
to such charges. Bank of America is the largest bank holding
company in the United States and offers a wide variety of consumer
and corporate banking, investment and wealth management products
in California and throughout the world.
The Complaint alleges that Bank of America's Privacy Assist
"product" is so aggressively marketed that customers often are
enrolled in the program without their knowledge or without a full
understanding of the terms of the service, including how to avoid
charges after a purported free, 30-day trial period.
Specifically, the lawsuit alleges that: (1) defendants encourage
sales representatives, who solicit Privacy Assist "services"
through boiler-room call centers situated throughout the country,
to aggressively enroll customers into the program by subjecting
customers to "sales blitzes" and by penalizing those
representatives who do not meet sales quotas; (2) defendants fail
to adequately monitor sales representatives, resulting in
customers being enrolled in Privacy Assist without their knowledge
or without a full understanding of the program's terms and
conditions; (3) defendants fail to maintain adequate procedures to
ensure that customers who request "non-solicitation" status are
not contacted by Privacy Assist sales representatives; (4) when
customers realize they are being charged for Privacy Assist and
attempt to cancel, they are confronted with sales representatives
who attempt to persuade the customer not to cancel or otherwise
make it difficult for the customer to cancel; and (5), customers
are not informed that a purported 30-day window to cancel their
enrollment in Privacy Assist without incurring any charges begins
when Privacy Assist is initially solicited to the customer --
rather than when customers subsequently receive their Privacy
Assist enrollment in the mail.
If you are a former or current Bank of America customer enrolled
in Privacy Assist since September 2006 through the present, or
have information relating to similar issues with Privacy Assist,
or if you wish to discuss this action or have any questions
concerning this Notice or your rights or interests with respect to
these matters, please contact:
Coby Turner, Esq.
GLANCY BINKOW & GOLDBERG LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Telephone: (310) 201-9150
Toll Free: (888) 773-9224
E-mail: pa@glancylaw.com
BJ'S WHOLESALE: Has No Reserves for "Caissie" Suit
--------------------------------------------------
BJ's Wholesale Club, Inc., made no reserve, and does not expect
any future claims, in connection with a settled class action
lawsuit that was filed against it in Massachusetts, according to
the Company's March 28, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended January 29,
2011.
In November 2008, BJ's was sued in the United States District
Court for the District of Massachusetts in a purported class
action brought on behalf of "current and former department and
other assistant managers," in which plaintiffs principally alleged
that they had not been compensated for overtime work as required
under federal and Massachusetts law (Caissie v. BJ's Wholesale
Club., Case No. 3:08cv30220).
In the third quarter of 2009, the Company recorded a pretax charge
in selling, general and administrative ("SG&A") expenses of $11.7
million in connection with a proposed settlement of this claim and
related payments. Under the settlement, approved by the court on
June 24, 2010, certain current and former mid-level managers were
eligible to receive payments to compensate them for particular
hours worked in prior years. The settlement of the lawsuit is not
an admission by BJ's of any wrongdoing. In 2010, the Company paid
$10.8 million in settlements and other expenses related to this
matter. The remaining reserve was reversed through SG&A in the
fourth quarter of 2010.
As of January 29, 2011, the Company had no reserve related to this
matter and do not expect any future claims related to this matter.
CAMPBELL SOUP: Fails to Dismiss Tomato Soup Class Action
--------------------------------------------------------
Courthouse News Service reports that Campbell Soup failed to
dismiss a class action lawsuit that claims the company charges
more for tomato soup that supposedly, but does not actually,
contain less sodium than its regular product.
Four New Jersey women can take their claims against Campbell's to
trial, U.S. District Judge Jerome Simandle ruled, noting that a
fifth woman from New York, who filed the original complaint last
year, voluntarily dismissed her claims.
Campbell's had tried to dismiss the suit altogether, claiming that
its nutritional labeling is pre-empted by the federal Food, Drug
and Cosmetic Act. It also claimed that consumers had not suffered
a loss since they received a product worth its price.
Judge Simandle disagreed, ruling on March 23 the plaintiffs had
sufficiently pleaded claims under the federal Consumer Fraud Act
and state warranty law.
"Plaintiffs, consistent with FDA's regulations, allege that it is
misleading to identify a composite of condensed soups as 'REGULAR
CONDENSED SOUP' juxtaposed with a picture of regular tomato soup
and the phrase 'The famous taste . . . with less salt!" the 40-
page decision states. "This cause of action is consistent with
and requires nothing more than the FDA's requirement that the
reference food be non-misleadingly identified.
"This depiction of the image of regular tomato soup may plausibly
suggest to a reasonable consumer that Campbell is representing
that its 25% Less Sodium Tomato Soup contains 25% less sodium than
its regular tomato soup, which is untrue for the formulation of
the regular tomato soup at issue here," Judge Simandle continues.
"Similarly, Plaintiffs allege that the labels referring to 'OUR
REGULAR PRODUCT' also referred to a hodge podge of soups, and that
this was misleading; it is plausible that a reasonable consumer
could believe that the comparison to 'OUR REGULAR PRODUCT' is
drawing a comparison to Campbell's regular tomato soup then being
sold. That claim is consistent with the requirements of the act
that identification of the reference food not be misleading. If
Plaintiffs' allegations are proven, state liability may be imposed
consistently with the federal regulation."
Judge Simandle agreed with Campbell's that the federal law
pre-empts the class's claims over alleged omissions about the
nutrient content of sodium. The consumers had claimed that
Campell's should compare their regular tomato soup to the average
of some or all of their regular condensed soups.
"This version of the claim is clearly preempted because the
regulations only require the non-misleading identification of a
proper reference food; they do not require the disclosure of any
additional comparisons," Judge Simandle wrote.
The judge also found that the class had failed to raise adequate
allegations over Campbell's marketing materials. Only one of the
named plaintiffs, Christine Velez, sufficiently pleaded that
Campbell's Web site was misleading, according to the decision.
A copy of the Opinion in Smajlaj, et al. v. Campbell Soup Company,
et al., Case No. 10-cv-01332 (D. N.J.), is available at:
http://www.courthousenews.com/2011/03/30/campbell.pdf
The Plaintiffs were represented by:
Jeffrey W. Herrmann, Esq.
COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLC
Park 80 West Plaza One
250 Pehle Avenue, Suite 401
Saddlebrook, NJ 07663
E-mail: jwh@njlawfirm.com
- and -
Lester L. Levy, Esq.
Michele F. Raphael, Esq.
WOLF POPPER LLP
845 Third Avenue, 12th Floor
New York, NY 10022
E-mail: llevy@wolfpopper.com
Campbell Soup Company and Campbell Sales Company were represented
by:
Robert Alan White, Esq.
MORGAN, LEWIS & BOCKIUS, LLP
502 Carnegie Center
Princeton, NJ 08540
Tel: 609-919-6601
Fax: 609-919-6701
E-mail: rwhite@morganlewis.com
- and -
J. Gordon Cooney, Jr., Esq.
MORGAN, LEWIS & BOCKIUS, LLP
1701 Market St.
Philadelphia, PA 19103
Tel: 215-963-4806
Fax: 215-963-5001
E-mail: jgcooney@morganlewis.com
CHINA AGRITECH: Class Action Lead Plaintiff Deadline Approaches
---------------------------------------------------------------
Law Offices of Howard G. Smith, representing investors of
China Agritech, Inc., announced on March 28 that there are 15 days
remaining before the April 12, 2011 deadline to file a motion to
be a lead plaintiff in the class action lawsuit filed on behalf of
purchasers of China Agritech, Inc. securities between Feb. 8, 2010
and Feb. 3, 2011, inclusive. The shareholder lawsuit is pending
in the United States District Court for the Central District of
California.
China Agritech, through its subsidiaries, manufactures and sells
organic liquid compound fertilizers, organic granular compound
fertilizers, and related agricultural products in the People's
Republic of China. The Complaint alleges that the defendants
issued false and/or misleading statements and/or failed to
disclose that, among other things: (1) certain of the Company's
manufacturing facilities were idle or producing far less
fertilizer than the Company portrayed; (2) the Company did not
have the equipment to support its claimed production capacity; (3)
the Company did not receive a license to manufacture granular
compound fertilizer; (4) the Company had misrepresented its
fertilizer production levels and sales; and (5), as a result of
the foregoing, the Company's statements were materially false and
misleading at all relevant times.
No class has yet been certified in the above action. Until a
class is certified, you are not represented by counsel unless you
retain one. If you purchased China Agritech securities between
Feb. 8, 2010 and Feb. 3, 2011, you have certain rights and have
until April 12, 2011 to move for lead plaintiff status. To be a
member of the class you need not take any action at this time, and
you may retain counsel of your choice. If you wish to discuss
this action or have any questions concerning this Notice or your
rights or interests with respect to these matters, please contact
Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070
Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by
telephone at (215) 638-4847, Toll-Free at (888) 638-4847, by email
to howardsmith@howardsmithlaw.com or visit our Web site at
http://www.howardsmithlaw.com/
CONTACT: Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
Telephone: (215) 638-4847
(888) 638-4847
E-mail: howardsmith@howardsmithlaw.com
Web site: http://www.howardsmithlaw.com/
CHINA INTEGRATED: Faces Securities Class Action
-----------------------------------------------
Robbins Umeda LLP, a shareholder rights litigation firm, disclosed
that a class action lawsuit has been filed on behalf of all
persons or entities who purchased the common stock of China
Integrated Energy, Inc. between March 31, 2010 and March 16, 2011.
If you purchased China Integrated stock during the Class Period,
you have until May 24, 2011, to move for lead plaintiff. To
discuss your shareholder rights, please contact attorney Gregory
E. Del Gaizo at 800-350-6003 or via the shareholder information
form on our Web site.
China Integrated operates as an integrated energy company in
China. China Integrated engages in the wholesale distribution of
various finished oil and heavy oil products to distributors that
supply to retail service stations, as well as directly to end
users through its retail gas stations. The company is also
involved in the production and sale of biodiesel to oil product
trading companies, as well as end users such as gas stations,
electric power companies, and shipping companies. China
Integrated was founded in 1999, is headquartered in Xi'an City,
China, and is incorporated in Delaware.
The lawsuit alleges that during the Class Period, China Integrated
violated federal securities laws by issuing material
misrepresentations to the investing public concerning its
business, operations, and prospects, thereby artificially
inflating the price of the company's securities.
On March 16, 2011, Sinclair Upton Research issued a report
alleging that China Integrated concealed self-dealing transactions
between the company and its officers and directors that had the
effect of funneling cash to these officers and directors. Citing
Chinese regulatory filings, the report further stated that the
company misrepresented its business prospects, and financial
performance and condition to investors.
Robbins Umeda LLP represents individual and institutional
shareholders in derivative, direct, and class action lawsuits.
The law firm's skilled litigation teams include former federal
prosecutors, former defense counsel from top multinational
corporate law firms, and career shareholder rights attorneys.
Robbins Umeda LLP has helped its clients realize more than $1
billion of value for themselves and the companies in which they
have invested. For more information, please go to
http://www.robbinsumeda.com/
Contacts: Gregory E. Del Gaizo, Esq.
Robbins Umeda LLP
Telephone: 800-350-6003
CHINA MEDIAEXPRESS: Class Action Lead Plaintiff Deadline Nears
--------------------------------------------------------------
Hagens Berman Sobol Shapiro LLP, a nationwide, investor-rights law
firm, on March 30 notified CCME investors with losses exceeding
$300,000 that they have only six days until the April 5 deadline
to file for lead plaintiff in the class-action lawsuit against
China MediaExpress Holdings, Inc.
Shareholders who purchased stock from China MediaExpress from
May 14, 2010, to March 11, 2011, and experienced significant
losses are encouraged to contact Hagens Berman partner
Reed R. Kathrein at 510-725-3000 for a personal consultation.
Investors can also contact the Hagens Berman legal team through
email at CCME@hbsslaw.com
A lawsuit, filed in the U.S. District Court for the Southern
District of New York, claims China MediaExpress misrepresented its
operations and financial statements. The lawsuit came after CCME
announced that its independent auditor, Deloitte Touche Tohmatsu
(DTT), had resigned because it was "no longer able to rely on the
representations of management." Its Chief Financial Officer Jacky
Lam also resigned.
Hagens Berman continues to investigate the auditor's possible role
in the alleged fraud. On March 29, 2011, China MediaExpress filed
an 8-K further describing the contents of a March 11 letter from
its auditors, in which DTT raised the following concerns prior to
its resignation and asserted that China MediaExpress was not
willing to precede in good faith:
* A loss of confidence in the Company's bank statements, and
confirmation procedures carried out under circumstances that DTT
believed to be suspicious;
* Possibilities of undisclosed bank accounts and bank loans;
* Unverified cash deposits for salary payments;
* Legitimacy concerns of certain advertising agents, customers
(including the Company's top customers) and bus operators;
* Potential double counting of a certain number of buses
participating in advertising programs;
* Inconsistent financial information provided to DDT and
comparable information on file with the State Administration of
Industry and Commerce as to certain subsidiaries;
* Validity concerns of tax invoices issued in connection with
certain large transactions;
* Verification issues with certain subsidiary tax payments
with the local office of the State Administration of Taxation;
* And potential implications these issues may have for the
Company's consolidated financial statements for 2009 and DTT's
report thereon.
China MediaExpress responded that the audit report from DTT on the
financial statements of the Company for 2009 did not contain any
adverse opinion or disclaimer of opinion and was not qualified or
modified as to uncertainty, audit scope or accounting principles.
GRADY COUNTY, OK: Wins Age Discrimination Class Action
------------------------------------------------------
Debi DeSilver, writing for The Express-Star, reports that a
March 2009 class action lawsuit against Grady County by a former
deputy has been decided in the county's favor.
A press release said former Grady County Deputy Neal Locke filed a
class action lawsuit for age discrimination.
Records show Mr. Locke accused Sheriff Art Kell for terminating
him based on his age. Dockets show Mr. Locke was discharged for
disobeying a direct order from Mr. Kell.
The order was based on complaints brought to the sheriff's
attention regarding sexual harrassment allegations.
Mr. Kell concluded that Mr. Locke had insinuated inappropriate
sexual comments toward women officers and women around the county,
according to the press release.
Mr. Locke was demoted and put on probation and was ordered not to
make contact with any of the women who made the accusations.
Documents show that Mr. Locke went to one of the accusers and
confronted her on the allegations. The female officer brought
another complaint in fear of her safety to the sheriff. Mr. Kell
immediately terminated Mr. Locke for disobeying a direct order.
Mr. Kell provided documents showing that he had eight deputies and
employees ranging in age from 46 to 72.
The federal judge granted judgment in favor of the sheriff.
Attorneys for Grady County were granted attorney fees of $9,129.93
to be paid in full by Mr. Locke.
HORIZON LINES: Continues to Defend Suits vs. Shipping Carriers
--------------------------------------------------------------
Horizon Lines, Inc., continues to defend itself against class
action lawsuits relating to its ocean shipping services in the
Puerto Rico, Hawaii, Guam and Alaska tradelanes, according to the
Company's March 28, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 26,
2010.
On April 17, 2008, the Company received a grand jury subpoena and
search warrant from the United States District Court for the
Middle District of Florida seeking information regarding an
investigation by the Antitrust Division of the Department of
Justice into possible antitrust violations in the domestic ocean
shipping business. On February 23, 2011, the Company entered into
a plea agreement with the DOJ whereby the Company agreed to plead
guilty to a charge of violating federal antitrust laws solely with
respect to the Puerto Rico tradelane and agreed to pay a fine of
$45.0 million over five years without interest. The first $1.0
million of the fine must be paid within 30 days after imposition
of the sentence by the court and annual payments of $1.0 million,
$3.0 million, $5.0 million, $15.0 million and $20.0 million must
be paid on each anniversary thereafter. The plea agreement
provides that the Company will not face additional charges
relating to the Puerto Rico tradelane. On March 22, 2011, the
court entered judgment accepting the Company's plea agreement and
placing the Company on probation for five years. The terms of the
probation include that the Company: 1) file annual audited
financial reports, 2) not commit a criminal act during the
probation period, 3) report any material adverse legal or
financial event, and 4) annually certify that it has an antitrust
compliance program in place that satisfies the sentencing
guidelines requirements, including antitrust education to key
personnel.
In addition, the plea agreement provides that the Company will not
face any additional charges in connection with the Alaska trade,
and the DOJ has indicated that the Company is not a target or
subject to any investigation in the Hawaii and Guam trades. Also,
in June 2009, the Company entered into a conditional amnesty
agreement with the DOJ under its Corporate Leniency Policy. The
amnesty agreement pertains to a single contract relating to ocean
shipping services provided to the United States Department of
Defense. The DOJ has agreed to not bring any criminal prosecution
with respect to that government contract, as long as the Company,
among other things, continues its full cooperation in the
investigation. The amnesty does not bar a claim for damages that
may be sought by the DOJ under any applicable federal law or
regulation.
The Company has included a charge of $30.0 million in its fiscal
2010 financial statements, which represents the present value of
the $45.0 million in installment payments. The Company has not
made a provision in the accompanying financial statements for any
civil damages resulting from the amnesty matter in the
accompanying financial statements.
Subsequent to the commencement of the DOJ investigation, 58
purported class action lawsuits were filed against the Company and
other domestic shipping carriers. Each of the Class Action
Lawsuits purports to be on behalf of a class of individuals and
entities who purchased domestic ocean shipping services directly
from the various domestic ocean carriers. These complaints allege
price-fixing in violation of the Sherman Act and seek treble
monetary damages, costs, attorneys' fees, and an injunction
against the allegedly unlawful conduct. The Class Action Lawsuits
were filed in these federal district courts: eight in the Southern
District of Florida, five in the Middle District of Florida,
nineteen in the District of Puerto Rico, twelve in the Northern
District of California, three in the Central District of
California, one in the District of Oregon, eight in the Western
District of Washington, one in the District of Hawaii, and one in
the District of Alaska.
Thirty-two of the Class Action Lawsuits relate to ocean shipping
services in the Puerto Rico tradelane and were consolidated into a
single multidistrict litigation proceeding in the District of
Puerto Rico. On June 11, 2009, the Company entered into a
settlement agreement with the named plaintiff class
representatives in the Puerto Rico MDL. Under the settlement
agreement, the Company has agreed to pay $20.0 million and to
provide a base-rate freeze to resolve claims for alleged antitrust
violations in the Puerto Rico tradelane.
The base-rate freeze component of the settlement agreement
provides that class members who have contracts in the Puerto Rico
trade with the Company as of the effective date of the settlement
would have the option, in lieu of receiving cash, to have their
"base rates" frozen for a period of two years. The base-rate
freeze would run for two years from the expiration of the contract
in effect on the effective date of the settlement. All class
members would be eligible to share in the $20.0 million cash
component, but only the Company's contract customers would be
eligible to elect the base-rate freeze in lieu of receiving cash.
On July 8, 2009, the plaintiffs filed a motion for preliminary
approval of the settlement in the Puerto Rico MDL. After several
hearings, the Court granted preliminary approval of the settlement
on July 12, 2010. The settlement is subject to final approval by
the Court. The Company has paid $10.0 million into an escrow
account and are required to pay the remaining $10.0 million within
five business days after final approval of the settlement
agreement by the District Court. On September 15, 2010, notices
of the Puerto Rico settlement were mailed to class members, who
had sixty days to respond. Some class members have elected to
opt-out of the settlement in response to the class notice they
have received. The Company has until April 29, 2011, to decide
whether or not to proceed with the class settlement.
The customers that have elected to opt-out of the settlement may
file lawsuits containing allegations similar to those made in the
Puerto Rico MDL and seek the same type of damages under the
Sherman Act as sought in the Puerto Rico MDL. The Company is not
able to determine whether or not any actions will be brought
against it or whether or not a negative outcome would be probable
if brought against it, or a reasonable range for any such outcome,
and has made no provisions for any potential proceedings in its
financial statements. Given the volume of commerce involved in
the Puerto Rico shipping business, an adverse ruling in a
potential civil antitrust proceeding could subject the Company to
substantial civil damages given the treble damages provisions of
the Sherman Act.
In addition, the Company has actively engaged in discussions with
a number of its customers in the Puerto Rico trade regarding the
subject matter of the DOJ investigations. The Company has reached
commercial agreements or is seeking to reach commercial agreements
with certain of its major customers, with the condition that the
customer relinquishes all claims arising out of the matters that
are the subject of the antitrust investigations. In some cases,
the Company has agreed to, or is seeking to agree to, future
discounts which will be charged against operating revenue if and
when the discount is earned and certain other conditions are met.
Twenty-five of the fifty-eight Class Action Lawsuits relate to
ocean shipping services in the Hawaii and Guam tradelanes and were
consolidated into a MDL proceeding in the Western District of
Washington. On March 20, 2009, the Company filed a motion to
dismiss the claims in the Hawaii and Guam MDL. On August 18,
2009, the United States District Court for the Western District of
Washington entered an order dismissing, without prejudice, the
Hawaii and Guam MDL. In dismissing the complaint, however, the
plaintiffs were granted thirty days to amend their complaint.
After several extensions, the plaintiffs filed an amended
consolidated class action complaint on May 28, 2010. On July 12,
2010, the Company filed a motion to dismiss the plaintiffs'
amended complaint. The motion to dismiss the amended complaint
was granted with prejudice on December 1, 2010, and the plaintiffs
have served a notice of appeal with the United States Court of
Appeals for the Ninth Circuit. The Company says it intends to
vigorously defend against this purported class action lawsuit.
One district court case remains in the District of Alaska,
relating to the Alaska tradelane. The Company and the plaintiffs
have agreed to stay the Alaska litigation, and the Company intends
to vigorously defend against the purported class action lawsuit in
Alaska.
HORIZON LINES: Signs MOU With Indirect Purchasers & Puerto Rico
---------------------------------------------------------------
Horizon Lines, Inc., entered into a Memorandum of Understanding
with certain indirect purchasers and the Commonwealth of Puerto
Rico to settle the investigation by the Puerto Rico Office of
Monopolistic Affairs, the lawsuit filed by the Commonwealth, and a
class action lawsuit pending in Puerto Rico, according to the
Company's March 28, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 26,
2010.
On October 9, 2009, the Company received a Request for Information
and Production of Documents from the Puerto Rico Office of
Monopolistic Affairs. The request relates to an investigation
into possible price fixing and unfair competition in the Puerto
Rico domestic ocean shipping business. In February 2011, the
Commonwealth of Puerto Rico filed a lawsuit against the Company
seeking monetary damages on behalf of the Attorney General of the
Commonwealth of Puerto Rico and a class of persons (indirect
purchasers).
On October 19, 2009, a purported class action lawsuit was filed
against the Company, other domestic shipping carriers and certain
individuals in the United States District Court for the District
of Puerto Rico. The complaint purports to be on behalf of
indirect purchasers who allege to have paid inflated prices for
retail goods imported to Puerto Rico as a result of alleged price-
fixing of the defendants in violation of the Sherman Act and
various provisions of Puerto Rico law. The plaintiffs are seeking
treble monetary damages, costs and attorneys' fees. On April 9,
2010, the Company filed a motion to dismiss. The District Court
has dismissed all counts in the complaint except those under
Puerto Rico antitrust laws. The District Court has certified to
the Puerto Rico Supreme Court the question of whether the Puerto
Rico antitrust statute applies to interstate commerce.
On February 22, 2011, the Company entered into a Memorandum of
Understanding with the attorneys representing the indirect
purchasers and the Commonwealth of Puerto Rico to settle the
investigation by the Puerto Rico Office of Monopolistic Affairs
and the lawsuit filed by the Commonwealth of Puerto Rico in
February 2011, and the class action lawsuit in the indirect
purchasers case. Under the Memorandum of Understanding, the
Company has agreed to pay $1.8 million for a full release in those
matters. The settlement agreement, when negotiated and entered
into by the parties, will be subject to court approval.
HORIZON LINES: Appeal in Roseville Suit Remains Pending
-------------------------------------------------------
An appeal from the dismissal of the amended complaint in the
securities class action lawsuit filed against Horizon Lines, Inc.,
by the City of Roseville Employees' Retirement System remains
pending, according to the Company's March 28, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 26, 2010.
On December 31, 2008, a securities class action lawsuit was filed
against the Company by the City of Roseville Employees' Retirement
System in the United States District Court for the District of
Delaware. The complaint purported to be on behalf of purchasers
of the Company's common stock. The complaint alleged, among other
things, that the Company made material misstatements and omissions
in connection with alleged price-fixing in the Company's shipping
business in Puerto Rico in violation of antitrust laws. The
Company filed a motion to dismiss, and the Court granted the
motion to dismiss on November 13, 2009, with leave to file an
amended complaint. The plaintiff filed an amended complaint on
December 23, 2009, and the Company filed a motion to dismiss the
amended complaint on February 12, 2010. The Company's motion to
dismiss the amended complaint was granted with prejudice on
May 18, 2010. On June 15, 2010, the plaintiff appealed the
Court's decision to dismiss the amended complaint. The Company
filed its opposition brief with the Court of Appeals on
December 22, 2010, and the plaintiffs filed their reply brief on
February 2, 2011.
HURONIA REG'L CENTRE: Crown Blames Class Action on Government
-------------------------------------------------------------
In its recent Statement of Defence, Ontario's Crown claims that
any inadequacies in the operation and management of the Huronia
Regional Centre were the result of funding decisions made at the
"highest levels of government."
Kirk Baert of Koskie Minsky LLP, representing the plaintiffs, is
surprised by the Crown's chosen defense.
"It is unacceptable that the Crown would dismiss the abuse of
former Huronia residents -- and pass the buck -- by suggesting
that the 'highest levels of government' are to blame," said
Mr. Baert. "It's shocking that officials would place blame on
Ontario government ministers, even the Premier of Ontario, for
Huronia's mismanagement. It's time they took responsibility."
Class proceedings are also underway for two other Ontario-run
institutions, which housed the developmentally disabled: Rideau
Regional Centre near Smith Falls and Southwestern outside of
Chatham. Mr. Baert, who represents plaintiffs at Rideau and
Southwestern, notes that although all three cases include
identical allegations of abuse, the Crown is wasting taxpayers'
money by treating them as separate proceedings.
"By considering each case independently, the Crown is simply using
a stall tactic, which is a misuse of the court's time and an
unnecessary and terrible waste of taxpayers' money," said
Mr. Baert. "Many of these former residents are getting on in age
and, tragically, because of this bureaucratic foot-dragging, many
will not see justice served."
The class action was launched by former residents of Huronia and
alleges that residents were victims of systemic physical,
emotional and psychological abuse. Specifically, it alleges that
the Province's failure to properly care for former residents
resulted in loss or injury, including psychological trauma, pain
and suffering, loss of enjoyment of life and exacerbation of
existing disabilities.
The class action is based upon the Ontario government's alleged
negligence and breach of fiduciary duties in the operation,
control and management of Huronia from 1945 until its closing in
2009.
The representative plaintiffs and their litigation guardians
commenced this action in April 2009 seeking to represent all
former residents of Huronia and their families. Koskie Minsky LLP
represents the plaintiffs in this action.
Contact: Kirk Baert, Esq.
Koskie Minsky LLP
Telephone: (416) 595-2117
E-mail: kbaert@kmlaw.ca
Web site: http://www.institutionalsurvivors.com/
KID BRANDS: Faces Securities Class Action in New Jersey
-------------------------------------------------------
The Shuman Law Firm on March 29 disclosed that a class action
lawsuit has been filed in the United States District Court for the
District of New Jersey on behalf of a class of investors who
purchased Kid Brands, Inc. securities between March 26, 2010
through March 15, 2011, inclusive.
If you wish to discuss this action or have any questions
concerning this notice or your rights and interests with respect
to this matter, please contact Kip B. Shuman or Rusty E. Glenn
toll free at (866) 974-8626 or email Mr. Shuman at
kip@shumanlawfirm.com or Mr. Glenn at rusty@shumanlawfirm.com
On March 15, 2011, Kid Brands announced it would delay the filing
of its Annual Report for the year ended Dec. 31, 2010 due to
information uncovered during an investigation into practices at
its LaJobi subsidiary. The investigation found instances where
incorrect import duties were applied to furniture imported from
vendors in China, resulting in violations of anti-dumping
regulations. As a result of the continuing investigation,
LaJobi's President, Larry Bivona, was terminated. Following
this announcement, shares of Kid Brands dropped from a close of
$9.24 per share on March 14, 2011 to close at $6.91 per share on
March 15, 2011.
The Complaint alleges that, throughout the Class Period,
Defendants made false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations and management with respect to the above
issues. Specifically, Defendants allegedly failed to disclose:
(1) that the Company was improperly applying import duties; (2)
that the Company lacked adequate internal and financial controls;
and (3) that, as a result of the foregoing, the Company's
financial results were materially false and misleading during the
Class Period.
If you purchased Kid Brands common stock during the Class Period,
you may request that the Court appoint you as lead plaintiff of
the class no later than May 23, 2011. A lead plaintiff is a class
member that acts on behalf of other class members in directing the
litigation. Although your ability to share in any recovery is not
affected by the decision whether or not to seek appointment as a
lead plaintiff, lead plaintiffs make important decisions which
could affect the overall recovery for class members.
The Shuman Law Firm represents investors throughout the nation,
concentrating its practice in securities class actions and
shareholder derivative actions.
Contact: Kip B. Shuman, Esq.
Rusty E. Glenn, Esq.
THE SHUMAN LAW FIRM
Telephone: 866-974-8626
E-mail: kip@shumanlawfirm.com
rusty@shumanlawfirm.com
Web site: http://www.shumanlawfirm.com/
LIVE NATION: Sued in Ark. Over Additional Surcharges on Tickets
---------------------------------------------------------------
Courthouse News Service reports that a class action claims Live
Nation and Ticketmaster violate Arkansas' deceptive trade law by
adding surcharges to tickets, which in the named plaintiff's case,
came to $12.40 extra per ticket.
A copy of the Complaint in McMillan v. Live Nation Entertainment,
Inc., et al., Case No. 60CV-11-1221 (Ark. Cir. Ct., Pulaski Cty.),
is available at:
http://www.courthousenews.com/2011/03/30/Tickets.pdf
The Plaintiff is represented by:
Todd Turner, Esq.
Dan Turner, Esq.
ARNOLD, BATSON, TURNER & TURNER, P.A.
501 Crittenden Street
P.O. Box 480
Arkadelphia, AR 71923
Telephone: (870) 246-9844
E-mail: Todd@ArnoldBatsonTurner.com
- and -
Rodney Moore, Esq.
WRIGHT, BERRY, MOORE & WHITE, P.A.
303 Professional Park Drive
P.O. Box 947
Arkadelphia, AR 71923
Telephone: (870) 246-6796
E-mail: rodney@arklaw.com
LOWE'S HIW: Sued for Non-Payment of Overtime Wage
-------------------------------------------------
Catherine Jane Valle, et al., on behalf of themselves and others
similarly situated v. Lowe's HIW, Inc., Case No. 11-cv-01489 (N.D.
Calif. March 28, 2011), accuses the home improvement retailer of
non-payment of overtime wages, failure to provide accurate
itemized wage statements, and unfair competition in violation of
Cal. Bus. & Prof. Code Sections 17200 et seq.
Catherine Jane Valle was employed by Defendant Lowe's HIW. Inc. in
California as a "Zone Manager" from August 2007 to January 2011.
The job duties that are performed by Zone Managers primarily
involve providing customer service to guests, assisting in the
merchandising operation and working as a Zone Manager for the
customer service and merchandising segments of shift laborers who
perform the same work.
Lowe's HIW is the second largest home improvement and home
appliance retailer in the United States with over 1,700 stores in
the United States and Canada and annual sales over
$47 billion.
The plaintiffs are represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik , Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Website: http://www.bamlawca.com/
LVNV FUNDING: Sued for Unlawful Debt Collection Activities
----------------------------------------------------------
Matthew Trice, on his own behalf and on behalf of others similarly
situated v. LVNV Funding, LLC, Case No. 2011-CH-11741 (Ill. Cir.
Ct., Cook Cty. March 28, 2011), accuses the debt collector of
engaging in unlawful debt collection activities during the time
that it was not registered as a debt collector as required by the
Illinois Collection Agency Act, 225 ILCS 425 et seq.
Matthew Trice is an individual residing in Chicago, Cook County,
Illinois.
The Plaintiff is represented by:
Clinton A. Krislov, Esq.
Michael R. Karnuth, Esq.
Eve Lynn J. Rapp, Esq.
KRISLOV & ASSOCIATES, LTD.
20 N. Wacker Dr., Suite 1350
Chicago, IL 60606
Telephone: (312) 606-0500
- and -
Theodore Woerthwein, Esq.
John Miller, Esq.
WOERTHWEIN & MILLER
225 W. Washington St., Suite 2200
Chicago, IL 60606
Telephone: (312) 654-0001
E-mail: wam@wamlaw.com
MARVELL TECHNOLOGY: Appeals From IPO Suit Settlement Still Pending
------------------------------------------------------------------
Appeals from the approval of the global settlement of the
coordinated litigation related to Marvell Technology Group Ltd.'s
initial public offering remains pending, according to the
Company's March 28, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended January 29,
2011.
In 2001, two putative class action lawsuits were filed in the
United States District Court for the Southern District of New York
concerning certain alleged underwriting practices related to the
Company's initial public offering on June 29, 2000. The actions
were consolidated and a consolidated complaint was filed, naming
as defendants certain investment banks that participated in the
IPO, the Company, and two of its officers, one of whom is also a
director. Plaintiffs claim that defendants violated certain
provisions of the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, by allegedly failing
to disclose that the underwriters received "excessive" and
undisclosed commissions and entered into unlawful "tie-in"
agreements with certain of their clients. The consolidated
complaint seeks unspecified damages, interest and fees. In
addition, this case has been coordinated with hundreds of other
lawsuits filed by plaintiffs against underwriters and issuers for
approximately 300 other IPOs. Defendants in the coordinated
proceedings moved to dismiss the actions. In February 2003, the
trial court granted the motions in part and denied them in part,
allowing certain claims to proceed.
The parties have reached a global settlement of the coordinated
litigation. Under the settlement, the insurers will pay the full
amount of 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 issued an order of final approval of
the settlement. Certain objectors have filed appeals, and
plaintiffs have filed motions to dismiss the appeals.
If for any reason the settlement does not become effective, the
Company believes it has meritorious defenses to the claims against
it and intends to defend the action vigorously.
MARVELL TECHNOLOGY: Trial on Suit Against Unit Set for Sept. 26
---------------------------------------------------------------
Trial on the class action lawsuit against Marvell Semiconductor,
Inc., has been set for September 26, 2011, according to Marvell
Technology Group Ltd.'s March 28, 2011, Form 10-K filing with the
U.S. Securities and Exchange Commission for the year ended
January 29, 2011.
On October 18, 2006, Dan Holton, a former employee of Marvell
Semiconductor, Inc., filed a civil complaint in Santa Clara County
Superior Court. Holton alleges that MSI misclassified him as an
exempt employee. Holton claims that due to its misclassification
MSI owes him unpaid wages for overtime, penalties for missed meal
periods, and various other penalties under the California Labor
Code, as well as interest. Holton also pursues a cause of action
for unfair business practices under the California Business &
Profession Code. Holton brought his complaint as a class action.
On July 8, 2009, the Court granted certification of this class:
"All Individual Contributor Engineers who held the title of PCB
Designer, Associate Engineer, Engineer, Staff Engineer and Senior
Engineers, who at any time during the class period while holding
these positions did not have a degree above a baccalaureate degree
nor a degree above a baccalaureate degree in a field of science
related to the work performed, and worked for MSI in California,
at any time from October 19, 2002 through the present."
MSI disputes all of plaintiff's class claims, and intends to
defend this matter vigorously. The matter has been set for trial
on September 26, 2011.
MASSEY ENERGY: Spartan Unit's Appeal in Class Suit Still Pending
----------------------------------------------------------------
Massey Energy Company disclosed in its March 1, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010, that an appeal remains
pending in the Spartan Unfair Labor Practice Matter & Related Age
Discrimination Class Action.
In 2005, the United Mine Workers of America filed an unfair labor
practice charge with the National Labor Relations Board alleging
that one of the Company's subsidiaries, Spartan Mining Company,
discriminated on the basis of anti-union animus in its employment
offers. The NLRB issued a complaint and an NLRB Administrative
Law Judge issued a recommended decision making detailed findings
that Spartan committed a number of unfair labor practice
violations and awarding, among other relief, back pay damages to
union discriminatees. On September 30, 2009, the NLRB upheld the
ALJ's recommended decision. Spartan has appealed the NLRB's
decision to the Fourth Circuit Court. The Company has no
insurance coverage applicable to this unfair labor practice
matter; however, its resolution is not expected to have a material
impact on its cash flows, results of operations or financial
condition.
MCCARRAN AIRPORT: Sued Over Self-Service Ticketing Kiosks
---------------------------------------------------------
Nick Divito at Courthouse News Service reports that McCarran
International Airport's self-service ticketing kiosks violate the
civil rights of blind passengers, the National Federation of the
Blind claims in a federal class action on behalf of its 50,000
members.
The airport, which is owned by Clark County, uses 180 kiosks "in
its terminals and concourses as the primary means for airline
passengers to gather information from and engage in transactions
with air carriers at McCarran," the complaints states. The kiosks
provide flight information, print tickets, allow passengers select
seats, check bags and upgrade tickets.
"By deploying automated 'common use self-service' ticketing kiosks
at McCarran International Airport that are inaccessible to blind
customers," the airport and Clark County are "denying blind
persons the use of the . . . kiosks" offered to "non-disabled
airline passengers," the complaint states.
Because the kiosks "make it possible for travelers to obtain
information and process transactions without assistance from
others," they provide "sighted air travelers numerous, unique
benefits, including convenience, privacy and independence."
But the kiosks are "inaccessible to blind individuals because the
machines use exclusively visual computer screen prompts and flat
panel touch-screen navigation to guide a customer through a
transaction without translating the prompts into a medium
accessible to the blind, such as audio output or tactile raised
buttons," according to the complaint.
There are companies that use such technologies to make the flat
panel touch-screen kiosks accessible to the blind, but the
federation says Clark County "has refused" to purchase them.
Plaintiffs Alan and Billie Ruth Schlank, a blind couple from
Arlington, Va., travel to Las Vegas regularly to use their time-
share, but "have been unable to use the . . . kiosks independently
because [they] require sight to operate," according to the
complaint. "Mr. and Mrs. Schlank are faced with the dilemma of
having to wait for an airline employee to assist them with the
check-in process, or having to provide sensitive, private
information to a sighted stranger who can access the . . . kiosks
for them."
Other named plaintiffs with similar complaints include Joyce Pratt
of Gillette, N.J., who is blind and who flies regularly into
McCarran Airport to visit her family; and Mark Ardeon, of Seattle,
who is blind and "desires to fly into and out of McCarran while
vacationing in Las Vegas."
The organization seeks corrective action and unspecified damages
for the named plaintiffs, for violations of the Americans with
Disabilities Act and the Rehabilitation Act.
A copy of the Complaint in National Federation of the Blind, et
al. v. Clark County Nevada, et al., Case No. 11-cv-00474 (D.
Nev.), is available at:
http://www.courthousenews.com/2011/03/30/BlindAirport.pdf
The Plaintiffs are represented by:
Eric Taylor, Esq.
7401 West Charleston Boulevard
Las Vegas, NV 89117-1401
Telephone: (702) 384-7000
- and -
Laurence W. Paradis, Esq.
Kevin Knestrick, Esq.
Karla Gilbride, Esq.
DISABILITY RIGHTS ADVOCATES
2001 Center Street, Third Floor
Berkeley, CA 94704
Telephone: (510) 665-8644
- and -
Daniel F. Goldstein, Esq.
Gregory P. Care, Esq.
Timothy R. Elder, Esq.
BROWN, GOLDSTEIN & LEVY, LLP
120 East Baltimore Street, Suite 1700
Baltimore, MD 21202
Telephone: (410) 962-1030
E-mail: dfg@browngold.com
MI WINDOWS: Law Firm Investigates Window-Related Water Intrusion
----------------------------------------------------------------
Parker Waichman Alonso LLP, a national law firm with offices in
New York, New Jersey, Florida, and Maryland, is investigating
complaints of water intrusion and property damage in homes fitted
with 8500/3500 single hung windows made by MI Windows and Doors,
Inc. A class action lawsuit has already been filed in the state
of North Carolina alleging that homes and property have been
damaged as a result of the defective design of these windows.
Parker Waichman Alonso LLP is offering free case evaluations to
consumers nationwide who have suffered similar damage to their
homes and property because these windows failed to perform as
promised by MI Windows and Doors, Inc. For more info go to
http://www.yourlawyer.com/topics/overview/MI-Windows-Doors-8500-
3500-Windows-Lawsuit-Class-Action
MI Windows and Doors, Inc., based in Pennsylvania, is one of the
largest manufacturers of vinyl, aluminum and cellular windows and
doors in the country. Marketing materials for the company's
8500/3500 single hung windows promise that these products are free
from defects in material and workmanship. However, according to a
class action lawsuit filed in North Carolina Superior Court, the
8500/3500 single hung windows contain a defect that results in
loss of seal at the bead along the bottom of the double pane
glass. This allows water to enter the inside of the window, as
well as the structures that are fitted with these windows. This
water intrusion can lead to the formation of mineral deposits and
mold, as well as damage to other property within the home.
The lawsuit also alleges that MI Windows and Doors knew of this
defect, but has not notified all homeowners or offered any remedy.
Further, MI Windows and Doors does not include the labor or
installation costs associated with window replacement in its
warranty coverage for the 8500/3500 single hung windows, and it
does not provide warranty coverage for subsequent purchasers of
homes fitted with these windows. As such, owners of homes
containing these windows have incurred substantial costs for labor
and installation of replacement windows. They have also had to
repair or replace other property in their home because the windows
allow water leaks to drip onto their walls and floors. The values
of homes fitted with these windows have also been diminished
because of the alleged defect and accompanying damage.
If your home was fitted with 8500/3500 single hung windows
manufactured by MI Windows and Doors, Inc., and you have
experienced water intrusion and property damage, please contact
Parker Waichman Alonso LLP today for a free legal evaluation.
Consultations are available through the firm's Web site at
http://www.yourlawyer.com/or by calling 1 800 LAW INFO (1-800-
529-4636).
Parker Waichman Alonso is a personal injury law firm that
represents plaintiffs nationwide. The firm has offices in New
York, New Jersey and Florida. Parker Waichman Alonso LLP has
assisted thousands of clients in receiving fair compensation for
injuries resulting from defective products, drugs, and medical
devices.
For more information on Parker Waichman Alonso LLP, please visit:
http://www.yourlawyer.com/or call 1-800-LAW-INFO (1-800-529-
4636).
NIVS INTELLIMEDIA: Faces Securities Class Action in California
--------------------------------------------------------------
Federman & Sherwood disclosed that on March 29, 2011, a class
action lawsuit was filed in the United States District Court for
the Central District of California against NIVS IntelliMedia
Technology Group, Inc. The complaint alleges violations of
federal securities laws, Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5, including
allegations of issuing a series of material misrepresentations to
the market which had the effect of artificially inflating the
market price. The class period is from March 24, 2010 through
March 25, 2011.
Plaintiff seeks to recover damages on behalf of the Class. If you
are a member of the Class as described above, you may move the
Court no later than Tuesday, May 31, 2011, to serve as a lead
plaintiff for the Class. However, in order to do so, you must
meet certain legal requirements pursuant to the Private Securities
Litigation Reform Act of 1995.
If you wish to discuss this action, participate in this or any
other lawsuit, or have any questions or concerns regarding this
notice, or preservation of your rights, please contact:
K. Lynn Nunn, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Email: kln@federmanlaw.com
Web site: http://www.federmanlaw.com/
PIZZA HUT: Minimum Wage Suit Granted Conditional Certification
--------------------------------------------------------------
PizzaMarketPlace.com reports that more than 20,000 delivery
drivers for Pizza Hut's largest franchisee, NPC International
Inc., are now considered eligible plaintiffs in a national class
action suit stemming from mileage reimbursement.
According to the Kansas City Star, a U.S. District Judge granted
conditional certification for the drivers based on minimum wage
violations. The violations center on a pay rate significantly
below the IRS mileage reimbursement rate for drivers who use their
personal vehicles. The discrepancy causes the employees' overall
pay to fall below minimum wage rates.
The mileage reimbursement issue affects about 1,135 Pizza Hut
stores operated by NPC International in 28 states. Employees
eligible for plaintiff status in the case have 90 days to be
included in the lawsuit.
Vonnie Walbert, NPC's vice president of human resources, responded
to the lawsuit on March 29: "We believe this litigation is lawyer-
driven and will continue to vigorously defend our position. We
value our delivery drivers and believe we reimburse them fairly.
We look forward to having the opportunity to prove this once the
court evaluates the merits of this case."
OPTIONSXPRESS HOLDINGS: D&Os Sued Over Sale to Schwab
-----------------------------------------------------
Christopher Shotter, on behalf of himself and others similarly
situated v. optionsXpress Holdings, Inc., et al., Case No.
2011-CH-11957 (Ill. Cir. Ct., Cook Cty. March 29, 2011), accuses
the directors of optionsXpress of breaching their fiduciary duty
to the holders of the Company's common shares in connection with
their efforts to sell the Company to The Charles Schwab
Corporation through an unfair process and at an unfair price.
Mr. Shotter further alleges that the Company's directors were
aided and abetted by the Company and by Schwab in breaching their
fiduciary duties.
On March 21, 2011, Schwab and optionsXpress announced that on
March 18, 2011, they had entered into a merger agreement, pursuant
to which Schwab would acquire all the outstanding stock of
optionsXpress in a stock exchange of 1.02 shares of Schwab stock
per share of optionsXpress stock. At the time, the deal was
valued at approximately $17.91 per share.
Mr. Shotter says the proposed transaction significantly
undervalues optionsXpress's stock. Schwab's offer to acquire
optionsXpress's stock for 1.02 share of Schwab stock does not
fairly value optionsXpress. The Complaint cites that
optionsXpress's stock traded at $21 per share as recently as
December 22, 2010.
Mr. Shotter relates that the individual defendants have agreed to
deprive optionsXpress's shareholders of the value of their
investment in the Company in exchange for illegal insider benefits
for themselves and pursuant to a defective and unfair sales
process. These insider benefits include alleged golden parachutes
which will pay lucrative amounts of money to certain insiders upon
a change of control and continued employment with Schwab after the
merger for defendant David A. Fisher, the Company's CEO and his
team.
In addition, Mr. Shotter avers that the sales process pursuant to
which optionsXpress was hand delivered to Schwab was also tainted
by the conflicts of interest faced by defendants Fisher and James
A. Gray, a director of the Company and its single largest
shareholder. Both of these individuals, who stand much more to
gain than the Company's public shareholders, were the main
negotiators for the Company in its dealings with Schwab.
Moreover, under specified conditions, optionsXpress is obligated
to pay Schwab a $41,900,000 termination fee if it cancels the
merger agreement in response to a superior proposal. The
termination fee is a disincentive for optionsXpress to seek out
superior proposals.
Headquartered in Chicago, optionsXpress is a leading online
brokerage company specializing in equity options and futures
trading. Defendant The Charles Schwab Corporation is a California
corporation headquartered in San Francisco, California.
Plaintiff is, and at all times relevant to the Complaint was, a
shareholder of optionsXpress Holdings, Inc.
The Plaintiff is represented by:
Adam J. Levitt, Esq.
John E. Tangren, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
55 West Monroe Street, Suite 1111
Chicago, IL 60603
Telephone: (312) 984-0000
E-mail: levitt@whafh.com
tangren@whafh.com
- and -
Gregory M. Nespole, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: nespole@whafh.com
- and -
Francis A. Bottini, Jr., Esq.
JOHNSON BOTTINI, LLP
501 West Broadway, Suite 1720
San Diego, CA 92101
Telephone: (619) 230-0063
PT CHICAGO: Sued for Violations of Landlord and Tenant Ordinance
----------------------------------------------------------------
Douglas Rodriguez, et al., on behalf of themselves and others
similarly situated v. PT Chicago, L.L.C., Case No. 2011-CH-11702
(Ill. Cir. Ct., Cook Cty. March 28, 2011), asserts violations of
the Chicago Residential Landlord and Tenant Ordinance, Chicago
Municipal Code, Chapter 5-12. The Complaint states that defendant
failed to provide plaintiffs with the current interest rate for
Chicago security deposits for the year 2010 when the lease was
initially offered to Plaintiffs on June 28, 2010. In addition,
defendant failed to provide plaintiffs with a separate summary of
the RLTO, describing the respective rights, obligations, and
remedies of landlords and tenants with respect to security
deposits, including the new interest rate as well as the rate for
each of the prior two years, at the time the rental agreement was
initially offered to Plaintiffs.
At all relevant times, Plaintiffs, Douglas Rodriguez and Anselmo
Egos. were tenants of Apt. No. 04-4903 located at 625 W. Madison
St. in Chicago, Illinois. The dwelling unit is located in one (1)
one of four (4) buildings, which compromise "Presidential Towers"
in downtown Chicago, Illinois.
At all relevant times in this verified complaint, PT Chicago,
L.L.C., was vested with all or part of the legal title to the
building or all or part of the beneficial ownership of the subject
buildings comprising Presidential Towers. Additionally, defendant
served as landlord, lessor, and authorized management agent of
plaintiffs' dwelling unit.
The plaintiffs are represented by:
Aaron Krolik Law Office, P.C.
134 N. LaSalle St.. Suite 700
Chicago, IL 60602
Telephone: (312) 558-1978
- and -
SPINAK AND BABCOCK, P.C.
134 N. LaSalle St., Suite 700
Chicago, IL 60602
Telephone: (312) 346-1338
REACHLOCAL INC: Second Wage & Hour Suit Won't Affect Settlement
---------------------------------------------------------------
ReachLocal, Inc., is facing a second class action lawsuit in
California filed by former employees alleging wage and hour
violations, according to the Company's March 28, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
On March 1, 2010, a class action lawsuit was filed by two of the
Company's former employees in California Superior Court in Los
Angeles, California. The complaint alleged wage and hour
violations in a Fair Labor Standards Act collective action and a
California class action. On November 17, 2010, the Company
executed a memorandum of understanding to settle the class action
for $0.8 million, which includes legal expenses. The memorandum
of understanding remains subject to confirmation by the presiding
court. On or about February 2, 2011, a second class action
lawsuit was filed by former employees which also alleged
substantially similar wage and hour violations. Accordingly, this
lawsuit will be consolidated with the prior class action and it is
not expected to disrupt the prior settlement or result in material
additional costs.
RTFX INC: Sued for Uninhabitable Conditions at Chicago Apt. Bldg.
----------------------------------------------------------------
Toccara Faison, on behalf of herself and others similarly situated
v. RTFX, Inc., et al., Case No. 2010-CH-11658 (Ill. Cir. Ct., Cook
Cty. March 28, 2011), alleges security deposit violations,
including but not limited to defendants' failure to provide
separate security deposit receipts, failure to tender an updated
summary of the Residential Landlord and Tenant Ordinance upon
renewing or prospective renewing their lease agreement, failing to
identify owner and agents, failure to provide notice of conditions
affecting habitability, and unsafe, unsanitary, and uninhabitable
conditions throughout plaintiff's tenancy at defendant's property
located at 2420 North Kedzie Avenue, in Chicago, Illinois.
On or about April 4, 2007, plaintiff and defendant entered into a
written, one-year lease agreement for unit B3 at subject matter
property, in which plaintiff was the tenant and defendant was the
landlord. The subject matter property is an apartment building
that contains approximately 52 units.
The Plaintiff is represented by:
Berton N. Ring, Esq.
BERTON N. RING, P.C.
123 West Madison Street, 15th Floor
Chicago, IL 60602
Telephone: (312) 781-0290
SERVICEMASTER CO: Unit Awaits Final Okay of "Rudd" Suit Settlement
------------------------------------------------------------------
American Home Shield Corporation is awaiting final approval from
the U.S. District Court for the Northern District of Alabama of
its settlement to resolve the lawsuit filed by Abigail Rudd, et
al., according to The ServiceMaster Company's March 28, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
In the ordinary course of conducting business activities, the
Company and its subsidiaries become involved in judicial,
administrative and regulatory proceedings involving both private
parties and governmental authorities. These proceedings include,
on an individual, collective and class action basis, regulatory,
insured and uninsured employment, general and commercial
liability, wage and hour and environmental proceedings. The
Company has entered into settlement agreements in certain cases,
including putative collective and class actions, which are subject
to court approval. For instance, one of the Company's six
principal reportable segments, American Home Shield Corporation,
was sued in a putative class action on May 26, 2009, in the U.S.
District Court for the Northern District of Alabama by Abigail
Rudd, et al., and is alleged to have violated Section 8 of the
Real Estate Settlement Procedures Act in connection with certain
payments made to real estate agencies. On March 4, 2011, the
court granted preliminary approval of a settlement to resolve this
matter, which settlement is not expected to have a material effect
on the Company's reputation, business, financial position, results
of operations or cash flows.
If one or more of the Company's settlements are not finally
approved, the Company says it could have additional or different
exposure, which could be material. At this time, the Company says
it does not expect any of these proceedings to have a material
effect on its reputation, business, financial position, results of
operations or cash flows; however, the Company can give no
assurance that the results of any such proceedings may not prove
to be material to its reputation, business, financial position,
results of operations and cash flows.
SYNERON MEDICAL: Court Okays Settlement in Candela-Related Suit
---------------------------------------------------------------
The Suffolk County Superior Court of Massachusetts approved a
settlement in the consolidated class action lawsuit against
Syneron Medical Ltd. relating to its merger with Candela
Corporation, according to the Company's March 28, 2011, Form 20-F
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
On September 24, 2009, and October 30, 2009, after the
announcement of the Company's proposed merger with Candela
Corporation, two putative class action lawsuits were filed in the
Suffolk County Superior Court of Massachusetts against Candela,
the members of Candela's board of directors, among others (one of
the lawsuits included the Company as a defendant). The two
actions were thereafter consolidated. Plaintiffs alleged that
members of Candela's board of directors breached fiduciary duties
owed to Candela stockholders by, among other things, using an
unfair or flawed process in connection with the proposed merger
between Candela and the Company, agreeing to an all-stock
transaction at an unfair price, and omitting material information
and/or providing materially misleading information concerning the
merger. The consolidated action further alleged that Candela and
the Company aided and abetted the purported breaches of fiduciary
duties. The complaint seeks, among other relief: an injunction
against the merger; rescission of the transaction (or damages) if
consummated; and an award of all costs of the actions, including
reasonable attorneys' fees and expenses. While Candela and the
other defendants believe the allegations in the complaints are
entirely without merit and that they have valid defenses to all
claims, in an effort to minimize the cost and expense of
litigation, the defendants entered into a proposed settlement with
the plaintiffs. The proposed settlement provides for plaintiff's
release of any and all claims and causes of action alleged in the
complaints, or arising out of or relating in any manner thereto,
in exchange for adding in the proxy statement/prospectus relating
to the proposed merger certain additional limited disclosures and
reducing the termination fee payable by Candela to the Company
under the circumstances outlined in the merger agreement from $2.6
million to $2.1 million. The defendants have also agreed not to
oppose any fee application by plaintiffs' counsel that does not
exceed $260,000. On September 8, 2010, the court approved the
settlement, and dismissed the case. The court also ordered
Candela to pay to plaintiffs' counsel attorneys' fees and expenses
in the amount of $260,000, in accordance of the proposed
settlement. Candela's insurer has paid plaintiff's counsel the
full settlement amount.
TEXAS: Faces Class Action Over Shortfalls in Foster Care System
---------------------------------------------------------------
Cameron Langford at Courthouse News Service reports that a federal
class action claims Texas makes little effort to find permanent
homes for children in the state's long-term orphan program, moving
them frequently with no regard for their well-being, and placing
them in foster and "residential treatment homes" with substandard
care.
Guardians of nine children sued on behalf of the 12,000 children
in the state's long-term foster care or "Permanent Managing
Conservatorship" (PMC).
Each year thousands of children are taken into custody of the
state's Department of Family and Protective Services (DFPS) after
being neglected or abused in their homes, the complaint states.
"This custody, called 'substitute care' in Texas, is intended to
be temporary, lasting only until a child can either safely be
returned home or placed with another permanent family," the
complaint states.
"The state is required to make efforts to achieve one of these
outcomes within the first year that a child is in custody. If the
state is not able to achieve reunification or other permanency
within that time, the child is placed in the state's PMC.
"Once children enter the state's PMC, DFPS makes little effort to
find them permanent homes. Instead, these children remain in
state custody for many years, and many are abused while in the
state's custody."
In May 2010, 500 children had been in Texas state custody for more
than 10 years, according to the complaint.
Children languish in state care even though, as of August 2010,
nearly three-quarters of children in the state's PMC were legally
free for adoption, the class says. "Each year, far too many
children leave the state's PMC only when they turn eighteen and
'age out,'" the class claims.
The state also fails in its obligation to find its wards the
"least restrictive, most family-like placements appropriate to
their needs," but instead moves them from place to place, the
class says.
"As of 2009, children in the state's PMC who had been in DFPS
custody for more than three years had been in an average of eleven
placements," according to the complaint.
The state also places many kids in its Permanent Managing
Conservatorship in foster homes with 7 to 12 children without
professional staff to care for them, or in residential treatment
centers that can be harmful to the orphans, the complaint states.
The class says these shortfalls in the Texas foster care system
are caused by several factors, including a shortage of DFPS
staffers, DFPS case workers failing to implement "appropriate
permanency plans for children," the state's failure to assure
there is "an adequate range of placements and services" to meet
the children's needs, and the state's lax oversight of foster
homes where kids are placed.
Texas has known that its foster-care program needed help since it
received a failing grade in a 2002 federal audit, the class says.
"In 2008, the federal government fined Texas $4 million for not
seeing to it that children in state custody received the number of
monthly visits by conservatorship caseworkers that are required by
federal child welfare performance standards," the class says.
"Children in Texas's PMC will continue to be harmed, and their
constitutional rights will continue to be violated, unless and
until fundamental changes are made to this damaging system," the
class claims. "Defendants are knowingly failing to discharge
their constitutional and statutory obligations to ensure the
safety, permanency, and well-being of the children in the
Plaintiff Class, exposing them instead to harm and risk of harm
through the very system that is charged with protecting them."
The 89-page complaint names as defendants Gov. Rick Perry, the
head of Texas' Health and Human Services Commission Thomas Suehs,
and the commissioner of Texas' Department of Family and Protective
Services Anne Heiligenstein.
The class seeks a permanent injunction requiring the DFPS to
establish an "administrative accountability structure" to address
each orphan's needs for a permanent residence, placement in the
most "family-like" settings, and mental health services suited to
their needs.
They also want DFPS ordered to create "special experts panels" to
review the cases of all class members who have had more than four
placements, or have been in the state's care long-term care for
more than 2 years.
Finally, the class seeks an order prohibiting the state from
placing children in foster homes, foster group homes, emergency
shelters, group residential operations or residential treatment
centers that do not meet standards set by the Child Welfare League
of America.
A copy of the Complaint in M.D., et al. v. Perry, et al., Case No.
11-cv-00084 (S.D. Tex.) (Jack, J.), is available at:
http://www.courthousenews.com/2011/03/30/TexKids.pdf
The Plaintiffs are represented by:
J.A. "Tony" Canales, Esq.
Hector Canales, Esq.
Patricia C. Bell, Esq.
CANALES & SIMONSON, P.C.
2601 Morgan Avenue
Corpus Christi, TX 78467-5624
Telephone: (361) 883-0601
E-mail: tonycanales@canalessimonson.com
hacanales@canalessimonson.com
pmcanales@canalessimonson.com
- and -
Barry F. McNeil, Esq.
R. Thaddeus Behrens, Esq.
Amelia J. Cardenas, Esq.
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, TX 75219
Telephone: (214) 651-5000
E-mail: barry.mcneil@haynesboone.com
thad.behrens@haynesboone.com
amelia.cardenas@haynesboone.com
- and -
R. Paul Yetter, ESq.
Dori K. Goldman, Esq.
Christopher D. Porter, Esq.
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, TX 77010
Telephone: (713) 632-8000
E-mail: pyetter@yettercoleman.com
dgoldman@yettercoleman.com
cporter@yettercoleman.com
- and -
Marcia Robinson Lowry, Esq.
Stephen A. Dixon, Esq.
Olivia Sohmer, Esq.
Jessica Polansky, Esq.
Patrick Almonrode, Esq.
CHILDREN'S RIGHTS
330 Seventh Avenue, Fourth Floor
New York, NY 10001
Telephone: (212) 683-2210
E-mail: mlowry@childrensrights.org
sdixon@childrensrights.org
osohmer@childrensrights.org
jpolansky@childrensrights.org
palmonrode@childrensrights.org
WAL-MART STORES: Class Action Reveals Gender Gap at Court
---------------------------------------------------------
Greg Stohr, writing for Bloomberg News, reports that a gender gap
emerged at the U.S. Supreme Court as the court's three female
justices tussled with their male colleagues over a nationwide
discrimination suit against Wal-Mart Stores Inc.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all
voiced at least qualified support on March 28 for the class-action
suit, which claims women across the country were victimized by
Wal-Mart's practice of letting local managers make subjective
decisions about pay and promotions. The dispute marks the first
gender-bias case the court has considered with three women on the
bench.
The three took the lead in questioning Wal-Mart's attorney,
Theodore Boutrous. Justice Ginsburg spoke about how corporate
decision- makers tend to hire people like themselves, while
Justice Sotomayor endorsed the use of statistical analysis in
discrimination cases. Justice Kagan balked when Mr. Boutrous said
the workers' case was based on an "incoherent theory."
"I guess I'm just a little bit confused as to why excessive
subjectivity is not a policy that can be alleged" as the basis of
a job-discrimination suit, said Justice Kagan, the newest justice.
Their queries put them at odds with Justices Antonin Scalia and
Anthony Kennedy, who questioned whether the women had pointed to a
corporate policy that violated their rights under the main federal
job-bias law, known as Title VII. The justices are considering
whether potentially a million female employees at Wal-Mart have
enough in common to warrant allowing a single nationwide suit
against the company.
Against Discrimination
Justice Scalia said the company had an "announced policy against
sex discrimination" and expressed disbelief when the lawyer
representing the women argued that the reality was just the
opposite.
"Do you think you've adequately shown that that policy is a fraud
and that what's really going on is that there is a central policy
that promotes discrimination against women?" Justice Scalia said.
Justice Ginsburg, who was a leading anti-discrimination advocate
before she became a judge, left little doubt that she took a
different view about the pervasiveness of gender bias in the
workplace. She likened the case to a successful suit in the 1970s
against American Telephone and Telegraph Co. over the use of a
"total person" test to make promotion decisions.
"The idea wasn't at all complicated," Justice Ginsburg said. "It
was that most people prefer themselves and so a decision-maker,
all other things being equal, would prefer someone that looked
like him."
The Wal-Mart case "sounds quite similar," Justice Ginsburg said.
Sotomayor Interjects
Justice Sotomayor interjected more than a dozen times, often
focusing on technical questions and at one point suggesting a
middle ground that would allow a more narrow class action to go
forward.
She challenged Mr. Boutrous when he argued that the plaintiffs
hadn't shown a nationwide pattern of lower pay for women. The
justice said the plaintiffs' expert witness had concluded that the
pay disparity between men and women at Wal-Mart was much higher
than at 10 competitors.
"Why is that kind of statistical analysis inadequate to show that
a policy of some sort exists?" Justice Sotomayor asked.
Each of the three female justices "had a very different style,"
said Marcia Greenberger, co-president of the National Women's Law
Center. Having three women on the bench for a gender-
discrimination case "in and of itself was extraordinary to see,"
she said.
Breyer Alone Concurs
Justice Stephen Breyer was the lone male justice who suggested he
agreed with his female colleagues. He joined Justice Sotomayor in
asking Mr. Boutrous why the justices couldn't at least allow a
limited class action seeking an injunction against the company.
"We've got a common issue," Justice Breyer said.
The case ultimately may divide the court along familiar lines,
leaving those four in dissent.
Justice Kennedy, often the court's swing vote, suggested the
workers could press a nationwide class action only if they could
show the company tolerated gender discrimination through
"deliberate indifference."
He also told the workers' lawyer that the complaint "faces in two
directions."
"You said this is a culture where Arkansas knows, the headquarters
knows, everything that's going on," Justice Kennedy said. "Then
in the next breath, you say, well, now these supervisors have too
much discretion. It seems to me there's an inconsistency there,
and I'm just not sure what the unlawful policy is."
The case is Wal-Mart Stores v. Dukes, 10-277.
WELLS FARGO: Sued for Failing to Pay For All Hours Worked
---------------------------------------------------------
Tania Herrera, et al., on behalf of themselves and others
similarly situated v. Wells Fargo Bank, N. A., et al., Case No.
11-cv-01485 (N.D. Calif. March 28, 2011), accuses Wells Fargo of
a) failing to compensate its non-exempt employees for all hours
worked, including straight time and overtime; b) requiring or
permitting its non-exempt employees to work off the clock without
compensation; c) failing to maintain accurate time records; d)
failing to factor in all forms of remuneration to calculate
overtime pay rates; e) failing to provide accurate itemized wage
statements; f) failing to provide rest and meal breaks; g) failing
to pay all wages due upon termination; g) failing to pay its
nonexempt employees for all vested and unused vacation pay at the
time of termination; and h) engaging in unfair competition.
Wells Fargo Bank, a nationally chartered bank headquartered in
San Francisco, California, is one of the country's largest
financial institutions.
Tania Herrera is a current resident of Union City, Calif. She was
employed as a Customer Service Sales Representative for defendant
from July 2007 through February 14, 2011, at its retail banking
branches in San Leandro, Oakland and Hayward, California. The
Complaint says Ms. Herrera consistently worked in excess of eight
hours per day and forty hours per workweek without being
compensated for all overtime worked or for missed meal and rest
breaks.
The Plaintiffs are represented by:
Michael S. Sorgen, Esq.
Ryan L. Hicks, Esq.
LAW OFFICES OF MICHAEL S. SORGEN
240 Stockton Street, 9th Floor
San Francisco, CA 94108
Telephone: (415) 956-1360
E-mail: msorgen@sorgen.net
rhicks@sorgen.net
- and -
Richard A. Hoyer, Esq.
David C. Lipps, Esq.
HOYER & ASSOCIATES
240 Stockton Street, 9th Floor
San Francisco, CA 94108
Telephone: (415) 956-1360
E-mail: rhoyer@hoyerlaw.com
dlipps@hoyerlaw.com
- and -
Stanley D. Saltzman, Esq.
Marcus Bradley, Esq.
MARLIN | SALTZMAN LLP
29229 Canwood Street, Suite 208
Agoura Hills, CA 91301
Telephone:(818) 991-8080
E-mail: ssaltzman@marlinsaltzman.com
mbradley@marlinsaltzman.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Frederick, Maryland USA. Leah
Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante,
Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
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