/raid1/www/Hosts/bankrupt/CAR_Public/110407.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 7, 2011, Vol. 13, No. 69
Headlines
ADECCO: Faces Class Action Over Non-Payment of Overtime Wages
AFFIRMATIVE INSURANCE: Appeal in "Hollinger" Suit Remains Pending
AFFIRMATIVE INSURANCE: Illinois Court Dismisses "Thomas" Suit
AMERICAN APPAREL: Still Defends Shareholder Litigation in Calif.
ATRICURE INC: Awaits Court Approval of "Levine" Suit Settlement
AUSTRALIA: Farmers Mull Class Action Over Flying Fox Laws
BIG O TIRES: Faces Class Action Over Non-Payment of Overtime
BUSINESS ENERGY: Faces Class Action Over Energy Contracts
CAPITAL ONE: Consolidated Suit Over "Late Fees" Still Stayed
CAPITAL ONE: COBNA & COSL Continue to Face 8 Class Action Suits
CAPITAL ONE: Credit Card Interest Rate MDL in Discovery Stage
CAPITAL ONE: "Steen" Class Action Suit Still Pending in Florida
CARE INVESTMENT: Enters Stipulation Ending Securities Class Suit
CHINA CENTURY: Faces Securities Class Action
CISCO SYSTEMS: Sued for Violation of the Federal Securities Laws
CLIFFORD CHANCE: DVI Investors Lose Bid to Pursue Class Action
COMMERCIAL BARGE: Awaits Court Okay of Stockholder Suit Settlement
COMMERCIAL BARGE: Continues to Defend Collision Incident Suits
CONSUMERINFO.COM: Sued for Misrepresenting Credit Scores
CONVERTED ORGANICS: Still Defends "Leeseberg" Lawsuit in Delaware
DRUG MANUFACTURERS: Settles Class Action for $125 Million
ENERGYSOLUTIONS INC: Seeks Dismissal of IPO Class Suit in New York
GLOBALSTAR INC: Records $700,000 in 2010 Under Suit Settlement
INSPRO TECHNOLOGIES: Court Dismisses Florida Class Suit
JACKSON HEWITT: November 8 Jury Trial Set for Class Action
LEHMAN BROTHERS: Hearing in Australian CDO Class Action Ends
LIBERTY MUTUAL: PPO Case Management Conference Set in May
MOSAIC COMPANY: Awaits 7th Circuit Ruling in Potash Antitrust Suit
MOSAIC COMPANY: Faces Stockholder Suits Over Cargill Transaction
NIKE INC: Removes "McCartney" Song-Beverly Lawsuit to N.D. Calif.
OFFICE DEPOT: Removes "Anderson" Song-Beverly Suit to N.D. Calif.
PAYPAL INC: Faces Nationwide Class Action Over Frozen "Funds"
RAE SYSTEMS: Continues to Defend California Shareholder Litigation
RAE SYSTEMS: Continues to Defend Delaware Shareholder Litigation
REDDY ICE: Continues to Defend Antitrust Class Suit in Michigan
REDDY ICE: Competition Act Class Suit Remains Pending in Ontario
REDDY ICE: Competition Act Class Suit Remains Pending in Alberta
REDDY ICE: Faces Class Suit in Kansas Court
REDDY ICE: Discovery Ongoing in Michigan Consolidated Class Suit
SMART ONLINE: Final "Gooden" Suit Settlement Hearing Set for May
TIGRENT INC: Awaits Approval of C$250,000 Settlement in Brown Suit
TIGRENT INC: Awaits Approval of Settlement in "Springer" Suit
TRIVIEW GLOBAL: MFG Securities Suit Settlement Pending Court Okay
TRIVIEW GLOBAL: Class Suit Against MFG Remains Pending in New York
UMG RECORDINGS: Accused of Retaining Royalties for Own Benefit
UNITED STATES: Lawyers in Dispute Over Cobell Class Action Fees
* Law Offices of Marc S. Henzel Announces Class Action Periods
*********
ADECCO: Faces Class Action Over Non-Payment of Overtime Wages
-------------------------------------------------------------
Courthouse News Service reports that a writer claims Adecco, a
placement service, and Thompson Reuters stiffed him for overtime,
in a class action in Santa Clara Court.
A copy of the Complaint in Beahm v. Adecco, et al., Case No. 1-11-
CV-197800 (Calif. Super. Ct., Santa Clara Cty.), is available at:
http://www.courthousenews.com/2011/04/04/Reuters.pdf
The Plaintiff is represented by:
William Corman, Esq.
BOGATIN, CORMAN & GOLD
1330 Broadway, Suite 800
Oakland, CA 94612
Telephone: (510) 832-5005
E-mail: wcorman@bcgattorneys.com
- and -
Aaron Kaufmann, Esq.
David Pogrel, Esq.
HINTON, ALFERT, SUMMER & KAUFMANN
1646 N. California Blvd., Suite 600
Walnut Creek, CA 94596
Telephone: (925) 932-6006
AFFIRMATIVE INSURANCE: Appeal in "Hollinger" Suit Remains Pending
-----------------------------------------------------------------
An appeal in the class action lawsuit filed by Toni Hollinger
against Affirmative Insurance Holdings Inc. remains pending,
according to the Company's March 31, 2011 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
On August 17, 2009, plaintiff Toni Hollinger filed a putative
class action in the U.S. District Court for the Eastern District
of Texas against several county mutual insurance companies and
reinsurance companies, including Affirmative Insurance Company.
The complaint alleges that defendants engaged in unfair
discrimination and violated the Texas Insurance Code by charging
different policy fees for the same class and hazard of insurance
written through county mutual insurance companies. On August 5,
2010, the Court issued an order dismissing plaintiff's claims for
lack of subject matter jurisdiction. Plaintiff filed a notice of
appeal of the dismissal on August 25, 2010. The appeal is pending.
The Company believes that this claim lacks merit and intends to
defend ourselves vigorously.
Affirmative Insurance Holdings, Inc., is a distributor and
producer of non-standard personal automobile insurance policies
and related products and services for individual consumers in
targeted geographic markets. Non-standard personal automobile
insurance policies provide coverage to drivers who find it
difficult to obtain insurance from standard automobile insurance
companies due to their lack of prior insurance, age, driving
record, limited financial resources or other factors. Non-
standard personal automobile insurance policies generally require
higher premiums than standard automobile insurance policies.
AFFIRMATIVE INSURANCE: Illinois Court Dismisses "Thomas" Suit
-------------------------------------------------------------
An Illinois court dismissed the amended class action complaint
filed by Valerie Thomas against Affirmative Insurance Company,
according to Affirmative Insurance Holdings Inc.'s March 31, 2011
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
On January 12, 2010, the Circuit Court of Cook County, Illinois
granted plaintiff Valerie Thomas leave to amend her complaint to
assert a putative class action against Affirmative Insurance
Company. The complaint alleged that Affirmative failed to provide
a statutory 5% premium discount to insureds who had anti-theft
devices installed as standard equipment on their vehicles even
when the insureds did not disclose the existence of such devices
to Affirmative. The case was consolidated with several identical
class actions against other defendant insurance companies. On
March 24, 2011, pursuant to the parties' Stipulation of Dismissal,
the Court issued an order dismissing the plaintiff's complaint.
Affirmative Insurance Holdings, Inc., is a distributor and
producer of non-standard personal automobile insurance policies
and related products and services for individual consumers in
targeted geographic markets. Non-standard personal automobile
insurance policies provide coverage to drivers who find it
difficult to obtain insurance from standard automobile insurance
companies due to their lack of prior insurance, age, driving
record, limited financial resources or other factors. Non-
standard personal automobile insurance policies generally require
higher premiums than standard automobile insurance policies.
AMERICAN APPAREL: Still Defends Shareholder Litigation in Calif.
----------------------------------------------------------------
American Apparel, Inc., is still defending itself against a
consolidated putative class action in California, according to the
Company's March 31, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
Four putative class action lawsuits, entitled Anthony Andrade v.
American Apparel, et al., Case No. CV106352 MMM (RCx), Douglas
Ormsby v. American Apparel, et al., Case No. CV106513 MMM (RCx),
James Costa v. American Apparel, et al., Case No. CV106516 MMM
(RCx), and Wesley Childs v. American Apparel, et al., Case No.
CV106680 GW (JCGx), were filed in the United States District
Court for the Central District of California on August 25, 2010,
August 31, 2010, August 31, 2010, and September 8, 2010,
respectively, against the Company and certain of its officers and
executives on behalf of American Apparel shareholders who
purchased American Apparel's common stock between December 19,
2006 and August 17, 2010. Plaintiffs allege three causes of
action for violations of Sections 10(b), 20(a), and 14(a) of the
1934 Act, and Rules 10b-5 and 14a-9 promulgated thereunder,
arising out of alleged misrepresentations contained in the
Company's press releases, public filings with the SEC, and other
public statements relating to (i) the adequacy of the Company's
internal and financial control policies and procedures; (ii) the
Company's hiring practices; and (iii) the effect that the
dismissal of over 1,500 employees following an Immigration and
Customs Enforcement inspection would have on the Company. On
December 3, 2010, the four lawsuits were consolidated for all
purposes into a case entitled In re American Apparel, Inc.
Shareholder Litigation, Lead Case No. CV106352. On March 14,
2011, the United States District Court appointed the firm of
Barroway Topaz, LLP to serve as lead counsel and Mr. Charles
Rendelman to serve as lead plaintiff. Mr. Rendelman must file an
amended class action complaint within 45 days of the court's
ruling. Discovery is stayed in the Federal Securities Action, as
well as in the Federal Derivative Action, pending resolution of
any forthcoming motions to dismiss the Federal Securities Action.
Plaintiffs seek damages in an unspecified amount, reasonable
attorneys fees and costs, and equitable relief as the Court may
deem proper.
The Company says it is unable to predict the financial outcome of
these matters at this time, and any views formed as to the
viability of these claims or the financial exposure which could
result may change from time to time as the matters proceed through
their course. However, no assurance can be made that these
matters, either individually or together with the potential for
similar suits and reputational harm, will not result in a material
financial exposure, which could have a material adverse effect
upon the Company's financial condition and results of operations.
ATRICURE INC: Awaits Court Approval of "Levine" Suit Settlement
---------------------------------------------------------------
AtriCure, Inc., is awaiting court approval of a settlement in the
class action lawsuit captioned Levine v. AtriCure, Inc., Case No.
06 CV 14324, according to the Company's March 31, 2011 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
AtriCure, Inc., and certain of its current and former officers
were named as defendants in a purported securities class action
lawsuit filed in the United States District Court for the Southern
District of New York (Levine v. AtriCure, Inc., Case No. 06 CV
14324 (United States District Court for the Southern District of
New York)). The suit alleges violations of the federal securities
laws and seeks damages on behalf of purchasers of the Company's
common stock during the period from the Company's initial public
offering in August 2005 through February 16, 2006. The Company
filed a motion to dismiss the lawsuit for lack of subject matter
jurisdiction. This motion was denied in September 2007, and a
motion for reconsideration of that denial was denied in January
2009. Although the Company admitted no wrongdoing, as of
December 31, 2009, the Company recorded a liability of $2.0
million, which represented an estimate of the potential defense
and settlement costs. In addition, the Company recorded a related
receivable of $2.0 million from its insurance carrier for the
potential defense and settlement costs, as recovery is expected
beyond a reasonable doubt. On October 22, 2010, the parties signed
a Definitive Stipulation of Settlement agreement for $2,000,000,
which is subject to notice to the class as well as approval by the
court. The Company expects to recover all of the $2,000,000 loss
through an insurance claim and has recorded a $2,000,000 asset
within current assets which represents the amount expected to be
recovered beyond a reasonable doubt from the insurance claim.
AtriCure, Inc. -- http://www.atricure.com/-- is a medical device
company that develops, manufactures and sells cardiac surgical
ablation systems designed to create precise lesions, or scars, in
cardiac, or heart, tissue. The company's primary product line,
which accounts for a majority of its revenues, is the AtriCure
Isolator system. AtriCure's Isolator system consists primarily
of a compact power generator known as an ablation and sensing
unit (ASU), a switchbox unit (ASB), which allows physicians to
toggle between multiple products and multiple configurations of
its Isolator clamps, including its Isolator Synergy clamps.
AtriCure also sells a multifunctional bipolar pen, or
multifunctional pen, which is often used by physicians in
combination with its Isolator system to ablate cardiac tissue and
for temporary pacing, sensing, stimulating and recording during
the evaluation of cardiac arrhythmias. In 2008, the company
received FDA approval for its EXCLUDE clinical trial.
AUSTRALIA: Farmers Mull Class Action Over Flying Fox Laws
---------------------------------------------------------
Jackson Vernon and Scott Lamond, writing for ABC News, reports
that Wide Bay farmers in southern Queensland are considering a
class action against the State Government's flying fox mitigation
laws.
In 2008, the Government banned the shooting of flying foxes,
forcing fruit growers to invest in non-lethal control measures
like lighting and netting.
The president of the Bundaberg Orchardists Association, John
Kajewski, says those measures are not working and growers have had
enough.
"Flying foxes are staying in trees -- workers are coming upon
them, let alone the farmers themselves," he said.
"This State Government only wants to say it's affecting lychees.
"We all have to wake up -- it's now hitting citrus.
"It's hitting every crop, so Queensland is in dire straits.
He says the group will meet in the next couple of weeks with
solicitors.
"We're looking at a class action because now this has created a
health issue, a safety issue and just a human work issue with our
own selves, let alone our workers," he said.
Meanwhile, the State Government says it understands the challenges
farmers may face in managing flying foxes and it offers special
loans to implement humane damage mitigation methods.
BIG O TIRES: Faces Class Action Over Non-Payment of Overtime
------------------------------------------------------------
Tire Review reports that a San Diego "mechanic" has filed a class
action lawsuit against Big O Tires LLC, claiming the California
tire and service retailer failed to pay overtime because it
misclassified its service technicians.
Michael Wickham, whose home city and current occupation are
unknown, filed suit against Big O March 11, seeking restitution
and damages for all "mechanics" who worked for Big O stores in the
state. He sued under California labor laws.
Mr. Wickham claims that he and his fellow techs were misclassified
as "exempt" employees, taking away their legal right to overtime
pay. He also claims the misclassification violates the state's
unfair business practices statutes.
According to the suit, the primary job duty of those employees is
performing service and repairs on automobiles, not exempt job
duties such as managing Big O stores. Mr. Wickham claimed that
Big O techs routinely work more than 40 hours a week and/or eight
hours a day, yet Big O has "a consistent policy of failing to pay
wages and/or overtime," the class action lawsuit claims.
The suit was filed in Superior Court County of San Diego, and
covers a class of service technicians who worked for Big O stores
in California from March 7, 2007, through the final disposition of
the case.
BUSINESS ENERGY: Faces Class Action Over Energy Contracts
---------------------------------------------------------
Helen Loveless, writing for This is Money, reports that
controversial energy company Business Energy Solutions is facing a
class action from business customers who claim to have been misled
into taking on hugely expensive energy contracts.
Solicitor Christopher Newton, of Newtons Solicitors in Harrogate,
North Yorkshire, told Financial Mail he had been contacted by
several businesses unhappy about their dealings with BES and
energy broker Commercial Power, both of which are owned by
Andrew Pilley.
Mr. Newton earlier successfully defended a hotel business in court
against attempts by BES to disconnect it in a dispute over bills.
He has had previous court dealings with BES on behalf of a number
of small businesses and is now looking to mount a class action.
Mr. Newton said: "Court proceedings that we have issued against
BES on behalf of individual businesses have been concluded, but we
are unable to disclose terms of settlement due to confidentiality
clauses insisted upon by BES.
"The group action we are preparing will include a claim for
punitive damages against BES due to the consistent nature of the
complaints made by their customers."
Financial Mail reported last year how one businessman had to sell
his shop after falling prey to rogue energy traders. His contract
had been arranged through an energy broker called Commercial
Energy.
The energy supplier was BES, which at the time firmly denied any
allegations of wrongdoing, insisting that it took 'any allegations
of mis-selling by its sub-agents extremely seriously'. Mr. Pilley
has always denied being involved in mis-selling.
In February, Financial Mail reported how Pilley had applied for
new licenses to allow him to supply energy under two different
company names, BES and BES Commercial Electricity.
Despite objections, regulator Ofgem confirmed that it had granted
the licences. A spokeswoman said license holders must 'abide by
the relevant license conditions or risk enforcement action'.
Phil McCabe, spokesman for the Forum of Private Business, said:
"Ofgem appears to be a toothless tiger."
Contact Christopher Newton at chris@newtons.co.uk to join the
class action.
CAPITAL ONE: Consolidated Suit Over "Late Fees" Still Stayed
------------------------------------------------------------
A consolidated lawsuit against Capital One Financial Corp. over
late fees remains stayed, according to Capital One Funding, LLC's
March 31, 2011 Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
In 2007, a number of individual plaintiffs, each purporting to
represent a class of cardholders, filed antitrust lawsuits in the
U.S. District Court for the Northern District of California
against several issuing banks, including the Corporation (In Re
Late Fees Litigation). These lawsuits allege, among other things,
that the defendants conspired to fix the level of late fees and
over-limit fees charged to cardholders, and that these fees are
excessive. In May 2007, the cases were consolidated for all
purposes, and a consolidated amended complaint was filed alleging
violations of federal statutes and state law. The amended
complaint requests civil monetary damages, which could be trebled,
and injunctive relief. In November 2007, the court dismissed the
amended complaint. Plaintiffs appealed that order to the Ninth
Circuit Court of Appeals. The plaintiffs' appeal challenges the
dismissal of their claims under the National Bank Act, the
Depository Institutions Deregulation Act of 1980 and the
California Unfair Competition Law, but not their antitrust
conspiracy claims. In June 2009, the Ninth Circuit Court of
Appeals stayed the matter pending the bankruptcy proceedings of
one of the defendant financial institutions. In December 2010,
the Ninth Circuit Court of Appeals entered an additional order
continuing the stay of the matter pending the bankruptcy
proceedings.
Capital One Financial Corporation -- http://www.capitalone.com/
-- is a diversified financial services company, whose banking and
non-banking subsidiaries market a variety of financial products
and services. Capital One, National Association (CONA), which
offers a range of banking products and financial services to
consumers, small businesses and commercial clients. The company
operates in three segments: Credit Card, Commercial Banking and
Consumer Banking. The company's principal subsidiaries include
Capital One Bank, (USA), National Association (COBNA), which
offers credit and debit card products, other lending products and
deposit products.
CAPITAL ONE: COBNA & COSL Continue to Face 8 Class Action Suits
---------------------------------------------------------------
Eight class action lawsuits filed against Capital One Bank (USA),
National Association and Capital One Services, LLC (COSL) remain
pending, according to Capital One Funding, LLC's March 31, 2011
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2010.
Between January and April 2010, eight substantially similar
putative class actions were filed against Capital One Bank (USA),
National Association and Capital One Services, LLC (COSL)
challenging various marketing practices relating to the bank's
payment protection product: Blackie v. Capital One Bank, et al.
(U.S. District Court for the Eastern District of Pennsylvania);
Carr v. Capital One Bank, et al. (U.S. District Court for the
District of New Jersey); McCoy v. Capital One Bank, et al. (U.S.
District Court for the Southern District of California); Mitchell
v. Capital One Bank, et. al. (U.S. District Court for the Central
District of California); Salazar v. Capital One Bank, et al. (U.S.
District Court for the District of South Carolina); Smith v.
Capital One Bank, et al. (U.S. District Court for the District of
Arkansas); Sullivan v. Capital One Bank, et al, (U.S. District
Court for the District of Connecticut); Watlington v. Capital One
Bank, et al. (U.S. District Court for the Middle District of North
Carolina) -- "The Payment Protection Class Actions". The Payment
Protection Class Actions seek a range of remedies, including
compensatory damages, punitive damages, restitution, disgorgement,
injunctive relief and attorneys' fees. Each of these cases is in
early stages.
No updates were provided in the Company's latest SEC filing.
Capital One Financial Corporation -- http://www.capitalone.com/
-- is a diversified financial services company, whose banking and
non-banking subsidiaries market a variety of financial products
and services. Capital One, National Association (CONA), which
offers a range of banking products and financial services to
consumers, small businesses and commercial clients. The company
operates in three segments: Credit Card, Commercial Banking and
Consumer Banking. The company's principal subsidiaries include
Capital One Bank, (USA), National Association (COBNA), which
offers credit and debit card products, other lending products and
deposit products.
CAPITAL ONE: Credit Card Interest Rate MDL in Discovery Stage
-------------------------------------------------------------
Parties in the Capital One Bank Credit Card Interest Rate Multi-
district Litigation are currently conducting discovery, according
to Capital One Funding, LLC's March 31, 2011 Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2010.
The multi-district litigation matter was created as a result of a
June 2010 transfer order issued by the United States Judicial
Panel on Multidistrict Litigation (MDL), which consolidated for
pretrial proceedings in the U.S. District Court for the Northern
District of Georgia two pending putative class actions against the
bank -- Nancy Mancuso, et al. v. Capital One Bank (USA), N.A., et
al., (E.D. Virginia); and Kevin S. Barker, et al. v. Capital One
Bank (USA), N.A., (N.D. Georgia). A third action, Jennifer L.
Kolkowski v. Capital One Bank (USA), N.A., (C.D. California) was
subsequently transferred into the MDL. On August 2, 2010, the
plaintiffs in the MDL filed a Consolidated Amended Complaint. The
Consolidated Amended Complaint alleges in a putative class action
that the bank breached its contractual obligations, and violated
the Truth in Lending Act, the California Consumers Legal Remedies
Act, the California Unfair Competition Law, the California False
Advertising Act, the New Jersey Consumer Fraud Act, and the Kansas
Consumer Protection Act when it raised interest rates on certain
credit card accounts. The parties are currently conducting
discovery.
Capital One Financial Corporation -- http://www.capitalone.com/
-- is a diversified financial services company, whose banking and
non-banking subsidiaries market a variety of financial products
and services. Capital One, National Association (CONA), which
offers a range of banking products and financial services to
consumers, small businesses and commercial clients. The company
operates in three segments: Credit Card, Commercial Banking and
Consumer Banking. The company's principal subsidiaries include
Capital One Bank, (USA), National Association (COBNA), which
offers credit and debit card products, other lending products and
deposit products.
CAPITAL ONE: "Steen" Class Action Suit Still Pending in Florida
---------------------------------------------------------------
In May 2010, Capital One Financial Corporation and Capital One
Bank (USA), National Association were named as defendants in a
putative class action named Steen v. Capital One Financial
Corporation, et al., filed in the U.S. District Court for the
Eastern District of Louisiana. Plaintiff challenges the Company's
practices relating to fees for overdraft and non-sufficient funds
fees on consumer checking accounts. Plaintiff alleges that the
Company's methodology for posting transactions to customer
accounts is designed to maximize the generation of overdraft fees,
supporting claims for breach of contract, breach of the covenant
of good faith and fair dealing, unconscionability, conversion,
unjust enrichment and violations of state unfair trade practices
laws. Plaintiff seeks a range of remedies, including restitution,
disgorgement, injunctive relief, punitive damages and attorneys'
fees. In May, 2010, the case was transferred to the Southern
District of Florida for coordinated pre-trial proceedings as part
of a multi-district litigation (MDL) involving numerous defendant
banks, In re Checking Account Overdraft Litigation.
No updates were reported in Capital One Funding, LLC's March 31,
2011 Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2010.
Capital One Financial Corporation -- http://www.capitalone.com/
-- is a diversified financial services company, whose banking and
non-banking subsidiaries market a variety of financial products
and services. Capital One, National Association (CONA), which
offers a range of banking products and financial services to
consumers, small businesses and commercial clients. The company
operates in three segments: Credit Card, Commercial Banking and
Consumer Banking. The company's principal subsidiaries include
Capital One Bank, (USA), National Association (COBNA), which
offers credit and debit card products, other lending products and
deposit products.
CARE INVESTMENT: Enters Stipulation Ending Securities Class Suit
----------------------------------------------------------------
Care Investment Trust, Inc., has entered into a stipulation ending
a securities class action lawsuit filed against it, according to
the Company's March 31, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On September 18, 2007, a class action complaint for violations of
federal securities laws was filed in the United States District
Court, Southern District of New York alleging that the
Registration Statement relating to the initial public offering of
shares of the Company's common stock, filed on June 21, 2007,
failed to disclose that certain of the assets in the contributed
portfolio were materially impaired and overvalued and that the
Company was experiencing increasing difficulty in securing its
warehouse financing lines. On January 18, 2008, the court entered
an order appointing co-lead plaintiffs and co-lead counsel. On
February 19, 2008, the co-lead plaintiffs filed an amended
complaint citing additional evidentiary support for the
allegations in the complaint. The Company filed a motion to
dismiss the complaint on April 22, 2008. The plaintiffs filed an
opposition to the Company's motion to dismiss on July 9, 2008, to
which the Company filed its reply on September 10, 2008. On
March 4, 2009, the court denied the Company's motion to dismiss.
The Company filed its answer on April 15, 2009. At a conference
held on May 15, 2009, the Court ordered the parties to make a
joint submission setting forth: (i) the specific statements that
Plaintiffs claim are false and misleading; (ii) the facts on which
Plaintiffs rely as showing each alleged misstatement was false and
misleading; and (iii) the facts on which Defendants rely as
showing those statements were true. The parties filed the Joint
Statement on June 3, 2009. On July 31, 2009, the parties entered
into a stipulation that narrowed the scope of the proceeding to
the single issue of the warehouse financing disclosure in the
Registration Statement. Fact discovery closed on April 23, 2010.
Defendants filed a motion for summary judgment on July 9, 2010.
By Opinion and Order dated December 22, 2010, the Court granted
Defendants' summary judgment motion in its entirety and directed
the Clerk of the Court to enter judgment accordingly.
On January 11, 2011, the parties entered into a stipulation ending
the litigation. In the stipulation: (i) Plaintiffs waived any and
all appeal rights that they have in the action, including, without
limitation, the right to appeal any portion of the Court's Opinion
and Order granting Defendants summary judgment or the judgment
entered by the Clerk; (ii) Defendants waived any and all rights
that they have to seek sanctions of any form against Plaintiffs or
their counsel in connection with the action; and (iii) each party
agreed it would bear its own fees and costs in connection with the
action. The stipulation was so ordered by the Court on
January 12, 2011, bringing the litigation to a close.
CHINA CENTURY: 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
Century Dragon Media, Inc. between Feb. 8, 2011 and March 26,
2011.
China Century is a television advertising company that engages in
the promotion, sale, and marketing of advertising packages on
China television stations. The company was incorporated in 2009
in Delaware, and is headquartered in Huizhou City, Guangdong
Province, China.
The lawsuit alleges that during the Class Period, China Century,
its officers and directors, and certain underwriters violated
federal securities laws by issuing materially false and misleading
information in the company's public offering documents.
On March 21, 2011, trading of China Century shares was halted. On
March 28, 2011, China Century announced that its independent
auditor, MaloneBailey LLP, resigned and had withdrawn its prior
audit opinions of the company's financial statements for 2008 and
2009. MaloneBailey informed China Century that "due to
discrepancies noted on customer confirmations and the auditor's
inability to directly verify the company's bank records, they
believe these irregularities may be an indication that the
accounting records have been falsified, which would constitute an
illegal act."
China Century was also recently notified by the U.S. Securities
and Exchange Commission that it has initiated a formal, non-public
investigation into whether the company had made material
misstatements or omissions concerning its financial statements.
On March 24, 2011, the SEC served China Century a subpoena for
documents relating to the matters under review by the SEC.
If you own shares in China Century and would like more information
about your shareholder rights, please contact Gregory E. Del Gaizo
at 800-350-6003 or via the shareholder information form on our
Web site.
Robbins Umeda LLP -- http://www.robbinsumeda.com/-- 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.
CISCO SYSTEMS: Sued for Violation of the Federal Securities Laws
----------------------------------------------------------------
Harry Schipper, individually and on behalf of others similarly
situated v. Cisco Systems, Inc., et al., Case No. 11-cv-01568
(N.D. Calif. March 31, 2011), asserts violation of the federal
securities laws on behalf of all those who purchased the common
stock of Cisco between May 12, 2010, and February 9, 2011,
inclusive, and who were damaged as a result.
Cisco designs, manufactures, and sells a broad line of products
for transporting data, voice, and video to enterprise businesses,
public institutions, telecommunications companies, commercial
businesses, and personal residences. Cisco's common stock is
traded on the NASDAQ Global Select Market of the NASDAQ stock
market.
Plaintiff says certain of Cisco's senior officers or directors
participated in a fraudulent scheme and course of conduct that
operated as a fraud or deceit on purchasers of Cisco's common
stock by disseminating materially false and misleading statements
or concealing material adverse facts.
According to the lawsuit, the scheme (i) deceived the investing
public regarding Cisco's business, operations and management and
the intrinsic value of Cisco's common stock; (ii) allowed the
Individual Defendants and certain Company insiders to collectively
sell approximately 2.2 million shares of their personally-held
Cisco common stock for proceeds in excess of $52 million; and
(iii) caused Plaintiff and members of the Class to purchase Cisco
common stock at artificially inflated prices.
The Individual Defendants include:
1) John T. Chambers, Chairman of the Board and Chief Executive
Officer of Cisco.
2) Frank Calderoni, Executive Vice President and Chief Financial
Officer at Cisco.
3) Robert Lloyd, Executive Vice President of Cisco's Worldwide
Operations and a member of Cisco's Executive Committee.
4) Phil Smith, CEO of Cisco UK & Ireland, the Company's largest
operation outside of North America.
On May 12, 2010, Cisco announced its financial results for the
fiscal third quarter ended May 1, 2010. For the quarter,
the Company reported net sales of $10.4 billion, GAAP net income
of $2.2 billion or $0.37 per share, and non-GAAP net income of
$2.5 billion or $0.42 per share.
On August 11, 2010, Cisco announced its financial results for
the fiscal fourth quarter and year ended July 31, 2010. For the
quarter, the Company reported net sales of $10.8 billion, GAAP net
income of $1.9 billion or $0.33 per share, and non-GAAP net income
of $2.5 billion or $0.43 per share. For the year, the Company
reported net sales of $40.0 billion, GAAP net income of
$7.8 billion or $1.33 per share, and non-GAAP net income of
$9.4 billion or $1.61 per share.
On November 10, 2010, Cisco announced its financial results for
the 2011 fiscal first quarter ended October 30, 2010. For the
quarter, the Company reported net sales of$10.75 billion, GAAP net
income of $1.9 billion or $0.34 per share, and non GAAP net income
of$2.4 billion or $0.42 per share.
These statements, according to the plaintiff, were each materially
false and misleading when made because they misrepresented and
failed to disclose the following adverse facts, which were known
to Defendants or recklessly disregarded by them:
(a) that Cisco was facing intense pricing pressure for its
products from its more traditional competitors and emerging
Chinese competitors;
(b) that in order to maintain market share and meet its previously
announced growth rate targets in the face of the intense
pricing pressure being exerted by the Company's competitors,
Cisco was forced to dramatically lower prices, which was
having a material adverse effect on the Company's margins; and
(c) based on the foregoing, Defendants lacked a reasonable basis
for their positive statements about Cisco's growth rates,
market share, orders, new product introductions and gross
and operating margins.
Then, on February 9, 2011, the Company announced its financial
results for the 2011 fiscal second quarter ended January 29, 2011.
For the quarter, the Company reported net sales of $10.4 billion,
GAAP net income of $1.5 billion or $0.27 per share, and non-GAAP
net income of $2.1 billion or $0.37 per share.
Following the 2011 fiscal second quarter earnings announcement,
defendants held a conference call with analysts and investors,
wherein defendants noted that non-GAAP gross margins were 62.4%,
down 1.9 percentage points quarter-over-quarter and down 3.2
percentage points year-over-year. Product related non-GAAP gross
margins for the second quarter were 61.1%, down 2.9 percentage
points from the prior quarter.
In response to the unexpected drop in Cisco's margins, shares of
the Company's stock fell $3.12 per share, or more than 14%, to
close at $18.92 per share, on extremely heavy trading volume.
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
E-mail: shawnw@rgrdlaw.com
- and -
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
E-mail: srudman@rgrdlaw.com
- and -
Darren J. Robbins, Esq.
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Telephone: (619) 231-1058
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
- and -
Jack G. Fruchter, Esq.
ABRAHAM, FRUCHTER & TWERSKY, LLP
One Penn Plaza, Suite 2805
New York, NY 10119
Telephone: (212) 279-5050
E-mail: jfruchter@aftlaw.com
CLIFFORD CHANCE: DVI Investors Lose Bid to Pursue Class Action
--------------------------------------------------------------
Shannon P. Duffy, writing for The Legal Intelligencer, reports
that in the wake of the scandalous $1.7 billion collapse of
Diagnostic Ventures Inc., investors have won the right to pursue
class action fraud claims against the firm's auditors at Deloitte
& Touche, but lost their bid to bring class claims against lawyers
from Clifford Chance.
The 3rd U.S. Circuit Court of Appeals has ruled that the auditors
were properly sued under a fraud-on-the-market theory for
allegedly issuing "clean" audit reports that hid DVI's improper
accounting practices.
But the appellate court held that the same theory could not be
used to sue the Clifford Chance lawyers for allegedly advising DVI
to omit negative information from its public filings with the
Securities & Exchange Commission because investors had no
knowledge of the law firm's alleged role in the fraud.
"Because plaintiffs do not contend Clifford Chance's alleged role
in masterminding the fraudulent 10-Q was disclosed to the public,
they cannot invoke the presumption" of reliance necessary to bring
a fraud-on-the-market claim, Chief U.S. Circuit Judge Anthony J.
Scirica wrote in his 58-page opinion in In re DVI Inc. Securities
Litigation.
The decision upholds the class certification rulings of U.S.
District Judge Legrome D. Davis that had sparked appeals from both
the plaintiffs and the auditors.
Legally, the decision is significant because it promises to limit
the potential liability of law firms in securities litigation by
holding that a lawyer's advice to a corporation cannot be the
basis of a class action fraud claim by investors who were never
aware of the advice.
Judge Scirica, who was joined by 3rd Circuit Judge Thomas L. Ambro
and visiting U.S. District Judge John E. Jones III of the Middle
District of Pennsylvania, adopted the reasoning of the 2nd Circuit
in rejecting similar claims against lawyers from Mayer Brown.
In Pacific Investment Management Co. v. Refco , the 2nd Circuit
held that Mayer Brown could not be sued by a class of investors
for allegedly participating in the drafting and disseminating of
Refco's fraudulent public filings.
The 2nd Circuit panel held that the plaintiffs were asking for too
broad a reading of the U.S. Supreme Court's 2008 decision in
Stoneridge Investment Partners v. Scientific-Atlanta Inc. because
"nothing the Mayer Brown defendants did made it necessary or
inevitable for Refco to record the transactions as it did."
Judge Scirica found that the same logic applied to Clifford
Chance.
"No alleged act by Clifford Chance made it necessary for DVI to
file the misleading 10-Q. Even assuming Clifford Chance developed
the workaround to avoid disclosure of DVI's material weaknesses,
and DVI would have issued a truthful 10-Q if the law firm did not
present this alternative, it was still DVI, not Clifford Chance,
that filed it," Judge Scirica wrote.
According to court papers, DVI was a health care finance company
that extended loans to medical providers to facilitate the
purchase of diagnostic medical equipment and leasehold
improvements, and offered lines of credit for working capital
secured by health care receivables. Founded in 1986, DVI was a
publicly traded company with reported assets of $1.7 billion in
2003.
In August 2003, DVI filed for bankruptcy due to the public
disclosure of alleged misrepresentations about the amount and
nature of collateral pledged to lenders. Ultimately, the
company's chief financial officer, Steven Garfinkel, pleaded
guilty to fraud, the bankruptcy trustee and multiple lenders filed
lawsuits, and the company dissolved.
Investors took aim at the auditors and lawyers. The suits said
Deloitte committed securities fraud by wrongfully issuing
unqualified, or "clean," audit reports for fiscal years 1999 to
2002, hiding DVI's improper accounting practices, and declining to
force the company to disclose its fraudulent acts.
The claims against Clifford Chance focused on events in late 2002
when Deloitte told DVI that it was required to disclose, in its
SEC filings, certain weaknesses in DVI's internal controls for
monitoring non-performing assets and assessing impaired loans.
According to the suits, disclosing the information would have
forced DVI to write down millions of dollars of assets and reverse
income accrued on impaired loans.
Although DVI initially prepared a truthful Form 10-Q, the suits
alleged that attorney John Healy, a partner at Clifford Chance,
directed the company not to release it, and instead devised a
"workaround" scheme to avoid having to disclose the weaknesses.
But Davis ruled that the investors could not pursue claims against
Clifford Chance as a class because the law firm's conduct was not
publicly disclosed and it owed no duty of disclosure to DVI's
investors. As a result, Davis found there could be no presumption
of reliance and that individual issues predominated over common
issues.
Now the 3rd Circuit has ruled that Davis was right to deny
certification of the Clifford Chance claims.
"In order for a plaintiff to invoke the fraud-on-the-market
presumption of reliance against a secondary actor in a scheme
liability action under Section 10(b), the plaintiff must show the
deceptive conduct was publicly attributed to that secondary
actor," Judge Scirica wrote.
"It is insufficient to show only that the deceptive conduct was
publicly disclosed through other statements or conduct; the public
must be made aware of the defendant's acts," Judge Scirica wrote.
Succinctly stating the court's holding, Judge Scirica said: "A
plaintiff cannot invoke the fraud-on-the-market presumption of
reliance in a private action under Rule 10b-5(a) and (c) unless
the deceptive conduct has been publicly disclosed and attributed
to the actor."
Applying that holding, Judge Scirica said that "because plaintiffs
do not contend Clifford Chance's alleged role in masterminding the
fraudulent 10-Q was disclosed to the public, they cannot invoke
the presumption. Accordingly, their claim against the law firm
cannot be certified as a class action because individual issues of
reliance predominate."
Clifford Chance was represented in the appeal by Celia G.
Barenholtz of the New York office of Cooley.
Attorney David L. Comerford of the Philadelphia office of Akin
Gump Strauss Hauer & Feld argued the appeal for Deloitte.
Lead plaintiffs attorney Clinton A. Krislov of Krislov &
Associates in Chicago could not be reached for comment on the
ruling.
COMMERCIAL BARGE: Awaits Court Okay of Stockholder Suit Settlement
------------------------------------------------------------------
Commercial Barge Line Company, a wholly-owned subsidiary of
American Commercial Lines Inc., is awaiting court approval of its
settlement of a stockholder class action lawsuit, according to the
Company's March 31, 2011 Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended December 31, 2010.
On October 22, 2010, a putative class action lawsuit was commenced
against the Company, its directors, Platinum Equity LLC, Finn and
Finn Merger Corporation in the Court of Chancery of the State of
Delaware. The lawsuit is captioned Leonard Becker v. American
Commercial Lines Inc., et al, Civil Action No. 5919-VCL. Plaintiff
amended his complaint on November 5, 2010, prior to a formal
response from any defendant. On November 9, 2010, a second
putative class action lawsuit was commenced against the Company,
its directors, Platinum Equity, Finn and Merger Sub in the
Superior/Circuit Court for Clark County in the State of Indiana.
The lawsuit is captioned Michael Eakman v. American Commercial
Lines Inc., et al., Case No. 1002-1011-CT-1344. In both actions,
plaintiffs allege generally that the Company's directors breached
their fiduciary duties in connection with the Transaction by,
among other things, carrying out a process that they allege did
not ensure adequate and fair consideration to the Company's
stockholders. They also allege that various disclosures concerning
the Transaction included in the Definitive Proxy Statement are
inadequate. They further allege that Platinum Equity aided and
abetted the alleged breaches of duties. Plaintiffs purport to
bring the lawsuits on behalf of the public stockholders of the
Company and seek equitable relief to enjoin consummation of the
merger, rescission of the merger and rescissory damages, and
attorneys' fees and costs, among other relief. The Company
believes the lawsuits are without merit.
On December 3, 2010, counsel for the parties in the Delaware
action entered into a Memorandum of Understanding in which they
agreed on the terms of a settlement of the Delaware litigation,
which includes the supplementation of the Definitive Proxy
Statement and the dismissal with prejudice of all claims against
all of the defendants in both the Delaware and Indiana actions.
The proposed settlement is conditional upon, among other things,
the execution of an appropriate stipulation of settlement and
final approval of the proposed settlement by the Delaware Court of
Chancery. Counsel for the named plaintiffs in both actions agreed
to stay the actions pending consideration of final approval of the
settlement in the Delaware Court of Chancery. Assuming such
approval, the named plaintiffs in both actions would dismiss their
respective lawsuits with prejudice against all defendants. In
connection with the settlement agreed upon in the MOU, the parties
contemplate that plaintiffs' counsel will seek an award of
attorneys' fees and expenses as part of the settlement. There can
be no assurance that the parties will ultimately enter into a
stipulation of settlement or that the Delaware Court of Chancery
will approve the settlement as stipulated by the parties. In such
event, the proposed settlement as contemplated by the MOU may be
terminated.
Commercial Barge Line Company, headquartered in Jeffersonville,
Indiana, is the sole first tier subsidiary holding company of
American Commercial Lines Inc., also headquartered in
Jeffersonville, Indiana. ACLI is one of the largest integrated
marine transportation and services companies in the United States,
providing barge transportation and related services, and
construction of barges, towboats and other vessels.
COMMERCIAL BARGE: Continues to Defend Collision Incident Suits
--------------------------------------------------------------
Commercial Barge Line Company, a wholly-owned subsidiary of
American Commercial Lines Inc., continues to defend itself in
several class action lawsuits relating to the collision incident
involving one of the Company's tank barge at Mile Marker 97 of the
Mississippi River, according to the Company's March 31, 2011 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
American Commercial Lines Inc. and American Commercial Lines LLC,
an indirect wholly-owned subsidiary of ACL, have been named as
defendants in several putative class action lawsuits, filed in the
United States District Court for the Eastern District of
Louisiana:
-- Austin Sicard et al on behalf of themselves and others
similarly situated vs. Laurin Maritime (America) Inc.,
Whitefin Shipping Co. Limited, D.R.D. Towing Company, LLC,
American Commercial Lines, Inc. and the New Orleans-Baton
Rouge Steamship Pilots Association, Case No. 08-4012, filed
on July 24, 2008;
-- Stephen Marshall Gabarick and Bernard Attridge, on behalf of
themselves and others similarly situated vs. Laurin Maritime
(America) Inc., Whitefin Shipping Co. Limited, D.R.D. Towing
Company, LLC, American Commercial Lines, Inc. and the New
Orleans-Baton Rouge Steamship Pilots Association, Case No.
08-4007, filed on July 24, 2008; and
-- Alvin McBride, on behalf of himself and all others similarly
situated v. Laurin Maritime (America) Inc.; Whitefin
Shipping Co. Ltd.; D.R.D. Towing Co. LLC; American
Commercial Lines Inc.; The New Orleans-Baton Rouge Steamship
Pilots Association, Case No. 09-cv-04494 B, filed on
July 24, 2009.
The McBride v. Laurin Maritime, et al. action has been dismissed
with prejudice because it was not filed prior to the deadline set
by the Court. The claims in the Class Action Lawsuits stem from
the incident on July 23, 2008, involving one of ACLLLC's tank
barges that was being towed by DRD Towing Company L.L.C., an
independent towing contractor. The tank barge was involved in a
collision with the motor vessel Tintomara, operated by Laurin
Maritime, at Mile Marker 97 of the Mississippi River in the New
Orleans area. The tank barge was carrying approximately 9,900
barrels of #6 oil, of which approximately two-thirds was released.
The tank barge was damaged in the collision and partially sunk.
There was no damage to the towboat. The Tintomara incurred minor
damage. The Class Action Lawsuits include various allegations of
adverse health and psychological damages, disruption of business
operations, destruction and loss of use of natural resources, and
seek unspecified economic, compensatory and punitive damages for
claims of negligence, trespass and nuisance. The Class Action
Lawsuits were stayed pending the outcome of the two actions filed
in the United States District Court for the Eastern District of
Louisiana seeking exoneration from, or limitation of, liability
related to the incident. All claims in the class actions have
been settled with payment to be made from funds on deposit with
the court in the IINA interpleader. IINA is DRD's primary
insurer. The settlement is agreed to by all parties and they are
awaiting final approval from the court and a dismissal of all
lawsuits against all parties, including the Company, with
prejudice. Claims under OPA 90 were dismissed without prejudice.
There is a separate administrative process for making a claim
under OPA 90 that must be followed prior to litigation. The
Company is processing OPA 90 claims properly presented, documented
and recoverable. The Company has also received numerous claims for
personal injury, property damage and various economic damages,
including notification by the National Pollution Funds Center of
claims it has received. Additional lawsuits may be filed and
claims submitted. The claims that remain for personal injury are
by the three DRD crewmen on the vessel at the time of the
incident. Two crew members have agreed to a settlement of their
claims to be paid from the funds on deposit in the interpleader
action. The Company is in early discussions with the Natural
Resource Damage Assessment Group, consisting of various State and
Federal agencies, regarding the scope of environmental damage that
may have been caused by the incident. Recently Buras Marina filed
suit in the Eastern District of Louisiana in Case No. 09-4464
against the Company seeking payment for "rental cost" of its
marina for cleanup operations.
ACL and ACLLLC have also been named as defendants in these
interpleader action brought by DRD's primary insurer IINA seeking
court approval as to the disbursement of the funds: Indemnity
Insurance Company of North America v. DRD Towing Company, LLC; DRD
Towing Group, LLC; American Commercial Lines, LLC; American
Commercial Lines, Inc.; Waits Emmet & Popp, LLC, Daigle, Fisse &
Kessenich; Stephen Marshall Gabarick; Bernard Attridge; Austin
Sicard; Lamont L. Murphy, individually and on behalf of Murphy
Dredging; Deep Delta Distributors, Inc.; David Cvitanovich; Kelly
Clark; Timothy Clark, individually and on behalf of Taylor Clark,
Bradley Barrosse; Tricia Barrosse; Lynn M. Alfonso, Sr.; George C.
McGee; Sherral Irvin; Jefferson Magee; and Acy J. Cooper, Jr.,
United States District Court, Eastern District of Louisiana, Civil
Action 08-4156, Section "I-5," filed on August 11, 2008. DRD's
excess insurers, IINA and Houston Casualty Company intervened into
this action and deposited $9 million into the Court's registry.
ACLLLC has filed two actions in the United States District Court
for the Eastern District of Louisiana seeking exoneration from or
limitation of liability relating to the foregoing incident as
provided for in Rule F of the Supplemental Rules for Certain
Admiralty and Maritime Claims and in 46 U.S.C. sections 30501,
30505 and 30511. The Company has also filed a declaratory judgment
action against DRD seeking to have the contracts between them
declared "void ab initio." Trial has been set for August of 2011
and discovery has begun. The Company participated in the U.S.
Coast Guard investigation of the matter and participated in the
hearings which have concluded. A finding has not yet been
announced. The Company has also made demand on DRD (including its
insurers as an additional insured) and Laurin Maritime for
reimbursement of cleanup costs, defense and indemnification.
However, there is no assurance that any other party that may be
found responsible for the accident will have the insurance or
financial resources available to provide such defense and
indemnification. The Company has various insurance policies
covering pollution, property, marine and general liability. While
the cost of cleanup operations and other potential liabilities are
significant, the Company believes it has satisfactory insurance
coverage and other legal remedies to cover substantially all of
the cost.
Commercial Barge Line Company, headquartered in Jeffersonville,
Indiana, is the sole first tier subsidiary holding company of
American Commercial Lines Inc., also headquartered in
Jeffersonville, Indiana. ACLI is one of the largest integrated
marine transportation and services companies in the United States,
providing barge transportation and related services, and
construction of barges, towboats and other vessels.
CONSUMERINFO.COM: Sued for Misrepresenting Credit Scores
--------------------------------------------------------
Stueve Siegel Hanson LLP disclosed that a class action lawsuit
filed in San Diego, California alleging that Experian subsidiary,
Consumerinfo.com, which operates the Web sites
http://www.freecreditscore.com/and
http://www.freecreditreport.com/fraudulently misrepresents its
credit scores.
According to the lawsuit, Consumerinfo.com takes money from
consumers through false, misleading and deceptive advertisements
for so-called credit scores that are not used by lenders to
determine creditworthiness. The number represented to consumers
by Consumerinfo.com as a credit score is not the consumer's FICO
(Fair Isaac Co.) score, the only third-party score used by lenders
to determine consumer creditworthiness.
The lawsuit alleges that Consumerinfo.com defrauded Plaintiff and
a Class of others similarly situated by (1) misrepresenting that
Consumerinfo.com offers, sells and provides a credit score used by
lenders in determining a consumer's creditworthiness; (2) failing
to sell and provide such credit scores to Plaintiff and the Class
as advertised; and (3) failing to clearly and conspicuously
disclose material facts, including that the advertised "credit
score" is based on a proprietary, in-house method of calculation
-- Experian's Plus Score(R) -- that is not provided to, used by,
or seen by lenders to determine creditworthiness. Federal law
provides for a free credit report annually, but in order to obtain
a credit score it must be purchased from a credit reporting
agency.
"Consumers pay for these scores so they will know what lenders are
evaluating before they apply for a car loan, a credit card, a
mortgage, or other credit. It's a shock when they learn the score
they got from Experian was worthless, and not seen by any lender,"
said Jason Hartley, an attorney representing plaintiffs.
The lawsuit was filed in the Southern District of California in
San Diego, California. Plaintiffs are represented by the law
firms of Stueve Siegel Hanson LLP, and Heins, Mills and Olson PLC.
Stueve Siegel Hanson LLP has offices in Kansas City, Missouri and
San Diego, California. It represents plaintiffs and defendants
nationwide in complex litigation on a contingency basis.
Heins Mills & Olson, P.L.C., located in Minneapolis, is a premier
advocate for businesses, consumers and investors in the nation's
courts.
CONVERTED ORGANICS: Still Defends "Leeseberg" Lawsuit in Delaware
-----------------------------------------------------------------
Converted Organics, Inc., is still defending itself against a
class action lawsuit filed by Gerald S. Leeseburg, according to
the Company's March 31, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
On December 11, 2008, the Company received notice that a complaint
had been filed in a putative class action lawsuit on behalf of 59
persons or entities that purchased units pursuant to a financing
terms agreement, or FTA, dated April 11, 2006, captioned Gerald S.
Leeseberg, et al. v. Converted Organics, Inc., filed in the U.S.
District Court for the District of Delaware. The lawsuit alleges
breach of contract, conversion, unjust enrichment, and breach of
the implied covenant of good faith in connection with the alleged
failure to register certain securities issued in the FTA, and the
redemption of the Company's Class A warrants in November 2008.
The lawsuit seeks damages related to the failure to register
certain securities, including alleged late fee payments, of
approximately $5.25 million, and unspecified damages related to
the redemption of the Class A warrants. In February 2009, the
Company filed a Motion for Partial Dismissal of Complaint. On
October 7, 2009, the Court concluded that Leeseberg has properly
stated a claim for actual damages resulting from the Company's
alleged breach of contract, but that Leeseberg has failed to state
claims for conversion, unjust enrichment and breach of the implied
covenant of good faith, and the Court dismissed such claims. On
November 6, 2009, the Company filed its answer to the Complaint
with the Court. On March 4, 2010, the parties participated in a
conference, and began discussing discovery issues. Plaintiff
filed a Motion for Class Certification on June 22, 2010, which was
denied on November 22, 2010. On March 3, 2011, the court denied
the Company's motion for partial summary judgment. On March 25,
2011, some individual investors filed a new complaint against the
Company asserting similar claims to those in the Leeseberg
litigation. This case will likely be consolidated with the
Leeseberg action.
The Company says it plans to vigorously defend these matters and
are unable to estimate any losses that may or may not be incurred
as a result of this litigation and new complaint and their
eventual disposition. Accordingly, no loss has been recorded
related to these matters.
In December 2009, the Company filed a complaint in the Superior
Court of Massachusetts for the County of Suffolk, captioned
Converted Organics Inc. v. Holland & Knight LLP. The Company
claims that in the event it is required to pay any monies to Mr.
Leeseberg and his proposed class in the matter of Gerald S.
Leeseberg, et al. v. Converted Organics, Inc., that Holland &
Knight should make the Company whole, because its handling of the
registration of the securities at issue in the Leeseberg lawsuit
caused any loss that Mr. Leeseberg and other putative class
members claim to have suffered. Holland & Knight has not yet
responded to the complaint. Holland and Knight has threatened to
bring counterclaims against Converted Organics for legal fees
allegedly owed, which the Company would contest vigorously. On
May 12, 2010, the Superior Court stayed the proceedings, pending
resolution of the Leeseberg litigation. At this early stage in
the case, the Company is unable to predict the likelihood of an
unfavorable outcome, or estimate any loss/gain.
DRUG MANUFACTURERS: Settles Class Action for $125 Million
---------------------------------------------------------
Hagens Berman Sobol Shapiro LLP disclosed that there has been a
proposed Settlement in a class action lawsuit involving several
drug manufacturers and approximately 200 drugs used to treat a
variety of medical conditions including: cancer, HIV, asthma,
allergies, infections, pain & inflammation, gastrointestinal, lung
& blood issues, and many other conditions. These drugs are often
injected in a doctor's office or clinic.
This lawsuit is not about whether these drugs are safe or
effective. This lawsuit claims that consumers paid too much for
the drugs.
The drug manufacturers have agreed to settle the lawsuit and pay
$125 million. Approximately $21.8 million will be available to
pay consumer claims including Medicare Part B subscribers.
Medicare Part B subscribers are eligible for a refund if they made
percentage co-payments not covered by insurance for any of the
drugs included in this Settlement between Jan. 1, 1991 and
Jan. 1, 2005. A percentage co-payment varies with the cost of
the drug. A flat co-payment never varies; it's always the same no
matter how much the drug costs. Consumers with supplemental
insurance who did not make a co-payment or paid only a flat co-
payment are not eligible for a refund.
In order to receive a payment, consumers must file claims by
July 1, 2011. Consumers who do not wish to remain in the
Settlement must request to be excluded in writing postmarked by
May 24, 2011. Consumers who exclude themselves retain the right
to sue the Defendants on their own. Consumers may object to or
comment on the Settlement in writing postmarked by May 24, 2011.
Class Counsel Edward Notargiacomo says "this settlement is a
victory for the millions of Medicare Part B Subscribers who
overpaid for prescription medications."
For more information about the Settlement, a complete list of
covered drugs, or information on how to file a claim: visit
http://www.AWPtrack2Settlement.com/or call 1-877-465-8136.
ENERGYSOLUTIONS INC: Seeks Dismissal of IPO Class Suit in New York
------------------------------------------------------------------
EnergySolutions, Inc., is seeking dismissal of a consolidated
class action lawsuit over its initial public offering in New York,
according to the Company's March 31, 2011, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2010.
On October 9, 2009, a purported class-action lawsuit captioned
City of Roseville Employees' Retirement System v. EnergySolutions,
Inc., et al., Civil No. 09 CV 8633 was filed in the U.S. District
Court for the Southern District of New York. On October 12, 2009
a second complaint captioned Building Trades United Pension Trust
Fund vs. EnergySolutions, Inc., et al., Civil No. 09 CV 8648 was
filed in the same court. On February 18, 2010 the Court
consolidated the Related Actions and appointed a lead plaintiff.
On April 20, 2010 the lead plaintiff filed its consolidated
amended complaint. The consolidated amended complaint names as
defendants EnergySolutions, Inc., the Company's current and prior
directors, certain officers, the lead underwriters in the
Company's November 2007 initial public offering in and July 2008
secondary offering and ENV Holdings LLC, the Company's former
parent. The consolidated amended complaint alleges that the
registration statements and prospectus for the IPO and the July
2008 Offering contained inaccurate statements of material facts
and omitted material information required to be disclosed therein
regarding the potential size of the nuclear services market, the
Company's ability to take advantage of opportunities in that
market in the near term, the status and prospects of the Company's
rule making petition to the NRC to permit the use of
decommissioning funds for disposal of major components prior to
the cessation of activities at nuclear facilities, the status and
prospects of the Company's license stewardship initiative, and
other matters. The consolidated amended complaint seeks to
include all purchasers of the Company's common stock from
November 14, 2007 through October 14, 2008 as a plaintiff class
and seeks damages, costs and interest, rescission of the IPO and
July 2008 offering, and such other relief as the court may find
just and proper. On June 18, 2010, the defendants in the Related
Actions filed a motion to dismiss the consolidated amended
complaint. Rather than oppose the defendants' motion to dismiss,
the lead plaintiff filed a second consolidated amended complaint
on August 4, 2010, expanding the allegations in the consolidated
amended complaint and adding new allegations regarding the
Company's life of plant agreements and the integrity of the
revenue and earnings forecasts in the IPO and the July 2008
Offering registration statements and prospectuses. On
September 17, 2010, the defendants filed a motion to dismiss the
second consolidated amended complaint. The lead plaintiff filed
an opposition to defendants' motion to dismiss on November 2, 2010
and the defendants filed a reply memorandum of law in further
support of defendants' motion to dismiss the second consolidated
amended complaint on December 10, 2010.
GLOBALSTAR INC: Records $700,000 in 2010 Under Suit Settlement
--------------------------------------------------------------
Globalstar, Inc., has proceeded to implement a class action
settlement and has recorded a $700,000 liability for the
settlement as of December 31, 2010, according to the Company's
March 31, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
On April 7, 2007, Kenneth Stickrath and Sharan Stickrath filed a
purported class action complaint against the Company in the U.S.
District Court for the Northern District of California, Case No.
07-cv-01941. The complaint is based on alleged violations of
California Business & Professions Code Section 17200 and
California Civil Code Section 1750, et seq., the Consumers' Legal
Remedies Act. In July 2008, the Company filed a motion to deny
class certification and a motion for summary judgment. The court
deferred action on the class certification issue but granted the
motion for summary judgment on December 22, 2008. The court did
not, however, dismiss the case with prejudice but rather allowed
counsel for plaintiffs to amend the complaint and substitute one
or more new class representatives. On January 16, 2009, counsel
for the plaintiffs filed a Third Amended Class Action Complaint
substituting Messrs. Walsh and Kesler as the named plaintiffs. A
joint notice of settlement was filed with the court on March 9,
2010. The court heard the motion for settlement on March 29,
2010, and the parties subsequently submitted a first amendment to
the stipulated class settlement agreement on April 2, 2010. The
court entered an order approving the settlement on October 14,
2010, and the Company has proceeded to implement it. The Company
recorded a liability of $0.7 million and $1.3 million for this
settlement as of December 31, 2010 and 2009, respectively.
INSPRO TECHNOLOGIES: Court Dismisses Florida Class Suit
-------------------------------------------------------
A Florida court dismissed a class action lawsuit filed by a former
employee against InsPro Technologies Corporation, according to the
Company's March 31, 2011 Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended December 31, 2010.
On August 28, 2008, one of the Company's former employees, the
plaintiff, filed a national class action complaint in the
Seventeenth Judicial Circuit of Florida, Broward County, case no.
062008 CA 042798 XXX CE, alleging that the Company breached a
contract with employees by failing to provide certain commissions
and/or bonuses. The complaint also contained claims for an
accounting and for declaratory relief relating to the alleged
compensation agreement. The plaintiff purported to bring these
claims on behalf of a class of current and former insurance sales
agents. The Company filed a motion to dismiss the complaint. In
response, at the hearing on the Company's Motion to Dismiss, the
plaintiff stated that he would amend the complaint. The amended
complaint was no longer pled as a class action but, instead,
included 64 named plaintiffs. On April 21, 2010, the Company and
the plaintiffs entered into a memorandum of understanding whereby
the Company agreed to pay $23,500 to settle the case, and the
Company and the plaintiffs agreed to: stay all discovery, mutual
releases, no admission of wrongdoing, no further litigation,
confidentiality by the plaintiffs, and non disparagement by the
plaintiffs. The Company and the plaintiffs entered into
definitive settlement agreements and the court issued an order
dismissing all claims in this case.
Based in Philadelphia and founded in 1986, InsPro Technologies --
http://www.inspro.com/-- is a provider of comprehensive,
flexible, and innovative insurance management solutions designed
specifically for Life & Health insurers, supporting both group
and individual policies. Designed and developed based on proven
and scalable web-based architecture, InsPro Enterprise offers an
insurance-fluent configuration engine, enabling InsPro software
solutions to be deployed in weeks for rapid time to value. InsPro
Technologies solutions are offered through standard software
licensing, as a hosted solution, or via Software as a Service
(SaaS) delivery.
JACKSON HEWITT: November 8 Jury Trial Set for Class Action
----------------------------------------------------------
Steve Korris, writing for West Virginia Record, reports that tax
preparer Jackson Hewitt claims a Bailey & Glasser client who
started a class action over refund anticipation loans obtained one
in a scheme to cheat on her taxes.
Bailey & Glasser dismissed Linda Hunter as plaintiff after
discovery revealed evidence of fraud, Charles Woody of Charleston
wrote to U.S. District Judge Robert Chambers on March 28.
Judge Chambers presides over a claim of substitute plaintiffs
Christian Harper and Elizabeth Harper that Jackson Hewitt's refund
anticipation loans violated credit consumer law.
"The importance of Mrs. Hunter's apparent actions and subsequent
dismissal cannot be ignored," Mr. Woody wrote. "Indeed, given the
evidence of Mrs. Hunter's unclean hands, Jackson Hewitt could have
required dismissal of the original complaint without the
opportunity to amend and substitute new plaintiffs.
"And, in fact, the court should wash its hands of the entire
original complaint."
He tried to catch the Harpers in an awkward spot, for Glasser has
argued that they represent the class Hunter proposed to represent.
"Surely, the Harpers do not contend that they share commonality
and typicality with Mrs. Hunter," Mr. Woody wrote.
For proof of his fraud charge, Mr. Woody cited docket entry number
212.
Judge Chambers can read it but the public can't because he sealed
all documents at that number.
John Barrett, Brian Glasser and Eric Snyder sued Jackson Hewitt on
Hunter's behalf in 2006, alleging violation of credit law and
breaches of fiduciary duties.
They alleged breach of contract but didn't produce a contract, so
Judge Chambers dismissed that.
Late in 2007, both sides began filing motions, briefs and exhibits
under seal.
In March 2008, both sides asked for a 30-day stay of all
proceedings.
"Defendant has obtained discovery relating to plaintiff and her
husband's tax returns," they wrote. "Mrs. Hunter no longer
desires to participate in this action, and plaintiff's counsel
have determined that Mrs. Hunter is not an appropriate class
representative."
The Harpers took over, alleging they borrowed against refunds at
rates from 56% to 83%.
They moved for class certification in 2009, filing exhibits under
seal.
Jackson Hewitt filed its opposition under seal with exhibits, at
docket number 212.
Judge Chambers reached three decisions but lacked full confidence
in them, so he certified questions to the West Virginia Supreme
Court of Appeals.
He asked if he correctly decided that state law covering credit
service organizations applied.
He asked if he correctly found an absence of agency relationship.
He asked if he correctly applied a four-year statute of
limitations in favor of the Harpers, rather than a year as Jackson
Hewitt argued.
Last November, the Justices agreed with him in treating Jackson
Hewitt as a consumer services organization and in running a four-
year limit.
On agency relations, they told him to develop more facts.
Jackson Hewitt petitioned the Justices for rehearing, but they
denied it in January.
The case returned to Judge Chambers, who asked for summaries of
remaining issues.
Mr. Woody answered that he should deny class certification and
find the Harpers suffered no injury.
"They do not claim that they would not have purchased a refund
anticipation loan had Jackson Hewitt registered as a credit
services organization or that they would not have purchased a
refund anticipation loan had Jackson Hewitt made disclosures to
them required by the credit services organization statute," he
wrote.
Richard Brusca and Paul Solomon, of Skadden Arps in Washington,
also worked on the summary.
On March 18, Barrett, Glasser and Snyder wrote that they could
easily prove class damages.
"Jackson Hewitt's refund anticipation loans were uniform for all
of its refund anticipation loans each year, and there is no
question that Jackson Hewitt has never registered as a credit
services organization or provided required disclosures in West
Virginia," they wrote.
They argued that the class period began in 2002, four years before
they filed Hunter's suit.
"Because the plaintiffs amended their complaint merely to
substitute named plaintiffs who had always been members of the
putative class, there is nothing to prevent the amendment from
relating back to the original complaint," he wrote.
That triggered Jackson Hewitt to divulge the secret of docket
number 212.
Mr. Woody wrote that the Harpers downplayed the reason for
Hunter's removal.
He wrote that she sought a loan in furtherance of a scheme to
defraud the government.
"She cannot have represented at that time any class that included
the Harpers or any class that the Harpers now purport to
represent," he wrote. "It would be perverse indeed for the court
to allow tolling of the limitations period based upon a complaint
raising a different transaction, completed two years prior to the
first amended complaint, filed by a wrongdoer who utilized the
transaction to expedite her tax fraud."
Judge Chambers has set jury trial on Nov. 8.
LEHMAN BROTHERS: Hearing in Australian CDO Class Action Ends
------------------------------------------------------------
The New Lawyer reports that the class action hearing brought by
72 councils, charities and churches against global investment bank
Lehman Brothers Australia came to an end in the Federal Court last
week.
The Councils, led by Wingecarribee Shire Council, seek $248
million in compensation from Lehman Australia for claims including
breach of contract and fiduciary duty, misleading conduct and
negligence.
National law firm Piper Alderman, led by partner Amanda Banton,
represents the applicants.
The applicants presented a full account of the advisory investment
relationship existing between the councils and Lehman Brothers
Australia, formerly Grange Securities. Lehman purchased the
investment firm in March 2007.
Evidence brought on behalf of the applicants included testimonies
from several council employees along with extensive documents
relating to the way collateralized debt obligations (CDOs) and
other synthetic structured products were sold.
After the applicant's evidence on the methods by which the CDOs
were recommended, marketed and sold Lehman decided not to call any
lay witnesses in its defense to counter the evidence of the
councils regarding the conduct of Lehmans and the representations
made, Piper Alderman said in a statement.
Piper Alderman's success in gaining access to Lehman documents
revealing details of an internal investigation into the conduct of
sales staff as they marketed financial products including CDOs was
important to the applicant's case, the firm said. Lehman argued
that these emails were privileged and confidential.
Justice Yates of the Federal Court of Australia found that
professional privilege had not attached to the documents and
ordered their production.
An expert for the applicant's case provided the Court with an
interpretation of one of these crucial emails, which read "Below
are some switch ideas based on our axes both on and off the book.
As we control the CDO market we should be able to execute any of
these without issue."
The expert told the Court that "axes" are a trader's priorities
and that "a switch idea" based on Lehman's axes, would be based on
their desire to add or to shed risk.
Another marketing tool used at the point of sale, as alleged by
the councils, was to explain that the products could be bought and
sold at any time.
"It was particularly important to many of my clients that they
could sell at any time and without penalty as they had uncertain
liquidity requirements," said Ms. Banton.
An expert conceded that the products were "buy and hold to
maturity" products. The applicants allege that at the time they
were investing in these CDOs, it was represented by Lehman that
there was an active secondary market for these products.
A liquidity expert called by Lehman said that this was not the
case. "I don't believe that [the trades] are representative of
any kind of normal market activity or normal arms-length activity
between a customer and a broker or a customer and a fiduciary."
The trial is now to be adjourned for one month, resuming on
May 30, 2011 for one week.
Piper Alderman's Ms. Banton said: "We are very pleased with the
outcome of the case to date."
LIBERTY MUTUAL: PPO Case Management Conference Set in May
---------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
that a May case management conference is set in a class action
over Preferred Provider Organization discounts.
Meanwhile, Madison County Circuit Dennis Ruth continues to hold
summary judgment moves filed by lead plaintiff Thomas Kaltenbronn
and defendant Liberty Mutual under advisement.
Ruth heard arguments on the motions in a nearly six hour hearing
Jan. 28.
The order setting the suit for further case management May 25 at
9:00 a.m. was entered March 30.
Mr. Kaltenbronn is leading a class of health care providers who
claim that the insurance company took PPO discounts from worker's
compensation claims that it was not entitled to.
The suit also contends the Liberty Mutual did not deliver on
promises to direct more patients to members of the PPO.
The meaning of the word "direct" under the statutes dealing with
Illinois insurance law and worker's compensation law took up
significant time during the Jan. 28 arguments.
The suit is one of a number filed in the early part of the last
decade by the Lakin Law Firm -- now LakinChapman of Wood River --
and Freed & Weiss of Chicago.
The partnership dissolved in 2007.
LakinChapman attorney Robert Schmieder II argued that
Liberty Mutual was responsible for failing to deliver on its
promises under the state's law governing PPOs at the January
hearing.
Judge Ruth, drawing on his own experience as a workers'
compensation attorney and head of the state's Worker's
Compensation Commission, questioned Mr. Schmieder II at length
during the hearing.
Liberty Mutual attorney Thomas Keefe Jr. argued that his company
had offered the incentives it could to PPO members -- namely
information-related services -- but that the state's workers'
compensation law limited how the company can "direct" patients to
PPO members.
Judge Ruth took the moves under advisement and the parties
submitted proposed orders in March.
The case is Madison case number 04-L-1406.
MOSAIC COMPANY: Awaits 7th Circuit Ruling in Potash Antitrust Suit
------------------------------------------------------------------
The Mosaic Company is awaiting a ruling from an appellate court in
a consolidated antitrust class action lawsuit, according to the
Company's March 31, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended February 28, 2011.
On September 11, 2008, separate complaints were filed in the
United States District Courts for the District of Minnesota and
the Northern District of Illinois, on October 2, 2008 another
complaint was filed in the United States District Court for the
Northern District of Illinois, and on November 10, 2008 and
November 12, 2008, two additional complaints were filed in the
United States District Court for the Northern District of Illinois
by Minn-Chem, Inc., Gage's Fertilizer & Grain, Inc., Kraft
Chemical Company, Westside Forestry Services, Inc. d/b/a Signature
Lawn Care, and Shannon D. Flinn, respectively, against The Mosaic
Company, Mosaic Crop Nutrition, LLC and a number of unrelated
defendants that allegedly sold and distributed potash throughout
the United States. On November 13, 2008, the plaintiffs in the
cases in the United States District Court for the Northern
District of Illinois filed a consolidated class action complaint
against the defendants, and on December 2, 2008 the Minn-Chem Case
was consolidated with the Gage's Fertilizer Case. On April 3,
2009, an amended consolidated class action complaint was filed on
behalf of the plaintiffs in the Direct Purchaser Cases. The
amended consolidated complaint added Thomasville Feed and Seed,
Inc., as a named plaintiff, and was filed on behalf of the named
plaintiffs and a purported class of all persons who purchased
potash in the United States directly from the defendants during
the period July 1, 2003 through the date of the amended
consolidated complaint. The amended consolidated complaint
generally alleges, among other matters, that the defendants:
conspired to fix, raise, maintain and stabilize the price at which
potash was sold in the United States; exchanged information about
prices, capacity, sales volume and demand; allocated market
shares, customers and volumes to be sold; coordinated on output,
including the limitation of production; and fraudulently concealed
their anticompetitive conduct. The plaintiffs in the Direct
Purchaser Cases generally seek injunctive relief and to recover
unspecified amounts of damages, including treble damages, arising
from defendants' alleged combination or conspiracy to unreasonably
restrain trade and commerce in violation of Section 1 of the
Sherman Act. The plaintiffs also seek costs of suit, reasonable
attorneys' fees and pre-judgment and post-judgment interest.
On September 15, 2008, separate complaints were filed in the
United States District Court for the Northern District of Illinois
by Gordon Tillman; Feyh Farm Co. and William H. Coaker Jr.; and
Kevin Gillespie. The defendants in the Indirect Purchaser Cases
are generally the same as those in the Direct Purchaser Cases. On
November 13, 2008, the initial plaintiffs in the Indirect
Purchaser Cases and David Baier, an additional named plaintiff,
filed a consolidated class action complaint. On April 3, 2009, an
amended consolidated class action complaint was filed on behalf of
the plaintiffs in the Indirect Purchaser Cases. The factual
allegations in the amended consolidated complaint are
substantially identical to those summarized above with respect to
the Direct Purchaser Cases. The amended consolidated complaint in
the Indirect Purchaser Cases was filed on behalf of the named
plaintiffs and a purported class of all persons who indirectly
purchased potash products for end use during the Class Period in
the United States, any of 20 specified states and the District of
Columbia defined in the consolidated complaint as "Indirect
Purchaser States," any of 22 specified states and the District of
Columbia defined in the consolidated complaint as "Consumer Fraud
States", and/or 48 states and the District of Columbia and Puerto
Rico defined in the consolidated complaint as "Unjust Enrichment
States." The plaintiffs generally sought injunctive relief and to
recover unspecified amounts of damages, including treble damages
for violations of the antitrust laws of the Indirect Purchaser
States where allowed by law, arising from defendants' alleged
continuing agreement, understanding, contract, combination and
conspiracy in restraint of trade and commerce in violation of
Section 1 of the Sherman Act, Section 16 of the Clayton Act, the
antitrust, or unfair competition laws of the Indirect Purchaser
States and the consumer protection and unfair competition laws of
the Consumer Fraud States, as well as restitution or disgorgement
of profits, for unjust enrichment under the common law of the
Unjust Enrichment States, and any penalties, punitive or exemplary
damages and/or full consideration where permitted by applicable
state law. The plaintiffs also seek costs of suit and reasonable
attorneys' fees where allowed by law and pre-judgment and post-
judgment interest.
On June 15, 2009, the Company and the other defendants filed
motions to dismiss the complaints in the Potash Antitrust Cases.
On November 3, 2009, the court granted the Company's motions to
dismiss the complaints in the Indirect Purchaser Cases except (a)
for plaintiffs residing in Michigan and Kansas, claims for alleged
violations of the antitrust or unfair competition laws of Michigan
and Kansas, respectively, and (b) for plaintiffs residing in Iowa,
claims for alleged unjust enrichment under Iowa common law. The
court denied the Company's and the other defendants' other motions
to dismiss the Potash Antitrust Cases, including the defendants'
motions to dismiss the claims under Section 1 of the Sherman Act
for failure to plead evidentiary facts which, if true, would state
a claim for relief under that section. The court, however, stated
that it recognized that the facts of the Potash Antitrust Cases
present a difficult question under the pleading standards
enunciated by the U.S. Supreme Court for claims under Section 1 of
the Sherman Act, and that it would consider, if requested by the
defendants, certifying the issue for interlocutory appeal. On
January 13, 2010, at the request of the defendants, the court
issued an order certifying for interlocutory appeal the issues of
(i) whether an international antitrust complaint states a
plausible cause of action where it alleges parallel market
behavior and opportunities to conspire; and (ii) whether a
defendant that sold product in the United States with a price
that was allegedly artificially inflated through anti-competitive
activity involving foreign markets, engaged in 'conduct
involving import trade or import commerce' under applicable law.
On March 17, 2010, the United States Court of Appeals for the
Seventh Circuit agreed to hear the defendants' interlocutory
appeal. The parties have filed their appellate briefs with the
Seventh Circuit, and the court heard oral arguments from the
parties on June 3, 2010. The Company is currently awaiting the
Seventh Circuit's ruling.
The Company believes that the allegations in the Potash Antitrust
Cases are without merit and intends to defend vigorously against
them. At this stage of the proceedings, the Company cannot predict
the outcome of this litigation or determine whether it will have a
material effect on its results of operations, liquidity or capital
resources.
The Mosaic Company -- http://www.mosaicco.com/-- is one of the
world's leading producers and marketers of concentrated phosphate
and potash crop nutrients. Mosaic is a single source provider of
phosphate and potash fertilizers and feed ingredients for the
global agriculture industry.
MOSAIC COMPANY: Faces Stockholder Suits Over Cargill Transaction
----------------------------------------------------------------
Several class action lawsuits were filed against The Mosaic
Company challenging the Company's entry into agreements intended
to result in the split-off and orderly distribution of Cargill
Incorporated's approximately 64.0% equity interest in the Company,
according to the Company's March 31, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
February 28, 2011.
Mosaic, its subsidiary GNS II (U.S.) Corp., GNS Merger Sub LLC,
the members of the Mosaic board of directors and Cargill are named
as defendants in purported class action lawsuits brought in the
Delaware Court of Chancery by several Mosaic stockholders: the
City of Lakeland Employees Pension Plan, the Louisiana Municipal
Police Employees Retirement System, the Teamsters Local 500
Severance Fund and the Minneapolis Firefighters' Relief
Association on February 28, March 8, 2011, March 8, 2011 and
March 15, 2011, respectively. On March 9, 2011, the City of
Lakeland Employees Pension Plan was dismissed, and the Operating
Engineers Construction Industry and Miscellaneous Pension Fund was
added, as a plaintiff. The Stockholder Actions challenge the
proposed Cargill Transaction. Collectively, the Stockholder
Actions generally allege that the Mosaic directors breached their
fiduciary duties to Mosaic and its stockholders by authorizing the
Cargill Transaction, that the Mosaic directors improperly
delegated their authority to Cargill in violation of the Delaware
General Corporation Law and in breach of their fiduciary duties,
that the preliminary proxy statement filed with the SEC by Mosaic
in connection with the Cargill Transaction omits material
information and is materially misleading, particularly concerning
financial advice provided by financial advisers to the special
committee formed by Mosaic's board of directors to consider the
transaction and the ramifications of the Cargill Transaction to
Mosaic's minority stockholders. The Stockholder Actions seek,
among other things: to enjoin the defendants from consummating the
Cargill Transaction on the agreed-upon terms; to require the
individual defendants to make full and complete disclosure; to
rescind the Cargill Transaction; to invalidate provisions of the
tax agreement that is part of the Cargill Transaction; rescissory
and compensatory damages in unspecified amounts; and recovery of
the costs of the lawsuit. The Company believes the Stockholder
Actions are without merit and plans to defend against them
vigorously. At this stage of the proceedings, the Company cannot
predict the outcome of this litigation but does not expect that it
will have a material effect on its results of operations,
liquidity or capital resources.
The Mosaic Company -- http://www.mosaicco.com/-- is one of the
world's leading producers and marketers of concentrated phosphate
and potash crop nutrients. Mosaic is a single source provider of
phosphate and potash fertilizers and feed ingredients for the
global agriculture industry.
NIKE INC: Removes "McCartney" Song-Beverly Lawsuit to N.D. Calif.
-----------------------------------------------------------------
Erika McCartney, on behalf of herself and others similarly
situated v. Nike, Inc., et al, Case No. CGC-11-508582 (Calif.
Super Ct., San Francisco Cty.), was filed on February 25, 2011.
The Complaint alleges one cause of action for violation of the
Song-Beverly Credit Card Act of 2971, codified at California Civil
Code section 1747.08. Plaintiff's complaint arises from a
purported transaction at a Nike store located in San Francisco,
Calif.
In the Complaint, Ms. McCartney says that Nike requested and
recorded personal identification from her when she used a credit
card to purchase items from the Nike store in San Francisco, which
is a violation of section 1747.08 of the California civil code.
Nike is the world's largest seller of athletic footwear and
apparel, with annual revenues exceeding $19 billion.
On the basis of diversity jurisdiction, Nike, Inc., on April 1,
2011, removed the lawsuit to the Northern District of California,
and the Clerk assigned Case No. 11-cv-01588 to the proceeding.
The Plaintiff is represented by:
Robert B. Hancock, Esq.
Melvin B. Pearlston, Esq.
PACIFIC JUSTICE CENTER
50 California Street, Suite 1500
San Francisco, CA 94111
Telephone: (415) 310-1940
- and -
Neil B. Fineman, Esq.
FINEMAN & ASSOCIATES
155 N. Riverview Dr.
Anaheim Hills, CA 92808-1225
Telephone: (714) 620-1125
E-mail: Mail@FinemanLaw.com
The Defendants are represented by:
Michelle C. Doolin, Esq.
Beatriz Mejia, Esq.
Jennifer M. French, Esq.
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone: (415) 693-2000
E-mail: mejiab@cooley.com
OFFICE DEPOT: Removes "Anderson" Song-Beverly Suit to N.D. Calif.
-----------------------------------------------------------------
Sylvia Anderson, on behalf of herself and others similarly
situated v. Office Depot, Inc., et al., Case No. CGC-11-598833
(Calif. Super Ct., Cty.), was filed on March 4, 2011. The
plaintiff accuses Office Depot of violating the Song-Beverly
Credit Card Act of 1971, California Civil Code section 1747.08, by
requesting and recording her personal identification information,
in the form of zip code, when she used her credit card to purchase
certain items in Office Depot's California retail establishments.
Ms. Anderson is a resident of California, and entered into retail
transactions with defendant at several of defendant's California
stores. Defendant Office Depot, Inc., a Delaware corporation,
operates retail stores under the name Office Depot throughout
California.
On the basis of diversity jurisdiction, Office Depot, Inc., on
April 1, 2011, removed the lawsuit to the Northern District of
California, and the Clerk assigned Case No. 11-cv-01589 to the
proceeding.
The Plaintiff is represented by:
Gene J. Stonebarger, Esq.
Richard D. Lambert, Esq.
STONEBARGER LAW, APC
75 Iron Point Circle, Suite 145
Folson, CA 95630
Telephone: (916) 235-7140
E-mail:
The Defendant is represented by:
Daniel F. Katz, Esq.
Luba Shur, Esq.
Ryan P. McCarthy, Esq.
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
E-mail: dkatz@wc.com
lshur@wc.com
mccarthy@wc.com
- and -
James R. Evans, Jr., Esq.
FULBRIGHT & JAWORSKI L.L.P.
555 South Flower Street, Forty-First Floor
Los Angeles, CA 90071
Telephone: (213) 892-9322
E-mail: jevans@fulbright.com
PAYPAL INC: Faces Nationwide Class Action Over Frozen "Funds"
-------------------------------------------------------------
Brenda Fazio, writing for Examiner.com, reports that Paypal is now
hit with a nationwide class action, case number CV10-2046, which
challenges PayPal's fraudulent practices of "holding" funds for up
to 180 days in the accounts of entities and consumers that collect
wages and/or payments for product and services through the PayPal
system.
The action states that PayPal systematically and arbitrarily has
frozen funds in PayPal accounts for up to 180 days and sometimes
even over 300 days without providing any explanation or factual
basis for its actions. PayPal has the use of the "frozen" funds
during this hold period and keeps all interest accrued during this
hold generated by the funds.
PayPal has more than 81 million registered accounts worldwide and
is now one of the leading ways to pay online. Recently, in
opportune timing with the poor state of the economy, PayPal
started placing reserves on accounts and/or limiting and/or
suspending seller's accounts and holding the funds in the accounts
for 180 days. PalPal placed holds on funds of users who not only
sell on eBay but also who use PayPal as a method of payment on
their own websites and jobs that pay via PayPal.
PayPal informs account holders of the hold on their funds through
use of a form email which provides no information as to why there
is a reserve placed on their account and/or why their account was
limited or suspended. When PayPal users contact PayPal's
Resolution Center, users are met with non-responsive and unhelpful
customer service, "canned" responses, a litany of requests for
additional documentation such as social security numbers and tax
returns, and even after entering the PIN that PayPal provided,
were transferred to a non-working number.
Class members who inquire of PayPal as to the reasons behind
PayPal's action's are told PayPal will not explain its actions
without a subpoena. In other words, PayPal holds money belonging
to Plaintiffs and the Class and tells them they have to get a
subpoena or court order just to discover the reason why PayPal is
denying Plaintiffs and the Class access to their own money, which
is legally and rightfully the Plaintiffs money.
Causes of action of this Class Action are as follows:
First Cause of Action: Violations of the California Unfair
Business Pratices Act and California Consumers Legal Remedies Act.
Second Cause of Action: Conversion.
Third Cause of Action: Breach of Contract.
Fourth Cause of Action: Violation of the Implied Covenant of Good
Faith and Fair Dealing.
Fifth Cause of Action: Breach of Fiduciary Duty.
Sixth Cause of Action: Violation of The Electronic Funds Transfer
Act, 15 U.S.C. 1693 et seq.
Seventh Cause of Action: Unjust Enrichment.
Eighth Cause of Action: Declaratory Relief Pursuant to 28 U.S.C.
2201.
RAE SYSTEMS: Continues to Defend California Shareholder Litigation
------------------------------------------------------------------
RAE Systems Inc. continues to defend itself against a consolidated
class action lawsuit pending in California over its merger
agreement with Battery Ventures, according to the Company's
March 31, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2010.
On September 20, 2010, a putative class action suit, entitled
Foley v. RAE Systems Inc., et al., No. 110CV182985, was filed in
the Superior Court of California, County of Santa Clara, against
the Company, members of its Board of Directors, the Company's
Chief Financial Officer, and entities affiliated with Battery
Ventures. The suit alleges in summary that, in connection with a
proposed acquisition of the Company by an affiliate of Battery
Ventures, the individual defendants breached their fiduciary
duties by conducting an unfair sale process and agreeing to an
unfair price, would purportedly receive improper personal benefits
in connection with the proposed acquisition, and were aided and
abetted by the other defendants. Plaintiff seeks, among other
things, a declaration that the suit can be maintained as a class
action, an injunction against the proposed merger, rescission of
the Merger Agreement, a directive that the defendants exercise
their fiduciary duties to implement a process to secure the best
possible consideration for stockholders, imposition of a
constructive trust on allegedly improper benefits, and fees and
costs. Four other lawsuits making similar allegations have also
been filed in the Superior Court of the State of California,
County of Santa Clara against the Company, its Board of Directors
and Battery Ventures or its affiliates: Angles v. RAE Systems
Inc., et al., No. 110CV183606; Greenbaum v. Chen, et al., No.
110CV183814; AC Photonics, Inc. v. RAE Systems Inc., et al., No.
110CV183942; and Mann v. RAE Systems Inc., et al., No.
110CV183960. On October 28, 2010 the California court
consolidated all five California actions under the caption In re
RAE Systems, Inc. Shareholder Litigation, Lead Case No.
110CV182985. On December 15, 2010, plaintiffs Mann and Angles
filed an amended complaint continuing to set forth the claims set
forth above and including additional disclosure claims based on
allegations that the Company's proxy filings contain materially
false statements and fail to disclose material facts regarding,
among other things, the Special Committee of the Board of
Directors of the Company, the holders of the Rollover Shares, the
process and events leading up to the proposed acquisition, the
Foreign Corrupt Practices Act investigation, communications with
Battery Ventures and other potential bidders, and the work
performed by UBS and data underlying its analyses. On
December 17, 2010, the California court issued an order staying
all proceedings in California state court in favor of a related
litigation pending in Delaware.
RAE Systems is a developer and manufacturer of rapidly-deployable,
multi-sensor chemical and radiation detection monitors and
wireless networks for application in five key markets: oil and
gas, hazardous material management, industrial safety, civil
defense and environmental remediation. It provides personal,
portable and wireless sensor networks that enable customers in
more than 95 countries to identify safety and security threats in
real-time. The Company was founded in 1991 and originally
developed technologies for the detection of hazardous materials in
environmental remediation and chemical spill clean-ups.
RAE SYSTEMS: Continues to Defend Delaware Shareholder Litigation
----------------------------------------------------------------
RAE Systems Inc. continues to defend itself against a consolidated
lawsuit pending in Delaware over its merger agreement with Battery
Ventures, according to the Company's March 31, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010.
Four putative class action suits with allegations of breach of
fiduciary duties in connection with the Company's proposed
acquisition of an affiliate of Battery Ventures have been filed in
Delaware Chancery Court: Nelson v. RAE Systems Inc., et al., C.A.
No. 5848-VCS; Venton v. RAE Systems Inc., et al., C.A. No. 5854-
VCS; Quintanilla v. RAE Systems Inc., et al. , C.A. No. 5872;
Villeneuve v. RAE Systems Inc., et al. , C.A. No. 5877. The
Delaware actions have been consolidated under the caption In re
RAE Systems, Inc. Shareholder Litigation, Consolidated C.A. No.
5848-VCS, and plaintiffs filed a Verified Consolidated Amended
Class Action Complaint on or about October 28, 2010. In this
pleading, plaintiffs continued to assert claims related to the
merger agreement, and in addition, they alleged that the Company's
Preliminary Proxy Statement, filed with the SEC on October 21,
2010, contained materially false statements or failed to disclose
material facts regarding, among other things, the Special
Committee of the Board of Directors of the Company, the holders of
the Rollover Shares, the process and events leading up to the
proposed acquisition, the Foreign Corrupt Practices Act
investigation, communications with Battery Ventures and other
potential bidders, and the work performed by UBS and data
underlying its analyses. Plaintiffs requested various forms of
injunctive relief, as well as money damages allegedly suffered or
to be suffered by the putative class. On December 17, 2010, two
of the plaintiffs from the stayed California action (Mann and
Angles) also filed a complaint in Delaware Chancery Court making
essentially the same allegations as in their amended California
complaint also related to the Battery Ventures deal. Plaintiffs
Mann and Angles subsequently voluntarily dismissed their Delaware
complaint.
On February 24, 2011, the remaining Delaware plaintiffs filed a
motion requesting leave to file a Supplemental and Amended
Verified Class Action Complaint. The Delaware Chancery Court
granted plaintiffs' leave to amend their complaint on March 2,
2011. The Supplemental Amended Verified Class Action Complaint
asserts claims against the Company, members of its Board of
Directors, and entities affiliated with Vector Capital, and
alleges in summary that, in connection with the proposed
acquisition of the Company by an affiliate of Vector Capital, the
individual defendants breached their fiduciary duties by
conducting an unfair sale process and agreeing to an unfair price,
are purportedly receiving improper personal benefits, and were
aided and abetted by the other defendants. The complaint also
alleges that the Company's Preliminary Proxy Statement, filed with
the SEC on February 22, 2011, contains materially false statements
or fails to disclose material facts regarding, among other things,
the Special Committee, the holders of the Rollover Shares, the
process and events leading up to the proposed acquisition, the
work performed by UBS and data underlying its analyses, and
communications with Battery Ventures, Vector Capital, and other
potential bidders. Plaintiffs request various forms of injunctive
relief, as well as money damages allegedly suffered or to be
suffered by the putative class.
RAE Systems is a developer and manufacturer of rapidly-deployable,
multi-sensor chemical and radiation detection monitors and
wireless networks for application in five key markets: oil and
gas, hazardous material management, industrial safety, civil
defense and environmental remediation. It provides personal,
portable and wireless sensor networks that enable customers in
more than 95 countries to identify safety and security threats in
real-time. The Company was founded in 1991 and originally
developed technologies for the detection of hazardous materials in
environmental remediation and chemical spill clean-ups.
REDDY ICE: Continues to Defend Antitrust Class Suit in Michigan
---------------------------------------------------------------
Reddy Ice Holdings Inc. continues to defend itself in the class
action lawsuit alleging violations of federal and state antitrust
laws pending in a Michigan court, according to the Company's
March 31, 2011 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
Following the announcement that the Antitrust Division of the U.S.
Department of Justice had instituted an investigation of the
packaged ice industry, a number of lawsuits, including putative
class action lawsuits, were filed against the Company, Reddy Ice
Corporation, Home City Ice Company, Arctic Glacier Income Fund,
Arctic Glacier, Inc. and Arctic Glacier International, Inc., in
various federal courts in multiple jurisdictions alleging
violations of federal and state antitrust laws and related claims
and seeking damages and injunctive relief. Pursuant to an Order
from the Judicial Panel on Multidistrict Litigation, the civil
actions pending in federal courts have been transferred and
consolidated for pretrial proceedings in the United States
District Court for the Eastern District of Michigan. On June 1,
2009, the Court appointed interim lead and liaison counsel for the
putative direct and indirect purchaser classes. On September 15,
2009, the lead plaintiffs for each of the putative direct and
indirect purchaser classes filed consolidated amended complaints.
The Company and Arctic Glacier filed motions to dismiss both of
these complaints. Home City filed a motion to dismiss the indirect
purchaser complaint and entered into a proposed settlement
agreement with the direct purchaser plaintiffs. The motions by the
Company and Arctic Glacier to dismiss the direct purchaser claims
were denied by the Court on July 1, 2010. An Order granting final
approval of Home City's settlement with the direct purchasers was
entered on February 22, 2011. On March 11, 2011, the Court entered
an Order granting in part and denying in part the motions to
dismiss the indirect purchaser claims. That Order dismissed all of
the indirect purchaser claims under the laws of 25 states and the
District of Columbia; dismissed the indirect purchaser claims
under the consumer protection laws of Florida, Michigan and New
York; and dismissed the indirect purchaser unjust enrichment
claims, but granted the Plaintiffs an opportunity to amend their
complaint to state unjust enrichment claims under the laws of
specified states. Discovery is beginning in that matter.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/--
manufactures and distributes packaged ice in the United States.
The company serves variety of customers in 31 states and the
District of Columbia under the Reddy Ice brand name.
REDDY ICE: Competition Act Class Suit Remains Pending in Ontario
----------------------------------------------------------------
A class action lawsuit filed against Reddy Ice Holdings Inc.
alleging violations of the Competition Act remains pending in an
Ontario court, according to the Company's March 31, 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 putative class action Statement of Claim was
filed against the Company in the Ontario Superior Court of Justice
in Canada, alleging violations of Part VI of the Competition Act
and seeking general damages, punitive and exemplary damages, pre-
judgment and post-judgment interest, and costs. Proceedings
relating to Plaintiffs' Motion for Certification of a Class are
ongoing in that matter.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/--
manufactures and distributes packaged ice in the United States.
The company serves variety of customers in 31 states and the
District of Columbia under the Reddy Ice brand name.
REDDY ICE: Competition Act Class Suit Remains Pending in Alberta
----------------------------------------------------------------
A class action lawsuit filed against Reddy Ice Holdings Inc.
alleging violations of the Competition Act remains pending in an
Alberta court, according to the Company's March 31, 2011 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2010.
On March 8, 2010, a putative class action Statement of Claim was
filed against the Company in the Court of Queen's Bench of
Alberta, Judicial District of Calgary, in Canada, alleging
violations of Part VI of the Competition Act and seeking general
damages, special and pecuniary damages, punitive and exemplary
damages, interest and costs. On March 4, 2011, the Company was
served with an Amended Statement of Claim in that matter, which
asserts similar claims.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/--
manufactures and distributes packaged ice in the United States.
The company serves variety of customers in 31 states and the
District of Columbia under the Reddy Ice brand name.
REDDY ICE: Faces Class Suit in Kansas Court
-------------------------------------------
On March 4, 2011, a putative class action lawsuit was filed
against Reddy Ice Holdings Inc. and other defendants in state
court in Kansas, according to the Company's March 31, 2011 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
That lawsuit alleges violation of the Kansas Restraint of Trade
Act, violation of the Kansas Consumer Protection Statute, and
Unjust Enrichment, and seeks treble overcharge damages, full
consideration damages, compensatory damages, penalties, costs, and
attorney fees. The Company has not been served with that lawsuit.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/--
manufactures and distributes packaged ice in the United States.
The company serves variety of customers in 31 states and the
District of Columbia under the Reddy Ice brand name.
REDDY ICE: Discovery Ongoing in Michigan Consolidated Class Suit
----------------------------------------------------------------
Discovery is ongoing in the consolidated class action lawsuit
filed against Reddy Ice Holdings Inc. in a Michigan court,
according to the Company's March 31, 2011 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
Beginning on August 8, 2008, putative class action complaints were
filed in the United States District Court for the Eastern District
of Michigan asserting claims under the federal securities laws
against the Company and certain of its current or former senior
officers. The complaints, which were substantially similar,
alleged that the defendants misrepresented and failed to disclose
the existence of, and the Company's alleged participation in, an
alleged antitrust conspiracy in the packaged ice industry. The
complaints purported to assert claims on behalf of various alleged
classes of purchasers of the Company's common stock. On July 17,
2009, the Court consolidated the actions and appointed a lead
plaintiff and interim lead plaintiff's counsel. The lead plaintiff
filed a consolidated amended complaint on November 2, 2009. The
Company and the other defendants filed motions to dismiss the
consolidated amended complaint. On December 6, 2010, an Order was
entered granting the motion to dismiss as to Raymond Booth, former
COO of Reddy Ice, and denying the motions as to the Company and
all other defendants. On December 20, 2010, the Company filed an
answer to the consolidated amended complaint. Discovery is
beginning in that matter.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/--
manufactures and distributes packaged ice in the United States.
The company serves variety of customers in 31 states and the
District of Columbia under the Reddy Ice brand name.
SMART ONLINE: Final "Gooden" Suit Settlement Hearing Set for May
----------------------------------------------------------------
Smart Online, Inc., is awaiting final approval of its settlement
of a class action lawsuit captioned Gooden v. Smart Online, Inc.,
pending in the United States District Court for the Middle
District of North Carolina, according to the Company's March 31,
2011 Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2010. The final
hearing is set for May 2011.
On October 18, 2007, Robyn L. Gooden filed a purported class
action lawsuit in the United States District Court for the Middle
District of North Carolina naming the Company, certain of its
current and former officers and directors, Maxim Group, LLC, Jesup
& Lamont Securities Corp. and Sherb & Co. (the Company's former
independent registered accounting firm) as defendants. The
lawsuit was filed on behalf of all persons other than the
defendants who purchased the Company's securities from May 2,
2005, through September 28, 2007, and were damaged. The complaint
asserts violations of federal securities laws, including
violations of Section 10(b) of the Exchange Act and Rule 10b-5.
The complaint asserts that the defendants made material and
misleading statements with the intent to mislead the investing
public and conspired in a fraudulent scheme to manipulate trading
in Smart stock, allegedly causing plaintiffs to purchase the stock
at an inflated price. The complaint requests certification of the
plaintiff as class representative and seeks, among other relief,
unspecified compensatory damages including interest, plus
reasonable costs and expenses including counsel fees and expert
fees. On June 24, 2008, the court entered an order appointing a
lead plaintiff for the class action. On September 8, 2008, the
plaintiff filed an amended complaint that added additional
defendants who had served as the Company's directors or officers
during the class period as well as the Company's independent
auditor. The Company and the lead plaintiff in the action
negotiated an agreement which has been signed providing for the
settlement of the securities class action on these terms: The
settlement requires a cash payment of $350,000 to be made by the
Company and the issuance to the class of 1,475,000 shares of
Company common stock, in consideration for which all claims
against the settling defendants would be dismissed with prejudice,
with no admission of fault or wrongdoing by the Company or the
other defendants. The Company's additional charge to expenses for
2009 as a result of this settlement was approximately $2,150,000.
There are no charges to expense in 2010. An order preliminarily
approving the settlement was issued in January 2011 and the final
settlement hearing is scheduled for May 2011.
Smart Online, Inc. -- http://www.smartonline.com/-- develops and
markets software products and services targeted to small
businesses that are delivered via a software-as-a-service (SaaS)
model. The company also provides Website consulting services,
primarily in the e-commerce retail industry. The company's
principal products and services include SaaS applications for
business management, Web marketing and e-commerce; software
business tools that assist customers in developing written
content, and services that are designed to complement the
company's product offerings and allow it to create custom
business solutions that fit its end users' and channel partners'
needs. Smart Online reaches small businesses primarily through
arrangements with channel partners that private label the
company's software applications and market them to their customer
bases through their corporate Websites. Smart Online also offers
its products directly to end-user small businesses through its
OneBiz-branded Web site.
TIGRENT INC: Awaits Approval of C$250,000 Settlement in Brown Suit
------------------------------------------------------------------
Tigrent Inc. is awaiting approval from a Canadian court of a
settlement it negotiated in a class action lawsuit initiated by
David Brown in Quebec, according to the Company's March 31, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2010.
On January 11, 2007, the Company and its subsidiary Whitney Canada
Inc. (collectively, the "Tigrent Entities") received notice of an
Amended Motion for Authorization to Institute a Class Action in
the Superior Court for Province of Quebec, District of Hull
(Canada), captioned David Brown versus Marc Jemus, Francois Roy,
Robert Primeau et al., originally filed in 2006, on behalf of all
persons who are alleged to have made various real estate
investments at the alleged inducement of, or through, Marc Jemus,
Fran‡ois Roy, Robert Primeau and/or their companies, and/or B2B
Trust, and/or Whitney Canada, Inc., and/or Jean Lafreniere and/or
the Tigrent Entities. The complaint sought repayment of $39,235
to the petitioner, unspecified payment to each member of the class
of an amount corresponding to their lost investments, payment of
$10,000 to each member of the class as general damages, recovery
of costs and other litigation expenses, and unspecified equitable
relief. On January 20, 2011, the Tigrent Entities entered into a
Settlement Agreement which, subject to final Court approval, will
settle all claims brought by the plaintiff class against the
Tigrent Entities. In connection with the settlement, the Tigrent
Entities did not admit any liability in the case. Pursuant to the
terms of the Settlement Agreement, the plaintiff class, including
the named plaintiffs and any other class member who does not opt
out of the settlement in accordance with procedures applicable to
settlements of class action litigation under the Quebec Code of
Civil Procedure; have agreed to grant a full general release of
all claims they had or could have brought against the Tigrent
Entities in the litigation in exchange for aggregate payments of
C$250,000 to be deposited into a trust account controlled by the
attorneys for the plaintiffs from which the attorneys' costs will
be paid with any balance being available for distribution to
members of the plaintiff class who do not opt out of the
settlement. Of the total settlement amount, C$50,000 was paid
into the trust account within five days of the Settlement
Agreement, and the remaining C$200,000 was paid into the trust
account by March 18, 2011. The class action litigation against
the other defendants in the litigation not affiliated with Tigrent
remains pending and unsettled. The settlement and the Settlement
Agreement remain subject to approval by the Court. In addition,
if more than seven members of the plaintiff class opt out of the
settlement, the Tigrent Entities can terminate the Settlement
Agreement in their discretion if they determine that the remaining
financial exposure is financially significant to them. If the
Court does not approve the settlement or if the Tigrent Entities
elect to terminate the Settlement Agreement, then the settlement
and the Settlement Agreement will be void and the funds deposited
into the trust account will be returned to the Tigrent Entities.
Cape Coral, Fla.-based Tigrent Inc. (OTC BB: TIGE)
-- http://www.tigrent.com/-- is a provider of practical, high-
quality and value-based training, conferences, publications,
technology-based tools and mentoring to help customers become
financially literate. The Company provides customers with
comprehensive instruction and mentoring in the topics of real
estate and financial instruments investing and entrepreneurship in
the United States, the United Kingdom, and Canada.
TIGRENT INC: Awaits Approval of Settlement in "Springer" Suit
-------------------------------------------------------------
Tigrent Inc. is awaiting court approval of a settlement it
negotiated in a class action lawsuit initiated by Eric Springer in
Florida, according to the Company's March 31, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010.
On or about October 6, 2009, the Company and two of its
subsidiaries, EduTrades and WIA received a complaint filed in the
United States District Court for the Southern District of Florida
by Eric Springer and Maurice J. Seghers, Jr., on behalf of
themselves and all persons who purchased investor-education
products sold under the Teach Me To Trade ("TMTT") brand. Two
former independent contractors, Linda Woolf and David Gengler,
along with their companies, Hands on Capital, Inc., and Lashaico,
Inc., are additional defendants to the lawsuit. The complaint
alleges, among other things, fraud, negligent misrepresentation,
civil conspiracy, and deceptive and unfair trade practices arising
out of the Company's business relationship with and use of Linda
Woolf and David Gengler as trainers for the TMTT brand.
Plaintiffs seek for themselves and others similarly situated a
refund of all amounts spent on TMTT products and services,
unspecified compensatory damages, costs, an award of attorney's
fees, and unspecified legal and equitable relief. The complaint
relies on the findings from the verdict in the Woolf and Gengler
criminal trial. As has been previously reported, the verdict in
the Woolf and Gengler criminal trial was vacated on October 23,
2009, by way of an Order granting Woolf and Gengler's Motion for
Judgment of Acquittal. On October 30, 2009, the Company and its
subsidiaries accepted service of the complaint. On March 17,
2011, the Company, WEG, and WIA entered into a Stipulation and
Agreement of Settlement that, subject to final Court approval,
settled all claims brought by the plaintiff class against the
Company Entities. In connection with the settlement, the Company
Entities did not admit any liability in the case. Pursuant to the
terms of the Stipulation and Agreement of Settlement, the parties
consented to the entry of an order providing that, for the
purposes of the settlement only, the case would be certified as an
op-out class action pursuant Rule 23(b)(3) of the Federal Rules of
Civil Procedure on behalf of all persons who paid to attend a TMTT
seminar or purchased a TMTT product or service and who have not
subsequently received a full refund of the money spent on such
seminar, product, or service and who have not chosen to opt out of
the class. Under the terms of the settlement, the Company
Entities agreed to make available to members of the Settlement
Class, free of charge by the Company Entities, three of the
Company's internet-based investment seminars by placing such
seminars on a website to which members of the Settlement Class
will have access for a 90-day period. In addition, the Company
Entities agreed to pay attorney's fees, costs and incentive awards
to the putative class representatives in an amount not to exceed
$110,000 in the aggregate. In exchange, the Company Entities will
receive a full release of all claims that were or could have been
asserted in the lawsuit. The settlement remains subject to
approval by the District Court. In addition, the Company Entities
will have the option to withdraw from the settlement if the number
of potential Settlement Class members who opt out from the
settlement represent potential damages, measured as the dollar
amount paid by Settlement Class members for TMTT seminars,
products, or services, cumulatively greater than or equal to 3% of
the aggregate amount of potential damages to all Settlement Class
members to whom the notice of settlement is sent. In the event
of a withdrawal by the Company Entities from the settlement, the
settlement will become null and void and of no further force and
effect.
Cape Coral, Fla.-based Tigrent Inc. (OTC BB: TIGE)
-- http://www.tigrent.com/-- is a provider of practical, high-
quality and value-based training, conferences, publications,
technology-based tools and mentoring to help customers become
financially literate. The Company provides customers with
comprehensive instruction and mentoring in the topics of real
estate and financial instruments investing and entrepreneurship in
the United States, the United Kingdom, and Canada.
TRIVIEW GLOBAL: MFG Securities Suit Settlement Pending Court Okay
-----------------------------------------------------------------
Triview Global Fund, LLC, disclosed in its March 31, 2011 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010, that a preliminary settlement in
the securities class action lawsuits filed against MF Global Ltd.
is pending court approval.
On March 6, 2008, and thereafter, five virtually identical
proposed class action securities suits were filed against MF
Global Inc.'s parent, MF Global Ltd., certain of its officers and
directors, and Man Group plc. These suits have now been
consolidated into a single action. The complaints seek to hold
defendants liable under Secs. 11, 12 and 15 of the Securities Act
of 1933 by alleging that the registration statement and prospectus
issued in connection with MF Global's initial public offering in
July 2007 were materially false and misleading to the extent that
representations were made regarding MF Global's risk management
policies, procedures and systems. The allegations are based upon
MF Global's disclosure of $141.5 million in trading losses
incurred in a single day by an AP in his personal trading account,
which losses MFG was responsible to pay as an exchange clearing
member. The consolidated cases have been dismissed on a motion to
dismiss by defendants. Plaintiffs have appealed. In January
2011, the parties reached a preliminary agreement to settle
whereby MF Global will contribute $2.5 million to an overall
settlement amount of $90 million. The preliminary settlement will
be subject to Court review and final approval.
TRIVIEW GLOBAL: Class Suit Against MFG Remains Pending in New York
------------------------------------------------------------------
A consolidated class action lawsuit filed against MF Global Inc.
remains pending in New York, according to Triview Global Fund,
LLC's March 31, 2011 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2010.
On August 4, 2010, MF Global Inc. was added as a defendant to a
consolidated class action complaint filed against Moore Capital
Management and related entities in the United States District
Court for the Southern District of New York alleging claims of
manipulation and aiding and abetting manipulation, in violation of
the Commodity Exchange Act. Specifically, the complaint alleges
that, between October 25, 2007 and June 6, 2008, Moore Capital
directed MFG, as its executing broker, to enter 'large' market on
close orders (at or near the time of the close) for platinum and
palladium futures contracts, which allegedly caused artificially
inflated prices. On August 10, 2010, MFG was added as a defendant
to a related class action complaint filed against the Moore-
related entities on behalf of a class of plaintiffs who traded the
physical platinum and palladium in the relevant time frame, which
alleges price fixing under the Sherman Act and violations of the
civil Racketeer Influenced and Corrupt Organizations Act. On
September 30, 2010 plaintiffs filed an amended consolidated class
action complaint that includes all of the allegations and claims
in the original complaint on behalf of subclasses of traders of
futures contracts of platinum and palladium and physical platinum
and palladium. Plaintiffs' claimed damages have not been
quantified. This matter is in its earliest stages.
UMG RECORDINGS: Accused of Retaining Royalties for Own Benefit
--------------------------------------------------------------
Rick James, by and through The James Ambrose Johnson, Jr., 1999
Trust, his successor in interest, individually and on behalf of
others similarly v. UMG Recordings, Inc., Case No. 11-cv-01613
(N.D. Calif., San Francisco Cty. April 1, 2011), bring claims for
breach of contract and certain statutory violations under
California law. Specifically, plaintiff says UMG failed to
properly account for and pay its recording artists and music
producers for income it has received, and continues to receive,
from the licensees of its recorded music catalog for the sale of
digital downloads and ringtones.
As a consequence of UMG's past and continuing contractual and
statutory violations, plaintiff says he and the other members of
the Class have been damaged through the loss of royalties which
UMG has retained for its own benefit.
According to the Complaint, UMG and one of its owned and
distributed record labels, Aftermath Records, spent millions of
dollars contesting the above referenced issue in protracted
litigation. But the Ninth Circuit Court of Appeals found that UMG
failed as a matter of law to properly account for and pay said
income to the royalty participants in that case, a decision that
the U.S. Supreme Court recently declined to review.
Plaintiff was established as a living trust organized and
subsisting under the laws of the State of California, and
presently owns as successor in interest all intellectual property
developed and owned by the singer, songwriter, musician, producer
and performer James Ambrose Johnson, Jr., an individual better
known to the public as Rick James. Rick James died in August 2004
in the State of California.
UMG claims to be the world's largest recorded music company.
According to public reports, it boasts a 30% share in the market
for recorded music worldwide. Its labels include, among others,
Interscope Geffen A&M Records (which includes Aftermath Records),
Island Def Jam Music Group, and Universal Motown Republic Group.
The Plaintiff is represented by:
David M. Given, Esq.
Nicholas A. Carlin, Esq.
PHILLIPS, ERLEWINE & GIVEN LLP
50 California Street, 35th Floor
San Francisco, CA 94111
Telephone: (415) 398-0900
E-mail: dmg@phillaw.com
nac@phillaw.com
- and -
Kara M. Wolke, Esq.
PHILLIPS, ERLEWINE & GIVEN LLP
1221 Second Street, 3rd Floor
Santa Monica, CA 90401
Telephone: (310) 832-0900
E-mail: kmw@phillaw.com
- and -
Leonard B. Simon, Esq.
LAW OFFICES OF LEONARD B. SIMON
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
UNITED STATES: Lawyers in Dispute Over Cobell Class Action Fees
---------------------------------------------------------------
According to an article posted at The Blog of Legal Times by Mike
Scarcella, as lawyers for a class of Native Americans fight for
potentially hundreds of millions of dollars in legal fees, a side
issue has arisen over whether an attorney formerly involved in the
landmark suit in Washington should receive a cut of any fee award.
The plaintiffs' attorneys involved in the case, Cobell v. Salazar,
allege the attorney, Mark Brown, abandoned his clients, alienated
class counsel and should not get paid. Ms. Cobell's lawyers said
they are entitled to $223 million in fees for their work in the
case.
The lawyers for lead plaintiff Elouise Cobell, who sued the
government over its mismanagement of Indian trust accounts, said
in court papers filed Thursday evening that Mr. Brown should not
be allowed to collect fees in the class action, which has been
pending in Washington's federal district court since 1996.
Ms. Cobell's attorneys, including Washington solo Dennis Gingold
and a Kilpatrick Townsend & Stockton team, said Mr. Brown was
"terminated" in 2007 for allegedly refusing to communicate with
Ms. Cobell and dropping out of the proceedings for two years.
"Mr. Brown was fired for fair cause in light of his abandonment of
his clients at a time and in a manner that was prejudicial to
their interests," Ms. Cobell's lawyers said in court papers.
Mr. Brown, who practices in Los Angeles, was not immediately
reached for comment. Mr. Brown is seeking more than $5.5 million
in compensation. A lawyer representing Brown, Thomas Girardi of
Los Angeles' Girardi Keese, was not reached for comment this
afternoon.
In his request for fees, filed in February, Mr. Brown said he left
behind his practice in Los Angeles, moving to Washington to devote
about six years to litigating the Cobell case. He said he spent
more than 11,485 hours on the case and proposed an hourly fee of
$475, "well within the norm for practitioners in the Washington,
D.C., legal community."
Mr. Brown said he "forewent receipt of any present salary at an
hourly rate for his work for his clients, accepting instead to
enter into a contingency fee agreement with the named class
representatives."
Ms. Cobell's lawyers contend Mr. Brown's request for fees was
filed outside the court-mandated Jan. 25 deadline for such
petitions. The attorneys alleged "Mr. Brown decided that his best
strategy was to piggy-back on plaintiffs' petition to avoid public
scrutiny of his personal claim."
Responding to Mr. Brown's demand for compensation, Justice
Department lawyers said yesterday in court papers (PDF) that
Mr. Brown's "motion is not a fee petition but a request to resolve
an intramural dispute among plaintiffs' attorneys over the
division of the fees that the court will eventually award."
DOJ lawyer Robert Kirschman Jr. said Mr. Brown's demand for fees
appears to include money that the government already paid to
Ms. Cobell's lawyers in 2007 in connection to two discovery
sanctions motions.
* Law Offices of Marc S. Henzel Announces Class Action Periods
--------------------------------------------------------------
The Law Offices of Marc S. Henzel, a firm focusing on shareholder
litigation, gives notice to purchasers of the following securities
for the following class periods:
COMPANY CLASS PERIOD
Advanced Battery Technologies, Inc. (NASDAQ:ABAT)3/16/09 thru
3/29/11
China Agritech, Inc. (NASDAQ: CAGC) 2/8/10 thru 2/3/11
China Century Dragon Media, Inc. (AMEX: CDM) 2/8/11 thru 3/26/11
China Electric Motor, Inc. (NASDAQ: CELM) 1/29/10 thru 3/30/11
China Integrated Energy, Inc. (NASDAQ: CBEH) 3/31/10 thru 3/16/11
China Intelligent Lighting and Electronics, Inc. (AMEX: CIL)
1/18/10 thru 3/29/11
China Valves Technology, Inc. (Nasdaq: CVVT) 1/12/10 thru 1/13/11
NIVS IntelliMedia Technology Group, Inc. (AMEX: NIV) 3/24/10
thru 3/25/11
Office Depot (NYSE: ODP) 6/10/10 thru 4/1/11
ShengdaTech, Inc (Nasdaq: SDTH) 3/15/10 thru 3/15/11
If you purchased securities in any of the companies during the
class periods described above and/or own shares in any of the
companies and would like to learn more about any potential claims
or you wish to discuss these matters and have any questions
concerning this announcement or your rights, please contact Marc
S. Henzel (610) 660-8000, email at Mhenzel@Henzellaw.com or to
sign up online, visit the firms Web site at
http://www.henzellaw.com/
The Law Offices of Marc S. Henzel is a national shareholder
litigation firm representing shareholders & investors in various
areas of securities laws including but not limited to; class
actions, derivatives, transactional (buyouts/takeovers/mergers)
and FINRA & NYSE Arbitrations.
Contact: Marc S. Henzel, Esq.
Law Offices of Marc S. Henzel
E-mail: Mhenzel@Henzellaw.com
Telephone: 610-660-8000
Web site: http://www.henzellaw.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
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Leah
Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante,
Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *