/raid1/www/Hosts/bankrupt/CAR_Public/110527.mbx
C L A S S A C T I O N R E P O R T E R
Friday, May 27, 2011, Vol. 13, No. 104
Headlines
ADOBE INC: Freehand Users File Antitrust Class Action
ADVANCE AMERICA: Expects "Stone" Suit to Go to Trial This Year
ADVANCE AMERICA: "Betts" Suit Still Pending in Florida
ADVANCE AMERICA: "Johnson" Suit in Pennsylvania Still Pending
ADVANCE AMERICA: Still a Defendant in "King" Suit in Pennsylvania
ADVANCE AMERICA: Continues to Defend "Clerk" Suit in Pennsylvania
AGENUS INC: Appeals From IPO Class Suit Settlement Still Pending
ALLIANT ENERGY: Pension Plan Suit Remains Pending in Wisconsin
ALPHA NATURAL: Continues to Defend Merger-Related Class Suits
ALPHA NATURAL: Continues to Defend Class Suits in Virginia
AMERICAN INT'L: Continues to Defend ERISA Litigation II
AMERICAN INT'L: Discovery Is Ongoing in 2008 Securities Litigation
AMERICAN INT'L: Discovery Is Ongoing in Alabama Class Suit
AMERICAN INT'L: Disputes Liberty Mutual's Claim in NWCRP Suit
AMERICAN INT'L: Securities Class Suit Remains Pending in Ontario
AT&T: Lawyer Unveils Details on Overbilling Data Plan Class Suit
AT&T: Faces Class Action in Calif. Over Data Usage Overcharging
AON CORP: Signs MOU to Settle NJ Consolidated Suit for $550,000
AUTOMATIC DATA: Agreement to Settle Class Suit to be Filed Soon
BMC SOFTWARE: Appeals From Settlement of Class Suit Still Pending
BOTTOMLINE TECHNOLOGIES: Appeals From IPO Suit Settlement Pending
CELGENE CORP: Obtains Court Okay of Class Suit Settlement
CLEVERBRIDGE INC: Sued for Falsely Claiming SOFTWRE Fixes Problems
COMMUNITY HEALTH: Gets SC, HHS Subpoenas Following Class Actions
CVS CAREMARK: Awaits Order on Class Certification Motions
CVS CAREMARK: Continues to Defend FLSA-Violation Class Suits
CVS CAREMARK: Discovery Is Ongoing in "Lauriello" Suit
CVS CAREMARK: Continues to Defend Securities Suit in New Hampshire
DIGI INTERNATIONAL: NetSilicon IPO Class Suit Still Pending
DOW CHEMICAL: Judge to Rule on Dioxin Class Action in Two Weeks
DREAM ON ME: Recalls 22,000 Full-Size & Portable Drop-Side Cribs
DURHAM, CANADA: Sued Over Loss of USB Key With Health Info
EDUCATION MANAGEMENT: "Gaer" Class Action Lawsuit Still Pending
FINCORP INVESTMENTS: Court Okays AU$29-Mil. Class Suit Settlement
FMC CORP: Defends Hydrogen Peroxide-Related Suits in Canada
GEEKNET INC: Awaits Ruling on Motion to Dismiss IPO Suit Appeals
GREAT SOUTHERN: Motion to Dismiss Suit Over Overdraft Fees Pending
GSI COMMERCE: Defends Class Action Suits Over eBay Merger
GUAM: Tiyan Landowners Await Decision on Class Action
IMMERSION CORP: IPO Class Suit Remains Pending in New York
IMMERSION CORP: Faces Amended Complaint in Securities Class Suit
INTERNATIONAL COAL: Remains a Defendant in "Saratoga" Class Suit
LEGGETT & PLATT: Awaits Ruling on Plea to Dismiss Antitrust Suits
LINCOLN EDUCATIONAL: Response to Motion to Dismiss Due June 14
LOGITECH: Accused in N.Y. Suit of Misleading Shareholders
MERITOR INC: Court Stays Discovery in Filters Suit Until July 25
METROPCS COMMUNICATIONS: Texas Securities Class Suit Dismissed
MIDLAND FUNDING: Sued by AG Over "Robo-Signed" Affidavits
MORTON'S RESTAURANT: Subsidiary Inks Deal to Settle Suit in Calif.
MORTON'S RESTAURANT: Costa Mesa Unit Still Faces Class Suit
OCLARO INC: Sued for Hiding True Facts About Company's Finances
ON SEMICONDUCTOR: Still Defends Amended Complaint in IPO Suit
OPENWAVE SYSTEMS: Awaits Decision on Appeals From Suit Settlement
OPPENHEIMER HOLDINGS: Parties Stipulate Dismissal of Appeal
ORMAT TECHNOLOGIES: Continues to Defend Securities Suit in Nevada
PLAINSCAPITAL CORP: Remains Named Co-Conspirator in Class Suits
PNM RESOURCES: Awaits Decision on Appeal From Suit Dismissal
PRICELINE.COM INC: Awaits Decision on Suit Settlement Appeal
QC HOLDINGS: Discovery in Missouri Class Suit Commences
QC HOLDINGS: Consumer Suit in N.C. Still in Preliminary Stages
RAQQA INC: Faces Class Action Over Illegal Check Cashing Fees
SEI INVESTMENTS: Continues to Defend ETF-Related Suits
SEI INVESTMENTS: Defends Unfair Trade Practices Act Suits
SIRIUS XM: Settles Antitrust Class Action for $180 Million
SONY CORP: Faces 20th Suit Over Private Data Breach
SONY CORP: Faces 21st Suit Over Private Data Breach
STATE AUTO FINANCIAL: Awaits Ruling on Plea to Dismiss Class Suit
SUPPORT.COM: Awaits Decision on Appeal From Class Suit Settlement
SYNGENTA CROP: Wants Some Atrazine Suit Documents to Stay Sealed
TEXAS ROADHOUSE: "Crenshaw" Suit in Early Phases of Discovery
THEGLOBE.COM: Appeals From IPO Suit Settlement Still Pending
THESTREET.COM INC: Still Awaits Decision on Suit Settlement Appeal
UGI CORP: Continues to Defend "Swiger" Class Suits
UMB FINANCIAL: Settles Overdraft Fees Class Action for $7.8 Mil.
UMG RECORDINGS: Sued for Non-Payment of Income from Ringtone Sales
USA TRUCK: Awaits Court Approval of "Cerdenia" Suit Settlement
VALHI INC: Appeals in Lead Pigment Litigation Still Pending
VECTOR GROUP: Appeal in "Cleary" Suit Remains Pending
VECTOR GROUP: Hearing on Motion to Dismiss "Brown" Suit on June 21
VECTOR GROUP: Discovery Is Ongoing in "Smith" Suit
VECTOR GROUP: "Young" Suit Remains Stayed
VIVUS INC: Court Stays Discovery in "Kovtun" Class Action Lawsuit
WEB.COM GROUP: Awaits Decision on Appeals From Suit Settlement
WELLCARE HEALTH: Gets Final Approval of Class Suit Settlement
WESCO FINANCIAL: Continues to Defend Merger-Related Class Suits
* Devon County Council to Use Class Action Monitoring Service
Asbestos Litigation
ASBESTOS UPDATE: Ashland Inc. Facing 76T Open Claims at March 31
ASBESTOS UPDATE: Hercules Facing 22,000 Open Claims at March 31
ASBESTOS UPDATE: Union Carbide Facing 61,249 Claims at March 31
ASBESTOS UPDATE: Union Carbide Has $13MM March 31 Defense Costs
ASBESTOS UPDATE: Union Carbide Insurance Coverage Action Ongoing
ASBESTOS UPDATE: Union Carbide Has $50MM Receivable at March 31
ASBESTOS UPDATE: NL Industries Still Subject to Liability Cases
ASBESTOS UPDATE: 123,580 Cases in U.S. Pending v. Foster Wheeler
ASBESTOS UPDATE: Foster Wheeler Has 289 U.K. Claims at March 31
ASBESTOS UPDATE: Crown Cork Receives 600 New Claims During 1stQ
ASBESTOS UPDATE: Crown Holdings Accrues $243MM for Claims
ASBESTOS UPDATE: Fresenius Involved in Litigation With Sealed Air
ASBESTOS UPDATE: Exposure Actions Ongoing v. Transocean in Miss.
ASBESTOS UPDATE: Transocean Unit Faces 1,028 Actions at March 31
ASBESTOS UPDATE: 16 Cases Pending v. Parker Drilling at March 31
ASBESTOS UPDATE: Asbestos Cases Pending Against California Water
ASBESTOS UPDATE: Rockwell Automation Subject to Exposure Actions
ASBESTOS UPDATE: Chemtura Subject to Potential Exposure Actions
ASBESTOS UPDATE: 3M Company Posts $123MM Liabilities at March 31
ASBESTOS UPDATE: 3M Company Still Subject to Respirator Actions
ASBESTOS UPDATE: 3M Facing Declaratory Judgment Action in Minn.
ASBESTOS UPDATE: 3M Co. Posts $31MM Aearo Liability at March 31
ASBESTOS UPDATE: CenterPoint, Units Still Facing Exposure Cases
ASBESTOS UPDATE: American Int'l. Posts $2.199-Bil. Net Liability
ASBESTOS UPDATE: American Int'l. Posts 5,138 Claims at March 31
ASBESTOS UPDATE: Sunoco Subject to Potential Exposure Lawsuits
ASBESTOS UPDATE: M&F Posts $20MM Pneumo Abex Charges in 1stQ
ASBESTOS UPDATE: AMETEK Still Involved in Exposure Actions
ASBESTOS UPDATE: 17 Claims Pending v. Ladish Co. in Five States
ASBESTOS UPDATE: Claims v. Harsco Decrease to 19,293 at March 31
ASBESTOS UPDATE: Report Says Most Seoul Classrooms Contaminated
ASBESTOS UPDATE: 2 Scott Depot Men Sue 104 Firms in Kanawha Court
ASBESTOS UPDATE: York Action v. Various Rail Firms Filed in Texas
ASBESTOS UPDATE: Staffordshire Painter's Death Linked to Hazard
ASBESTOS UPDATE: Dorset Harbormaster's Death Linked to Exposure
ASBESTOS UPDATE: Swan Hunter Worker's Death Related to Exposure
ASBESTOS UPDATE: Granada Theatres Worker Seeks Help for Payout
ASBESTOS UPDATE: Hardie to Slash Fund Contribution by Over $11MM
ASBESTOS UPDATE: 2 Lawyers File Brief in 5th Cir. Fraud Case
ASBESTOS UPDATE: CSX Wants to Speak With Former Peirce Clients
ASBESTOS UPDATE: CSX's Reply in Simpkins' Lawsuit Due June 17
ASBESTOS UPDATE: Court Junks Royal's Motion for Summary Judgment
ASBESTOS UPDATE: District Court to Issue Ruling in Anderson Case
ASBESTOS UPDATE: Appeal Court Issues Various Rulings in UCC Case
ASBESTOS UPDATE: Baxley's Remand Bid Denied in Reliance Lawsuit
*********
ADOBE INC: Freehand Users File Antitrust Class Action
-----------------------------------------------------
Tim Conneally, writing for Betanews, reports that a group
representing over 5,000 users of vector drawing software FreeHand
has filed a class action lawsuit against Adobe Inc. in the
California District Court for antitrust violations.
Adobe almost acquired FreeHand in 1994 when it acquired Aldus, but
the Federal Trade Commission put a decade-long moratorium on the
acquisition. Like clockwork, when Adobe acquired Macromedia in
2005, it acquired FreeHand, because Macromedia had absorbed
FreeHand's then-owner Altsys.
The vector graphics software was then shelved in 2007. Adobe,
meanwhile offered similar functionality in its Illustrator
product.
The group of FreeHand diehards, which calls itself "Free
FreeHand," complains that Adobe effectively killed its superior
competitor by using exclusionary and anticompetitive tactics.
ADVANCE AMERICA: Expects "Stone" Suit to Go to Trial This Year
--------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., anticipates that the
putative class action captioned Kerri Stone v. Advance America,
Cash Advance Centers, Inc. et al. will proceed to trial during
2011, according to the Company's May 5, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
On July 16, 2008, Kerri Stone filed a putative class action
complaint in the Superior Court of California in San Diego against
the Company and its California subsidiary. Defendants removed the
case to the United States District Court for the Southern District
of California. The amended complaint alleges violations of the
California Deferred Deposit Transaction Law and the California
Unfair Competition Law and seeks an order requiring Defendants to
disgorge and/or make restitution of all revenue and loan
principal, pay three times the amount of damages the class members
actually incurred, reasonable attorneys' fees and costs of suit,
and punitive damages. The complaint also seeks certain injunctive
relief. The Company anticipates that the case will proceed to
trial during 2011.
Advance America, Cash Advance Centers, Inc. conducts business in
most states under the authority of enabling state statutes,
including cash advance, deferred presentment, check-cashing, small
loan, credit service organization, and other state laws whereby
cash advances are made directly to customers.
ADVANCE AMERICA: "Betts" Suit Still Pending in Florida
------------------------------------------------------
A putative class action lawsuit captioned Betts and Reuter v.
McKenzie Check Advance of Florida, LLC, et al., is still pending
in Florida, according to Advance America, Cash Advance Centers,
Inc.'s May 5, 2011 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2011.
The Company and the Company's subsidiary, McKenzie Check Advance
of Florida, LLC, are defendants in a putative class action lawsuit
commenced by former customers, Wendy Betts and Donna Reuter, on
January 11, 2001, and a third named class representative, Tiffany
Kelly, in the Circuit Court of Palm Beach County, Florida. This
putative class action alleges that McKenzie, by and through the
actions of certain officers, directors, and employees, engaged in
unfair and deceptive trade practices and violated Florida's
criminal usury statute, the Florida Consumer Finance Act, and the
Florida Racketeer Influenced and Corrupt Organizations Act. The
suit seeks unspecified damages, and the named defendants could be
required to refund fees and/or interest collected, refund the
principal amount of cash advances, pay multiple damages, and pay
other monetary penalties. Ms. Reuter's claim has been held to be
subject to binding arbitration. However, the trial court has
denied the defendants' motion to compel arbitration of Ms. Kelly's
claims. The Florida Appellate Court affirmed the trial court's
decision, but certified a "Question of Great Public Importance" to
the Florida Supreme Court. The Company appealed that decision and
the Florida Supreme Court accepted the appeal. The case will now
proceed before the Florida Supreme Court.
Advance America, Cash Advance Centers, Inc., conducts business in
most states under the authority of enabling state statutes,
including cash advance, deferred presentment, check-cashing, small
loan, credit service organization, and other state laws whereby
cash advances are made directly to customers.
ADVANCE AMERICA: "Johnson" Suit in Pennsylvania Still Pending
-------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., remains a defendant
in the putative class action entitled Sharlene Johnson, Helena
Love and Bonny Bleacher v. Advance America, Cash Advance Centers,
Inc., et al., in Pennsylvania, according to the Company's May 5,
2011 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
On August 1, 2007, Sharlene Johnson, Helena Love, and Bonny
Bleacher filed a putative class action lawsuit in the United
States District Court, Eastern District of Pennsylvania against
the Company and two of its subsidiaries alleging that they
provided lines of credit to borrowers in Pennsylvania without a
license required under Pennsylvania law and with interest and fees
in excess of the amounts permitted by Pennsylvania law. The
complaint seeks, among other things, a declaratory judgment that
the monthly participation fee charged to customers with a line of
credit is illegal, an injunction prohibiting the collection of the
monthly participation fee, and payment of damages equal to three
times the monthly participation fees paid by customers since June
2006, which could total approximately $135 million in damages,
plus attorneys' fees and costs. In January 2008, the trial court
entered an order compelling the purported class representatives to
arbitrate their claims on an individual basis, unless determined
otherwise by the arbiter. All parties appealed that order. On
February 28, 2011, the U.S. Third Circuit Court of Appeals vacated
the trial court's order and remanded the case to the trial court
for further proceedings on the validity of the class action
waivers in the Company's consumer arbitration clause.
Advance America, Cash Advance Centers, Inc., conducts business in
most states under the authority of enabling state statutes,
including cash advance, deferred presentment, check-cashing, small
loan, credit service organization, and other state laws whereby
cash advances are made directly to customers.
ADVANCE AMERICA: Still a Defendant in "King" Suit in Pennsylvania
-----------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., remains a defendant
in the putative class action captioned Raymond King and Sandra
Coates v. Advance America, Cash Advance Centers of Pennsylvania,
LLC, before a federal court in Pennsylvania, according to the
Company's May 5, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2011.
On January 18, 2007, Raymond King and Sandra Coates, who were
customers of BankWest Inc., the lending bank for which the Company
previously marketed, processed, and serviced cash advances in
Pennsylvania, filed a putative class action lawsuit in the United
States District Court, Eastern District of Pennsylvania alleging
various causes of action, including that the Company's
Pennsylvania subsidiary made illegal cash advance loans in
Pennsylvania in violation of Pennsylvania's usury law, the
Pennsylvania Consumer Discount Company Act, the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, the
Pennsylvania Fair Credit Extension Uniformity Act, and the
Pennsylvania Credit Services Act. The complaint alleges that
BankWest Inc. was not the "true lender" and that the Company's
Pennsylvania subsidiary was the "lender in fact." The complaint
seeks compensatory damages, attorneys' fees, punitive damages, and
the trebling of any compensatory damages. In January 2008, the
trial court entered an order compelling the purported class
representatives to arbitrate their claims on an individual basis,
unless determined otherwise by the arbiter. All parties appealed
that order and in April 2010, the United States Supreme Court
issued its opinion in Stolt-Nielsen. On February 28, 2011, the
U.S. Third Circuit Court of Appeals vacated the trial court's
order and remanded the case to the trial court for further
proceedings on the validity of the class action waivers in the
Company's consumer arbitration clause.
Advance America, Cash Advance Centers, Inc., conducts business in
most states under the authority of enabling state statutes,
including cash advance, deferred presentment, check-cashing, small
loan, credit service organization, and other state laws whereby
cash advances are made directly to customers.
ADVANCE AMERICA: Continues to Defend "Clerk" Suit in Pennsylvania
-----------------------------------------------------------------
Advance America, Cash Advance Centers, Inc., continues to handle
the defense of BankWest, Inc., in the putative class action
captioned Clerk v. NCAS of Delaware, LLC, d/b/a Advance America,
Cash Advance Centers, Inc., of Pennsylvania, et al., before a
trial court in Pennsylvania, according to the Company's May 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
On April 21, 2009, Yulon Clerk filed a putative class action
lawsuit in the Court of Common Pleas of Philadelphia County,
Pennsylvania, against the Company's subsidiaries, Advance America,
Cash Advance Centers of Pennsylvania, Inc., and NCAS of Delaware,
LLC, as well as BankWest, Inc., whose defense the Company is
handling pursuant to an indemnification agreement, and other
unrelated lenders and banks. The complaint alleges that the
practices of the Company's subsidiaries and BankWest, Inc.
violated the Pennsylvania Consumer Discount Protection Act, the
Pennsylvania Loan Interest Protection Law, and Pennsylvania
Consumer Protection Laws. The complaint seeks certification of a
class of individuals for the alleged violations, a declaration
that all loans made to class members are unenforceable, injunctive
relief, and monetary damages. The complaint repeats allegations
asserted in other putative class actions filed in Pennsylvania.
The Company removed the case to the United States District Court
for the Eastern District of Pennsylvania and filed a motion to
compel arbitration and stay the underlying action's proceedings.
In August 2009, the District Court issued an order severing the
claims against the individual defendants. On September 21, 2009,
plaintiffs filed three separate complaints seeking the same relief
as the April 21, 2009, complaint against Advance America, Cash
Advance Centers of Pennsylvania, Inc., NCAS of Delaware, LLC, and
BankWest, Inc. The case against the Company's Pennsylvania
subsidiaries was subsequently dismissed by consent of the parties
on November 11, 2009. The remaining cases against NCAS of Delaware
and Bankwest, Inc., are now proceeding before the trial court.
Advance America, Cash Advance Centers, Inc., conducts business in
most states under the authority of enabling state statutes,
including cash advance, deferred presentment, check-cashing, small
loan, credit service organization, and other state laws whereby
cash advances are made directly to customers.
AGENUS INC: Appeals From IPO Class Suit Settlement Still Pending
----------------------------------------------------------------
Appeals from an order approving the settlement of a class action
lawsuit over Agenus, Inc.'s initial public offering remain
pending, according to the Company's May 6, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011.
Agenus, the Company's Chairman and CEO, Garo H. Armen, Ph.D., and
two investment banking firms that served as underwriters in the
Company's initial public offering were named as defendants in a
federal civil class action lawsuit in the United States District
Court for the Southern District of New York. Substantially similar
actions were filed concerning the initial public offerings for
more than 300 different issuers, and the cases were coordinated
for pre-trial purposes as In re Initial Public Offering Securities
Litigation, 21 MC 92. The suit alleges that the brokerage arms of
the investment banking firms charged secret excessive commissions
to certain of their customers in return for allocations of the
Company's stock in the offering. The suit also alleges that shares
of the Company's stock were allocated to certain of the investment
banking firms' customers based upon agreements by such customers
to purchase additional shares of the Company's stock in the
secondary market. The parties have reached a global settlement of
the litigation. Under the settlement, the insurers will pay the
full amount of settlement share allocated to the defendants, and
the defendants will bear no financial liability. Agenus and the
other defendants will receive complete dismissals from the case.
In October 2009, the Court entered an order granting final
approval of the settlement, and subsequently judgment was entered.
Various objectors have filed appeals. If for any reason the
settlement does not become effective, the Company believes it has
meritorious defenses to the claims and intends to defend the
action vigorously. The Company is unable to predict the likelihood
of an unfavorable outcome or estimate its potential liability, if
any.
ALLIANT ENERGY: Pension Plan Suit Remains Pending in Wisconsin
--------------------------------------------------------------
A class action lawsuit against the Alliant Energy Cash Balance
Pension Plan remains pending in Wisconsin, according to Alliant
Energy Corporation's May 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
In February 2008, a class action lawsuit was filed against the
Alliant Energy Cash Balance Pension Plan in the U.S. District
Court for the Western District of Wisconsin. The complaint
alleges that certain Plan participants who received distributions
prior to their normal retirement age did not receive the full
benefit to which they were entitled in violation of the Employee
Retirement Income Security Act of 1974 because the Plan applied an
improper interest crediting rate to project the cash balance
account to their normal retirement age. The majority of these
Plan participants are limited to individuals who, prior to normal
retirement age, received a lump sum distribution and/or received
any form of distribution calculated under the Plan's prior formula
after that benefit was determined to be more valuable than their
benefit calculated under the Plan's cash balance formula. The
Court has certified two subclasses of plaintiffs that in aggregate
include all persons vested or partially vested in the Plan who
received these distributions from Jan. 1, 1998 through Aug. 17,
2006 including: 1) persons who received distributions from Jan. 1,
1998 through Feb. 28, 2002; and 2) persons who received
distributions from Feb. 29, 2002 through Aug. 17, 2006.
In June 2010, the Court issued an opinion and order that granted
the plaintiffs' motion for summary judgment on liability in the
lawsuit and decided with respect to damages that prejudgment
interest on damages will be allowed. A bench trial on the issue
of damages was held later in June 2010, at which the Court heard
evidence on issues related to the amount of damages. In December
2010, the Court issued an opinion and order that decided the
interest crediting rate that the Plan used to project the cash
balance accounts of the plaintiffs during the class period should
have been 8.2% and a pre-retirement mortality discount will not
apply to the damages calculation.
In March 2011, the Court issued an opinion and order that
prejudgment interest on damages will be calculated using the
average prime rate from the date that the Plan failed to make the
total required payment to a particular participant through the
date of the final judgment. The Court scheduled another hearing
for May 2011. Based on this opinion and order, the Plan currently
estimates that the final judgment of damages by the Court may be
up to $25 million, which does not include any award for
plaintiff's attorney's fees or costs. The Plan is contesting the
Court's decision and intends to pursue appropriate appeals after
the final judgment is rendered by the Court.
Alliant Energy, Interstate Power and Light Company and Wisconsin
Power and Light Company say they have not recognized any potential
liability for damages from the lawsuit while this matter is being
contested, and are currently unable to predict the final outcome
of the class action lawsuit or the ultimate impact on its
financial condition or results of operations but believe an
adverse outcome could have a material effect on the retirement
plan funding and expense.
The interest crediting rate used to project the cash balance
account to participants' normal retirement age has also been
considered by the IRS as part of its review of Alliant Energy's
request for a favorable determination letter with respect to the
tax-qualified status of the Plan. Alliant Energy reached an
agreement with the IRS, which resulted in a favorable
determination letter for the Plan during the first quarter of
2011. The agreement with the IRS requires an amendment to the
Plan, which is expected to result in $9 million of aggregate
future payments to certain Plan participants. Any future payments
to Plan participants resulting from an amendment to the Plan will
be recognized in the period the amendment is executed, which is
currently expected to occur in the second quarter of 2011. The
Plan expects the $9 million of future payments related to the
amendment to the Plan will offset any final judgment of damages by
the Court.
ALPHA NATURAL: Continues to Defend Merger-Related Class Suits
-------------------------------------------------------------
Alpha Natural Resources, Inc., continues to defend itself against
class action lawsuits filed in Delaware relating to its merger
with Massey Energy Company, according to the Company's May 6,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
The Company announced in January 2011 the merger of its wholly
owned subsidiary Mountain Merger Sub, Inc., and Massey. Since the
Massey Merger was announced by Alpha and Massey Energy Company on
January 29, 2011, Massey, the members of Massey's board of
directors and the Company and Mountain Merger have been named as
defendants in lawsuits brought by and on behalf of Massey
stockholders challenging the proposed transaction. These lawsuits
seek, among other things, to enjoin the consummation of the Massey
Merger. The Alpha Parties believe that the claims asserted against
them in these lawsuits are without merit and plan to vigorously
defend against them.
In re Massey Energy Company Derivative and Class Action Litigation
is an action pending in the Delaware Court of Chancery against
certain of Massey's current and former directors and officers.
Massey is named as a nominal defendant. Certain of the plaintiffs
in this case, filed suit against certain of Massey's current and
former directors and officers after the Upper Big Branch mine
explosion, alleging, among other things, that Massey's directors
and officers breached their fiduciary duties by failing to monitor
and oversee Massey's employees' compliance with Mine Safety and
Health Administration rules and regulations and by failing to
address allegedly poor safety conditions in its mines, culminating
in the UBB explosion. Following the announcement of the Massey
Merger, the Derivative Plaintiffs moved, on January 31, 2011, to
amend their derivative complaint to add factual allegations
concerning the terms of and process leading to the proposed
transaction; to join as defendants the Alpha Parties and the
members of Massey's board who were not already party to the
litigation; and to add class action claims challenging the
Individual Defendants' alleged breaches of fiduciary duty in
agreeing to the proposed transaction and the Alpha Parties'
alleged aiding and abetting of those alleged breaches.
On March 9, 2011, the court granted the Derivative Plaintiffs'
motion for leave to amend. The Derivative Plaintiffs' second
amended complaint was filed on March 11, 2011 and alleges, among
other things, that the Individual Defendants breached their
fiduciary duties by agreeing to the proposed transaction to
eliminate their potential liability on the derivative claims
asserted by the Derivative Plaintiffs in this case. The second
amended complaint further alleges that the Individual Defendants
breached their fiduciary duties by failing to secure the best
price possible in the proposed transaction; by failing to secure
any downside protection for the merger consideration, which is
primarily Alpha stock; and by agreeing to deal protection
provisions that allegedly virtually eliminate the possibility of a
proposal superior to the Company's. The second amended complaint
further alleges that the Alpha Parties aided and abetted the
Individual Defendants' alleged breaches of their fiduciary duties.
The second amended complaint requests that the court, among other
things, enjoin the consummation of the merger, establish a
"litigation trust" to preserve the Derivative Plaintiffs'
derivative claims; and award the plaintiffs their costs and
disbursements and reasonable allowances for fees of plaintiffs'
counsel and experts. The Alpha Parties filed a motion to dismiss
the respective claims asserted against them on April 18, 2011. On
April 19, 2011, the court set a hearing date of May 26, 2011, for
the Derivative Plaintiffs' motion requesting that the court
preliminarily enjoin the merger.
Two additional putative class actions were brought against Massey,
the Individual Defendants and the Alpha Parties in the Delaware
Court of Chancery following the announcement of the Massey Merger.
Silverman v. Phillips, et al., filed on February 7, 2011, and Goe
v. Massey Energy Company, et al., filed on February 14, 2011,
assert claims for breach of fiduciary duties against the
Individual Defendants and aiding and abetting breach of fiduciary
duties against the Alpha Parties. Silverman also asserts a claim
for aiding and abetting breach of fiduciary duties against Massey.
Messrs. Silverman and Goe's allegations are nearly identical to
those made by the Derivative Plaintiffs in the second amended
complaint filed in In re Massey. Silverman and Goe were
consolidated for all purposes with In re Massey on
February 9, 2011, and February 24, 2011.
Alpha Natural Resources, Inc., and its consolidated subsidiaries
are engaged in extracting, processing and marketing steam and
metallurgical coal from surface and deep mines, and selling to
electric utilities, steel and coke producers, and industrial
customers.
ALPHA NATURAL: Continues to Defend Class Suits in Virginia
----------------------------------------------------------
Alpha Natural Resources, Inc., continues to defend itself against
class action lawsuits filed in Virginia relating to its merger
with Massey Energy Company, according to the Company's May 6,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
The Company announced in January 2011 the merger of its wholly
owned subsidiary Mountain Merger Sub, Inc. and Massey. Since the
Massey Merger was announced by Alpha and Massey Energy Company on
January 29, 2011, Massey, the members of Massey's board of
directors and the Company and Mountain Merger have been named as
defendants in lawsuits brought by and on behalf of Massey
stockholders challenging the proposed transaction. These lawsuits
seek, among other things, to enjoin the consummation of the Massey
Merger. The Alpha Parties believe that the claims asserted against
them in these lawsuits are without merit and plan to vigorously
defend against them.
Three putative class actions were brought against Massey, the
Individual Defendants and the Alpha Parties in the United States
District Court for the Eastern District of Virginia following the
announcement of the Massey Merger. Mostaed v. Crawford, et al.,
filed on February 2, 2011; Perkins v. Crawford, et al., filed on
February 4, 2011; and Mandel v. Crawford, et al., filed on
February 18, 2011, assert claims for breach of fiduciary duties
against the Individual Defendants and aiding and abetting breach
of fiduciary duties against Massey and Alpha. On February 17,
2011, Mr. Mostaed filed a motion for consolidation of Mostaed with
Perkins and any subsequently filed actions challenging the Massey
Merger. This motion remains pending before the court. On April 4,
2011, Mr. Mostaed purported to file an amended complaint, which
adds putative class action claims for alleged violations of
Section 14(a) of the Exchange Act against Massey, the Individual
Defendants and Alpha and Section 20(a) of the Exchange Act against
Massey and the Individual Defendants. Massey, the Individual
Defendants and Alpha believe that the amended complaint was not
timely filed but have agreed to answer the amended complaint. On
April 11, 2011, Alpha, Massey and the Individual Defendant filed
answers to Mr. Mostaed's February 2, 2011 complaint and Mr.
Perkins's complaint. On May 3, 2011, Alpha filed an answer to Mr.
Mostaed's April 4, 2011 amended complaint.
On March 11, 2011, the Alpha Defendants filed a motion to stay the
claims asserted in Mostaed, Perkins and Mandel in favor of the
essentially identical claims already being pursued in the Delaware
Court of Chancery in In re Massey Messrs. Mostaed and Perkins each
opposed the motion, which remains pending before the court. Mr.
Mandel did not oppose the motion and, on April 19, 2011, the
parties in Mandel filed a proposed agreed order to stay
proceedings in the case in favor of In re Massey. On April 20,
2011, the Court entered a preliminary scheduling order and an
order scheduling a pre-trial conference in Mostaed, Perkins and
Mandel for May 19, 2011.
Alpha Natural Resources, Inc., and its consolidated subsidiaries
are engaged in extracting, processing and marketing steam and
metallurgical coal from surface and deep mines, and selling to
electric utilities, steel and coke producers, and industrial
customers.
AMERICAN INT'L: Continues to Defend ERISA Litigation II
-------------------------------------------------------
American International Group, Inc., continues to defend itself
against the consolidated class action lawsuit titled In re
American International Group, Inc., ERISA Litigation II, according
to the Company's May 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
Between June 25, 2008, and November 25, 2008, AIG, certain
directors and officers of AIG, and members of AIG's Retirement
Board and Investment Committee were named as defendants in eight
purported class action complaints asserting claims on behalf of
participants in certain pension plans sponsored by AIG or its
subsidiaries. On March 19, 2009, the Court consolidated these
eight actions as In re American International Group, Inc. ERISA
Litigation II. On June 26, 2009, lead plaintiffs' counsel filed a
consolidated amended complaint. The action purports to be brought
as a class action under the Employee Retirement Income Security
Act of 1974, as amended, on behalf of all participants in or
beneficiaries of certain benefit plans of AIG and its subsidiaries
that offered shares of AIG's common stock. In the consolidated
amended complaint, plaintiffs allege, among other things, that the
defendants breached their fiduciary responsibilities to plan
participants and their beneficiaries under ERISA, by continuing to
offer the AIG Stock Fund as an investment option in the plans
after it allegedly became imprudent to do so. The alleged ERISA
violations relate to, among other things, the defendants'
purported failure to monitor and/or disclose certain matters,
including the Subprime Exposure Issues. On September 18, 2009,
defendants filed motions to dismiss the consolidated amended
complaint.
On March 31, 2011, the Court granted defendants' motions to
dismiss with respect to one plan at issue, and denied defendants'
motions to dismiss with respect to the other two plans at issue.
As of May 2, 2011, plaintiffs have not specified an amount of
alleged damages, discovery has not commenced, and the Court has
not determined if a class action is appropriate or the size or
scope of any class. As a result, AIG is unable to reasonably
estimate the possible loss or range of losses, if any, arising
from the litigation.
AMERICAN INT'L: Discovery Is Ongoing in 2008 Securities Litigation
------------------------------------------------------------------
Discovery is ongoing with respect to a consolidated securities
litigation commenced in 2008 against American International Group,
Inc., according to the Company's May 5, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011.
Between May 21, 2008 and January 15, 2009, eight purported
securities class action complaints were filed against AIG and
certain directors and officers of AIG and AIG Financial Products
Corp., AIG's outside auditors, and the underwriters of various
securities offerings in the United States District Court for the
Southern District of New York, alleging claims under the
Securities Exchange Act of 1934 or claims under the Securities Act
of 1933. On March 20, 2009, the Court consolidated all eight of
the purported securities class actions as In re American
International Group, Inc. 2008 Securities Litigation (the
Consolidated 2008 Securities Litigation).
On May 19, 2009, lead plaintiff in the Consolidated 2008
Securities Litigation filed a consolidated complaint on behalf
of purchasers of AIG stock during the alleged class period of
March 16, 2006 through September 16, 2008, and on behalf of
purchasers of various AIG securities offered pursuant to AIG's
shelf registration statements. The consolidated complaint alleges
that defendants made statements during the class period in press
releases, AIG's quarterly and year-end filings, during conference
calls, and in various registration statements and prospectuses in
connection with the various offerings that were materially false
and misleading and that artificially inflated the price of AIG's
stock. The alleged false and misleading statements relate to,
among other things, the Subprime Exposure Issues. The
consolidated complaint alleges violations of Sections 10(b) and
20(a) of the Exchange Act and Sections 11, 12(a)(2), and 15 of the
Securities Act. On August 5, 2009, defendants filed motions to
dismiss the consolidated complaint, and on September 27, 2010 the
Court denied the motions to dismiss.
On November 24, 2010, and December 10, 2010, AIG and all other
defendants filed answers to the consolidated complaint denying the
material allegations therein and asserting their defenses.
On April 1, 2011, the lead plaintiff in the Consolidated 2008
Securities Litigation filed a motion to certify a class of
plaintiffs.
As of May 2, 2011, plaintiffs have not specified an amount of
alleged damages, discovery has only recently commenced and the
Court has not determined if a class action is appropriate or the
size or scope of any class. As a result, AIG says it is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the litigation.
AMERICAN INT'L: Discovery Is Ongoing in Alabama Class Suit
----------------------------------------------------------
Parties of a putative class action commenced in a state court in
Alabama against American International Group, Inc., and certain of
its subsidiaries have not completed class action discovery,
according to the Company's May 5, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
AIG and certain of its subsidiaries have been named defendants in
two putative class actions in state court in Alabama that arise
out of the 1999 settlement of class and derivative litigation
involving Caremark Rx, Inc. The plaintiffs in the second-filed
action intervened in the first-filed action, and the second-filed
action was dismissed. An excess policy issued by a subsidiary of
AIG with respect to the 1999 litigation was expressly stated to be
without limit of liability. In the current actions, plaintiffs
allege that the judge approving the 1999 settlement was misled as
to the extent of available insurance coverage and would not have
approved the settlement had he known of the existence and/or
unlimited nature of the excess policy. They further allege that
AIG, its subsidiaries, and Caremark are liable for fraud and
suppression for misrepresenting and/or concealing the nature and
extent of coverage. In addition, the intervenors originally
alleged that various lawyers and law firms who represented parties
in the underlying class and derivative litigation (the Lawyer
Defendants) were also liable for fraud and suppression,
misrepresentation, and breach of fiduciary duty.
The complaints filed by the plaintiffs and the intervenors request
compensatory damages for the 1999 class in the amount of $3.2
billion, plus punitive damages. AIG and its subsidiaries deny the
allegations of fraud and suppression, assert that information
concerning the excess policy was publicly disclosed months prior
to the approval of the settlement, that the claims are barred by
the statute of limitations, and that the statute cannot be tolled
in light of the public disclosure of the excess coverage. The
plaintiffs and intervenors, in turn, have asserted that the
disclosure was insufficient to inform them of the nature of the
coverage and did not start the running of the statute of
limitations.
In November 2007, the trial court dismissed the intervenors'
complaint against the Lawyer Defendants, and the Alabama Supreme
Court affirmed that dismissal in September 2008. After the case
was sent back down to the trial court, the intervenors retained
additional counsel and filed an Amended Complaint in Intervention
that named only Caremark and AIG and various subsidiaries as
defendants, purported to bring claims against all defendants for
deceit and conspiracy to deceive, and purported to bring a claim
against AIG and its subsidiaries for aiding and abetting
Caremark's alleged deception. The defendants moved to dismiss the
Amended Complaint in Intervention, and the plaintiffs moved to
disqualify all of the lawyers for the intervenors because, among
other things, the newly retained firm had previously represented
Caremark. The intervenors, in turn, moved to disqualify the
lawyers for the plaintiffs in the first-filed action. The cross-
motions to disqualify were withdrawn after the two sets of
plaintiffs agreed that counsel for the original plaintiffs would
act as lead counsel, and intervenors also withdrew their Amended
Complaint in Intervention. The trial Court approved all of the
foregoing steps and, in April 2009, established a schedule for
class action discovery that was to lead to a hearing on class
certification in March 2010. The Court has since appointed a
special master to oversee class action discovery and has directed
the parties to submit a new discovery schedule after certain
discovery disputes are resolved. Class discovery is ongoing, and
no schedule for the class certification hearing has been set.
As of May 2, 2011, the parties have not completed class action
discovery, general discovery has not commenced, and the court has
not determined if a class action is appropriate or the size or
scope of any class. As a result, AIG says it is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the litigation.
AMERICAN INT'L: Disputes Liberty Mutual's Claim in NWCRP Suit
-------------------------------------------------------------
American International Group, Inc., says in its May 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2011, that it disputes and will defend
against the allegation of Liberty Mutual Group that AIG's actual
exposure, should the class action involving the National Workers'
Compensation Reinsurance Pool continue through judgment, is in
excess of $3 billion.
On May 24, 2007, the National Council on Compensation Insurance,
on behalf of the participating members of the National Workers'
Compensation Reinsurance Pool, filed a lawsuit in the United
States District Court for the Northern District of Illinois
against AIG with respect to the underpayment by AIG of its
residual market assessments for workers' compensation insurance.
The complaint alleged claims for violations of RICO, breach of
contract, fraud and related state law claims arising out of AIG's
alleged underpayment of these assessments between 1970 and the
present and sought damages purportedly in excess of $1 billion.
On August 6, 2007, the Court denied AIG's motion seeking to
dismiss or stay the complaint or, in the alternative, to transfer
to the Southern District of New York. On December 26, 2007, the
Court denied AIG's motion to dismiss the complaint.
On March 17, 2008, AIG filed an amended answer, counterclaims and
third-party claims against NCCI (in its capacity as attorney-in-
fact for the NWCRP), the NWCRP, its board members, and certain of
the other insurance companies that are members of the NWCRP
alleging violations of RICO, as well as claims for conspiracy,
fraud, and other state law claims. The counterclaim- and third-
party defendants filed motions to dismiss on June 9, 2008. On
January 26, 2009, AIG filed a motion to dismiss all claims in
the complaint for lack of subject-matter jurisdiction. On
February 23, 2009, the Court issued a decision and order
sustaining AIG's counterclaims and sustaining, in part, AIG's
third-party claims. The Court also dismissed certain of AIG's
third-party claims without prejudice.
On April 13, 2009, third-party defendant Liberty Mutual filed
third-party counterclaims against AIG, certain of its
subsidiaries, and former AIG executives. On August 23, 2009, the
Court granted AIG's motion to dismiss the NCCI complaint for lack
of standing. On September 25, 2009, AIG filed its First Amended
Complaint, reasserting its RICO claims against certain insurance
companies that both underreported their workers' compensation
premium and served on the NWCRP Board, and repleading its fraud
and other state law claims. Defendants filed a motion to dismiss
the First Amended Complaint on October 30, 2009. On October 8,
2009, Liberty Mutual filed an amended counterclaim against AIG.
The amended counterclaim is substantially similar to the complaint
initially filed by NCCI, but also seeks damages related to non-
NWCRP states, guaranty funds, and special assessments, in addition
to asserting claims for other violations of state law. The
amended counterclaim also removes as defendants the former AIG
executives. On October 30, 2009, AIG filed a motion to dismiss
the Liberty amended counterclaim.
On April 1, 2009, Safeco Insurance Company of America and Ohio
Casualty Insurance Company filed a complaint in the Northern
District of Illinois, on behalf of a purported class of all NWCRP
participant members, against AIG and certain of its subsidiaries
with respect to the underpayment by AIG of its residual market
assessments for workers' compensation insurance. The complaint
was styled as an "alternative complaint," should the Court grant
AIG's motion to dismiss the NCCI lawsuit for lack of subject-
matter jurisdiction. The allegations in the class action
complaint are substantially similar to those filed by the NWCRP,
but the complaint names former AIG executives as defendants and
asserts a RICO claim against those executives. On August 28,
2009, the class action plaintiffs filed an amended complaint,
removing the AIG executives as defendants. On October 30, 2009,
AIG filed a motion to dismiss the amended complaint. On July 16,
2010, Safeco Insurance Company and Ohio Casualty Insurance Company
filed their motion for class certification, which AIG opposed on
October 8, 2010.
On July 1, 2010, the Court ruled on the pending motions to dismiss
that were directed at all parties' claims. With respect to the
underreporting NWCRP companies' and board members' motion to
dismiss AIG's first amended complaint, the Court denied the motion
to dismiss all counts except AIG's claim for unjust enrichment,
which it found to be precluded by the surviving claims for breach
of contract. With respect to NCCI and the NWCRP's motion to
dismiss AIG's first amended complaint, the Court denied the NCCI
and the NWCRP's motions to dismiss AIG's claims for an equitable
accounting and an action on an open, mutual, and current account.
With respect to AIG's motions to dismiss Liberty's counterclaims
and the class action complaint, the Court denied both motions,
except that it dismissed the class claim for promissory estoppel.
On July 30, 2010, the NWCRP filed a motion for reconsideration of
the Court's ruling denying its motion to dismiss AIG's claims for
an equitable accounting and an action on an open, mutual, and
current account. The Court denied the NWCRP's motion for
reconsideration on September 16, 2010. The plaintiffs filed a
motion for class certification on July 16, 2010. AIG opposed the
motion.
On January 5, 2011, AIG executed a term sheet with a group of
intervening plaintiffs, made up of seven participating members of
the NWCRP that filed a motion to intervene in the class action for
the purpose of settling the claims at issue on behalf of a
settlement class. The proposed class-action settlement would
require AIG to pay $450 million to satisfy all liabilities to the
class members arising out of the workers' compensation premium
reporting issues, a portion of which would be funded out of the
remaining amount held in the Workers' Compensation Fund less any
amounts previously withdrawn to satisfy AIG's regulatory
settlement obligations, as addressed. On January 13, 2011, their
motion to intervene was granted. On January 19, 2011, the
intervening class plaintiffs filed their Complaint in
Intervention. On January 28, 2011, AIG and the intervening class
plaintiffs entered into a settlement agreement embodying the terms
set forth in the January 5, 2011 term sheet and filed a joint
motion for certification of the settlement class and preliminary
approval of the settlement. If approved by the Court (and such
approval becomes final), the settlement agreement will resolve and
dismiss with prejudice all claims that have been made or that
could have been made in the consolidated litigations pending in
the Northern District of Illinois arising out of workers'
compensation premium reporting, including the class action, other
than claims that are brought by any class member that opts out of
the settlement.
On April 29, 2011, Liberty Mutual Group filed papers in opposition
to preliminary approval of the proposed settlement and in
opposition to certification of a settlement class, in which it
alleged AIG's actual exposure, should the class action continue
through judgment, to be in excess of $3 billion. AIG disputes and
will defend against this allegation. The $450 million settlement
amount along with the $146.5 million in fines, penalties, and
premium taxes discussed in the NAIC Examination of Workers'
Compensation Premium Reporting matter may be funded in part from
the $338 million held in the Workers' Compensation Fund. In the
event that the proposed class action settlement is not approved,
or that certain class members opt out of the settlement and
continue to pursue their claims against AIG, the litigation will
resume. AIG has an accrued liability equal to the amounts payable
under the settlement. Amounts held in escrow totaling
approximately $338 million, including interest thereon, are
included in Other assets at March 31, 2011, and are specifically
designated to satisfy liabilities related to workers' compensation
premium reporting issues.
AMERICAN INT'L: Securities Class Suit Remains Pending in Ontario
----------------------------------------------------------------
The Ontario Superior Court of Justice has not yet determined
whether it has jurisdiction over a securities class action against
American International Group, Inc., according to the Company's
May 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2011.
On November 12, 2008, an application was filed in the Ontario
Superior Court of Justice for leave to bring a purported class
action against AIG, AIG Financial Products Corp., certain
directors and officers of AIG and Joseph Cassano, the former Chief
Executive Officer of AIGFP, pursuant to the Ontario Securities
Act. If the Court grants the application, a class plaintiff will
be permitted to file a statement of claim against defendants. The
proposed statement of claim would assert a class period of
November 10, 2006 through September 16, 2008 (later amended to
March 16, 2006 through September 16, 2008) and would allege that
during this period defendants made false and misleading statements
and omissions in quarterly and annual reports and during oral
presentations in violation of the Ontario Securities Act.
On April 17, 2009, defendants filed a motion record in support of
their motion to stay or dismiss for lack of jurisdiction and forum
non conveniens. On July 12, 2010, the Court adjourned a hearing
on the motion pending a decision by the Supreme Court of Canada in
another action with respect to similar issues raised in the action
pending against AIG.
In plaintiff's proposed statement of claim, plaintiff alleged
general and special damages of $500 million, and punitive damages
of $50 million plus prejudgment interest or such other sums as the
Court finds appropriate. As of May 2, 2011, the Court has not
determined whether it has jurisdiction or granted plaintiff's
application to file a statement of claim and no discovery has
occurred. As a result, AIG is unable to reasonably estimate the
possible loss or range of losses, if any, arising from the
litigation.
AT&T: Lawyer Unveils Details on Overbilling Data Plan Class Suit
----------------------------------------------------------------
A recent class action suit filed in California charges AT&T with
systematically overbilling data plan subscribers for phantom data
usage. Attorney Barry L. Davis, Esq. from Miami, Florida,
appeared on NBC's Today Show, Thursday, May 19, 2011, to explain
the issues impacting literally millions of AT&T data plan
subscribers.
Mr. Davis is working on the case with attorney:
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
369 Lexington Avenue, 10th Floor
New York, NY 10017-6535
Telephone: 212-989-9113
"Imagine a gas pump that charges you for a full gallon and only
gives you nine-tenths, or being charged for gas before you even
drive up to the pump," said Mr. Davis, a board-certified Florida
trial lawyer. "You would never knowingly agree to such
overcharges, however, according to computer expert testing
everyone with AT&T limited data plans for iPhone and iPad
unknowingly pay these inflated fees each month."
A four-month independent study performed by a consulting firm at a
cost of nearly $100,000 revealed that AT&T bills systematically
overstated data usage by 7 to 14%, and in some instances by more
than 300 percent. For example, an IPhone user who downloads 50 KB
would actually be billed for 53.5 KB to as much as 150 KB. The
same study also revealed that AT&T bills for "phantom" data when
phones weren't even in use. What's more, tests indicated that the
billing system did not always record the correct date and time of
the data usage, causing transactions to be posted to the wrong
billing cycle.
"We were stunned to discover that AT&T billed for a phone which
was left untouched for 10 days, incurring 35 data transactions
totaling almost 3,000 KB during that period," said Mr. Davis.
According to the complaint, in the fourth quarter of 2010, AT&T
reported its wireless data revenues had increased $1.1 billion, or
27.4% from the prior year quarter to $4.9 billion. A significant
portion of the increase is believed to be caused by these phantom
data charges. Attorneys Davis and Bursor are representing Patrick
Hendricks and a class of similarly affected individuals in the
suit before the United States District Court for the Northern
District of California.
Mr. Davis has nearly three decades of legal experience, and has
acted as lead counsel in more than 50 trials of complex civil
litigation matters. Among them are class actions, mass disaster
litigation, products liability cases involving drugs and medical
devices, tires and industrial equipment, intellectual property,
insurance bad faith and fraud. Mr. Davis is a partner with
Thornton, Davis & Fein, P.A. in Miami.
Mr. Bursor's practice focuses on complex civil litigation and
class actions. Since 2008, he has tried four class action cases
to juries. He won a 9-figure award and three 8-figure awards for
the class plaintiffs in those cases. His background also includes
representation of large telecommunications, pharmaceutical, and
technology companies in commercial litigation. He is a partner
with Bursor & Fisher, P.A. in New York.
AT&T: Faces Class Action in Calif. Over Data Usage Overcharging
---------------------------------------------------------------
Eva Pilgrim, writing for Fox59, reports that a class action law
suit has been filed in California claiming AT&T overcharged for
data usage on Apple iPhones and iPads.
Byron Fenoglio said phantom cell phone charges started to appear
on his account in November.
"Hey I'm not using any wi-fi other than my home or Starbucks and
they couldn't explain why," he said.
Mr. Fenoglio said he called AT&T and the company always gave him
the same answer.
"Let me investigate. Let me put you hold for 2-3 minutes. They
would come back. I don't see anything out of ordinary."
Now a team of attorneys has filed a class action suit in
California. They paid a private consulting firm that uncovered
that AT&T overstated data usage by 7-17% and in some cases more
than 300%.
Barry L. Davis, Esq. of Thornton, Davis & Fein, P.A is one of the
attorneys involved in the case.
"We were stunned to discover that AT&T billed for a phone which
was left untouched for 10 days, incurring 35 data transactions
totaling almost 3,000 KB during that period," Thornton said.
Mr. Fenoglio said he saw a similar problem.
"I turned the wi-fi off on the phone, even that didn't work. Even
with it totally shut off they still charged me."
Whiles Mr. Fenoglio said he's been happy with AT&T until now, he
is looking around and now weighing options.
"I'm going to do what I can to save money."
According to the complaint filed in California, AT&T reported a
27.4% increase in data usage during the fourth quarter of 2010.
Attorneys in this class action suit said a significant part of
that increase is because of the phantom charges.
AON CORP: Signs MOU to Settle NJ Consolidated Suit for $550,000
---------------------------------------------------------------
Aon Corporation entered into a memorandum of understanding to
settle civil cases consolidated in the U.S. District Court for the
District of New Jersey, pursuant to which agreement Aon will pay
$550,000 in exchange for dismissal of class claims, according to
the Company's May 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
Aon and its subsidiaries are subject to numerous claims, tax
assessments, lawsuits and proceedings that arise in the ordinary
course of business, which frequently include errors and omissions
("E&O") claims. The damages claimed in these matters are or may
be substantial, including, in many instances, claims for punitive,
treble or extraordinary damages. Aon has historically purchased
E&O insurance and other insurance to provide protection against
certain losses that arise in such matters. Aon has exhausted or
materially depleted its coverage under some of the policies that
protect the Company and, consequently, is self-insured or
materially self-insured for some historical claims. Accruals for
these exposures, and related insurance receivables, when
applicable, have been provided to the extent that losses are
deemed probable and are reasonably estimable. These accruals and
receivables are adjusted from time to time as developments
warrant.
At the time of the 2004-05 investigation of the insurance industry
by the Attorney General of New York and other regulators,
purported classes of clients filed civil litigation against Aon
and other companies under a variety of legal theories, including
state tort, contract, fiduciary duty, antitrust and statutory
theories and federal antitrust and Racketeer Influenced and
Corrupt Organizations Act theories. The federal actions were
consolidated in the U.S. District Court for the District of New
Jersey, and a state court collective action was filed in
California. In the New Jersey actions, the Court dismissed
plaintiffs' federal antitrust and RICO claims in separate orders
in August and October 2007, respectively. In August 2010, the
U.S. Court of Appeals for the Third Circuit affirmed the
dismissals of most, but not all, of the claims.
In March 2011, Aon entered into a Memorandum of Understanding
documenting a settlement of the civil cases consolidated in the
U.S. District Court for the District of New Jersey. Under that
agreement, Aon will pay $550,000 in exchange for dismissal of the
class claims. Several non-class claims brought by individual
plaintiffs who opted out of the class action proceeding will
remain pending, but the Company does not believe these present
material exposure to the Company individually or in the aggregate.
The outcome of these lawsuits, and any losses or other payments
that may result, cannot be predicted at this time.
AUTOMATIC DATA: Agreement to Settle Class Suit to be Filed Soon
---------------------------------------------------------------
An agreement to settle a class action lawsuit against Automatic
Data Processing Inc. is expected to be filed for preliminary court
approval this year, according to the Company's May 6, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended March 31, 2011.
In September 2010, a purported class action lawsuit was filed
against the Company in Superior Court of the State of California,
County of Los Angeles. The lawsuit was subsequently removed to
the United States District Court, Central District of California,
Western Division. The complaint alleges that the Company
unlawfully handled certain client calls and seeks statutory
damages. The services at issue were performed by an independent
third-party vendor, and the Company believes that it has the
contractual right to full indemnification from this vendor for any
potential losses it might incur with respect to the matter.
In April 2011, the Company and the third-party vendor entered into
an agreement with the plaintiff to settle the matter subject to
court approval. As part of the settlement, the Company is to be
dismissed from the action and the third-party vendor will pay all
settlement amounts. The third-party vendor is also paying all of
the Company's legal fees and costs associated with defense of the
matter. A class action settlement agreement is expected to be
submitted to the court for preliminary approval in the fourth
quarter of fiscal 2011.
BMC SOFTWARE: Appeals From Settlement of Class Suit Still Pending
-----------------------------------------------------------------
Appeals from an order approving the settlement of a class action
lawsuit against a subsidiary of BMC Software Inc. remain pending,
according to the Company's May 6, 2011, Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
March 31, 2011.
On July 15, 2004, BMC acquired Marimba, Inc., and Marimba is now a
wholly-owned subsidiary of BMC. In 2001, a class action complaint
alleging violations of the federal securities laws was filed in
the United States District Court for the Southern District of New
York (the Court) naming as defendants Marimba, certain of
Marimba's officers and directors, and certain underwriters of
Marimba's initial public offering. An amended complaint was filed
on April 19, 2002. Marimba and certain of its officers and
directors are named in the suit pursuant to Section 11 of the
Securities Act of 1933 and Section 10(b) of the Securities
Exchange Act of 1934 on the basis of an alleged failure to
disclose the underwriters' alleged compensation and manipulative
practices in connection with Marimba's initial public offering.
Similar complaints have been filed against over 300 other issuers
that have had initial public offerings since 1998.
The individual officer and director defendants entered into
tolling agreements and, pursuant to a Court Order dated October 9,
2002, were dismissed from the litigation without prejudice. On
February 19, 2003, the Court granted a Motion to Dismiss the Rule
10b-5 claims against 116 defendants, including Marimba. On
June 30, 2003, the Marimba Board of Directors approved a proposed
partial settlement with the plaintiffs in this matter. The
settlement would have provided, among other things, a release of
Marimba and of the individual officer and director defendants for
the alleged wrongful conduct in the Amended Complaint in exchange
for a guarantee from Marimba's insurers regarding recovery from
the underwriter defendants and other non-monetary consideration.
While the partial settlement was pending approval, the plaintiffs
continued to litigate against the underwriter defendants. The
Court directed that the litigation proceed within a number of
"focus cases" rather than in all of the 310 cases that have been
consolidated. The Marimba case is not one of these focus cases.
On October 13, 2004, the Court certified the focus cases as class
actions. The underwriter defendants appealed that ruling, and on
December 5, 2006, the Court of Appeals for the Second Circuit (the
Second Circuit) reversed the Court's class certification decision.
On April 6, 2007, the Second Circuit denied plaintiffs' petition
for rehearing. In light of the Second Circuit opinion, liaison
counsel for all issuer defendants, including Marimba, informed the
Court that the settlement could not be approved, because the
defined settlement class, like the litigation class, could not be
certified. On June 25, 2007, the Court entered an order
terminating the settlement agreement.
On August 14, 2007, the plaintiffs filed their second consolidated
amended class action complaints against the focus cases and on
September 27, 2007, again moved for class certification. On
November 12, 2007, certain of the defendants in the focus cases
moved to dismiss the second consolidated amended class action
complaints. On March 26, 2008, the Court denied the motions to
dismiss except as to Section 11 claims raised by those plaintiffs
who sold their securities for a price in excess of the initial
offering price and those who purchased outside the previously
certified class period. On October 3, 2008, plaintiffs submitted
a proposed order withdrawing the class certification motion
without prejudice.
On April 2, 2009, a stipulation and agreement of settlement
between the plaintiffs, issuer defendants and underwriter
defendants was submitted to the Court for preliminary approval.
This settlement requires no financial contribution from Marimba or
BMC. The Court granted the plaintiffs' motion for preliminary
approval and preliminarily certified the settlement classes on
June 10, 2009. The settlement "fairness" hearing was held on
September 10, 2009. The Court granted the plaintiffs' motion for
final approval of the settlement and certified the settlement
classes on October 5, 2009. The Court determined that the
settlement is fair to the class members, approved the settlement
and dismissed, with prejudice, the case against Marimba and its
individual defendants. Two appeals to the settlement are pending
in the Second Circuit, and motions to dismiss these appeals have
been filed with the Court. The timing of resolution of these
appeals is uncertain. Due to the inherent uncertainties of
litigation and because the settlement remains subject to pending
appeals, the ultimate outcome of the matter is uncertain.
BOTTOMLINE TECHNOLOGIES: Appeals From IPO Suit Settlement Pending
-----------------------------------------------------------------
Appeals from an order approving the settlement of a consolidated
class action lawsuit against Bottomline Technologies (de), Inc.,
and its subsidiary, Optio, remain pending, according to the
Company's May 6, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2011.
On August 10, 2001, a class action complaint was filed against the
Company in the United States District Court for the Southern
District of New York: Paul Cyrek v. Bottomline Technologies, Inc.;
Daniel M. McGurl; Robert A. Eberle; FleetBoston Robertson
Stephens, Inc.; Deutsche Banc Alex Brown Inc.; CIBC World Markets;
and J.P. Morgan Chase & Co. A consolidated amended class action
complaint, In re Bottomline Technologies Inc. Initial Public
Offering Securities Litigation, was filed on April 20, 2002.
On November 13, 2001, a class action complaint was filed against
Optio in the United States District Court for the Southern
District of New York: Kevin Dewey v. Optio Software, Inc.; Merrill
Lynch, Pierce, Fenner & Smith, Inc.; Bear, Stearns & Co., Inc.;
FleetBoston Robertson Stephens, Inc.; Deutsche Bank Securities,
Inc.; Dain Rauscher Inc.; U.S. Bancorp Piper Jaffray, Inc.; C.
Wayne Cape; and F. Barron Hughes. A consolidated amended class
action complaint, In re Optio Software, Inc. Initial Public
Offering Securities Litigation, was filed on April 22, 2002.
The amended complaints filed in both the actions against the
Company and Optio assert claims under Sections 11, 12(2) and 15 of
the Securities Act of 1933, as amended, and Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended. The
amended complaints assert, among other things, that the
descriptions in the Company's and Optio's prospectuses for the
Company's initial public offerings were materially false and
misleading in describing the compensation to be earned by the
underwriters of the offerings, and in not describing certain
alleged arrangements among underwriters and initial purchasers of
the common stock from the underwriters. The amended complaints
seek damages, or, in the alternative, tender of the plaintiffs'
and the class's common stock and rescission of their purchases of
the common stock purchased in the initial public offering, costs,
attorneys' fees, experts' fees and other expenses.
In July 2002, the Company and Optio joined in an omnibus motion to
dismiss, which challenged the legal sufficiency of plaintiffs'
claims. The motion was filed on behalf of hundreds of issuer and
individual defendants named in similar lawsuits. On February 19,
2003, the court issued an order denying the motion to dismiss as
to Bottomline and denying in part the motion to dismiss as to
Optio. In addition, in October 2002, Daniel M. McGurl, Robert A.
Eberle, C. Wayne Cape and F. Barron Hughes were dismissed from
this case without prejudice. Both Bottomline and Optio authorized
the negotiation of a settlement of the pending claims, and the
parties negotiated a settlement, which was subject to approval by
the court. On August 31, 2005, the court issued an order
preliminarily approving the settlement. On December 5, 2006, the
United States Court of Appeals for the Second Circuit overturned
the District Court's certification of the class of plaintiffs who
are pursuing the claims that would be settled in the settlement
against the underwriter defendants. Plaintiffs filed a Petition
for Rehearing and Rehearing En Banc with the Second Circuit on
January 5, 2007 in response to the Second Circuit's decision. On
April 6, 2007, plaintiffs' Petition for Rehearing of the Second
Circuit's decision was denied. On June 25, 2007, the District
Court signed an order terminating the settlement. On September 27,
2007, plaintiffs filed a motion for class certification in certain
designated "focus cases" in the District Court. That motion was
withdrawn. Neither Bottomline nor Optio's cases are part of the
designated focus case group. On November 13, 2007, the issuer
defendants in the designated focus cases filed a motion to dismiss
the second consolidated amended class action complaints that were
filed in those cases. On March 26, 2008, the District Court issued
an Opinion and Order denying, in large part, the motions to
dismiss the amended complaints in these focus cases. On April 2,
2009, the plaintiffs filed a motion for preliminary approval of a
new proposed settlement between plaintiffs, the underwriter
defendants, the issuer defendants and the insurers for the issuer
defendants. On June 10, 2009, the Court issued an opinion
preliminarily approving the proposed settlement, and scheduling a
settlement fairness hearing for September 10, 2009. On August 25,
2009, the plaintiffs filed a motion for final approval of the
proposed settlement, approval of the plan of distribution of the
settlement fund, and certification of the settlement classes. The
settlement fairness hearing was held on September 10, 2009. On
October 5, 2009, the Court issued an opinion granting plaintiffs'
motion for final approval of the settlement, approval of the plan
of distribution of the settlement fund, and certification of the
settlement classes. An order and final judgment was entered on
November 25, 2009. Various notices of appeal of the Court's order
have been filed. On October 7, 2010, all but two parties who had
filed a notice of appeal filed a stipulation with the court
withdrawing their appeals with prejudice, and the two remaining
objectors filed briefs in support of their appeals. On December 8,
2010, the plaintiffs moved to dismiss with prejudice the appeal
filed by one of the two objectors based on alleged violations of
the Second Circuit's rules, including failure to serve, falsifying
proofs of service, and failure to include citations to the record.
The motion was fully briefed as of December 30, 2010, but the
Second Circuit has not yet ruled on the motion.
The Company, and its subsidiary Optio, intend to vigorously defend
ourselves in these actions. The Company does not currently
believe that the outcome of these proceedings will have a material
adverse impact on its financial condition, results of operations
or cash flows.
Bottomline Technologies Inc. -- http://www.bottomline.com/--
provides collaborative payment, invoice and document automation
solutions to corporations, financial institutions and banks
around the world. The company's solutions are used to
streamline, automate and manage processes involving payments,
invoicing, global cash management, supply chain finance and
transactional documents. Organizations trust these solutions to
meet their needs for cost reduction, competitive differentiation
and optimization of working capital. Headquartered in the United
States, Bottomline also maintains offices in Europe and Asia-
Pacific.
CELGENE CORP: Obtains Court Okay of Class Suit Settlement
---------------------------------------------------------
Celgene Corporation obtained court approval in April 2011 of its
settlement of a class action lawsuit filed in California,
according to the Company's May 5, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
On October 15, 2010, the Company acquired all of the outstanding
common stock of Abraxis BioScience, Inc., in exchange for
consideration valued at the Acquisition Date at approximately
$3.205 billion, consisting of cash, stock and contingent value
rights. The transaction, referred to as the Merger, resulted in
Abraxis becoming a wholly owned subsidiary of the Company.
Abraxis, the members of the Abraxis board of directors and Celgene
Corporation were named as defendants in putative class action
lawsuits brought by Abraxis stockholders challenging the Abraxis
acquisition in Los Angeles County Superior Court. On September 14,
2010, the parties reached an agreement in principle to settle the
actions. The defendants agreed, among other things, to make
additional disclosures relating to the acquisition, and to provide
the plaintiffs' counsel with limited discovery to confirm the
fairness and adequacy of the settlement. Additionally, Abraxis, on
behalf of itself and for the benefit of the other defendants in
the actions, agreed to pay the plaintiffs' counsel $600,000 for
their fees and expenses. Plaintiffs agreed to release all claims
against the Company and Abraxis relating to the Company's
acquisition of Abraxis. The settlement was approved by the court
on April 25, 2011.
CLEVERBRIDGE INC: Sued for Falsely Claiming SOFTWRE Fixes Problems
------------------------------------------------------------------
Mary Webb, individually and on behalf of others similarly situated
v. Cleverbridge, Inc., and Uniblue Systems Ltd., Case No.
2011-CH-18322 (Ill. Cir. Ct., Cook Cty. May 19, 2011), accuses the
defendants of fraud perpetrated in conjunction with the sale of
Uniblue's software products. According to plaintiff Webb, Uniblue
has designed its software to defraud consumers by deceiving them
into paying fees to fix fabricated and overstated computer
problems.
Allegedly, Uniblue falsely identifies computer errors and informs
the user that his computer system's "damage level" is "high" in an
attempt to "scare the consumer into purchasing its software."
"Additionally, through its advertising campaigns, Uniblue publicly
misrepresents the utility of its software to induce consumers into
purchasing its products.
Plaintiff Webb is a citizen of the State of Maryland.
Defendant Cleverbridge is a Delaware corporation with headquarters
located at 360 N. Michigan Ave., in Chicago. As Uniblue's online
reseller and credit card processor, Cleverbridge facilitates
Uniblue's sales operations in the United States.
Defendant Uniblue is a Maltese company with principal place of
business in Malta. Uniblue sells a variety of software packages
that the company claims will, among other things, increase the
speed and performance of a consumer's personal computer.
The Plaintiff is represented by:
Jay Edelson, Esq.
William C. Gray, Esq.
Ari J. Scharg, Esq.
EDELSON MCGUIRE, LLC
350 North LaSalle, Suite 1300
Chicago, IL 60654
Telephone: (312) 589-6370
E-mail: jedelson@edelson.com
wgray@edelson.com
ascharg@edelson.com
COMMUNITY HEALTH: Gets SC, HHS Subpoenas Following Class Actions
----------------------------------------------------------------
Sara Jackson, writing for FierceHealthcare, reports that Franklin,
Tenn.-based Community Health Services has been hit with subpoenas
from the SEC and HHS Office of Inspector General in Houston, and
just learned of two class-action lawsuits against it in Tennessee,
according to notifications it filed with the SEC on May 18.
The SEC wants details about the now-failed hostile takeover bid of
Tenet Healthcare Corp., including documents about CHS's admission
and observation rates, which Tenet has charged were fraudulent and
led to massive Medicare overbilling.
The Houston OIG has asked for CHS to send 71 patient medical
records from its Shelbyville, Tenn., facility to an assistant U.S.
Attorney in Texas handling an OIG investigation into the company's
Laredo, Texas, branch. The company indicates it doesn't know what
the connection might be between the two facilities "other than
they are both affiliated with us."
The class action suits arose from shareholders' complaints that
CHS made "misleading statements" to inflate its stock price. The
SEC filing doesn't give any details about what statements might be
at issue.
CHS officials say they haven't been served in either case --
Norfolk County Retirement System v. Community Health Systems,
Inc., Wayne T. Smith, and W. Larry Cash, which was filed on May 9,
or De Zheng v. Community Health Systems, Inc., Wayne T. Smith, and
W. Larry Cash, filed on May 12.
CVS CAREMARK: Awaits Order on Class Certification Motions
---------------------------------------------------------
CVS Caremark Corporation is awaiting a ruling on motions for class
certification in the coordinated cases within a multidistrict
litigation, which lawsuits allege that the Company violated
antitrust laws, according to the Company's May 5, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2011.
Various lawsuits have been filed alleging that Caremark has
violated applicable antitrust laws in establishing and maintaining
retail pharmacy networks for client health plans. In August 2003,
Bellevue Drug Co., Robert Schreiber, Inc. d/b/a Burns Pharmacy and
Rehn-Huerbinger Drug Co. d/b/a Parkway Drugs #4, together with
Pharmacy Freedom Fund and the National Community Pharmacists
Association filed a putative class action against Caremark in
Pennsylvania federal court, seeking treble damages and injunctive
relief. In October 2003, two independent pharmacies, North
Jackson Pharmacy, Inc. and C&C, Inc. d/b/a Big C Discount Drugs,
Inc. filed a putative class action complaint in Alabama federal
court against Caremark and two PBM competitors, seeking treble
damages and injunctive relief. The North Jackson Pharmacy case
was transferred to Illinois federal court, and the Bellevue case
was sent to arbitration based on contract terms between the
pharmacies and Caremark. The Bellevue arbitration was then stayed
by the parties pending developments in the North Jackson Pharmacy
court case.
In August 2006, the Bellevue case and the North Jackson Pharmacy
case were both transferred to Pennsylvania federal court by the
Judicial Panel on Multidistrict Litigation for coordinated and
consolidated proceedings with other cases before the panel,
including cases against other PBMs. Caremark appealed the
decision which vacated the order compelling arbitration and
staying the proceedings in the Bellevue case and, following the
appeal, the Court of Appeals reinstated the order compelling
arbitration of the Bellevue case. Motions for class certification
in the coordinated cases within the multidistrict litigation,
including the North Jackson Pharmacy case, remain pending. The
consolidated action is now known as the In Re Pharmacy Benefit
Managers Antitrust Litigation.
CVS CAREMARK: Continues to Defend FLSA-Violation Class Suits
------------------------------------------------------------
CVS Caremark Corporation continues to defend itself from class
action lawsuits alleging violations of the Fair Labor Standards
Act, according to the Company's May 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
Since March 2009, the Company has been named in a series of
putative collective and class action lawsuits filed in federal
courts around the country, purportedly on behalf of current and
former assistant store managers working in the Company's stores at
various locations outside California. The lawsuits allege that
the Company failed to pay overtime to assistant store managers as
required under the Fair Labor Standards Act and under certain
state statutes. The lawsuits also seek other relief, including
liquidated damages, punitive damages, attorneys' fees, costs and
injunctive relief arising out of the state and federal claims for
overtime pay. Notice has been issued to over 13,000 current and
former assistant store managers offering them the opportunity to
"opt in" to certain of the FLSA collective actions and over 1,900
have elected to participate in these lawsuits.
At this time, the Company says it is not able to predict the
outcome of these cases, or the possible monetary exposure
associated with the lawsuits. The Company's position, however, is
that the lawsuits are without merit and that the cases should not
be certified as class or collective actions. The Company is
vigorously defending these claims, but cannot predict with
certainty the timing or outcome of this matter.
CVS CAREMARK: Discovery Is Ongoing in "Lauriello" Suit
------------------------------------------------------
Discovery on class certification and adequacy issues is underway
in the putative class action lawsuit filed by John Lauriello
against CVS Caremark Corporation, according to the Company's
May 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2011.
Caremark was named in a putative class action lawsuit filed in
October 2003 in Alabama state court by John Lauriello, purportedly
on behalf of participants in the 1999 settlement of various
securities class action and derivative lawsuits against Caremark
and others. Other defendants include insurance companies that
provided coverage to Caremark with respect to the settled
lawsuits. The Lauriello lawsuit seeks approximately $3.2 billion
in compensatory damages plus other non-specified damages based on
allegations that the amount of insurance coverage available for
the settled lawsuits was misrepresented and suppressed. A similar
lawsuit was filed in November 2003 by Frank McArthur, also in
Alabama state court, naming as defendants Caremark, several
insurance companies, attorneys and law firms involved in the 1999
settlement. This lawsuit was stayed as a later-filed class
action, but McArthur was subsequently allowed to intervene in the
Lauriello action. The attorneys and law firms named as defendants
in McArthur's intervention pleadings have been dismissed from the
case, and discovery on class certification and adequacy issues is
underway.
CVS CAREMARK: Continues to Defend Securities Suit in New Hampshire
------------------------------------------------------------------
CVS Caremark Corporation continues to defend itself against a
securities class action lawsuit that was transferred from Rhode
Island to New Hampshire, according to the Company's May 5, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2011.
In November 2009, a securities class action lawsuit was filed in
the United States District Court for the District of Rhode Island
purportedly on behalf of purchasers of CVS Caremark Corporation
stock between May 5, 2009 and November 4, 2009. The lawsuit names
the Company and certain officers as defendants and includes
allegations of securities fraud relating to public disclosures
made by the Company concerning the PBM business and allegations of
insider trading. In addition, a shareholder derivative lawsuit
was filed in December 2009, in the same court against the
directors and certain officers of the Company. A derivative
lawsuit is a lawsuit filed by a shareholder purporting to assert
claims on behalf of a corporation against directors and officers
of the corporation. This lawsuit includes allegations of, among
other things, securities fraud, insider trading and breach of
fiduciary duties and further alleges that the Company was damaged
by the purchase of stock at allegedly inflated prices under its
share repurchase program.
In January 2011, both lawsuits were transferred to the United
States District Court for the District of New Hampshire. The
Company believes these lawsuits are without merit and the Company
plans to defend them vigorously. The Company received a subpoena
dated February 28, 2011, from the Securities and Exchange
Commission requesting, among other corporate records, information
relating to public disclosures made by the Company in 2009
concerning its PBM and Medicare Part D businesses and information
concerning ownership and transactions in the Company's securities
by certain officers of the Company. The Company is cooperating
with these requests for information and has been providing
documents and other information to the SEC as requested.
The Company says it cannot predict the ultimate outcome of these
legal matters. Management does not believe, however, that the
outcome of any of these legal matters will have a material adverse
effect on the Company's operating results or financial condition.
DIGI INTERNATIONAL: NetSilicon IPO Class Suit Still Pending
-----------------------------------------------------------
Digi International Inc. continues to defend itself from a
consolidated amended class action complaint filed in connection
with the initial public offering of its subsidiary, according to
the Company's May 6, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
March 31, 2011.
On April 19, 2002, a consolidated amended class action complaint
was filed in the United States District Court for the Southern
District of New York asserting claims relating to the initial
public offering (IPO) of the Company's subsidiary NetSilicon, Inc.
and approximately 300 other public companies. The Company
acquired Net Silicon, Inc. on February 13, 2002. The complaint
names the Company as a defendant along with NetSilicon, certain of
its officers and certain underwriters involved in NetSilicon's
IPO, among numerous others, and asserts, among other things, that
NetSilicon's IPO prospectus and registration statement violated
federal securities laws because they contained material
misrepresentations and/or omissions regarding the conduct of
NetSilicon's IPO underwriters in allocating shares in NetSilicon's
IPO to the underwriters' customers. The Company believes that the
claims against the NetSilicon defendants are without merit and has
defended the litigation vigorously. Pursuant to a stipulation
between the parties, the two named officers were dismissed from
the lawsuit, without prejudice, on October 9, 2002.
DOW CHEMICAL: Judge to Rule on Dioxin Class Action in Two Weeks
---------------------------------------------------------------
Terry Camp, writing for WJRT, reports that a lawsuit was filed
more than eight years ago by residents who say Dow Chemical Co.
contaminated their property with dioxin.
The lawsuit, Henry vs. Dow Chemical, was filed in March of 2003.
Attorneys for the plaintiffs in the dioxin lawsuit were back in
court on May 19 asking Judge Leopold Borrello to sign an order
granting class-action status. Attorney Bruce Trogan, Esq.,
believes it will be a simple legal motion, but nothing has been
simple in the lawsuit.
"I believe, with Dow's history, they are going to attempt to make
it more difficult than it is," Mr. Trogan said.
Judge Borrello gave the lawsuit class-action status more than five
years ago, but in 2009, the Michigan Supreme Court ordered Judge
Borrello to look at the decision again. Dow Chemical attorney
Doug Kurtenbach, Esq., says a lot has happened in the last few
years, including dioxin testing on hundreds of properties, which
show varying levels of dioxin, a chemical which has been shown to
cause cancer.
"Thousands of them they cannot show have higher than background
levels on them, they know it, but they want you to sign that order
because then that gives them 2,500 plaintiffs, instead of 100 or
500," Mr. Kurtenbach said.
If it becomes a class-action lawsuit, Mr. Kurtenbach says it will
be impossible to litigate with so many plaintiffs. Dow Chemical
says it's ready to go to court with the 150 or so property owners
along the Tittabawassee River suing the company over dioxin
contamination.
Judge Borrello on May 19 said he would clarify his earlier ruling
in two weeks.
DREAM ON ME: Recalls 22,000 Full-Size & Portable Drop-Side Cribs
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Dream on Me, Inc. of Piscataway, New Jersey, announced a voluntary
recall of about 22,000 full-size and portable drop-side cribs.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
For full-size cribs, the drop-side rail hardware can break or
fail, allowing the drop side to detach from the crib. When the
drop-side rail partially detaches, it creates a space between the
drop side and the crib mattress. An infant or toddler's body can
become entrapped in the space, which can lead to strangulation
and/or suffocation. A child can also fall out of the crib.
For portable cribs, the drop-side rail hardware can break or fail,
allowing the drop side to detach from the crib or fall
unexpectedly. In addition, the portable crib mattress support
hardware and the drop-side release latch can break easily, and the
slats can loosen or break and detach from the crib. Children can
also cut themselves on exposed hardware inside the cribs.
CPSC and the firm know of 69 reports of incidents involving these
cribs. A 1-year-old boy sustained a scratch to the nose when he
became trapped between the mattress support and side rail of his
portable crib. An 8-month-old girl sustained a minor injury on
her head from exposed plastic hardware inside the portable crib.
The cribs are drop-side wooden cribs, painted or stained in black,
cherry, dark brown, natural, white, and pink.
Full-Size Cribs: Models 613, 615, 616, 617, 619, 628, and 639 are
included in this recall. The model number and "Dream on Me Inc."
are printed on a label located on the inside of one of the end
panels. The label lists a manufacture date between January 2006
and December 2009.
Portable Cribs: The cribs are smaller than full-size cribs and the
ends fold in to facilitate portability. Model numbers 621, 625
and 627 are included in this recall. The model number and "Dream
on Me Inc." are printed on a label located on the mattress board.
The label lists a manufacture date between August 2007 and
February 2009.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11224.html
The recalled products were manufactured in China and sold at Toys
R Us, Walmart and Target stores nationwide and online at
Amazon.com. The full-size cribs were sold from January 2006 to
December 2009 for about $200. The portable cribs were sold from
September 2007 to December 2009 for about $150.
Consumers should immediately stop using these cribs and contact
the company. For the full-size cribs, consumers will be given a
free kit that will immobilize the drop side. Kits will be
available beginning June 30, 2011. For the portable cribs,
consumers can receive a free replacement portable crib with fixed
sides. Replacement cribs will be available in mid-July 2011.
For additional information, contact the firm toll-free at (877)
201-4317 between 9:00 a.m. and 4:30 p.m. Eastern Time Monday
through Friday, or visit the firm's Web site at
http://www.dreamonme.com/
Important Message from CPSC
CPSC reminds parents not to use any crib with missing, broken or
loose parts. Make sure to tighten hardware from time to time to
keep the crib sturdy. When using a drop-side crib, parents should
check to make sure the drop side or any other moving part operates
smoothly. Always check all sides and corners of the crib for
parts separating that can create a gap and entrap a child. In
addition, do not try to repair any side of the crib. Babies have
died in cribs where repairs were attempted by caregivers. Crib
age is a factor in safety. At a minimum, CPSC staff recommends
that you do not use a crib that is older than 10 years old. New,
mandatory federal crib rules take effect on June 28, 2011. All
cribs manufactured and sold after that date must meet new and
improved safety requirements. Older cribs do not meet the new
standard and can have a variety of safety problems. Check if your
crib has been recalled at http://www.cpsc.gov/
DURHAM, CANADA: Sued Over Loss of USB Key With Health Info
----------------------------------------------------------
Keith Gilligan, writing for DurhamRegion.com, reports that a
C$40-million class action lawsuit has been filed against Durham
Region over the loss of a USB key containing personal information
about people who had been vaccinated against the H1N1 flu virus.
The class action suit was given the go-ahead by Justice Peter
Lauwers of the Ontario Superior Court of Justice in late April,
with Bowmanville resident John Sherlock Rowlands appointed as the
'representative' of the class.
The law firm of Flaherty Dow Elliott and McCarthy is representing
the plaintiffs, while the Toronto firm of David Boghosian and
Associates is representing the Region.
Among the claims in the suit are that the Region was negligent,
there was a breach of a fiduciary duty, violation of privacy and
breach of the Canadian Charter of Rights and Freedoms.
None of the charges have been proven in court.
The suit stems from the loss of a USB key by a public health nurse
in December 2009. On the key was information on the 83,524 people
who had been vaccinated between Oct. 23 and Dec. 15, 2009 at flu
vaccination clinics provided by the Regional health department.
Information collected includes the person's name, address, phone
number, date of birth, health card number, name of primary
physician and personal health information provided when they got
the vaccination.
The USB key was lost in the parking lot of the Regional
headquarters.
"As a consequence of the various causes of action, the plaintiffs
have suffered special damages, meaning money damages for the
purpose of obtaining credit monitoring for a period of years by
the court. Further, the plaintiffs may be entitled to punitive,
aggravated and exemplary damages," the plaintiffs state in their
court filing.
The court has already ordered the Region to pay almost $63,500 to
the plaintiffs to handle some costs.
The lawyer retained by the Region, David Boghosian, Esq. said in
an interview the "class has been certified, which we largely
consented to."
Letters have been sent to everyone who was on the list. Anyone on
the list has until 5:00 p.m. on Wednesday, Aug. 31 to opt out of
the case.
"We're not expecting all 84,000 members to opt out," Mr. Boghosian
noted.
It's still possible the two sides can continue meeting and
possibly negotiate a settlement, he added.
The two sides are processing documents, conducting examination of
witnesses. In October, an examination and discovery session will
be held.
A representative for Flaherty Dow Elliott and McCarthy couldn't be
reached for comment.
EDUCATION MANAGEMENT: "Gaer" Class Action Lawsuit Still Pending
---------------------------------------------------------------
Education Management Corporation continues to defend itself from
an amended class action complaint filed in connection with its
initial public offering, according to the Company's May 6, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended March 31, 2011.
On August 11, 2010, a securities class action complaint captioned
Gaer v. Education Management Corp., et. al was filed against the
Company, certain of its executive officers and directors, and
certain underwriters of the Company's initial public offering.
The complaint alleges violations of Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 and Sections 10(b) and 20(a) of the
Exchange Act of 1934 due to allegedly false and misleading
statements in connection with the Company's initial public
offering and the Company's subsequent press releases and filings
with the Securities and Exchange Commission. On November 10,
2010, the Court granted the Oklahoma Police Pension and Retirement
System's motion to serve as lead plaintiff in the lawsuit. On
January 10, 2011, the lead plaintiff and the Southeastern
Pennsylvania Transportation Authority filed an Amended Class
Action Complaint with the Court alleging similar violations of
Section 11, 12(a)(2) and 15 of the Securities Act of 1933 and
Section 10(b) and 20(a) of the Exchange Act of 1934 and adding one
additional individual defendant and other underwriters from the
Company's initial public offering. The Company believes that the
lawsuit is without merit and intends to vigorously defend itself.
FINCORP INVESTMENTS: Court Okays AU$29-Mil. Class Suit Settlement
-----------------------------------------------------------------
The New Lawyer reports that the Federal Court of Australia on
May 20 approved a AU$29 million class action settlement,
negotiated by national law firm Slater & Gordon.
The firm is acting on behalf of more than 5,000 investors who lost
money when Fincorp Investments Limited collapsed in 2007.
Slater & Gordon pursued compensation for investors from Sandhurst
Trustees Limited, the appointed trustees of Fincorp, alleging
Sandhurst had breached its duties as trustee for investors under
the Corporations Act. The case represents one of the first times
that these provisions of the legislation have been used to recover
compensation from a trustee.
Slater & Gordon litigation lawyer Odette McDonald said the
settlement was significant to the many 'mum and dad and retiree
investors' who lost their savings in Fincorp.
She said the money that investors would receive under the
settlement was in addition to funds already recovered by secured
investors through the liquidation process and, for unsecured
investors, represented the first time that they have recovered any
money since the collapse of Fincorp.
"We are proud to have delivered a result that will see much-needed
funds going back into the pockets of thousands of mum and dad and
retiree investors," Ms. McDonald said.
"Many small investors, from across Australia, invested in Fincorp
because they mistakenly thought that it was as safe as investing
in a bank.
"Clever marketing tactics and high profile endorsements were used
to rope-in investors.
"The collapse of Fincorp in 2007 came as a horrific shock to the
many, mainly older investors who thought they had invested in a
low-risk company."
The class action settlement covers investors who had purchased
secured and/or unsecured notes issued by Fincorp on or after
December 7, 2004, and held those notes as at March 23, 2007, or
who purchased secured and/or unsecured notes prior to December 7,
2004, and rolled the investment over after that date.
Ms. McDonald said it was significant that unsecured noteholders
were included in the class action settlement as these individuals
did not receive any funds from the liquidation of Fincorp.
"[Fri] day's result means that people who thought they had no
chance of recovering any part of their investment, will receive a
return of some of their lost capital."
Ms. McDonald said the use of the provisions under the Corporations
Act was a legal milestone.
"These laws mean that when a company like Sandhurst acts as
trustee for a company that raises money from the public, and when
the fund raising company involved folds, there might still be an
avenue for justice for investors," she said.
Slater & Gordon, head of commercial and project litigation,
Ken Fowlie, said the result again demonstrated the importance of
Australia's class action system.
"Class actions are by far the most affordable, effective and
transparent way of achieving justice when big business fails its
customers," Mr. Fowlie said.
FMC CORP: Defends Hydrogen Peroxide-Related Suits in Canada
-----------------------------------------------------------
FMC Corporation continues to defend lawsuits in Canada, which were
filed against hydrogen peroxide producers, according to the
Company's May 5, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2011.
In February 2005, putative direct and indirect purchaser class
action complaints were filed against six U.S. hydrogen peroxide
producers (and certain of their foreign affiliates) in various
federal courts alleging violations of antitrust laws. Related
cases were also filed in various state courts. In January 2009,
FMC reached an agreement to settle with the direct purchaser class
for $10 million, with a pro rata credit for opt outs. The $10
million figure was included as a component of "Restructuring and
other charges (income)" in the Company's consolidated statements
of income for the year ended December 31, 2008. Ten companies
(predominantly paper producers) opted out of this class
settlement. FMC settled with two of the ten companies for an
amount within the opt out credit. The remaining eight opt outs
filed suit against FMC and, in some cases, FMC Foret, S.A. These
cases were assigned to the same judge as the class action. FMC's
motion to dismiss the opt out claims to the extent they were based
on foreign purchases was granted on April 1, 2010. FMC has
settled the remaining claims of these eight opt outs for an
aggregate of $1.7 million which is net of a $0.3 million opt out
credit. Another individual opt out case was dismissed following
the bankrupt opt out's decision to participate in the class
settlement. FMC settled the indirect purchaser class claims for
$0.25 million. The settlement has been finally approved by the
Court, and all remaining state court cases have been dismissed
with prejudice.
The Company recorded the $2.0 million as a component of
"Restructuring and other charges (income)" in its consolidated
statements of income for the year ended December 31, 2010. As a
result, all U.S. litigation against FMC regarding alleged price
fixing in the hydrogen peroxide industry is now concluded. The
Company still faces putative class actions against it and five
other major hydrogen peroxide producers in provincial courts in
Ontario, Quebec and British Columbia under the laws of Canada.
Four of the defendants have settled these claims for a total of
approximately $20.5 million. On September 28, 2009, the Ontario
Superior Court of Justice certified a class of direct and indirect
purchasers of hydrogen peroxide. FMC moved for leave to appeal
the class certification decision, which was denied in June 2010.
The Company says it intends to defend these cases. Since the
proceedings are in the preliminary stages with respect to the
merits, the Company believes an exposure of loss cannot be
reasonably estimated.
GEEKNET INC: Awaits Ruling on Motion to Dismiss IPO Suit Appeals
----------------------------------------------------------------
Geeknet, Inc., is awaiting a decision on a motion to dismiss
appeals from an order approving a global settlement of a
securities class action lawsuit, according to the Company's May 6,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
In January 2001, the Company, two of its former officers, and
Credit Suisse First Boston, the lead underwriter in the Company's
initial public offering, were named as defendants in a shareholder
lawsuit filed in the U.S. District Court for the Southern District
of New York, later consolidated and captioned In re VA Software
Corp. Initial Public Offering Securities Litigation, 01-CV-0242.
The plaintiffs' class action suit seeks unspecified damages on
behalf of a purported class of purchasers of the Company's common
stock from the time of the Company's initial public offering in
December 1999 through December 2000.
Among other things, this complaint alleged that the prospectus
pursuant to which shares of common stock were sold in the
Company's initial public offering contained certain false and
misleading statements or omissions regarding the practices of the
Underwriters with respect to their allocation of shares of common
stock in these offerings and their receipt of commissions from
customers related to such allocations. Various plaintiffs have
filed actions asserting similar allegations concerning the initial
public offerings of approximately 300 other issuers. These
various cases were coordinated for pretrial proceedings as In re
Initial Public Offering Securities Litigation, 21 MC 92.
In 2008, the parties reached a global settlement of the
litigation. On October 5, 2009, the Court entered an order
certifying a settlement class and granting final approval of the
settlement. Under the settlement, the insurers will pay the full
amount of settlement share allocated to the Company, and the
Company will bear no financial liability. The Company, as well as
the officer and director defendants, who were previously dismissed
from the action pursuant to a stipulation, will receive complete
dismissals from the case. A group of objectors appealed the
Court's October 5, 2009 order to the U.S. Second Circuit Court of
Appeals. The Plaintiffs have filed motions to dismiss the appeals
and those motions are still pending. If for any reason the
settlement does not become effective and litigation resumes, the
Company believes that it has meritorious defenses to plaintiffs'
claims and intends to defend the action vigorously.
GREAT SOUTHERN: Motion to Dismiss Suit Over Overdraft Fees Pending
------------------------------------------------------------------
A motion to dismiss a lawsuit against Great Southern Bancorp
Inc.'s primary subsidiary is pending, according to the Company's
May 6, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2011.
On November 22, 2010, a suit was filed against Great Southern Bank
in Missouri state court in Springfield by a customer alleging that
the fees associated with the Bank's automated overdraft program in
connection with its debit card and ATM cards constitute unlawful
interest in violation of Missouri's usury laws. The suit seeks
class-action status for Bank customers who have paid overdraft
fees on their checking accounts. The Bank has filed for a motion
to dismiss the suit. At this early stage of the litigation, it is
not possible for management of the Bank to determine the
probability of a material adverse outcome or reasonably estimate
the amount of any potential loss.
GSI COMMERCE: Defends Class Action Suits Over eBay Merger
---------------------------------------------------------
GSI Commerce, Inc., is facing class action lawsuits over its
merger agreement with eBay, Inc., according to the Company's
May 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended April 2, 2011.
On March 27, 2011, GSI Commerce, Inc., entered into an Agreement
and Plan of Merger with eBay Inc. and Gibraltar Acquisition Corp.,
a wholly owned subsidiary of eBay.
NRG, a Delaware limited liability company wholly-owned by Michael
Rubin, the Company's Chairman, President and Chief Executive
Officer, is a party to a stock purchase agreement, dated as of
March 27, 2011, with eBay, pursuant to which eBay has agreed to
sell all or a portion of the equity interests of certain
subsidiaries of the Company to NRG immediately after the
completion of the Merger on the terms and subject to the
conditions set forth in the Purchase Agreement (including the
condition that the Merger has been completed). In addition, NRG
will enter into a secured loan agreement with the Company pursuant
to which the Company, which will be an affiliate of eBay at the
time the agreement is entered into, will lend NRG funds to finance
a substantial portion of the purchase price for such divestiture
transaction on the terms and subject to the conditions set forth
in the loan agreement. The closing of the Merger is not subject
to, or dependent upon, the closing of the divestiture transaction.
Following the announcement of the Company's proposed Merger with
eBay, five putative stockholder class action complaints
challenging the transaction were filed in the Delaware Court of
Chancery on each of March 29, 2011, April 1, 2011, April 4, 2011,
April 5, 2011, and April 11, 2011, respectively, against various
combinations of eBay, Merger Sub, NRG, the Company, the individual
members of the Company's board of directors, and certain of the
Company's non-director officers. Two of these complaints
subsequently have been amended. The complaints generally allege,
among other things, that the members of the Company's board of
directors breached their fiduciary duties owed to the Company's
public stockholders by entering into the Merger Agreement,
approving the proposed Merger, failing to take steps to maximize
the Company's value to the Company's public stockholders, and
failing to make adequate disclosures; that Mr. Rubin breached his
fiduciary duties owed to the Company's public stockholders by
engaging in a transaction pursuant to which eBay agreed to sell
certain subsidiaries of the Company to NRG after the completion of
the Merger; and that various combinations of eBay, Merger Sub,
NRG, and the Company aided and abetted such breaches of fiduciary
duties. In addition, the complaints allege that the transactions
improperly favor eBay and Mr. Rubin and unjustly enrich certain of
the defendants; and that certain provisions of the Merger
Agreement unduly restrict the Company's ability to negotiate with
other potential bidders. In one of these actions, the plaintiff
also purports to bring derivative claims on behalf of the Company,
alleging that the individual members of the board of directors and
certain non-director officers are wasting corporate assets,
unjustly enriching themselves, and breaching their fiduciary
duties, and that eBay and Merger Sub are aiding and abetting such
breaches of fiduciary duties. The complaints generally seek, among
other things, declaratory and injunctive relief concerning the
alleged fiduciary breaches, injunctive relief prohibiting the
defendants from consummating the proposed Merger, as well as
damages and other forms of equitable relief.
GUAM: Tiyan Landowners Await Decision on Class Action
-----------------------------------------------------
Sabrina Salas Matanane, writing for KUAM News, reports that a
class action lawsuit against the Guam Ancestral Lands Commission
remains undecided. The plaintiffs -- a group of original land
owners -- are suing GovGuam, claiming a bill signed into law
during the Camacho Administration authorizing land at FAA and
Marbo Cave be issued to Tiyan landowner is unjust.
Attorney Curtis Van De Veld filed the suit last September in an
attempt to block the commission from distributing the land. The
Attorney General's Office then moved to have the cased dismissed.
The law office of Phillips and Bordallo has since become involved
petitioning to intervention on behalf of the Tiyan landowners.
Benny Crawford, spokesperson for the Tiyan landowners, says many
of the original landowners have passed away over the last few
months while the class action law suit holds up the issuance of
the deeds. "So that's kind of sad for me, that's the sad part but
you know, the court has to they have their day in court. We are
just waiting for our day in court to have that restraining order
removed so we can move forward and get our deeds to the property
that we have been given by law."
Attorney Darleen Hiton, Esq. -- dhiton@gmail.com -- of Phillips
and Bordallo, recently petitioned the court for an agreement of a
hearing date claiming Mr. Van De Veld will not agree to a date on
oral arguments. Mr. Van De Veld tells KUAM News he disagrees with
the action saying the firm has not followed proper procedures on
setting a date. He has since filed an objection to the agreement
of the hearing date petition.
In the meantime Tiyan landowners continue their wait for the land
awarded to them under public law. Land, which the military has
expressed an interest in for use as a location for Marine housing.
IMMERSION CORP: IPO Class Suit Remains Pending in New York
----------------------------------------------------------
Appeals from an order approving the settlement of a class action
lawsuit filed against Immersion Corporation relating to its
initial public offering remain pending in New York, according to
the Company's May 6, 2011 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
The Company is involved in legal proceedings relating to a class
action lawsuit filed on November 9, 2001 in the U. S. District
Court for the Southern District of New York, In re Immersion
Corporation Initial Public Offering Securities Litigation, No.
Civ. 01-9975 (S.D.N.Y.), related to In re Initial Public Offering
Securities Litigation, No. 21 MC 92 (S.D.N.Y.). The named
defendants are Immersion and three of its current or former
officers or directors, and certain underwriters of the Company's
November 12, 1999 initial public offering. Subsequently, two of
the individual defendants stipulated to a dismissal without
prejudice.
The operative amended complaint is brought on purported behalf of
all persons who purchased the Company's common stock from the date
of the Company's IPO through December 6, 2000. It alleges
liability under Sections 11 and 15 of the Securities Act of 1933
and Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, on the grounds that the registration statement for the IPO
did not disclose that: (1) the underwriters agreed to allow
certain customers to purchase shares in the IPO in exchange for
excess commissions to be paid to the underwriters; and (2) the
underwriters arranged for certain customers to purchase additional
shares in the aftermarket at predetermined prices. The complaint
also appears to allege that false or misleading analyst reports
were issued. The complaint does not claim any specific amount of
damages.
Similar allegations were made in other lawsuits challenging over
300 other initial public offerings and follow-on offerings
conducted in 1999 and 2000. The cases were consolidated for
pretrial purposes.
In September 2008, all of the parties to the lawsuits reached a
settlement, subject to documentation and approval of the District
Court. Subsequently, an underwriter defendant filed for
bankruptcy and other underwriter defendants were acquired. On
April 2, 2009, final documentation evidencing the settlement was
presented to the District Court for approval. On October 6, 2009,
the District Court approved the settlement, and the Court
subsequently entered a judgment of dismissal. Under the judgment,
the Immersion Defendants are not required to contribute to the
settlement. Several notices of appeal have been filed by putative
class members challenging the settlement. If the settlement is
reversed on appeal, the Company intends to defend the lawsuit
vigorously.
Immersion Corporation -- http://www.immersion.com/-- is the
leading innovator in haptics technology; the company's touch
feedback solutions deliver a more compelling sense of the digital
world. Using Immersion's high-fidelity haptic systems, partners
can transform user experiences with unique and customizable touch
feedback effects; excite the senses in games, videos and music;
restore "mechanical" feel by providing intuitive and unmistakable
confirmation; improve safety by overcoming distractions while
driving or performing a medical procedure; and expand usability
when audio and visual feedback are ineffective. Immersion's
TouchSense technology provides haptics in mobile phone,
automotive, gaming, medical and consumer electronics products from
world-class companies. With over 900 issued or pending patents in
the U.S. and other countries, Immersion helps bring the digital
universe to life.
IMMERSION CORP: Faces Amended Complaint in Securities Class Suit
----------------------------------------------------------------
Immersion Corporation is facing an amended complaint in the
consolidated securities class action lawsuit filed in California,
according to the Company's May 6, 2011 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
In September and October 2009, various putative shareholder class
action and derivative complaints were filed in federal and state
court against the Company and certain current and former Immersion
directors and officers.
On September 2, 2009, a securities class action complaint was
filed in the United States District Court for the Northern
District of California against the Company and certain of its
current and former directors and officers. Over the following
five weeks, four additional class action complaints were filed.
One of these four actions was later voluntarily dismissed. The
securities class action complaints name the Company and certain
current and former Immersion directors and officers as defendants
and allege violations of federal securities laws based on its
issuance of allegedly misleading financial statements. The
various complaints assert claims covering the period from May 2007
through July 2009 and seek compensatory damages allegedly
sustained by the purported class members.
On December 21, 2009, these class actions were consolidated by the
court as In Re Immersion Corporation Securities Litigation. On
the same day, the court appointed a lead plaintiff and lead
plaintiff's counsel. Following the Company's restatement of
financial statements, lead plaintiff filed a consolidated
complaint on April 9, 2010. Defendants moved to dismiss the
action on June 15, 2010, and that motion was granted on March 11,
2011. Lead plaintiff filed an amended complaint on April 29,
2011.
Immersion Corporation -- http://www.immersion.com/-- is the
leading innovator in haptics technology; the company's touch
feedback solutions deliver a more compelling sense of the digital
world. Using Immersion's high-fidelity haptic systems, partners
can transform user experiences with unique and customizable touch
feedback effects; excite the senses in games, videos and music;
restore "mechanical" feel by providing intuitive and unmistakable
confirmation; improve safety by overcoming distractions while
driving or performing a medical procedure; and expand usability
when audio and visual feedback are ineffective. Immersion's
TouchSense technology provides haptics in mobile phone,
automotive, gaming, medical and consumer electronics products from
world-class companies. With over 900 issued or pending patents in
the U.S. and other countries, Immersion helps bring the digital
universe to life.
INTERNATIONAL COAL: Remains a Defendant in "Saratoga" Class Suit
----------------------------------------------------------------
International Coal Group, Inc., remains a defendant in a class
action lawsuit filed by Saratoga Advantage Trust before a federal
court in West Virginia, according to the Company's May 6, 2011
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2011.
On January 7, 2008, Saratoga filed the class action lawsuit in the
U.S. District Court for the Southern District of West Virginia
against the Company and certain of its officers and directors
seeking unspecified damages. The complaint asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and Rule 10b-5 promulgated thereunder, based on alleged false and
misleading statements in the registration statements filed in
connection with the Company's November 2005 reorganization and
December 2005 public offering of common stock. In addition, the
complaint challenges other of the Company's public statements
regarding its operating condition and safety record. On July 6,
2009, Saratoga filed an amended complaint asserting essentially
the same claims but seeking to add an individual co-plaintiff. The
Company has filed a motion to dismiss the amended complaint. The
Company has not accrued any liability for the claims pending
because it believes that it has good factual and legal defenses to
the asserted claims and that an estimate of damages, if the
Company were to be found liable, cannot be made at this time. The
Company intends to vigorously defend the action.
International Coal Group, Inc., is a producer of coal in Northern
and Central Appalachia and the Illinois Basin and has 13 active
mining complexes, 12 of which are located in Northern and Central
Appalachia and one in Central Illinois.
LEGGETT & PLATT: Awaits Ruling on Plea to Dismiss Antitrust Suits
-----------------------------------------------------------------
Leggett & Platt, Incorporated, is awaiting a decision on its
motion to dismiss class actions, brought by direct purchasers of
polyurethane foam products, asserting that plaintiffs failed to
state a legally valid claim, according to the Company's May 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
Beginning in August 2010, a series of civil lawsuits was initiated
in several U.S. federal courts alleging that competitors of the
Company's carpet underlay division and other manufacturers of
polyurethane foam products had engaged in price fixing in
violation of U.S. antitrust laws. To date, 45 cases brought on
behalf of direct purchasers of polyurethane foam products and two
cases brought on behalf of indirect purchasers of polyurethane
foam products, are pending against over 20 defendants. The
Company has been named as a defendant in seven cases (the first on
November 15, 2010) and in a consolidated amended class action
complaint, filed on February 28, 2011, on behalf of a class of all
direct purchasers of polyurethane foam products. In addition, on
March 21, 2011, plaintiffs in the two indirect purchaser cases
have filed a consolidated amended complaint naming the Company as
a defendant. All pending cases in which the Company has been
named as a defendant have been filed in or transferred to the U.S.
District Court for the Northern District of Ohio under the name In
re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-
02196.
In these actions, the plaintiffs, on behalf of themselves and/or a
class of purchasers, seek three times the amount of unspecified
damages allegedly suffered as a result of alleged overcharges in
the price of polyurethane foam products from at least 1999 to the
present. Each plaintiff also seeks attorney fees, pre-judgment
and post-judgment interest, court costs, and injunctive relief
against future violations. On April 15, 2011, the Company filed a
motion to dismiss class actions brought by the direct purchasers,
asserting that plaintiffs failed to state a legally valid claim.
The Company says it intends to file a similar motion to dismiss
the indirect purchaser actions.
The Company denies all of the allegations in these actions and
will vigorously defend itself. This contingency is subject to
many uncertainties. Therefore, based on the information available
to date, the Company cannot estimate the amount or range of
potential loss, if any. At this time, the Company says it does
not expect that the outcome of these actions will have a material
adverse effect on its financial condition, operating cash flows or
results of operations.
LINCOLN EDUCATIONAL: Response to Motion to Dismiss Due June 14
--------------------------------------------------------------
The deadline to respond to Lincoln Educational Services
Corporation's motion to dismiss a consolidated class action in New
Jersey is June 14, 2011, according to the Company's May 6, 2011
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2011.
The Company and several executive officers have been named as
defendants in two purported securities class action lawsuits. The
complaints, which were both filed in the U.S. District Court for
the District of New Jersey, allege that the Company and the other
defendants made false and misleading statements and failed to
disclose material adverse facts about the Company's business and
prospects in violation of federal securities laws. The plaintiff
seeks damages for the purported class. The complaints were filed
on August 13, 2010 and September 19, 2010, and are respectively
captioned, Donald J. and Mary S. Moreaux v. Lincoln Educational
Services Corp., et al., and Robert Lyathaud v. Lincoln Educational
Services Corp., et al. On November 24, 2010, the Court
consolidated the two actions under the caption In re Lincoln
Educational Services Corp. Securities Litigation and appointed a
lead plaintiff. A consolidated amended complaint was filed on
February 14, 2011. On April 15, 2011, defendants filed a motion to
dismiss all of the claims asserted therein. Plaintiff's response
to defendants' motion is due by June 14, 2011.
The Company believes the lawsuits are without merit and intend to
vigorously defend against them.
Lincoln Educational Services Corporation and subsidiaries are
providers of diversified career-oriented post-secondary education.
LOGITECH: Accused in N.Y. Suit of Misleading Shareholders
---------------------------------------------------------
Courthouse News Service reports that shareholders claim in a
federal class action filed in New York that Logitech insiders
reaped $10 million by dumping 536,000 shares at prices inflated by
false and misleading statements about company operations.
MERITOR INC: Court Stays Discovery in Filters Suit Until July 25
----------------------------------------------------------------
Discovery is stayed until July 25, 2011, in a class action lawsuit
filed against Meritor, Inc.'s prior subsidiary alleging price-
fixing of auto filters, according to the Company's May 6, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended April 3, 2011.
On March 31, 2008, S&E Quick Lube, a filter distributor, filed
suit in U.S. District Court for the District of Connecticut
alleging that twelve filter manufacturers, including a prior
subsidiary of the Company, engaged in a conspiracy to fix prices,
rig bids and allocate U.S. customers for aftermarket automotive
filters. This suit is a purported class action on behalf of direct
purchasers of filters from the defendants. Several parallel
purported class actions, including on behalf of indirect
purchasers of filters, have been filed by other plaintiffs in a
variety of jurisdictions in the United States and Canada. The
cases have been consolidated into a multi-district litigation
proceeding in Federal court for the Northern District of Illinois.
On April 16, 2009, the Attorney General of the State of Florida
filed a complaint with the U.S. District Court for the Northern
District of Illinois based on these same allegations. On May 25,
2010, the Office of the Attorney General for the State of
Washington informed the company that it also was investigating the
allegations raised in these suits. On August 9, 2010, the County
of Suffolk, New York, filed a complaint in the Eastern District of
New York based on the same allegations. The case has been
transferred to the multi-district litigation proceeding in
Illinois. On April 14, 2011, the judge in that multi-district
litigation granted a stay on discovery and depositions until
July 25, 2011. The company intends to vigorously defend the claims
raised in all of these actions. The company is unable to estimate
a range of exposure, if any, at this time.
METROPCS COMMUNICATIONS: Texas Securities Class Suit Dismissed
--------------------------------------------------------------
A Texas federal court dismissed a securities class action against
MetroPCS Communications, Inc., in late March 2011, according to
the Company's May 6, 2011 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
The Company, certain current officers and a director, or
collectively the "defendants," have been named as defendants in a
securities class action lawsuit filed on December 15, 2009, in the
United States District Court for the Northern District of Texas,
Civil Action No. 3:09-CV-2392. Plaintiff alleged that the
defendants violated Section 10(b) of the Exchange Act and Rule
10b-5 thereunder, and Section 20(a) of the Exchange Act. The
complaint alleges that the defendants made false and misleading
statements about the Company's business, prospects and operations.
The claims were based upon various alleged public statements made
during the period from February 26, 2009 through November 4, 2009.
On March 28, 2011, the Court granted the Company's motion to
dismiss on all claims in the class action, and the Court entered
judgment against Plaintiff.
The Company has thirteen operating segments based on geographic
region within the United States: Atlanta, Boston, Dallas/Ft.
Worth, Detroit, Las Vegas, Los Angeles, Miami, New York,
Orlando/Jacksonville, Philadelphia, Sacramento, San Francisco and
Tampa/Sarasota.
MIDLAND FUNDING: Sued by AG Over "Robo-Signed" Affidavits
---------------------------------------------------------
Patrick Kennedy of Star Tribune reports that the Minnesota
attorney general's office filed a complaint on May 19 in Hennepin
County District Court against the debt-buying company Midland
Funding LLC. The lawsuit alleges that the St. Cloud company
created false and unreliable mass-produced, "robo-signed"
affidavits as supposed proof of consumer debts in lawsuits against
individual citizens.
Minnesota Attorney General Lori Swanson, Esq., was allowed to
proceed with the lawsuit after U.S. District Judge David Katz in
Ohio issued an order saying that a tentative class action
settlement in that jurisdiction did not prevent Minnesota's legal
action.
Ms. Swanson's suit alleges "Midland aggressively filed thousands
of lawsuits against individual citizens for collection of old,
purchased debt, often supporting those lawsuits with 'robo-signed'
affidavits generated at its St. Cloud Offices."
Midland Funding is a subsidiary of San Diego-based Encore Capital
Group Inc., a publicly traded company.
MORTON'S RESTAURANT: Subsidiary Inks Deal to Settle Suit in Calif.
------------------------------------------------------------------
A subsidiary of Morton's Restaurant Group Inc. entered into an
agreement to settle a class action complaint filed by former
employees, according to the Company's May 6, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 3, 2011.
In February 2010, two former employees of the San Diego Morton's
steakhouse filed a class action complaint against Morton's of
Chicago/San Diego, Inc., in the Superior Court of the State of
California for the County of San Diego, alleging certain
violations of the California Labor Code and the California Unfair
Competition Law for failure to provide meal and rest breaks,
failure to pay overtime and failure to provide employees with
accurate wage statements. The plaintiffs are seeking recovery of
statutory penalties, unpaid wages and overtime, as well as
injunctive and declaratory relief and attorneys' fees and costs.
The Company is contesting this matter vigorously. On January 7,
2011, the Company's partial motion for summary judgment was
granted and the plaintiffs' claims for failure to provide rest
periods and failure to provide employees with accurate wage
statements were dismissed. In addition, on February 18, 2011, the
court denied plaintiffs' motion for class certification. In May
2011, a settlement and release agreement was entered into by the
parties resolving this matter.
MORTON'S RESTAURANT: Costa Mesa Unit Still Faces Class Suit
-----------------------------------------------------------
Morton's Restaurant Group Inc. continues to defend a class action
complaint filed by a former employee against its subsidiary in
California, according to the Company's May 6, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 3, 2011.
In August 2010, a former employee of the Costa Mesa Morton's
steakhouse filed a state-wide class action complaint against
Morton's of Chicago in the Superior Court of the State of
California for the County of Los Angeles, alleging certain
violations of the California Labor Code and the California Unfair
Competition Law for failure to provide meal and rest breaks,
failure to pay overtime and failure to provide employees with
accurate wage statements as a result of the classification of
California-based Assistant Managers and Day Managers as salaried
exempt. The plaintiff is seeking recovery of statutory penalties,
unpaid wages and overtime, as well as injunctive and declaratory
relief and attorneys' fees and costs. The Company is contesting
this matter vigorously. In September 2010, the Company removed
the case to Federal court and the plaintiff subsequently filed a
motion to remand. On January 26, 2011, the plaintiff's motion to
remand was denied. The plaintiff in this matter has not stated
the amount of damages sought and, at this stage of the
proceedings, it is not possible to state the estimated damages
sought by the plaintiff.
OCLARO INC: Sued for Hiding True Facts About Company's Finances
---------------------------------------------------------------
Curtis and Charlotte Westley, individually and on behalf of others
similarly situated v. Oclaro, Inc., et al., Case No. 11-cv-02448
(N.D. Calif. May 19, 2011), is a securities class action on behalf
of all persons who purchased or otherwise acquired the common
stock of Oclaro, Inc., between May 6, 2010, and Oct. 27, 2010,
against Oclaro and certain of its officers and directors for
violations of the Securities Exchange Act of 1934.
Plaintiffs Curtis and Charlotte Westley purchased or acquired
Oclaro common stock during the Class Period.
Oclaro provides high-performance core optical network components,
modules and subsystems to global telecom equipment manufacturers.
Oclaro is the resulting company after the April 27, 2009 merger of
Bookham, Inc., and Avanex Corporation, with Bookham becoming the
parent company and changing its name to Oclaro, Inc., upon the
close of the merger. The Company purports to leverage proprietary
core technologies and vertically integrated product development to
provide its customers with cost-effective and innovative optical
solutions in metro and long-haul network applications.
On May 6, 2010, the Company filed a Form 424(b)(5) Prospectus
Supplement with the SEC for a secondary offering of 6.9 million
shares (including the over-allotment) of the Company's common
stock to the public at a price of $12.00 per share. The May 6,
2010 Prospectus Supplement updated information in the Bookham
Prospectus dated Oct. 19, 2007, which was included in the Oct. 17,
2007 Bookham shelf Registration Statement (Registration No.
333-145665).
On May 12, 2010, Oclaro completed the Offering pursuant to the
Prospectus Supplement. The Company netted proceeds of
approximately $77.2 million from the Offering after deducting
underwriting discounts, commissions and estimated offering
expenses.
During the Class Period, defendants issued materially false and
misleading statements regarding the Company's current business and
financial condition, including projections for its first quarter
2011 and fiscal 2011 revenues, earnings and gross margins. "As a
result of defendants' false statements, Oclaro stock traded at
artificially inflated prices during the Class Period, reaching a
high of $17.07 per share on Oct. 17, 2010.
On Oct. 28, 2010, before the market opened, Oclaro reported 1Q11
earnings per share of $0.01 as compared to analyst estimates of
$0.22. The Company also posted sequential gross margin declines
and reported that its anticipated 2Q11 revenues, earnings and
gross margins, which it had previously indicated would post
accelerated gains, would also be down, all as a result of sudden
customer inventory corrections and weak demand visibility, among
other things.
On this news, Oclaro's stock price dropped 37% to close at $8.60
per share on Oct. 28, 2010, from a close of $13.68 per share on
Oct. 27, 2010, on high volume.
According to the plaintiffs, the Registration Statement and
Prospectus Supplement omitted the fact that as opposed to
increased demand, demand for Oclaro products was either flat or
declining.
The Plaintiffs are 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 -
Darren J. Robbins, Esq.
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
- and -
Robert J. Dyer, Esq.
Jeffrey A. Berens, Esq.
DYER & BERENS LLP
303 East 17th Avenue, Suite 300
Denver, CO 80203
Telephone: (303) 861-1764
- and -
Michael I. Fistel, Jr., Esq.
HOLZER HOLZER & FISTEL, LLC
200 Ashford Center North, Suite 300
Atlanta, GA 30338
Telephone: (770) 392-0090
E-mail: mfistel@holzerlaw.com
ON SEMICONDUCTOR: Still Defends Amended Complaint in IPO Suit
-------------------------------------------------------------
On Semiconductor Corporation continues to defend itself against a
class action lawsuit over its initial public offering, according
to the Company's May 6, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended April 1,
2011.
During the period July 5, 2001 through July 27, 2001, the Company
was named as a defendant in three shareholder class action
lawsuits that were filed in federal court in New York City against
it and certain of the Company's former officers, current and
former directors and the underwriters of the Company's initial
public offering. The lawsuits allege violations of the federal
securities laws and have been docketed in the U.S. District Court
for the Southern District of New York as: Abrams v. ON
Semiconductor Corp., et al., C.A. No 01-CV-6114; Breuer v. ON
Semiconductor Corp., et al., C.A. No. 01-CV-6287; and Cohen v. ON
Semiconductor Corp., et al., C.A. No. 01-CV-6942. On April 19,
2002, the plaintiffs filed a single consolidated amended complaint
that supersedes the individual complaints originally filed. The
amended complaint alleges, among other things, that the
underwriters of its initial public offering improperly required
their customers to pay the underwriters' excessive commissions and
to agree to buy additional shares of the Company's common stock in
the aftermarket as conditions of receiving shares in its initial
public offering. The amended complaint further alleges that these
supposed practices of the underwriters should have been disclosed
in the Company's initial public offering prospectus and
registration statement. The amended complaint alleges violations
of both the registration and antifraud provisions of the federal
securities laws and seeks unspecified damages. The Company
understands that various other plaintiffs have filed substantially
similar class action cases against approximately 300 other
publicly-traded companies and their public offering underwriters
in New York City, which have all been transferred, along with the
case against the Company, to a single federal district court judge
for purposes of coordinated case management. The Company believes
that the claims against it are without merit and has defended, and
intends to continue to defend, the litigation vigorously. The
litigation process is inherently uncertain, however, and the
Company cannot guarantee that the outcome of these claims will be
favorable for the Company.
OPENWAVE SYSTEMS: Awaits Decision on Appeals From Suit Settlement
-----------------------------------------------------------------
Openwave Systems, Inc., is awaiting a decision on appeals from an
order approving the settlement of a securities class action
lawsuit, according to the Company's May 6, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011.
On November 5, 2001, a securities fraud class action complaint was
filed in the United States District Court for the Southern
District of New York. In re Openwave Systems Inc. Initial Public
Offering Securities Litigation, Civ. No. 01-9744 (SAS) (S.D.N.Y.),
related to In re Initial Public Offering Securities Litigation, 21
MC 92 (SAS) (S.D.N.Y.). It is brought purportedly on behalf of all
persons who purchased shares of the Company's common stock from
June 11, 1999 through December 6, 2000. The defendants are the
Company and five of its present or former officers, and several
investment banking firms that served as underwriters of the
Company's initial public offering and secondary public offering.
Three of the individual defendants were dismissed without
prejudice, subject to a tolling of the statute of limitations. The
complaint alleges liability under Sections 11 and 15 of the
Securities Act of 1933 and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, on the grounds that the
registration statements for the offerings did not disclose that:
(1) the underwriters had agreed to allow certain customers to
purchase shares in the offerings in exchange for excess
commissions paid to the underwriters; and (2) the underwriters had
arranged for certain customers to purchase additional shares in
the aftermarket at predetermined prices. The amended complaint
also alleges that false analyst reports were issued by Credit
Suisse First Boston, Hambrecht & Quist, Robertson Stephens, and
Piper Jaffray. No specific damages are claimed. Similar
allegations were made in over 300 other lawsuits challenging
public offerings conducted in 1999 and 2000, and the cases were
consolidated for pretrial purposes.
On April 2, 2009, the parties in all the lawsuits submitted a
settlement for the Court's approval. Under the settlement, the
Openwave Defendants would not be required to make any cash
payment. On October 6, 2009, the Court approved the settlement,
under which the Openwave Defendants are not required to contribute
any cash. Subsequently, the Court entered a judgment on the
settlement. Several notices of appeal have been filed by putative
class members, challenging the settlement and the judgment. The
Company believes a loss is not probable or reasonably estimable.
Therefore no amount has been accrued as of March 31, 2011.
OPPENHEIMER HOLDINGS: Parties Stipulate Dismissal of Appeal
-----------------------------------------------------------
Oppenheimer Holdings, Inc., and plaintiffs of a securities class
action agreed in January 2011 to dismiss an appeal from a court
ruling dismissing the class action, according to the Company's
May 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2011.
On May 12, 2008, Oppenheimer and a number of its affiliates was
named as a defendant in a proposed class action complaint
captioned David T. Vining v. Oppenheimer & Co. Inc. et. al. in the
United States District Court for the Southern District of New
York. The complaint alleges, among other things, that Oppenheimer
violated Section 10(b) of the Securities Exchange Act of 1934 (as
well as other provisions of the Federal securities laws) by making
material misstatements and omissions and engaging in deceptive
activities in the offer and sale of ARS. Oppenheimer filed an
answer to the complaint denying the allegations. Oppenheimer
believes it has meritorious defenses to the claims raised in the
lawsuit. On February 20, 2009, a separate action captioned as the
Grossman action was consolidated with this action. The complaint
requests relief in the form of compensatory damages in an amount
to be proven at trial as well as costs and expenses. On
September 10, 2009, Oppenheimer and a number of its affiliates
filed a motion to dismiss this consolidated action. On
September 27, 2010, Oppenheimer's motion to dismiss was granted
without prejudice. Plaintiff filed an appeal of this dismissal
with the United States Circuit Court for the Second Circuit on
October 28, 2010. On or about January 26, 2011, Plaintiff and
Oppenheimer stipulated to a dismissal of the appeal with
prejudice.
ORMAT TECHNOLOGIES: Continues to Defend Securities Suit in Nevada
-----------------------------------------------------------------
Ormat Technologies, Inc., continues to defend itself against a
consolidated securities class action lawsuit pending in Nevada
following the Company's announcement to restate certain of its
financial results, according to the Company's May 6, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2011.
Following the Company's public announcement that it would restate
certain of its financial results due to a change in the Company's
accounting treatment for certain exploration and development
costs, three securities class action lawsuits were filed in the
United States District Court for the District of Nevada on
March 9, 2010, March 18, 2010, and April 7, 2010. These complaints
assert claims against the Company and certain officers and
directors for alleged violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934. One complaint also asserts claims
for alleged violations of Sections 11, 12(a)(2) and 15 of the
Securities Act. All three complaints allege claims on behalf of a
putative class of purchasers of Company common stock between
May 6, 2008, or May 7, 2008 and February 23, 2010, or February 24,
2010. These three lawsuits were consolidated by the court in an
order issued on June 3, 2010, and the court appointed three of the
Company's stockholders to serve as lead plaintiffs.
Lead plaintiffs filed a consolidated amended class action
complaint on July 9, 2010 that asserts claims under Sections 10(b)
and 20(a) of the Exchange Act on behalf of a putative class of
purchasers of Company common stock between May 7, 2008, and
February 24, 2010. The CAC alleges that certain of the Company's
public statements were false and misleading for failing to account
properly for the Company's exploration and development costs based
on the Company's announcement on February 24, 2010, that it was
going to restate its financial results to change its method of
accounting for exploration and development costs in certain
respects. The CAC also alleges that certain of the Company's
statements concerning the North Brawley project were false and
misleading. The CAC seeks compensatory damages, expenses, and such
further relief as the court may deem proper. The Company cannot
make an estimate of the possible loss or range of loss.
Defendants filed a motion to dismiss the CAC on August 13, 2010.
On March 3, 2011, the court granted in part and denied in part
Defendants' motion to dismiss. The court dismissed plaintiffs'
allegations that the Company's statements regarding the North
Brawley project were false or misleading, but did not dismiss
plaintiffs' allegations regarding the restatement. Defendants
answered the remaining allegations in the CAC regarding the
restatement on April 8, 2011.
The Company does not believe that these lawsuits have merit and is
defending the actions vigorously.
Ormat Technologies, Inc., is a vertically integrated company
providing solutions for geothermal power, recovered energy
generation (REG) and remote power.
PLAINSCAPITAL CORP: Remains Named Co-Conspirator in Class Suits
---------------------------------------------------------------
In November 2006, First Southwest Company -- an indirect
subsidiary of PlainsCapital Corporation -- received subpoenas from
the U.S. Securities and Exchange Commission and the Department of
Justice in connection with an investigation of possible antitrust
and securities law violations, including bid-rigging, in the
procurement of guaranteed investment contracts and other
investment products for the reinvestment of bond proceeds by
municipalities. The investigation is industry-wide and includes
approximately 30 or more firms, including some of the largest U.S.
investment firms.
As a result of these SEC and DOJ investigations into industry-wide
practices, FSC was initially named as a co-defendant in cases
filed in several different federal courts by various state and
local governmental entities suing on behalf of themselves and a
purported class of similarly situated governmental entities and a
similar set of lawsuits filed by various California local
governmental entities suing on behalf of themselves and a
purported class of similarly situated governmental entities. All
claims asserted against FSC in these purported class actions were
subsequently dismissed. However, the plaintiffs in these purported
class actions have filed amended complaints against other
entities, and FSC is identified in these complaints not as a
defendant, but as an alleged co-conspirator with the named
defendants.
No updates were reported in PlainsCapital Corporation's May 5,
2011, Form 10-Q filing with the SEC for the quarter ended
March 31, 2011.
PNM RESOURCES: Awaits Decision on Appeal From Suit Dismissal
------------------------------------------------------------
PNM Resources, Inc., is awaiting a decision from the Bureau of
Indian Affairs on an appeal filed by plaintiffs of a dismissed
class action lawsuit, according to the Company's May 6, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2011.
A putative class action was filed against PNM and other utilities
on February 11, 2009, in the United States District Court in
Albuquerque. Plaintiffs claim to be allottees, members of the
Navajo Nation, who pursuant to the Dawes Act of 1887, were
allotted ownership in land carved out of the Navajo Nation.
Plaintiffs, including an allottee association, make broad, general
assertions that defendants, including PNM, are rights-of-way
grantees with rights-of-way across the allotted lands and are
either in trespass or have paid insufficient fees for the grant of
rights-of-way or both. The plaintiffs, who have sued the
defendants for breach of fiduciary duty, seek a constructive
trust. They have also included a breach of trust claim against the
United States and its Secretary of the Interior. PNM and the other
defendants filed motions to dismiss this action. On March 31,
2010, the court ordered that the entirety of the plaintiffs' case
be dismissed. The court did not grant plaintiffs leave to amend
their complaint, finding that they instead must pursue and exhaust
their administrative remedies before seeking redress in federal
court.
On May 10, 2010, Plaintiffs filed a Notice of Appeal with the
Bureau of Indian Affairs. PNM intends to participate in order to
preserve its interests regarding any PNM-acquired rights-of-way
implicated in the appeal. As the administrative appeal process is
only in its initial stages, PNM cannot predict the outcome of the
proceeding at this time.
PRICELINE.COM INC: Awaits Decision on Suit Settlement Appeal
------------------------------------------------------------
Priceline.com, Inc., is still awaiting a decision on a pending
appeal filed over the approval of a settlement of securities class
actions, according to the Company's May 6, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011.
On March 16, March 26, April 27, and June 5, 2001, respectively,
four putative class action complaints were filed in the U.S.
District Court for the Southern District of New York naming
priceline.com, Inc., Richard S. Braddock, Jay Walker, Paul
Francis, Morgan Stanley Dean Witter & Co., Merrill Lynch, Pierce,
Fenner & Smith, Inc., BancBoston Robertson Stephens, Inc. and
Salomon Smith Barney, Inc. as defendants (01 Civ. 2261, 01 Civ.
2576, 01 Civ. 3590 and 01 Civ. 4956). Shives et al. v. Bank of
America Securities LLC et al., 01 Civ. 4956, also names other
defendants and states claims unrelated to the Company. The
complaints allege, among other things, that the Company and the
individual defendants violated the federal securities laws by
issuing and selling priceline.com common stock in the Company's
March 1999 initial public offering without disclosing to investors
that some of the underwriters in the offering, including the lead
underwriters, had allegedly solicited and received excessive and
undisclosed commissions from certain investors. After extensive
negotiations, the parties reached a comprehensive settlement on or
about March 30, 2009. On April 2, 2009, plaintiffs filed a Notice
of Motion for Preliminary Approval of Settlement. On June 9,
2009, the court granted the motion and scheduled the hearing for
final approval for September 10, 2009. The settlement, previously
approved by a special committee of the Company's Board of
Directors, compromised the claims against the Company for
approximately $0.3 million. The court issued an order granting
final approval of the settlement on October 5, 2009. Notices of
appeal of the Court's order have been filed with the Second
Circuit. All but one of the appeals has been resolved. The
remaining appeal is still pending.
QC HOLDINGS: Discovery in Missouri Class Suit Commences
-------------------------------------------------------
Discovery in the class action lawsuit against QC Holdings, Inc.,
in arbitration in Missouri commences, according to the Company's
May 6, 2011 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
On October 13, 2006, one of the Company's Missouri customers sued
the Company in the Circuit Court of St. Louis County, Missouri in
a purported class action. The lawsuit alleges violations of the
Missouri statute pertaining to unsecured loans under $500 and the
Missouri Merchandising Practices Act. The lawsuit seeks monetary
damages and a declaratory judgment that the arbitration agreement
with the plaintiff is not enforceable on a variety of theories.
The Company moved to compel arbitration of this matter.
In December 2007, the court entered an order striking the class
action waiver provision in the Company's customer arbitration
agreement, ordered the case to arbitration and dismissed the
lawsuit filed in Circuit Court. In July 2008, the Company filed
its appeal of the court's order with the Missouri Court of
Appeals. In December 2008, the Court of Appeals affirmed the
decision of the trial court. In September 2009, the plaintiff
filed her action in arbitration. The Company has filed its answer,
and a three-person arbitration panel has been chosen. Discovery
has commenced, and the parties will possibly argue class
certification in mid-2011.
Founded in 1998, QC Holdings, Inc., has been primarily engaged in
the business of providing short-term consumer loans, known as
payday loans, with principal values that typically range from $100
to $500.
QC HOLDINGS: Consumer Suit in N.C. Still in Preliminary Stages
--------------------------------------------------------------
A putative class action lawsuit filed by customers against QC
Holdings, Inc., and its North Carolina subsidiaries remains in the
preliminary stages, according to the Company's May 6, 2011 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2011.
On February 8, 2005, the Company, two of its subsidiaries,
including its subsidiary doing business in North Carolina, and Mr.
Don Early, the Company's Chairman of the Board and Chief Executive
Officer, were sued in Superior Court of New Hanover County, North
Carolina in a putative class action lawsuit filed by James B.
Torrence, Sr. and Ben Hubert Cline, who were customers of a
Delaware state-chartered bank for whom the Company provided
certain services in connection with the bank's origination of
payday loans in North Carolina, prior to the closing of the
Company's North Carolina branches in fourth quarter 2005. The
lawsuit alleges that the Company violated various North Carolina
laws, including the North Carolina Consumer Finance Act, the North
Carolina Check Cashers Act, the North Carolina Loan Brokers Act,
the state unfair trade practices statute and the state usury
statute, in connection with payday loans made by the bank to the
two plaintiffs through the Company's retail locations in North
Carolina. The lawsuit alleges that the Company made the payday
loans to the plaintiffs in violation of various state statutes,
and that if the Company is not viewed as the "actual lenders or
makers" of the payday loans, its services to the bank that made
the loans violated various North Carolina statutes. Plaintiffs are
seeking certification as a class, unspecified monetary damages,
and treble damages and attorneys fees under specified North
Carolina statutes. Plaintiffs have not sued the bank in this
matter and have specifically stated in the complaint that
plaintiffs do not challenge the right of out-of-state banks to
enter into loans with North Carolina residents at such rates as
the bank's home state may permit, all as authorized by North
Carolina and federal law.
This case is in the preliminary stages.
There are three similar purported class action lawsuits filed in
North Carolina against three other companies unrelated to the
Company. In December 2005, the judge in those three cases (1)
granted the defendants' motions to stay the purported class action
lawsuits and to compel arbitration in accordance with the terms of
the arbitration provisions contained in the consumer loan
contracts, (2) ruled that the class action waivers in those
consumer loan contracts are valid, and (3) denied plaintiffs'
motions for class certifications. The plaintiffs in those three
cases, who are represented by the same law firms as the plaintiffs
in the case filed against the Company, appealed that ruling. In
January 2007, the North Carolina Court of Appeals heard the appeal
in the three companion cases. In May 2008, the appellate court
remanded the three companion cases to the state court to review
its ruling in light of a recent North Carolina Supreme Court
decision. In June 2009, the trial court denied defendants' motion
to compel arbitration and granted each of the respective
plaintiffs' motions for class certification. Defendants appealed
those rulings, but by the end of 2010, settlements in each of the
three companion cases were reached. However the settlements do not
provide reasonable guidance on settlements in the Company's case.
The Company will argue its own issues concerning arbitration and
class certification before the trial court in mid 2011.
The judge handling the lawsuit against the Company in North
Carolina is the same judge who is handling the three companion
cases.
Founded in 1998, QC Holdings, Inc., has been primarily engaged in
the business of providing short-term consumer loans, known as
payday loans, with principal values that typically range from $100
to $500.
RAQQA INC: Faces Class Action Over Illegal Check Cashing Fees
-------------------------------------------------------------
Joe Harris at Courthouse News Service reports that Raqqa Inc.
charges illegal fees for check cashing, a class action claims in
Madison County Court.
Named plaintiff Laura Fincher says Raqqa charges more than 50
cents or 1% of the face value of the check, in violation of the
Missouri Check Cashing Act. She says she was charged 3% of her
check's face value.
She sued Raqqa Inc. and Abdalla Ibrahem.
A copy of the Complaint in Fincher v. Raqqa, Inc., et al.,
Case No. 11-L-475 (Ill. Cir. Ct., Madison Cty.), is available at:
http://www.courthousenews.com/2011/05/24/Raqqa.pdf
The Plaintiff is represented by:
Thomas G. Maag, Esq.
MAAG LAW FIRM, LLC
22 West Lorena Avenue
Wood River, IL 62095
Telephone: (618) 216-5291
SEI INVESTMENTS: Continues to Defend ETF-Related Suits
------------------------------------------------------
SEI Investments Company continues to defend a consolidated lawsuit
related to leveraged exchange traded funds advised by ProShares
Advisors, LLC, according to the Company's May 5, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2011.
One of SEI's principal subsidiaries, SEI Investments Distribution
Co., has been named as a defendant in certain putative class
action complaints (the Complaints) related to leveraged exchange
traded funds (ETFs) advised by ProShares Advisors, LLC. To date,
the Complaints have been filed in the United States District Court
for the Southern District of New York and in the United States
District Court for the District of Maryland although the three
complaints filed in the District of Maryland have been voluntarily
dismissed by the plaintiffs. Two of them were subsequently re-
filed in the Southern District of New York. Two of the complaints
filed in the Southern District of New York have been voluntarily
dismissed by plaintiffs. The first complaint was filed on
August 5, 2009. The Complaints are purportedly made on behalf of
all persons that purchased or otherwise acquired shares in various
ProShares leveraged ETFs pursuant or traceable to allegedly false
and misleading registration statements, prospectuses and
statements of additional information. The Complaints name as
defendants ProShares Advisors, LLC; ProShares Trust; ProShares
Trust II, SIDCO, and various officers and trustees to ProShares
Advisors, LLC; ProShares Trust and ProShares Trust II. The
Complaints allege that SIDCO was the distributor and principal
underwriter for the various ProShares leveraged ETFs that were
distributed to authorized participants and ultimately
shareholders. The complaints allege that the registration
statements for the ProShares ETFs were materially false and
misleading because they failed adequately to describe the nature
and risks of the investments. The Complaints allege that SIDCO is
liable for these purportedly material misstatements and omissions
under Section 11 of the Securities Act of 1933. The Complaints
seek unspecified compensatory and other damages, reasonable costs
and other relief.
The cases are in the early stage, and the court has not yet
appointed lead plaintiff(s). Defendants have moved to consolidate
the complaints, which motion has been granted. While the outcome
of this litigation is uncertain given its early phase, SEI
believes that it has valid defenses to plaintiffs' claims and
intends to defend the lawsuits vigorously.
SEI INVESTMENTS: Defends Unfair Trade Practices Act Suits
---------------------------------------------------------
SEI Investments Company remains a defendant in several lawsuits
alleging, among other things, violation of the Louisiana Unfair
Trade Practices Act, according to the Company's May 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2011.
SEI has been named in five lawsuits that were filed in the 19th
Judicial District Court for the Parish of East Baton Rouge, State
of Louisiana. One of the five actions purports to set forth
claims on behalf of a class and also names SEI Private Trust
Company as a defendant. Two of the other actions also name SPTC
as a defendant. All five actions name various defendants in
addition to SEI, and, in all five actions, the plaintiffs purport
to bring a cause of action against SEI and SPTC under the
Louisiana Securities Act. The putative class action originally
included a claim against SEI and SPTC for an alleged violation of
the Louisiana Unfair Trade Practices Act. Two of the other five
actions include claims for violations of the Louisiana
Racketeering Act and possibly conspiracy. In addition, another
group of plaintiffs have filed a lawsuit in the 23rd Judicial
District Court for the Parish of Ascension, State of Louisiana,
against SEI and SPTC and other defendants asserting claims of
negligence, breach of contract, breach of fiduciary duty,
violations of the uniform fiduciaries law, negligent
misrepresentation, detrimental reliance, violations of the
Louisiana Securities Act and Louisiana Racketeering Act and
conspiracy. The underlying allegations in all the actions are
purportedly related to the role of SPTC in providing back-office
services to Stanford Trust Company. The petitions in the lawsuits
allege that SEI and SPTC aided and abetted or otherwise
participated in the sale of "certificates of deposit" issued by
Stanford International Bank. Two of the five actions filed in
East Baton Rouge have been removed to federal court, and
plaintiffs' motions to remand are pending. These two cases have
been transferred by the Judicial Panel on Multidistrict Litigation
to United States District Court for the Northern District of
Texas. The case filed in Ascension was also removed to federal
court and transferred by the Judicial Panel on Multidistrict
Litigation to the Northern District of Texas. The schedule for
responding to that complaint has not yet been established. SEI and
SPTC filed exceptions in the putative class action pending in East
Baton Rouge, which the Court granted in part and dismissed the
claims under the Louisiana Unfair Trade Practices Act and denied
in part as to the other exceptions. SEI and SPTC filed an answer
to the East Baton Rouge putative class action; plaintiffs filed a
motion for class certification which is pending; and SEI and SPTC
have filed a motion for summary judgment against certain named
plaintiffs which is pending. While the outcome of this litigation
is uncertain given its early phase, SEI and SPTC believe that they
have valid defenses to plaintiffs' claims and intend to defend the
lawsuits vigorously.
SIRIUS XM: Settles Antitrust Class Action for $180 Million
----------------------------------------------------------
Megan Stride and Abigail Rubenstein, writing for Law360, report
that Sirius XM Radio Inc. agreed on May 19 to hand satellite radio
subscribers service benefits worth $180 million to end an
antitrust class action in New York over the June 2008 merger that
created the company.
U.S. District Judge Harold Baer, Jr., gave his preliminary
approval to the deal meant to settle allegations that the
combination of Sirius Satellite Radio Inc. and XM Satellite Radio
Holdings Inc. resulted in a monopoly for satellite radio services
that Sirius XM abused by raising prices in an anti-competitive
manner.
The settlement follows two rulings by the judge on March 29 that
certified a class of subscribers to bring federal antitrust claims
under the Sherman Act and the Clayton Act but trimmed state law
consumer protection claims from the suit.
"The settlement provides substantial, quantifiable benefits to the
class which compare favorably to the risk that continued
litigation, including trial and a likely appeal, might lead to no
recovery, or a lesser recovery, against defendant," the class said
in its memorandum supporting settlement approval.
The settlement agreement calls for a list of pricing provisions
estimated to "provide a benefit" to class members of about $180
million.
Sirius XM agreed to keep the price for subscriptions purchased by
multi-radio subscribers -- after their initial subscription -- at
or below the current rate through Dec. 31, and also agreed to keep
the price for Internet streaming for subscribers with basic
subscriptions at or below $2.99 per month through that same date,
according to the agreement.
The base price for monthly, semiannual and other long-term
subscriptions -- excluding lifetime subscriptions -- will remain
at or below their current rates through Dec. 31, and subscribers
will be able to renew their services at current rates through
Dec. 31, the agreement said.
Sirius XM also agreed to keep its U.S. music royalty fee at or
below its current level through Dec. 31 and to permit former
subscribers who canceled their Sirius XM service between July 29,
2009, and the deadline for requesting exclusion from the class to
receive certain services for one month at no cost.
James Sabella, Esq., of Grant & Eisenhofer PA, who represents the
class, on May 19 said that the value of the pricing provisions
comes from the fact that the three-year price cap the Federal
Communications Commission imposed on the company is set to lift at
the end of July.
The subscribers will now be able to stave off the price hikes
Sirius would have likely imposed for an additional five months,
Mr. Sabella said.
The deal also provides for Sirius XM to pay up to $13 million plus
interest -- in addition to the $180 million in class benefits --
to cover the plaintiffs' attorneys fees and costs.
An attorney for Sirius did not immediately respond to a request
for comment on May 19.
As of March 31, 2010, Sirius XM had almost 19 million subscribers,
according to a March 29 order from Judge Baer. Attorneys for the
class had estimated that Sirius could be liable for more than $1
billion if the class prevailed on its federal antitrust claims.
The $3.5 billion merger of Sirius Satellite Radio and XM Satellite
Radio Holdings received antitrust clearance from the U.S.
Department of Justice in March 2008, and the FCC followed suit in
July of that year after the companies agreed to freeze prices and
offer new programs.
In the plaintiffs' May 2010 second amended consolidated complaint,
they charged that although Sirius never raised its monthly charge
and XM raised its charge once in the six years before the merger,
the combined company boosted its rates within a year of the deal.
The plaintiffs also alleged that high barriers to entry in the
satellite digital radio service market make it impossible for a
competitor to emerge in the next four years.
The class is represented by:
Jay W. Eisenhofer, Esq.
Richard S. Schiffrin, Esq.
James J. Sabella, Esq.
Shelly L. Friedland, Esq.
Mary S. Thomas, Esq.
Reuben Guttman, Esq.
GRANT & EISENHOFER PA
Tel: (646) 722-8505
Fax: (646) 722-8501
485 Lexington Avenue, 29th Floor
New York, NY 10017
E-mail: jeisenhofer@gelaw.com
rschiffrin@gelaw.com
jsabella@gelaw.com
sfriedland@gelaw.com
mthomas@gelaw.com
rguttman@gelaw.com
- and -
Edward S. Cook, Esq.
Christopher B. Hall, Esq.
P. Andrew Lampros, Esq.
COOK HALL & LAMPROS LLP
Promenade Two, Suite 3700
1230 Peachtree Street, NE
Atlanta, GA 30309
Tel: (404) 876-8100
E-mail: ecook@cookhall.com
chall@cookhall.com
alampros@cookhall.com
- and -
Herman Cahn, Esq.
Peter Safirstein, Esq.
Anne Fornecker, Esq.
Paul F. Novak, Esq.
Nicole Duckett, Esq.
MILBERG LLP
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
Tel: 212-946-9433
E-mail: hcahn@milberg.com
psafirstein@milberg.com
afornecker@milberg.com
pnovak@milberg.com
nduckett@milberg.com
Sirius is represented by:
John M. Majoras, Esq.
Thomas Demitrack, Esq.
Brian K. Grube, Esq.
Todd R. Geremia, Esq.
JONES DAY
325 John H. McConnell Boulevard, Suite 600
Columbus, Ohio 43215
Tel: 614-281-3835
E-mail: jmmajoras@jonesday.com
tdemitrack@jonesday.com
bkgrube@jonesday.com
trgeremia@jonesday.com
The case is Blessing v. Sirius XM Radio Inc., Case No. 09-cv-10035
(S.D.N.Y.).
SONY CORP: Faces 20th Suit Over Private Data Breach
---------------------------------------------------
Gregory Newman, III, et al., individually and on behalf of others
similarly situated v. Sony Computer Entertainment America, LLC, et
al., Case No. 11-cv-02434 (N.D. Calif. May 18, 2011), accuse Sony,
despite knowledge that it was a target for hackers, of not taking
reasonable measures to prevent the theft of its customers'
personal and private information, or to protect the same.
Sony knew of the security breach starting April 19 but did not
disclose to its customers that their private information was
stolen until April 26.
The plaintiffs relate that between April 17 and 19, 2011, as a
result of Sony's inadequate security, confidential personal
information of 77 million Sony PlayStation Network and Qriocity
music service users were stolen by computer hackers.
Shortly after admitting this security breach, Sony admitted that a
separate data breach occurred the day before, which compromised
the credit card information of another 24.6 million account
holders who used the Sony Online Entertainment games service.
This compromise was from an outdated database from 2007 that Sony
had no legitimate reason to maintain and expose to a data breach.
Sony disclosed on May 7, 2011 a third data breach.
Plaintiff Gregory Newman, III, is an individual residing in Tampa,
Hillsborough County, Florida. Defendant Sony Computer
Entertainment America, LLC, is a Delaware limited liability
company with members, headquarters, and its principal place of
business in Foster City, California.
The plaintiffs are represented by:
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
Cory S. Fein, Esq.
CADDELL & CHAPMAN
1331 Lamar, Suite 1070
Houston TX 77010-3027
Telephone: (713) 751-0400
E-mail: mac@caddellchapman.com
cbc@caddellchapman.com
csf@caddellchapman.com
SONY CORP: Faces 21st Suit Over Private Data Breach
---------------------------------------------------
Thomas Flamson, et al., individually and on behalf of other
members of the general public similarly situated v. Sony
Corporation of America, et al., Case No. 11-cv-02456 (N.D. Calif.
May 19, 2011), accuse SONY of failing to take reasonable measures
to secure the personal and financial information of SONY customers
who subscribed to SONY'S online networks which include the
PlayStation Network, Sony Online Entertainment Network, and
Qriocity.
Between April 17 and April 19, 2011, SONY's PlayStation Network
and Qriocity Network had been hacked into and the personal and
financial information of plaintiffs had been compromised. The
hackers had also gained access to plaintiffs' billing addresses,
purchase histories, password security answers, online handles/IDs,
and related credit and/or debit card information. On April 20,
2011, SONY closed down both the PlayStation Network and Qriocity.
On May 2, 2011, SONY closed down the Sony Online Entertainment
network.
SONY waited more than a week before disclosing to the public that
its PlayStation Network and Qriocity had been hacked into by an
authorized third party.
Thomas Flamson is a resident of Los Angeles, California.
Defendant Sony Corporation of America, a New York corporation, is
one of the world's leading manufacturers of "audio, video, game,
communications, key device and information technology products for
the consumer and professional markets." The SONY defendants
manufacture and sell a huge variety of electronic products and
services from video and audio equipment, movies and computers to
its line of "PlayStation" video game consoles and related video
game content.
The Plaintiffs are represented by:
Miriam Schimmel, Esq.
Andrew Sokolowski, Esq.
David Cheng, Esq.
INITIATIVE LEGAL GROUP APC
1800 Century Park East, 2nd Floor
Los Angeles, CA 90067
Telephone: (310) 556-5637
E-mail: MSchimmel@InitiativeLegal.com
ASokolowski@InitiativeLegal.com
DCheng@InitiativeLegal.com
STATE AUTO FINANCIAL: Awaits Ruling on Plea to Dismiss Class Suit
-----------------------------------------------------------------
State Auto Financial Corporation is awaiting a ruling on its
motion to dismiss a putative class action lawsuit filed in Ohio,
according to the Company's May 6, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended March 31, 2011.
In December 2010, a putative class action lawsuit (Kelly vs. State
Automobile Mutual Insurance Company, et al.) was filed against
State Auto Financial, State Auto P&C and State Auto Mutual in
state court in Ohio. In this lawsuit, plaintiffs allege that the
defendants have engaged, and continue to engage, in deceptive
practices by failing to disclose to plaintiffs the availability,
through one or more related companies, of insurance policies
providing for identical coverage and service as those policies
purchased by plaintiffs but at a lower premium amount. Plaintiffs
are seeking class certification and compensatory and punitive
damages to be determined by the court and restitution and/or
disgorgement of profits derived from plaintiffs and the alleged
class. The Company filed a motion to dismiss on March 1, 2011,
and it remains pending. Plaintiffs filed an amended complaint on
April 13, 2011, adding an additional plaintiff but not materially
revising the claims raised in the original action. The Company
believes its practices with respect to pricing, quoting and
selling its insurance policies are in compliance with all
applicable laws, and denies any and all liability to plaintiffs or
the alleged class, and intends to vigorously defend this lawsuit.
Based on the Company's current understanding and assessment of
this case, it does not expect this matter to have a material
adverse effect on its results of operations.
SUPPORT.COM: Awaits Decision on Appeal From Class Suit Settlement
-----------------------------------------------------------------
Support.com, Inc., is awaiting a court decision on an appeal filed
by parties against a settlement of a class action lawsuit,
according to the Company's May 6, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2011.
In November 2001, a class action lawsuit was filed against the
Company, two of the Company former officers and certain
underwriters in the United States District Court for the Southern
District of New York. Similar complaints have been filed against
55 underwriters and more than 300 other companies and other
individual officers and directors of those companies; the
consolidated case is In re Initial Public Offering Securities
Litigation, No. 21 MC 92 (SAS) (S.D.N.Y.). The lawsuit, which
sought unspecified damages, fees and costs, alleged that the
Company registration statement and prospectus dated July 18, 2000
for the issuance and initial public offering of 4,250,000 shares
of the Company common stock contained material misrepresentations
and/or omissions related to alleged inflated commissions received
by the underwriters of the offering. On April 1, 2009, all parties
entered into a Stipulation and Agreement of Settlement that would
resolve all claims and dismiss the case against the Company and
the Company's former officers, without any payment by the Company
or the Company's former officers. On October 5, 2009, the court
issued an order approving the settlement. Certain other parties
have appealed the settlement and the appeal is pending.
SYNGENTA CROP: Wants Some Atrazine Suit Documents to Stay Sealed
----------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
that Syngenta Crop Protection Inc. agrees that some documents
plaintiffs filed under seal in a proposed federal class action
over alleged water contamination should never have been sealed.
But in a response brief, the company insists some things filed
under seal by the city of Greenville should stay out of the public
eye.
"Syngenta has a very real concern that Plaintiff's excessive and
unnecessary filing of documents under seal was a premeditated
scheme designed to exert pressure on Syngenta by pressuring the
Court to unseal the court file, and thereby disclose Syngenta's
confidential information to the public," the response reads.
The issue arises in a suit brought by Greenville that, if
certified, could include a multi-state class of cities and water
providers contending they paid to remediate water contamination
caused by weed killer atrazine made by Syngenta.
Greenville is represented by:
Stephen Tillery, Esq.
KOREIN TILLERY LLC
205 North Michigan, Suite 1940
Chicago, IL 60601-4269
Telephone: 314-241-4844
E-mail: STillery@koreintillery.com
Syngenta is represented by:
Kurt B. Reeg, Esq.
REEG LAWYERS, LLC
One North Brentwood Boulevard Suite 950
St. Louis, MO 63105
Telephone: 314-446-3350
E-mail: kreeg@reeglawfirm.com
The suit was filed last year in U.S. District for the Southern
District of Illinois.
It is nearly identical to six Madison County class actions filed
by the Holiday Shores Sanitary District seven years ago. One of
the Holiday Shores suits also finds Syngenta at the defense table.
None of the suits have been certified to date.
A settlement conference earlier this year in the Greenville case
did not result in a settlement.
The federal court entered the order to show cause against Syngenta
April 19.
In that order, the federal court asked for reasons why documents
currently sealed in the case should not be unsealed.
The plaintiffs had asked for the order and two environmental
groups, the Environmental Law & Policy Center and Prairie Rivers
Network, also filed moves to unseal certain documents in the suit.
Syngenta argues in its response to the order filed May 13 that it
does not object to unsealing a number of documents.
It contends that many documents that are currently sealed were not
designated confidential by the plaintiffs and that others that are
sealed aren't referenced in briefs.
Other documents, the defendant claims, are duplicates of others
already in the case file.
"The Court's frustration with the size and content of documents
filed under seal is well-founded," the response reads. "More
frustrating is that this situation could have been avoided had
Plaintiffs acted in good faith. By filing under seal documents
that were not designated confidential, were duplicative, or were
not even cited or referenced in any filing, Plaintiffs have wasted
the Court's and Defendant's time and resources."
Syngenta goes on to cite U.S. District Court Judge J. Phil
Gilbert's April 19 order that indicates the judge finds sealing
items such as a press release to be "hogwash."
The company goes on to list "hogwash" as another press release,
public documents such as Syngenta SEC filings, printouts of its
Web site and Syngenta employee's "LinkedIn" Web page.
The defendant also questions what reason their counterparts could
have for filing such things under seal in the first place.
The company asks the court to strike and remove the duplicative
items and to keep those items already designated confidential
under seal except certain items Syngenta has reviewed and would
agree to make public.
The federal case is case number 10-cv-188-JPG.
The Madison County case also currently pending is case number 04-
L-710.
TEXAS ROADHOUSE: "Crenshaw" Suit in Early Phases of Discovery
-------------------------------------------------------------
A purported class action filed by Jenna Crenshaw against Texas
Roadhouse, Inc., is in the early phases of discovery, according to
the Company's May 6, 2011 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 29,
2011.
On January 19, 2011, a civil case styled as a class action
complaint titled Jenna Crenshaw, Andrew Brickley, et al, and all
others similarly situated v. Texas Roadhouse, Inc., Texas
Roadhouse Holdings, LLC, Texas Roadhouse of Everett, LLC and Texas
Roadhouse Management Corp., d/b/a Texas Roadhouse, Superior Court
Civil Action Number 11-0157, was filed against the Company in
Middlesex County, Massachusetts. The complaint was subsequently
amended to add additional plaintiffs, all of whom have alleged a
failure to comply with Massachusetts labor laws, specifically that
the Company improperly shared pooled tips with ineligible
employees. The complaint alleges violations in all of the
Company's restaurants in Massachusetts. Currently, the Company
operates nine restaurants in the state. The Company has filed
notice to remove the case to federal court, filed an answer
denying all material allegations and are in the early phases of
discovery.
The Company believes that it has meritorious defenses to the
claims made in the Crenshaw case, and the Company intends to
vigorously defend against them, including plaintiffs' efforts to
certify a class action. Based on the preliminary status of this
matter, the Company cannot estimate the possible amount or range
of loss, if any, associated with this matter. However, if the
court imposes statutory penalties, including restitution of the
difference between the tip credit wage and minimum wage,
restitution of tips, treble damages and attorneys' fees, then the
case could have a material adverse effect on the Company's
consolidated financial position, results of operation or cash
flows.
Texas Roadhouse, Inc., and its wholly-owned subsidiaries including
Texas Roadhouse Holdings LLC, Texas Roadhouse Development
Corporation, Texas Roadhouse Management Corp. and Aspen Creek,
LLC, operate restaurants under the names Texas Roadhouse and Aspen
Creek.
THEGLOBE.COM: Appeals From IPO Suit Settlement Still Pending
------------------------------------------------------------
Appeals from an order approving the settlement of a consolidated
shareholder class action lawsuit filed against theglobe.com, Inc.,
remain pending, according to the Company's May 6, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2011.
On and after August 3, 2001, six putative shareholder class action
lawsuits were filed against the Company, certain of its current
and former officers and directors, and several investment banks
that were the underwriters of the Company's initial public
offering and secondary offering. The lawsuits were filed in the
United States District Court for the Southern District of New
York. A Consolidated Amended Complaint, which is now the
operative complaint, was filed in the Southern District of New
York on April 19, 2002.
The lawsuit purports to be a class action filed on behalf of
purchasers of the stock of the Company during the period from
November 12, 1998 through December 6, 2000. The purported class
action alleges violations of Sections 11 and 15 of the Securities
Act of 1933 and Sections 10(b), Rule 10b-5 and 20(a) of the
Securities Exchange Act of 1934. Plaintiffs allege that the
underwriter defendants agreed to allocate stock in the Company's
initial public offering and its secondary offering to certain
investors in exchange for excessive and undisclosed commissions
and agreements by those investors to make additional purchases of
stock in the aftermarket at pre-determined prices. Plaintiffs
allege that the Prospectuses for the Company's initial public
offering and its secondary offering were false and misleading and
in violation of the securities laws because it did not disclose
these arrangements. The action seeks damages in an unspecified
amount. On October 9, 2002, the Court dismissed the Individual
Defendants from the case without prejudice. This dismissal
disposed of the Section 15 and 20(a) control person claims without
prejudice.
At the Court's request, Plaintiffs selected six "focus" cases,
which do not include the Company. The Court indicated that its
decisions in the six focus cases are intended to provide strong
guidance for the parties in the remaining cases. On December 5,
2006, the U.S. Court of Appeals for the Second Circuit vacated a
decision by the District Court granting class certification in the
focus cases. On April 6, 2007, the Second Circuit denied a
petition for rehearing filed by Plaintiffs, but noted that
Plaintiffs could ask the District Court to certify more narrow
classes than those that were rejected.
The parties in the approximately 300 coordinated cases, including
ours, reached a settlement. The insurers for the issuer defendants
in the coordinated cases will make the settlement payment on
behalf of the issuers, including theglobe. On October 5, 2009, the
Court granted final approval of the settlement. Objectors to the
settlement are pursuing appeals to the United States Court of
Appeals for the Second Circuit. Plaintiffs have moved to dismiss
the appeals.
Due to the inherent uncertainties of litigation, the Company
cannot accurately predict the ultimate outcome of the matter. If
the settlement does not survive appeal and the Company is found
liable, the Company is unable to estimate or predict the potential
damages that might be awarded, whether such damages would be
greater than the Company's insurance coverage, and whether such
damages would have a material impact on the Company's results of
operations or financial condition in any future period.
theglobe.com, inc. -- http://www.theglobe.com/-- is a shell
company. As of Dec. 31, 2008, the company had no material
operations or assets. As of Dec. 31, 2008, theglobe has no plans
to acquire or start-up any new businesses. On Sept. 29, 2008,
the company sold the business and substantially all of the assets
of its Tralliance Corporation subsidiary to Tralliance Registry
Management. theglobe received earn-out rights from Tralliance
Registry Management, which will constitute the only source of
future revenue for theglobe as a shell company.
THESTREET.COM INC: Still Awaits Decision on Suit Settlement Appeal
------------------------------------------------------------------
TheStreet.com, Inc., is still awaiting a decision on an appeal
from the court approval of a settlement entered in an IPO class
action lawsuit, according to the Company's May 6, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2011.
In 2001, the Company, certain of its current or former officers
and directors and certain underwriters were named in a securities
class action related to the Company's initial public offering.
Similar suits were filed against approximately 300 other issuers
and their underwriters, all of which are included in a single
coordinated proceeding in the district court. The complaints
allege that the prospectus and the registration statement for the
IPO failed to disclose that the underwriters allegedly solicited
and received "excessive" commissions from investors and that some
investors in the IPO allegedly agreed with the underwriters to buy
additional shares in the aftermarket in order to inflate the price
of the Company's stock. The complaints seek unspecified damages,
attorney and expert fees, and other unspecified litigation costs.
In 2003, the district court granted the Company's motion to
dismiss the claims against it under Rule 10b-5 but motions to
dismiss the claims under Section 11 of the Securities Act of 1933
were denied as to virtually all of the defendants in the
consolidated cases, including the Company. In addition, some of
the individual defendants in the IPO Litigations, including Mr.
Cramer, signed a tolling agreement and were dismissed from the
action without prejudice on October 9, 2002. In 2003, a proposed
collective partial settlement of this litigation was structured
between the plaintiffs, the issuer defendants in the consolidated
actions, the issuer officers and directors named as defendants,
and the issuers' insurance companies. The court granted
preliminary approval of the settlement in 2005 but in 2007 the
settlement was terminated, in light of a ruling by the appellate
court in related litigation in 2006 that reversed the trial
court's certification of classes in that related litigation. In
2009, another settlement was entered into and approved by the
trial court. Under the settlement, the Company's obligation of
approximately $339,000 would be paid by the issuers' insurance
companies. The settlement has been appealed. There can be no
assurance that the approval of the settlement will not be reversed
on appeal and that the settlement will be implemented in its
current form, or at all. Due to the inherent uncertainties of
litigation, the ultimate outcome of the matter is uncertain.
UGI CORP: Continues to Defend "Swiger" Class Suits
--------------------------------------------------
UGI Corporation disclosed in its May 6, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2011, that it continues to defend itself
against class action lawsuits filed by Samuel and Brenda Swiger.
In 1996, a fire occurred at the residence of Samuel and Brenda
Swiger when propane that leaked from an underground line ignited.
In July 1998, the Swigers filed a class action lawsuit against
AmeriGas Propane, L.P. (named incorrectly as "UGI/AmeriGas,
Inc."), in the Circuit Court of Monongalia County, West Virginia,
in which they sought to recover an unspecified amount of
compensatory and punitive damages and attorney's fees, for
themselves and on behalf of persons in West Virginia for whom the
defendants had installed propane gas lines, resulting from the
defendants' alleged failure to install underground propane lines
at depths required by applicable safety standards. On
December 14, 2010, AmeriGas OLP and its affiliates entered into a
settlement agreement with the class, which was preliminarily
approved by the Circuit Court of Monongalia County on January 13,
2011.
In 2005, the Swigers also filed what purports to be a class action
in the Circuit Court of Harrison County, West Virginia against
UGI, an insurance subsidiary of UGI, certain officers of UGI and
the General Partner, and their insurance carriers and insurance
adjusters. In the Harrison County lawsuit, the Swigers are
seeking compensatory and punitive damages on behalf of the
putative class for alleged violations of the West Virginia
Insurance Unfair Trade Practice Act, negligence, intentional
misconduct, and civil conspiracy. The Swigers have also requested
that the Court rule that insurance coverage exists under the
policies issued by the defendant insurance companies for damages
sustained by the members of the class in the Monongalia County
lawsuit. The Circuit Court of Harrison County has not certified
the class in the Harrison County lawsuit at this time and, in
October 2008, stayed that lawsuit pending resolution of the class
action lawsuit in Monongalia County. UGI believes it has good
defenses to the claims in this action.
UGI Corporation is a holding company that, through subsidiaries
and affiliates, distributes and markets energy products and
related services. In the United States, it owns and operates (1)
a retail propane marketing and distribution business; (2) natural
gas and electric distribution utilities; (3) electricity
generation facilities; and (4) an energy marketing, midstream
infrastructure, storage and energy services business.
Internationally, it markets and distributes propane and other
liquefied petroleum gases in Europe and China. It conducts a
domestic propane marketing and distribution business through
AmeriGas Partners, L.P., a publicly traded limited partnership,
and its principal operating subsidiary AmeriGas Propane, L.P.
UMB FINANCIAL: Settles Overdraft Fees Class Action for $7.8 Mil.
----------------------------------------------------------------
James Dornbroo, writing for Kansas City Business Journal, reports
that UMB Financial Corp. has agreed to a $7.8 million settlement
of a class-action lawsuit related to overdraft fees charged by
subsidiary UMB Bank, the company said on May 18.
The settlement, subject to approval by Jackson County Circuit
Court, includes no admission of wrongdoing.
David Johnson of Cass County filed the suit in April 2010. The
suit alleged that UMB Bank unfairly charged overdraft fees. The
suit claimed that UMB treated pending deposits differently than
pending withdrawals and rearranged withdrawals to maximize
overdraft fees.
The case received class-action status in November.
"While admitting no wrongdoing, in order to fully and finally
resolve the litigation and avoid any further expense and
distraction caused by the litigation, the company agreed to
establish a $7.8 million escrow settlement fund," UMB said in a
filing with the Securities and Exchange Commission.
Mr. Johnson was represented by Patrick Stueve, Esq. of Stueve
Siegel Hanson LLP.
UMG RECORDINGS: Sued for Non-Payment of Income from Ringtone Sales
------------------------------------------------------------------
Rob Zombie, et al., individually and on behalf of others similarly
siutated v. UMG Recordings, Inc., Case No. 11-cv-02431 (N.D.
Calif. May 18, 2011), sue for breach of contract and certain
statutory violations under California law against defendant UMG
Recordings, a Delaware corporation headquartered in the state of
California.
Plaintiff Zombie accuses defendant UMG of failing 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 (or "master-tones").
UMG claims to be the world's largest recorded music company.
Plaintiff Rob Zombie, also known as Robert Wolfgang Zombie,
formerly known as Robert Cummings, is a performing and recording
artist currently residing in Los Angeles, California. He is the
founding member of plaintiff White Zombie, a heavy metal
rock band, which has released multiple studio records on Geffen
Records (subsequently acquired by UMG).
The Plaintiffs are represented by:
Michael W. Sobol, Esq.
Eric B. Fastiff, Esq.
Roger N. Heller, Esq.
Cecelia Han, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3336
Telephone: (415) 956-1000
E-mail: msobol@lchb.com
efastiff@lchb.com
rheller@lchb.com
chan@lchb.com
- and -
David M. Given, Esq.
Nicholas A. Carlin, Esq.
Alexander H. Tuzin, 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
aht@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
E-mail: lens@rgrdlaw.com
USA TRUCK: Awaits Court Approval of "Cerdenia" Suit Settlement
--------------------------------------------------------------
USA Truck Inc. is awaiting court approval of its settlement of a
class action lawsuit filed by a former driver team member in
California, according to the Company's May 6, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2011.
On July 2, 2010, a former driver team member filed a lawsuit
against the Company titled Hermes Cerdenia vs. USA Truck, Inc., in
the Superior Court of the State of California for the County of
San Bernardino, alleging various violations of the California
Labor Code and seeking certification of the suit as a class action
to include "all individuals currently and formerly employed in
California as drivers, or other similarly titled positions." The
Company has successfully removed the case to the United States
District Court, Central District of California and has filed an
answer denying the plaintiff's allegations. The lawsuit seeks
monetary damages for the alleged violations. In February 2011,
settlement of the lawsuit was negotiated through mediation subject
to the District Court's review and approval. Such approval is
expected later in 2011. At March 31, 2011, all but $0.05 million
of the agreed upon settlement amount had been accrued and this
remaining balance was accrued at April 30, 2011.
VALHI INC: Appeals in Lead Pigment Litigation Still Pending
-----------------------------------------------------------
Appeals from dismissal or summary judgment rulings in the lead
pigment litigation against pigment manufacturers, including Valhi,
Inc.'s subsidiary, NL Industries, Inc., remain pending, according
to the Company's May 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
Former operations of the Company's subsidiary, NL Industries,
Inc., included the manufacture of lead pigments for use in paint
and lead-based paint. NL, other former manufacturers of lead
pigments for use in paint and lead-based paint (together, the
"former pigment manufacturers"), and the Lead Industries
Association ("LIA"), which discontinued business operations in
2002, have been named as defendants in various legal proceedings
seeking damages for personal injury, property damage and
governmental expenditures allegedly caused by the use of lead-
based paints. Certain of these actions have been filed by or on
behalf of states, counties, cities or their public housing
authorities and school districts, and certain others have been
asserted as class actions. These lawsuits seek recovery under a
variety of theories, including public and private nuisance,
negligent product design, negligent failure to warn, strict
liability, breach of warranty, conspiracy/concert of action,
aiding and abetting, enterprise liability, market share or risk
contribution liability, intentional tort, fraud and
misrepresentation, violations of state consumer protection
statutes, supplier negligence and similar claims.
The plaintiffs in these actions generally seek to impose on the
defendants responsibility for lead paint abatement and health
concerns associated with the use of lead-based paints, including
damages for personal injury, contribution and/or indemnification
for medical expenses, medical monitoring expenses and costs for
educational programs. To the extent the plaintiffs seek
compensatory or punitive damages in these actions, such damages
are generally unspecified. In some cases, the damages are
unspecified pursuant to the requirements of applicable state law.
A number of cases are inactive or have been dismissed or
withdrawn. Most of the remaining cases are in various pre-trial
stages. Some are on appeal following dismissal or summary
judgment rulings in favor of either the defendants or the
plaintiffs.
In addition, various other cases (in which the Company or its
subsidiaries are not a defendant) are pending that seek recovery
for injury allegedly caused by lead pigment and lead-based paint.
Although NL is not a defendant in these cases, the outcome of
these cases may have an impact on cases that might be filed
against NL in the future.
The Company believes that these actions are without merit, and it
intends to continue to deny all allegations of wrongdoing and
liability and to defend against all actions vigorously. The
Company and its subsidiaries do not believe that it is probable
that they have incurred any liability with respect to all of the
lead pigment litigation cases to which they are a party, and
liability to the Company that may result, if any, in this regard
cannot be reasonably estimated, because:
-- they have never settled any of the market share, risk
contribution, intentional tort, fraud, nuisance, supplier
negligence, breach of warranty, conspiracy,
misrepresentation, aiding and abetting, enterprise
liability, or statutory cases;
-- no final, non-appealable adverse verdicts have ever been
entered against them; and
-- they have never ultimately been found liable with respect
to any such litigation matters.
Accordingly, the Company and its subsidiaries have not accrued any
amounts for any of the pending lead pigment and lead-based paint
litigation cases. New cases may continue to be filed against
them. They add that they cannot assure that they will not incur
liability in the future in respect of any of the pending or
possible litigation in view of the inherent uncertainties involved
in court and jury rulings. The resolution of any of these cases
could result in recognition of a loss contingency accrual that
could have a material adverse impact on the Company's net income
for the interim or annual period during which such liability is
recognized and a material adverse impact on its consolidated
financial condition and liquidity.
VECTOR GROUP: Appeal in "Cleary" Suit Remains Pending
-----------------------------------------------------
An appeal from an order denying plaintiffs' motion for
reconsideration of an order dismissing their fourth amended
complaint in Cleary v. Philip Morris remains pending, according to
Vector Group Ltd.'s May 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2011.
Since 1954, Liggett Group LLC, a subsidiary of Vector Group, and
other United States cigarette manufacturers have been named as
defendants in numerous direct, third-party and purported class
actions predicated on the theory that cigarette manufacturers
should be liable for damages alleged to have been caused by
cigarette smoking or by exposure to secondary smoke from
cigarettes.
In June 1998, in Cleary v. Philip Morris, a putative class action
was brought in Illinois state court on behalf of persons who were
allegedly injured by: (i) defendants' purported conspiracy to
conceal material facts regarding the addictive nature of nicotine;
(ii) defendants' alleged acts of targeting their advertising and
marketing to minors; and (iii) defendants' claimed breach of the
public's right to defendants' compliance with laws prohibiting the
distribution of cigarettes to minors. Plaintiffs sought
disgorgement of all profits unjustly received through defendants'
sale of cigarettes to plaintiffs and the class. In March 2009,
plaintiffs filed a third amended complaint adding, among other
things, allegations regarding defendants' sale of "lights"
cigarettes. The case was then removed to federal court on the
basis of this new claim. In November 2009, plaintiffs filed a
revised motion for class certification as to the three proposed
classes, which motion was denied by the court. In February 2010,
the court granted summary judgment in favor of defendants as to
all claims, other than a "lights" claim involving another
cigarette manufacturer. The court granted leave to the plaintiffs
to reinstate the motion as to the addiction claims. Plaintiffs
filed a Fourth Amended Complaint in an attempt to resurrect their
addiction claims.
In June 2010, the court granted defendants' motion to dismiss the
Fourth Amended Complaint and in July 2010, the court denied
plaintiffs' motion for reconsideration. In August 2010,
plaintiffs appealed to the United States Court of Appeals for the
Seventh Circuit. Oral argument occurred on April 7, 2011.
VECTOR GROUP: Hearing on Motion to Dismiss "Brown" Suit on June 21
------------------------------------------------------------------
A California state court will consider at a hearing on June 21,
2011, the plaintiffs' motion for leave to amend complaint and
defendants' motion to dismiss the class action lawsuit Brown v.
Philip Morris USA, according to Vector Group Ltd.'s May 5, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2011.
Since 1954, Liggett Group LLC, a subsidiary of Vector Group, and
other United States cigarette manufacturers have been named as
defendants in numerous direct, third-party and purported class
actions predicated on the theory that cigarette manufacturers
should be liable for damages alleged to have been caused by
cigarette smoking or by exposure to secondary smoke from
cigarettes.
In April 2001, in Brown v. Philip Morris USA, a California state
court granted in part plaintiffs' motion for class certification
and certified a class comprised of adult residents of California
who smoked at least one of defendants' cigarettes "during the
applicable time period" and who were exposed to defendants'
marketing and advertising activities in California. In March
2005, the court granted defendants' motion to decertify the class
based on a recent change in California law. In June 2009, the
California Supreme Court reversed and remanded the case to the
trial court for further proceedings regarding whether the class
representatives have, or can, demonstrate standing. In August
2009, the California Supreme Court denied defendants' rehearing
petition and issued its mandate. In September 2009, plaintiffs
sought reconsideration of the court's September 2004 order finding
that plaintiffs' allegations regarding "lights" cigarettes are
preempted by federal law, in light of the United States Supreme
Court decision in Altria Group v. Good. In March 2010, the trial
court granted reconsideration of its September 2004 order granting
partial summary judgment to defendants with respect to plaintiffs'
"lights" claims on the basis of judicial decisions issued since
its order was issued, including Good, thereby reinstating
plaintiffs' "lights" claims.
Since the trial court's prior ruling decertifying the class was
reversed on appeal by the California Supreme Court, the parties
and the court are treating all claims currently being asserted by
the plaintiffs as certified, subject, however, to defendants'
challenge to the class representatives standing to assert their
claims. In December 2010, defendants filed a motion for a
determination that the class representatives, as set forth in
plaintiffs' tenth amended complaint, lack standing to pursue the
claims. The court granted defendants' motion and scheduled a
hearing for June 21, 2011 on plaintiffs' motion for leave to amend
and defendants' motion to dismiss.
VECTOR GROUP: Discovery Is Ongoing in "Smith" Suit
--------------------------------------------------
According to Vector Group Ltd.'s May 5, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011, discovery is ongoing in Smith v. Philip
Morris currently pending in a Kansas state court.
Since 1954, Liggett Group LLC, a subsidiary of Vector Group, and
other United States cigarette manufacturers have been named as
defendants in numerous direct, third-party and purported class
actions predicated on the theory that cigarette manufacturers
should be liable for damages alleged to have been caused by
cigarette smoking or by exposure to secondary smoke from
cigarettes.
In Smith v. Philip Morris, a Kansas state court case filed in
February 2000, plaintiffs allege that cigarette manufacturers
conspired to fix cigarette prices in violation of antitrust laws.
Plaintiffs seek to recover an unspecified amount in actual and
punitive damages. Class certification was granted in November
2001. Discovery is ongoing.
VECTOR GROUP: "Young" Suit Remains Stayed
-----------------------------------------
Since 1954, Liggett Group LLC, a subsidiary of Vector Group, and
other United States cigarette manufacturers have been named as
defendants in numerous direct, third-party and purported class
actions predicated on the theory that cigarette manufacturers
should be liable for damages alleged to have been caused by
cigarette smoking or by exposure to secondary smoke from
cigarettes.
In November 1997, in Young v. American Tobacco Co., a purported
personal injury class action was commenced on behalf of plaintiff
and all similarly situated residents in Louisiana who, though not
themselves cigarette smokers, are alleged to have been exposed to
secondhand smoke from cigarettes which were manufactured by the
defendants, and who suffered injury as a result of that exposure.
The plaintiffs seek to recover an unspecified amount of
compensatory and punitive damages. In October 2004, the trial
court stayed this case pending the outcome of an appeal in another
matter.
No further updates were reported in Vector Group Ltd.'s May 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
VIVUS INC: Court Stays Discovery in "Kovtun" Class Action Lawsuit
-----------------------------------------------------------------
Discovery is stayed in a securities class action lawsuit filed
against Vivus Inc. pending resolution of a motion to dismiss the
lawsuit, according to the Company's May 6, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2011.
A federal securities class action lawsuit captioned Kovtun v.
Vivus, Inc., et al. is pending in the U.S. District Court,
Northern District of California, which asserts claims for
violations of Section 10(b) and 20(a) of the federal securities
laws, purportedly relating to statements allegedly made by the
Company in connection with its New Drug Application, or NDA, for
QNEXA as a treatment for obesity. The essential factual
allegation is that the Company and its officers misled the
investing public regarding the prospects for QNEXA's NDA approval,
and the drug's efficacy and safety. On February 2, 2011, the
court granted a stipulation and order appointing a lead plaintiff
and a lead counsel for the class. On February 3, 2011, the court
granted a stipulation and order requiring the lead plaintiff to
file any amendment to the operative complaint no later than 60
days from February 2, 2011, with the defendants' answer or motion
to dismiss to be filed no later than 60 days after plaintiffs file
the amended complaint. Plaintiffs' amended complaint was filed on
April 4, 2011, and defendants' response is due on or before
June 3, 2011. Plaintiffs' opposition to defendants' motion to
dismiss the amended complaint must be filed on or before August 2,
2011, and defendants must file their reply to the opposition on or
before September 16, 2011. Discovery is stayed in the Kovtun
matter pending resolution of the defendants' motion to dismiss.
WEB.COM GROUP: Awaits Decision on Appeals From Suit Settlement
--------------------------------------------------------------
An affiliate of Web.com Group, Inc., is awaiting a decision on
appeals from an order approving a settlement entered in connection
with securities class actions, according to the Company's May 6,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2011.
In November 2001, Register.com Inc., its Chairman, President,
Chief Executive Officer and former Vice President of Finance and
Accounting Richard D. Forman and its former President and Chief
Executive Officer Alan G. Breitman were named as defendants in
class action complaints alleging violations of the federal
securities laws in the United States District Court for the
Southern District of New York. A Consolidated Amended Complaint,
which is now the operative complaint, was filed in the Southern
District of New York on April 19, 2002.
The purported class action alleges violations of Sections 11 and
15 of the Securities Act of 1933 and Sections 10(b), Rule 10b-5
and 20(a) of the Securities Exchange Act of 1934 against
Register.com and Individual Defendants. The essence of the
complaint is that defendants issued and sold Register.com's common
stock pursuant to the Registration Statement for the March 3, 2000
Initial Public Offering without disclosing to investors that
certain underwriters in the offering had solicited and received
excessive and undisclosed commissions from certain investors. The
complaint also alleges that the Registration Statement for the IPO
failed to disclose that the underwriters allocated Register.com
shares in the IPO to customers in exchange for the customers'
promises to purchase additional shares in the aftermarket at pre-
determined prices above the IPO price, thereby maintaining,
distorting and/or inflating the market price for the shares in the
aftermarket. The action seeks damages in an unspecified amount.
The action is being coordinated with approximately three hundred
other nearly identical actions filed against other companies. On
July 15, 2002, Register.com moved to dismiss all claims against it
and the Individual Defendants. On October 9, 2002, the Court
dismissed the Individual Defendants from the case without
prejudice. This dismissal disposed of the Section 15 and 20(a)
control person claims without prejudice, since these claims were
asserted only against the Individual Defendants. On February 19,
2003 the Court denied the motion to dismiss the complaint against
Register.com. On December 5, 2006, the Second Circuit vacated a
decision by the district court granting class certification in six
of the approximately 300 nearly identical actions that are part of
the consolidated litigation, which are intended to serve as test,
or "focus" cases. The plaintiffs selected these six cases, which
do not include Register.com. On April 6, 2007, the Second Circuit
denied the petition for rehearing filed by the plaintiffs, but
noted that the plaintiffs could ask the District Court to certify
more narrow classes than those that were rejected.
The parties in the approximately 300 coordinated cases, including
the parties in Register.com's case, reached a settlement. It
provides for releases of existing claims and claims that could
have been asserted relating to the conduct alleged to be wrongful
from the class of investors participating in the settlement. The
insurers for the issuer defendants in the coordinated cases will
make the settlement payment on behalf of the issuers, including
Register.com. On October 6, 2009, the Court granted final approval
to the settlement. Two appeals are proceeding. Plaintiffs have
moved to dismiss both appeals. Four additional appeals that had
been filed have been withdrawn. The Company intends to continue to
defend the action vigorously if the settlement does not survive
the appeal.
Due to the inherent uncertainties of litigation, the Company says
it cannot predict the ultimate outcome of this matter. The Company
has notified its underwriters and insurance companies of the
existence of the claims. The Company presently believes, after
consultation with legal counsel, that the ultimate outcome of this
matter will not have a material adverse effect on the Company's
results of operations, liquidity or financial position.
WELLCARE HEALTH: Gets Final Approval of Class Suit Settlement
-------------------------------------------------------------
A federal court granted final approval of a stipulation of
settlement entered into by WellCare Health Plans, Inc., and
plaintiffs in consolidated putative class action, according to the
Company's May 6, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2011.
Putative class action complaints were filed in October 2007 and in
November 2007. These putative class actions, entitled Eastwood
Enterprises, L.L.C. v. Farha, et al. and Hutton v. WellCare Health
Plans, Inc. et al., respectively, were filed in the United States
District Court for the Middle District of Florida against the
Company, Todd Farha, the Company's former chairman and chief
executive officer, and Paul Behrens, the Company's former senior
vice president and chief financial officer. Messrs. Farha and
Behrens were also officers of various subsidiaries of the Company.
The Eastwood Enterprises complaint alleged that the defendants
materially misstated the Company's reported financial condition
by, among other things, purportedly overstating revenue and
understating expenses in amounts unspecified in the pleading in
violation of the Securities Exchange Act of 1934, as amended. The
Hutton complaint alleged that various public statements supposedly
issued by the defendants were materially misleading because they
failed to disclose that the Company was purportedly operating its
business in a potentially illegal and improper manner in violation
of applicable federal guidelines and regulations. The complaint
asserted claims under the Exchange Act. Both complaints sought,
among other things, certification as a class action and damages.
The two actions were consolidated, and various parties and law
firms filed motions seeking to be designated as Lead Plaintiff and
Lead Counsel. In an Order issued in March 2008, the Federal Court
appointed a group of five public pension funds from New Mexico,
Louisiana and Chicago as Lead Plaintiffs. In October 2008, an
amended consolidated complaint was filed in this class action
asserting claims against the Company, Messrs. Farha and Behrens,
and adding Thaddeus Bereday, the Company's former senior vice
president and general counsel, as a defendant.
In January 2009, the Company and certain other defendants filed a
joint motion to dismiss the amended consolidated complaint,
arguing, among other things, that the complaint failed to allege a
material misstatement by defendants with respect to the Company's
compliance with marketing and other health care regulations and
failed to plead facts raising a strong inference of scienter with
respect to all aspects of the purported fraud claim. The Federal
Court denied the motion in September 2009 and the Company and the
other defendants filed their answer to the amended consolidated
complaint in November 2009. In April 2010, the Lead Plaintiffs
filed their motion for class certification. On June 18, 2010, the
USAO filed motions seeking to intervene and for a temporary stay
of discovery of this matter. Discovery was stayed through
March 17, 2011.
In August 2010, the Company reached agreement with the Lead
Plaintiffs on the material terms of a settlement to resolve these
matters. In December 2010, the terms of the settlement were
documented in a formal settlement agreement that was subject to
approval by the Federal Court following notice to all class
members. On February 9, 2011, the Federal Court entered an order
preliminarily approving the settlement and scheduled the final
settlement hearing for May 4, 2011.
On May 4, 2011, the Federal Court entered an order approving the
Stipulation Agreement. As required by the Stipulation Agreement,
in March 2011 the Company paid $52,500,000 into an escrow account
for the benefit of the class. The Stipulation Agreement also
provides, among other things, that the Company will make an
additional cash payment to the class of $35,000,000 by July 31,
2011. It also requires, among other things, that the Company
issue to the class tradable unsecured subordinated notes having an
aggregate face value of $112,500,000 with a fixed coupon of 6% and
a maturity date of December 31, 2016. Additionally, the Company
will be required to pay to the class an additional $25,000,000 if
the Company experiences a change in control at a share price of
$30 or more within three years of the date of the Stipulation
Agreement.
With respect to the July 2011 Payment and as required by the
Stipulation Agreement, by May 9, 2011, the Company is required to
deliver to the escrow agent for the class a non-negotiable
promissory note in the principal amount of $35,000,000. The Note
is due and payable in full on July 31, 2011. The unpaid principal
amount of the Note will accelerate and become immediately due and
payable in the event of the Company's insolvency, a general
assignment for the benefit of creditors, or the commencement by or
against the Company of any action seeking reorganization,
liquidation, dissolution, or similar treatment of the Company's
debts under any law relating to bankruptcy, relief of debtors or
similar laws. The unpaid principal will also accelerate in the
event the Company or any third party seeks the appointment of a
receiver or other similar official for the Company or its assets
which, in the case of involuntary proceedings, has not been
withdrawn or dismissed within 60 days after the filing of such
proceeding. If the Company fails to pay the Note in full by
July 31, 2011, then interest on the unpaid balance shall accrue at
the rate and pursuant to the method set forth in 28 USC Section
1961 until all sums due are paid. In the event the payment is
accelerated as described in the previous paragraph, then such
interest will begin to accrue upon such acceleration.
As a result of this settlement having been reached, the Company
estimates for the remaining resolution amount of this matter is
$147,500,000. The Company has discounted the $147,500,000
liability for the resolution of this matter and accrued this
amount at its estimated fair value, which amounted to
approximately $145,814,000 at March 31, 2011. Approximately
$31,951,000 and $113,863,000 have been included in the current and
long-term portions, respectively, of Amounts accrued related to
investigation resolution in the Company's Condensed Consolidated
Balance Sheet as of March 31, 2011.
WellCare Health Plans, Inc., a Delaware corporation, provides
managed care services exclusively to government-sponsored health
care programs, serving approximately 2,383,000 members as of
March 31, 2011.
WESCO FINANCIAL: Continues to Defend Merger-Related Class Suits
---------------------------------------------------------------
Wesco Financial Corporation continues to defend itself against
class action lawsuits relating to its merger agreement with
Berkshire, according to the Company's May 6, 2011 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2011.
On February 7, 2011, Wesco and Berkshire announced that they had
entered into a definitive merger agreement, whereby Berkshire will
acquire the remaining 19.9% of the shares of Wesco's common stock
that it does not presently own in exchange for cash or shares of
Berkshire Class B common stock, at the election of each Wesco
shareholder. The transaction requires the affirmative vote of
holders of a majority of Wesco's outstanding shares in favor of
the adoption of the merger agreement, which will be sought at a
special meeting of the shareholders of Wesco, and is subject to
customary closing conditions. The transaction is also subject to a
non-waivable condition that a majority of the outstanding shares
not owned by Berkshire (and excluding certain specified
shareholders) vote in favor of the adoption of the merger
agreement. There can be no assurance that any transaction will
actually be completed.
Two lawsuits were filed on February 8, 2011, by plaintiffs
claiming to be Wesco shareholders challenging the transactions
contemplated by the merger agreement between Berkshire and Wesco.
Both of the lawsuits name Wesco, Wesco's directors, Berkshire and
Montana Acquisitions, LLC as defendants. One of them also names
Blue Chip and Wesco's Chief Financial Officer as defendants. One
of the actions was filed in Delaware Chancery Court and the other
in Los Angeles Superior Court. Both purport to be class actions
on behalf of Wesco shareholders.
The Delaware action is styled Joel Krieger v. Wesco Financial
Corporation, et al. The Los Angeles action is styled James Kinsey
v. Wesco Financial Corporation, et al. The lawsuits allege, among
other things, that Wesco's directors have breached their fiduciary
duties based on allegations that (i) the consideration being
offered is unfair and inadequate, (ii) statements in Wesco's
annual reports comparing its prospects for growth with those of
Berkshire have been unduly unfavorable to Wesco, and (iii) the
Wesco directors' approval of the proposed merger was tainted by
conflicts of interest between Berkshire and the non-Berkshire
shareholders of Wesco in breach of the Board's fiduciary duties.
The lawsuits also allege that Berkshire and its affiliates
violated fiduciary duties owed by a majority shareholder and aided
and abetted the alleged breaches by Wesco's directors. The
plaintiffs seek various remedies, including enjoining the
transaction from being consummated in accordance with the agreed-
upon terms. The Kinsey action has been stayed pending the
resolution of the similar claims asserted in the Krieger action.
In the Krieger action, the plaintiff has moved for a preliminary
injunction to prevent a shareholder vote on the transaction. The
defendants have opposed that motion. A hearing on the motion was
scheduled to take place on May 10, 2011. The defendants intend to
defend against these and any additional actions asserting similar
claims that may be brought in the future.
Wesco Financial Corp., through its subsidiaries, engages in the
property and casualty insurance, furniture rental, and steel
service center businesses. The Company is based in Pasadena,
California.
* Devon County Council to Use Class Action Monitoring Service
-------------------------------------------------------------
Michael Bow, writing for Professional Pensions, reports that Devon
County Council pension fund has signed up to a class action
monitoring service provided by a US law firm in a bid to recoup
funds lost through corporate fraud.
The GBP2.4 billion fund will use the services of Barrack, Rodos &
Bacine, which monitors all class action claims in the US, to see
if it can recover money through securities litigation. Devon will
consider acting as lead plaintiff or co-lead plaintiff in any
potential actions under the agreement.
Devon currently monitors US class action in-house through its
investment team and draws on the services of its custodian J.P.
Morgan. However, the fund said outsourcing the service to BR&B
would allow its investment team to better use its resources.
The fund said: "The investment team will still retain
responsibility for agreeing to the filing of any claim on behalf
of the fund and will have access to the BR&B monitoring service to
ensure that all claims are being dealt with on a timely basis to
meet the court administrators' deadlines.
"Use of this service will ensure the fund meets its fiduciary duty
by seeking to recover all claimable sums from corporate fraud
cases being actioned in the US courts."
Devon's investment team has previously submitted successful claims
amounting to about GBP123,000 in the last few years against the
likes of, Enron, Tyco, WorldCom and Electronic Data.
Asbestos Litigation
ASBESTOS UPDATE: Ashland Inc. Facing 76T Open Claims at March 31
----------------------------------------------------------------
Ashland Inc. faced 76,000 open asbestos claims during the six
months ended March 31, 2011, compared with 89,000 claims during
the six months ended March 31, 2010.
The claims alleging personal injury caused by exposure to asbestos
asserted against the Company stem from indemnification obligations
undertaken in 1990 in connection with the sale of Riley Stoker
Corporation, a former subsidiary.
During the six months ended March 31, 2011, the Company recorded
1,000 new claims filed; 1,000 claims settled; and 7,000 claims
dismissed. Asbestos reserves were US$517 million.
During the six months ended March 31, 2010, the Company recorded
1,000 new claims filed; 1,000 claims settled; and 11,000 claims
dismissed. Asbestos reserve was US$525 million.
At March 31, 2011, the Company's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$402 million (excluding the Hercules Inc. receivable
for asbestos claims), of which US$54 million relates to costs
previously paid.
Receivables from insurers amounted to US$421 million at Sept. 30,
2010.
Ashland Inc. provides the specialty chemicals, technologies and
insights to help customers create new and improved products for
today and sustainable solutions for tomorrow. The Company is
headquartered in Covington, Ky.
ASBESTOS UPDATE: Hercules Facing 22,000 Open Claims at March 31
---------------------------------------------------------------
Ashland Inc.'s Hercules subsidiary faced 22,000 open asbestos
claims during the six months ended March 31, 2011, compared with
20,000 open claims during the six months ended March 31, 2010.
During the six months ended March 31, 2011, the Company recorded
2,000 new Hercules claims filed. Asbestos reserves were
US$367 million. During the six months ended March 31, 2010, the
Company recorded 1,000 Hercules claims dismissed or settled.
Asbestos reserves were US$445 million.
Hercules has liabilities from claims alleging personal injury
caused by exposure to asbestos. Such claims typically arise from
alleged exposure to asbestos fibers from resin encapsulated pipe
and tank products which were sold by one of Hercules' former
subsidiaries to a limited industrial market.
The receivables from insurers amounted to US$67 million as of
March 31, 2011 and US$68 million as of Sept. 30, 2010.
Ashland Inc. provides the specialty chemicals, technologies and
insights to help customers create new and improved products for
today and sustainable solutions for tomorrow. The Company is
headquartered in Covington, Ky.
ASBESTOS UPDATE: Union Carbide Facing 61,249 Claims at March 31
---------------------------------------------------------------
Union Carbide Corporation faced 61,249 unresolved asbestos claims
at March 31, 2011, compared with 74,839 claims at March 31, 2010.
The Company is and has been involved in a large number of
asbestos-related suits filed primarily in state courts during the
past three decades. These suits principally allege personal
injury resulting from exposure to asbestos-containing products and
frequently seek both actual and punitive damages.
The alleged claims primarily relate to products that the Company
sold in the past, alleged exposure to asbestos-containing products
located on its premises, and its responsibility for asbestos suits
filed against a former Company subsidiary, Amchem Products, Inc.
During the period ended March 31, 2011, the Company recorded 2,039
claims filed and 3,372 claims settled, dismissed or otherwise
resolved. Individual claims were at 42,774 and claimants with
claims against both the Company and Amchem were 18,475.
During the period ended March 31, 2010, the Company recorded 2,029
claims filed and 2,220 claims settled, dismissed or otherwise
resolved. Individual claims were at 50,962 and claimants with
claims against both the Company and Amchem were 23,877.
Union Carbide Corporation produces building-block chemicals such
as ethylene and propylene, which are converted into the most
widely used plastics resins: polyethylene and polypropylene. It
also produces ethylene oxide and ethylene glycol used to make
polyester fibers and antifreeze. The Company is headquartered in
Houston.
ASBESTOS UPDATE: Union Carbide Has $13MM March 31 Defense Costs
---------------------------------------------------------------
Union Carbide Corporation posted asbestos-related defense costs of
US$13 million during the three months ended March 31, 2011,
compared with US$14 million during the three months ended
March 31, 2010.
Resolution costs were US$9 million during the three months ended
March 31, 2011, compared with US$12 million during the three
months ended March 31, 2010.
Union Carbide Corporation produces building-block chemicals such
as ethylene and propylene, which are converted into the most
widely used plastics resins: polyethylene and polypropylene. It
also produces ethylene oxide and ethylene glycol used to make
polyester fibers and antifreeze. The Company is headquartered in
Houston.
ASBESTOS UPDATE: Union Carbide Insurance Coverage Action Ongoing
----------------------------------------------------------------
Union Carbide Corporation's asbestos-related insurance litigation
filed in New York is ongoing.
In September 2003, the Company filed a comprehensive insurance
coverage case, now proceeding in the Supreme Court of the State of
New York, County of New York, seeking to confirm its rights to
insurance for various asbestos claims and to facilitate an orderly
and timely collection of insurance proceeds.
The Insurance Litigation was filed against insurers that are not
signatories to the Wellington Agreement and/or do not otherwise
have agreements in place with the Company regarding their
asbestos-related insurance coverage, in order to facilitate an
orderly resolution and collection of such insurance policies and
to resolve issues that the insurance carriers may raise.
Since the filing of the case, the Company has reached settlements
with several of the carriers involved in the Insurance Litigation,
including settlements reached with two significant carriers in the
fourth quarter of 2009.
Union Carbide Corporation produces building-block chemicals such
as ethylene and propylene, which are converted into the most
widely used plastics resins: polyethylene and polypropylene. It
also produces ethylene oxide and ethylene glycol used to make
polyester fibers and antifreeze. The Company is headquartered in
Houston.
ASBESTOS UPDATE: Union Carbide Has $50MM Receivable at March 31
---------------------------------------------------------------
Union Carbide Corporation's receivable for insurance recoveries
related to its asbestos liability was US$50 million at March 31,
2011, and Dec. 31, 2010.
At March 31, 2011 and Dec. 31, 2010, all of the receivable for
insurance recoveries was related to insurers that are not
signatories to the Wellington Agreement and/or do not otherwise
have agreements in place regarding their asbestos-related
insurance coverage.
In addition to the receivable for insurance recoveries related to
the asbestos-related liability, the Company had receivables for
defense and resolution costs submitted to insurance carriers that
have settlement agreements in place regarding their asbestos-
related insurance coverage.
Total receivables for asbestos-related costs were US$279 million
as of March 31, 2011, compared with US$298 million as of Dec. 31,
2010.
Union Carbide Corporation produces building-block chemicals such
as ethylene and propylene, which are converted into the most
widely used plastics resins: polyethylene and polypropylene. It
also produces ethylene oxide and ethylene glycol used to make
polyester fibers and antifreeze. The Company is headquartered in
Houston.
ASBESTOS UPDATE: NL Industries Still Subject to Liability Cases
---------------------------------------------------------------
NL Industries Inc. continues to be a defendant in various lawsuits
in several jurisdictions, alleging personal injuries as a result
of occupational exposure primarily to products manufactured by its
former operations containing asbestos, silica and/or mixed dust.
In addition, some plaintiffs allege exposure to asbestos from
working in various facilities previously owned and/or operated by
the Company. There are 1,121 of these types of cases pending,
involving a total of about 2,340 plaintiffs.
In addition, the claims of about 7,700 plaintiffs have been
administratively dismissed or placed on the inactive docket in
Ohio, Indiana and Texas state courts.
The Company does not expect these claims will be re-opened unless
the plaintiffs meet the courts' medical criteria for asbestos-
related claims.
NL Industries, Inc., through its majority-owned subsidiary, CompX,
manufactures components that are sold to industries including
office furniture, recreational transportation (including
performance boats), mailboxes, tool boxes, home appliances,
banking equipment, vending equipment and computer-related
equipment. The Company is headquartered in Dallas.
ASBESTOS UPDATE: 123,580 Cases in U.S. Pending v. Foster Wheeler
----------------------------------------------------------------
Foster Wheeler AG's subsidiaries in the United States faced
123,580 open asbestos claims during the three months ended
March 31, 2011, compared with 125,430 claims during the three
months ended March 30, 2010.
During the fiscal three months ended March 31, 2011, the Company
recorded 1,280 new claims and 2,120 claims resolved. During the
fiscal three months ended March 31, 2010, the Company recorded
1,210 new claims and 880 claims resolved.
Total asbestos-related assets were US$212,434,000 as of March 31,
2011, compared with US$219,901,000 as of Dec. 31, 2010. Total
asbestos-related liabilities were US$317,933,000 as of March 31,
2011, compared with US$337,500,000 as of Dec. 31, 2010.
Through March 31, 2011, total cumulative indemnity costs paid were
about US$744,300,000 and total cumulative defense costs paid were
about US$347,300,000. Historically, defense costs have
represented about 31.8% of total defense and indemnity costs.
Foster Wheeler AG is an engineering and construction contractor
and power equipment supplier delivering technically advanced,
reliable facilities and equipment. The Company employs about
12,000 professionals with specialized expertise dedicated to
serving its clients through one of its two primary business
groups. The Company is headquartered in Zug, Switzerland.
ASBESTOS UPDATE: Foster Wheeler Has 289 U.K. Claims at March 31
---------------------------------------------------------------
Foster Wheeler AG's subsidiaries in the United Kingdom faced 289
open asbestos claims as of March 31, 2011, according to the
Company's quarterly report filed with the Securities and Exchange
Commission on May 4, 2011.
Some of the Company's subsidiaries in the United Kingdom have
received claims alleging personal injury arising from exposure to
asbestos. To date, 968 claims have been brought against the U.K.
subsidiaries.
None of the settled claims has resulted in material costs to the
Company. Total asbestos-related assets were US$32,197,000 as of
March 31, 2011, compared with US$31,046,000 as of Dec. 31, 2010.
Total asbestos-related liabilities were US$32,197,000 as of
March 31, 2011, compared with US$31,046,000 as of Dec. 31, 2010.
The liability estimates are based on a U.K. House of Lords
judgment that pleural plaque claims do not amount to a compensable
injury and accordingly, the Company has reduced its liability
assessment.
If this ruling is reversed by legislation, the total asbestos
liability and related asset recorded in the U.K. would be about
US$55 million.
Foster Wheeler AG is an engineering and construction contractor
and power equipment supplier delivering technically advanced,
reliable facilities and equipment. The Company employs about
12,000 professionals with specialized expertise dedicated to
serving its clients through one of its two primary business
groups. The Company is headquartered in Zug, Switzerland.
ASBESTOS UPDATE: Crown Cork Receives 600 New Claims During 1stQ
---------------------------------------------------------------
Crown Holdings, Inc.'s subsidiary, Crown Cork and Seal Company,
during the three months ended March 31, 2011, received about 600
new asbestos claims, settled or dismissed about 500 claims for a
total of US$4 million, and had about 50,000 claims outstanding at
the end of the period.
Settlement amounts include amounts committed to be paid in future
periods. The outstanding claims at March 31, 2011 exclude 33,000
pending claims involving plaintiffs who allege that they are, or
were, maritime workers subject to exposure to asbestos, but whose
claims the Company believes will not have a material effect on the
Company's consolidated results of operations, financial position
or cash flow.
The outstanding claims at March 31, 2011, also exclude about
19,000 inactive claims. Due to the passage of time, the Company
considers it unlikely that the plaintiffs in these cases will
pursue further action.
The exclusion of these inactive claims had no effect on the
calculation of the Company's accrual as the claims were filed in
states where the Company's liability is limited by statute.
Crown Holdings, Inc. designs, manufactures and sells packaging
products for consumer goods. The Company's primary products
include steel and aluminum cans for food, beverage, household, and
other consumer products and metal vacuum closures and caps. The
Company is headquartered in Philadelphia.
ASBESTOS UPDATE: Crown Holdings Accrues $243MM for Claims
---------------------------------------------------------
Crown Holdings, Inc.'s accrual for pending and future asbestos-
related claims and related legal costs was US$243 million as of
March 31, 2011, including US$192 million for unasserted claims,
according to the Company's quarterly report filed with the
Securities and Exchange Commission on May 4, 2011.
The Company's accrual includes estimates for probable costs for
claims through the year 2020. Potential estimated additional
claims costs of US$30 million beyond 2020 have not been included
in the Company's accrual.
Crown Holdings, Inc. designs, manufactures and sells packaging
products for consumer goods. The Company's primary products
include steel and aluminum cans for food, beverage, household, and
other consumer products and metal vacuum closures and caps. The
Company is headquartered in Philadelphia.
ASBESTOS UPDATE: Fresenius Involved in Litigation With Sealed Air
-----------------------------------------------------------------
Fresenius Medical Care AG & Co. KGaA is engaged in litigation with
Sealed Air Corporation to confirm its entitlement to
indemnification from Sealed Air for all losses and expenses
incurred by the Company relating to pre-Merger tax liabilities and
Merger-related claims.
The Company was originally formed as a result of a series of
transactions it completed under the Agreement and Plan of
Reorganization dated as of Feb. 4, 1996, by and between W.R. Grace
& Co. and Fresenius SE (Merger).
At the time of the Merger, a W.R. Grace & Co. subsidiary known as
W.R. Grace & Co.-Conn. had, and continues to have, significant
liabilities arising out of product-liability related litigation
(including asbestos-related actions), pre-Merger tax claims and
other claims unrelated to National Medical Care, Inc., which was
W.R. Grace & Co.'s dialysis business prior to the Merger.
In connection with the Merger, W.R. Grace & Co.-Conn. agreed to
indemnify the Company, FMCH, and NMC against all liabilities of
W.R. Grace & Co., whether relating to events occurring before or
after the Merger, other than liabilities arising from or relating
to NMC's operations.
W.R. Grace & Co. and certain of its subsidiaries filed for
reorganization under Chapter 11 of the U.S. Bankruptcy Code on
April 2, 2001.
Prior to and after the commencement of the Grace Chapter 11
Proceedings, class action complaints were filed against W.R. Grace
& Co. and FMCH by plaintiffs claiming to be creditors of W.R.
Grace & Co.-Conn., and by the asbestos creditors' committees on
behalf of the W.R. Grace & Co. bankruptcy estate in the Grace
Chapter 11 Proceedings, alleging among other things that the
Merger was a fraudulent conveyance, violated the uniform
fraudulent transfer act and constituted a conspiracy.
All such cases have been stayed and transferred to or are pending
before the U.S. District Court as part of the Grace Chapter 11
Proceedings.
In 2003, the Company reached agreement with the asbestos
creditors' committees on behalf of the W.R. Grace & Co. bankruptcy
estate and W.R. Grace & Co. in the matters pending in the Grace
Chapter 11 Proceedings for the settlement of all fraudulent
conveyance and tax claims against it and other claims related to
the Company that arise out of the bankruptcy of W.R. Grace & Co.
Under the terms of the settlement agreement as amended (Settlement
Agreement), fraudulent conveyance and other claims raised on
behalf of asbestos claimants will be dismissed with prejudice and
the Company will receive protection against existing and potential
future W.R. Grace & Co. related claims, including fraudulent
conveyance and asbestos claims, and indemnification against income
tax claims related to the non-NMC members of the W.R. Grace & Co.
consolidated tax group upon confirmation of a W.R. Grace & Co.
bankruptcy reorganization plan that contains such provisions.
Under the Settlement Agreement, the Company will pay a total of
US$115 million without interest to the W.R. Grace & Co. bankruptcy
estate, or as otherwise directed by the Court, upon plan
confirmation. No admission of liability has been or will be made.
The Settlement Agreement has been approved by the U.S. District
Court.
In January and February 2011, the U.S. Bankruptcy Court entered
orders confirming the joint plan of reorganization. These
confirmation orders are pending before the U.S. District Court.
Subsequent to the Merger, W.R. Grace & Co. was involved in a
multi-step transaction involving Sealed Air (f/k/a Grace Holding,
Inc.).
The Company is engaged in litigation with Sealed Air to confirm
its entitlement to indemnification from Sealed Air for all losses
and expenses incurred by the Company relating to pre-Merger tax
liabilities and Merger-related claims. Under the Settlement
Agreement, upon final confirmation of a plan of reorganization
that satisfies the conditions of the Company's payment obligation,
this litigation will be dismissed with prejudice.
Fresenius Medical Care AG & Co. KGaA is engaged primarily in
providing dialysis services and manufacturing and distributing
products and equipment for the treatment of end-stage renal
disease (ESRD). The Company is headquartered in Bad Homburg,
Germany.
ASBESTOS UPDATE: Exposure Actions Ongoing v. Transocean in Miss.
----------------------------------------------------------------
Certain of Transocean Ltd.'s subsidiaries are still subject to
asbestos complaints filed in Mississippi courts.
In 2004, several of the subsidiaries were named, along with
numerous other unaffiliated defendants, in 21 complaints filed on
behalf of 769 plaintiffs in the Circuit Courts of the State of
Mississippi and which claimed injuries arising out of exposure to
asbestos allegedly contained in drilling mud during these
plaintiffs' employment in drilling activities between 1965 and
1986.
A Special Master, appointed to administer these cases pre-trial,
subsequently required that each individual plaintiff file a
separate lawsuit, and the original 21 multi-plaintiff complaints
were then dismissed by the Circuit Courts. The amended complaints
resulted in one of the Company's subsidiaries being named as a
direct defendant in seven cases. The Company has or may have an
indirect interest in an additional 12 cases.
The complaints generally allege that the defendants used or
manufactured asbestos-containing products in connection with
drilling operations and have included allegations of negligence,
products liability, strict liability and claims allowed under the
Jones Act and general maritime law.
The plaintiffs generally seek awards of unspecified compensatory
and punitive damages. In each of these cases, the complaints have
named other unaffiliated defendant companies, including companies
that allegedly manufactured the drilling-related products that
contained asbestos.
The preliminary information available on these claims is not
sufficient to determine if there is an identifiable period for
alleged exposure to asbestos, whether any asbestos exposure in
fact occurred, the vessels potentially involved in the claims, or
the basis on which the plaintiffs would support claims that their
injuries were related to exposure to asbestos.
However, the initial evidence available would suggest that the
Company would have significant defenses to liability and damages.
In 2009, two cases that were part of the original 2004 multi-
plaintiff suits went to trial in Mississippi against unaffiliated
defendant companies, which allegedly manufactured drilling-related
products containing asbestos. The Company was not a defendant in
either of these cases.
One of the cases resulted in a substantial jury verdict in favor
of the plaintiff, but this verdict was subsequently vacated by the
trial judge on the basis that the plaintiff failed to meet its
burden of proof. While the court's decision is consistent with
the Company's general evaluation of the strength of these cases,
it has not yet been reviewed on appeal. The second case resulted
in a verdict completely in favor of the defendants.
Two cases went to trial in 2010, one resulting in a substantial
verdict for the plaintiff and one resulting in a complete verdict
for the defendants. The Company was not a defendant in either
case and both of the matters are currently on appeal.
Transocean Ltd. provides offshore contract drilling services for
oil and gas wells. At March 31, 2011, the Company owned or had
partial ownership interests in and operated 137 mobile offshore
drilling units. The Company is headquartered in Vernier,
Switzerland.
ASBESTOS UPDATE: Transocean Unit Faces 1,028 Actions at March 31
----------------------------------------------------------------
A subsidiary of Transocean Ltd., as of March 31, 2011, was a
defendant in about 1,028 asbestos-related lawsuits, according to
the Company's quarterly report filed with the Securities and
Exchange Commission on May 4, 2011.
The Company subsidiary was involved in lawsuits arising out of the
subsidiary's involvement in the design, construction and
refurbishment of major industrial complexes.
The operating assets of the subsidiary were sold and its
operations discontinued in 1989, and the subsidiary has no
remaining assets other than the insurance policies involved in its
litigation and, either directly or indirectly as the beneficiary
of a qualified settlement fund, funding from settlements with
insurers, assigned rights from insurers and "coverage-in-place"
settlement agreements with insurers, and funds received from the
commutation of certain insurance policies.
The subsidiary has been named as a defendant, along with numerous
other companies, in lawsuits alleging bodily injury or personal
injury as a result of exposure to asbestos.
Some of these lawsuits include multiple plaintiffs and the Company
estimates that there are about 2,438 plaintiffs in these lawsuits.
For many of these lawsuits, the Company has not been provided with
sufficient information from the plaintiffs to determine whether
all or some of the plaintiffs have claims against the subsidiary,
the basis of any such claims, or the nature of their alleged
injuries.
The first of the asbestos-related lawsuits was filed against this
subsidiary in 1990. Through March 31, 2011, the amounts expended
to resolve claims, including both defense fees and expenses and
settlement costs, have not been material, all known deductibles
have been satisfied or are inapplicable, and the subsidiary's
defense fees and expenses and costs of settlement have been met by
insurance made available to the subsidiary.
The subsidiary continues to be named as a defendant in additional
lawsuits.
Transocean Ltd. provides offshore contract drilling services for
oil and gas wells. At March 31, 2011, the Company owned or had
partial ownership interests in and operated 137 mobile offshore
drilling units. The Company is headquartered in Vernier,
Switzerland.
ASBESTOS UPDATE: 16 Cases Pending v. Parker Drilling at March 31
----------------------------------------------------------------
There were about 16 asbestos lawsuits at March 31, 2011, in which
Parker Drilling Company is one of many defendants, according to
the Company's quarterly report filed with the Securities and
Exchange Commission on May 5, 2011.
These lawsuits have been filed in the United States in the State
of Mississippi.
Parker Drilling Company provides contract drilling and drilling-
related services with extensive experience and expertise in
drilling geologically difficult wells and in managing the
logistical and technological challenges of operating in remote,
harsh and ecologically sensitive areas. The Company is
headquartered in Houston.
ASBESTOS UPDATE: Asbestos Cases Pending Against California Water
----------------------------------------------------------------
From time to time, California Water Service Group has been named
as a co-defendant in several asbestos related lawsuits, according
to the Company's annual report filed with the Securities and
Exchange Commission on May 5, 2011.
Several of these cases against the Company have been dismissed
without prejudice. In other cases, the Company's contractors and
insurance policy carriers have settled the cases with no effect on
the Company's financial statements.
California Water Service Group's business is conducted through its
operating subsidiaries. The bulk of the business consists of the
production, purchase, storage, treatment, testing, distribution
and sale of water for domestic, industrial, public and irrigation
uses, and for fire protection. The Company is based in San Jose,
Calif.
ASBESTOS UPDATE: Rockwell Automation Subject to Exposure Actions
----------------------------------------------------------------
Rockwell Automation, Inc. and its subsidiaries have been named as
defendants in lawsuits alleging personal injury as a result of
exposure to asbestos that was used in certain components of the
Company's products many years ago.
Currently there are a few thousand claimants in lawsuits that name
the Company and its units as defendants, together with hundreds of
other companies. In some cases, the claims involve products from
divested businesses, and the Company is indemnified for most of
the costs.
However, the Company has agreed to defend and indemnify asbestos
claims associated with products manufactured or sold by its former
Dodge mechanical and Reliance Electric motors and motor repair
services businesses prior to their divestiture by the Company,
which occurred on Jan. 31, 2007.
The Company is also responsible for half of the costs and
liabilities associated with asbestos cases against the former
Rockwell International Corporation's divested measurement and flow
control business.
The Company has maintained insurance coverage that it said it
believes covers indemnity and defense costs, over and above self-
insured retentions, for claims arising from its former Allen-
Bradley subsidiary.
Following litigation against Nationwide Indemnity Company and
Kemper Insurance, the insurance carriers that provided liability
insurance coverage to Allen-Bradley, the Company entered into
separate agreements on April 1, 2008 with both insurance carriers
to further resolve responsibility for ongoing and future coverage
of Allen-Bradley asbestos claims.
In exchange for a lump sum payment, Kemper bought out its
remaining liability and has been released from further insurance
obligations to Allen-Bradley. Nationwide entered into a cost
share agreement with the Company to pay the substantial majority
of future defense and indemnity costs for Allen-Bradley asbestos
claims.
The Company said it believes that this arrangement with Nationwide
will continue to provide coverage for Allen-Bradley asbestos
claims throughout the remaining life of the asbestos liability.
Rockwell Automation, Inc. is an industrial automation company that
serves automotive, food and beverage (including dairy), personal
care, life sciences, oil and gas, mining, and paper and pulp
markets. The Company is based in Milwaukee.
ASBESTOS UPDATE: Chemtura Subject to Potential Exposure Actions
---------------------------------------------------------------
Chemtura Corporation may be subject to claims and litigation
relating to product liability claims, including claims related to
its current products and asbestos-related claims concerning
premises and historic products of its corporate affiliates and
predecessors.
The Company said it believes the claims relating to the period
before the filing of the Chapter 11 cases are subject to discharge
pursuant to the Plan and will be satisfied, to the extent allowed
by the Bankruptcy Court, solely from the Disputed Claims Reserve.
Chemtura Corporation operates in a wide variety of end-use
industries, including agriculture, automotive, construction,
electronics, lubricants, packaging, plastics for durable and non-
durable goods, pool and spa chemicals, and transportation. The
Company is headquartered in Middlebury, Conn.
ASBESTOS UPDATE: 3M Company Posts $123MM Liabilities at March 31
----------------------------------------------------------------
3M Company recorded asbestos/respirator mask liabilities of
US$123 million as of March 31, 2011, compared with US$126 million
as of Dec. 31, 2010, according to the Company's quarterly report
filed with the Securities and Exchange Commission on May 5, 2011.
The Company recorded asbestos/respirator mask insurance
receivables of US$121 million as of March 31, 2011, compared with
US$122 million as of Dec. 31, 2010.
3M Company is a diversified technology company with a global
presence in the following businesses: Industrial and
Transportation; Health Care; Display and Graphics; Consumer and
Office; Safety, Security and Protection Services; and Electro and
Communications. The Company is based in St. Paul, Minn.
ASBESTOS UPDATE: 3M Company Still Subject to Respirator Actions
---------------------------------------------------------------
3M Company, as of March 31, 2011, is a named defendant, with
multiple co-defendants, in numerous lawsuits in various courts
that purport to represent about 2,200 individual claimants
compared to about 2,148 individual claimants with actions pending
at Dec. 31, 2010.
Most of the lawsuits and claims resolved by and currently pending
against the Company allege use of some of the Company's mask and
respirator products and seek damages from the Company and other
defendants for alleged personal injury from workplace exposures to
asbestos, silica, coal mine dust or other occupational dusts found
in products manufactured by other defendants or generally in the
workplace.
A minority of claimants generally allege personal injury from
occupational exposure to asbestos from products previously
manufactured by the Company, which are often unspecified, as well
as products manufactured by other defendants, or occasionally at
Company premises.
As a result of the costs of aggressively defending itself and the
greater cost of resolving claims of persons with malignant
conditions, the Company increased its reserves in the first
quarter of 2011 for respirator mask/asbestos liabilities by
US$4 million.
As of March 31, 2011, the Company's receivable for insurance
recoveries related to the respirator mask/asbestos litigation was
US$121 million. The Company increased its receivables for
insurance recoveries by US$1 million in the first quarter of 2011
related to this litigation.
3M Company is a diversified technology company with a global
presence in the following businesses: Industrial and
Transportation; Health Care; Display and Graphics; Consumer and
Office; Safety, Security and Protection Services; and Electro and
Communications. The Company is based in St. Paul, Minn.
ASBESTOS UPDATE: 3M Facing Declaratory Judgment Action in Minn.
---------------------------------------------------------------
3M Company, since Jan. 5, 2007, has been facing an asbestos-
related declaratory judgment action filed on behalf of two of its
insurers -- Continental Casualty and Continental Insurance Co. -
both part of the Continental Casualty Group -- disclaiming
coverage for respirator mask/asbestos claims.
These insurers represent about US$14 million of the US$121 million
insurance recovery receivable. The action, pending in the
District Court in Ramsey County, Minn., seeks declaratory judgment
regarding coverage provided by the policies and the allocation of
covered costs among the policies issued by the various insurers.
The action named, in addition to the Company, over 60 of the
Company's insurers. This action is similar in nature to an action
filed in 1994 with respect to breast implant coverage, which
ultimately resulted in the Minnesota Supreme Court's ruling of
2003 that was largely in the Company's favor. The plaintiff
insurers have served an amended complaint that names some
additional insurers and deletes others.
A significant number of the insurer defendants named in the
amended complaint have been dismissed because of settlements they
have reached with the Company regarding the matters at issue in
the lawsuit. The case is currently in the discovery phase.
Trial is scheduled to begin in June 2012.
3M Company is a diversified technology company with a global
presence in the following businesses: Industrial and
Transportation; Health Care; Display and Graphics; Consumer and
Office; Safety, Security and Protection Services; and Electro and
Communications. The Company is based in St. Paul, Minn.
ASBESTOS UPDATE: 3M Co. Posts $31MM Aearo Liability at March 31
---------------------------------------------------------------
3M Company, through its Aearo Technologies subsidiary, as of
March 31, 2011, has recorded US$31 million as the best estimate of
the probable liabilities for product liabilities and defense costs
related to current and future Aearo-related asbestos and silica-
related claims.
On April 1, 2008, a subsidiary of the Company purchased the stock
of Aearo Holding Corp., the parent of Aearo. Aearo manufactures
and sells various products, including personal protection
equipment, such as eye, ear, head, face, fall and certain
respiratory protection products.
As of March 31, 2011, Aearo and/or other companies that previously
owned and operated Aearo's respirator business -- American Optical
Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation --
are named defendants, with multiple co-defendants, including the
Company, in numerous lawsuits in various courts in which
plaintiffs allege use of mask and respirator products and seek
damages from Aearo and other defendants for alleged personal
injury from workplace exposures to asbestos, silica-related, or
other occupational dusts found in products manufactured by other
defendants or generally in the workplace.
Responsibility for legal costs, as well as for settlements and
judgments, is currently shared in an informal arrangement among
Aearo, Cabot, American Optical Corporation and a subsidiary of
Warner Lambert and their insurers (Payor Group).
Liability is allocated among the parties based on the number of
years each company sold respiratory products under the "AO Safety"
brand and/or owned the AO Safety Division of American Optical
Corporation and the alleged years of exposure of the individual
plaintiff.
Aearo's share of the contingent liability is further limited by an
agreement entered into between Aearo and Cabot on July 11, 1995.
This agreement provides that, so long as Aearo pays to Cabot an
annual fee of US$400,000, Cabot will retain responsibility and
liability for, and indemnify Aearo against, asbestos and silica-
related product liability claims for respirators manufactured
prior to July 11, 1995.
Because the date of manufacture for a particular respirator
allegedly used in the past is often difficult to determine, Aearo
and Cabot have applied the agreement to claims arising out of the
alleged use of respirators while exposed to asbestos or silica or
products containing asbestos or silica prior to Jan. 1, 1997.
With these arrangements in place, Aearo's potential liability is
limited to exposures alleged to have arisen from the use of
respirators while exposed to asbestos, silica or other
occupational dusts on or after Jan. 1, 1997.
To date, Aearo has elected to pay the annual fee. Aearo could
potentially be exposed to additional claims for some part of the
pre-July 11, 1995 period covered by its agreement with Cabot if
Aearo elects to discontinue its participation in this arrangement,
or if Cabot is no longer able to meet its obligations in these
matters.
3M Company is a diversified technology company with a global
presence in the following businesses: Industrial and
Transportation; Health Care; Display and Graphics; Consumer and
Office; Safety, Security and Protection Services; and Electro and
Communications. The Company is based in St. Paul, Minn.
ASBESTOS UPDATE: CenterPoint, Units Still Facing Exposure Cases
---------------------------------------------------------------
CenterPoint Energy, Inc. or its subsidiaries have been named,
along with numerous others, as a defendant in lawsuits filed by a
number of individuals who claim injury due to exposure to
asbestos.
Some facilities owned by the Company contain or have contained
asbestos insulation and other asbestos-containing materials. Some
of the claimants have worked at locations owned by the Company,
but most existing claims relate to facilities previously owned by
the Company's subsidiaries.
The Company anticipates that additional claims like those received
may be asserted in the future. In 2004, the Company sold its
generating business, to which most of these claims relate, to
Texas Genco LLC, which is now known as NRG Texas LP.
Under the terms of the arrangements regarding separation of the
generating business from the Company and its sale to NRG Texas LP,
ultimate financial responsibility for uninsured losses from claims
relating to the generating business has been assumed by NRG Texas
LP, but the Company has agreed to continue to defend such claims
to the extent they are covered by insurance maintained by the
Company, subject to reimbursement of the costs of such defense
from NRG Texas LP.
CenterPoint Energy, Inc.'s operating subsidiaries own and operate
electric transmission and distribution facilities, natural gas
distribution facilities, interstate pipelines and natural gas
gathering, processing and treating facilities. The Company is
headquartered in Houston.
ASBESTOS UPDATE: American Int'l. Posts $2.199-Bil. Net Liability
----------------------------------------------------------------
American International Group, Inc.'s net asbestos liability for
unpaid claim and claim adjustment expense was US$2.199 billion for
the three months ended March 31, 2011, compared with US$1.105
billion during the three months ended March 31, 2010.
The Company's net asbestos liability for unpaid claims and claims
adjustment expense was US$2.223 billion for the year ended
Dec. 31, 2010, compared with US$1.151 billion for the year ended
Dec. 31, 2009. (Class Action Reporter, May 6, 2011)
The Company's gross asbestos liability for unpaid claim and claim
adjustment expense was US$5.472 billion for the three months ended
March 31, 2011, compared with US$3.049 billion for the three
months ended March 31, 2010.
The estimate in the net IBNR included in the liability for unpaid
claims and claims adjustment expense relating to asbestos claims
was US$1.907 billion for the three months ended March 31, 2011,
compared with US$838 million for the three months ended March 31,
2010.
The estimate in the gross IBNR included in the liability for
unpaid claims and claims adjustment expense relating to asbestos
claims was US$4.383 billion for the three months ended March 31,
2011, compared with US$2.016 billion for the three months ended
March 31, 2010.
American International Group, Inc. is an international insurance
organization with operations in more than 130 countries and
jurisdictions. The AIG companies serve commercial, institutional
and individual customers through one of the most extensive
worldwide property-casualty networks of any insurer. The Company
is headquartered in New York.
ASBESTOS UPDATE: American Int'l. Posts 5,138 Claims at March 31
---------------------------------------------------------------
American International Group, Inc. recorded 5,138 asbestos-related
claims during the three months ended March 31, 2011, compared with
5,208 claims during the three months ended March 31, 2010.
The Company recorded 4,933 asbestos claims for the year ended
Dec. 31, 2010, compared with 5,417 claims for the year ended
Dec. 31, 2009. (Class Action Reporter, May 6, 2011)
During the three months ended March 31, 2011, the Company recorded
376 claims opened, 20 claims settled, and 151 claims dismissed or
otherwise resolved. During the three months ended March 31, 2010,
the Company recorded 133 claims opened, 55 claims settled, and 287
claims dismissed or otherwise resolved.
The Company's net asbestos-related survival ratio was 10 years
during the three months ended March 31, 2011, compared with
3.9 years during the three months ended March 31, 2010.
The Company's gross asbestos-related survival ratio was nine years
during the three months ended March 31, 2011, compared with
4.5 years during the three months ended March 31, 2010.
American International Group, Inc. is an international insurance
organization with operations in more than 130 countries and
jurisdictions. The AIG companies serve commercial, institutional
and individual customers through one of the most extensive
worldwide property-casualty networks of any insurer. The Company
is headquartered in New York.
ASBESTOS UPDATE: Sunoco Subject to Potential Exposure Lawsuits
--------------------------------------------------------------
Legal and administrative proceedings are pending or may be brought
against Sunoco, Inc. arising out of its current and past
operations, including allegations of exposures of third parties to
toxic substances (such as benzene or asbestos) and general
environmental claims.
No significant asbestos-related matters were discussed in the
Company's quarterly report filed with the Securities and Exchange
Commission on May 5, 2011.
Sunoco, Inc. is principally a petroleum refiner and marketer and
chemicals manufacturer with interests in logistics and cokemaking.
The Company's cokemaking operations currently are conducted in
Virginia, Indiana, Ohio, Illinois and Vitoria, Brazil. The
Company is headquartered in Philadelphia.
ASBESTOS UPDATE: M&F Posts $20MM Pneumo Abex Charges in 1stQ
------------------------------------------------------------
M & F Worldwide Corp., during the three months ended March 31,
2011, recorded a charge of US$20 million as a result of payment
obligations regarding the Pneumo Abex LLC settlement.
The Company's non-operating contingent claims were generally
associated with its indirect, wholly owned, non-operating
subsidiary, Pneumo Abex. Substantially all of these contingent
claims are the financial responsibility of third parties and
include various environmental and asbestos-related claims.
One of those third parties, Pepsi-Cola Metropolitan Bottling
Company, Inc. (Original Indemnitor), provides indemnification for
certain contingent claims. Another, Cooper Industries, LLC
(Friction Guarantor), assumed all liability for and provided
indemnification against substantially all asbestos-related claims
asserted against Pneumo Abex after August 1998 and not indemnified
by the Original Indemnitor.
In 1995, MCG Intermediate Holdings Inc., the Company and two of
its subsidiaries entered into a transfer agreement (Transfer
Agreement), which required MCGI, an indirect subsidiary of
Holdings, to undertake certain administrative and funding
obligations with respect to certain categories of contingent
claims. Pneumo Abex was obligated to reimburse the amounts so
funded only when it received amounts under related indemnification
and insurance agreements.
The Transfer Agreement permitted Pneumo Abex to require MCGI to
fund 50% of the costs of resolving certain indemnification and
insurance disputes involving Pneumo Abex.
As a result of coverage agreements with various insurance
carriers, payments by the Original Indemnitor and funding payments
under the Transfer Agreement, all but an immaterial amount of
Pneumo Abex's monthly expenditures for its contingent claims were
managed and paid by others through March 31, 2011.
In February 2011, the Company, an affiliate of Holdings, the
Friction Guarantor and certain affiliates of the Friction
Guarantor entered into an agreement (Settlement Agreement) to
settle various claims relating to the Friction Guarantor's
indemnification obligations.
Under the Settlement Agreement, on April 5, 2011, the Company
transferred all of the membership interests in Pneumo Abex to a
Delaware statutory trust (Settlement Trust), and the Settlement
Trust became the sole owner and managing member of Pneumo Abex.
The Company also contributed a total of US$15 million to Pneumo
Abex and paid US$5 million to the Settlement Trust.
Concurrently, the Friction Guarantor paid US$250 million to the
Settlement Trust and gave it a promissory note in the amount of
US$57.5 million, subject to certain adjustments, payable over four
years and guaranteed by certain parent entities of the Friction
Guarantor.
As a result of these transactions, an indemnity and funding
arrangement from Mafco Worldwide with respect to Pneumo Abex's
contingent claims terminated, and the Company received an
indemnity from the Settlement Trust against any liability for the
matters formerly subject to the Friction Guarantor's indemnity.
Pneumo Abex, now owned by the Settlement Trust, will continue to
resolve asbestos-related claims asserted against it in the tort
system.
M & F Worldwide Corp. is a holding company that conducts its
operations through its indirect wholly owned subsidiaries, Harland
Clarke Holdings Corp. and Mafco Worldwide Corporation. The
Company has organized its business and corporate structure along
the following four business segments: Harland Clarke, Harland
Financial Solutions, Scantron and Licorice Products. The Company
is headquartered in New York.
ASBESTOS UPDATE: AMETEK Still Involved in Exposure Actions
----------------------------------------------------------
AMETEK, Inc., including its subsidiaries, has been named as a
defendant in a number of asbestos-related lawsuits.
Many of these lawsuits either relate to businesses that were
acquired by the Company and do not involve products that were
manufactured or sold by the Company or relate to previously owned
businesses of the Company which are under new ownership.
In connection with many of these lawsuits, the sellers or new
owners of such businesses, as the case may be, have agreed to
indemnify the Company against these claims (Indemnified Claims).
The Indemnified Claims have been tendered to, and are being
defended by, such sellers and new owners.
To date, no judgments have been rendered against the Company as a
result of any asbestos-related lawsuit.
AMETEK, Inc.'s Electronic Instruments Group makes monitoring,
calibration, and display devices for the aerospace, heavy
equipment, power generation, and other industrial markets. Its
Electromechanical Group makes air-moving electric motors for
vacuum cleaners and other floor care equipment, blowers and heat
exchangers, connectors for moisture-proof applications, and
specialty metals for the aerospace, mass transit, medical, and
office products markets. The Company is headquartered in Berwyn,
Pa.
ASBESTOS UPDATE: 17 Claims Pending v. Ladish Co. in Five States
---------------------------------------------------------------
Ladish Co., Inc., as of May 5, 2011, has a total of 17 individual
asbestos claims -- nine claims pending in Mississippi, one claim
pending in Wisconsin, one claim pending in Missouri, one claim
pending in Georgia and five individual claims pending in Illinois.
The Company has been named as a defendant in a number of asbestos
cases.
The Company has never manufactured or processed asbestos. The
Company's exposure to asbestos involves products the Company
purchased from third parties.
Ladish Co., Inc. engineers, produces and markets high-strength,
high-technology forged and cast metal components for a wide
variety of load-bearing and fatigue-resisting applications in the
jet engine, aerospace and industrial markets. The Company is
headquartered in Cudahy, Wis.
ASBESTOS UPDATE: Claims v. Harsco Decrease to 19,293 at March 31
----------------------------------------------------------------
Harsco Corporation, at March 31, 2011, faced 19,293 pending
asbestos personal injury claims, according to the Company's
quarterly report filed with the Securities and Exchange Commission
on May 5, 2011.
There were about 19,316 pending asbestos personal injury claims
filed against the Company. (Class Action Reporter, March 18,
2011)
The Company has been named as one of many defendants (about 90 or
more in most cases) in legal actions alleging personal injury from
exposure to airborne asbestos over the past several decades. In
their suits, the plaintiffs have named as defendants many
manufacturers, distributors and installers of numerous types of
equipment or products that allegedly contained asbestos.
The Company has never been a producer, manufacturer or processor
of asbestos fibers. Any component within a Company product that
may have contained asbestos would have been purchased from a
supplier.
The majority of the asbestos complaints pending against the
Company have been filed in New York. Almost all of the New York
complaints contain a standard claim for damages of US$20 million
or US$25 million against the about 90 defendants, regardless of
the individual plaintiff's alleged medical condition, and without
specifically identifying any Company product as the source of
plaintiff's asbestos exposure.
Of the 19,293 cases at March 31, 2011, about 18,786 are pending in
the New York Supreme Court for New York County in New York State.
The other claims, totaling 507, are filed in various counties in a
number of state courts, and in certain Federal District Courts
(including New York), and those complaints generally assert lesser
amounts of damages than the New York State court cases or do not
state any amount claimed.
As of March 31, 2011, the Company has obtained dismissal by
stipulation, or summary judgment prior to trial, in 25,381 cases.
At March 31, 2011, the Company has been listed as a defendant in
1,042 Active or In Extremis asbestos cases in New York County.
The Court's Order has been challenged by plaintiffs.
Harsco Corporation is a diversified, multinational provider of
industrial services and engineered products. The Company's
operations fall into four reportable segments: Harsco
Infrastructure, Harsco Metals & Minerals, Harsco Rail and Harsco
Industrial. The Company is headquartered in Camp Hill, Pa.
ASBESTOS UPDATE: Report Says Most Seoul Classrooms Contaminated
---------------------------------------------------------------
A Seoul Metropolitan Office of Education report, which was
released last May 17, 2011, suggest that nearly 90% of classrooms
in Seoul, South Korea, are suspected of having asbestos-containing
materials, The Chosunilbo reports.
According to the report, out of some 54,000 pre-school, primary
and secondary school classrooms in the city, about 87.8% were
found to have been built with materials highly likely to contain
asbestos.
More than 89% of the hazardous materials were used in ceilings,
while the rest was put to use in partitions and floors.
Asbestos particles were also found in dust at several schools.
ASBESTOS UPDATE: 2 Scott Depot Men Sue 104 Firms in Kanawha Court
-----------------------------------------------------------------
James Harold Cyrus and Michael Louis Kelly, both of Scott Depot,
W.Va., filed an asbestos lawsuit against 104 defendant
corporations in Kanawha Circuit Court, W.Va., The West Virginia
Record reports.
According to the lawsuit, the plaintiffs' decedent, Wade Hampton
Kelly, was diagnosed with stomach cancer. The suit said Wade
Hampton Kelly died on April 3, 2009. It added that Wade Hampton
Kelly smoked one pack of cigarettes daily from 1941 until 1962,
but then quit.
The plaintiffs claim Wade Hampton Kelly was employed in West
Virginia from 1958 until 1983 and was exposed to asbestos during
that time. The plaintiffs seek a jury trial to resolve all issues
involved. They are being represented by Bronwyn I. Rinehart, Esq.
Kanawha Circuit Court Case No. 11-C-542 has been assigned to a
visiting judge.
ASBESTOS UPDATE: York Action v. Various Rail Firms Filed in Texas
-----------------------------------------------------------------
On behalf of her late husband Ernest B. York Jr., Elouise York, on
May 5, 2011, filed an asbestos lawsuit against certain
predecessors of BNSF Railway in Galveston County District Court,
Tex., The Southeast Texas Record reports.
The lawsuit states that Mr. York came into contact with "dusty"
asbestos-containing products as an employee of Fort Worth & Denver
Railroad Co., Burlington-Rock Island Railroad Co., Burlington
Northern Railroad and Burlington Northern & Santa Fe Railway. ,
but was unaware of the potential health risks and dangers they
reportedly posed.
Mr. York worked in the railroad industry from 1957 to 1998.
According to court papers, he worked on steam and diesel engines
which traveled and operated between terminals in Teague and
Galveston as a brakeman and conductor.
Mrs. York says Mr. York's duties and responsibilities required him
to work in the vicinity of toxic substances including asbestos and
asbestos-containing products. He was diagnosed with lung cancer
sometime around 2008 and died last Nov. 24, 2010. His estate
consequently seeks unspecified monetary damages.
Roven-Kaplan LLP represents Mrs. York and and Galveston County
56th District Court Judge Lonnie Cox is presiding over Case No.
11-cv-0739.
ASBESTOS UPDATE: Staffordshire Painter's Death Linked to Hazard
---------------------------------------------------------------
An inquest at North Staffordshire, England, heard that the death
of Frank Skidmore, a 45-year-old former painter and decorator, was
related to exposure to asbestos, The Sentinel reports.
Mr. Skidmore, who died at home of March 1, 2011, had completed a
two-year training scheme in painting and decorating when he was a
teenager, working with artex containing asbestos.
Mr. Skidmore left school at the age of 14 and worked in a car-
spraying garage after completing the training scheme, but in his
later years he became a forklift truck driver for ANC in
Chesterton
In the years when his condition was undiagnosed, Mr. Skidmore did
not get any sickness benefit and had to live on GBP40 a week, but
when it all came to light he got a large settlement.
Deputy coroner for North Staffordshire Anthony Curzon recorded the
cause of death as a industrial disease. He said, "Post-mortem
showed the cancer in his lung, liver, kidney, spleen and tumorous
deposits in his spine.
"He was diagnosed with the mesothelioma, a rare type of cancer
found in people who have been exposed to asbestos, four years
before his death. The final thing which affected him was
bronchial pneumonia. He is believed to have come into contact
with asbestos while training as a painter and decorator in his
teenage years."
ASBESTOS UPDATE: Dorset Harbormaster's Death Linked to Exposure
---------------------------------------------------------------
An inquest at County Hall in Dorchester, England, heard that the
March 10, 2011 death of 82-year-old harbormaster Derek Alan
Watson, was related to workplace exposure to asbestos, the Dorset
Echo reports.
Mr. Watson died at the Joseph Weld Hospice in Dorchester, England.
He died from a pulmonary edema and bronchial pneumonia caused by
mesothelioma.
An inquest into Mr. Watson's death heard that he worked from the
age of 22 to 23 at a garden nursery in Buckinghamshire, where he
was exposed to asbestos as he constructed boilers and
conservatories.
Dr. Gerrard Phillips, a respiratory consultant at Dorset County
Hospital, said Mr. Watson was diagnosed with mesothelioma in 2009
after experiencing abdominal problems since 2006. Coroner's
officer Andrew Nineham said that Mr. Watson's son Douglas had
informed him of his father's employment history.
Douglas said that as a young man Mr. Watson worked at a nursery in
Gerrards Cross, Buckinghamshire, where he insulated the boilers by
plastering on asbestos.
West Dorset coroner Michael Johnston said, "It is clear from the
background history that Mr. Watson had erected his greenhouses and
installed the boilers and had himself lagged these using dry
asbestos. He appears to have both inhaled and probably swallowed
the asbestos fibers. Many years later, approximately 50 years, he
has developed this cancer which in a very high proportion of cases
is attributable to asbestos exposure."
Mr. Johnston recorded a verdict that Mr. Watson died from an
industrial disease.
ASBESTOS UPDATE: Swan Hunter Worker's Death Related to Exposure
---------------------------------------------------------------
An inquest heard that the death of Leslie James Clingan, who had
worked for shipbuilding firm Swan Hunter and the Merchant Navy,
was related to exposure to asbestos, the News & Star reports.
Mr. Clingan died at home on May 21, 2010, at the age of 72. The
inquest heard that he died of malignant mesothelioma. He was
diagnosed in 2006.
An underlying problem which would have contributed to, but not
caused Mr. Clingan's death, was heart disease, added David
Roberts, coroner for north and west Cumbria.
Mr. Clingan worked for Swan Hunter, in Newcastle, in the 1950s.
He served an apprenticeship in marine engineering where he worked
in confined spaces alongside other tradesmen. He was not required
to handle asbestos but worked in close proximity to the laggers
who did work with the substance.
In a statement from the late Mr. Clingan, he said they wore
overalls but there were no shower facilities or protection masks.
For about 10 years, he then worked as a marine engineer in the
Merchant Navy where most of his time was spent in the engine room.
He was required to carry out repairs, about once a month, which
involved removing and then replacing asbestos lagging.
Later in life, Mr. Clingan worked for a number of other companies,
including at Sellafield, from where he retired as a fitter at the
age of 60.
ASBESTOS UPDATE: Granada Theatres Worker Seeks Help for Payout
--------------------------------------------------------------
Karen Jones (nee Higginbottom), who used to worked at the Granada
Theatres in Frogmore, England, seeks help in her case to claim
compensation related to asbestos exposure, Mesothelioma.com
reports.
If Mrs. Jones' suspicions of occupational asbestos exposure can be
proven, she would be able to claim from a government fund for
malignant mesothelioma sufferers.
Mrs. Jones, a 54-year-old mesothelioma patient, believes that she
contracted this cancer caused almost exclusively by asbestos
exposure while working at the Granada Theatres in Frogmore,
England, from 1974 to 1981.
Mrs. Jones believes that she was exposed to carcinogenic asbestos
fibers during a renovation that was carried out floor-by-floor in
order to convert the existing open-plan arrangement to separate
offices.
It is also possible that Mrs. Jonese was exposed to asbestos while
working as a cleaner at St. Albans City Hospital in 1973.
In an effort to determine the time and location of exposure, the
British National Asbestos Helpline (NAH) has made an appeal on
Mrs. Jones' behalf for any information regarding the use of
asbestos at the Granada Theatres or Handley Page site between the
late 1970s and early 1980s, as well as any witness with knowledge
of asbestos-containing materials present at St. Albans City
Hospital.
The NAH is particularly interested in locating Chris Metcalfe,
Janet Kahn and Pat Frazer who worked alongside Mrs. Jones.
ASBESTOS UPDATE: Hardie to Slash Fund Contribution by Over $11MM
----------------------------------------------------------------
James Hardie Industries SE said an internal restructuring will
lead the Company to cut its contribution to the asbestos injuries
fund in 2012 -- possibly by more than US$11 million -- The Sydney
Morning Herald reports.
The cut will come because of an AU$32.6 million tax charge the
Company expects as a result of the restructuring, which will
facilitate a new capital management policy that would see the
Company resume paying dividends later in 2011.
Under the new policy, the Company said it would pay 20% to 30% of
profits after tax in ordinary dividends, beginning with the
release of the Company's first half results in fiscal 2012.
The Company said it would also buy-back on-market up to 5% of the
Company's issued capital over the next 12 months. At the
Company's closing share price on May 16, 2011 of AU$5.67, the buy-
back would cost the Company around AU$124 million.
The internal reorganization would simplify the Company's corporate
structure to facilitate the capital management policy. The
Company said it would incur a tax charge of around AU$32.6 million
as a result of the restructure, which would be included in fiscal
2011 accounts and payable in fiscal 2012.
The Company said in its statement, "This charge will not impact
the contribution to the Asbestos Injuries Compensation Fund (AICF)
in July 2011, although it is likely to reduce the contribution to
the AICF in July 2012 by up to US$11.4 million."
The Company said the restructure was "to facilitate the ability to
access and distribute surplus cash flows of the Company's
operating subsidiaries more efficiently (including for the purpose
of making periodic contributions to the AICF)."
The Company said its unaudited net debt at March 31 was
US$40.4 million, down US$94.4 million from the corresponding point
a year earlier.
ASBESTOS UPDATE: 2 Lawyers File Brief in 5th Cir. Fraud Case
------------------------------------------------------------
On May 13, 2011, William Guy, Esq., and Thomas Brock, Esq., who
where found to have committed fraud against Illinois Central
Railroad, filed a brief with the U.S. Court of Appeals for the
Fifth Circuit in New Orleans, LegalNewsline.com reports.
Mr. Guy and Mr. Brock say a federal court had no jurisdiction over
a fraud case filed against them by Illinois Central Railroad and
that the Company did not file the suit before the statute of
limitations tolled. Another issue in the appeal is the award of
more than US$500,000 in attorneys fees to Illinois Central.
Illinois Central's complaints alleged the Company would not have
been obligated to pay US$210,000 in settlements had it known that
Willie Harried joined a mass action, titled Cosey, in 1995 and
Warren Turner in 1996.
Mr. Harried and Mr. Turner both filed suit against Illinois
Central in 2001. The complaints say Mr. Guy and Mr. Brock knew
their clients had taken part in the mass action and failed to
disclose it
Mr. Guy and Mr. Brock say Illinois Central filed its fraud lawsuit
in federal court only because of adverse rulings from the
Mississippi Supreme Court in related cases. They also says the
Company disclosed that it knew about the alleged harm by Feb. 13,
2004, while investigating possible fraud in another mass action,
yet did not inform them.
The lawsuit was filed Jan. 31, 2007, against Mr. Turner, and the
attorneys were added as defendants later that year.
ASBESTOS UPDATE: CSX Wants to Speak With Former Peirce Clients
--------------------------------------------------------------
CSX Transportation, Inc., a company that has filed a fraud lawsuit
against the Pittsburgh-based law firm of Peirce, Raimond and
Coulter, said it has the right to speak with the firm's former
clients, LegalNewsline.com reports.
CSX says the Peirce firm has no asbestosis claims remaining
against it in West Virginia and that the attorney-client
privileges between the firm and its clients are no longer active.
CSX claims the Peirce firm conspired with radiologist Ray Harron
to fabricate asbestos claims.
In April 2011, the Peirce firm asked U.S. District Judge Frederick
Stamp to prohibit contact between CSX and its former clients, as
well as obtain a list of those already contacted.
Judge Stamp once closed the case, but the U.S. Court of Appeals
for the Fourth Circuit ruled that CSX did not miss the statute of
limitations when filing the case. Discovery is stayed while
Robert Peirce, Esq., pursues an appeal of that decision to the
U.S. Supreme Court.
CSX's complaint said Mr. Peirce hid nine fraudulent claims among
other lawsuits filed by the law firm in West Virginia. The
complaint noted that Mr. Harron, who was found by a Texas federal
judge in 2005 to have created fraudulent silica claims, lost his
license in 2007. Many of the Peirce firm's diagnoses were made by
Mr. Harron.
The nine lawsuits were filed and settled from 2000 to 2006. Judge
Stamp ruled the four-year statute began when the Peirce firm began
targeting CSX.
Allegations arising out of Mr. Peirce's representation of Earl
Baylor were found to have been timely made. One of the lawsuits
CSX tried to include in its second amended complaint was filed
with the Baylor claim.
After the case returned to Judge Stamp, CSX claim handler Greg
Howard contacted Donald Wiley, who filed one of the suits CSX
planned to add to the complaint. Mr. Wiley told Mr. Howard that
Mr. Peirce still represented him, and the conversation ended. Mr.
Wiley reported the contact to Mr. Peirce, who asked Judge Stamp to
prohibit further contacts.
On April 6, 2011, the attorney representing the Peirce firm wrote,
"To leave the clients in an un-counseled situation in which
admissions related to the clients' past, present or future claims
could be made would, we submit, be a dereliction of the Peirce
Firm's duties and obligations to those clients." He wrote that
CSX must contact clients through the firm, rather than directly.
The Peirce firm's clients had signed a Power of Attorney Agreement
that CSX argues does not prevent it from talking to former
clients.
In July 2010, Circuit Judge Arthur Recht ordered the dismissal of
1,400 asbestos claims. He had implemented new rules requiring
plaintiffs to certify they were aware of their lawsuits, that
their claims were "well-founded in fact" and that they wished to
continue pursuing litigation.
ASBESTOS UPDATE: CSX's Reply in Simpkins' Lawsuit Due June 17
-------------------------------------------------------------
CSX Transportation, Inc.'s reply in an asbestos case ongoing at
the Illinois Supreme Court and filed on behalf of Annette Simpkins
is due on June 17, 2011, The Madison/St. Clair Record reports.
The case is ready for argument in a term starting in September.
John Simmons, Esq., said that businesses that expose families of
employees to asbestos deserve equal justice with drivers who run
over pedestrians and researchers who release anthrax. He and
Timothy Eaton, Esq., drew the comparisons on May 6, 2011 in
asserting a duty on the part of employers to warn families about
hazardous materials.
The lawyers urged the Justices to affirm Fifth District appeals
judges in Mount Vernon, who ruled that Cynthia Simpkins could
pursue a claim against CSX Transportation. Her late mother,
Annette Simpkins, sued 72 defendants in 2007, in Madison County.
Annette Simpkins sued CSX as successor to Baltimore & Ohio
Railroad.
Annette Simpkins alleged that from 1958 to 1964, she inhaled
fibers that husband Ronald Simpkins brought home on his clothing
from his job with B & O in Granite City. They divorced in 1965.
Annette Simpkins died after suing, and Cynthia Simpkins carried on
the case.
CSX moved to dismiss, denying it owed any duty to warn families of
employees. Circuit Judge Daniel Stack granted the motion. The
Fifth District reversed him in 2010, rejecting CSX's defense that
it did not know the danger of take-home asbestos.
CSX appealed to the Supreme Court, warning of massive liability to
an unlimited universe of plaintiffs. CSX pleaded it owed no duty
to Annette Simpkins because they had no relationship.
Ted Gianaris, Esq., John Barnerd, Esq., and Amy Garrett, Esq., all
of the Simmons firm, worked on the brief, as did John Cooney,
Esq., and Patricia Spratt, Esq., of Chicago.
ASBESTOS UPDATE: Court Junks Royal's Motion for Summary Judgment
----------------------------------------------------------------
The U.S. District Court, Middle District of Louisiana, denied
Royal Indemnity Company's bid for partial summary judgment in a
case involving asbestos styled Anco Insulations, Inc., A Louisiana
Corporation v. Royal Indemnity Company, A Delaware Corporation, et
al.
District Judge Brian A. Jackson entered judgment in Case No. Civil
Action No. 07-657-BAJ-DLD on Feb. 11, 2011.
This matter is before the Court on motions for partial summary
judgment by Arrowood Indemnity Company (f/k/a Royal Indemnity
Company). National Union Fire Insurance Company, Transportation
Insurance Company, and Westchester Fire Insurance Company (Primary
Insurers), have opposed Royal's motions. Transportation filed a
sur-reply. Royal had replied to the oppositions.
Anco Insulations, Inc. is an asbestos insulation company that has
been sued by thousands of plaintiffs seeking damages for exposure
to asbestos over the past 25 years. Royal; AIG Premier Insurance
Company; Centaur Insurance Company; Columbia Casualty Company;
Continental Insurance Company; Danielson Insurance Company; First
State Insurance Company; Holland-America Insurance Company;
Landmark Insurance Company; Lexington Insurance Company; National
Union; Transportation; United States Fire Insurance Company; and
Westchester are insurance companies that each, at some point, have
insured Anco as excess or primary insurers.
Royal, American Guarantee & Liability Insurance Company and Zurich
American Insurance Company have funded Anco's defense of asbestos
claims thus far. However, Zurich alleged that "as a result of
settlement and indemnity payments made by Zurich on behalf of
Anco, the limits of several of the policies issued by Zurich to
Anco have been exhausted and other policies are near exhaustion or
are otherwise inapplicable."
Thus, "Anco has brought the instant action, seeking a declaration
of the parties' rights and obligations under the various policies
issued to Anco by defendants."
Royal alleged that the various Primary Insurers issued policies of
insurance to Anco for one year periods, and that each of the
various policies was in effect during a part of the period in
which claimants allege exposure to asbestos as a result of
materials that Anco "allegedly manufactured, sold, distributed,
installed, repaired and/or removed."
Royal asserted that the Primary Insurers' duty to defend on the
risk during the respective periods was "unambiguously" triggered
and Royal sought summary judgment on:
-- Whether Primary Insurers are obligated to defend suits
against Anco where claimants allege injuries that occurred
during the effective period of policies issued by those
Primary Insurers;
-- Whether the Primary Insurers' duties to defend attached at
the moment that an underlying complaint was filed; and
-- Whether the Primary Insurers owe Anco a complete defense to
be allocated in equal shares between all of the insurers who
share that obligation.
For these reasons, Royal's motions for partial summary judgment
were denied.
ASBESTOS UPDATE: District Court to Issue Ruling in Anderson Case
----------------------------------------------------------------
The U.S. District Court, Eastern District of Pennsylvania, will
issue a ruling in the case, which is part of In re Asbestos
Products Liability Litigation (No. VI), styled Richard E.
Anderson, and Lillian M. Anderson, husband and wife, Plaintiffs v.
Saberhagen Holdings, Inc., et al., Defendants.
U.S. Magistrates Judge David R. Strawbridge entered judgment in
Civil Action No. 10-cv-61118 on Feb. 16, 2011.
Richard and Lillian Anderson, husband and wife, filed this
asbestos personal injury action in the Superior Court of
Washington for Pierce County on Sept. 3, 2009, asserting claims
against multiple parties including defendant Salmon Bay and Gravel
Company, Inc., a Seattle-area retailer of tools and construction
supplies.
The matter was removed to the U.S. District Court for the Western
District of Washington and then, on Feb. 8, 2010, transferred to
the Eastern District of Pennsylvania to be included in the multi-
district Asbestos Liability Litigation (MDL 875).
Presently before the Court is Salmon Bay's "Motion to Preclude
Certain Testimony of Experts Sam Hammar, MD, Andrew Brodkin, MD
and Arnold Brody, MD," Plaintiffs' Response and Salmon Bay's
Reply. Oral argument was heard on Nov. 17, 2010, and the motion
is now ripe for review.
The Court found that Dr. Hammar had offered the opinion challenged
by Defendant, and find their arguments for preclusion of that
opinion to be inapplicable to Drs. Brody and Brodkin.
Additionally, the District Court found Dr. Hammar's opinion that
"every occupational and bystander exposure to asbestos above
background was a substantial contributing factor in causing Mr.
Anderson's ... mesothelioma" is sufficiently reliable to meet the
admissibility standard of Rule 702, and Defendant's arguments to
the contrary are more appropriately reserved for cross
examination.
The Court's order will follow.
Glenn S. Draper, Esq., of the Law Offices of Matthew Bergman in
Vashon, Wash., Anna D. Knudson, Esq., Brian F. Ladenburg, Esq., of
Bergman Draper & Frockt PLLC in Seattle, represented Plaintiffs.
Jeanne F. Loftis, Esq., of Bullivant Houser Bailey PC in Portland,
Ore., Christopher S. Marks, Esq., Jeffrey M. Wolf, Esq., Williams
Kastner Gibbs, Esq., Aaron P. Riensche, Esq., Robert Gregory
Andre, Esq., of Ogden Murphy Wallace PLLC, Howard Terry Hall,
Esq., of Wolfstone Panchot & Bloch, Richard G. Gawlowski, Esq., of
Wilson Smith Cochran & Dickerson, Daniel Ruttenberg, Esq., of
Perkins Coie LLP in Seattle, represented Defendants.
ASBESTOS UPDATE: Appeal Court Issues Various Rulings in UCC Case
----------------------------------------------------------------
The Court of Appeals of New York issued split rulings in a case
involving asbestos styled Union Carbide Corporation, Appellant v.
Affiliated FM Insurance Company, et al., Defendants, Continental
Casualty Company, et al., Respondents.
Judges Smith, Lippman, Ciparick, Graffeo, Read, Pigott, and Jones
entered judgment in the case on Feb. 22, 2011.
In the mid 1970s, Union Carbide Corporation sought to obtain as
much liability insurance coverage as it reasonably could. To
accomplish this, it acquired coverage in layers.
In the bottom layer, a policy issued by Appalachian Insurance
Company covered UCC for the first US$5 million of loss, except for
a "retained" amount for which UCC was self-insured. The
Appalachian policy had a three-year duration, but it is clear, and
not disputed, that the limit of that policy, as it applied to the
claims in issue here, was renewed annually, or "annualized."
Losses above the US$5 million were covered by successive layers of
excess insurance. The Court's concern here is with the so-called
fifth excess layer, which covered losses exceeding US$70 million,
up to US$100 million. This US$30 million of coverage was divided
equally among six insurers, two of which, Continental Casualty
Company and Argonaut Insurance Company, are involved in this
appeal.
The policy issued by the fifth-layer excess insurers was a brief
"subscription form policy" prepared by UCC's insurance broker.
The fifth-layer excess policy had a policy period beginning Dec.
1, 1973 and ending Dec. 1, 1976.
UCC was a seller of asbestos, with the result that enormous claims
were made against it for the years in question. It said that it
has paid over US$1.5 billion in defense costs, settlements and
judgments. It asserted that Continental and Argonaut are each
liable under the subscription form policy for US$15 million of
this amount, US$5 million for each year of the three-year period.
Continental and Argonaut said that their liability for the entire
three-year period is capped at US$5 million per company. As to
Continental, UCC claimed an additional US$5 million because the
policy was extended beyond the three years. According to UCC, a
new US$5 million dollar policy limit became available to it by
virtue of this two-month extension.
On UCC's motions for partial summary judgment, the Supreme Court
ruled in its favor on both issues. The Appellate Division, with
one Justice dissenting, disagreed and denied UCC's motions as to
both issues. The Appellate Division granted leave to appeal to
the Court on a certified question. The Appeals Court now modified
its order, and held that UCC should be granted summary judgment on
the annualization issue, but not on the extension issue.
Accordingly, the order of the Appellate Division should be
modified to grant UCC's motion for summary judgment on the
annualization issue, and otherwise affirmed, without costs, and
the certified question answered in the negative. The order was
modified, and as so modified, affirmed.
Steven R. Gilford, Esq., represented Union Carbide Corporation.
G. David Godwin, Esq., represented respondents.
ASBESTOS UPDATE: Baxley's Remand Bid Denied in Reliance Lawsuit
---------------------------------------------------------------
The U.S. District Court, District of South Carolina, Columbia,
Division, denied Cathy Ann Baxley's Motion for Remand in an
asbestos case filed against Reliance Electric Company and other
defendants.
The case is styled Cathy Ann Baxley, Individually and as Personal
Representative of the Estate of Jimmie Williams, Plaintiff v.
Advance Auto Parts, Inc., Corporate Successor to Western Auto
Parts, Inc., A Delaware Corporation et al., Defendants.
District Judge J. Michelle Childs entered judgment in Civil Action
No. 3:10-cv-02985-JMC on Feb. 9, 2011.
This matter was before the court on Ms. Baxley's Motion for
Expedited Consideration of Motion for Remand and her Motion for
Remand requesting the court to remand this case to the Court of
Common Pleas for Richland County, S.C., for further proceedings.
The court granted Ms. Baxley's Motion for Expedited Consideration
of Motion for Remand and denied her Motion for Remand.
In November 2009, Ms. Baxley, as the personal representative of
the Estate of Jimmie Williams, filed a 10-count Complaint in the
Court of Common Pleas for Richland County, S.C., asserting various
products liability-related claims against almost 60 defendants,
including Reliance.
Reliance asserted that Ms. Baxley's Complaint did not contain any
allegation directed to where or when Mr. Williams used, or worked
with or around a Reliance manufactured product, but merely alleged
generally that each defendant manufactured or otherwise caused Mr.
Williams to be exposed to asbestos-containing products that
ultimately caused his death.
Reliance claimed that it was not until Ms. Baxley served her
responses to interrogatories that Reliance learned that she may
have been related to Mr. Williams's work at naval shipyards.
As a result of this information, on Nov. 16, 2010, Reliance filed
a Notice of Removal asserting as grounds for removal federal
officer jurisdiction based on Reliance's assertion of the
government-contractor defense.
Ms. Baxley filed the Motion for Remand shortly thereafter.
*********
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