/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110620.mbx C L A S S A C T I O N R E P O R T E R Monday, June 20, 2011, Vol. 13, No. 120 Headlines ALLIANCE ONE: Awaits Ruling on Motion to Dismiss Suit in Brazil AUSTRALIA: Port Stephen Residents Mull Class Action BEST BUY: Reaches Settlement in Employment Discrimination Suit BRASKEM SA: "Union of Triunfo" Suit Still Pending CANADA LINE: Appeal From Class Action Certification Ruling Denied CATHOLIC DIOCESE OF CHARLESTON: Class Action Settlement Junked CIBA-GEIGY: Judge Approves $20-Million Class Action Settlement CNN.COM: Faces Class Action Over Lack of Video Captioning CORVEL CORP: Expects To Have "Williams" Suit Deal by End of June CORVEL CORP: Still Owes Settlement Payment to "Roche" Claimants C. R. BARD: Eighth Circuit Affirms Ruling in "St. Francis" Suit DRUG RETAILERS: Seeks Rehearing of Class Action Dispute FLAMEL TECHNOLOGIES: Discovery in "Billhofer" Suit Ongoing FTDI WEST: Fakhimi & Associates File Wage Class Action GROUPON INC: Sued Over Expiration Dates in Vouchers JENNY CRAIG: Faces Class Action in Calif. Over Unpaid Wages JOHNSON & JOHNSON: Sued Over False Advertising on Benecol KAISER FOUNDATION: Faces Class Action Over Underpaid Wages PRICEWATERHOUSECOOPERS: Gets Favorable Ruling in Overtime Suit SCHULTE ROTH: Ex-Employee Files Class Action for Unpaid Overtime SEMTECH CORP: Securities Settlement Hearing Set for June 27 SPORTIME LLC: Recalls 600 aDOORable Swing Bars Due to Fall Hazard TARGET: Recalls an Additional 375,000 Child Booster Seats TEXAS: Physicians File Class Action Over Abortion Bill TJX COMPANIES: Recalls 23,600 Emma's Garden Polka-Dot Dresses TOYS "R" US: Paid $1-Million Civil Penalty to FTC in May 2011 UNITED STATES: Cobell Settlement Fairness Hearing Set Today UNIVERSITY OF HAWAII: Faces Class Action Over Security Breach ********* ALLIANCE ONE: Awaits Ruling on Motion to Dismiss Suit in Brazil --------------------------------------------------------------- Alliance One International, Inc., is awaiting the Court's decision on its motion to dismiss a class action lawsuit commenced against its Brazilian subsidiary, Alliance One Brazil Exportadora de Tobaccos Ltda., according to the Company's June 10, 2011, Form 10- K filing with the U.S. Securities and Exchange Commission for the year ended March 31, 2011. On June 6, 2008, the Company's Brazilian subsidiary, Alliance One Brazil Exportadora de Tobaccos Ltda. ("AOB") and a number of other tobacco processors were notified of a class action initiated by the ALPAG -- Associacao Lourenciana de Pequenos Agricultrores ("Association of Small Farmers of Sao Lourenco"). The class action's focus is a review of tobacco supplier contracts and business practices, specifically aiming to prohibit processors from notifying the national credit agency of producers in debt, prohibiting processors from deducting tobacco suppliers' debt from payments for tobacco, and seeking the modification of other contractual terms historically used in the purchase of tobacco. The case is currently before the 2nd civil court of Sao Lourenco do Sul. The Company's motion to dismiss the class action is currently pending. The Company believes this claim to be without merit and is vigorously defending it. Ultimate exposure if an unfavorable outcome is received is not determinable. AUSTRALIA: Port Stephen Residents Mull Class Action --------------------------------------------------- ABC Newscastle reports that about 100 Port Stephens residents are expected to be part of a class action against the Commonwealth over aircraft noise. Residents are seeking compensation for the economic impact caused by the incoming Joint Strike Fighter Jets as well as the existing noise created by the Williamtown air base. Residents claim the noise has devalued their land and stopped some from developing land. Canberra legal firm Goodman Law held two information sessions at Raymond Terrace on June 15, with several dozen people signing up to join the 60 people already part of the class action. The firm's Steven Gavagna says he's confident of a positive outcome for residents. "It is worth fighting for," he said. "If they do nothing they'll get nothing." "They'll have an opportunity to participate against the Commonwealth and demand of the Commonwealth compensation. "And demand of the Commonwealth to change its laws to better balance public interest against the damages that are caused in applying defense force facilities." Mr. Gavagna says listening to the impact aircraft noise has had on residents brought to tears to his eyes. He says the noise impacts are destroying people's lives. "Until you stand in front of a hundred or more people and you listen to their stories it can't help but bring tears to your eyes," he said. "The pain that many of those are going through is just unfathomable. "And I can't understand how a Commonwealth officer, a Defence Department officer can't listen to what they've been going through and not be moved. "It drove me speechless on many occasions." BEST BUY: Reaches Settlement in Employment Discrimination Suit -------------------------------------------------------------- Best Buy and civil rights lawyers announced on June 17, 2011, a proposed settlement of an employment discrimination class action brought on behalf of women and minority employees of Best Buy. The settlement remains subject to court approval. Through this settlement, Best Buy agrees to changes to its personnel policies and procedures that will enhance the equal employment opportunities of the thousands of women, African Americans, and Latinos employed by Best Buy nationwide. One of the counsel for Plaintiffs, Eve Cervantez, said that "Best Buy's commitment to these changes makes it a 'best in class' employer of women and minorities and a leader in the areas of diversity and inclusion." Best Buy said that these changes are part of Best Buy's continuous improvement of its employees' experience and the systems which support that experience. The settlement has been submitted for approval to the Hon. Phyllis J. Hamilton, United States District Judge for the Northern District of California. The lawsuit, filed in December 2005, alleged that Best Buy discriminates against women, African American, and Latino employees of Best Buy retail stores in the United States by denying them promotions and more lucrative sales positions. Best Buy has denied any wrongdoing throughout the litigation. In reaching this proposed settlement, the parties agreed that it was in the interest of Best Buy, the plaintiffs, and the employee classes to resolve the matter through a settlement that provides injunctive relief to all class members, rather than to proceed with litigation. The case is entitled Holloway v. Best Buy, Civil Action No. 3:05-cv-05056-PJH (N.D. Cal.). Plaintiffs are represented by: James M. Finberg, Esq. Eve H. Cervantez, Esq. ALTSHULER BERZON L.L.P. 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-mail: jfinberg@altber.com ecervantez@altber.com - and - Kelly M. Dermody, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, Suite 2900 San Francisco, CA 94108 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: kdermody@lchb.com BRASKEM SA: "Union of Triunfo" Suit Still Pending ------------------------------------------------- Braskem S.A. disclosed in its June 10, 2011, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2010, that in the third quarter of 2010, the Petrochemical and Chemical Industries Workers Union of Triunfo (Rio Grande do Sul) filed a class action requiring the payment of overtime referring to working hour breaks, and the integration into salary of the remunerated weekly day-off. The Company says the opinion of the external legal advisors is that it is possible that the Company will win these lawsuits, and therefore, no provision has been made. The amount of the lawsuit totals R$165,000. CANADA LINE: Appeal From Class Action Certification Ruling Denied ----------------------------------------------------------------- Keith Fraser, writing for The Province, reports that Canada Line has lost its appeal of a B.C. Supreme Court decision certifying a class action lawsuit by Cambie Street businesses. B.C. Supreme Court Justice Ian Pitfield had certified a class comprising 62 individuals or companies who own properties in the Cambie Village and about 215 individuals who operate a business in the village. The businesses claim that the "cut and cover" construction method on the rapid transit line in 2005 and 2006 amounted to a nuisance and are seeking damages. Canada Line Rapid Transit Inc. appealed the judge's ruling, arguing that a class proceeding was not the preferable approach to the lawsuit. The company argued that there were too many individual issues that would predominate in the lawsuit. But in a ruling released on June 15, B.C. Court of Appeal Madam Justice Elizabeth Bennett noted that much of Canada Line's argument was founded on a finding that there was no nuisance, which she did not accept. Justice Bennett said a chambers judge's decision in a class action case is generally given considerable deference and only interfered with if the judge erred in principle or was clearly wrong. "In my view, the chambers judge did not err when he concluded that the class action proceeding would advance the litigation in a meaningful way," said the judge. "I would not interfere with his conclusion that the class action is the preferable procedure. I would dismiss the appeal." Lawyers for Canada Line had initially asked that their appeal be adjourned based on the uncertainty surrounding the "Heyes" case. Cambie Street business owner Susan Heyes had filed her own separate lawsuit, with Justice Pitfield awarding her $600,000 for the nuisance caused by the construction. Canada Line appealed that decision and the B.C. Court of Appeal found that while nuisance was proven, the defense of statutory authority took precedence and overturned the award. At the time arguments regarding adjournment were heard, it was not clear whether Ms. Heyes planned to seek leave to appeal her case to the Supreme Court of Canada. The women's clothing store owner has since indicated she will appeal. The Court of Appeal declined to adjourn the class action appeal but Justice Bennett said the decision to proceed with the appeal should not be seen as a direction to the class action trial court to proceed. "Whether the trial should be postponed pending the outcome of any further appeal by Susan Heyes Inc. is a matter for the case management or trial judge." CATHOLIC DIOCESE OF CHARLESTON: Class Action Settlement Junked ------------------------------------------------------ Adam Parker, writing for The Post and Courier, reports that the S.C. Supreme Court on June 13 dismissed a final appeal in the convoluted case involving victims of sexual abuse, the Catholic Diocese of Charleston, a class-action settlement and a local attorney representing a second group of victims. The legal wrangling began in 2005 and reached a milestone in 2008 when the diocese paid out more than $10 million in a class-action settlement. Attorney Gregg Meyers, representing a group of 11 clients who had opted out of the class action, negotiated a separate settlement with the diocese worth nearly $1.4 million, then struggled to get his clients paid. In 2008, he alleged that the diocese was purposefully delaying payment because a 12th victim had been promised a share of the settlement money. And he accused class counsel and Circuit Judge Diane Goodstein of colluding to ensure that Judge Goodstein presided over all related arguments in the case from her bench in Dorchester County, even if Mr. Meyers' lawsuit had been filed in Charleston County. In its decision to dismiss Mr. Meyers' claims, the Supreme Court called the appeal "moot" because the two settlement agreements were distinct from one another. Those who opted out of the class action and signed releases could not subsequently seek damages related to the class-action suit, the court ruled. Complicating matters further was the introduction in 2008 of a 12th victim, John Doe B, who was not officially party to either settlement. Because he had signed a release years before, absolving the diocese of any additional obligation, John Doe B could make no claim on the diocese. Mr. Meyers said his 11 clients had every right to share their compensation if they chose to do so, and that it was unfair of the diocese to delay payment to them because of John Doe B. In his appeal, he argued that the diocese was obligated to pay interest on funds it had withheld. A. Peter Shahid, diocese counsel, said John Doe B had waived his right to any additional litigation or compensation, and that it was Mr. Meyers who was delaying the case. The diocese was the one in July 2008 to file a motion asking the court to enforce the settlement agreement, Mr. Shahid said. In early 2009, Judge Goodstein ordered the diocese to pay Mr. Meyers' clients. John Doe B filed for bankruptcy, and Mr. Meyers added a defamation charge to a court motion, securing from the diocese a "sizable six figure" payment to John Doe B, which was shared with the other 11, Mr. Meyers said. The Supreme Court on June 13 did not address the allegations of collusion. Mr. Shahid said the methodology of the class-action settlement was validated by the courts, despite the drawn-out legal wrangling. "The diocese is pleased with the outcome, because the overall handling of the class-action settlement agreement was good for the victims," providing a non-adversarial opportunity to secure compensation, he said. Also, the separate settlement was successfully implemented, once Mr. Meyers' clients signed the releases, he said. But Mr. Meyers is not walking away. In 2009 and 2010, he filed new lawsuits against the diocese and class-action lawyers Larry Richter and David Haller on behalf of people he said were excluded from the original class-action settlement and alleging malpractice. He awaits the rulings. CIBA-GEIGY: Judge Approves $20-Million Class Action Settlement -------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that a Middlesex County judge has approved a class-action settlement, valued by the plaintiffs at $20 million, of a 10-year suit over chemicals at the Ciba-Geigy plant in Toms River that allegedly reduced home values. Superior Court Judge Jamie Happas on June 7 found the agreement in Janes v. Ciba-Geigy, MID-L-1669-01, was fair, reasonable and adequate. No class members objected. Ciba-Geigy made dyes at the plant from 1952 to 1996, and the plant was declared a Superfund site after an underground plume of chemicals was identified. The plaintiffs alleged that the company improperly disposed of hazardous substances at the site, leading to groundwater contamination from the plant that reduced the value of their homes. The settlement creates two classes. The first is made up of current owners of homes in the Oak Ridge neighborhood, a subdivision of about 650 homes near the plant. The second class is made up of about 200 people who bought homes in the area before March 1, 2000, and sold them before Dec. 31, 2008. For the first group, the settlement requires a 15-acre buffer zone separating the Oak Ridge neighborhood from the plant. Placement of deed restrictions on that zone would allow the property to remain in its current wooded state even if the rest of the plant property changes hands or is redeveloped as a brownfields property, says class co-counsel John Keefe Jr. of Keefe Bartels Clark in Red Bank. Creation of the zone protects class members from undesirable views, traffic and noise from any future development of the Ciba- Geigy site, says Mr. Keefe. In addition, the settlement for the first group calls for a $25,000 fund to landscape pumping stations on the buffer zone to screen them from the residents' view. For the second group, the settlement creates a $900,000 fund to compensate 200 homeowners who sold their properties for less than they would have received had the land not been contaminated. Members of that group will receive a maximum of $4,000 each, but payments will be computed on a pro rata basis if total claims exceed the amount of the settlement fund. The settlement also provides $3 million in fees to class counsel, Mr. Keefe and Arthur Penn of Pelletieri, Rabstein & Altman of Princeton. Mr. Keefe says $16 million of the $20 million settlement comes from the estimated 10 percent increase in property values that is expected in the Oak Ridge neighborhood as a result of the dedication of open space. The class action was filed in 2001 on behalf of residents near the plant who sought compensation for diminished property values resulting from the contamination and a delayed cleanup at the plant. The suit was consolidated as a mass tort in Middlesex County on Feb. 6, 2001. Other suits that were part of the mass tort, which sought medical monitoring and treatment, have been settled. Judge Marina Corodemus certified the class in May 2003. Ciba- Geigy took the position that the residents' claims were time- barred, and the suit was later dismissed on those grounds. But the Appellate Division reinstated the case in January 2007, finding that the continuous tort doctrine applied. The parties continued to negotiate but the remedy for those who had not sold their homes continued to be a stumbling block, says Mr. Keefe. Finally, the successor to Ciba-Geigy, then known as Ciba, was bought in 2009 by BASF, which took a more conciliatory approach, Mr. Keefe says. The buffer zone emerged as a good remedy for current homeowners because, as the case neared its January 2011 trial date, it became apparent that any damage to their property values was abating as home prices grew and the stigma from the contamination was fading, says Mr. Keefe. The lawyer for Ciba-Geigy, David Field of Lowenstein Sandler in Roseland, declines to comment. CNN.COM: Faces Class Action Over Lack of Video Captioning --------------------------------------------------------- KTVU.com reports that a class action lawsuit was filed in Alameda County Superior Court on June 15 alleging that CNN.com discriminates against people who are deaf or hard of hearing by failing to provide any captioning of its online videos on its Web site. The lawyers who filed the suit said they believe it is the first of its kind in the country. The suit says videos of breaking news events are posted on news Web sites allowing the public to access critical information but, CNN.com, which it says is one of the largest media and entertainment companies in the world, refuses to provide any captioning of its online videos. The lack of captioning excludes the deaf and partially deaf communities from accessing video news content on its Web site, the suit alleges. The suit was filed by the Greater Los Angeles Agency on Deafness, or GLAD, on behalf of its members with hearing loss as well as three individual plaintiffs, one of whom lives in Alameda County. The plaintiffs are represented by Disability Rights Advocates, a non-profit disability rights legal center based in Berkeley, and Goldstein, Demchak, Baller, Borgen & Dardarian, an Oakland law firm. Anna Levine, an attorney with Disability Rights Advocates, said GLAD has been writing letters to CNN.com since late last year to ask for captioning but the Web site "has refused to commit to it." Ms. Levine said, "There were many months of effort to try to accomplish the captioning without litigation" and the lawsuit was only filed as a last resort. She said CNN.com has never cited cost as a factor in not providing captioning, saying only that it does not believe it is required by law to have captioning. A spokeswoman for CNN.com, which is a subsidiary of Time Warner Inc., declined to comment on the suit on June 15, saying it had not yet been served. The lawsuit alleges that CNN.com is violating California's anti- discrimination statutes, the Unruh Civil Rights Act and the Disabled Persons Act. It seeks an injunction requiring CNN.com "to take steps necessary to ensure that the benefits and advantages offered by CNN.com are fully and equally enjoyable to persons who are deaf or have hearing loss in California." Ms. Levine said the suit also seeks damages of between $1,000 and $4,000 for each violation of California's laws, which could total between $5 million and $10 million. But Ms. Levine said the main focus of the lawsuit is getting CNN.com "to fix its Internet site to provide equal access" to people who are deaf or hard of hearing, not on damages. The suit says broadcast and cable television content must be closed-captioned under federal communications law and there is readily available technology that would enable online news sites to provide similar closed captions. The suit says, "Captioning can be readily provided as an option for hearing-impaired visitors to CNN.com without significant difficulty or expense and without interfering with the experience that non-disabled visitors to CNN.com enjoy." Ms. Levine said coverage of the upcoming presidential election is an example of the importance of having videos with captions. She said body language and facial cues are a central part of communication for individuals who are deaf or hard of hearing and videos with captions would allow them to view speeches and debates in a meaningful manner. Ms. Levine said she did not know of any news Web sites that provide captioning of online videos. She said the plaintiffs chose to sue CNN.com "because it's an industry leader and we want to send a message to the industry that they must comply with anti-discrimination laws." Time Warner Also Sued for Lack of Captioning Courthouse News Service reports that the Greater Los Angeles Agency on Deafness asserts in a state class action that Time Warner discriminates by failing to caption its news videos on CNN.com. A copy of the Complaint in Greater Los Angeles Agency on Deafness, Inc., et al. v. Time Warner, Inc., Case No. 11580682 (Calif. Super. Ct., Alameda Cty.), is available at: http://www.courthousenews.com/2011/06/16/Deaf.pdf The Plaintiffs are represented by: Laurence W. Paradis, Esq. Anna Levine, Esq. Elizabeth Leonard, Esq. DISABILITY RIGHTS ADVOCATES 2001 Center Street, Fourth Floor Berkeley, CA 94704-1204 Telephone: (510) 665-8644 E-mail: lparadis@dralegal.org alevine@dralegal.org eleonard@dralegal.org - and - Linda M. Dardarian, Esq. Rachel E. Brill, Esq. GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 E-mail: rbrill@gdblegal.com - and - Peter Blanck, Esq. 900 S. Crouse Avenue Crouse-Hinds Hall, Suite 300 Syracuse, NY 13244-2130 E-mail: pblanck@syr.edu CORVEL CORP: Expects To Have "Williams" Suit Deal by End of June ---------------------------------------------------------------- CorVel Corporation expects to be able to arrive at a definitive settlement agreement by the end of June 2011 in the class action lawsuit commenced by George Raymond Williams, according to the Company's June 10, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended March 31, 2011. On March 25, 2011, George Raymond Williams, MD., as plaintiff, individually and on behalf of those similarly situated, filed a First Amended and Restated Petition for Damages and Class Certification in the 27th Judicial District Court, Parish of St. Landry, Louisiana, against CorVel Corporation and its insurance carriers, Homeland Insurance Company of New York and Executive Risk Specialty Insurance Company and several other unrelated parties. Williams alleges that CorVel violated Louisiana's Any Willing Provider Act (the "AWPA"), which requires a payor accessing a preferred provider contract to give 30 days' advance written notice or point of service notice in the form of a benefit card before the payor accesses the discounted rates in the contract to pay the provider for services rendered to an insured under that payor's health benefit plan. On March 31, 2011, CorVel entered into a Memorandum of Understanding with attorneys representing the plaintiffs and the class setting forth the terms of settlement of this class action lawsuit. The Memorandum of Understanding provides that subject to the execution of a mutually acceptable settlement agreement and final non-appealable approval of such settlement by the Louisiana state court, CorVel will pay $9 million to resolve claims for which CorVel recorded a $9 million pre-tax charge to earnings during the March 2011 quarter. In addition, CorVel will assign to the class certain rights it has to the proceeds of CorVel's insurance policies relating to the claims asserted by the class. The class action arbitration filed with the American Arbitration Association against CorVel in December 2006 by Southwest Louisiana Hospital Association, doing business as Lake Charles Memorial Hospital, as previously disclosed by CorVel is encompassed within the settlement terms of the Memorandum of Understanding. Pursuant to the Memorandum of Understanding, the parties have also agreed to request that the appropriate courts stay all related proceedings in State and Federal Court, as well as the Louisiana Office of Workers Compensation and the arbitration proceeding before the American Arbitration Association in which the parties are named, until the settlement agreement is prepared, executed and receives final court approval. The settlement does not constitute an admission of liability. In exchange for the settlement payment by CorVel, class members will release CorVel and all of its affiliates and clients for any claims relating in any way to re-pricing, payment for, or reimbursement of a workers' compensation bill, including but not limited to claims under the AWPA. Plaintiffs have also agreed to a notice procedure that CorVel may follow in the future to comply with the AWPA. As noted, the Memorandum of Understanding is contingent upon the execution of a mutually acceptable definitive settlement agreement. Under Louisiana law, once the parties have executed such a settlement agreement, they must apply to the court for approval of the settlement following a court-supervised process of notice to the class and an opportunity for the class to be heard about the fairness of the settlement or to be excluded from the settlement. CorVel expects to be able to arrive at such a definitive settlement agreement by the end of June 2011, but there can be no assurance that the parties will be able to reach a definitive settlement agreement within that timeframe or at all, that the court will approve the settlement or that a large number of class members will not opt out of the settlement. If a definitive settlement agreement is not reached or is not approved by the court, all related proceedings in State and Federal Court, as well as the Louisiana Office of Workers Compensation and the arbitration proceeding before the American Arbitration Association that have been stayed pending settlement will resume. CORVEL CORP: Still Owes Settlement Payment to "Roche" Claimants --------------------------------------------------------------- In February 2005, Kathleen Roche, D.C., as plaintiff, filed a putative class action in Circuit Court for the 20th Judicial District, St. Clair County, Illinois, against CorVel Corporation. The case sought unspecified damages based on the Company's alleged failure to direct patients to medical providers who were members of the CorVel CorCare PPO network and also alleged that the Company used biased and arbitrary computer software to review medical providers' bills. On October 29, 2010, the Company entered into a settlement agreement providing for the payment of $2.1 million to class members and up to an additional $700,000 for attorneys' fees and expenses, and as a result the Company accrued $2.8 million of estimated liability for this settlement agreement during the quarter ended September 30, 2010. On January 21, 2011, the Circuit Court gave final approval to the settlement and awarded class counsel $700,000 in attorneys' fees and expenses and a $5,000 incentive award to Kathleen Roche, the class representative. Through March 31, 2011, the plaintiff's attorneys had been paid but no amounts had been paid to the claimants. No further updates were reported in the Company's June 10, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended March 31, 2011. C. R. BARD: Eighth Circuit Affirms Ruling in "St. Francis" Suit --------------------------------------------------------------- The U.S. Court of Appeals for the Eighth Circuit affirmed a district court ruling granting C. R. Bard, Inc.'s summary judgment motion and dismissing claims brought against it by St. Francis Medical Center, et al., according to the Company's June 10, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On June 8, 2011, the U.S. Court of Appeals for the Eighth Circuit, in a re-hearing of the plaintiff's previous appeal, affirmed the decision of the District Court in the previously-disclosed class action lawsuit entitled St. Francis Medical Center, et al. v. C. R. Bard, Inc. et al. (Civil Action No. 1:07-cv-00031, United States District Court, Eastern District of Missouri, Southeastern Division). In September 2009, the District Court granted the Company's summary judgment motion and dismissed with prejudice all counts brought against the Company in this action. St. Francis Medical Center may request that the Court of Appeals re-hear its appeal and/or may request a review of the decision by the U.S. Supreme Court. DRUG RETAILERS: Seeks Rehearing of Class Action Dispute ------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a group of pharmacies sued by West Virginia Attorney General Darrell McGraw is appealing a federal appeals court's decision to send the case to state court. The U.S. Court of Appeals for the Fourth Circuit in May rejected the defendants' argument that Mr. McGraw had filed what was essentially a class action lawsuit against them. As a class action, they argued, the case belonged in federal court and not in Boone County Circuit Court, where it was first filed. The three-judge panel that heard the case ruled 2-1 for Mr. McGraw, and now the defendants seek a rehearing in front of the entire Fourth Circuit in a petition filed June 3. "(T)he majority's decision directly conflicts with the authoritative precedent from the only other federal appellate court to have addressed the issue," the petition says, noting a pair of 2008 decisions that involved Hurricane Katrina. "(T)he Fifth Circuit held that even where an attorney general is the nominal plaintiff, an action is removable under the (Class Action Fairness Act) when it seeks reimbursement for a subgroup of state citizens." Mr. McGraw's lawsuit alleges the defendants -- six prescription drug retailers including CVS, Target and Wal-Mart -- did not pass savings on generic drugs onto consumers. He hired private attorneys to pursue the case as well as another one against Rite Aid. In its appeal brief, the group of pharmacies claimed Mr. McGraw's lawsuit satisfies the jurisdictional requirements of the federal CAFA. "The AG's allegations make abundantly clear that more than $5 million and the interests of more than 100 persons are at issue. If the rightful interests of the West Virginia consumers on whose behalf the AG has brought suit are recognized, there also is undeniably minimal diversity between at least some plaintiffs (who are West Virginia citizens) and all defendants (as none of the defendants reside in or is a citizen of West Virginia." The pharmacies added that any consumer who was allegedly overcharged is a real party in interest to the case. The decision says the West Virginia statutes on which Mr. McGraw relies contain none of the essential requirements for a class action. Mr. McGraw is not designated as a member of the class and he is not required to give notice to overcharged customers, the decision says. "Indeed, the West Virginia Attorney General's role here is more analogous to the role of the EEOC or other regulator when it brings an action on behalf of a large group of employees or a segment of the public," the decision says. "Yet, the Supreme Court has concluded that such a regulator's action is not a class action of the kind defined in Rule 23." Judge Ronald Lee Gilman dissented. Even though the action was brought under state statutes, it doesn't take away the "essence" of the case, he wrote. "(T)he elements of numerosity, commonality, typicality and adequacy of representation have not been specifically pleaded," Judge Gilman wrote. "But I submit that these are subsidiary factors that do not detract from the essence of the action. "They are, in other words, 'bells and whistles' whose absence in the pleadings do not prevent the Attorney General's suit from being considered a class action under CAFA." Judge Gilman wrote that similar lawsuits filed by Mr. McGraw's outside counsel in other states are undisputed class actions. McGraw hired two private firms -- Bailey & Glasser and DiTrapano Barrett & DiPiero -- for the case. The two firms have contributed more than $60,000 to Mr. McGraw's campaign fund over the years, including $11,800 for his 2008 race against Republican Dan Greear. Bailey & Glasser brought similar lawsuits in Michigan and Minnesota. The Michigan suits were dismissed by a state judge because the only specific pricing information was obtained by a West Virginia whistleblower who worked at Kroger. The Minnesota lawsuit, brought on behalf of unions that provide health care for their members, was initially dismissed in November 2009 by former U.S. District Judge James Rosenbaum, who had harsh words for the plaintiffs attorneys. Judge Rosenbaum was peeved that the complaint, filed against 13 defendants, only contained specific pricing information about two of them. "(T)his Complaint utterly fails to state a cause of action on any basis. There are no, none, factual allegations touching any defendant other than CVS and Walgreen's," Judge Rosenbaum said Nov. 20, 2009. "There being no facts from which a fact finder could infer any liability concerning (the other defendants), and you asked me to sustain a complaint based upon that. It's not only laughable, it's absolutely reprehensible." A federal magistrate judge is currently deciding if that lawsuit will be remanded to a Minnesota court. FLAMEL TECHNOLOGIES: Discovery in "Billhofer" Suit Ongoing ---------------------------------------------------------- Discovery is ongoing in the putative class action lawsuit captioned Billhofer v. Flamel Technologies, S.A., et al., according to the Company's June 10, 2011, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2010. On November 9, 2007, a putative class action was filed in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers entitled Billhofer v. Flamel Technologies, et al. The complaint purports to allege claims arising under the Securities Exchange Act of 1934 based on certain public statements by the Company concerning, among other things, a clinical trial involving Coreg CR and seeks the award of damages in an unspecified amount. By Order dated February 11, 2008, the Court appointed a lead plaintiff and lead counsel in the action. On March 27, 2008, the lead plaintiff filed an amended complaint which continued to name as defendants the Company and two previously named officers and asserted the same claims based on the same events as alleged in the initial complaint. On May 12, 2008, the Company filed a motion to dismiss the action, which the Court denied by Order dated October 1, 2009. The action is now in the discovery phase pursuant to a schedule approved by the Court in a Case Management Order, signed December 9, 2009. On April 29, 2010, the lead plaintiff moved to withdraw and substitute another individual as lead plaintiff and to amend the Case Management Order. On September 20, 2010, the Court granted that motion and on September 30, 2010, the Court approved an Amended Case Management Order. The parties are now pursuing further discovery consistent with the schedule set forth in that Order. The Company says it intends to vigorously defend itself in the action. FTDI WEST: Fakhimi & Associates File Wage Class Action ------------------------------------------------------ San Bernardino employment attorneys of Employment Law Team, a division of Fakhimi & Associates have filed a class action lawsuit against F.T.D.I West Inc., a company with locations in California and Florida. The lawsuit filed in the San Bernardino Superior Court on March 18, 2011 under case number CIVDS 1103584, and case name Bustillo v FTDI West, Inc., alleges that FTDI West Inc., violated: Sections 226.7 and 512 of the California Labor Code by failing to provide adequate meal breaks to employees involved, section 226.7 of the California Labor Code by failing to provide adequate rest breaks to employees involved, Section 510 of the California Labor Code by failing to pay proper overtime wages, Sections 203 and 226 (a) of the California Labor code by providing involved employees paystubs not in compliance with California law and not paying "waiting time" penalties, as well as two other causes of action as related to Business and Professions Code Section 17200 and the common law tort of unjust enrichment. The overtime claims asserted deal with non-payment of "double time" wages. Double time wages are due for any work over 12 hours in a workday or any work beyond eight hours on any seventh consecutive day of a workweek. The lawsuit defines its class members as "All current and former employees of Defendants who were employed as non-exempt employees at any of Defendants' locations anywhere in California, at any time from four years prior to the initiation of this action until the present." Anyone with information or knowledge about the claims made in the complaint against F.T.D.I. Inc., is encouraged to contact the office's of Fakhimi & Associates at 877-529-4545. All current and former employees who feel that they may qualify to be part of the class are also encouraged to contact Orange County overtime attorneys of Fakhimi & Associates. Employment Law Team -- http://www.employmentlawteam.com-- was founded by Houman Fakhimi a former in-house attorney with STEC, Inc., and a seasoned trial lawyer. The Orange County employment law attorneys of Fakhimi & Associates have litigated a wide range of employment law and labor law issues ranging from overtime wages, discrimination, non-payment of wages, and retaliation. GROUPON INC: Sued Over Expiration Dates in Vouchers ---------------------------------------------------- A class action has been commenced against Groupon Inc. in Ontario on behalf of consumers who have purchased or acquired a voucher, also known as a "groupon", for services and products. The lawsuit alleges that Groupon engages in "unfair practices" contrary to Ontario's Consumer Protection Act, by selling vouchers with expiration dates that are against the law. In addition, it alleges that Groupon relies on "terms and conditions" which confuse and mislead consumers and are deceptive, ambiguous, contradictory and confusing. The lawsuit further alleges that Groupon illegally requires consumers to use the entire groupon in a single transaction, or else lose any remaining balance. The proposed representative plaintiff, Hitendra Patel, is a Toronto resident who purchased a $25 groupon for $50 worth of merchandise at the Gap in the fall of 2010. He tried to use the groupon in late November 2010, but was told the groupon had "expired" and could not be redeemed. None of the allegations has been proven in court. Mr. Patel has retained the Toronto law firm of Sack Goldblatt Mitchell LLP to bring the claim. Sack Goldblatt Mitchell is also counsel in a number of other large class action lawsuits. A Web site has been established with more information about the claim: http://www.grouponclassaction.ca Consumers who believe they may have a claim against Groupon can register through the Web site to receive more information about the class action, including updates about the claim's progress. JENNY CRAIG: Faces Class Action in Calif. Over Unpaid Wages ----------------------------------------------------------- Courthouse News Service reports that Jenny Craig stiffs workers for regular time and overtime, according to a federal class action. A copy of the Complaint in Coleman, et al. v. Craig, et al., Case No. 11-cv-01301 (S.D. Calif.), is available at: http://www.courthousenews.com/2011/06/15/JenCraig.pdf The Plaintiffs are represented by: David R. Markham, Esq. R. Craig Clark, Esq. James M. Treglio, Esq. Laura M. Cotter, Esq. CLARK & MARKHAM LLP 600 B Street, Suite 2130 San Diego, CA 92102 Telephone: (619) 239-1321 - and - Barron E. Ramos, Esq. The Law Offices of Barron E. Ramos 270 N. El Camino Real, # F-303 Encinitas, CA 92024 Telephone: (858) 461-0500 E-mail: info@yourclasscounsel.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 65 Pine Ave. #312 Long Beach, CA 90802 Telephone: (877) 696-8378 JOHNSON & JOHNSON: Sued Over False Advertising on Benecol --------------------------------------------------------- Courthouse News Service reports that a federal class action claims that Johnson & Johnson and McNeil Nutritionals falsely advertise that their Benecol margarine-like spread is "proven to reduce cholesterol." A copy of the Complaint in Reid v. Johnson & Johnson, et al., Case No. 11-cv-99999 (S.D. Calif.), is available at: http://www.courthousenews.com/2011/06/15/CCA.pdf The Plaintiff is represented by: Ronald A. Marron, Esq. LAW OFFICES OF RONALD A. MARRON 3636 4th Avenue, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9006 E-mail: Ron.Marron@gmail.com - and - Gregory S. Weston, Esq. Jack Fitzgerald, Esq. THE WESTON FIRM 888 Turquoise Street San Diego, CA 92109 Telephone: (858) 488-1672 KAISER FOUNDATION: Faces Class Action Over Underpaid Wages ---------------------------------------------------------- Courthouse News Service reports that Kaiser Foundation Hospitals cheat workers of wages and overtime wages, a class action claims in Alameda County Court. A copy of the Complaint in Andino v. Kaiser Foundation Hospitals, et al., Case No. 11580548 (Calif. Super. Ct., Alameda Cty.), is available at: http://www.courthousenews.com/2011/06/15/Kaiser.pdf The Plaintiff is represented by: Timothy D. Cohelan, Esq. Isam C. Khoury, Esq. Michael D. Singer, Esq. COHELAN KHOURY & SINGER 605 C Street, Suite 200 San Diego, CA 92101 Telephone: (619) 595-3001 E-mail: tcohelan@ckslaw.com ikhoury@ckslaw.com msinger@ckslaw.com - and - Sahag Majarian, II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd. Tarzana, CA 91356 Telephone: (818) 609-0807 PRICEWATERHOUSECOOPERS: Gets Favorable Ruling in Overtime Suit -------------------------------------------------------------- Dan Levine, writing for Reuters, reports that unlicensed accountants at PricewaterhouseCoopers are not automatically covered by California's overtime laws, a U.S. appeals court ruled on June 15. Two-thousand unlicensed junior accountants brought a class action lawsuit against PwC, claiming the giant accounting firm failed to pay them mandatory overtime under California law. A lower court found that PwC could not exempt them from the state's overtime requirements. The 9th U.S. Circuit Court of Appeals reversed on June 15, ruling that PwC is entitled to litigate whether the unlicensed accountants can be exempted from overtime laws. The 9th Circuit remanded the case back to a district court in Sacramento, Calif. for more proceedings. Representatives for the plaintiffs and PwC did not immediately respond to requests for comment. The case in the 9th Circuit is Jason Campbell, Sarah Sobek et al. v. PricewaterhouseCoopers LLP, 09-16370. SCHULTE ROTH: Ex-Employee Files Class Action for Unpaid Overtime ---------------------------------------------------------------- According to an article posted at The Am Law Daily by Tom Huddleston Jr., a former technical support employee of Schulte Roth & Zabel has filed a class action lawsuit alleging that the firm denied him and other employees proper overtime compensation required by federal wage and hour laws. The suit was filed on June 13 in U.S. District Court in Manhattan on behalf of Keith McKenzie, a former desktop support technician who worked in Schulte Roth's Manhattan office from April 2001, to April 2010, according to the lawsuit. The putative class consists of McKenzie and any of Schulte's current or former desktop support technicians who were employed at any point in the three-year period before the date the suit was filed and who did not receive overtime pay when working more than 40 hours in a week. The suit claims that the firm employed seven other technicians -- who, it says, provide technological support to the firm's employees -- during that time. The complaint states that the firm failed to pay overtime premiums "for all hours worked over 40 in a given week." "We believe that Mr. McKenzie's claims are without merit and we will respond in due course in the court proceeding," Gary Fiebert, Schulte Roth's executive director, said in a statement to The Am Law Daily. According to Mr. McKenzie's suit, Schulte Roth authorized a policy that gave all desktop support technicians compensatory time off instead of overtime pay when those employees exceeded 40 hours of work in a given week. Mr. McKenzie -- represented by Christopher Davis and Robert Ottinger of The Ottinger Firm in New York -- alleges that the firm willfully violated the Federal Fair Labor Standards Act by refusing to pay overtime premiums, and by failing to keep accurate records that reflect the hours McKenzie and the collective class worked. "Our client has informed us that [Schulte Roth has] applied an unlawful practice of substituting compensatory time for overtime wages, and that's illegal," Mr. Davis says. "We've investigated the allegations and we're extremely confident that we'll be able to prove that this practice was taking place." The lawsuit seeks relief for Mr. McKenzie and any other plaintiffs that would include an award for unpaid wages owed (with interest and penalties), as well as attorney's fees. Schulte Roth is a roughly 400-lawyer firm with offices in New York, Washington, D.C., and London. SEMTECH CORP: Securities Settlement Hearing Set for June 27 ----------------------------------------------------------- A hearing for the final approval of the settlement in the consolidated class action lawsuit against Semtech Corporation is scheduled for June 27, 2011, according to the Company's June 10, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 1, 2011. Two separate purported class action lawsuits were filed against the Company and certain current and former officers in August and October 2007, on behalf of persons who purchased or acquired Company securities from dates in 2002 to July 2006. The cases alleged violations of Federal securities laws in connection with the Company's past stock option practices. In February 2008, the Mississippi Public Employees' Retirement System filed a motion in the United States District Court for the Central District of California for consolidation of the cases, appointment of MPERS as lead plaintiff, and approval of selection of counsel. The MPERS motion was granted in late March 2008, and a Consolidated Amended Class Action Complaint was filed in May 2008, initiating the consolidated action with MPERS as the lead plaintiff. The consolidated case is captioned In Re: Semtech Corporation Securities Litigation, United States District Court, Central District of California, Case No. 2:07-CV-07114-CAS. In December 2008, per motions filed by the defendants, the Court granted motions to dismiss in favor of defendants Jason Carlson (former Chief Executive Officer of the Company) and Mohan Maheswaran (current Chief Executive Officer of the Company) regarding claims under Section 10(b) of the Securities Exchange Act of 1934, as amended. The Court denied all other motions of all defendants, including other motions to dismiss brought in relation to alternate allegations raised against Messrs. Carlson and Maheswaran, who remain pending as defendants in the matter. In August, 2010, the Court issued its class certification order, certifying the plaintiff class as persons who acquired common stock of the Company between August 27, 2002, and July 19, 2006 (inclusive). At a mediation meeting held on December 5, 2010, an agreement in principle to settle the class action litigation was reached. The Company agreed to pay $20 million to settle all claims in the litigation. As a result of this agreement, the Company recorded an additional charge of $10.0 million in fiscal year 2011 to increase the Company's total accrued liability for this matter to $20.0 million. Payment in full of the $20 million settlement amount was made on April 14, 2011, into the applicable escrow account associated with the proposed settlement and preliminary Court approval of same. The proposed settlement will fully resolve all claims against the Company, all current officers and directors of the Company named in the lawsuit, and certain former officers and directors of the Company named in the lawsuit. No parties admit any wrongdoing as part of the proposed settlement. Preliminary approval of the proposed settlement was issued by the Court on April 11, 2011. Final approval is scheduled for June 27, 2011, contingent upon any objections, or material elections to opt out of the settlement, being filed timely on or before June 6, 2011. The Company does not expect any objections or material elections to opt out of the settlement being filed before the applicable deadline, and expects final approval of the settlement by the Court following the hearing on June 27, 2011. SPORTIME LLC: Recalls 600 aDOORable Swing Bars Due to Fall Hazard ----------------------------------------------------------------- In cooperation with the U.S. Consumer Product Safety Commission, about 600 units of Abilitations aDOORable swing bar were voluntarily recalled in the United States of America by importer, Sportime LLC, of Norcross, Georgia, a subsidiary of School Specialty Inc. of Greenville, Wisconsin, and manufacturer, Sporting King Co. Ltd., of Taiwan. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A welded eye hook on the swing bar can break, posing a fall hazard. Sportime has received three reports of children falling when the welded eye hook released. Two minor injuries were reported including one report of rug burn after falling from a swing attached to the swing bar. The Abilitations brand aDOORable swing bar is designed to be suspended in a doorway so that a swing attachment can be connected. The swing bar is a white metal pole between two brackets that attach to a standard size doorway with metal screws. Two metal "S" hooks are welded to the metal pole for a swing attachment. "Abilitations aDOORable Swing Bar" and product number "1302341" are printed on the metal pole. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11743.html The recalled products were manufactured in Taiwan and sold exclusively by Sportime in Georgia from January 2009 through March 2011 for about $60. Consumers should stop using the recalled swing bars immediately and contact Sportime to receive a full refund for the swing bar and additional attachments sold with the swing bar. For additional information, contact Sportime toll-free at (888) 388- 3224 between 8:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.sportime.com/ TARGET: Recalls an Additional 375,000 Child Booster Seats --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Target, of Minneapolis, Minnesota, announced a voluntary recall of about 375,000 Circo Child Booster Seats. In August 2009, 43,000 additional booster seats were recalled. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The booster seat's restraint buckle can open unexpectedly, allowing a child to fall from the chair and be injured. Target has received 10 additional reports of booster seat buckles opening unexpectedly, including three reports of bumps and bruises when a child fell forward out of the booster seat, hitting an object or the floor. The expanded recall involves all Circo Booster Seats, including those sold as early as 2005. The plastic booster seats are blue with green trim and a white plastic restraint buckle. They attach to an adult chair to boost a child to a table. "Circo" and "Booster Seat" can be found on a green label located in the front of the booster seat. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11248.html The recalled products were manufactured in China and sold exclusively at Target stores nationwide from January 2005 through June 2009 for about $13. Consumers should immediately stop using the recalled booster seats and return them to any Target store for a full refund. For additional information, contact Target at (800) 440-0680 between 7:00 a.m. and 6:00 p.m. Central Time Monday through Friday, or visit the firm's Web site at http://www.target.com/ TEXAS: Physicians File Class Action Over Abortion Bill ------------------------------------------------------ Cameron Langford at Courthouse News Service reports that in a federal class action, physicians say an unconstitutionally vague Texas law that takes effect Sept. 1 threatens them with criminal prosecution and loss of their medical licenses if they fail to obtain "informed consent" of women who seek abortion, by giving them "visual and auditory depictions of the fetus" beforehand. Gov. Rick Perry, who is considering running for president, signed Texas House Bill 15 on May 19, 2011. The bill "takes effect on September 1, 2011, and applies to any and all abortions performed on or after October 1, 2011," according to the complaint. The plaintiff class "Texas Medical Providers Performing Abortion Services" is led by Metropolitan OB-GYN PA dba Reproductive Services of San Antonio, and its director, a physician. HB 15 amended a Texas statute enacted in 2003 known as the Women's Right to Know Act (WRKA), "which mandates that certain procedures and content be used in the informed consent process when the patient is a woman seeking an abortion," according to the complaint. The 2003 law requires that doctors must inform the woman of the name of the doctor who will perform the abortion, the medical risks associated with the procedure, the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term. "The performing physician or the physician's agent must also inform the woman that: (1) specified types of medical assistance benefits may be available to her; (2) the father is liable for child support; (3) public and private agencies provide pregnancy prevention counseling and referrals for obtaining birth control; and (4) she has the right to view printed state materials, which are also accessible on the Internet, describing the fetus and listing agencies that offer abortion alternatives. This information must be given to the woman by telephone or in person at least 24 hours before the abortion," the complaint states. Under current law, intentional performance of an abortion in violation of the WRKA constitutes a misdemeanor punishable by a fine of up to $10,000. HB 15 amends the Women's Right to Know Act by adding a new penalty, which requires the Texas Medical Board to "refuse to renew the license of any physician who violates the WRKA," the complaint states. In addition, it states that to obtain a woman's "informed consent," a doctor or a "certified sonographer" must perform an ultrasound on the woman at least 24 hours before the abortion. "Under the Act the physician who will perform the abortion must 'display[] the sonogram images in a quality consistent with medical practice in a manner that the pregnant woman may view them,'" the complaint states. "The physician who will perform the abortion must also describe the fetal image to the pregnant women in great detail," the complaint states. The doctor also must make the fetal heartbeat, if any, audible for the pregnant woman to hear, and verbally explain it to her. "Prior to the pre-abortion ultrasound, the woman must fill out a certification form indicating that she understands that: (1) Texas law requires she receive a ultrasound prior to receiving an abortion; (2) she has 'the option to view the sonogram images;' (3) she has the 'option to hear the heartbeat;' and (4) she is 'required by law to hear [the physician's] explanation of the sonogram images' unless she certifies in writing that she falls into one of three limited categories," according to the complaint. "The Act allows the woman to certify that she elects not to hear an explanation of the ultrasound images in only three circumstances: (a) if she is 'pregnant as a result of a sexual assault, incest or other violation of the Texas Penal Code that has been reported to law enforcement authorities or that has not been reported because [the woman] reasonably believe[s] that doing so would put [her] at risk of retaliation resulting in serious bodily injury;' (b) if she is a minor obtaining an abortion pursuant to a judicial bypass; or (c) if the 'fetus has an irreversible medical condition or abnormality, as identified by reliable diagnostic procedures and documented in [the patient's] medical file.'" While the law gives a pregnant woman the option not to view the sonogram, or hear the fetal heartbeat, if any, the "Act also states that the ultrasound images are 'required to be provided to' the woman and that 'consent to an abortion is voluntary and informed only if,' inter alia, the image is placed in the woman's view," the complaint states. "In light of the foregoing, it is not clear under the Act whether: (1) the woman's choice not to view the ultrasound images relieves the physician of the obligation to place the ultrasound images in the woman's view; (2) the woman's choice not to hear the verbal explanation relieves the physician of the obligation to provide that verbal explanation; and (3) the woman's choice not to hear the heart auscultation relieves the physician of the obligation to make the heart auscultation audible, if present. "In light of these ambiguities, and the harsh penalties and strict liability imposed by the Act, a physician seeking to avoid those penalties, including the risk of losing his or her medical license, will be compelled to: (1) place the ultrasound images in the woman's view even if the woman has indicated that she does not want to see them; (2) describe the ultrasound images to every woman seeking an abortion, even to a woman who falls in one of the three designated categories and has indicated that she does not want to hear the explanation; and (3) make the heart auscultation audible (either personally or through an agent who is a certified sonographer)." The class claims, "The Act will impose irreparable harms on patients who seek, and physicians who provide, abortions by depriving them of their constitutional rights to free speech, privacy, equal protection, and due process." The class seeks declaratory judgment that HB 15 is "unconstitutional and unenforceable" for vagueness, and because it "compels physicians to convey to their abortion patients in a private medical setting unwanted government speech that falls outside accepted and ethical standards and practices for medical informed consent," and subject patients to this same "unwanted government speech. The Act also discriminates on the basis of gender "by subjecting women to burdens not imposed on men; by perpetuating patronizing and paternalistic stereotypes of women as in need of special 'protections' and unable to make medical decisions on their own; and by enforcing the notion that a woman's primary and proper role is that of mother," the class says. Finally, the class claims the Act violates the Equal Protection Clause of the 14th Amendment by treating abortion patients and providers "differently than providers and patients of all other medical services in the state without any basis for the differential treatment other than discriminatory views towards women and animus towards abortion providers and patients who seek their services." Here are the defendants: Dr. David Leakey, commissioner of the Texas Department of State Health Services, in his official capacity; Mari Robinson, executive director of the Texas Medical Board, in her official capacity; and David Escamilla, County Attorney for Travis County, in his official capacity and as representative of the class of all county and district attorneys in the State of Texas with authority to prosecute misdemeanors; and their employees, agents and successors. A copy of the Complaint in Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, et al., Case No. 11-cv- 00486 (W.D. Tex.), is available at: http://www.courthousenews.com/2011/06/15/Abortion.pdf# The Plaintiffs are represented by: Dicky Grigg, Esq. SPIVEY & GRIGG, LLP 48 East Avenue Austin, TX 78701 Telephone: (512) 474-6061 E-mail: dicky@grigg-law.com - and - Susan Hays, Esq. GODWIN RONQUILLO, PC 1201 Elm Street, Suite 1700 Dallas, TX 75270 Telephone: (214) 557-4819 E-mail: shays@godwinronquillo.com - and - Bebe J. Anderson, Esq. Bonnie Scott Jones, Esq. CENTER FOR REPRODUCTIVE RIGHTS 120 Wall Street, 14th Floor New York, NY 10005 Telephone: (917) 637-3600 E-mail: banderson@reprorights.org bjones@reprorights.org - and - Jamie A. Levitt, Esq. J. Alexander Lawrence, Esq. Morrison & Foerster, LLP 1290 Avenue of the Americas New York, NY 10104 Telephone: (212) 336-8638 E-mail: alawrence@mofo.com TJX COMPANIES: Recalls 23,600 Emma's Garden Polka-Dot Dresses ------------------------------------------------------------- The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with The TJX Companies, Inc., of Framingham, Massachusetts, announced a voluntary recall of about 21,000 Emma's Garden(R) Polka-Dot girls' dresses in the United States of America and 2,600 in Canada. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The decorative buttons on the front of the dress can detach, posing a choking hazard. No incidents or injuries have been reported in the United States or Canada. This recall involves the Emma's Garden(R) polka-dot dresses. The girls' dresses in sizes 12 months to 5T were sold in black and white and pink and white. There are three decorative buttons which are round, white and approximately 3/4 inch in diameter. Dresses sold in the United States have neck tags bearing tracking number TJX-80327TDS1. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11249.html The recalled products were manufactured in China and sold at T.J. Maxx sold the pink and white design and Marshalls sold the black and white design in the United States from February 2011 through May 2011 for about $13. Winners stores sold both designs in Canada, from March 2011 through April 2011 for about $17. Consumers should immediately take the dresses away from children and return them to the place of purchase for a full refund. For additional information, consumers in the United States should call (800) 926-6299 between 9:00 a.m. and 6:00 p.m. Eastern Time Monday through Friday, or visit the Web sites http://www.tjmaxx.com/or http://www.marshallsonline.com/ Consumers in Canada should call toll-free (800) 646-9466 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, or visit the Web site http://www.winners.ca/ TOYS "R" US: Paid $1-Million Civil Penalty to FTC in May 2011 ------------------------------------------------------------- Toys "R" Us, Inc., paid approximately $1 million as a civil penalty pursuant to a stipulation with the Federal Trade Commission in May 2011, according to the Company's June 10, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2011. On July 15, 2009, the United States District Court for the Eastern District of Pennsylvania granted the class plaintiffs' motion for class certification in a consumer class action commenced in January 2006, which was consolidated with an action brought by two Internet retailers that was commenced in December 2005. Both actions allege that Babies "R" Us agreed with certain baby product manufacturers (collectively, with the Company, the "Defendants") to impose, maintain and/or enforce minimum price agreements in violation of antitrust laws. In addition, in December 2009, a third Internet retailer filed a similar action and another consumer class action was commenced making similar allegations involving most of the same Defendants. In January 2011, the parties in the consumer class actions entered into a settlement agreement, which has been preliminarily approved by the District Court. As part of the settlement, in March 2011, the Company made a payment of approximately $17 million towards the overall settlement. In addition, in January 2011, the plaintiffs, the Company and certain other Defendants in the Internet retailer actions entered into a settlement agreement pursuant to which the Company made a payment of approximately $5 million towards the overall settlement. In addition, on November 23, 2010, the Company entered into a Stipulation with the Federal Trade Commission ending the FTC's investigation related to the Company's compliance with a 1998 FTC Final Order and settling all claims in full. Pursuant to the settlement, in May 2011, the Company paid approximately $1 million as a civil penalty. UNITED STATES: Cobell Settlement Fairness Hearing Set Today ----------------------------------------------------------- Lorna Thackeray, writing for The Billings Gazette, reports that today, June 20, a federal judge in Washington, D.C., will begin hearing arguments on the fairness of a settlement agreement reached in a class-action lawsuit filed against the government by Indians who claim the Department of Interior mismanaged their trust accounts. The proceeding before Senior U.S. District Judge Thomas F. Hogan is the final hurdle in implementing a $3.4 billion agreement worked out late last year between the government and plaintiffs in the 15-year-old lawsuit. The settlement was approved by Congress and signed by the president. All that remains now is for the judge to determine if it is fair. Elouise Cobell, a member of Montana's Blackfeet Tribe, is lead plaintiff in the case that is usually referred to by her last name. In a wide-ranging multimedia campaign earlier this year, potential beneficiaries all across Indian Country were notified that they could receive a piece of the award. At the same time, they were informed that they could opt out of the settlement and proceed with their own lawsuits against the government. They were also given until April 20 to submit objections to the settlement. Ninety-two objections were filed and 19 objectors asked to be heard on June 20. Many objections concern attorneys' fees. In documents filed in Washington, D.C., earlier this year, attorneys representing Ms. Cobell requested $223 million, plus $1.3 million in expenses. They defended the amount as justified by the protracted length of the case, its complexity, the amount of resources necessary and the high risk involved in taking on a lawsuit that no other attorneys had been willing to pursue. They contend that their request was far less, proportionally, than those awarded attorneys in other complex class-action lawsuits. Objectors called the fee proposal "outrageous." Judge Hogan will decide what is fair. There were also objections to class incentive fees proposed for Ms. Cobell and three other plaintiffs who initiated the lawsuit. Ms. Cobell has asked for $2 million and the others are seeking $150,000 to $200,000 each. They are also asking $10.5 million in expenses. Objectors questioned the "exorbitant" expenses and argued that awards of such magnitude divided the four class representative from the class they claim to champion. One objector asked that the class itself be decertified because the interests of the representatives and the rest of the class may no longer be the same. The representatives have motive to get the settlement approved, regardless of its fairness, one objector complained. Ms. Cobell's attorneys fired back that "there is a significant risk without this settlement, class members will be left with no remedy at all." If the class representatives and their attorneys had not filed and pursued the lawsuit, most of the nearly half-million American Indians in the class would never be compensated for mismanagement of their accounts, they argued. "Certainly not any of the objectors or their opportunistic counsel took any affirmative steps to rectify over 100 years of gross mismanagement of Indian trusts," Ms. Cobell's attorneys wrote in their response briefs. Questions were also raised about the fairness of set payments for all members of the class when some had been damaged far more than others. Judge Hogan will probably not rule immediately. No one will get any money until he does. Nationwide, the lawsuit purports to represent 496,290 American Indians who had Individual Indian Money (IIM) accounts managed by the Department of Interior. Those accounts contain income from land or fractions of interest in land held in trust by the government. Income can include timber sales, mineral royalties and agricultural leases. The Department of Interior has estimated that 33,600 beneficiaries in Montana could receive a total of more than $87 million. Final approval would mean that most members of the class would get about $1,800 to settle their claims against the government. The government admitted no wrongdoing, but agreed to the multibillion-dollar settlement. Under terms of the agreement, $1.25 billion would be dispersed to IIM account holders. The remaining $2 billion would be used to consolidate tribal lands by purchasing fractionated interest. Fractionation is one of the root causes of the lawsuit because it made accounting for land interests nearly impossible. In a series of allotment acts starting in 1887, reservation lands were divided into small parcels and allotted to individual Indians. When an allottee died without a will, as most did, his or her land was divided among an array of heirs. Through successive generations, division of the property interests became so small that they are virtually worthless. One small parcel of land can have hundreds, even thousands, of owners. These fractionated interests became a management nightmare that grew each time land interests were passed to new generations. The $2 billion land consolidation award would be used to buy fractionated interests from willing sellers and consolidate the holdings to tribes. As an incentive to sellers, the settlement ties sales to a $60 million scholarship fund for Indian students. With every sale, money will be added to the fund. UNIVERSITY OF HAWAII: Faces Class Action Over Security Breach ------------------------------------------------------------- Courthouse News Service reports that a state class action claims the University of Hawaii allowed hackers repeated access to personal information of more than 100,000 students and alumni by, among other things, using Social Security numbers as identifiers, despite the obvious risks. A copy of the Complaint in Gross v. University of Hawai'i, Case No. 11-1-1217-06 (Haw. Cir. Ct.), is available at: http://www.courthousenews.com/2011/06/15/IDTheft.pdf The Plaintiff is represented by: Thomas R. Grande, Esq. GRANDE LAW OFFICES 1164 Bishop Street, Suite 124-24 Honolulu, HI 96813 Telephone: (808) 521-7500 E-mail: tgrande@grandlelawoffices.com - and - Bruce F. Sherman, Esq. 1164 Bishop Street, Suite 124-24 Honolulu, HI 96813 Telephone: (808) 221-0901 E-mail: bfs@bfshermanlaw.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Noemi Irene A. Adala, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *