/raid1/www/Hosts/bankrupt/CAR_Public/110712.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 12, 2011, Vol. 13, No. 136
Headlines
ALPHA NATURAL: Mediation Being Set in Suit vs. Massey Units
APOLLO GROUP: Court Approves Settlement in "Sabol" Suit
APOLLO GROUP: "Adoma" Suit Remains Pending
APOLLO GROUP: Arizona Dist. Court to Administer Claims in Suit
APOLLO GROUP: Awaits Ruling on Bid to Dismiss "Investors" Suit
APOLLO GROUP: Awaits Court Decision in "Teamsters" Suit
AUSTRALIA: Road Trains Mulls Class Action Over Export Suspension
AVON PRODUCTS: Faces Shareholder Class Action in New York
AVON PRODUCTS: Berman DeValerio Files Securities Class Action
BANK OF AMERICA: Investor Group Challenges $8.5-Bil. Settlement
CHANEL INC: Recalls 154 Silk Scarves and Garments
CHANGZHOU GLOBE: Recalls 20,000 Electric Log Splitters
COMPANHIA ENERGETICA: Suits Over Electricity Rates Pending
COMPANHIA ENERGETICA: Still Faces Environmental Damages Suits
COMPANHIA ENERGETICA: Minas Gerais Public Atty.'s Suits Pending
COMPANHIA ENERGETICA: Electricity Supply Contract Suits Pending
COMPANHIA ENERGETICA: Conduct Adjustment Pact Suit Still Pending
CR BARD: Reaches Agreements to Settle Hernia Product Claims
D.C. PUBLIC SCHOOLS: Special Ed. Class Action Nears Resolution
EDUSHAPE LTD: Recalls 18,000 Mini Stars Building Sets
GIGAMEDIA LTD: Appeal From IPO Suit Settlement Still Pending
GOOGLE INC: Sued Over Unsolicited Text Messages in California
JOHNSON & JOHNSON: Flooded With Suits Over DePuy Hip Joints
KRAFT FOODS: Discovery Schedule Set for Wage Class Action
MONSANTO CO: Trial in "Bibb" Suit Set for September 6, 2011
MONSANTO CO: Ex-Employees' Certiorari Petition Denied in March
MONSANTO CO: Reply in "Rochester" Suit Dismissal Bid Due August 12
NAPA HOME: Files for Bankruptcy Amid Recall; Mulls Asset Sale
NEWFOUNDLAND & LABRADOR: Seeks to Reduce Moose Collisions
PANASONIC CORP: Antitrust Violation Suits Still Pending
ROCKTENN COMPANY: Files Counterclaim in Smurfit-Stone Class Suit
SEARCHMEDIA HOLDINGS: "Murdeshwar" Suit Mediation Set for Jul. 26
SMART MODULAR: Continues to Defend Merger-Related Suit
UNITED STATES: July 15 Visa Draw Set Amid Class Action
WESTWOOD COLLEGE: Colorado Court Dismisses Class Action
*********
ALPHA NATURAL: Mediation Being Set in Suit vs. Massey Units
-----------------------------------------------------------
A mediation is being scheduled in the lawsuit filed against
subsidiaries of Massey Energy Company in Mingo County, West
Virginia, according to Alpha Natural Resources, Inc.'s June 30,
2011, Form 8-K filing with the U.S. Securities and Exchange
Commission.
Alpha completed its acquisition of Massey on June 1, 2011.
Since January 2003, an advocacy group and residents in Boone,
Kanawha, Mingo and Raleigh Counties, West Virginia, filed 17
lawsuits in the Circuit Courts of Kanawha and Mingo Counties, West
Virginia, against 12 of Massey's subsidiaries. Plaintiffs alleged
that defendants illegally transported coal in overloaded trucks,
causing damage to state roads, thereby, interfering with
plaintiffs' use and enjoyment of their properties and their right
to use the public roads. Plaintiffs seek injunctive relief and
compensatory and punitive damages. The Supreme Court of Appeals
of West Virginia referred the consolidated lawsuits, and similar
lawsuits against other coal and transportation companies not
involving the subsidiaries, to the Circuit Court of Lincoln
County, West Virginia, to be handled by a mass litigation panel
judge. Plaintiffs filed motions requesting class certification.
On June 7, 2007, plaintiffs voluntarily dismissed their public
nuisance claims seeking monetary damages for road and bridge
repairs. Plaintiffs also agreed to an order limiting any damages
for nuisance to two years prior to the filing of any lawsuit.
A motion to dismiss any remaining public nuisance claims was
resisted by plaintiffs and argued at hearings on December 14,
2007, and June 25, 2008. No rulings on these matters have been
made. Defendants filed a motion requesting that the mass
litigation panel judge recommend to the WV Supreme Court that the
cases be sent back to the circuit courts of origin for resolution.
That motion was verbally denied as to those cases in which
Massey's subsidiaries are defendants, and a class certification
hearing was held on October 21, 2009. To date, no decision has
been rendered by the Circuit Court on the class certification
issues. No date has been set for trial. A mediation is being
scheduled in the Mingo County case. Massey believes it has
insurance coverage applicable to these items and that they will be
resolved without a material adverse impact on Massey's cash flows,
results of operations or financial condition.
APOLLO GROUP: Court Approves Settlement in "Sabol" Suit
-------------------------------------------------------
A court approved an agreement to settle a lawsuit alleging wage
and hour claims against Apollo Group, Inc., according to the
Company's June 30, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended May 31, 2011.
On July 31, 2009, several former employees filed an action in
Federal District Court in Philadelphia alleging wage and hour
claims under the Fair Labor Standards Act for failure to pay
overtime and other violations, entitled, Sabol, et al. v. Apollo
Group, Inc., et al. The Company filed an answer denying the
asserted claim on September 29, 2009. During the course of the
action, all but one of the former employees voluntarily opted out
of the lawsuit. On January 24, 2010, the Company filed a motion
for partial summary judgment with respect to plaintiff's claim
that the "Academic Counselor" position is incorrectly classified
as exempt. On February 9, 2010, plaintiff filed a Rule 56(f)
motion seeking leave to conduct additional discovery before
response to the Company's motion for partial summary judgment. On
March 3, 2010, the Court granted plaintiff leave to conduct
additional discovery on issues related to the motion for partial
summary judgment until April 5, 2010. The Court also ordered
plaintiff to file his response to the motion for summary judgment
on or before April 20, 2010. On February 15, 2010, plaintiff
filed a motion for class certification and the Company filed its
opposition on March 5, 2010.
On April 19, 2010, the parties agreed to dismiss with prejudice
their claims regarding employment as an Academic Counselor and to
withdraw their pending motion for conditional certification to the
extent it seeks to certify a class of Academic Counselors. On May
12, 2010, the Court granted plaintiff's motion to conditionally
certify a collective action to include current and former
admissions personnel at all of nationwide locations of The
University of Phoenix Inc., a Company subsidiary. The deadline
for prospective class members to submit a claim form and "opt in"
was December 9, 2010, and the Company received notice of
approximately 700 opt-ins. In January 2011, the parties agreed to
settle the case for an immaterial amount, which was accrued in the
Company's financial statements during the second quarter of fiscal
year 2011. The agreement, which makes clear that the Company does
not admit any liability, was approved by the Court on June 28,
2011.
APOLLO GROUP: "Adoma" Suit Remains Pending
------------------------------------------
A lawsuit commenced by Diane Adoma against Apollo Group, Inc., in
California remains pending, according to the Company's June 30,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended May 31, 2011.
On January 8, 2010, Diane Adoma filed an action in United States
District Court, Eastern District of California, alleging wage and
hour claims under the Fair Labor Standards Act and California law
for failure to pay overtime and other violations, entitled Adoma
et al. v. University of Phoenix, et al. On March 5, 2010, the
Company filed a motion to dismiss, or in the alternative to stay
or transfer, the case based on the previously filed Sabol and
Juric actions. On May 3, 2010, the Court denied the motion to
dismiss and/or transfer. On April 12, 2010, plaintiff filed her
motion for conditional collective action certification. The Court
denied class certification under the FLSA and transferred these
claims to the District Court in Pennsylvania. On August 31, 2010,
the Court granted plaintiff's motion for class action
certification of the California claims. On September 14, 2010,
the Company filed a petition for permission to appeal the class
certification order with the Ninth Circuit, which was denied on
November 3, 2010. There are approximately 1,500 current and
former employees in the class.
Because of the many questions of fact and law that may arise, the
Company says the outcome of this legal proceeding is uncertain at
this point. Based on information available to the Company at
present, it cannot reasonably estimate a range of loss for this
action and, accordingly, the Company has not accrued any liability
associated with this action.
APOLLO GROUP: Arizona Dist. Court to Administer Claims in Suit
--------------------------------------------------------------
A consolidated securities litigation against Apollo Group, Inc.,
is currently before the U.S. District Court for the District of
Arizona for the administration of shareholder claims process,
according to the Company's June 30, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
May 31, 2011.
In October 2004, three class action complaints were filed in the
U.S. District Court for the District of Arizona. The District
Court consolidated the three pending class action complaints under
the caption In re Apollo Group, Inc. Securities Litigation, Case
No. CV04-2147-PHX-JAT and a consolidated class action complaint
was filed on May 16, 2005, by the lead plaintiff. The
consolidated complaint, also known as the Policeman's Annuity and
Benefit Fund of Chicago matter, named the Company, Todd S. Nelson,
Kenda B. Gonzales and Daniel E. Bachus as defendants. On March 1,
2007, by stipulation and order of the Court, Mr. Bachus was
dismissed as a defendant from the case. Lead plaintiff represents
a class of the Company's shareholders who acquired their shares
between February 27, 2004, and September 14, 2004. The complaint
alleges violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated under the Act by
the Company for defendants' allegedly material false and
misleading statements in connection with the Company's failure to
publicly disclose the contents of a preliminary U.S. Department of
Education program review report. The case proceeded to trial on
November 14, 2007. On January 16, 2008, the jury returned a
verdict in favor of the plaintiffs awarding damages of up to $5.55
for each share of common stock in the class lawsuit, plus pre-
judgment and post-judgment interest. The class shares are those
purchased after February 27, 2004, and still owned on
September 14, 2004. The judgment was entered on January 30, 2008,
subject to an automatic stay until February 13, 2008. On
February 13, 2008, the District Court granted the Company's motion
to stay execution of the judgment pending resolution of the
Company's motions for post-trial relief, which were also filed on
February 13, 2008, provided that the Company posts a bond for
$95.0 million. On February 19, 2008, the Company posted the $95.0
million bond with the District Court. Oral arguments on the
Company's post-trial motions occurred on August 4, 2008, during
which the District Court vacated the earlier judgment based on the
jury verdict and entered judgment in favor of Apollo and the other
defendants. The $95.0 million bond posted in February was
subsequently released on August 11, 2008. Plaintiffs' lawyers
filed a Notice of Appeal with the Ninth Circuit Court of Appeals
on August 29, 2008. A hearing before a panel of the Court of
Appeals took place on March 3, 2010. On June 23, 2010, the Court
of Appeals reversed the District Court's ruling in the Company's
favor and ordered the District Court to enter judgment against the
Company in accordance with the jury verdict. On July 21, 2010,
the Company filed a petition for a rehearing en banc by the Ninth
Circuit, which was denied on August 17, 2010. On November 15,
2010, the Company filed a petition for certiorari to the U.S.
Supreme Court, which was denied on March 7, 2011. As a result,
the case has now returned to the District Court to administer the
shareholder claims process.
Liability in the case is joint and several, which means that each
defendant, including the Company, is liable for the entire amount
of the judgment. As a result, the Company may be responsible for
payment of the full amount of damages as ultimately determined.
The Company does not expect to receive material amounts of
insurance proceeds from the Company's insurers to satisfy any
amounts ultimately payable to the plaintiff class and the Company
expects its insurers to seek repayment of amounts advanced to the
Company to date for defense costs. The actual amount of damages
will not be known until the District Court proceedings have been
completed and eligible members of the class have presented the
necessary information and documents to receive payment of the
award. The Company has estimated for financial reporting
purposes, using statistically valid models and a 60% confidence
interval, that the damages could range from $127.2 million to
$228.0 million, which includes the Company's estimates of (a)
damages payable to the plaintiff class; (b) the amount the Company
may be required to reimburse the Company's insurance carriers for
amounts advanced for defense costs; and (c) future defense costs.
Accordingly, in the third quarter of fiscal year 2010, the Company
recorded a charge for estimated damages in the amount of $132.6
million, which, together with the existing reserve of $44.5
million recorded in the second quarter of fiscal year 2010,
represented the mid-point of the estimated range of damages
payable to the plaintiffs, plus the other estimated costs and
expenses. The Company elected to record an amount based on the
mid-point of the range of damages payable to the plaintiff class
because under statistically valid modeling techniques the mid-
point of the range is in fact a more likely estimate than other
points in the range, and the point at which there is an equal
probability that the ultimate loss could be toward the lower end
or the higher end of the range. The Company's range of damages
estimate included estimated post-judgment interest through
June 23, 2010. The Company has recorded charges in subsequent
periods for estimated incremental post-judgment interest and
additional estimated future legal costs, including $2.0 million
and $4.5 million in the three and nine months ended May 31, 2011.
The final amount of damages payable may be more, or less, than the
estimated range.
The Company believes it has adequate liquidity to fund the
satisfaction of the judgment.
APOLLO GROUP: Awaits Ruling on Bid to Dismiss "Investors" Suit
--------------------------------------------------------------
Apollo Group, Inc., is awaiting a court decision on its motion to
dismiss a consolidated securities class action lawsuit, according
to the Company's June 30, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 31,
2011.
On August 13, 2010, a securities class action complaint was filed
in the U.S. District Court for the District of Arizona by Douglas
N. Gaer naming the Company, John G. Sperling, Gregory W. Cappelli,
Charles B. Edelstein, Joseph L. D'Amico, Brian L. Swartz and
Gregory J. Iverson as defendants for allegedly making false and
misleading statements regarding the Company's business practices
and prospects for growth. That complaint asserted a putative
class period stemming from December 7, 2009, to August 3, 2010. A
substantially similar complaint was also filed in the same court
by John T. Fitch on September 23, 2010, making similar allegations
against the same defendants for the same purported class period.
Finally, on October 4, 2010, another purported securities class
action complaint was filed in the same court by Robert Roth
against the same defendants as well as Brian Mueller, Terri C.
Bishop and Peter V. Sperling based upon the same general set of
allegations, but with a defined class period of February 12, 2007,
to August 3, 2010. The complaints allege violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder. On October 15, 2010, three
additional parties filed motions to consolidate the related
actions and be appointed the lead plaintiff.
On November 23, 2010, the Fitch and Roth actions were consolidated
with Gaer and the Court appointed the "Apollo Institutional
Investors Group" consisting of the Oregon Public Employees
Retirement Fund, the Mineworkers' Pension Scheme, and Amalgamated
Bank as lead plaintiffs. The case is now entitled, In re Apollo
Group, Inc. Securities Litigation. On February 18, 2011, the lead
plaintiffs filed a consolidated complaint naming Apollo, John G.
Sperling, Peter V. Sperling, Joseph L. D'Amico, Gregory W.
Cappelli, Charles B. Edelstein, Brian L. Swartz, Brian E. Mueller,
Gregory J. Iverson, and William J. Pepicello as defendants. The
consolidated complaint asserts a putative class period of May 21,
2007, to October 13, 2010. On April 19, 2011, the Company filed a
motion to dismiss. No oral argument has been scheduled.
Discovery in this case has not yet begun. The Company anticipates
that the plaintiffs will seek substantial damages, including
damages representing the aggregate investment losses attributable
to the alleged false and misleading statements by all shareholders
who purchased shares during the 29-month putative class period and
still held those shares on October 13, 2010. Because of the many
questions of fact and law that may arise, the outcome of this
legal proceeding is uncertain at this point. Based on information
available to it at present, the Company cannot reasonably estimate
a range of loss for this action and, accordingly, has not accrued
any liability associated with these actions.
APOLLO GROUP: Awaits Court Decision in "Teamsters" Suit
-------------------------------------------------------
Apollo Group, Inc., is awaiting a court decision on plaintiffs'
motion for reconsideration of a ruling dismissing a securities
class action lawsuit commenced by the Teamsters Local 617 Pension
and Welfare Funds, according to the Company's June 30, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended May 31, 2011.
On November 2, 2006, the Teamsters Local 617 Pension and Welfare
Funds filed a class action complaint purporting to represent a
class of shareholders who purchased the Company's stock between
November 28, 2001, and October 18, 2006. The complaint, filed in
the U.S. District Court for the District of Arizona, is entitled
Teamsters Local 617 Pension & Welfare Funds v. Apollo Group, Inc.
et al., Case Number 06-cv-02674-RCB, and alleges that the Company
and certain of its current and former directors and officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder by purportedly
making misrepresentations concerning the Company's stock option
granting policies and practices and related accounting. The
defendants are Apollo Group, Inc., J. Jorge Klor de Alva, Daniel
E. Bachus, John M. Blair, Dino J. DeConcini, Kenda B. Gonzales,
Hedy F. Govenar, Brian E. Mueller, Todd S. Nelson, Laura Palmer
Noone, John R. Norton III, John G. Sperling and Peter V. Sperling.
On September 11, 2007, the Court appointed The Pension Trust Fund
for Operating Engineers as lead plaintiff. Lead plaintiff filed
an amended complaint on November 23, 2007, asserting the same
legal claims as the original complaint and adding claims for
violations of Section 20A of the Securities Exchange Act of 1934
and allegations of breach of fiduciary duties and civil
conspiracy.
On January 22, 2008, all defendants filed motions to dismiss. On
March 31, 2009, the Court dismissed the case with prejudice as to
Daniel Bachus, Hedy Govenar, Brian E. Mueller, Dino J. DeConcini,
and Laura Palmer Noone. The Court also dismissed the case as to
John Sperling and Peter Sperling, but granted plaintiffs leave to
file an amended complaint against them. Finally, the Court
dismissed all of plaintiffs' claims concerning misconduct before
November 2001 and all of the state law claims for conspiracy and
breach of fiduciary duty. On April 30, 2009, plaintiffs filed
their Second Amended Complaint, which alleges similar claims for
alleged securities fraud against the same defendants. On
June 15, 2009, all defendants filed another motion to dismiss the
Second Amended Complaint. On February 22, 2010, the Court
partially granted the plaintiffs' motion for reconsideration, but
withheld a final determination on the individual defendants
pending the Court's ruling on the motion to dismiss the Second
Amended Complaint.
On March 31, 2011, the U.S. District Court for the District of
Arizona dismissed the case with prejudice and entered judgment in
the Company's favor. Plaintiffs filed a motion for
reconsideration of this ruling and, if that is not successful,
plaintiffs have indicated they will appeal the ruling. The
Company says the outcome of this legal proceeding is uncertain at
this point. Based on the information available to it at present,
the Company cannot reasonably estimate a range of loss for this
action and, accordingly, the Company has not accrued any liability
associated with this action.
AUSTRALIA: Road Trains Mulls Class Action Over Export Suspension
----------------------------------------------------------------
ABC Rural reports that the biggest livestock trucking company in
Australia is considering a class action against the Federal
Government for the cost of the live export suspension.
Dave Jones is the managing director of Road Trains of Australia
who own 70 trucks that service northern Australia's cattle
industry.
He says moving cattle for the live export trade accounts for 60%
of his jobs and the suspension has cost millions of dollars.
"We were just getting going from a late start because of the late
wet season and we've basically just about pulled up and we've got
a very limited work load ahead of us," he said.
"We've had to de-register some trucks and let some drivers go who
decided to move on."
AVON PRODUCTS: Faces Shareholder Class Action in New York
---------------------------------------------------------
Courthouse News Service reports that Avon Products inflated its
share price by failing to report it had paid millions of dollars
of bribes in China and elsewhere for years, and the stock price
sank when it was revealed, shareholders say in a federal class
action filed in New York.
AVON PRODUCTS: Berman DeValerio Files Securities Class Action
-------------------------------------------------------------
The law firm of Berman DeValerio on July 7 announced the filing of
a class action accusing Avon Products, Inc. of proxy fraud and
other violations of federal securities laws.
The lawsuit was brought on behalf of shareholders who either (1)
held Avon stock at the close of business of March 17, 2011,
March 17, 2010, March 18, 2009, March 14, 2008 or March 15, 2007
and were therefore eligible to vote proxies or (2) purchased or
otherwise acquired Avon's common stock from July 31, 2006, through
and including May 24, 2011.
The City of Brockton Retirement System filed the complaint July 6,
2011, against Avon and certain of the Company's officers and
directors in the United States District Court for the Southern
District of New York. The case is filed as civil action no. 11-
cv-4665.
Pursuant to the Private Securities Litigation Reform Act of 1995,
investors wishing to serve as lead plaintiff are required to file
a motion for appointment with the Court no later than September 6,
2011.
The claims arise under Sections 10(b), 14(a) and 20(a) of the
Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder by the Securities and Exchange Commission,
including Rules 10b-5 and 14a-9.
The complaint charges defendants with misleading investors as to
the size and scope of potential violations of the Foreign Corrupt
Practices Act. The action seeks to recover losses for investors
and relief regarding voting on annual proxy statements which are
alleged to have been misleading.
To receive a copy of the complaint, please contact:
Justin Saif, Esq.
Berman DeValerio
Telephone: (800) 516-9926
E-mail: jsaif@bermandevalerio.com
If you are a member of the Class, you may, no later than
September 6, 2011, request that the court appoint you as Lead
Plaintiff for the class. You may contact the attorneys at
Berman DeValerio to discuss your rights and interests in the case.
Please note: you may also retain counsel of your choice and need
not take any action at this time to be a class member.
Berman DeValerio is a national law firm representing plaintiffs in
lawsuits against corporate wrongdoers, chiefly for violations of
securities and antitrust laws. The firm has 37 lawyers in Boston,
San Francisco and South Florida.
BANK OF AMERICA: Investor Group Challenges $8.5-Bil. Settlement
---------------------------------------------------------------
The Associated Press reports that Bank of America's $8.5 billion
settlement with investors over poor-quality mortgage bonds is
facing a new challenge.
On July 5, a group of bond investors calling themselves Walnut
Place said they objected to the terms of the settlement. In a
filing with the New York Supreme Court, the investors said they
wanted to be excluded from the settlement that was struck after
negotiations between the bank and 22 institutional investors such
as BlackRock Inc., the Federal Reserve Bank, and Pimco. The
settlement was meant to cover a broader group of investors being
represented by a trustee.
The Walnut Place group said the 22 investors were self-appointed
and didn't represent or solicit the views of the broader group of
bondholders.
CHANEL INC: Recalls 154 Silk Scarves and Garments
-------------------------------------------------
About 120 Chanel silk scarves, and 34 dresses, skirts and blouses
were voluntarily recalled by Chanel Inc., of New York, in
cooperation with the U.S. Consumer Product Safety Commission.
Consumers should stop using the product immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The garments fail to meet the federal flammability standard for
wearing apparel, posing a fire hazard to consumers.
No incidents or injuries have been reported.
The scarves, dresses, skirts and blouses are made of 100 percent
silk and come in a variety of designs. Nearly all items were
returned to Chanel in May 2010. Pictures of the recalled products
are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11749.html
The recalled products were manufactured in France or Italy, and
sold at Chanel Boutiques, Neiman Marcus and Maxfield stores for
$430 to $3,650 in March and April 2010.
Consumers should immediately stop using the garments and contact
the firm to receive a full refund. For more information, contact
Chanel customer service at (800) 550-0005 or
ConsumerRelations@chanelusa.com
CHANGZHOU GLOBE: Recalls 20,000 Electric Log Splitters
------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
manufacturer, Changzhou Globe Tool Group Co. Ltd., of China, and
importer, L G Sourcing Inc., of North Wilkesboro, North Carolina,
announced a voluntary recall of about 20,000 Task Force 5-ton
electric log splitters. Consumers should stop using recalled
products immediately unless otherwise instructed. It is illegal
to resell or attempt to resell a recalled consumer product.
The electric log splitters have a hydraulic arm that, during use,
slides under the handle used to move the machine. The moving
hydraulic arm poses a laceration or amputation injury hazard to
individuals who place their hands on that handle while the
splitter is in operation.
There have been two reports of injuries, including a fingertip
amputation of an 18-year-old man and one finger laceration injury
of a 60-year-old man. Both individuals were injured after placing
their hands on the handle while the splitter was in operation.
The log splitters are silver and black, electric 5-ton models.
The log splitter brand name, model and this item number is
included in this recall:
Brand Name Mfg. Model No. Item Number
---------- -------------- -----------
Task Force 26083 241483
The item number and model number is printed on the power switch
label at the rear of the log splitter. "Task Force" is printed on
the side rail of the log splitters. Picture of the recalled
products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11273.html
The recalled products were manufactured in China and sold
exclusively at Lowe's stores nationwide from January 2008 through
March 2011 for about $300.
Consumers should immediately stop using the recalled log splitters
and contact Changzhou Globe Tool Group Co. Ltd. to receive a free
set of warning labels including placement instructions. For
additional information contact Changzhou Globe Tool Group Co. Ltd.
toll-free at (866) 456-8934 between 9:00 a.m. and 5:00 p.m.
Eastern Time Monday through Saturday or send an e-mail to
logsplitter@sunrisetools.ca
COMPANHIA ENERGETICA: Suits Over Electricity Rates Pending
----------------------------------------------------------
Lawsuits contesting the rates Companhia Energetica de Minas Gerais
(CEMIG) charges its consumers are pending, according to the
Company's June 30, 2011, Form 20-F filing with the U.S. Securities
and Exchange Commission for the year ended December 31, 2010.
The Company is a defendant in lawsuits and class actions brought
by consumers, consumer rights groups and the office of the public
prosecutor of Minas Gerais, Brazil, contesting the rates the
Company charges its consumers, the application of the rate
increases determined by Agencia Nacional de Energia Eletrica or
the Brazilian National Electric Energy Agency (Aneel), the
inflationary index used to increase the Company's rates, and the
rate subsidies granted to low income consumers. These lawsuits
involve claims for the suspension of the rate increases and for
the reimbursement to the Company's consumers of twice the amount
of any additional rates it collected. All of the Company's rate
increases are granted based on Aneel's prior authorization and the
Company believes it has a meritorious defense to each of these
lawsuits. The Company says it is not possible at the present time
to estimate the amounts involved in these claims, the chances of
loss of which have been assessed as "remote." The Company has not
accrued any liability related to these claims.
COMPANHIA ENERGETICA: Still Faces Environmental Damages Suits
-------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) remains a defendant
in lawsuits alleging environmental damages, according to the
Company's June 30, 2011, Form 20-F filing with the U.S. Securities
and Exchange Commission for the year ended December 31, 2010.
The Company and its subsidiaries are defendants in several class
action lawsuits, in which the amounts involved cannot be precisely
assessed due to the fact that most of these lawsuits aim at
addressing environmental damages and require the undertaking of
indemnification, remediation and compensation measures that will
be defined during the process. Beyond that, class actions may
benefit third parties not originally involved in the proceedings,
who may be entitled to further remediation or indemnification.
Therefore, claim amounts may not correspond to the actual amounts
that CEMIG may be required to pay in legal proceedings involving
environmental matters.
No further updates or details were reported in the Company's
latest SEC filing.
COMPANHIA ENERGETICA: Minas Gerais Public Atty.'s Suits Pending
---------------------------------------------------------------
Class action lawsuits commenced by the Public Attorney of Minas
Gerais against Energy Co of Minas Gerais are pending, according to
the Company's June 30, 2011, Form 20-F filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2010.
The Public Attorney of Minas Gerais, Brazil, filed seven class
actions against the Company, also known as Companhia Energetica de
Minas Gerais (CEMIG), seeking an order against CEMIG to invest at
least 0.5% of its total operational revenue per year on the
protection and environmental preservation of the water tables of
municipalities related to CEMIG's generation plants, since 1997.
As of May 31, 2011, judgment had been rendered in only two of the
seven actions. In one of these actions, judgment was granted
partly in favor of the Public Attorneys' Office of Minas Gerais,
with CEMIG being ordered to invest 0.5% of the gross operational
revenue in measures for environmental preservation and protection
of the water tables in Ouro Preto. CEMIG has filed an appeal to
the State Appeal Court of Minas Gerais. One other action was
dismissed for lack of standing to sue the defendant. The chances
of loss in such lawsuits were assessed as "possible" and the
Company assessed that it was not likely that a present obligation
existed as of the date of the financial statements. The Company
has not yet assessed the amount involved in such lawsuits.
COMPANHIA ENERGETICA: Electricity Supply Contract Suits Pending
---------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) is a defendant in
several public class actions challenging the clause in the
Electricity Supply Contracts for public illumination, signed
between the Company and the various municipalities of its
concession area, and restitution by the Company of the difference
representing the amounts charged in the last 20 years, in the
event that the courts recognize that these amounts were unduly
charged. The actions are grounded on a supposed mistake by CEMIG
in the estimate of time used for the calculation of the
consumption of electricity by public illumination paid for by the
Public Illumination Contribution (CIP). On December 31, 2010, the
amount involved in this action was approximately R$1.0 billion.
The Company has assessed the chances of loss as "possible" and
that it was not likely that a present obligation existed as of the
date of the financial statements.
No further updates were reported in the Company's June 30, 2011,
Form 20-F filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2010.
COMPANHIA ENERGETICA: Conduct Adjustment Pact Suit Still Pending
----------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) continues to defend a
class action lawsuit arising from the implementation of the Light
for All program in Brazil, according to the Company's June 30,
2011, Form 20-F filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2010.
A class action was brought against the Company and nine other
defendants requesting nullification of the Conduct Adjustment
Undertaking (TAC) signed between the Public Attorneys' Office and
the Company, ordering the restitution to public funds of the
amounts transferred to the defendant companies for implementation
of the Light for All (Luz para Todos) program. The application
for interim remedy was refused, and the plaintiff appealed to the
Regional Federal Appeals Court (Tribunal Regional Federal). The
updated amount involved, of R$1,940 million, as of December 31,
2010, refers to the request for restitution of the amounts
received by the companies that carried out the services contracted
by CEMIG in order to comply with such governmental program, and
fees of counsel. The class action has been sent to the State
Court, after the Federal Court decided that it did not have
jurisdiction to hear the case. In 2010, the Company has re-
assessed the chances of loss of such proceeding as "remote."
No further updates were reported in the Company's latest SEC
filing.
CR BARD: Reaches Agreements to Settle Hernia Product Claims
-----------------------------------------------------------
C. R. Bard, Inc., has reached agreements in principle with various
plaintiffs' law firms to settle a majority of its existing "Hernia
Product Claims," according to the Company's June 30, 2011, Form 8-
K filing with the U.S. Securities and Exchange Commission.
Based on these events, the Company expects to incur a charge of
approximately $184 million ($181 million after tax) in the second
quarter of 2011, which will recognize the estimated costs of
settling all Hernia Product Claims, including asserted and
unasserted claims, and costs to administer the settlements. This
charge excludes any costs associated with pending putative class
action lawsuits. The agreements with the various plaintiffs' law
firms are subject to certain conditions, including requirements
for participation in the proposed settlements by a certain minimum
number of their respective clients.
"Hernia Product Claims" refers to individual lawsuits and non-
litigated claims, as well as putative class actions filed or
asserted against the Company, with respect to its Composix(R)
Kugel(R) and certain other hernia repair implant products. The
Hernia Product Claims generally seek damages for personal injury
resulting from use of the products. The Company voluntarily
recalled certain sizes and lots of the Composix(R) Kugel(R)
products beginning in December 2005.
D.C. PUBLIC SCHOOLS: Special Ed. Class Action Nears Resolution
--------------------------------------------------------------
Kavitha Cardoza, writing for WAMU 88.5, reports that D.C. Public
Schools have reduced the backlog of cases involving special
education students waiting to meet with hearing officers, meaning
the District has been released from a part of a longstanding class
action lawsuit Blackman-Jones.
There is still a lot left to be done, however, before the entire
lawsuit is dismissed.
A court-appointed monitor found the District now has a 90%
timeliness compliance in the Blackman part of the case. This
means most students who file complaints about the special
education services they receive now meet a hearing officer and
have the issue resolved within 45 days.
Lewis Bossing, who represents families in the lawsuit, says there
has been significant progress. But there's still the Jones part
of the case to consider, he adds. That part deals with whether
the decisions made by hearing officers are actually implemented in
a timely manner.
He says a court monitor estimated the district was in the 70%
compliance range, which is up from 20%.
"That's a lot of progress and we acknowledge that as attorneys for
the plaintiffs," Mr. Bossing says. "But there's still a lot of
work to be done to make the last lap."
Mr. Bossing says the District has to show that it's implementing
decisions and can maintain that level of compliance before the
Jones case is dismissed.
EDUSHAPE LTD: Recalls 18,000 Mini Stars Building Sets
-----------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Edushape Ltd., of Deer Park, New York, announced a voluntary
recall of about 18,000 Mini Stars building sets. Additional star
building sets were recalled in September 2010. Consumers should
stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
Plastic knobs can break from the center of the stars, posing a
choking hazard to young children.
The CPSC and Edushape have received two reports of the knobs
breaking off from the center of the stars. No injuries have been
reported.
This recall involves Mini Stars building sets. The Mini Stars
measure three inches in diameter and are made of opaque plastic.
Each star has six circular knobs protruding from a ring-shaped
center. Edushape only makes Mini Stars in red, green, yellow or
blue colors which are included in this recall. The Mini Stars do
not have any markings, codes or logos stamped into the plastic.
They were sold in sets of 12, 24, 36, 48 and 72 pieces.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11272.html
The recalled products were manufactured in China and sold at small
retail stores nationwide, online at Toys R Us.com, Amazon.com and
CSN on walmart.com from January 2007 through December 2009 for
between $10 and $50.
Consumers should immediately take the recalled Mini Star building
sets away from children and contact Edushape for a free
replacement set or credit towards another Edushape product of
equal or lesser value. For additional information, contact
Edushape at (800) 404-4744 between 9:00 a.m. and 4:00 p.m. Eastern
Time Monday through Friday, or visit the firm's Web site at
http://www.edushape.com/
GIGAMEDIA LTD: Appeal From IPO Suit Settlement Still Pending
------------------------------------------------------------
An appeal from the final court approval of a settlement of an
initial public offering litigation involving GigaMedia Limited
remains pending, according to the Company's June 30, 2011, Form
20-F filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2010.
In December 2001, a class action lawsuit was filed in the United
States District Court for the Southern District of New York
against the Company in connection with the initial public offering
of the Company stock.
The complaint alleged that the Company violated Section 11 and
Section 15 of the Securities Exchange Act of 1933 and Section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. In October 2002, plaintiffs voluntarily
dismissed the individual defendants without prejudice. On
February 19, 2003, the court issued an opinion and order on
defendants' motions to dismiss, which granted the motions in part
and denied the motions in part. As to GigaMedia, the Rule 10b-5
claims were dismissed without prejudice, while the Section 11
claims survived the motion. Discovery in the actions commenced.
In June 2004, plaintiffs and issuer defendants, including the
Company, presented the executed settlement agreement (the
"Issuers' Settlement") to the judge during a court conference.
Subsequently, plaintiffs and issuer defendants made a motion for
preliminary approval of the settlement agreement. The key terms
of the Issuers' Settlement included: 1) the insurers of the
issuers would provide an undertaking to guarantee that the
plaintiffs would recover a total of $1 billion; 2) the insurers
would pay up to $15 million for the notice costs arising from the
settlement; 3) the issuers would assign their interest in certain
claims against the underwriters to a litigation trust, represented
by plaintiffs' counsel; and 4) the plaintiffs would release all of
the settling issuer defendants. That is, if plaintiffs were
successful in recovering more than $1 billion from the
underwriters, the issuer defendants would not be obligated to pay
any additional amounts. If plaintiffs recovered less than $1
billion from the underwriters, the insurers would pay the deficit
between $1 billion and the amount received from the underwriters.
On February 15, 2005, the judge issued an opinion and order
granting preliminary approval to the settlement agreement subject
to a narrowing of the proposed bar order as to only contribution
claims. On April 24, 2006, the court held a fairness hearing on
the proposed Issuers' Settlement, which was subject to the court's
approval.
On December 5, 2006, the United States Court of Appeals for the
Second Circuit issued an opinion vacating the District Court's
class certification in the six focus cases, which do not include
the Company. Because the Second Circuit's opinion was directed to
class certification in the focus cases, the opinion's effect on
the proposed class to be certified by the District Court in
connection with the Issuers' Settlement was unclear.
On December 15, 2006, the District Court held a conference with
all counsel in the IPO securities class action lawsuit to discuss
the impact of the opinion. In the conference, the District Court
agreed to stay all proceedings, including discovery and
consideration of the Issuers' Settlement, pending further
decisions from the Second Circuit.
On January 5, 2007, plaintiffs filed a petition in the Second
Circuit for rehearing and rehearing en banc regarding the decision
on class certification (the "Petition"). On April 6, 2007, the
Second Circuit rendered its decision which denied the Petition.
In April, May, and June 2007, the District Court held several
conferences to discuss the issues regarding class certification,
statute of limitations, the Issuers' Settlement and discovery. In
June 2007, a stipulation terminating the Issuers' Settlement was
submitted to the District Court.
In September 2007, discovery moved forward in the six focus cases,
which do not include the Company. Plaintiffs filed amended
complaints against the focus case issuer and underwriter
defendants and moved for class certification in those actions. In
November 2007, the underwriters and issuers filed motions to
dismiss the amended complaints in the focus cases. In December
2007, plaintiffs filed their opposition to defendants' motions to
dismiss. In January 2008, defendants filed their reply briefs in
further support of the motions to dismiss.
On March 26, 2008, the District Court granted in part and denied
in part the motion to dismiss the focus cases. The motion to
dismiss was granted only as to claims brought under Section 11 of
the Securities Act by plaintiffs who sold their securities for a
price in excess of the initial offering price and by those
plaintiffs who purchased outside the previously certified class
period.
On April 9, 2008, the underwriters filed a motion for
reconsideration of the holding in the March 26, 2008 opinion that
the Section 11 claims against the focus case issuer was not time
barred, on the basis that no Section 11 class in that case was
certified in 2004. The issuers joined in that motion on behalf of
the focus case issuer by letter to the District Court on
April 10, 2008.
In December 2007, the issuers filed their oppositions to class
certification in the focus cases. In March 2008, plaintiffs filed
their reply brief in further support of class certification. The
underwriters and issuers submitted sur-replies in further
opposition to class certification on April 22, 2008, addressing
issues related to the deposition of the plaintiffs' expert.
As set forth in Plaintiffs' Motion For Preliminary Approval of the
Settlement and accompanying documents, which were filed on
April 2, 2009, after eight years of litigation all parties to the
IPO Cases have agreed to settle the actions on a global basis (the
"IPO Settlement Agreement"). Pursuant to the IPO Settlement
Agreement, the defendants have agreed to pay $586 million in total
to settle all 309 IPO Cases, including the GigaMedia action. The
agreement to settle was reached after a lengthy mediation followed
by months of negotiation to reach agreement on the details. As to
the Company's portion of the settlement payment, its insurance
companies are paying the entire settlement amount.
In June 2009, the District Court granted the plaintiffs' motion
for preliminary approval of the IPO Settlement Agreement.
Subsequently, in October 2009, the judge granted final approval to
the settlement. Certain objectors have filed notices of appeal to
the United States Circuit Court for the Second Circuit seeking to
reverse or vacate the order granting final approval to the IPO
Settlement Agreement. However, no briefs have been filed yet with
respect to these appeals.
In January 2010, the IPO Settlement Agreement required that the
IPO Securities Litigation Settlement Fund be treated as a
Qualified Settlement Fund within the meaning of Treasury
Regulation 1.468B-1 and that each transferor of funds to the
Settlement Fund provide a statement to the administrators of the
Settlement Fund pursuant to Treasury Regulation 1.468B-3(e) by
January 31, 2010. Liaison counsel for the issuers has submitted a
combined statement on behalf of all such issuers. Six notices of
appeal and one petition to appeal the certified class have been
filed and all but two of the six have been withdrawn. In October
2010, for the two appeals that were not withdrawn, plaintiffs-
appellants filed their opening briefs. The opening briefs
challenged the settlement on several grounds, including
certification of the classes, the fees, and the expenses awarded
to the plaintiffs' counsel. On December 30, 2010, the answering
briefs were filed, and on May 17, 2011, the Second Circuit issued
a ruling on the two remaining appeals, granting the motion to
dismiss one of the appeals, and remanding the other appeal back to
the District Court to determine procedural issues relating to
standing.
The Company says it had an insurance policy with American
Insurance Group with $10 million of liability coverage when the
class action lawsuit was made. The Company believes that the
insurance coverage is sufficient to cover the liability arising
from the settlement and claim.
GOOGLE INC: Sued Over Unsolicited Text Messages in California
-------------------------------------------------------------
Jessica Franklin, individually and on behalf of all others
similarly situated v. Google, Inc., and Slide, Inc., Case No.
4:11-cv-03333 (N.D. Calif., July 07, 2011) is brought for damages,
injunctive relief, and any other legal or equitable remedies from
the illegal actions of the Defendants sending unsolicited text
messages to Plaintiff's cellular phone in violation of the
Telephone Consumer Protection Act.
The Plaintiff contends that the result of the Defendants' text
messages is a firestorm of text messages as each person in the
group responds by trying to figure out who is sending this
unsolicited spam. Ms. Franklin points out that since each
person's response is received by every other member of the group,
this multiplies the number of text messages received by each group
member, potentially costing each user for hundreds of text
messages that they never wanted or authorized in the first place.
Ms. Franklin is a resident of North Carolina.
Google is a Delaware corporation with its principal place of
business in Mountain View, California. Slide is a Delaware
Corporation that maintains its principal place of business in San
Francisco, California. Both Defendants conduct business
throughout the United States of America, including California.
The Plaintiff is represented by:
Jordan L. Lurie, Esq.
Joel E. Elkins, Esq.
WEISS & LURIE
10940 Wilshire Blvd., 23rd Floor
Los Angeles, CA 90024
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jlurie@weisslurie.com
jelkins@weisslurie.com
- and -
Law Offices of Stefan Coleman, PLLC
1072 Madison Ave, Suite 1
Lakewood, NJ 08701
Telephone: (877) 333-9427
JOHNSON & JOHNSON: Flooded With Suits Over DePuy Hip Joints
-----------------------------------------------------------
Jonathan D. Rockoff and Dionne Searcey, writing for The Wall
Street Journal, report that Johnson & Johnson is facing around a
thousand lawsuits arising from its recalled metal-on-metal hip
joints made by the Company's DePuy Orthopaedics Inc. unit.
First came a flood of lawsuits blaming Toyota Motor Corp. cars for
unintended acceleration, then a wave of litigation over BP PLC's
massive oil spill. Now, artificial hip joints made by Johnson &
Johnson have plaintiffs' attorneys flocking to the courthouse.
"Everybody is looking for the next big tort," says California
attorney Dana Taschner, who is representing clients in numerous
lawsuits against J&J, as well as the other two companies.
About 1,000 lawsuits have been filed in federal and state courts
accusing the drug and medical-device maker of knowing about
problems with some of its metal-on-metal hip joints before its
DePuy Orthopaedics Inc. unit stopped making them in 2009. J&J,
which later recalled the joints world-wide, denies the allegations
and is fighting back.
The number of hip-joint lawsuits against J&J pales beside the tens
of thousands filed against Merck & Co. over the painkiller Vioxx,
withdrawn from the market in 2004, and the myriad lawsuits filed
over the years against asbestos makers. But the litigation could
expose the New Brunswick, N.J., health-care company to $1 billion-
plus in potential liability and other costs, according to a Wells
Fargo analyst.
A spokeswoman for DePuy declined to comment on the liability
issue, except to say that J&J boosted its reserves for product-
liability costs, for products including the recalled hip joints,
by $570 million last year. In addition, J&J, which had 2010 sales
of $61.6 billion, has put aside about $280 million to cover
surgeries and other medical care for patients with those joints.
A panel of federal judges has consolidated many of the hip-joint
lawsuits in federal court in Ohio. Some plaintiff's lawyers are
pushing for the court to certify the plaintiffs in the case as a
class, whose complaints can be combined into a single lawsuit.
Florida attorney Ben Gordon, one of the leaders of the plaintiffs
committee in the federal litigation, said J&J has turned over more
than 200,000 of the nearly 18 million pages of internal documents
it is expected to submit.
Such mass litigation is a big business, often producing
multimillion-dollar settlements and sometimes similarly large jury
verdicts for plaintiffs. Defense attorneys, meanwhile, can rack
up huge bills for their services during the long-running cases.
But these battles also can be a gamble. Plaintiff's attorneys in
the Toyota case have spent millions of dollars hiring experts and
translating Japanese documents. But a recent government report
that blamed driver error -- and not Toyota -- for incidents in
which the company's vehicles appeared to speed out of control
could end up undermining their case.
J&J, whose products range from Band-Aids to cancer drugs, recalled
its metal-on-metal hip joints last year after British data showed
them wearing down or otherwise requiring replacement at unusually
high rates. That was the first indication the company had of any
flaws in the product, the DePuy spokeswoman said.
Some patients had to undergo risky and expensive surgery to remove
and replace the recalled implant -- a metal ball and socket
designed to replicate a natural hip joint.
J&J estimates that about 37,000 patients in the U.S. and about
93,000 world-wide have received the recalled device. The DePuy
spokeswoman said the company will cover the cost of all medical
care associated with the device, including replacement surgery.
She wouldn't say how many replacement surgeries it has paid for
but said that, as of mid-June, DePuy had helped nearly 27,000
callers, many of whose calls led to claims for reimbursement.
Some patients who received the recalled hip joint, the so-called
articular surface replacement, or ASR, system, say in their
lawsuits that medical tests showed chromium and cobalt in their
bloodstreams and allege the potentially toxic metals came from
parts of the joint wearing down and leaching into their system.
Many of the plaintiffs also complain of pain and infections or
inflammation, among the most common reasons that doctors removed
and replaced the devices. "I had a lot of weird problems --
urinary tract infections, fevers -- they'd come back every time I
stopped taking antibiotics," said 59-year-old Lavonne Gordon, of
Brea, Calif. Ms. Gordon says medical tests also revealed she had
high levels of chromium and cobalt in her blood. She sued J&J
claiming her problems were tied to the two DePuy devices she had
implanted in August 2006. She is slated to have the second of the
two recalled hip joints replaced this August.
Ms. Gordon's lawsuit was filed in state court in California and
has been consolidated with similar complaints there. A hearing on
those lawsuits is set for July 26.
Though the DePuy spokeswoman said the recalled joints contain
cobalt and chromium, she said it wasn't clear whether the devices
contributed to elevated levels of those metals in patients' blood
or how many patients might have this problem.
In May, the FDA said particles from the metal-on-metal hip joints,
such as cobalt and chromium, might wear off and make their way
into a patient's blood. The agency said this could contribute to
heavy concentrations of cobalt and chromium in the body but it
wasn't clear if that would cause symptoms -- such as trouble
seeing and diseased heart muscle -- that had been reported by a
"small number" of those who received the joints. To better
understand potential health effects, the FDA ordered J&J and other
makers of the metal-on-metal joints to monitor the devices for
possible health risks.
Most replacement hips are metal on plastic, but these joints also
can wear down, potentially leaving plastic debris in the body,
according to Mary O'Connor, chair of the orthopedic department at
the Mayo Clinic Florida.
To attract new clients to the litigation, plaintiffs' lawyers have
launched Web sites, such as http://depuyhipreplacementlawsuit.com/
and even YouTube videos to encourage patients who received the
device to sue. They also have filed lawsuits -- several dozen, so
far -- alleging similar defects in another metal-on-metal DePuy
hip device called Pinnacle, which remains on the market.
The DePuy spokeswoman said the company stands by Pinnacle. She
called the product "one of the most widely used and clinically
successful" hip-replacement devices on the market, and said it is
"backed by more than a decade's worth of clinical data
consistently showing that it is a safe and effective option."
The outcome of the ASR lawsuits may hinge on when DePuy learned
the devices were faulty. A lawsuit Mr. Taschner filed on behalf
of hip-replacement patient Maurice Brigham accuses DePuy and J&J
of knowing two years before the recall that the devices failed
"early in a high percentage of patients."
Most of the plaintiffs' attorneys contend that officials from an
Australian medical-device registry, a database that tracks patient
complaints, first warned DePuy about high rates of failure and
complications from the ASR devices in 2007. After analyzing the
data, Australia's medical-device regulator took action to curb the
use of DePuy's ASR hip joint, and achieved a "marked reduction" in
implants of the device, an agency spokeswoman says.
"If you knew about the problem and didn't recall the product for a
year more, that tends to justify a higher award of punitive
damages," said Columbia University law professor John Coffee.
But, he added, the defendant can seek to block the cases from
being certified as class actions by arguing that injuries in each
patient are different. That move could limit its liability,
though individual cases could still rack up big awards or
settlements if patients suffered significantly, Mr. Coffee said.
The spokeswoman for DePuy said the Australian database was among a
variety of sources that the company monitored to keep track of the
safety of its hip joints, but it was subsequent information from a
British registry that prompted last year's decision to recall the
parts.
DePuy voluntarily recalled the devices last fall "in the best
interest of patients," after new data from the British database
showed five-year rates for replacing the hip parts were 12% and
13%, higher than previously reported, the company spokeswoman
said. Under generally accepted standards, DuPuy has said, no more
than 5% of patients should require a repeat hip replacement
surgery within five years.
The spokeswoman said DePuy monitors the performance of all its
products, and the ASR devices appeared to have low replacement
rates until the British data came out.
KRAFT FOODS: Discovery Schedule Set for Wage Class Action
---------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
that the course is laid out for a proposed class action brought
over allegedly unpaid wages at a Granite City Kraft Foods Global
Inc. plant.
Madison County Chief Judge Ann Callis entered an agreed-upon case
management order on July 1 in the suit filed by lead plaintiff
Joan Jones.
The order lays out the players in the suit, their attorneys, and
the schedule of discovery leading up to the suit's Oct. 1, 2012
trial.
Ms. Jones claims that Kraft violated the Illinois Minimum Wage Act
and Illinois Wage Payment and Collection Act by failing to pay
wages to employees at its Granite City plant for time they spent
putting on protective gear and completing other tasks.
The proposed class totals about 500 workers at the plant.
Kraft denies the plaintiff's claims.
The company is seeking to have the suit dismissed.
Judge Callis has not yet ruled on the motion to dismiss nor has
she certified the class to date.
The suit was filed earlier this year.
According to the July 1 order, discovery has yet to get underway
in the suit.
The discovery related to liability and class certification is be
finished Oct. 1.
Further discovery related to experts on the matter of class
certification is due Dec. 15 and discovery related to damages will
be finished June 15, 2012.
The plaintiff is to file her motion for class certification by
Jan. 1, 2012.
The parties will then spend the remaining months leading to a
Sept. 2, 2012 pre-trial, completing matters related to expert
witnesses, exhibit lists and other trial matters.
The parties estimate the suit's trial, if it takes place, will
take about nine days.
The sides have not discussed a possible settlement of the action
to date.
Joseph Phebus, Ryan Bradley, and William Graham Jr. of Urbana
currently represent the plaintiff and proposed class.
Douglas Phebus of Middleton, Wisc., was granted pro hac vice
standing to act with the plaintiff's team in the suit last month.
Daniel Kaplan of Madison, Wisc., and Jonathan Garlough of Chicago
represent the defendant. The order indicates Mr. Kaplan will be
the lead trial attorney in the case for Kraft.
The case is Madison case number 11-L-82.
MONSANTO CO: Trial in "Bibb" Suit Set for September 6, 2011
-----------------------------------------------------------
Trial is set for September 6, 2011, in the class action lawsuit
captioned Zina G. Bibb et al. v. Monsanto Co. et al., according to
the Company's June 30, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 31,
2011.
On December 17, 2004, 15 plaintiffs filed a purported class action
lawsuit, styled Virdie Allen, et al. v. Monsanto, et al., in the
Putnam County, West Virginia, state court against Monsanto, its
former parent, Pharmacia Corporation, and seven other defendants.
Monsanto is named as the successor-in-interest to the liabilities
of Pharmacia. The alleged class consists of all current and
former residents, workers, and students who, between 1949 and the
present, were allegedly exposed to dioxins/furans contamination in
counties surrounding Nitro, West Virginia. The complaint alleges
that the source of the contamination is a chemical plant in Nitro,
formerly owned and operated by Pharmacia and later by Flexsys, a
joint venture between Pharmacia's former subsidiary, Solutia Inc.,
and Akzo Nobel Chemicals, Inc. Akzo Nobel and Flexsys were named
defendants in the case but Solutia was not, due to its then
pending bankruptcy proceeding. The lawsuit seeks damages for
property cleanup costs, loss of real estate value, funds to test
property for contamination levels, funds to test for human
exposure, and future medical monitoring costs. The complaint also
seeks an injunction against further contamination and punitive
damages. Monsanto had agreed to indemnify and defend Akzo Nobel
and the Flexsys defendant group, but on May 27, 2011, the judge
dismissed both Akzo Nobel and Flexsys from the case. The class
action certification hearing was held on Oct. 29, 2007. On
Jan. 8, 2008, the trial court issued an order certifying the Allen
(now Zina G. Bibb et al. v. Monsanto et al., because Bibb replaced
Allen as class representative) case as a class action. The court
has set a trial date of Sept. 6, 2011, for the Bibb class action.
MONSANTO CO: Ex-Employees' Certiorari Petition Denied in March
--------------------------------------------------------------
Plaintiffs' petition for writ of certiorari in connection with a
lawsuit filed by Monsanto Company's two former employees was
denied on March 21, 2011, according to the Company's June 30,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended May 31, 2011.
On June 23, 2004, two former employees of Monsanto and its former
parent, Pharmacia Corporation, filed a purported class action
lawsuit in the U.S. District Court for the Southern District of
Illinois against Monsanto and the Monsanto Company Pension Plan.
The lawsuit claims that the Pension Plan has violated the age
discrimination and other rules under the Employee Retirement
Income Security Act of 1974 from January 1, 1997, (when the
Pension Plan was sponsored by Pharmacia, then known as Monsanto
Company) and continuing to the present. In January 2006, a
separate group of former employees of Pharmacia filed a similar
purported class action lawsuit in the U.S. District Court for the
Southern District of Illinois against Pharmacia, the Pharmacia
Cash Balance Plan, and other defendants. On July 7, 2006, the
plaintiffs amended their lawsuit to add Monsanto and the Pension
Plan as additional defendants. On September 1, 2006, the Court
consolidated these lawsuits with two purported class action
lawsuits also pending in the same Court against the Solutia
Company Pension Plan, under Walker v. Monsanto, the first filed
case. The court conducted a class certification hearing on
September 12, 2007. Prior to the hearing, all parties agreed the
case should proceed as a class action and also agreed on a
definition of the respective classes. The classes were certified
by court order on May 22, 2008.
On July 11, 2008, all parties filed dispositive motions on the
issue of liability, which motions were heard by the court on
May 6, 2009. On June 11, 2009, the Court granted summary judgment
in favor of Monsanto and the other defendants on the age
discrimination claims. The Court granted summary judgment in
favor of the plaintiffs on a separate claim regarding post-
termination interest, which was subsequently settled for an
immaterial amount. The Court entered judgment on the entire case
on September 29, 2009. On October 27, 2009, the plaintiffs filed
a notice of appeal of the summary judgment order on the age
discrimination claims. The Seventh Circuit Court of Appeals heard
oral argument in the case on April 20, 2010, and on
July 30, 2010, the Court issued its decision affirming the
decision of the District Court in all respects. The plaintiffs'
subsequent petition for rehearing and petition for rehearing en
banc was denied in an order of the Court of Appeals issued on
September 14, 2010. On December 13, 2010, the plaintiffs filed a
petition for a writ of certiorari with the United States Supreme
Court, which was denied by the Court on March 21, 2011.
MONSANTO CO: Reply in "Rochester" Suit Dismissal Bid Due August 12
------------------------------------------------------------------
Monsanto Company's reply to an opposition to its motion to dismiss
a class action lawsuit commenced by Rochester Laborers Pension
Fund is due August 12, 2011, according to the Company's June 30,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended May 31, 2011.
On July 29, 2010, a purported class action lawsuit, styled
Rochester Laborers Pension Fund v. Monsanto Co., et al., was filed
against the Company and three of its past and present executive
officers in the U.S. District Court for the Eastern District of
Missouri. The lawsuit alleged that defendants violated the
federal securities laws by making false or misleading statements
between January 7, 2009, and May 27, 2010, regarding the Company's
earnings guidance for fiscal 2009 and 2010 and the anticipated
future performance of the Company's ROUNDUP business. On
November 1, 2010, the Court appointed the Arkansas Teacher
Retirement System as lead plaintiff in the action. On January 31,
2011, lead plaintiff filed an amended complaint against the
Company and four of its past and present executive officers in the
same action. The amended complaint alleges that defendants
violated the federal securities laws by making false and
misleading statements during the same time period, regarding the
Company's earnings guidance for fiscal 2009 and 2010 as well as
the anticipated future performance of the Company's ROUNDUP
business and its Seeds and Genomics business. Lead plaintiff
claims that these statements artificially inflated the price of
the Company's stock and that purchasers of the stock during the
relevant period were damaged when the stock price later declined.
Lead plaintiff seeks the award of unspecified amount of damages on
behalf of the alleged class, counsel fees and costs.
The Company believes it has meritorious legal positions and will
continue to represent its interests vigorously in this matter. On
April 1, 2011, defendants moved to dismiss the amended complaint
for failure to state a claim upon which relief may be granted. On
June 14, 2011, lead plaintiff has filed its opposition to the
motion, and defendants' reply thereto is due to be filed on
August 12, 2011.
NAPA HOME: Files for Bankruptcy Amid Recall; Mulls Asset Sale
-------------------------------------------------------------
Katy Stech, writing for Dow Jones' Daily Bankruptcy Review,
reports that Georgia-based Napa Home & Garden Inc., a home-decor
distributor that made sold bottled burnable candle fuel has filed
for Chapter 11 bankruptcy protection, facing dozens of lawsuits by
burn victims.
According to the June 27 edition of the Class Action Reporter, the
U.S. Consumer Product Safety Commission, in cooperation with Napa
Home & Garden, of Duluth, announced a voluntary recall of about
460,000 bottles and jugs of pourable NAPAfire and FIREGEL Gel
Fuel. The pourable gel fuel can ignite unexpectedly and splatter
onto people and objects nearby when it is poured into a firepot
that is still burning. This hazard can occur if the consumer does
not see the flame or is not aware that the firepot is still
ignited. Fuel gel that splatters and ignites can pose fire and
burn risks to consumers. Napa is aware of 37 reports of
incidents, including 23 burn injuries to consumers.
According to DBR, the company's bankruptcy filing on Tuesday shows
that it plans to sell itself through a court-supervised auction.
Teters Floral Products Inc. of Missouri has offered $1.1 million.
The bankruptcy filing automatically halts ongoing lawsuits and
prevents new ones without special court permission, DBR notes.
Existing and future lawsuits would continue against what remains
of Napa Home & Garden's bankruptcy estate once the sale closes.
NEWFOUNDLAND & LABRADOR: Seeks to Reduce Moose Collisions
---------------------------------------------------------
The Canadian Press reports that Newfoundland and Labrador is
launching a C$5-million pilot project to implement measures
including fencing and warning detectors along highways in an
effort to reduce the number of collisions involving moose.
The proposals announced on July 6 come weeks after a judge
supported certification of a class-action lawsuit against the
province led by moose-vehicle accident victims.
The Progressive Conservative government is also preparing for an
Oct. 11 election -- a fact not lost on those who said the measures
should have been introduced sooner.
"It's something that was needed 10 or 12 years ago," lawyer
Ches Crosbie, representing the class-action plaintiffs, said of
the pilot project.
"I think they're doing the bare minimum they think they can get
away with and not suffer the wrath of voters in the election in
October. So far they don't think that requires them to make any
financial amends for the people who've been injured in the past."
Police estimate there were about 800 incidents involving vehicles
and the lumbering animals last year alone, including two fatal
accidents.
The effort announced on July 6 includes a 15-kilometre "test
section" of moose fencing to be built along the Trans-Canada
Highway by this fall.
Transportation Minister Tom Hedderson said the exact location will
be based on a review of moose accident data. Piles of rock
boulders will be placed at either end of the fence to deter moose
from the roadway.
The pilot project also includes infrared detection systems set
high enough to trigger warning lights if big animals pass by. And
the province will add $1 million to the $2 million it already
spends a year cutting roadside brush.
These efforts are on top of an expanded hunting season and the
addition of more than 5,000 extra moose hunting licenses this
year, bringing the total moose quota to 33,440 for the island.
It's estimated the moose population has soared to between 120,000
and 200,000 since they were first introduced to Newfoundland from
New Brunswick in 1904.
An unproven statement of claim filed in the class-action lawsuit
accuses the province of negligently failing to manage a population
of animals "with no natural predator (other than black bears which
prey on very young calves)."
Collisions with the long-legged, top heavy animals can be
devastating at highway speeds of 70 to 110 kilometers per hour.
Adult moose weigh between 360 to 450 kilograms -- 800 to 1,000
pounds -- or more.
The province has posted warning signs and urged motorists to
respect speed limits. But the unpredictable animals have been
known to dart in front of vehicles with little warning, and are
frequently seen loping down city streets or in urban parks in
spring.
Eugene Nippard formed the Save Our People Action Committee two
years ago to push for government action.
He was driving with his niece and a friend in his Mercury Sable in
2002 when he struck a 180-kilogram female moose on the Trans-
Canada Highway. Broken bones and lacerations have long since
healed, but Mr. Nippard says he has never recovered
psychologically from the ordeal.
"When I drive on the highway in the daylight, I'm still a little
bit scared," he said from Grand Falls-Windsor, N.L., about a four-
hour drive from St. John's. "At night, I panic.
"But there's people that have got to drive for a living. We can't
shut down the highway because we've got moose."
PANASONIC CORP: Antitrust Violation Suits Still Pending
-------------------------------------------------------
Panasonic Corporation remains a defendant in class action lawsuits
alleging antitrust violations, according to the Company's June 30,
2011, Form 20-F filing with the U.S. Securities and Exchange
Commission for the year ended March 31, 2011.
The Company and certain of its subsidiaries are subject to a
number of legal proceedings including civil litigations related to
tax, products or intellectual properties, or governmental
investigations. Since November 2007, the Company and MT Picture
Display Co., Ltd. (MTPD), a subsidiary of the Company, are subject
to investigations by government authorities, including the Japan
Fair Trade Commission, the U.S. Department of Justice and the
European Commission, in respect of alleged antitrust violations
relating to cathode ray tubes (CRTs). Subsequent to these actions
by the authorities, a number of class action lawsuits have been
filed in the U.S. and Canada against the Company and certain of
its subsidiaries. In October 2009, the Japan Fair Trade
Commission issued a cease and desist order against MTPD and
assessed a fine against its three subsidiaries in South East Asia,
but each named company filed for a hearing to challenge the orders
which is currently subject to proceedings. Since February 2009,
the Company is subject to investigations by government
authorities, including the U.S. Department of Justice and the
European Commission, in respect of alleged antitrust violations
relating to compressors for refrigerator use. Subsequent to these
actions by the authorities, a number of class action lawsuits have
been filed in the U.S. and Canada against the Company and certain
of its subsidiaries. The Company has been cooperating with the
various governmental investigations.
Depending upon the outcome of these different proceedings, the
Company and certain of its subsidiaries may be subject to an
uncertain amount of fines, and accordingly, the Company has
accrued for certain probable and reasonable estimated amounts for
the fines. The Company has entered into a plea agreement with the
U.S. Department of Justice in September 2010, and with the
Competition Bureau Canada in October 2010 to resolve alleged
antitrust violations relating to compressors for refrigerator use.
This agreement did not have a material effect on the Company's
consolidated financial statements. Other than those lawsuits,
there are a number of legal actions against the Company and
certain subsidiaries. Management is of the opinion that damages,
if any, resulting from these actions will not have a material
effect on the Company's consolidated financial statements.
ROCKTENN COMPANY: Files Counterclaim in Smurfit-Stone Class Suit
----------------------------------------------------------------
RockTenn on July 7 announced that it filed a counterclaim in the
pending Smurfit-Stone shareholder class action lawsuit.
As previously disclosed, there is a class action lawsuit against
Rock-Tenn Company, RockTenn CP, LLC, a wholly owned subsidiary of
RockTenn that is the successor to Smurfit-Stone Container
Corporation, and former directors of Smurfit-Stone pending in the
Delaware Court of Chancery, challenging the recently completed
acquisition by RockTenn of Smurfit-Stone. The lawsuit includes
claims that the proxy statement provided to Smurfit-Stone
shareholders in connection with the transaction contained
misleading or inadequate disclosures regarding the merger.
Plaintiffs sought damages and a preliminary injunction to enjoin
the shareholder vote to approve and adopt the merger agreement.
On May 20, 2011, the Court denied the plaintiffs' motion for
preliminary injunction. On May 27, 2011, Smurfit-Stone's
shareholders voted to approve the transaction, and the merger was
consummated later that day.
In the counterclaim filed on July 7, RockTenn notified the Court
of an error in the proxy statement provided to Smurfit-Stone
shareholders in connection with the transaction. The error was
the attachment and summary of an outdated version of the Delaware
appraisal statute, rather than the current version. RockTenn
requested that the Court order that plaintiffs are not entitled to
any damages or the imposition of any other remedy with respect to
this error.
About RockTenn
RockTenn is a manufacturer of corrugated and consumer packaging
and recycling solutions, with annualized net sales of
approximately $10 billion. The Company has 26,000 employees. It
operates locations in the United States, Canada, Mexico, Chile,
Argentina and China.
SEARCHMEDIA HOLDINGS: "Murdeshwar" Suit Mediation Set for Jul. 26
-----------------------------------------------------------------
Mediation in the lawsuit commenced by Sid Murdeshwar against
SearchMedia Holdings Limited is scheduled for July 26, 2011,,
according to the Company's June 30, 2011, Form 20-F filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2010.
A shareholder complaint was filed on September 13, 2010, by Sid
Murdeshwar against SearchMedia Holdings, the former Ideation
officers and directors and certain of the SearchMedia Holdings'
officers and directors as a purported class action on behalf of
the shareholders of SearchMedia Holdings in the United States
District Court for the Central District of California. The case
was filed under the caption Sid Murdeshwar, Individually and on
Behalf of All Others Similarly Situated, Plaintiff v. SearchMedia
Holdings Limited, formerly known as Ideation Acquisition Corp.,
Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin,
Glenn Halpryn, Thomas E. Beier, David H. Moskowitz, Shawn Gold,
Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer Huang,
Defendants.
A separate shareholder complaint was filed on December 23, 2010,
by Hymie Akst against SearchMedia Holdings, the former Ideation
officers and directors and certain of the SearchMedia Holdings'
officers and directors as a purported class action on behalf of
the shareholders of SearchMedia Holdings in the United States
District Court for the Southern District of Florida. The case was
filed under the caption Hymie Akst, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. SearchMedia Holdings
Limited f/k/a Ideation Acquisition Corp., Robert N. Fried, Phillip
Frost, Rao Uppaluri, Steven D. Rubin, Glenn Halpryn, Thomas E.
Beier, David H. Moskowitz, Shawn Gold, Garbo Lee, Paul Conway,
Qinying Liu, Earl Yen, and Jennifer Huang, Defendants.
On February 17, 2011, the Murdeshwar action was transferred to the
United States District Court for the Southern District of Florida.
The Akst plaintiffs voluntarily dismissed their action on
February 23, 2011. On April 11, 2011, the Murdeshwar plaintiffs
amended their complaint.
The amended complaint alleges, among other things, that the
directors of SearchMedia Holdings violated the federal securities
laws by making false and misleading statements regarding
Ideation's acquisition of the target company, SearchMedia
International and by overstating SearchMedia International's
financial results. The amended complaint further alleges that the
Individual Defendants are liable for the alleged
misrepresentations as controlling persons. The complaint seeks
certification of a class of SearchMedia Holdings' shareholders who
purchased or otherwise acquired SearchMedia Holdings securities
between April 1, 2009, and August 20, 2010, and all persons who
were holders of SearchMedia Holdings on October 2, 2009, an award
of compensatory damages, an award of reasonable fees and costs
incurred in this action, and such other relief as the Court deems
just and proper.
The Court has ordered that any defendant in the Murdeshwar action
who is not served with the amended complaint by July 29, 2011,
will be dismissed without prejudice. On May 2, 2011, the Company
and the Individual Defendants who have been served filed a motion
to dismiss the claims asserted against them. The Court has not
yet ruled on the motion to dismiss. A mediation is scheduled for
July 26, 2011.
SMART MODULAR: Continues to Defend Merger-Related Suit
------------------------------------------------------
SMART Modular Technologies (WWH), Inc., continues to defend a
consolidated class action lawsuit over its proposed merger with
Saleen Holdings, Inc., according to the Company's June 30, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended May 27, 2011.
On April 26, 2011, the Company entered into an Agreement and Plan
of Merger with Saleen Holdings, Inc., a Cayman Islands exempted
company ("Parent"), and Saleen Acquisition, Inc., a Cayman Islands
exempted company and wholly owned subsidiary of Parent ("Merger
Sub"), providing for the merger of Merger Sub with and into the
Company, with the Company surviving the Merger as a wholly owned
subsidiary of Parent. Parent and Merger Sub were formed by the
private equity funds Silver Lake Partners III, L.P., and Silver
Lake Sumeru Fund, L.P., Ajay Shah, the Chairman of the Board of
the Company, is also a Managing Director of Silver Lake Sumeru
Fund, L.P.
Four putative class action lawsuits relating to the proposed
acquisition of the Company by Saleen Holdings, Inc., have been
filed in the Superior Court of the State of California, County of
Alameda, on behalf of the Company's shareholders against the
Company, members of its Board of Directors, and other defendants.
Walpole v. SMART Modular Technologies, Inc. et al., No. RG11573587
was filed on April 29, 2011. Peters v. Ajay Shah et al., No.
RG11574156 was filed on May 4, 2011. Marder v. SMART Modular
Technologies, Inc. et al., No. RG11575180 and Wilkes v. Ajay Shah
et al., No. RG11575013 were filed on May 10, 2011. On June 10,
2011, the court consolidated the actions for all purposes,
designating the Walpole Action as the lead case. The complaints
generally allege that the Company and members of its Board of
Directors breached their fiduciary duties by causing the Company
to enter into the Merger Agreement pursuant to an unfair process
and at a price that undervalues the Company. The complaints
further assert that Silver Lake Partners III, L.P., Silver Lake
Sumeru Fund, L.P., and their affiliates aided and abetted those
alleged breaches of duty. The actions seek damages as well as
declaratory and injunctive relief, including an order prohibiting
consummation of the Merger or rescinding the Merger if
consummated. The Company believes these claims are without merit,
and intends to vigorously defend against them, however, the
Company cannot make an assessment at this time as to the amount or
range of the liability, if any, resulting from such claims.
UNITED STATES: July 15 Visa Draw Set Amid Class Action
------------------------------------------------------
Susan Falvella Garraty, writing for The Irish Echo, reports that
the U.S. State Department still terms the bungling of thousands of
diversity visa applications as a "computer glitch," but wants
applicants to hold on to their original confirmation codes because
there's still a chance they may win a green card.
Despite this position, however, a Los Angeles-based law firm is
proceeding with a series of legal challenges on behalf of 36 named
individuals, several of them Irish, who were informed that they
had won a diversity visa only to be told later that there had been
a mistake resulting from a computer glitch.
The three-pronged legal action includes an injunction motion
seeking an accelerated court hearing, an interim judgment ahead of
the scheduled July 15 diversity visa drawing, and a for class
certification.
A State Department official would not comment on the legal action
taken on behalf of 22,000 diversity visa applicants who were told
in May that they had won a coveted visa, but only days later
received another e-mail from the State Department telling them
there had been a technical error and they had not in fact won.
California attorney, Kenneth White, has brought suit against the
State Department on behalf of the 36 named individuals, and in the
class certification portion of his suit is seeking to secure
agreement from the court to allow all 22,000 applicants join with
the 36 in a class action.
The State Department official referred queries about the lawsuit
to the Department of Justice, but also offered further advice to
applicants already in the system
"A new random selection process is being conducted based on the
original entries," said the official.
"All qualified diversity visa entries that were received during
the original October 5 to November 3, 2010 registration period are
included in the new random selection, and individuals who
submitted qualified entries do not need to reapply."
Most importantly, the official said, "confirmation codes received
at the time of registration are still valid."
This means that those who previously applied should check the
State Department's Web site http://www.dvlottery.state.gov
starting around July 15 to see if this time around they truly have
been selected.
This, of course, assumes that there is no legal impediment in the
meantime as a result of Mr. White's action.
Several Irish applicants who have signed on for the action have
expressed their bitter disappointment over their early joy being
turned to bitter disappointment.
"I was absolutely gutted. This was my dream smashed to pieces,"
is how one Irish applicant, who gave his name as Damian, put it.
"Should the State Department be unrestrained and go forward in
running the second drawing in the way it plans, it would be
irreparably harming the interests of the class of 22,000," said
attorney Mr. White in a statement.
"By pressing on with its plan to allocate the available visas to
an entirely new set of winners ahead of the outcome of the class
action lawsuit, this could render any favorable verdict for the
plaintiffs meaningless, and result in a travesty of justice," he
said.
WESTWOOD COLLEGE: Colorado Court Dismisses Class Action
-------------------------------------------------------
Dana Olsen, writing for Corporate Counsel, reports that like one
of the sequels that show up regularly each summer at the
neighborhood cineplex, Westwood College has been back in court,
battling once again a group of former students and the law firm
that's represented them in a long-running dispute.
In the latest installment, a Colorado federal court dismissed a
class action lawsuit brought by the students. But the court did
not rule on the merits of their deceptive marketing claims, and
the students are still free to bring individual claims to
arbitration.
Judge William Martinez's June 6 denial of class action status for
the plaintiffs is based on the April U.S. Supreme Court ruling in
AT&T Mobility LLC v. Concepcion that barred arbitration in class
action lawsuits and strengthened arbitration clauses in individual
consumer contracts. The Westwood ruling is the first for-profit
education decision to follow the newly set precedent.
Judge Martinez wrote in his opinion that he had to follow
Concepcion, even though the holding "was a serious blow to
consumer class actions and likely foreclosed the possibility of
any recovery for many wronged individuals."
Tampa, FL-based firm James, Hoyer, Newcomer, Smiljanich &
Yanchunis filed the lawsuit in a Denver district court on behalf
of ex-Westwood students Krystle Bernal and Amanda Krol. The
plaintiffs accused their alma mater of using high-pressure
recruitment methods to enroll them in costly fashion merchandising
and criminal justice programs, which they say were not worth the
expense, as neither graduate has secured employment in their
respective fields. Ms. Bernal and Ms. Krol also sought class
action status so thousands of other potential plaintiffs could
join the suit, and it was the class action request that ultimately
led Judge Martinez to dismiss the case.
The plaintiffs, along with every other Westwood student, had
signed an arbitration agreement with a class action waiver upon
enrollment. According to Judge Martinez's written opinion, the
Westwood arbitration agreement is similar to agreements other for-
profit schools have in place, and does not contain uncommon
provisions. The Supreme Court ruling in Concepcion dictates that
such arbitration clauses are enforceable, the judge ruled.
"This was a significant decision for us," Westwood chief legal and
compliance officer Bill Ojile says. The Colorado court's refusal
to certify a class, he says, is an obstacle that will be difficult
for the plaintiff's attorneys to overcome. "The James, Hoyer
lawyers were trying to find some silver lining in the ruling, but
I'm not sure I agree there is one," says Mr. Ojile.
Attorneys at James, Hoyer say the dismissal was another hurdle in
a two-year procedural battle. "We have been bouncing back and
forth between arbitration and district court," says Chris Hoyer.
"We've been in a procedural swamp, but we're still here. We still
have plenty of energy."
Mr. Ojile has been wrangling with James, Hoyer attorneys since
Chris Hoyer filed the original class action with the American
Arbitration Association in May 2009, and the dispute seems to be
getting more personal all the time. The latest complaint lists
Bill Ojile and Westwood CEO George Burnett as individual
defendants, in addition to the school itself. The claimants in
the class action included former Westwood students who said the
Colorado-based school provided false or deceptive information
about tuition costs and job placement statistics.
Arbitrator William Baker handed Westwood its first victory last
July when he refused to certify a class. The plaintiffs in that
case went on to individual arbitration, and Mr. Ojile says their
claims have since been resolved.
James, Hoyer attorneys did not give up on aggregating former
Westwood students. On August 11, 2010, Hoyer filed two new class
action suits in California state court and Colorado federal court.
The claims were substantially identical to those in the first
lawsuit.
Judge Martinez's dismissal of the claims means that students from
Westwood and other similar schools who feel they were misled are
left with only one method of legal recourse: individual binding
arbitration.
Deceptive marketing practices and alleged misrepresentation of
post-graduation employment at for-profit colleges is a hot-button
issue. The latest Westwood ruling came just weeks before the U.S.
Department of Education's new advertising regulations went into
effect. According to DoE spokesperson Sara Gast, the regulations
were inspired by a series of complaints about aggressive and
misleading recruiting practices from students at for-profit
colleges.
As of July of this year, for-profit colleges are required to
disclose debt burden, graduation rates, and employment rates on
their Web sites and printed advertising materials -- and Mr. Ojile
says Westwood updated their Web site and brochures to reflect the
new rules. But while the regulations give victims of educational
false advertising more legal options, critics contend that the
Westwood ruling is evidence that the Concepcion decision takes
some away.
Mr. Ojile counters that students with legitimate claims still have
a chance to recover damages from Westwood: "Arbitration is a good
form of dispute resolution for the students and the school. It's
cost-effective and quicker than litigation, and we continue to
believe the arbitration process is fair."
Ms. Bernal and Ms. Krol are not heading to individual arbitration
just yet. The named plaintiffs have asked the American
Arbitration Association for class certification -- a request that
Mr. Ojile says is unlikely to be granted, based on the
Association's refusal to do so under similar circumstances in July
2010.
Westwood launched its own attack against James, Hoyer last year
when the college accused the law firm of defamation. Mr. Ojile
says Westwood sued James, Hoyer because the firm crossed the line
from appropriate advertising to a "personal attack on the school"
when it used Facebook, Twitter, and other Web sites to inform
students of the class action lawsuit. A Denver district court
recently denied James, Hoyer's motion to dismiss the suit, a
decision the law firm is appealing to the Colorado Supreme Court.
If the higher court confirms the district court's ruling, a
defamation trial will begin in early 2012.
James, Hoyer is also representing plaintiffs in three other
related cases against Westwood. The California state case that
was filed simultaneously with the Colorado case is still pending,
as are federal cases in Texas and Wisconsin. "We have 1,200
victims who say they have been deceived by Westwood. There are
also 120 employees who came forward on their own to support the
students," Chris Hoyer says. "Somewhere, someplace, somehow, we
want to put on our case."
Mr. Ojile, for his part, says he believes the pending cases will
also be denied class status. "We're waiting on hopefully positive
decisions in the other cases. Between the litigation and the
legislative activity, it has been an intense two years for our
company -- and for me as a lawyer."
*********
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, Joy A. Agravante, 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.
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