/raid1/www/Hosts/bankrupt/CAR_Public/110721.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 21, 2011, Vol. 13, No. 143
Headlines
AT&T: Faces Call Center Employee Wage & Hour Class Action
BANK OF AMERICA: Faces Class Action Over Credit Protection Plus
BANK OF HAWAII: Settles Debit Card Overdraft Class Action
BLUE CROSS OF CALIFORNIA: Settlement Gets Preliminary Court Okay
CHICAGO TITLE: Sued Over Landlord & Tenant Ordinance Violations
CHINA MEDICINE: Faces Securities Class Action in California
CORPUS CHRISTI, TX: Travel Web Sites Owe $900K in Hotel Taxes
DEL MONTE: Awaits Ruling on Atty. Fee Bid in Merger-Related Suit
DEL MONTE: Continues to Defend "Littlefield" Suit in Massachusetts
DEL MONTE: FLSA-Violation Suit Remains Pending in Minnesota
DEL MONTE: Provides Updates on Pet Food Recall Suits
DELAND COUNTRY CLUB: Sued Over Dieldren Water Contamination
E.I. DU PONT: Faces Nationwide Class Action Over Imprelis
GUNNS AND FORESTRY: Forest Contractors Mull Class Action
JIANGBO PHARMA: Rosen Law Firm Files Securities Class Action
MAGMA DESIGN: Appeal in "Genesis" Suit Remains Pending
MAGNUM D'OR RESOURCES: Saraff Gentile Files Class Action in Fla.
MCDONALD'S CORP: Happy Meal Suit May Prompt Higher Ad Costs
NATURA PET: Class Action Settlements Gets Preliminary Approval
NEW YORK LIFE: Accused of Cheating Policyholders
NISSSA MOTOR: Properly Dismissed as Defendant in Class Action
OCZ TECHNOLOGY: Aug. 2 Hearing Set on Bid to Dismiss Calif. Suit
PROGRESS ENERGY: Signs MOU to Settle Merger-Related Suits
TEXAS INDUSTRIES: Continues to Defend Chrome 6 Exposure Suits
*********
AT&T: Faces Call Center Employee Wage & Hour Class Action
---------------------------------------------------------
The California employment law attorneys at Blumenthal, Nordrehaug
& Bhowmik have filed a class action lawsuit against AT&T in
Northern California alleging that the wireless phone giant has
violated the rights of at-home virtual call center employees under
the California Labor Code. The class action lawsuit against AT&T
for Labor Code violations was filed on March 28, 2011, in the
Northern District of California, entitled Perry v. AT&T and Arise,
Case No. CV111498JCS.
According to the class action complaint filed against AT&T by the
labor law attorneys at Blumenthal, Nordrehaug & Bhowmik, the
mobile and wireless provider has hired at-home call center
employees to provide billing and technical support for AT&T
customers. The complaint alleges that AT&T devised an illegal
scheme of mislabeling these virtual at-home call center employees
as independent contractors in order to avoid workers' compensation
costs as well as paying state and/or federal taxes.
The AT&T call center employee class action lawsuit further alleges
that the wireless provider intentionally misclassified the at-home
virtual call center employees as independent contractors in order
to get around wage & hour requirements in violation of California
employment laws. Whereas the state's minimum wage rules, lunch
break requirements and overtime laws protect employees, the laws
do not apply to independent contractors.
The AT&T overtime class action lawsuit alleges that the wireless
provider mislabeled at-home call center employees because these
workers are required to perform work subject to AT&T's control.
AT&T has the authority to exercise complete control over the work
performed and the manner in which the work is performed by these
at-home call center employees. Further, AT&T controls the at-home
virtual call center employees' work schedule and hours, according
to the complaint.
For more information, visit the AT&T at-home virtual call center
employee class action lawsuit Web site or call (866) 771-7099.
With its main employment law office located in San Diego County,
the California employment law attorneys at Blumenthal, Nordrehaug
& Bhowmik have a statewide practice of representing employees on a
contingency basis for violations involving wages and hours,
overtime pay, discrimination, harassment and wrongful termination.
BANK OF AMERICA: Faces Class Action Over Credit Protection Plus
---------------------------------------------------------------
Khang & Khang LLP on July 18 disclosed that a class action has
been filed in federal court against Bank of America Corporation
related to the Company's Credit Protection Plus service. CPP is a
program available to credit card holders that charges them roughly
1 percent of their credit card balance in exchange for allowing
them, under certain circumstances, to defer their monthly minimum
credit card payment obligations. The complaint alleges that Bank
of America is engaging in unfair and deceptive trade practices in
connection with the sale and administration of CPP.
Bank of America allegedly enrolls card members into CPP without
first determining whether the consumer is qualified to ever
receive benefits under the Plan. The result is that card members
are paying fees even though they can never receive benefits. In
addition, Bank of America is allegedly enrolling card members into
CPP without their consent or authorization and subsequently
charging a recurring monthly fee.
If you were enrolled in CPP without your consent; or you ever
enrolled in CPP and were a senior citizen, a self-employed worker,
a part-time worker, a seasonal worker, had a disability at the
time of enrollment or anytime thereafter, or were denied CPP
benefits and you would like additional information about this
lawsuit, please contact:
Joon M. Khang, Esq.
KHANG & KHANG LLP
18101 Von Karman Avenue, 3rd Floor
Irvine, CA 92612
Telephone: (949) 419-3834
E-mail: joon@khanglaw.com
BANK OF HAWAII: Settles Debit Card Overdraft Class Action
---------------------------------------------------------
Star-Advertiser reports that Bank of Hawaii, the state's second-
largest bank, said it reached a tentative settlement on July 15 in
a class action lawsuit, claiming the bank improperly charged
overdraft fees on debit card transactions.
"The tentative settlement, subject to documentation and court
approvals, provides for a payment by the company of $9 million
into a class settlement fund the proceeds of which will be used to
refund class members, and to pay attorneys' fees, administrative
and other costs, in exchange for a complete release of all claims
asserted against the company," the bank said in a filing with the
Securities Exchange Commission.
The complaint, filed in February on behalf of Honolulu residents
Lodley and Tehani Taulava, accused Bank of Hawaii of engaging in a
systematic policy of re-ordering debit card transactions from
highest dollar amount to lowest dollar amount. The suit said this
practice allowed the bank to deplete the customer's available
funds as quickly as possible while maximizing the number of
overdraft fees.
Bank of Hawaii spokesman Stafford Kiguchi said at the time that
the bank changed its policy in January and now generally posts
transactions from lowest dollar amount to highest.
American Savings Bank and Central Pacific Bank, the third- and
fourth-largest banks in the state in terms of assets, were sued in
March also for allegedly maximizing profits by manipulating debit
card customers' overdraft fees. Those suits have not yet been
settled.
All three suits, filed as a class action by Honolulu-based Perkin
& Faria LLLC, sought repayment of all overdraft fees paid to
members of the class, plus interest; punitive and triple damages;
and attorney fees.
Perkin & Faria had assistance from three mainland firms on the
Bank of Hawaii suit, while its co-counsel on the American Savings
and Central Pacific suits is the Honolulu firm of Bickerton Lee
Dang & Sullivan.
BLUE CROSS OF CALIFORNIA: Settlement Gets Preliminary Court Okay
----------------------------------------------------------------
The Orange County Superior Court has preliminarily approved a
class action settlement in the case entitled Blue Cross of
California Website Security Cases, Case No. JCCP 4647, reached
with Anthem Blue Cross of California, Anthem Blue Cross Life and
Health Insurance Company, The WellPoint Companies, Inc., WellPoint
California Services, Inc. and WellPoint Behavioral Health, Inc.
(together called "WellPoint/Anthem Blue Cross" or the
"Defendants") in a lawsuit about the potential accessibility of
certain personal and financial information contained on individual
health insurance applications. The Court also approved a notice
plan to advise the nationwide class of its legal rights, benefits,
and options.
The lawsuit alleges that from approximately October 23, 2009, to
March 10, 2010, WellPoint/Anthem Blue Cross improperly stored
personal information and electronic versions of individual health
insurance applications for over 600,000 customers, enrollees or
subscribers on its Web-based servers without username, password
and encryption protections. This information included personal
identifying information and personal health information, such as
Social Security numbers, home and office addresses, telephone
numbers, credit card numbers and financial information used for
premium payments, and other information people may have provided
on their health insurance applications. The lawsuit alleges that
WellPoint/Anthem Blue Cross did not adequately protect this
information. WellPoint/Anthem Blue Cross denies the claims in the
lawsuit. The class settlement does not mean that WellPoint/Anthem
Blue Cross did anything wrong.
People included in the settlement are called a "Class" or "Class
Members." Those who receive a notice about this settlement in the
mail and/or e-mail or received a letter from WellPoint regarding
this issue between June and August 2010, have been identified as a
Class Member. Specifically, the Class includes everyone in the
United States, including Puerto Rico, U.S. Virgin Islands and Guam
(1) whose private information was on WellPoint/Anthem Blue Cross'
Affected Servers from August 15, 2008, through March 10, 2010, or
(2) who received a notification letter from WellPoint/Anthem Blue
Cross regarding the alleged failure of WellPoint/Anthem Blue Cross
to secure their confidential personal and private information.
Notices informing Class Members about their legal rights will be
mailed and e-mailed directly to them in the weeks leading up to
the Court's November 14, 2011 hearing, where it will consider
whether to grant final approval of the settlement.
The Court has appointed Daniel Robinson, Robinson, Calcagnie &
Robinson, of Newport Beach, California as Lead Settlement Class
Counsel to represent the Class.
In the settlement, Class Members may be entitled to receive, in
addition to other benefits, up to two (2) years of Free Debix
Credit Monitoring and Identity Theft Insurance (valued at $238.80)
at no cost to them (only one (1) year if a Class Member already
elected to receive one (1) year of Debix coverage). Additionally,
if a Class Member is found to be a victim of identity theft or
loss stemming from the Breach, such a Class Member would be
entitled to receive five (5) additional years of monitoring and
insurance (valued at $597.00). Those affected by this settlement
can sign up or submit a claim for certain benefits, if eligible,
or they can ask to be excluded from, or object to, the settlement.
The deadline for exclusions and objections is October 24, 2011.
The earliest deadline to file claims is September 28, 2011.
A toll-free number, 1-877-527-2354, has been established in the
case, along with a Web site,
http://www.AnthemBlueCrossSecuritySettlement.comwhere notices,
claim forms, and the settlement agreement may be obtained. Those
affected may also write to WellPoint/Blue Cross Web site Security
Settlement Administrator, P.O. Box 6177, Novato, CA 94948-6177.
CHICAGO TITLE: Sued Over Landlord & Tenant Ordinance Violations
---------------------------------------------------------------
Krystian Polak & Maria Polak, on behalf of themselves and all
others similarly situated v. Chicago Title Land Trust Co., as
successor trustee under American National Bank & Trust Co. Trust
No. 11840600, Steliana Tufeanu, & David Tufeanu, d/b/a "Lakeshore
Tower Management Company Inc," Case No. 2011-CH-24889 (Ill. Cir.
Ct., Cook Cty., July 15, 2011) accuses the Defendants of violating
the Chicago Residential Landlord & Tenant Ordinance.
The Polaks contend that in violation of the RLTO, the Defendants
failed to disclose on the leases the name and address of the
financial institution where the security deposit of dozens of the
Defendants' tenants, including the Polaks, was held.
The Plaintiffs are tenants in the multi-unit residential apartment
building at 5600 N. Sheridan Rd., in Chicago, Illinois, owned by
the Defendants.
The Tufeanus are beneficiaries of a trust that holds all of the
legal title to the Building. Lakeshore Tower was an Illinois
corporation that was involuntarily dissolved on November 1, 2005,
and has since remained dissolved.
The Plaintiffs are represented by
Mark A. Silverman, Esq.
MARK SILVERMAN LAW OFFICE LTD.
225 W. Washington, Suite 2200
Chicago, IL 60606
Telephone: (312) 775-1015
Facsimile: (312) 256-2055
CHINA MEDICINE: Faces Securities Class Action in California
-----------------------------------------------------------
Abraham, Fruchter & Twersky, LLP on July 18 disclosed that a class
action lawsuit has been commenced in the United States District
Court for the Central District of California on behalf of the
purchasers of China Medicine Corporation common stock between
November 30, 2006, and March 23, 2011.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from July 18, 2011. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Jack G.
Fruchter, Jeffrey S. Abraham or Philip T. Taylor at (212) 279-5050
or (800) 440-8986, or via e-mail at info@aftlaw.com or
ptaylor@aftlaw.com
Any member of the putative class may move the Court to serve as
lead plaintiff through the counsel of their choice, or may choose
to do nothing and remain an absent class member.
The complaint charges China Medicine and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. China Medicine is engaged in the distribution and
manufacturing of traditional Chinese medicines in the People's
Republic of China.
The Complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. As a result of
defendants' false statements, China Medicine stock traded at
artificially inflated prices during the Class Period.
On February 22, 2011, China Medicine issued a press release
announcing that Frazer, LLP, the Company's accountant, would be
declining to stand for reappointment. On the news, the Company's
stock lost more than 40% of its value from February 23, 2010, to
March 23, 2011.
Then on March 23, 2011, China Medicine filed a Form 8-K with the
Securities and Exchange Commission announcing that its board of
directors had concluded that the Company's financial statements
filed with the SEC for the 2008 and 2009 fiscal years and the
quarterly reports during the fiscals years 2008, 2009 and 2010
were unreliable. China Medicine also disclosed that certain
accounting and reporting errors were identified with respect to
improper activities by certain employees at the Company's
subsidiaries. The Company purportedly intends to restate the
previously issued financial statements and has withdrawn its
application for a NASDAQ listing. In reaction to the news, on the
next trading day, China Medicine's stock drooped by over 53% from
$1.16 per share on March 23, 2011 to $0.54 per share on March 24,
2011, on heavy volume.
On July 8, 2011, the Company announced that its earlier financial
statements for the 2006 and 2007 fiscal years were also considered
materially unreliable. In reaction, China Medicine's stock lost
10% closing at $0.72 per share down from $0.80 per share on
July 8, 2011.
According to the complaint, the true facts, which were known by
defendants but concealed from the investigating public during the
Class Period, were as follows: (a) the company's employees were
engaged in improper activities with respect to financial
reporting; (b) the financial reports filed with the SEC and the
related statements made to investors were materially inaccurate
and unreliable; and (c) defendant Frazer failed to conduct its
audits of the Company's financial statements according to
standards promulgated by the Public Company Accounting Oversight
Board or the Auditing Standards Board.
Plaintiff seeks to recover damages on behalf of all purchasers of
China Medicine common stock during the Class Period. The
plaintiff is represented by Abraham, Fruchter & Twersky, LLP,
which has extensive experience in shareholder and securities class
action cases, and the firm has been ranked among the leading class
action law firms in terms of recoveries achieved by a survey of
class action law firms conducted by Institutional Shareholder
Services.
Contact: Jack G. Fruchter, Esq.
Jeffrey S. Abraham, Esq.
Philip T. Taylor, Esq.
ABRAHAM, FRUCHTER & TWERSKY, LLP
One Penn Plaza, Suite 2805
New York, NY 10119
Telephone: (212) 279-5050
(800) 440-8986
E-mail: info@aftlaw.com
ptaylor@aftlaw.com
CORPUS CHRISTI, TX: Travel Web Sites Owe $900K in Hotel Taxes
-------------------------------------------------------------
Sara Foley, writing for Corpus Christi Caller Times, reports that
at least $900,000 in hotel occupancy taxes are due to Corpus
Christi, according to a federal lawsuit verdict that ruled against
a group of online hotel booking companies.
The lawsuit, filed in 2006 and still active in San Antonio's
federal court, was filed by San Antonio on behalf of all Texas
cities with hotel rooms sold on travel Web sites.
It alleged that travel Web sites, including Hotels.com,
Travelocity and Orbitz, didn't charge the proper amount of hotel
taxes, undercutting city income by thousands of dollars.
Corpus Christi, as of February 2010, was due nearly $900,000 from
the group of 15 travel Web sites, according to court findings
after a jury found the companies liable for the hotel sales tax.
The city hasn't received any money and letters the city received
didn't include a payment timeline, Assistant City Attorney Allison
Logan said.
The lawsuit verdict said the amount would continue to accrue, so
the amount due also would include taxes between February 2010 and
now.
At issue was the way the companies charged hotel taxes. When
someone books a room directly with a hotel, they are charged a
hotel occupancy sales tax based on the rate. When customers go
through travel Web sites, many of the companies charge a sales tax
based only on the wholesale room price the company paid and not
based on the customer's costs. The difference added up to more
than $20 million in back taxes in cities across Texas.
Similar lawsuits against travel companies were filed by cities
across the country, beginning in Pennsylvania in 2005.
The Corpus Christi City Council will receive an update on the
lawsuit during a closed session of its meeting on July 12.
Revenues from the city's 9% hotel occupancy tax pay to subsidize
operations at the American Bank Center, advertise local arts
programs and beach cleaning. The city expected to receive $10.2
million of tax revenues this fiscal year, which ends this month.
DEL MONTE: Awaits Ruling on Atty. Fee Bid in Merger-Related Suit
----------------------------------------------------------------
Del Monte Corporation is awaiting a court decision regarding the
balance of the fee application in the remaining active merger-
related lawsuit pending in Delaware, according to the Company's
July 15, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended May 1, 2011.
On November 25, 2010, Del Monte Foods Company announced that it
had signed a definitive agreement under which an investor group
led by funds affiliated with Kohlberg Kravis Roberts & Co. L.P.,
Vestar Capital Partners and Centerview Capital L.P. agreed to
acquire all of the outstanding stock of DMFC for $19.00 per share
in cash (the "Transaction"), subject to the conditions set forth
in the Merger Agreement. Following the announcement of the
Transaction, fifteen putative class action lawsuits relating to
the Transaction were filed against DMFC, certain of its now-former
officers and directors, and other parties including (in certain
cases) Blue Merger Sub. Inc., the acquisition entity which, upon
consummation of the Transaction, merged with and into DMFC, with
DMFC continuing as the surviving corporation (the "Merger").
On April 26, 2011, DMFC merged with and into Del Monte Corporation
("DMC"), with DMC being the surviving corporation. As a result of
this merger, DMC became a direct wholly owned subsidiary of Blue
Acquisition Group, Inc. ("Parent").
Two previously disclosed cases which were among the original
fifteen Shareholder Cases arising from the Transaction were
voluntarily dismissed on June 6, 2011:
* Heintz v. Wolford, et al. The Heintz case was filed by
Sarah P. Heintz on behalf of herself and a putative class of
shareholders against the Directors, DMFC, Parent and Blue
Sub on December 20, 2010, in the United States District
Court, Northern District of California; and
* Faulkner v. Wolford, et al. The Faulkner case was filed by
Dallas Faulkner on behalf of himself and a putative class of
shareholders against the Directors, Del Monte Foods Company,
Parent and Blue Sub on January 21, 2011, in the United
States District Court, Northern District of California.
In addition, plaintiffs in two other previously disclosed cases,
which were also among the original fifteen Shareholder Cases
arising from the Transaction, filed requests for dismissal on
March 4, 2011, and June 13, 2011, respectively:
* Sinor v. Wolford, et al. The Sinor case was filed by James
Sinor on behalf of himself and a putative class of
shareholders against Del Monte Foods Company, the Directors,
KKR, Vestar, Centerview (named as Centerview Partners;
together with KKR and Vestar, the "Sponsor Defendants"),
Parent and Blue Sub on December 1, 2010 in Superior Court in
San Francisco, California; and
* Kaiman v. Del Monte Foods Co., et al.. The Kaiman case was
filed by Libby Kaiman on behalf of herself and a putative
class of shareholders against Del Monte Foods Company, the
Directors, the Sponsor Defendants, Parent and Blue Sub on
December 1, 2010 in Superior Court in San Francisco,
California.
As a result of the voluntary dismissals and orders consolidating
other shareholder cases, only two of the original fifteen
Shareholder Cases arising from the Transaction remain pending one
of which has been stayed:
* In re Del Monte Foods Company Shareholders Litigation (the
"Delaware Shareholder Case"). The Delaware Shareholder Case
was filed in the Delaware Court of Chancery and consolidated
with other related cases filed in the same court. The
latest complaint filed in the case asserts claims on behalf
of lead Plaintiff NECA-IBEW Pension Fund and a putative
class of shareholders against each of the now-former
directors of DMFC, the Company's former Chief Executive
Officer in his capacity as such, Barclays Capital, Inc., the
Sponsor Defendants, Parent and Blue Sub; and
* Franklin v. Del Monte Foods Co., et al. The Franklin case
was filed by Elisa J. Franklin on behalf of herself and a
putative class of shareholders against the Directors, DMFC
and the Sponsor Defendants on December 10, 2010, in Superior
Court in San Francisco, California. On February 28, 2011,
the Court in the Franklin case granted the motion of DMFC
and the Directors to stay the proceeding pending resolution
of the Delaware Shareholder Case, and the case remains
stayed.
The plaintiff in the Delaware Shareholder Case, which is the only
active and pending Shareholder Case, alleges that the Directors
breached their fiduciary duties to the stockholders by agreeing to
sell DMFC at a price that was unfair and inadequate and by
agreeing to certain preclusive deal protection devices in the
Merger Agreement. The plaintiff further alleges that the Sponsor
Defendants, Parent, Blue Sub and Barclays aided and abetted the
Directors' alleged breaches of fiduciary duties. In addition, the
plaintiff asserts a claim for breach of fiduciary duty against the
former Chief Executive Officer of DMFC in his capacity as an
officer. The plaintiff also alleges that the Sponsor Defendants
violated certain Confidentiality Agreements with DMFC, and that
Barclays induced the Sponsor Defendants to violate the
Confidentiality Agreements, committing tortious interference with
contract. The plaintiff in the Franklin case asserts similar
claims against the Directors, alleging that they breached their
fiduciary duties of care and loyalty by, among other acts,
agreeing to sell DMFC at an inadequate price, running an
ineffective sale process that relied on conflicted financial
advisors, agreeing to preclusive deal protection measures, and
pursuing the Transaction for their own financial ends. The
plaintiff in the Franklin case also asserts claims against the
Sponsor Defendants and DMFC for aiding and abetting these alleged
breaches of fiduciary duty.
Each of the complaints seeks injunctive relief, rescission of the
Merger Agreement, compensatory damages, and attorneys' fees. The
Company denies the plaintiffs' allegations and plan, as the
successor to DMFC and Blue Sub, to vigorously defend against these
claims.
The Company says it has a continuing obligation to defend and
indemnify the Directors and its former Chief Executive Officer for
their legal fees and potential liability in the Shareholder Cases,
subject to certain limitations under Delaware law or contract.
Similarly, the Company may have contractual obligations to
indemnify other parties to the Shareholder Cases and other matters
arising out of the Transaction, subject to certain limitations
under applicable law or contract. The Company has $50 million of
director and officer insurance coverage for itself and the former
directors and officers of DMFC. The insurers have reserved their
rights with respect to coverage and have not agreed at this point
that coverage is available for losses the Company may sustain as a
result of the Shareholder Cases. The Company has accrued in its
consolidated financial statements in its Annual Report on Form 10-
K an amount equal to its current estimate of its exposure in this
matter. Given the inherent uncertainty associated with legal
matters, the actual costs of resolving the Shareholder Cases may
be substantially higher or lower than the established accrual.
The amount that the Company may ultimately be responsible for in
connection with the Shareholder Cases may vary based on a number
of factors, including, final settlement or award amounts, the
allocation of such amounts among the various parties to the
litigation, insurance coverage and resolution with the Company's
carriers, indemnification obligations, the discovery of new or
additional facts that impact the strength or weakness of the
parties' claims and defenses and other factors.
On February 14, 2011, following expedited discovery and a
preliminary injunction hearing in the Delaware Shareholder Case,
the Court of Chancery entered an order preliminarily enjoining the
shareholder vote on the Merger, which was scheduled to occur at a
special meeting on February 15, 2011, for a period of 20 days. In
addition, the Court of Chancery enjoined the parties, pending the
vote on the Merger, from enforcing various provisions in the
Merger Agreement, including the no-solicitation and match right
provisions in Sections 6.5(b), 6.5(c), and 6.5(h), and the
termination fee provisions relating to topping bids and changes in
the board of directors' recommendations on the Merger in Section
8.5(b). The Court's order was conditioned upon the lead
plaintiff's posting a bond in the amount of $1.2 million, which
was posted on February 15, 2011.
The scheduled special meeting was convened on February 15, 2011.
At such meeting, a quorum was determined to be present and, in
accordance with the Court's ruling, the meeting was adjourned
until March 7, 2011, without a vote on the Merger proposal. The
special meeting was reconvened on March 7, 2011. At such meeting,
a quorum was determined to be present and the Merger was approved.
The Merger closed on March 8, 2011.
Following the closing of the Merger, on March 25, 2011, the
plaintiff in the Delaware Shareholder Case filed an application
for an interim attorneys' fee award in the amount of $12 million.
On June 27, 2011, the Court of Chancery awarded the plaintiff's
attorneys an interim fee award in the amount of $2.75 million for
the supplemental disclosures that DMFC made in connection with the
Merger. The Court of Chancery deferred decision regarding the
balance of the fee application, which seeks fees in connection
with the preliminary injunction and suspension of deal
protections.
DEL MONTE: Continues to Defend "Littlefield" Suit in Massachusetts
------------------------------------------------------------------
Del Monte Corporation continues to defend a consolidated lawsuit
commenced by Lydia Littlefield, according to the Company's July
15, 2011, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended May 1, 2011.
On December 17, 2010, a putative class action complaint was filed
against the Company by Lydia Littlefield, on behalf of herself and
all others similarly situated, in the U.S. District Court for the
District of Massachusetts, alleging intentional misrepresentation,
fraud, negligent misrepresentation, breach of express warranty,
breach of the implied warranty of merchantability and unjust
enrichment. Specifically, the complaint alleges that the Company
engaged in false and misleading representation of certain of the
Company's canned fruit products in representing that these
products are safe and healthy, when they allegedly contain
substances that are not safe and healthy. The plaintiffs seek
certification of the class, injunctive relief, damages in an
unspecified amount and attorneys' fees. The Company intends to
deny these allegations and vigorously defend itself. On April 19,
2011, the U.S. Judicial Panel on Multidistrict Litigation issued
an order consolidating Littlefield with several similar consumer
class actions filed in other jurisdictions (in which the Company
is not a defendant) in U.S. District Court for the District of
Massachusetts. The Company cannot at this time reasonably
estimate a range of exposure, if any, of the potential liability.
DEL MONTE: FLSA-Violation Suit Remains Pending in Minnesota
-----------------------------------------------------------
The class action lawsuit against Del Monte Corporation alleging
violations of the Fair Labor Standards Act remains pending in
Minnesota, according to the Company's July 15, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended May 1, 2011.
On September 30, 2010, a putative class action complaint was
served against the Company, to be filed in Hennepin County,
Minnesota, alleging wage and hour violations of the Fair Labor
Standards Act. The complaint was served on behalf of five named
plaintiffs and all others similarly situated at a manufacturing
facility in Minnesota. Specifically, the complaint alleges that
the Company violated the FLSA and state wage and hour laws by
failing to compensate plaintiffs and other similarly situated
workers unpaid overtime. The plaintiffs are seeking compensatory
and statutory damages. Additionally, the plaintiffs are seeking
class certification. On November 5, 2010, in connection with the
Company's removal of this case to the U.S. District Court for the
District of Minnesota, the complaint was filed along with the
Company's answer. The Company also filed a motion for partial
dismissal on November 5, 2010. On November 30, 2010, the parties
jointly stipulated that the causes of action in plaintiff's
complaint for unjust enrichment and quantum meruit would be
dismissed without prejudice and further stipulated that the cause
of action under the Minnesota minimum wage law would be dismissed
without prejudice.
The Company denies plaintiffs' allegations and plan to vigorously
defend itself. The Company cannot at this time reasonably
estimate a range of exposure, if any, of the potential liability.
DEL MONTE: Provides Updates on Pet Food Recall Suits
----------------------------------------------------
Beginning with the pet food recall announced by Menu Foods, Inc.
in March 2007, many major pet food manufacturers, including Del
Monte Corporation, announced recalls of select products. The
Company believes there have been over 90 class actions and
purported class actions relating to these pet food recalls. The
Company is named as a defendant in seven class actions or
purported class actions related to the Company's pet food and pet
snack recall, which the Company initiated March 31, 2007.
The Company is a defendant in these cases:
* Carver v. Del Monte filed on April 4, 2007, in the U.S.
District Court for the Eastern District of California;
* Ford v. Del Monte filed on April 7, 2007, in the U.S.
District Court for the Southern District of California;
* Hart v. Del Monte filed on April 10, 2007, in state court in
Los Angeles, California;
* Picus v. Del Monte filed on April 30, 2007, in state court
in Las Vegas, Nevada;
* Blaszkowski v. Del Monte filed on May 9, 2007, in the U.S.
District Court for the Southern District of Florida;
* Schwinger v. Del Monte filed on May 15, 2007, in the U.S.
District Court for the Western District of Missouri; and
* Tompkins v. Del Monte filed on July 13, 2007, in the U.S.
District Court for the District of Colorado.
The named plaintiffs in these seven cases alleged that their pets
suffered injury and/or death as a result of ingesting the
Company's and other defendants' allegedly contaminated pet food
and pet snack products. The Picus and Blaszkowski cases also
contained allegations of false and misleading advertising by the
Company.
By order dated June 28, 2007, the Carver, Ford, Hart, Schwinger,
and Tompkins cases were transferred to the U.S. District Court for
the District of New Jersey and consolidated with other purported
pet food class actions under the federal rules for multi-district
litigation. The Blaszkowski and Picus cases were not
consolidated.
Multi-District Litigation Cases
The plaintiffs and defendants in the multi-district litigation
cases, including the five consolidated cases in which the Company
was a defendant, tentatively agreed to a settlement that was
submitted to the U.S. District Court for the District of New
Jersey on May 22, 2008. On May 30, 2008, the Court granted
preliminary approval to the settlement. Pursuant to the Court's
order, notice of the settlement was disseminated to the public by
mail and publication beginning June 16, 2008. Members of the
class were allowed to opt-out of the settlement until August 15,
2008. On November 19, 2008, the Court entered orders approving
the settlement, certifying the class and dismissing the complaints
against the defendants, including the Company. The total
settlement was $24.0 million. The portion of the Company's
contribution to this settlement was $0.25 million, net of
insurance recovery, which the Company has paid. Four class
members have filed objections to the settlement, which objections
have been denied by the Court. On December 3, 2008, and
December 12, 2008, these class members filed Notices of Appeal.
After the Court of Appeals granted the appeal in part, denied the
appeal in part and remanded the matter for further proceedings,
the District Court approved the settlement on April 5, 2011.
Blaszkowski Case
On April 11, 2008, the plaintiffs in the Blaszkowski case filed
their fourth amended complaint. On September 12, 2008, and
October 9, 2008, plaintiffs filed stipulations of dismissal with
respect to their complaint against certain of the defendants,
including the Company. The U.S. District Court for the Southern
District of Florida entered such requested dismissals on such
dates, resulting in the dismissal of all claims against the
Company.
Picus Case
The plaintiffs in the Picus case sought certification of a class
action as well as unspecified damages and injunctive relief
against further distribution of the allegedly defective products.
On October 12, 2007, the Company filed a motion to dismiss in the
Picus case. The state court in Las Vegas, Nevada granted the
Company's motion in part and denied the Company's motion in part.
On December 14, 2007, other defendants in the case filed a motion
to deny class certification. On March 16, 2009, the Court granted
the motion to deny class certification. On March 25, 2009, the
plaintiffs filed an appeal of the Court's decision. On June 30,
2009, the Court of Appeals denied plaintiffs' appeal. By order
dated February 1, 2011, the Company was dismissed from this
lawsuit.
No further updates were reported in the Company's July 15, 2011,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended May 1, 2011.
DELAND COUNTRY CLUB: Sued Over Dieldren Water Contamination
-----------------------------------------------------------
Dinah Voyles Pulver, writing for The Dayton Beach News-Journal,
reports that more than 150 people visited a DeLand church on
July 17, but instead of spiritual guidance they were seeking
information about a class action lawsuit filed over pesticide
contamination in their water.
Since March, 53 wells in and around the DeLand Country Club
Estates area have tested positive for high levels of dieldrin, a
pesticide once used in crops and golf courses across the state and
for termite treatments.
Another 43 property owners are awaiting results, state officials
said this weekend. Dozens of other residents are waiting to have
their water tested.
Nancy Tondorf is among those waiting to hear whether the water her
family has used for drinking and bathing is contaminated.
Ms. Tondorf said she thinks about it every morning when she gets
up and looks at the coffee pot she has used daily for years. Her
family already has switched to bottled water for ice cubes "and
every other thing."
Like Ms. Tondorf, residents at the meeting were concerned about
the health of their families and loss of property value.
Although the residents haven't been notified, Volusia County
officials already have decided to reduce property values on the
affected homes because of the contamination.
The lawsuit, seeking more than $10 million in damages, was filed
in late May by Joshua R. Gale, a DeLand attorney. It was filed on
behalf of Brian and Janice Potter of DeLand, and at least 29
additional clients who have agreed to be represented by Mr. Gale's
firm, Wiggins, Childs, Quinn and Pantazis. A well at the Potters'
home was the first home in the quiet neighborhood off Orange Camp
Road to test positive for dieldrin.
Shell Chemical, a subsidiary of Shell Oil, and the DeLand Country
Club are named as defendants in the suit. Mr. Gale said Shell was
the exclusive manufacturer of dieldrin for 20 years. The
pesticide was banned for all uses except termite treatment in 1974
and banned for use in termite treatment in 1987.
The suit alleges the pesticide was used on the golf course and
migrated into nearby wells, exposing the Potters and others to
high levels of dieldrin in water they use for drinking, cooking,
bathing and watering their yards. It claims "negligence,
wantonness, nuisance and trespass" on the part of the oil company
and the country club and seeks property damages.
The lawsuit, originally filed in circuit court in DeLand, was
moved to U.S. District Court in late June at the request of Shell,
Mr. Gale said. Mr. Gale filed a motion on July 14 to ask for the
case to be moved back to DeLand.
Residents in the area near the contaminated wells have raised
concerns about multiple cancer cases in the neighborhood. But
though federal officials consider dieldrin a "probable human
carcinogen," dieldrin has never been found to cause cancer in
humans, David Krause, Florida's state toxicologist, said recently.
That includes a study where 18 male participants were administered
doses 100,000 times higher than the health advisory level set by
the state and had "no adverse effects," Mr. Krause said.
Studies did find dieldrin could cause tumors in the livers of
mice, but at levels much higher than the drinking water standard,
Mr. Krause said.
The level set by state officials for dieldrin is 0.002 micrograms
per liter. Levels of the pesticide found in the water in Country
Club Estates range as high as 0.099 micrograms per liter.
Bonita Sorensen, director of the Volusia County Health Department,
has said the state is "trying its best to determine the extent of
the contamination."
For those whose wells exceed the state standard, the Florida
Department of Environmental Protection will pay for a carbon
filtration system or connection to the city of DeLand's public
water utility.
Five homes have been connected to city water and the department is
waiting for word from other homeowners whose wells tested
positive, department spokesman Lisa Kelley said on July 17.
Barbara Costello chose to have the filtration system installed at
her home after her water tested positive, but she still has
concerns.
Ms. Costello said she's "trying to be philosophical" knowing that
she's probably exposed to "so many kinds of carcinogens every day"
in the environment. But, she said she worries about the financial
damages.
Ms. Tondorf's home is for sale and she fears she's already feeling
impacts.
"We haven't even had anyone looking once word about this got
around," Ms. Tondorf said.
Residents whose wells test positive for the pesticide, but below
the state standards, said they have been told they would be
responsible for the costs of their own filtering system or hook-up
to city water.
E.I. DU PONT: Faces Nationwide Class Action Over Imprelis
---------------------------------------------------------
Jonathan Selbin of the national plaintiffs' law firm Lieff
Cabraser Heimann & Bernstein, LLP, and Scott Starr of the Indiana
law firm of Starr, Austen & Miller, LLP, disclosed that a
Pennsylvania homeowner and an Indiana golf course company on
July 18 filed a nationwide class action lawsuit against E.I. du
Pont de Nemours & Company, charging that DuPont's herbicide
Imprelis is causing widespread death among trees and other non-
targeted vegetation across the country.
The complaint specifically charges that DuPont failed to
adequately disclose the risks Imprelis poses to trees, even when
applied as directed, and failed to provide adequate instructions
for its safe application. Plaintiffs' counsel are working with a
leading academic scientist in the fields of forest resources, tree
physiology, and landscape management to further identify the cause
and nature of the problem and to recommend steps property owners
should take to preserve evidence.
"Even though it's a new product, Imprelis has been widely adopted
by landscapers and lawn-care specialists who believed DuPont's
claims that it is safe and an environmentally-friendly herbicide,"
stated plaintiffs' counsel Jonathan Selbin. "Instead, the
evidence is quickly piling up that Imprelis is attacking trees as
if they are weeds."
"It is critical that property owners with dead or dying trees take
steps now to preserve evidence," Mr. Selbin added. "You should
take soil and foliage samples that can be analyzed later to show
the presence of Imprelis, as well as take detailed photographs of
the dead or damaged trees."
Property owners should visit http://www.lieffcabraser.com/case/484
for instructions on how to take and preserve photos and samples.
They can also download a copy of the complaint and complete a form
to request further information on the case.
Trees at the house of Marsha Shomo, a Johnstown, Pennsylvania,
resident and one of the plaintiffs in the case, are dying after
the spraying of her lawn with Imprelis. Included are two trees
Ms. Shomo's sister bought after her diagnosis with cancer, which
took her sister's life in 2001. "My sister was so anxious that
the new little trees she bought be taken care of," Ms. Shomo
stated. "I promised her I would do that. I want DuPont to know
that there is a problem out there and people do have special trees
with many years invested in them. This isn't right. I am filing
this lawsuit to make sure DuPont answers to everyone harmed, and
make DuPont act more responsibly in the future."
"This is affecting thousands of homeowners and other property
owners, such as golf courses, who have watched as their valued and
valuable trees die," said plaintiffs' counsel Scott Starr. Noting
that DuPont recently acknowledged the growing problem, sending a
letter to some owners and posting a belated warning on its
Web site, Mr. Starr added: "DuPont should promptly take Imprelis
off the market and accept full responsibility for the great damage
the product has caused."
Plaintiff R.N. Thompson Golf, LLC, owns and manages several golf
courses in the greater Indianapolis area, including the Winding
Ridge Golf Course and the Ironwood Gold Course. "We have
witnessed catastrophic tree loss around our golf courses after the
application of Imprelis, and have received numerous complaints and
inquiries about the tree damage and appearance of our courses from
our customers," explained Mark Thompson, Chief Executive Officer
of R.N. Thompson Golf, LLC. "We filed this lawsuit to inform
other businesses and homeowners about this problem to let them
know there is reason their trees are dying and to give them a
course of action to fix the problem."
The lawsuit, entitled Shomo v. E.I. du Pont de Nemours & Company,
was filed in federal court in Delaware, where DuPont has its
headquarters. The proposed class consists of all persons and
entities whose property was exposed to Imprelis between October 4,
2010 and the date of trial, in particular, those who own: (a)
property on which Imprelis was applied; (b) trees or other
vegetation whose roots extend under property on which Imprelis was
applied or; (c) property onto which Imprelis migrated.
The relief plaintiffs seek for themselves and the proposed class
includes compensation for the cost of replacing trees that have
died or are dying and an injunction barring DuPont from continuing
to sell Imprelis.
Legal Resources for Impacted Property Owners
If you have suffered damage to trees on your property after the
spraying of Imprelis, please visit
http://www.lieffcabraser.com/case/484to learn more about the
Imprelis class action lawsuit and report your experiences.
Contacts: Jonathan Selbin, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Telephone: 212-355-9500
E-mail: jselbin@lchb.com
- or -
Scott Starr, Esq.
Starr, Austen & Miller, LLP
Telephone: 574-722-6676
E-mail: starr@starrausten.com
GUNNS AND FORESTRY: Forest Contractors Mull Class Action
--------------------------------------------------------
ABC News reports that the Australian Forest Contractors
Association says there is growing support for class action against
Gunns and Forestry Tasmania over alleged contract breaches.
The Association's Colin McCulloch says the organization is
investigating the option, with support from at least 12
individuals.
Mr. McCulloch says many contractors are suffering due to the
proposed closures of woodchip mills.
"The intensity of the news of Triabunna and obviously the issues
that may well come out of that where people might have thought
they had ongoing work well that's not necessarily the case," he
said.
"They've been told their contracts with Gunns have ceased and I
guess that's the final number of eight or ten that actually gives
it some critical mass."
Dozens of log trucks are making their way to Parliament House in
Hobart where native timber workers plan to voice their
frustrations about the uncertainty in their industry.
Buses have dropped off workers from Gunns' woodchip mills to join
contractors and sawmillers from all over the state, turning
Parliament's lawns into a sea of orange workers' vests.
Workers say they are angry that the State and Federal Governments
are yet to commit funding to the forest peace deal, almost a month
after the facilitator Bill Kelty delivered an interim agreement.
There was no money in the state budget for implementing the deal,
but the Premier Lara Giddings has previously said she believes it
is largely a Commonwealth responsibility.
The Prime Minister, Julia Gillard, says the Federal Government is
committed to reaching a peace deal over native forest logging.
Ms. Gillard has told ABC Local Radio the Government was in regular
contact with Mr. Kelty.
"We will continue to be engaged strongly with Bill Kelty, with the
groups he's working with and with the Tasmanian Government to work
towards a resolution of this big issue, which is course has been a
huge issue for Tassie and the nation for a long period of time,"
she said.
JIANGBO PHARMA: Rosen Law Firm Files Securities Class Action
------------------------------------------------------------
The Rosen Law Firm, P.A. on July 16 disclosed that it has filed a
class action lawsuit on behalf of those who purchased the
securities of Jiangbo Pharmaceuticals, Inc. during the period from
May 17, 2010, through May 31, 2011. The lawsuit is seeking to
recover investors' damages from violations of the federal
securities laws.
To join the Jiangbo class action, visit the Rosen Law Firm's
Web site at http://www.rosenlegal.comor call Phillip Kim, Esq.,
or Laurence Rosen, Esq. toll-free, at 866-767-3653; you may also
e-mail pkim@rosenlegal.com or lrosen@rosenlegal.com for
information on the class action. The case is pending in the U.S.
District Court for the Southern District of Florida.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN
AN ABSENT CLASS MEMBER.
The Complaint asserts violations of the federal securities laws
against Jiangbo and its officers and directors for issuing false
and misleading information to investors about the financial and
business condition of the Company and its lack of internal
controls. On May 31, 2011, Nasdaq halted trading in the Company's
stock. Following the trading halt, the Complaint alleges that
numerous other red flags of fraud became known to the market,
including the resignation of certain of the Company's directors.
If you wish to serve as lead plaintiff, you must move the Court no
later than September 14, 2011. If you wish to join the
litigation, or to discuss your rights or interests regarding this
class action, please contact Phillip Kim, Esq. of The Rosen Law
Firm, toll-free, at 866-767-3653, or via e-mail at
pkim@rosenlegal.com
You may also visit the firm's Web site at
http://www.rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
MAGMA DESIGN: Appeal in "Genesis" Suit Remains Pending
------------------------------------------------------
An appeal from a judgment in the lawsuit commenced by Genesis
Insurance Company against Magma Design Automation, Inc., et al.,
remains pending, according to the Company's July 15, 2011, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended May 1, 2011.
In Genesis Insurance Company v. Magma Design Automation, et al.,
Case No. 06-5526-JW, filed on September 8, 2006, in the United
States District Court for the Northern District of California,
Genesis seeks a declaration of its rights and obligations under an
excess directors and officers liability policy for defense and
settlement costs arising out of the securities class action
against the Company, in re: Magma Design Automation, Inc.
Securities Litigation, as well as a related derivative lawsuit.
Genesis seeks a return of $5.0 million it paid towards the
settlement of the securities class action and derivative lawsuits
from the Company or from another of the Company's excess directors
and officers liability insurers, National Union. The Company
contends that either Genesis or National Union owes the settlement
amounts, but not the Company. The trial court granted summary
judgment for the Company and National Union, finding that Genesis
owed the settlement amount. Genesis appealed to the Ninth Circuit
Court of Appeals, and the Company cross-appealed. On July 12,
2010, the Court of Appeals reversed, ruling that Genesis does not
owe the settlement amount under its policy, and remanded the case
to the trial court for further proceedings.
On December 20, 2010, the trial court ruled on various cross-
motions that National Union owes the settlement amount to Genesis.
The court entered a judgment in favor of Genesis and the Company
on March 2, 2011, requiring that National Union pays $5.0 million
plus prejudgment interest to Genesis. On April 1, 2011, National
Union appealed the trial court's judgment to the Ninth Circuit
Court of Appeals. The opening brief of National Union was due on
July 11, 2011. While there can be no assurance as to the ultimate
disposition of the litigation, the Company does not believe that
its resolution will have a material adverse effect on the
Company's financial position, results of operations or cash flows.
MAGNUM D'OR RESOURCES: Saraff Gentile Files Class Action in Fla.
----------------------------------------------------------------
The law firm of Sarraf Gentile LLP has filed a class action
lawsuit in the United States District Court for the Southern
District of Florida, case number 11-cv-61591, against Magnum d'Or
Resources Inc. The action is brought on behalf of purchasers of
Magnum stock between July 2, 2008, and April 13, 2010, inclusive.
The Complaint asserts violations of Sections 10(b) and 20(a) of
the Securities Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a);
and SEC Rule 10b-5 promulgated thereunder, 17 C.F.R. Section
240.10b-5.
The Complaint alleges that Magnum made false statements to the
marketplace about its growth and operations, including falsely
claiming that it had $130 million in contracts and $15 million in
financing. This positive news, according to the Complaint, pushed
Magnum's stock price up artificially, allowing insiders to carry
out an illegal kickback scheme using Magnum's own stock. On
April 29, 2011, according to the Complaint, the SEC filed civil
charges against Magnum and several individuals involved in the
scheme.
If you purchased shares of Magnum common stock during the Class
Period, you have 60 days from July 18 to ask the Court to appoint
you as Lead Plaintiff, a representative of the proposed class. If
you want to discuss your legal rights, at no cost and without
obligation, please contact:
Joseph Gentile, Esq.
SARRAF GENTILE LLP
One Pennsylvania Plaza, Suite 2424
New York, NY 10119
Telephone: 212-868-3610
E-mail: joseph@sarrafgentile.com
Web site: http://www.sarrafgentile.com
Sarraf Gentile LLP has extensive experience litigating shareholder
actions across the United States. The firm has recovered millions
of dollars on behalf of injured shareholders.
MCDONALD'S CORP: Happy Meal Suit May Prompt Higher Ad Costs
-----------------------------------------------------------
Dan Levine, writing for Reuters, reports that advertising costs
for McDonald's Corp. would be heightened if a California lawsuit
over its Happy Meal toy promotions proved successful, a lawyer for
the company said in court.
McDonald's is accused of unfairly using toys to lure children into
its restaurants, and a proposed class action lawsuit seeks to stop
the company from advertising toys in connection with Happy Meals
in California.
The Happy Meal, which packages children's meals with toys, has
been a huge hit for McDonald's -- making the company one of the
world's largest toy distributors and spawning me-too offerings at
most other fast-food chains.
McDonald's use of Happy Meal toys has come under fire from public
health officials, parents and lawmakers who are frustrated with
rising childhood obesity rates and weak anti-obesity efforts from
restaurant operators, which are largely self-regulated.
At a hearing on July 15 in a San Francisco federal court,
McDonald's attorney Scott Elder said an injunction against
advertising Happy Meal toys in California would make the chain
unable to purchase ads on a national basis.
Buying ads nationally is "a lot cheaper," Mr. Elder said.
McDonald's is asking that the case be litigated in the federal
courts, which are generally viewed by corporate defendants as
friendlier than state courts. In order to succeed, McDonald's has
to prove the lawsuit involves potential costs of over $5 million.
An attorney for the plaintiff, Stephen Gardner, argued that food
chains frequently change marketing practices, and that the case
should be returned to a California state court.
U.S. District Judge Maxine Chesney did not say whether she would
grant the McDonald's request.
The proposed class action lawsuit in U.S. District Court, Northern
District of California, is Parham v. McDonald's Corporation et al,
11-511.
NATURA PET: Class Action Settlements Gets Preliminary Approval
--------------------------------------------------------------
A federal court judge has preliminarily approved a $2.15 million
settlement to a class action lawsuit against Natura Pet Products
that alleges the manufacturer misrepresented the quality of its
pet food.
Natura admits no wrongdoing in the case but considers a settlement
desirable because it "will bring to an end the expense and burdens
associated with continued litigation," according to court
documents. Natura officials could not be immediately reached for
comment.
The lawsuit, filed in March 2009, alleges Natura's Web site and
labeling contain "a large number of misleading and false
statements relating primarily to assertions concerning the human-
grade quality of its food." The plaintiff alleged that these
statements included such claims as "We only use ingredients you'd
eat yourself," "All of our human grade dog and cat foods are
carefully cooked and tested . . ." and "Natura's products use only
human grade ingredients."
As part of the settlement, which U.S. District Judge Jeremy Fogel
preliminarily approved earlier this month, Natura would stop
promoting its pet food products as human grade, human quality or
as something that "you would eat yourself."
Natura also would establish a $2.15 million settlement fund. The
settlement fund will be used to make payments to class members, as
well as cover attorneys' fees, costs and expenses.
Class members include all U.S. residents who purchased any Natura
product between March 20, 2005, and July 8, 2011. These products
include Innova, Evo, California Natural, Healthwise, Mother Nature
and Karma dog and cat food.
Members may be eligible for a payment of up to $200. To be
eligible for a payment, class members must submit a claim form,
available at PetProductsSettlement.com, by Jan. 8, 2012.
A final fairness hearing is set for Feb. 17, 2012, at the District
Court for the Northern District of California. At that time, the
court will determine whether to grant final approval of the
settlement.
NEW YORK LIFE: Accused of Cheating Policyholders
------------------------------------------------
Courthouse News Service reports that a federal class action filed
in Manhattan claims that New York Life Insurance has cheated
policyholders of contractually promised interest rates on
interest-bearing accounts since 1996.
NISSSA MOTOR: Properly Dismissed as Defendant in Class Action
-------------------------------------------------------------
Jessica M. Karmasek, writing for Legal Newsline, reports that in a
review of an appeals court decision, the Wisconsin Supreme Court
says Japan-based Nissan Motor Co. was "properly dismissed" as a
defendant in a class-action lawsuit.
The Court had to decide whether under Wisconsin Statute
801.05(1)(d) -- the long-arm statute granting general personal
jurisdiction over individuals engaged in "substantial and not
isolated activities within" the state -- Nissan Japan is subject
to general personal jurisdiction in the state.
The plaintiff David Rasmussen and the class contend that Wisconsin
does, indeed, have general personal jurisdiction over Nissan Japan
under 801.05(1)(d) based on the "substantial and not isolated
activities" of Nissan North America Inc., Nissan Japan's wholly
owned subsidiary.
The Court, in its July 1 opinion, disagreed. Justice Patience
Drake Roggensack authored the Court's ruling.
In it, the justices said even assuming that Nissan North America
were the agent of Nissan Japan -- absent control by Nissan Japan
-- the activities of the subsidiary corporation are "insufficient"
to subject its nonresident parent corporation to general personal
jurisdiction under 801.05(1)(d).
"In order to accord general personal jurisdiction over a
nonresident corporate defendant based on an alleged agency
relationship, there must be something more than merely an agency
relationship," the Court wrote.
"As in other circumstances where general personal jurisdiction is
sought for a nonresident defendant based on the acts of another in
an alleged agency relationship with a subsidiary, there also must
be control by the nonresident parent corporation sufficient to
cause us to disregard the separate corporate identities of the
subsidiary and the parent corporations."
The circuit court found no factor that would weigh in favor of
ignoring the separate corporate identities of Nissan Japan and
Nissan North America, the Court said.
"To the contrary, the circuit court found that: (1) Nissan Japan
did not have 'complete control' or 'domination' of Nissan North
America; (2) requisite corporate formalities were observed; (3)
there was no showing that Nissan North America did not exercise
independent decision-making; (4) there was no showing that
corporate legal requirements were not followed; and (5) there was
no showing of fraud or undercapitalization," the state's high
court wrote.
"Given the law, which presumes corporate separateness, and the
facts found about the relationship between Nissan Japan and Nissan
North America, we conclude that Nissan Japan did not have control
over Nissan North America sufficient to cause us to disregard the
separate corporate identities of the nonresident parent and the
subsidiary such that we impute the acts of the subsidiary to the
parent."
The Court also concluded that Rasmussen did not meet his burden to
show that the corporate separateness of Nissan Japan and and
Nissan North America should be disregarded such that the
activities of Nissan North America in Wisconsin should be imputed
to Nissan Japan.
"Without the attribution of Nissan North America's activities in
Wisconsin to Nissan Japan, Rasmussen has provided no basis to
demonstrate the 'substantial and not isolated activities' within
Wisconsin that Wis. Stat. 801.05(1)(d) requires for general
personal jurisdiction over Nissan Japan," it wrote.
Accordingly, the statutory prerequisites for general personal
jurisdiction under 801.05(1)(d) were not met, the Court concluded.
Because the requirements were not met, the Court declined to
discuss whether exercising general personal jurisdiction over
Nissan Japan comports with due process.
OCZ TECHNOLOGY: Aug. 2 Hearing Set on Bid to Dismiss Calif. Suit
----------------------------------------------------------------
OCZ Technology Group, Inc.'s motion to dismiss a class action
lawsuit pending in California will be heard on August 2, 2011,
according to the Company's July 15, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
May 31, 2011.
On March 24, 2011, a purported class action lawsuit was filed in
the United States District Court for the Northern District of
California, San Jose Division, alleging that certain of the
Company's advance solid state drives ("SSDs") sold after
January 1, 2011, did not meet certain performance criteria and as
a result the Company engaged in certain deceptive practices and
violated various laws. The Company believes that the lawsuit has
no merit and it intends to vigorously defend against this
litigation. On May 18, 2011, OCZ filed a Motion to Dismiss
Plaintiff's Complaint, or alternatively, to strike certain
allegations. The Motion is set to be heard on August 2, 2011. On
June 28, 2011 a Case Management Order was issued setting a class
certification hearing for May 21, 2012, and a trial date of
May 28, 2013.
The Company says it is a party to various legal proceedings
related to the on-going operation of its business, including
claims both by and against the Company. At any time, such
proceedings typically involve claims related to product liability,
contract disputes, wage and hour laws, employment practices, or
other actions brought by employees, consumers, competitors, or
suppliers. The Company establishes accruals for its potential
exposure, as appropriate, for claims against the Company when
losses become probable and reasonably estimable. However, future
developments or settlements are uncertain and may require the
Company to change such accruals as proceedings progress.
Resolution of any currently known matters, either individually or
in the aggregate, is not expected to have a material effect on the
Company's financial condition, results of operations, or
liquidity.
PROGRESS ENERGY: Signs MOU to Settle Merger-Related Suits
---------------------------------------------------------
Progress Energy, Inc. and other defendants entered into a
memorandum of understanding to settle merger-related litigation,
according to the Company's July 15, 2011, Form 8-K filing with the
U.S. Securities and Exchange Commission.
On July 11, 2011, solely to avoid the costs, risks and
uncertainties inherent in litigation and to allow its shareholders
to vote on the proposals required in connection with the proposed
merger with Duke Energy Corporation at the special meeting of its
shareholders, Progress Energy, Inc., entered into a memorandum of
understanding with plaintiffs and other named defendants,
including Duke Energy and Diamond Acquisition Corporation,
regarding the settlement of the lawsuit captioned In re Progress
Energy Shareholder Litigation, pending in the Superior Court, Wake
County, North Carolina, under Consolidated File No. 11-CVS-739, as
well as the settlement of all related claims that were or could
have been asserted in other actions. That lawsuit represents the
consolidation of nine class action lawsuits filed on behalf of
Progress Energy's shareholders following the public announcement
of the execution of the Agreement and Plan of Merger, dated
January 8, 2011, by and among Duke Energy, Diamond Acquisition and
Progress Energy.
As described in greater detail in the joint proxy
statement/prospectus included in Amendment No. 5 to the
Registration Statement on Form S-4 filed by Duke Energy with the
SEC on July 7, 2011, Progress Energy, its directors, Duke Energy
and Diamond Acquisition were named as defendants in eleven
purported class action lawsuits, with ten lawsuits brought in the
Superior Court, Wake County, North Carolina, (one of which was
voluntarily dismissed) and one lawsuit filed in the United States
District Court for the Eastern District of North Carolina, each in
connection with the proposed merger. The complaints in the
actions alleged, among other things, that the Merger Agreement was
the product of breaches of fiduciary duty by the individual
defendants, in that it allegedly does not provide for full and
fair value for Progress Energy's shareholders; that the Merger
Agreement contains coercive deal protection measures; and that the
Merger Agreement and the merger were approved as a result,
allegedly, of improper self-dealing by certain defendants who
would receive certain alleged employment compensation benefits and
continued employment pursuant to the Merger Agreement. The
complaints in the actions also alleged that Progress Energy and/or
Duke Energy and/or Diamond Acquisition aided and abetted the
individual defendants' alleged breaches of fiduciary duty.
Additionally, the complaint in the federal action was amended on
April 7, 2011, by plaintiff Noah Wolf to include allegations that
the defendants violated federal securities laws in connection with
statements contained in Duke Energy's initial Registration
Statement on Form S-4, filed with the SEC on March 17, 2011.
On June 21, 2011, plaintiffs in the state action filed a verified
consolidated amended complaint setting forth claims on behalf of a
putative class of Progress Energy shareholders, alleging breaches
of fiduciary duty by the individual Progress Energy director
defendants and aiding and abetting breaches of fiduciary duty by
Progress Energy, Duke Energy, and Diamond Acquisition. The
verified consolidated amended complaint further alleges that the
initial Registration Statement on Form S-4 filed by Duke Energy
with the SEC on March 17, 2011, and amendments filed on April 8,
April 25, and May 13, 2011, failed to disclose material facts,
giving rise to plaintiffs' claims. The lawsuits seek to, among
other things, enjoin the proposed merger from proceeding. On
July 7, 2011, plaintiff Martin Galaton filed a "class action
complaint" in the United States District Court for the Eastern
District of North Carolina, in the same case docket in which the
Wolf amended class action complaint was filed. The Galaton
complaint mirrors the allegations in the Wolf amended class action
complaint. The same plaintiff's counsel filed both the Wolf and
Galaton complaints.
Under the terms of the memorandum of understanding, Progress
Energy, the other named defendants, including Duke Energy and
Diamond Acquisition, and the plaintiffs in the consolidated state
action have agreed to settle the consolidated action and all
related claims subject to court approval. If the court approves
the settlement contemplated in the memorandum of understanding,
the claims will be released and the consolidated amended complaint
will be dismissed with prejudice. Pursuant to the terms of the
memorandum of understanding, Progress Energy has agreed to make
available additional information to its shareholders in advance of
the special meeting of shareholders of Progress Energy scheduled
for August 23, 2011, in Raleigh, North Carolina, to vote upon the
proposal to approve the plan of merger contained in the Merger
Agreement. The additional information is contained in this
Current Report on Form 8-K. In return, the plaintiffs have agreed
to dismissal of the consolidated lawsuit and to withdraw all
motions filed in connection with such lawsuit.
In connection with the settlement, plaintiffs in the consolidated
lawsuit intend to seek an award of attorneys' fees and expenses
not to exceed $550,000, subject to court approval. Progress
Energy has agreed to pay the legal fees and expenses of
plaintiffs' counsel, in an amount not to exceed $550,000 and
ultimately to be determined by the court. If the settlement is
finally approved by the court, it is anticipated that the
settlement will resolve and release all claims in all actions that
were or could have been brought challenging any aspect of the
proposed merger, the Merger Agreement, and any disclosure made in
connection therewith. There can be no assurance that the parties
will ultimately enter into a stipulation of settlement or that the
court will approve the settlement even if the parties were to
enter into such stipulation. In such event, the proposed
settlement as contemplated by the memorandum of understanding may
be terminated. The details of the settlement will be set forth in
a notice to be sent to Progress Energy's shareholders prior to a
hearing before the court to consider both the settlement and
plaintiffs' application to the court for attorneys' fees and
expenses.
The settlement will not affect the merger consideration to be paid
to shareholders of Progress Energy in connection with the proposed
merger between Progress Energy and Duke Energy or the timing of
the special meeting of shareholders.
Progress Energy and the other defendants, including Duke Energy
and Diamond Acquisition, have vigorously denied, and continue
vigorously to deny, that they have committed or aided and abetted
in the commission of any violation of law or engaged in any of the
wrongful acts that were or could have been alleged in the
consolidated lawsuit, and expressly maintain that, to the extent
applicable, they diligently and scrupulously complied with their
fiduciary and other legal duties and are entering into the
contemplated settlement solely to eliminate the burden and expense
of further litigation, to put the claims that were or could have
been asserted to rest, and to avoid any possible delay to the
closing of the merger that might arise from further litigation.
Nothing in the Current Report on Form 8-K, the memorandum of
understanding or any stipulation of settlement will be deemed an
admission of the legal necessity or materiality under applicable
laws of any of the disclosures set forth.
TEXAS INDUSTRIES: Continues to Defend Chrome 6 Exposure Suits
-------------------------------------------------------------
Texas Industries, Inc., continues to defend lawsuits alleging
exposure to chrome 6 emissions from its cement plants, according
to the Company's July 15, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended May 31,
2011.
In late April 2008, a lawsuit was filed in Riverside County
Superior Court of the State of California styled Virginia
Shellman, et al. v. Riverside Cement Holdings Company, et al. The
lawsuit against three of the Company's subsidiaries purports to be
a class action complaint for medical monitoring for a putative
class defined as individuals who were allegedly exposed to chrome
6 emissions from the Company's Crestmore cement plant near
Riverside, California. The complaint alleges an increased risk of
future illness due to the exposure to chrome 6 and other toxic
chemicals. The lawsuit requests, among other things,
establishment and funding of a medical testing and monitoring
program for the class until their exposure to chrome 6 is no
longer a threat to their health, as well as punitive and exemplary
damages.
Since the Shellman lawsuit was filed, five additional putative
class action lawsuits have been filed in the same court. The
putative class in each of these cases is the same as or a subset
of the putative class in the Shellman case, and the allegations
and requests for relief are similar to those in the Shellman case.
As a consequence, the court has stayed four of these lawsuits
until the Shellman lawsuit is finally determined.
Since August 2008, additional lawsuits have been filed in the same
court against the Company or one or more of its subsidiaries
containing allegations of personal injury and wrongful death by
over 3,100 individual plaintiffs who were allegedly exposed to
chrome 6 and other toxic or harmful substances in the air, water
and soil caused by emissions from the Crestmore plant. The court
has dismissed the Company from the lawsuits, and its subsidiaries
operating in Texas have been dismissed by agreement with the
plaintiffs. Most of the Company's subsidiaries operating in
California remain as defendants.
Since January 2009, additional lawsuits have been filed against
Texas Industries, Inc. or one or more of its subsidiaries in the
same court involving similar allegations, causes of action and
requests for relief, but with respect to the Company's Oro Grande,
California cement plant instead of the Crestmore plant. The
lawsuits involve over 300 individual plaintiffs. The Company and
its subsidiaries operating in Texas have been similarly dismissed
from these lawsuits. Prior to the filing of the lawsuits, the air
quality management district in whose jurisdiction the plant lies
conducted air sampling from locations around the plant. None of
the samples contained chrome 6 levels above 1.0 ng/m3.
The plaintiffs allege causes of action that are similar from
lawsuit to lawsuit. Following dismissal of certain causes of
action by the court and amendments by the plaintiffs, the
remaining causes of action typically include, among other things,
negligence, intentional and negligent infliction of emotional
distress, trespass, public and private nuisance, strict liability,
willful misconduct, fraudulent concealment, unfair business
practices, wrongful death and loss of consortium. The plaintiffs
generally request, among other things, general and punitive
damages, medical expenses, loss of earnings, property damages and
medical monitoring costs. As of July 15, 2011, none of the
plaintiffs in these cases has alleged in their pleadings any
specific amount or range of damages. Some of the lawsuits include
additional defendants, such as the owner of another cement plant
located approximately four miles from the Crestmore plant or
former owners of the Crestmore and Oro Grande plants.
The Company says it will vigorously defend all of these lawsuits
but the Company cannot predict what liability, if any, could arise
from them. The Company also cannot predict whether any other
lawsuits may be filed against the Company alleging damages due to
injuries to persons or property caused by claimed exposure to
chrome 6.
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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.
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