/raid1/www/Hosts/bankrupt/CAR_Public/110809.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 9, 2011, Vol. 13, No. 156
Headlines
ALLIED HEALTHCARE: Being Sold for Too Little, Suit Claims
AMEDISYS INC: Motions to Dismiss Consolidated Proceedings Pending
BANKATLANTIC BANCORP: Seeks to Recover More in Securities Suit
BANK OF AMERICA: Fifteen Investors Opt Out of Settlement
BUILD-A-BEAR WORKSHOP: Recalls 28,700 Love.Hugs.Peace Lapel Pins
CNA FINANCIAL: Fairness Hearing in Antitrust Suit Set for Sept.
CVS PHARMACY: Fined for Failing to Report Drawstring Hazards
DAVEY TREE: Trial in "Ely" Suit Vs. Unit Still On for January 30
DAVEY TREE: Continues to Defend Suits Over California Fire
E.I. DUPONT: Grossman Roth Files Class Action Over Imprelis
FIRST AMERICAN: Continues to Defend Suits Over Business Practices
FIRSTENERGY CORP: Appeal in Ohio Class Suit Remains Pending
FIRSTENERGY CORP: FGCO Continues to Defend Bruce Mansfield Suit
FIRSTENERGY CORP: Nine Claims in Power Outage Suit Remain Pending
FORD MOTOR: Sued Over Defective Explorer and Mercury Vehicles
FOREST LABORATORIES: D&O Accused of Wasting Corporate Assets
FRANKLIN RESOURCES: Final Settlement Hearing Set for October 25
GNC CORP: Sued for Selling Weight Loss Products with HCG
GOLD CLUB: Exotic Dancers Fight for Right to File Class Action
GUARDSMARK: Blumenthal Files Wage & Hour Class Action
JIANGBO PHARMA: Harwood Feffer Files Securities Class Action
JIANGBO PHARMA: September 14 Lead Plaintiff Deadline Set
MOTOROLA INC: Loses Bid to Dismiss Shareholder Class Action
OLD REPUBLIC: ORNTIC Continues to Defend Pa. & Texas Class Suits
OLD REPUBLIC: ORNTIC Continues to Defend Calif. Class Suit
OLD REPUBLIC: Ala. & Calif. Class Suits Vs. ORHP Remain Pending
PENNSYLVANIA ELECTRIC: Seeks Claims Dismissal in Emissions Suits
TARGET CORP: Recalls 206,000 Step Stools Due to Fall Hazard
UNITED STATES: Dec. 27 Keepseagle Claims Filing Deadline Set
VERISK ANALYTICS: Continues to Defend Hanover Suit Over Indemnity
VERISK ANALYTICS: Appeal From Dismissal of iiX Suit Still Pending
WELLS FARGO: Breaks HECM Program's 95% Rule, Suit Alleges
WELLS FARGO: Judge Okays Loan Processor Class Action Settlement
WELLS FARGO: AARP Files Reverse Mortgage Class Action
* Small U.S. Banks Want Customers to Opt for Arbitration
*********
ALLIED HEALTHCARE: Being Sold for Too Little, Suit Claims
---------------------------------------------------------
Charles Zimmerman, On Behalf of Himself and All Others Similarly
Situated v. Allied Healthcare International Inc., Alexander Young,
Raymond J. Playford, Wayne Palladino, Jeffrey S. Peris, Sophia
Corona, Ann Thornburg, Mark Hanley, Saga Group Limited and AHL
Acquisition Corp., Case No. 652158/2011 (N.Y. Sup. Ct., August 3,
2011) is a shareholder class action brought to enjoin the
acquisition of the publicly-owned shares of Allied common stock by
Saga and AHL.
The Plaintiff argues that the consideration offered in the
Proposed Transaction is unfair and grossly inadequate, because the
intrinsic value of Allied's common stock is materially in excess
of the amount offered, given the Company's recent growth.
Mr. Zimmerman is a shareholder of Allied.
Allied is a New York corporation and is one of the United
Kingdom's leading providers of domiciliary care and healthcare
staffing services. Saga is a corporation organized under the laws
of England and Wales and is the UK's leading provider of products
and services specifically designed for people aged 50 and over.
AHL is a New York corporation and a wholly-owned subsidiary of
Saga. The Individual Defendants are directors and officers of
Allied.
The Plaintiff is represented by:
Juan E. Monteverde, Esq.
Nicholas W. Moyne, Esq.
FARUQI & FARUQI, LLP
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 983-9330
Facsimile: (212) 983-9331
Email: jmonteverde@faruqilaw.com
nmoyne@faruqilaw.com
AMEDISYS INC: Motions to Dismiss Consolidated Proceedings Pending
-----------------------------------------------------------------
Motions to dismiss amended complaints filed in putative securities
class actions, shareholder derivative actions and class actions
under the Employee Retirement Income Security Act, which have been
consolidated for pre-trial purposes remain pending, according to
the Company's August 2, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2011.
Securities Class Action Lawsuits
On June 7, 2010, a putative securities class action complaint was
filed in the United States District Court for the Middle District
of Louisiana against the Company and certain of its current and
former senior executives. Additional putative securities class
actions were filed in the United States District Court for the
Middle District of Louisiana on July 14, July 16, and July 28,
2010.
On October 22, 2010, the Court issued an order consolidating the
putative securities class action lawsuits and the derivative
actions for pre-trial purposes. In the same order, the Court
appointed the Public Employees Retirement System of Mississippi
and the Puerto Rico Teachers' Retirement System as co-lead
plaintiffs for the putative class. On December 10, 2010, the
Court also consolidated the ERISA class action lawsuit with the
putative securities class actions and derivative actions for pre-
trial purposes.
On January 18, 2011, the Co-Lead Plaintiffs filed an amended,
consolidated class action complaint which supersedes the earlier-
filed securities class action complaints. The Securities
Complaint alleges that the defendants made false and/or misleading
statements and failed to disclose material facts about the
Company's business, financial condition, operations and prospects,
particularly relating to the Company's policies and practices
regarding home therapy visits under the Medicare home health
prospective payment system and the related alleged impact on its
business, financial condition, operations and prospects. The
Securities Complaint seeks a determination that the action may be
maintained as a class action on behalf of all persons who
purchased the Company's securities between August 2, 2005 and
September 28, 2010. All defendants have moved to dismiss the
Securities Complaint.
Shareholder Derivative Actions
On July 2, 2010, an alleged shareholder of the Company filed a
derivative lawsuit in the United States District Court for the
Middle District of Louisiana, purporting to assert claims on
behalf of the Company against certain of its current and former
officers and directors. Three similar derivative suits were filed
in the United States District Court for the Middle District of
Louisiana on July 15, July 21, and August 2, 2010. The Company is
named as a nominal defendant in all of those actions. On October
22, 2010, the United States District Court for the Middle District
of Louisiana issued an order consolidating the derivative actions
with the putative securities class action lawsuits and for pre-
trial purposes.
On January 18, 2011, the plaintiffs in the consolidated federal
derivative actions filed a consolidated, amended complaint, which
supersedes the earlier-filed derivative complaints. The Derivative
Complaint alleges that certain of the Company's current and former
officers and directors breached their fiduciary duties to the
Company by making allegedly false statements, by allegedly failing
to establish sufficient internal controls over certain of the
Company's home health and Medicare billing practices, by engaging
in alleged insider trading, and by committing unspecified acts of
waste of corporate assets and unjust enrichment. All defendants
in the derivative action, including the Company as a nominal
defendant, have moved to dismiss the Derivative Complaint.
ERISA Class Action Lawsuit
On September 27, 2010 and October 22, 2010, separate putative
class action complaints were filed in the United States District
Court for the Middle District of Louisiana against the Company,
certain of its current and former senior executives and members of
the Company's 401(k) Plan Administrative Committee. The lawsuits
allege violations of the ERISA since January 1, 2006 and July 1,
2007. The plaintiffs brought the complaints on behalf of
themselves and a class of similarly situated participants in the
Company's 401(k) plan. The plaintiffs assert that the defendants
breached their fiduciary duties to the 401(k) Plan's participants
by causing the 401(k) plan to offer and hold Amedisys common stock
during the respective class periods when it was an allegedly
unduly risky and imprudent retirement investment because of the
Company's alleged improper business practices. The complaints
seek a determination that the actions may be maintained as a class
action, an award of unspecified monetary damages and other
unspecified relief. On December 10, 2010, the Court consolidated
the putative ERISA class actions with the putative securities
class actions and derivative actions for pre-trial purposes. In
addition, on December 10, 2010, the Court appointed interim lead
counsel and interim liaison counsel in the ERISA class action.
On March 10, 2011, Wanda Corbin, Pia Galimba and Linda Trammell
filed an amended, consolidated class action complaint, which
supersedes the earlier-filed ERISA class action complaints. The
ERISA Complaint seeks a determination that the action may be
maintained as a class action on behalf of themselves and a class
of similarly situated participants in the Company's 401(k) plan
from January 1, 2008 through present. All of the defendants have
moved to dismiss the ERISA Complaint.
Amedisys, Inc. -- http://www.amedisys.com/-- is one of America's
leading home health and hospice companies. The company is
headquartered in Baton Rouge, Louisiana.
BANKATLANTIC BANCORP: Seeks to Recover More in Securities Suit
--------------------------------------------------------------
Brian Bandell, writing for South Florida Business Journal, reports
that BankAtlantic Bancorp won a small fraction of its legal fees
from fighting a securities class action lawsuit after a judge
sanctioned the plaintiff attorneys, but the company plans to seek
millions more.
The legal saga for the Fort Lauderdale-based bank holding company
and Chairman and CEO Alan Levan has been winding on since the
lawsuit was filed in 2007. A federal jury came back with a
verdict last year that Mr. Levan made false statements about the
bank's loan portfolio that hurt shareholders, but U.S. District
Judge Ursula Ungaro overturned that verdict in April after ruling
that the plaintiffs failed to prove that the allegedly false
statements caused damages. The plaintiffs appealed her ruling.
Still without a hefty sum of money after defending the lawsuit for
over three years, BankAtlantic Bancorp filed a motion to sanction
plaintiff law firms Labaton Sucharo LLP and Barroway Topaz Kessler
Meltzer & Check LLP on numerous counts. The company claimed that
the plaintiff attorneys misrepresented the statements of former
bank employees who were used as witnesses in the complaint and
that most of the claims, including insider trading, inaccurate
loan loss accounting and making false statements, were frivolous.
Judge Ungaro's ruling on August 2 denied all but one of
BankAtlantic Bancorp's requests for sanctions. The surviving
count involved former bank employee Donna Loverin. In their
complaint, the plaintiffs said she worked as a loan analyst and
underwriter, but the recording of her interview in preparation for
the lawsuit made it clear that she worked in the small business
division during the class action period.
However, Judge Ungaro said that single problematic act was not
enough to say that the entire lawsuit was frivolous because it was
only a small part of the case. Instead of ordering full
reimbursement for the company, she ruled that the plaintiff
attorneys should compensate it for the cost of deposing
Ms. Loverin and a tenth of its attorney fees and costs in
preparing the motion for sanctions. The amount of compensation
would be determined after further motions.
The company will appeal the ruling because it believes sanctions
are warranted on all counts, said BankAtlantic Bancorp's attorney,
Eugene Stearns, of Stearns Weaver Miller Weissler Alhadeff &
SittersonbizWatch in Miami. Either way, the federal appeals court
reviews all rulings on sanctions.
"They have been sanctioned for misrepresenting what was said in an
interview that was recorded, but the court accepted at face value
what they learned at interviews that were not recorded, so I
obviously have concerns about that," Mr. Stearns said. "When a
trial judge makes decisions based on arguments that were frivolous
it's difficult to make the case to the judge that it was wrong."
BankAtlantic Bancorp pointed out other discrepancies between
statements attributed to the former bank employees in the
complaint and what they said in depositions before the company.
Yet, Judge Ungaro said the lack of documentation from the initial
interviews and the two-year time period before the company
performed follow-up depositions meant there wasn't enough evidence
to determine whether those statements were mischaracterized.
"They [the plaintiff attorneys] would owe a significant amount of
money now but not millions," Mr. Stearns said. "We will appeal
because we think we were entitled to collect every penny."
Mark Arisohn, with plaintiff attorneys Labaton Sucharow, noted
that most of Stearns' arguments for sanctions were soundly
rejected by the judge.
He said, "We are reviewing the small claim that survived to
determine what action, if any, is warranted."
BANK OF AMERICA: Fifteen Investors Opt Out of Settlement
--------------------------------------------------------
Alison Frankel, writing for Thomson Reuters, reports that first
came news of a new securities fraud suit against Bank of America.
Fifteen institutional investors have elected to opt out of the
bank's $624 million class action settlement of Countrywide-related
claims, deciding they can do better in a joint suit outside of the
class action. What's particularly interesting about the case,
aside from Bernstein, Litowitz, Berger & Grossmann's 439-page (!)
Los Angeles federal court complaint, is the lineup of plaintiffs.
Three of them -- BlackRock, TIAA-CREF, and Thrivent Financial --
are also part of the group of 22 institutional investors that
negotiated an $8.5 billion settlement of mortgage-backed
securities contract claims with Bank of America in July.
Kathy Patrick of Gibbs & Bruns, who represented the MBS contract-
claims investor group in talks with BofA, has said the bank tried
to squeeze her clients to release securities fraud claims, but she
refused to go along. The July 29 filing confirms that some
members of the Gibbs & Bruns group were serious about those fraud
claims. The new suit also casts doubt on objectors' allegations
of collusion between BofA and the Gibbs group, just in time for
the first hearing on the $8.5 billion proposed settlement. Blair
Nicholas of Bernstein Litowitz, who represents the 15 fraud
plaintiffs, told me that there's no link between the cases, Ms.
Frankel says. Noting that he's previously represented most of the
investors in the new filing, including TIAA-CREF, he said, "The
two cases are completely independent and stand apart."
On July 29, in more good news for Bernstein Litowitz and bad news
for BofA, Manhattan federal judge Kevin Castel ruled that
Bernstein and other class counsel can proceed with securities
class action claims that Bank of America, then-CEO Kenneth Lewis,
and then-CFO Joel Price deceived shareholders about Merrill
Lynch's losses in the run-up to BofA's 2008 Merrill acquisition.
Judge Castel's 25-page opinion concludes that Messrs. Price and
Lewis were well aware of mounting losses at Merrill, yet decided
not to disclose the magnitude of those losses to shareholders in
advance of their vote on the Merrill merger. The ruling revives
fraud claims Judge Castel had previously dismissed; lawyers for
the class were able to show in an amended complaint that BofA,
Lewis, and Mr. Price had the requisite intent to defraud.
Students of BofA's Merrill merger -- and there were quite a few of
us at the time Manhattan federal judge Jed Rakoff was challenging
BofA's Merrill-related settlement with the Securities and Exchange
Commission -- will definitely want to read Judge Castel's
discussion of the disclosure advice offered by BofA's M&A counsel
at Wachtell, Lipton, Rosen & Katz and by former BofA general
counsel Timothy Mayopoulos. The judge suggests that Mr. Price
didn't tell the lawyers everything he knew, and that
Mr. Mayopoulos was fired when he urged additional disclosures.
Finally, on July 29 a San Francisco state court judge ruled from
the bench that the Federal Home Loan Bank of San Francisco's $19
billion state-law securities claims against BofA and several other
defendants are not barred by the statute of limitations. David
Grais of Grais & Ellsworth, who represents the bank, said the
ruling is "very significant," given that the defendants devoted
half of their motion to dismiss (known as a demurrer in California
state court) to assertions that the FHLB waited too long to file
its suit.
The news wasn't all bad for BofA. In the Merrill class action,
Judge Castel granted the bank's motion to dismiss claims that BofA
didn't tell shareholders about receiving federal assistance to
acquire Merrill. He also refused to expand the class to include
claims by additional BofA securities owners. In the San Francisco
FHLB case, Judge Richard Kramer found that Mr. Grais's clients'
federal securities claims are time-barred; rather than trying to
amend the complaint, Mr. Grais dropped the federal claims in favor
of the state-law causes of action. The defendants in the San
Francisco FHLB case have additional dismissal arguments, which
Judge Kramer said he'd hear in September; Mr. Grais said the judge
has tentatively denied the arguments.
A spokesman for Bank of America declined to comment on the Castel
and Kramer rulings.
BUILD-A-BEAR WORKSHOP: Recalls 28,700 Love.Hugs.Peace Lapel Pins
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Build-A-Bear Workshop(R), of St. Louis, Missouri,
announced a voluntary recall of about 26,500 Love.Hugs.Peace lapel
pins in the United States of America and 2,200 in Canada.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
Surface paints on the lapel pin contain excessive levels of lead
which is prohibited under federal law.
No injuries have been reported.
The 1.5 inch lapel pin features graphics of a heart, bear head,
and peace sign all positioned in front of a globe. The words
"Love.Hugs.Peace." appear at the bottom of the pin. Picture of
the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11298.html
The recalled products were manufactured in China and sold by
Build-A-Bear Workshop stores nationwide and online at
http://www.buildabear.com/from July 2009 through October 2010 for
$3.50 in the US and C$4 in Canada.
Consumers should stop using the lapel pins and return the lapel
pin to any Build-A-Bear Workshop store to receive a $5 store
coupon. If it is not possible to return the pin to a store, you
can contact the company for alternate instructions on receiving a
refund. For additional information, please contact Build-A-Bear
Workshop toll-free at (866) 236-5683 between 8:00 a.m. and 6:00
p.m. Central Time Monday through Friday, between 9:00 a.m. and
4:00 p.m. Central Time Saturday, or visit the company's Web site
at http://www.buildabear.com/
CNA FINANCIAL: Fairness Hearing in Antitrust Suit Set for Sept.
---------------------------------------------------------------
A fairness hearing is scheduled in September 2011 to determine
final settlement in the Insurance Brokerage Antitrust Litigation
involving CNA Financial Corporation, according to the Company's
August 2, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In August 2005, CNAF and certain insurance subsidiaries were
joined as defendants, along with other insurers and brokers, in
multidistrict litigation pending in the United States District
Court for the District of New Jersey, In re Insurance Brokerage
Antitrust Litigation, Civil No. 04-5184 (GEB). The plaintiffs'
consolidated class action complaint alleges bid rigging and
improprieties in the payment of contingent commissions in
connection with the sale of insurance that violated federal and
state antitrust laws, the federal Racketeer Influenced and Corrupt
Organizations (RICO) Act and state common law. After discovery,
the District Court dismissed the federal antitrust claims and the
RICO claims, and declined to exercise supplemental jurisdiction
over the state law claims. The plaintiffs appealed the dismissal
of their complaint to the Third Circuit Court of Appeals. In
August 2010, the Court of Appeals affirmed the District Court's
dismissal of the antitrust claims and the RICO claims against CNAF
and certain insurance subsidiaries, but vacated the dismissal of
one portion of those claims against some other parties and
remanded them for further proceedings on motions to dismiss. The
Court of Appeals also vacated and remanded the dismissal of the
state law claims against CNAF and certain insurance subsidiaries
and other parties to allow for further proceedings relating to
motions to dismiss before the District Court. In November 2010,
CNAF and certain insurance subsidiaries filed in the district
court a motion to dismiss the remaining state law claims pending
against them. In March 2011, CNAF and certain insurance
subsidiaries, along with certain other defendants, entered into a
memorandum of settlement understanding with the plaintiffs to
settle all claims asserted, or which could have been asserted, in
the class action lawsuit. After negotiating additional terms, the
parties executed final settlement documents and the plaintiffs
filed a motion for preliminary approval of the settlement in May
2011. In June 2011, the Court entered an order preliminarily
approving the settlement. A fairness hearing is scheduled in
September 2011 to determine final settlement, after providing
notice to the class and an opportunity for any objections to be
heard. As currently structured, the settlement will not have a
material impact on the Company's results of operations. In
addition, the Company does not believe it has any material ongoing
exposure relating to this matter.
CVS PHARMACY: Fined for Failing to Report Drawstring Hazards
------------------------------------------------------------
The U.S. Consumer Product Safety Commission (CPSC) announced that
CVS Pharmacy, Inc., of Woonsocket, Rhode Island, has agreed to pay
a civil penalty of $45,000. The settlement agreement has been
provisionally accepted by the Commission unanimously (5-0).
The penalty resolves CPSC staff's allegations that CVS knowingly
failed to report to CPSC immediately, as required by federal law,
that it had sold children's hooded jackets with drawstrings at the
neck from August 2008 to January 2009. Children's upper outerwear
with drawstrings, including sweatshirts, sweaters, and jackets,
poses strangulation and entanglement hazards to children that can
result in serious injury or death. In March 2009, CPSC and the
importer of the jackets announced a recall of the products, which
were sold under the brand names Golden Grove and Young USA.
In 1996, CPSC issued drawstring guidelines (pdf) to help prevent
children from strangling on or getting entangled in the neck and
waist drawstrings of upper outerwear, such as jackets and
sweatshirts. In 2006, CPSC's Office of Compliance announced that
children's upper outerwear with drawstrings at the hood or neck
would be regarded as defective and presenting a substantial risk
of injury to young children.
Federal law requires manufacturers, distributors, and retailers to
report to CPSC immediately (within 24 hours) after obtaining
information reasonably supporting the conclusion that a product
contains a defect which could create a substantial product hazard,
creates an unreasonable risk of serious injury or death, or fails
to comply with any consumer product safety rule or any other rule,
regulation, standard, or ban enforced by CPSC.
In agreeing to the settlement, CVS denies CPSC staff's allegations
that it knowingly violated the law.
On June 29, 2011, the Commission approved a final rule that
designates children's upper outerwear in sizes 2T through 12 with
neck or hood drawstrings, and children's upper outerwear in sizes
2T through 16 with certain waist or bottom drawstrings, as
substantial product hazards.
DAVEY TREE: Trial in "Ely" Suit Vs. Unit Still On for January 30
----------------------------------------------------------------
Trial in Ely v. Davey Tree Surgery Company is still set for
January 30, 2011, according to The Davey Tree Expert Company's
August 2, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 2, 2011.
Davey Tree Surgery Company, a subsidiary of The Davey Tree Expert
Company, has been named in a purported class-action lawsuit in the
State of California filed on July 15, 2008 in the Superior Court
of the State of California in and for the County of Alameda. The
plaintiffs allege on behalf of themselves and a putative class
that Davey Tree Surgery Company has failed to comply with
California law concerning off-duty meal periods and the required
content of paycheck stubs.
The plaintiffs allege that they and the putative "meal periods"
class have not been provided with uninterrupted, duty-free 30-
minute meal periods. In addition, plaintiffs allege that because
they were supposedly made to work during their meal breaks, Davey
Tree Surgery Company violated California's minimum wage law
because they and the putative members were not paid minimum wage
for their alleged work during meal breaks. Plaintiffs also
contend Davey Tree Surgery Company violated California law by not
including the time they and the putative "wage statement" class
members worked during their meal periods, their hourly rates of
pay and number of hours worked at each hourly rate on their
paycheck stubs.
The Court granted plaintiffs' motion for class certification and
certified both the "meal periods" class and the "wage statements"
class; some individuals are members of both classes, while
others are members of only one class. A trial is scheduled for
January 30, 2012.
At this time, it is not reasonably possible to evaluate the
likelihood of a favorable or unfavorable outcome to this matter or
to estimate the amount or range of potential loss, if any.
However, any potential losses from claims of this nature would not
be insured, and therefore an adverse result could have a negative
effect on Davey's business, financial condition, results of
operations and cash flows which could be material. The Company
intends to vigorously defend itself against this lawsuit, and it
believes that its defenses against these claims are meritorious.
There have been no material changes in the quarterly period ended
July 2, 2011 to the legal proceedings.
DAVEY TREE: Continues to Defend Suits Over California Fire
----------------------------------------------------------
The Davey Tree Expert Company continues to defend itself in the
California Fire Litigation, according to the Company's August 2,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 2, 2011.
Davey Tree Surgery Company, a Davey subsidiary, and Davey Resource
Group, a Davey division, have previously been sued, together with
a utility services customer, San Diego Gas & Electric ("SDG&E"),
and its parent company, as defendants, and as cross-defendants in
cross-complaints filed by the utility service customer, in the
Superior Court of the State of California in and for the County of
San Diego, arising out of a wildfire in San Diego County that
started on October 22, 2007, referred to as the Rice Canyon fire.
The California Department of Forestry and Fire Protection issued a
report concluding that the Rice Canyon fire was caused by SDG&E
power lines and burned approximately 9,472 acres and damaged
approximately 206 homes, two commercial properties and 40
outbuildings. The Consumer Protection and Safety Division of the
California Public Utilities Commission issued a report concluding
that the Rice Canyon fire was caused when a specific sycamore tree
limb broke during Santa Ana wind conditions and fell on SDG&E's
energized overhead conductors, causing the conductor to break.
Numerous lawsuits related to the Rice Canyon fire were filed
against SDG&E, its parent company, Sempra Energy, and Davey. The
earliest of the lawsuits naming Davey was filed on April 18, 2008.
The court ordered that the lawsuits be organized into the four
groups based on the type of plaintiff, namely insurance
subrogation claimants, individual/business claimants, governmental
claimants, and plaintiffs seeking class certification.
Plaintiffs' motions seeking class certification have since been
denied. SDG&E has filed cross-complaints against Davey for
contractual indemnity, declaratory relief, and breach of contract.
SDG&E has reportedly settled many of the third-party claims and is
now actively asserting damage claims against Davey.
Davey has notified its insurers of the Rice Canyon fire claims, is
vigorously defending the third-party claims, and continues to work
with the insurers both to defend the claims and to ensure coverage
of any potential liabilities.
E.I. DUPONT: Grossman Roth Files Class Action Over Imprelis
-----------------------------------------------------------
A class action lawsuit has been filed against E.I. DuPont Nemours
and Company, seeking to recover hundreds of millions in damages
resulting from the devastating impact that DuPont's weed killer
Imprelis has caused to thousands of healthy trees in the Mid-West
and other parts of the United States.
"Beautiful Norway Spruce and White Pine trees are dying," said
Robert C. Gilbert of Grossman Roth, a nationally recognized trial
firm based in Miami, Florida. "And DuPont's herbicide Imprelis is
to blame."
Mr. Gilbert is uniquely positioned to represent Mid-West property
owners whose trees have been destroyed by Imprelis. For the past
decade, he has represented tens of thousands of Florida citizens
whose healthy citrus trees were destroyed by the State of Florida.
Mr. Gilbert and his colleagues in Indianapolis have been studying
this emerging disaster for weeks, and have been contacted by
scores of property owners whose trees have begun to curl and die
after Imprelis was applied as a weed killer.
The class-action lawsuit against DuPont was filed on August 4 in
federal court in Indianapolis on behalf of Prestwick County Club,
a longstanding private golf course located in Avon, Indiana. The
complaint alleges that DuPont failed to disclose that Imprelis
could harm trees, even when used as directed. The suit also
claims DuPont did not provide proper instructions for safe use of
the herbicide, which is designed to control weeds.
"The trees of unsuspecting property owners across this country are
being poisoned by a product DuPont marketed as a safe and
environmentally-friendly weed killer," Mr. Gilbert said. "These
property owners are suffering tremendous damages."
According to Mr. Gilbert, the damage is widespread, from the
Mid-West to the Atlantic Coast, and the cost of replacing the
thousands of trees alone will exceed hundreds of millions of
dollars. Several states and the EPA are now investigating a link
between Imprelis and the tree devastation.
"This is a widespread disaster caused by DuPont, and we intend to
hold it accountable," Mr. Gilbert said. "Many golf courses,
homeowners and other property owners are suffering substantial
losses caused by Imprelis. We expect to recover significant
damages for those who have suffered harm."
FIRST AMERICAN: Continues to Defend Suits Over Business Practices
-----------------------------------------------------------------
First American Financial Corporation continues to defend itself
against class action lawsuits mostly challenging practices in its
title insurance business, according to the Company's August 2,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
Most of the non-ordinary course lawsuits to which the Company and
its subsidiaries are parties challenge practices in the Company's
title insurance business, though a limited number of cases also
pertain to the Company's other businesses. These lawsuits include,
among others, cases alleging, among other assertions, that the
Company, one of its subsidiaries and/or one of its agents:
* charged an improper rate for title insurance in a refinance
transaction, including:
-- Boucher v. First American Title Insurance Company, filed
on May 16, 2007 and pending in the United States District
Court for the Western District of Washington,
-- Campbell v. First American Title Insurance Company, filed
on August 16, 2008 and pending in the United States
District Court for the District of Maine,
-- Hamilton v. First American Title Insurance Company, filed
on August 22, 2007 and pending in the United States
District Court for the Northern District of Texas,
-- Hamilton v. First American Title Insurance Company, et
al., filed on August 25, 2008 and pending in the Superior
Court of the State of North Carolina, Wake County,
-- Haskins v. First American Title Insurance Company, filed
on September 29, 2010 and pending in the United States
District Court for the District of New Jersey,
-- Johnson v. First American Title Insurance Company, filed
on May 27, 2008 and pending in the United States District
Court for the District of Arizona,
-- Lang v. First American Title Insurance Company of New
York, filed on January 11, 2008 and pending in the United
States District Court for the Western District of New
York,
-- Levine v. First American Title Insurance Company, filed on
February 26, 2009 and pending in the United States
District Court for the Eastern District of Pennsylvania,
-- Lewis v. First American Title Insurance Company, filed on
November 28, 2006 and pending in the United States
District Court for the District of Idaho,
-- Raffone v. First American Title Insurance Company, filed
on February 14, 2004 and pending in the Circuit Court,
Nassau County, Florida,
-- Scott v. First American Title Insurance Company, filed on
March 7, 2007 and pending in the United States District
Court for the Eastern District of Kentucky,
-- Slapikas v. First American Title Insurance Company, filed
on December 19, 2005 and pending in the United States
District Court for the Western District of Pennsylvania,
and
-- Tello v. First American Title Insurance Company, filed on
July 14, 2009 and pending in the United States District
Court for the District of New Hampshire.
All of these lawsuits are putative class actions. A court has
granted class certification only in Campbell, Hamilton (North
Carolina), Johnson, Lewis, Raffone and Slapikas. An appeal to
a higher court is pending with respect to the granting of
class certification in Hamilton (North Carolina). The Company
has been unable to assess the probability of loss or estimate
the possible loss or the range of loss or, where the Company
has been able to make an estimate, the Company believes the
amount is immaterial to the financial statements as a whole.
* purchased minority interests in title insurance agents as an
inducement to refer title insurance underwriting business to
the Company, gave items of value to title insurance agents
and others for referrals of business and paid marketing fees
to real estate brokers as an inducement to refer home
warranty business, in each case in violation of the Real
Estate Settlement Procedures Act, including:
-- Edwards v. First American Financial Corporation, filed on
June 12, 2007 and pending in the United States District
Court for the Central District of California,
-- Galiano v. First American Title Insurance Company, et al.,
filed on February 8, 2008 and pending in the United States
District Court for the Eastern District of New York, and
-- Zaldana v. First American Financial Corporation, et al.,
filed on July 15, 2008 and pending in the United States
District Court for the Northern District of California.
All of these lawsuits are putative class actions for which a
class has not been certified, except in Edwards in which a
narrow class has been certified. The United States Supreme
Court is reviewing whether the Edwards plaintiff has the
legal right to sue. The Company has been unable to assess the
probability of loss or estimate the possible loss or the
range of loss.
* conspired with its competitors to fix prices or otherwise
engaged in anticompetitive behavior, including:
-- Barton v. First American Title Insurance Company, et al,
filed March 10, 2008 and pending in the United States
District Court for the Northern District of California,
-- Holt v. First American Title Insurance Company, et al.,
filed March 11, 2008 and pending in the United States
District Court for the Eastern District of Pennsylvania,
-- Katz v. First American Title Insurance Company, et al.,
filed March 18, 2008 and pending in the United States
District Court for the Northern District of Ohio,
-- McCray v. First American Title Insurance Company, et al.,
filed October 15, 2008 and pending in the United States
District Court for the District of Delaware and
-- Swick v. First American Title Insurance Company, et al.,
filed March 19, 2008, and pending in the United States
District Court for the District of New Jersey.
All of these lawsuits are putative class actions for which a
class has not been certified. Consequently, the Company has
not yet been able to assess the probability of loss or
estimate the possible loss or the range of loss.
* engaged in the unauthorized practice of law, including:
-- Gale v. First American Title Insurance Company, et al.,
filed on October 16, 2006 and pending in the United States
District Court for the District of Connecticut and
-- Katin v. First American Signature Services, Inc., et al.,
filed on May 9, 2007 and pending in the United States
District Court for the District of Massachusetts.
Gale and Katin are putative class actions. A class has been
certified in Gale, however an appeal to a higher court is
pending. Consequently, the Company has not yet been able to
assess the probability of loss or estimate the possible loss
or the range of loss.
* overcharged or improperly charged fees for products and
services provided in connection with the closing of real
estate transactions, denied home warranty claims, recorded
telephone calls, acted as an unauthorized trustee and gave
items of value to developers, builders and others as
inducements to refer business in violation of certain other
laws, such as consumer protection laws and laws generally
prohibiting unfair business practices, and certain
obligations, including:
-- Carrera v. First American Home Buyers Protection
Corporation, filed on September 23, 2009 and pending in
the Superior Court of the State of California, County of
Los Angeles,
-- Chassen v. First American Financial Corporation, et al.,
filed on January 22, 2009 and pending in the United States
District Court for the District of New Jersey,
-- Coleman v. First American Home Buyers Protection
Corporation, et al., filed on August 24, 2009 and pending
in the Superior Court of the State of California, County
of Los Angeles,
-- Diaz v. First American Home Buyers Protection Corporation,
filed on March 10, 2009 and pending in the United States
District Court for the Southern District of California,
-- Eberhard v. First American Title Insurance Company, et
al., filed on April 4, 2011 and pending in the Court of
Common Pleas Cuyahoga County, Ohio,
-- Eide v. First American Title Company, filed on
February 26, 2010 and pending in the Superior Court of the
State of California, County of Kern,
-- Gunning v. First American Title Insurance Company, filed
on July 14, 2008 and pending in the United States District
Court for the Eastern District of Kentucky,
-- Kaufman v. First American Financial Corporation, et al.,
filed on December 21, 2007 and pending in the Superior
Court of the State of California, County of Los Angeles,
-- Kirk v. First American Financial Corporation, filed on
June 15, 2006 and pending in the Superior Court of the
State of California, County of Los Angeles,
-- Sjobring v. First American Financial Corporation, et al.,
filed on February 25, 2005 and pending in the Superior
Court of the State of California, County of Los Angeles,
-- Tavenner v. Talon Group, filed on August 18, 2009 and
pending in the United States District Court for the
Western District of Washington and
-- Wilmot v. First American Financial Corporation, et al.,
filed on April 20, 2007 and pending in the Superior Court
of the State of California, County of Los Angeles.
All of these lawsuits are putative class actions for which a
class has not been certified. Consequently, the Company has
not yet been able to assess the probability of loss or
estimate the possible loss or the range of loss.
While some of the lawsuits may be material to the Company's
operating results in any particular period if an unfavorable
outcome results, the Company does not believe that any of these
lawsuits will have a material adverse effect on the Company's
overall financial condition.
FIRSTENERGY CORP: Appeal in Ohio Class Suit Remains Pending
-----------------------------------------------------------
An appeal from an order dismissing a class action lawsuit filed
against FirstEnergy Corp. and two of its subsidiaries remains
pending in the Court of Appeals of Ohio, according to the
Company's August 2, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
In February 2010, a class action lawsuit was filed in Geauga
County Court of Common Pleas against FirstEnergy Corp., The
Cleveland Electric Illuminating Company and Ohio Edison Company
seeking declaratory judgment and injunctive relief, as well as
compensatory, incidental and consequential damages, on behalf of a
class of customers related to the reduction of a discount that had
previously been in place for residential customers with electric
heating, electric water heating, or load management systems. The
reduction in the discount was approved by the Public Utilities
Commission of Ohio. In March 2010, the named-defendant companies
filed a motion to dismiss the case due to the lack of jurisdiction
of the court of common pleas. The court granted the motion to
dismiss on September 7, 2010. The plaintiffs appealed the
decision to the Court of Appeals of Ohio, which has not yet
rendered an opinion.
FirstEnergy Corp. -- http://www.firstenergycorp.com/-- is a
diversified energy company headquartered in Akron, Ohio. Its
subsidiaries and affiliates are involved in the generation,
transmission and distribution of electricity, as well as energy
management and other energy-related services. Its seven electric
utility operating companies comprise the nation's fifth largest
investor-owned electric system, based on 4.5 million customers
served within a 36,100-square-mile area of Ohio, Pennsylvania and
New Jersey; and its generation subsidiaries control more than
14,000 megawatts of capacity.
FIRSTENERGY CORP: FGCO Continues to Defend Bruce Mansfield Suit
---------------------------------------------------------------
FirstEnergy Generation Corp. continues to defend itself from a
class action lawsuit seeking damages based on air emissions from
the Bruce Mansfield Plant, according to FirstEnergy Corp.'s
August 2, 2011 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In July 2008, three complaints were filed against FirstEnergy
Generation Corp. in the U.S. District Court for the Western
District of Pennsylvania seeking damages based on coal-fired Bruce
Mansfield Plant air emissions. Two of these complaints also seek
to enjoin the Bruce Mansfield Plant from operating except in a
"safe, responsible, prudent and proper manner," one being a
complaint filed on behalf of 21 individuals and the other being a
class action complaint seeking certification as a class action
with the eight named plaintiffs as the class representatives.
FGCO believes the claims are without merit and intends to defend
itself against the allegations made in these three complaints.
No further updates were provided in the Company's latest SEC
filing.
FirstEnergy Corp. -- http://www.firstenergycorp.com/-- is a
diversified energy company headquartered in Akron, Ohio. Its
subsidiaries and affiliates are involved in the generation,
transmission and distribution of electricity, as well as energy
management and other energy-related services. Its seven electric
utility operating companies comprise the nation's fifth largest
investor-owned electric system, based on 4.5 million customers
served within a 36,100-square-mile area of Ohio, Pennsylvania and
New Jersey; and its generation subsidiaries control more than
14,000 megawatts of capacity.
FIRSTENERGY CORP: Nine Claims in Power Outage Suit Remain Pending
-----------------------------------------------------------------
Nine claims in a consolidated class lawsuit filed against Jersey
Central Power & Light Company and other electric utilities as a
result of power outages in 1999 remains pending, according to the
Company's August 2, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
In July 1999, the Mid-Atlantic States experienced a severe heat
wave, which resulted in power outages throughout the service
territories of many electric utilities, including Jersey Central
Power & Light Company. Two class action lawsuits (subsequently
consolidated into a single proceeding) were filed in New Jersey
Superior Court in July 1999 against JCP&L, GPU, Inc., and other
GPU companies, seeking compensatory and punitive damages due to
the outages. After various motions, rulings and appeals, the
Plaintiffs' claims for consumer fraud, common law fraud, negligent
misrepresentation, strict product liability and punitive damages
were dismissed, leaving only the negligence and breach of contract
causes of actions. On July 29, 2010, the Appellate Division
upheld the trial court's decision decertifying the class.
Plaintiffs have filed, and JCP&L has opposed, a motion for leave
to appeal to the New Jersey Supreme Court. In November 2010, the
Supreme Court issued an order denying Plaintiffs' motion. The
Court's order effectively ends the class action attempt, and
leaves only nine plaintiffs to pursue their respective individual
claims. The remaining individual plaintiffs have yet to take any
affirmative steps to pursue their individual claims.
FirstEnergy Corp. -- http://www.firstenergycorp.com/-- is a
diversified energy company headquartered in Akron, Ohio. Its
subsidiaries and affiliates, including Jersey Central Power &
Light Company, are involved in the generation, transmission and
distribution of electricity, as well as energy management and
other energy-related services. Its seven electric utility
operating companies comprise the nation's fifth largest
investor-owned electric system, based on 4.5 million customers
served within a 36,100-square-mile area of Ohio, Pennsylvania and
New Jersey; and its generation subsidiaries control more than
14,000 megawatts of capacity.
FORD MOTOR: Sued Over Defective Explorer and Mercury Vehicles
-------------------------------------------------------------
Vincent Perrone, Charles Johnson, James Denning, Zane Dery,
Richard Douglas, Melia Douglas, Thomas Bell, and Michael
Antramgarza, on behalf of themselves and all others similarly
situated v. Ford Motor Company, a Delaware corporation, and Does 1
through 10, inclusive, Case No. 5:11-cv-03832 (N.D. Calif.,
August 3, 2011) alleges that the rear tailgate of the 2002 through
2005 models of the Ford Explorer and Mercury Mountaineer, and the
2003 through 2005 models of the Lincoln Aviator suffer from a
defect, which causes the rear tailgate to crack resulting in a
safety risk and diminution of value of the vehicles.
As a result of Ford's faulty manufacturing and design, the members
of the proposed class have suffered damages, the Plaintiffs argue.
Hence, the Plaintiffs seek relief for compensatory and
consequential damages, statutory, punitive or exemplary damages,
and injunctive relief arising from Ford's conduct.
The Plaintiffs are residents of the states of California, Florida,
Oklahoma, Pennsylvania or New York. At all times relevant to the
case, the Plaintiffs own one or more of the defective Ford
vehicles.
Ford is a corporation organized under the laws of the state of
Delaware with its principal place of business in Dearborn,
Michigan. The true names and capacities of the Doe Defendants are
unknown to the Plaintiffs at the moment.
The Plaintiffs are represented by:
Keith G. Bremer, Esq.
Alison K. Hurley, Esq.
BREMER WHYTE BROWN O'MEARA, LLP
20320 S.W. Birch Street, Second Floor
Newport Beach, CA 92660
Telephone: (949) 221-1000
Facsimile: (949) 221-1001
E-mail: kbremer@bremerandwhyte.com
ahurley@bremerandwhyte.com
- and -
Keith G. Bremer, Esq.
Alison K. Hurley, Esq.
BREMER WHYTE BROWN O'MEARA, LLP
2116 Allston Way, Suite One
Berkeley, CA 94704
Telephone: (510) 540-4881
Facsimile: (510) 540-4889
E-mail: kbremer@bremerandwhyte.com
ahurley@bremerandwhyte.com
- and -
Adam J. Levitt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
55 West Monroe Street, Suite 1111
Chicago, IL 60603
Telephone: (312) 984-0000
Facsimile: (312) 984-0001
E-mail: levitt@whafh.com
- and -
Adam J. Levitt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Symphony Towers
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: levitt@whafh.com
- and -
Thomas C. Jones, Esq.
Grant L. Davis, Esq.
Timothy C. Gaarder, Esq.
DAVIS BETHUNE & JONES, LLC
1100 Main Street, Suite 2930
Kansas City, MO 64105
Telephone: (816) 421-1600
Facsimile: (816) 472-5972
E-mail: tjones@dbjlaw.net
gdavis@dbjlaw.net
tgaarder@dbjlaw.net
FOREST LABORATORIES: D&O Accused of Wasting Corporate Assets
------------------------------------------------------------
John Hawley Trust, by John Hawley, Jr., Trustee, On Behalf of
Itself and All Others Similarly Situated and Derivatively on
Behalf of Nominal Defendant Forest Laboratories, Inc. v. Howard
Solomon, Nesli Basgoz, William J. Candee, III, George S. Cohan,
Dan L. Goldwasser, Kenneth E. Goodman, Lawrence S. Olanoff, Lester
B. Salans, Peter J. Zimetbaum and Forest Laboratories, Inc., Case
No. 652154/2011 (N.Y. Sup Ct., August 3, 2011) is a shareholder
action brought to seek remedy from the Individual Defendants'
breaches of fiduciary duties, waste of corporate assets, unjust
enrichment and other violations of law.
The lawsuit alleges that for reasons that defy all standards of
reasonable and prudent conduct by fiduciaries, the Individual
Defendants have taken actions to entrench the Company's current
chief executive officer, Howard Solomon, putting the Company's
future financial health at severe risk and depriving Company
shareholders of a properly informed choice when electing directors
at the Company's annual stockholders' meeting, which is scheduled
for August 18, 2011.
The John Hawley Trust is a shareholder of Forest Laboratories.
Forest Laboratories, a Delaware corporation headquartered in New
York, develops, manufactures and sells "branded forms of ethical
drug products most of which require a physician's prescription."
The Individual Defendants are directors and officers of Forest
Laboratories.
The Plaintiff is represented by:
Robert J. Shapiro, Esq.
THE SHAPIRO FIRM, LLP
500 Fifth Avenue, 14th Floor
Telephone: (212) 391-6464
Facsimile: (212) 719-1616
- and -
Eric L. Zagar, Esg.
Robin Winchester, Esq.
James H. Miller, Esq.
Justin O. Reliford, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (267) 948-2512
E-mail: ezagar@ktmc.com
rwinchester@ktmc.com
jmiller@ktmc.com
jreliford@ktmc.com
FRANKLIN RESOURCES: Final Settlement Hearing Set for October 25
---------------------------------------------------------------
The hearing to consider final approval of a settlement resolving a
consolidated class action against Franklin Resources, Inc., is set
for October 25, 2011, according to the Company's August 2, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
Between 2003 and 2006, following industry-wide market timing and
late trading investigations by regulators, Franklin and certain
related parties were named in civil lawsuits. Certain of those
lawsuits have been resolved, including those that were reported as
resolved in the Company's Form 10-K for fiscal year 2010 and Form
10-Q for the quarter ended December 31, 2010.
The lawsuits were filed against Franklin and certain of its
adviser and distributor affiliates, individual Franklin officers
and directors, a former Franklin employee, and trustees of certain
Franklin Templeton Investments mutual funds (the "Funds"). In
2004, the lawsuits were consolidated for coordinated proceedings
with similar lawsuits against numerous other mutual fund complexes
in a multi-district litigation titled "In re Mutual Funds
Investment Litigation," pending in the U.S. District Court for the
District of Maryland, Case No. 04-md-15862 (the "MDL"). Plaintiffs
filed consolidated amended complaints in the MDL on September 29,
2004. The three consolidated lawsuits involving the Company
include a class action (Sharkey IRO/IRA v. Franklin Resources,
Inc., et al., Case No. 04-cv-01310), a derivative action on behalf
of the Funds (McAlvey v. Franklin Resources, Inc., et al., Case
No. 04-cv-01274), and a derivative action on behalf of Franklin
(Hertz v. Burns, et al., Case No. 04-cv-01624) and seek, among
other forms of relief, one or more of the following: unspecified
monetary damages; punitive damages; removal of Fund trustees,
directors, advisers, administrators, and distributors; rescission
of management contracts and distribution plans under Rule 12b-1
promulgated under the Investment Company Act of 1940; and
attorneys' fees and costs. On February 25, 2005, the Company-
related defendants filed motions to dismiss the consolidated
amended class action and Fund derivative action complaints. On
June 26, 2008, the court issued its order granting in part and
denying in part the Company's motion to dismiss the consolidated
amended class action complaint. In its order, the court dismissed
certain claims, while allowing others under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and under Sections
36(b) and 48(a) of the Investment Company Act of 1940 to remain,
and dismissed all class action claims against the named Funds. In
addition, all named individual defendants have since been
dismissed without prejudice from the consolidated class action
pursuant to stipulation. The Company-related defendants filed a
motion for partial summary judgment in the consolidated class
action as to non-arranged market timing on March 24, 2010, and
lead plaintiff filed its opposition and cross-motion for partial
summary judgment on June 4, 2010. On December 9, 2010, the court
granted the Company-related defendants' motion for partial summary
judgment, finding that the record could not support a finding of
liability against the Company-related defendants and denied lead
plaintiff's cross-motion for partial summary judgment. The Company
and lead plaintiff in the consolidated class action reached
agreement-in-principle on December 21, 2010 to resolve that
action, pursuant to which the Company agreed to pay $2.75 million
towards distribution of settlement amounts reached in lead
plaintiff's settlements with other, non-Company defendants, and
towards class counsel's fees, and any unspent amounts will be
distributed to relevant Funds. The parties documented the terms of
the agreement in a stipulation (the "Stipulation and Releases"),
which is subject to certain conditions including court approval.
The court issued its preliminary approval of the Stipulation and
Releases on June 9, 2011 and set the final approval hearing for
October 25, 2011.
The Company-related defendants' motion to dismiss the consolidated
fund derivative action remains under submission with the court.
Pursuant to stipulation, the consolidated fund derivative action
has been stayed since December 2010. On June 9, 2011, consistent
with the terms of that stipulation, the Company-related defendants
gave notice of their withdrawal from the stipulation. On July 15,
2011, plaintiffs filed a motion to continue the stay pending a
decision of appeal in another case. The parties are in the process
of briefing that motion. In addition, pursuant to stipulation, the
derivative action brought on behalf of Franklin has been stayed
since 2004. Neither of those derivative actions has progressed to
expert discovery concerning alleged damages and the Company is
therefore unable to estimate an amount or range of any possible
additional losses relating to the market timing lawsuits.
GNC CORP: Sued for Selling Weight Loss Products with HCG
--------------------------------------------------------
Courthouse News Service reports that GNC Corp., iSatori
Technologies, and HCG Platinum sell stuff "purporting to contain
human chorionic gonadotropin" as a weight-loss drug, though the
U.S. Food and Drug Administration calls the claim "an economic
fraud," a class action claims in Federal Court.
A copy of the Complaint in Grube v. GNC Corporation, et al., Case
No. 05-mc-02025 (W.D. Pa.), is available at:
http://www.courthousenews.com/2011/08/04/Supp.pdf
The Plaintiff is represented by:
Kenneth J. Grunfeld, Esq.
GOLOMB & HONIK, P.C.
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Telephone: (215) 985-9177
E-mail: kgrunfeld@golombhonik.comc
- and -
Deborah Clark-Weintraub, Esq.
Patrick J. Sheehan, Esq.
WHATLEY, DRAKE & KALLAS, LLC
1540 Broadway, 37th Floor
New York, NY 10036
Telephone: (212) 447-7070
E-mail: dweintraub@wdklaw.com
psheehan@wdklaw.com
- and -
James H. McFerrin, Esq.
MCFERRIN LAW FIRM
265 Riverchase Parkway East, Suite 202
Birmingham, AL 35244
Telephone: (205) 870-5704
- and -
Robert S. Tellman, III, Esq.
LAW OFFICES OF ROBERT S. TELLMAN
265 Riverchase Parkway East, Suite 202
Birmingham, AL 35244
Telephone: (205) 370-1998
GOLD CLUB: Exotic Dancers Fight for Right to File Class Action
--------------------------------------------------------------
Win Vitkowsky, writing for Hartford Advocate, reports that during
a break between sets, Dina D'Antuano and Karen Vilnit were called
up to the main office of Groton's Gold Club. In the fall of 2008,
they were told their boss was updating paperwork and needed them
to sign some papers. But according to a lawsuit filed in New York
City's Second Circuit Court of Appeals in January 2011, what these
barely-dressed employees didn't realize is that they were signing
away their rights as workers.
Ms. D'Antuano and Ms. Vilnit, along with Ramona Cruz (who did not
sign any paperwork) are suing their former boss. If they win, it
could change the way strip clubs do business in Connecticut. If
they lose, it could be a major blow to the future of class-action
labor violation lawsuits.
An agreement between dancers and a club is not uncommon, according
to Gigi, a 20-year-old who works at a topless bar in Fairfield
County. Although her job pays a stipend to employees who work a
full shift, she says other places require dancers to pay a "shift
fee."
Most of the 35 strip clubs in Connecticut consider their dancers
independent contractors. That means owners can avoid paying an
hourly wage, benefits, unemployment or worker's compensation. But
the Gold Club, a small Connecticut chain with locations in
Hartford and Groton, took that concept a step further, according
to the lawsuit.
Shannon Liss-Riordan, the lawyer representing the dancers, says
what the Gold Club has done is illegal. The Gold Club makes
dancers sign "landlord-tenant" contracts, and charges "rent" to
perform. In Connecticut, it is illegal to make someone pay for a
job, Ms. Liss-Riordan says.
"They pay a shift fee, which the Gold Club calls 'rent,' they have
to tip out the DJ, they have to hand over a portion of what they
make from lap dances, too," Ms. Liss-Riordan says. "Connecticut
law explicitly prohibits that.
"You have to be paid [an hourly wage] and you have to be able to
keep your tips."
Ms. D'Antuano, Ms. Vilnit and Ms. Cruz are suing for back wages.
Their case was thrown out in May by Superior Court Judge Mark
Kravitz, not because their claims were invalid, but because the
contract they signed included a promise that they would not join a
class-action lawsuit. They are appealing that decision in federal
court. If they lose, it sets a legal precedent that favors
employers who stiff their workers. Any worker with a wage and
hour complaint would have to fight individually for damages from
an employer.
Attorney Sarah Smolik also represents the dancers. She says it's
unconscionable that the club would have the women sign a legal
document without telling them to have a lawyer look it over.
"The [Gold Club's] argument is that it's a legal document between
two businesses," Ms. Smolik says. "But they were being asked in
the middle of a set to supposedly update their paperwork. In the
case of Dina and Ramona, these are both single moms supporting
their kids. None of these women has anything beyond a high school
education, and it was clearly a document drafted by a lawyer.
Someone's asking you to sign a legal document when you're standing
there basically in your underwear. It's not exactly an ideal time
for you to consider what you're signing."
Gold Club manager Miranda Bergeron, also named in the suit, didn't
seem eager to defend herself or the company's practices.
"I don't know anything about it, I have no comment, I have nothing
to say to you," Ms. Bergeron said over the phone.
Ramona Cruz used to ride with a clique of dancers who regularly
worked the Massachusetts, Rhode Island and eastern Connecticut
circuit. She says the money you make on the stage amounts to just
a handful of dollars. The real money is made giving $25 lap
dances on the floor, from which the Gold Club took $5. For VIP
dances, which took place in a room behind a beaded curtain, the
dancers had to fork over $50 -- nearly a third of what they charge
for that -- to the house. If they showed up late, the club would
charge them a $20 fine.
"Some days I could go in and make a few hundred, some days I'd end
up paying them and just break even," Ms. Cruz says. "It was like
Russian roulette, hit or miss. Sometimes you couldn't even make
the fee but you had to pay it."
The industry wasn't always like that.
Suzie Anthony (whose name has been changed) used to strip in
Boston's red light district in the late 1970s and early '80s. She
began stripping when she was 16 years old. Although back then she
says there was an air of criminality permeating the entire
district, at the very least workers were given a daily wage.
Rather than giving lap dances, which did not exist at the places
she worked, women would solicit drinks after performing on stage.
Customers would pay $7 for a cocktail -- roughly $25 today,
adjusted for inflation -- and the women would drink it in their
company. The bar would then split the proceeds with the dancers.
Although it may have been exploitative, Ms. Anthony says she was
at least guaranteed income.
Some modern clubs do pay their workers. At the Hideaway in
Stamford, dancers get a $35 stipend for performing. That is equal
to about $4.35 an hour, which is actually more than the minimum
wage for tipped employees. Although she is classified as an
independent contractor, topless dancer Gigi, who works at the
Hideaway, says that classification allows her the freedom to
refuse certain patrons and come and go as she pleases.
As far as paperwork is concerned, she did have to get her mother
to sign a document allowing her to work in a place that serves
alcohol (she is still under 21), but she never had to enter an
agreement she didn't understand to keep working.
As part of their contract, the Gold Club dancers agreed not to
join a class-action lawsuit if the landlord-tenant agreement was
ever deemed illegal. A recent ruling in the Supreme Court upheld
AT&T's claim that a similar provision in their customers'
contracts was legal, and threw out a massive class-action suit
against it.
Applying that decision to the case of the exotic dancers in Groton
has consequences that could affect all workers, says Hartford
labor lawyer Richard Hayber.
"Someone like me is extremely concerned by this. If employers can
have you sign away your rights to collective actions and class
actions, that makes things very hard for me," Mr. Hayber says.
Class-action suits benefit labor lawyers and workers alike,
because if a judgment is made against an employer, the court will
notify all workers affected by the case and allow them to collect
damages.
That means people who don't understand wage and hour laws, or
realize there is a lawsuit going on, can still benefit.
In 2009, Lichten & Liss-Riordan P.C., the Boston-based law firm
representing the workers, won thousands in back pay for 70 former
strippers who were misclassified as indie contractors in Chelsea,
Mass.
GUARDSMARK: Blumenthal Files Wage & Hour Class Action
-----------------------------------------------------
Blumenthal, Nordrehaug & Bhowmik disclosed that a wage and hour
class action lawsuit was filed on May 16, 2011 in Northern
California against security guard company Guardsmark by the San
Jose employment attorneys at Blumenthal, Nordrehaug & Bhowmik.
The security guard wage and hour overtime lawsuit was filed in
Santa Clara Superior Court and is entitled Houle v. Guardsmark,
Case No. 111-CV-200976.
According to the class action complaint, "GUARDSMARK
systematically failed to record and pay [Security Guards] minimum
wages, wages for all hours worked and overtime wages" in violation
of the California Labor Code. The complaint further alleges that
the security guard company "intentionally and unlawfully failed to
pay the security guards for time spent conducting mandatory
security training." One of the main contentions in the class
action lawsuit is that "the mandatory training was not independent
of employment with GUARDSMARK and was performed all to the
detriment of the Security Employees and to the benefit of
GUARDSMARK." As a result, the security guards claim they were
"not compensated at the applicable minimum and overtime wages for
this unpaid training time."
The complaint against Guardsmark filed by the San Jose employment
attorneys at Blumenthal, Nordrehaug & Bhowmik also alleges that
Guardsmark "unlawfully deducted earned wages from the Security
Employees' hourly compensation for uniform maintenance pay in
violation of California Labor Code Section 221." According to the
complaint, after "deducting earned wages from the payments made by
GUARDSMARK to the Security Employees and failing to pay them
compensation for all earned wages, GUARDSMARK systematically
miscalculated the overtime wages due" to the security guards.
Moreover, the complaint filed by the employment attorneys alleges
that "GUARDSMARK also failed to indemnify and reimburse the
Security Employees for required expenses incurred in the discharge
of their job duties" such as uniform maintenance pay.
For more information on the lawsuit, visit the Guardsmark Security
Employee class action Web site or call (866) 771-7099.
The San Jose 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, wrongful termination and
other types of illegal workplace conduct.
JIANGBO PHARMA: Harwood Feffer Files Securities Class Action
------------------------------------------------------------
Harwood Feffer LLP on August 4 disclosed that a class action
complaint has been filed against Jiangbo Pharmaceuticals, Inc. and
certain of the Company's officers for violations of the Securities
Exchange Act of 1934. The action, brought on behalf of those
purchasing the common stock of Jiangbo between June 8, 2010
through May 31, 2011, inclusive, is pending in the United States
District Court for the Southern District of Florida.
No class has yet been certified in the above action. Class
members will be represented by the lead plaintiff and counsel
chosen by the lead plaintiff. If you wish to choose counsel to
represent you and the Class, you must apply to be appointed lead
plaintiff no later than September 14, 2011 and be selected by the
court. The lead plaintiff will direct the litigation and
participate in important decisions including whether to accept a
settlement and how much of a settlement to accept for the Class in
the action. The lead plaintiff will be selected from among
applicants claiming the largest loss from investment in the
Company during the Class Period. You are not required to have
sold your shares to seek damages to serve as a lead plaintiff.
You may contact Harwood Feffer LLP at its Web site --
http://www.hfesq.com-- or by e-mail to clowther@hfesq.com to ask
any questions you may have in that regard.
Jiangbo researches and develops pharmaceutical products in China.
Jiangbo produces both western and Chinese herbal-based medical
drugs in tablet, capsule, granule, syrup, and electuary form.
Accordingly to the Complaint, throughout the Class Period,
Defendants made materially false and misleading statements to
investors by materially overstating the Company's cash balances
and failing to disclose that Jiangbo's internal controls over
financial reporting were inadequate.
In March 2011, the Company's Chief Financial Officer resigned. On
April 4, 2011, the Company reported that it had replaced its
auditor. On May 27, 2011, the Company disclosed that the
Securities and Exchange Commission had, in December 2010,
commenced an informal investigation. On May 31, 2011, NASDAQ
halted trading of Jiangbo stock. The Company received a delisting
letter from NASDAQ on July 26, 2011.
Harwood Feffer -- http://www.hfesq.com-- specializes in complex,
multi-party litigation with an emphasis on securities, ERISA,
consumer fraud, products liability and civil rights litigation.
Harwood Feffer serves as lead counsel in numerous class actions on
behalf of investors, employees, and consumers and has recovered
hundreds of millions of dollars in recoveries for its clients.
If you purchased Jiangbo shares and suffered a loss in excess of
$100,000 during the Class Period and you wish to discuss this
matter with us, or have any questions concerning your rights and
interests with regard to this matter, please contact:
Robert I. Harwood, Esq.
Harwood Feffer LLP
488 Madison Ave., 8th Floor
New York, NY 10022
Telephone: 877-935-7400
E-mail: rharwood@hfesq.com
Web site: http://www.hfesq.com
JIANGBO PHARMA: September 14 Lead Plaintiff Deadline Set
--------------------------------------------------------
The Rosen Law Firm, P.A. reminds investors of the important
September 14, 2011 lead plaintiff deadline in the securities
action filed by the firm. If you purchased securities of Jiangbo
Pharmaceuticals, Inc. the period from May 17, 2010 through May 31,
2011, inclusive, you should contact the Rosen Law Firm for more
information about the importance of serving as lead plaintiff.
To join the Jiangbo class action, visit the Rosen Law Firm's
Web site at http://www.rosenlegal.comor call Phillip Kim, Esq.
toll-free, at 866-767-3653; you may also e-mail
pkim@rosenlegal.com for information on the class action.
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 class
action, 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.
MOTOROLA INC: Loses Bid to Dismiss Shareholder Class Action
-----------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that a federal
judge refused to allow Motorola to duck a class action brought by
shareholders who claimed executives artificially inflated share
prices by concealing serious delays on the rollout date of new 3G
phones, thanks to e-mails in which Motorola higher-ups referred to
"losing our ass" to the tune of hundreds of millions of dollars.
Lead plaintiff Eric Silverman, suing on behalf of himself and
anyone who bought Motorola securities between July 2006 and
January 2007, claimed the telecommunications giant violated the
Securities and Exchange Act when it repeatedly assured
shareholders it would roll out new 3G phones before Thanksgiving
in 2006.
But Freescale Semiconductor, the vendor Motorola relied on to
produce integrated circuits for the new gadgets, repeatedly failed
to deliver, delaying the release of the handsets until January
2007, missing the entire Christmas shopping season and causing an
"earnings gap" of $1.1 billion, the class claimed.
Motorola allegedly knew there was little chance that its 3G
products line would contribute to fourth quarter earnings, but
still assured investors that the line would deliver record
earnings.
Motorola moved for summary judgment, claiming it honestly expected
3G phones to be released in the fourth quarter of 2006, that it
never intentionally mislead investors and that investors can't
show that they lost money as a direct consequence of Motorola's
communications.
But the class claimed a flurry of the company's internal e-mails
in August and September 2006 reveal a different story.
About the delays to one planned product launch, an executive in
August 2006 sent an e-mail bearing the title, "this is worse than
I thought possible," according to the ruling, even as the company
was releasing public statements like "product launches are on
track" and "we're bringing five new products into the Christmas
selling season," and similar claims indicating high expectations
of success.
In another e-mail, an electrical engineer allegedly called the
delays "a serious show stopper."
The company's lead platform engineer noted that "the considerable
consequences will be our stock price sinking because we are losing
our ass on 3G products."
And the president of Motorola's Mobile Device Division sent out an
e-mail saying "3G has lost 365 M dollars since beginning of the
year! We must stop the bleeding!" the class claims.
Statements like these indicate that Motorola may well have
intended to defraud or mislead its investors, wrote U.S. District
Judge Amy St. Eve, who refused to dismiss the case.
"A reasonable jury could construe them as misleading investors
into believing that Motorola would be ready to introduce its 3G
phones en masse," the judge wrote about the company's public
statements.
Motorola "vigorously dispute(s) the import of this evidence,"
arguing that the e-mails are "more limited in relevance than
plaintiffs maintain," according to the ruling.
"Although the evidence introduced at trial may vindicate them in
this respect . . . it will be for the jury to resolve the
dispute," Judge St. Eve wrote.
A copy of the Memorandum Opinion and Order in Silverman v.
Motorola, Inc., et al., Case No. 07-cv-04507 (N.D. Ill.), is
available at:
http://www.courthousenews.com/2011/08/04/motorola.pdf
OLD REPUBLIC: ORNTIC Continues to Defend Pa. & Texas Class Suits
----------------------------------------------------------------
A subsidiary of Old Republic International Corp. continues to
defend itself from class action lawsuits pending in a Pennsylvania
and Texas courts, according to the Company's August 2, 2011 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Purported class action lawsuits are pending against the Company's
principal title insurance subsidiary, Old Republic National Title
Insurance Company, in federal courts in two states -- Pennsylvania
(Markocki et al. v. ORNTIC, U.S. District Court, Eastern District,
Pennsylvania, filed June 8, 2006), and Texas (Ahmad et al. v.
ORNTIC, U.S. District Court, Northern District, Texas, Dallas
Division, filed February 8, 2008). The plaintiffs allege that
ORNTIC failed to give consumers reissue and refinance credits on
the premiums charged for title insurance covering mortgage
refinancing transactions, as required by rate schedules filed by
ORNTIC or by state rating bureaus with the state insurance
regulatory authorities. The Pennsylvania suit also alleges
violations of the federal Real Estate Settlement Procedures Act.
The Court in the Texas suit dismissed similar RESPA allegations.
Classes have been certified in both actions.
Old Republic International Corporation (Old Republic) is among
U.S.'s 50 largest publicly held insurance organizations, with a
substantial interest in major segments of the industry. The
Company is primarily a commercial lines underwriter, serving many
of America's leading industrial and financial services companies
as valued customers.
OLD REPUBLIC: ORNTIC Continues to Defend Calif. Class Suit
----------------------------------------------------------
Old Republic National Title Insurance Company, a subsidiary of Old
Republic International Corp., continues to defend a class action
lawsuit pending in a California court, according to the Company's
August 2, 2011 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
Beginning in early February 2008, some 80 purported consumer class
action lawsuits were filed against the title industry's principal
title insurance companies, their subsidiaries and affiliates, and
title insurance rating bureaus or associations in at least 10
states. Old Republic National Title Insurance Company was a named
defendant in actions filed in 5 of the states. The suits were
substantially identical in alleging that the defendant title
insurers engaged in illegal price-fixing agreements to set
artificially high premium rates and conspired to create premium
rates which the state insurance regulatory authorities could not
evaluate and therefore, could not adequately regulate. Most of
the suits have since been dismissed. Of those remaining, ORNTIC
is currently among the named defendants in only one of these
actions, in California. The anti-trust allegations in the
California action have been dismissed and only the allegations of
improper business practices under state law remain. On June 28,
2011, the Federal District Court for the Northern District of
California granted a motion to stay the litigation and compel
arbitration of individual claims, thus precluding the
certification of a class action. The other suits in which ORNTIC
was a named defendant have all been dismissed at the trial court
level.
Old Republic International Corporation (Old Republic) is among
U.S.'s 50 largest publicly held insurance organizations, with a
substantial interest in major segments of the industry. The
Company is primarily a commercial lines underwriter, serving many
of America's leading industrial and financial services companies
as valued customers.
OLD REPUBLIC: Ala. & Calif. Class Suits Vs. ORHP Remain Pending
---------------------------------------------------------------
Class action suits filed against a unit of Old Republic
International Corporation are pending in California and Alabama,
according to the Company's August 2, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
National class action suits have been filed against the Company's
subsidiary, Old Republic Home Protection Company in the California
Superior Court, San Diego, and the U.S. District Court in
Birmingham, Alabama. The California suit has been filed on behalf
of all persons who made a claim under an ORHP home warranty
contract from March 6, 2003 to the present. The suit alleges
breach of contract, breach of the implicit covenant of good faith
and fair dealing, violations of certain California consumer
protection laws and misrepresentation arising out of ORHP's
alleged failure to adopt and implement reasonable standards for
the prompt investigation and processing of claims under its home
warranty contracts. The suit seeks unspecified damages consisting
of the rescission of the class members' contracts, restitution of
all sums paid by the class members, punitive damages, and
declaratory and injunctive relief. ORHP removed the action to the
U.S. District Court for the Southern District of California, and
on January 6, 2011 the Court denied plaintiff's motion for class
certification. The Alabama suit alleges that ORHP pays fees to
the real estate brokers who market its home warranty contracts and
that the payment of such fees is in violation of Section 8(a) of
Real Estate Settlement Procedures Act. The suit seeks unspecified
damages, including treble damages under RESPA. No class has been
certified in the Alabama action.
Old Republic International Corporation (Old Republic) is among
U.S.'s 50 largest publicly held insurance organizations, with a
substantial interest in major segments of the industry. The
Company is primarily a commercial lines underwriter, serving many
of America's leading industrial and financial services companies
as valued customers.
PENNSYLVANIA ELECTRIC: Seeks Claims Dismissal in Emissions Suits
----------------------------------------------------------------
Pennsylvania Electric Company has asked the court to dismiss
claims asserted lawsuits over air emissions in Homer City Power
Station, according to the Company's August 2, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
In June 2008, the EPA issued a Notice and Finding of Violation to
Mission Energy Westside, Inc. (Mission) alleging that
"modifications" at the coal-fired Homer City Plant occurred from
1988 to the present without preconstruction NSR permitting in
violation of the CAA's PSD program. In May 2010, the EPA issued a
second NOV to Mission, Penelec, New York State Electric & Gas
Corporation and others that have had an ownership interest in
Homer City containing in all material respects allegations
identical to those included in the June 2008 NOV. In January 2011,
the DOJ filed a complaint against Penelec in the U.S. District
Court for the Western District of Pennsylvania seeking injunctive
relief against Penelec based on alleged "modifications" at Homer
City between 1991 to 1994 without preconstruction NSR permitting
in violation of the CAA's PSD and Title V permitting programs. The
complaint was also filed against the former co-owner, New York
State Electric and Gas Corporation, and various current owners of
Homer City, including EME Homer City Generation L.P. and
affiliated companies, including Edison International. In January
2011, another complaint was filed against Penelec and the other
entities in the U.S. District Court for the Western District of
Pennsylvania seeking damages based on Homer City's air emissions
as well as certification as a class action and to enjoin Homer
City from operating except in a "safe, responsible, prudent and
proper manner."
Penelec believes the claims are without merit and intends to
defend itself against the allegations made in the complaint, but,
at this time, is unable to predict the outcome of this matter. In
addition, the Commonwealth of Pennsylvania and the States of New
Jersey and New York intervened and have filed separate complaints
regarding Homer City seeking injunctive relief and civil
penalties. Mission is seeking indemnification from Penelec, the
co-owner and operator of Homer City prior to its sale in 1999. On
April 21, 2011, Penelec and all other defendants filed Motions to
Dismiss all of the federal claims and the various state claims.
Responsive and Reply briefs were filed on May 26, 2011 and
June 17, 2011, respectively. The scope of Penelec's indemnity
obligation to and from Mission is under dispute and Penelec
is unable to predict the outcome of this matter.
TARGET CORP: Recalls 206,000 Step Stools Due to Fall Hazard
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Target Corporation, of Minneapolis, Minnesota, announced a
voluntary recall of about 206,000 step stools with storage.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The wooden step stools can break apart or collapse under the
weight of the user, posing a fall hazard.
Target has received 26 reports of the stools breaking or
collapsing. Fourteen incidents involved children, seven involved
adults, and five incidents where the user's age was unknown. Two
adults fractured their wrists, and of those victims, one also
fractured her hip and pelvis. Additionally, six children and one
adult suffered scrapes and bruising.
The wooden step stool has two steps and comes in various colors,
including natural, natural and red, white and honey. The Circo
step stool has a lid on the bottom step that lifts to provide
storage. The Do Your Room (DYR) step stool has a lid on the top
step that lifts to provide storage. The step stools measure
approximately 13" H x 13 5/8" W x 14 1/8" D. The Circo brand name
or DYR brand name and UPC numbers are printed on a label found
underneath the step stool. The following step stools are included
in this recall:
Step Stools With Storage
---------------------------------------------------------------
Brand Name Style Description UPC Number Selling Period
---------- ----------------- ---------- --------------
Circo White step stool 490970403046 or Jun '09-Feb '10
w/ storage 180970208597 Feb '10-Oct '10
Circo Natural step 490970403053 or Jun '09-Feb '10
stool w/ storage 180970208610 Feb '10-Oct '10
Circo Natural & red step 490970403060 or Jun '09-Feb '10
stool w/ storage 180970208665 Feb '10-Oct '10
Do Your Natural step stool 097168014338 Jan '07-Aug '09
Room (DYR) w/ storage
Do Your Honey step stool 390970402622 Jan '07-Aug '09
Room (DYR) w/ storage
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11299.html
The recalled products were manufactured in China, Vietnam, Taiwan
and Thailand, and sold exclusively at Target stores nationwide and
online at Target.com from January 2007 through October 2010 for
between $25 and $30.
Consumers should immediately stop using the step stools and return
them to any Target store to receive a full refund. For additional
information, contact Target at (800) 440-0680 between 7:00 a.m.
and 6:00 p.m. Central Time Monday through Friday, or visit the
firm's Web site at http://www.target.com/
UNITED STATES: Dec. 27 Keepseagle Claims Filing Deadline Set
------------------------------------------------------------
Jerry Hagstrom, writing for Agweek, reports that Native American
farmers and ranchers have until Dec. 27 to file claims in the
Keepseagle class action settlement, the Agriculture Department
said July 26.
Keepseagle v. Vilsack was a lawsuit alleging that the U.S.
Department of Agriculture discriminated against Native American
farmers and ranchers in the way it operated its farm loan program.
The plaintiffs included Claryca Mandan, a North Dakota farmer, and
the legal team included former North Dakota Agriculture
Commissioner Sarah Vogel.
The Obama administration settled the suit with the plaintiffs last
year and the court recently approved the settlement. The 180-day
claims period began June 29.
Up to $760 million will be made available in monetary relief, debt
relief and tax relief to successful claimants, USDA noted in a
news release.
There are two tracks for claims: Successful Track A claimants may
receive up to $50,000; successful Track B claimants may receive up
to $250,000. The standard of proof for Track B claims is a higher
standard than what will be applied to Track A claim.
"Now that the claims process is open, Native American farmers and
ranchers who believe they are entitled to funds under the
Keepseagle settlement must file a claim within 180 days in order
to have a chance to receive a cash payment or loan forgiveness,"
Janie Hipp, senior adviser to Agriculture Secretary Tom Vilsack
said in the news release.
"Tribal leaders may want to consider advising tribal members of
the requirement to obtain and submit a completed claims package if
they wish to participate in the Keepseagle claims process,"
Ms. Hipp said. The Keepseagle class counsel will hold meetings in
the coming months throughout Indian Country, she said.
Information on the claims process and the dates of those meetings
may be found on the Keepseagle v. Vilsack claims Web site.
Claimants also can seek more information and register for a claims
package at 888-233-5506.
VERISK ANALYTICS: Continues to Defend Hanover Suit Over Indemnity
-----------------------------------------------------------------
Verisk Analytics, Inc., continues to defend itself against a
complaint filed by Hanover Insurance Group seeking reimbursement
of its settlement and defense costs related to a nationwide class
action lawsuit, according to the Company's August 2, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Hensley, et al. v. Computer Sciences Corporation et al. was a
putative nationwide class action complaint, filed in February
2005, in Miller County, Arkansas state court. Defendants included
numerous insurance companies and providers of software products
used by insurers in paying claims. The Company was among the named
defendants. Plaintiffs alleged that certain software products,
including the Company's Claims Outcome Advisor product and a
competing software product sold by Computer Sciences Corporation,
improperly estimated the amount to be paid by insurers to their
policyholders in connection with claims for bodily injuries.
The Company entered into settlement agreements with plaintiffs
asserting claims relating to the use of Claims Outcome Advisor by
defendants Hanover Insurance Group, Progressive Car Insurance and
Liberty Mutual Insurance Group. Each of these settlements was
granted final approval by the court and together the settlements
resolve the claims asserted in this case against the Company with
respect to the above insurance companies, who settled the claims
against them as well. A provision was made in 2006 for this
proceeding and the total amount the Company paid in 2008 with
respect to these settlements was less than $2,000,000. A fourth
defendant, The Automobile Club of California, which is alleged to
have used Claims Outcome Advisor, was dismissed from the action.
On August 18, 2008, pursuant to the agreement of the parties the
Court ordered that the claims against the Company be dismissed
with prejudice.
Subsequently, Hanover Insurance Group made a demand for
reimbursement, pursuant to an indemnification provision contained
in a December 30, 2004 License Agreement between Hanover and the
Company, of its settlement and defense costs in the Hensley class
action. Specifically, Hanover demanded $2,536,000 including
$600,000 in attorneys' fees and expenses. The Company disputes
that Hanover is entitled to any reimbursement pursuant to the
License Agreement. In July 2010, after the Company and Hanover
were unable to resolve the dispute in mediation, Hanover served a
summons and complaint seeking indemnity and contribution from the
Company. At this time, it is not possible to determine the
ultimate resolution of or estimate the liability related to this
matter.
VERISK ANALYTICS: Appeal From Dismissal of iiX Suit Still Pending
-----------------------------------------------------------------
An appeal from the dismissal of a class action lawsuit against
Verisk Analytics, Inc.'s subsidiary remains pending in Missouri,
according to the Company's August 2, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In April 2010, the Company's subsidiary, Insurance Information
Exchange or iiX, as well as other information providers in the
State of Missouri were served with a summons and class action
complaint filed in the United States District Court for the
Western District of Missouri alleging violations of the Driver
Privacy Protection Act, or the DPPA, entitled Janice Cook, et al.
v. ACS State & Local Solutions, et al. Plaintiffs brought the
action on their own behalf and on behalf of all similarly situated
individuals whose personal information is contained in any motor
vehicle record maintained by the State of Missouri and who have
not provided express consent to the State of Missouri for the
distribution of their personal information for purposes not
enumerated by the DPPA and whose personal information has been
knowingly obtained and used by the defendants. The class complaint
alleges that the defendants knowingly obtained personal
information for a purpose not authorized by the DPPA and seeks
liquidated damages in the amount of two thousand five hundred
dollars for each instance of a violation of the DPPA, punitive
damages and the destruction of any illegally obtained personal
information. The court granted iiX's motion to dismiss the
complaint based on a failure to state a claim on November 19,
2010. Plaintiffs filed a notice of appeal on December 17, 2010. At
this time, it is not possible to determine the ultimate resolution
of or estimate the liability related to this matter.
WELLS FARGO: Breaks HECM Program's 95% Rule, Suit Alleges
---------------------------------------------------------
Robert Chandler, as Representative of the Estate of Rosemary S.
Chandler, individually and on behalf of all others similarly
situated v. Wells Fargo Bank, N.A., a California corporation, and
Federal National Mortgage Association a/k/a Fannie Mae, Case No.
3:11-cv-03831 (N.D. Calif., August 3, 2011) alleges that Wells
Fargo and Fannie Mae fail to abide by a key term of the federally
insured reverse mortgages, known as the home equity conversion
mortgages ("HECM"), that Wells Fargo has sold and serviced, and
Fannie Mae has owned, for many years.
Under the HECM program, when a loan becomes due and payable, the
borrower or its estate has the right to receive a 30-day notice
that it may sell the HECM-mortgaged property for 95% of its
current appraised value, which amount may be less than the
mortgage balance.
The Defendants have failed and continue to fail to observe the 95%
Rule -- when a HECM is due and payable, they demand repayment of
the full mortgage balance from borrowers and their survivors, and
if that is not paid, the Defendants initiate foreclosure and
eviction proceedings, Mr. Chandler alleges. He contends that the
Defendants' blatant disregard of the 95% Rule is having widespread
and dire consequences for him and the proposed Class.
Mr. Chandler resides at 10095 Sheldon Road, in Elk Grove,
California, the residence that is subject to the HECM at issue in
this case. He is the son and heir of Rosemary Chandler, and the
representative of her estate. Ms. Chandler was the sole borrower
on the HECM loan on the property.
Wells Fargo is a publicly owned national banking association,
which originated the Chandler reverse mortgage. Wells Fargo
thereafter sold the mortgage to Fannie Mae but continued to
service it. Fannie Mae is a government-sponsored enterprise and
is in the business of purchasing mortgages from commercial
lenders, with the goal of increasing the availability of private
capital to finance home loans. At least until 2006, Fannie Mae
was the purchaser of most HECMs, including Ms. Chandler's.
The Plaintiff is represented by:
Michael Ng, Esq.
Kelly A. Corcoran, Esq.
KERR & WAGSTAFFE LLP
100 Spear Street, Suite 1800
San Francisco, CA 94105-1528
Telephone: (415) 371-8500
Facsimile: (415) 371-0500
E-mail: mng@kerrwagstaffe.com
corcoran@kerrwagstaffe.com
- and -
Steven A. Skalet, Esq.
Craig L. Briskjn, Esq.
MEHRI & SKALET, PLLC
1250 Connecticut Avenue NW, Suite 300
Washington, D.C. 20036
Telephone: (202) 822-5100
Facsimile: (202) 822-4997
E-mail: sskalet@findjustice.com
cbriskin@findjustice.com
- and -
Jean Constantine-Davis, Esq.
AARP FOUNDATION LITIGATION
601 E Street NW
Washington, D.C. 20049
Telephone: (202) 434-2060
Facsimile: (202) 434-6424
WELLS FARGO: Judge Okays Loan Processor Class Action Settlement
---------------------------------------------------------------
Nick McCann at Courthouse News Service reports that a federal
judge approved a settlement that will have Wells Fargo pay $7.2
million to a class of loan processors who say they were not paid
overtime wages.
The settlement is the product of two class actions consolidated in
November 2007 at the Northern District of California.
Loan processors claimed the bank had a "standard hours" pay policy
by which it paid employees for 86.67 hours every pay period,
regardless of how many hours they had actually worked.
After extensive negotiations, the court approved a settlement for
3,544 class members. The average settlement award for each member
is $1,218, after the claims process.
U.S. District Judge Edward Chen approved the settlement agreement
on August 2 as "fair, reasonable, and adequate."
A copy of the Order Granting Plaintiffs' Motion for Final Class
Settlement Approval in In Re Wells Fargo Loan Processor Overtime
Pay Litigation, Case No. 07-cv-00461 (N.D. Calif.), is available
at http://is.gd/2VWvxG
WELLS FARGO: AARP Files Reverse Mortgage Class Action
-----------------------------------------------------
Elizabeth Ecker, writing for Reverse Mortgage Daily, reports that
AARP filed a class action lawsuit on August 3 in the U.S. District
Court for the Northern District of California in San Francisco,
against Wells Fargo Bank and Fannie Mae on behalf of reverse
mortgage borrowers and their survivors who have faced foreclosure
and eviction.
The lawsuit is the second suit filed by AARP this year concerning
reverse mortgage borrowers and their heirs. The original suit was
dismissed by the court in July.
The new suit alleges that Wells Fargo has illegally foreclosed
upon reverse mortgage borrowers who were not notified and were not
given the opportunity to purchase the property for 95% of its
appraised value after the loan becomes due and payable.
The plaintiff in the case, Robert Chandler of Elk Grove, Calif.,
inherited the home of his mother, who had a reverse mortgage and
passed away in 2010. The suit alleges that Mr. Chandler was never
given notice of his right to purchase the property for its current
value.
According to the allegations and AARP, Wells Fargo told him that
he would have to pay off the full mortgage balance, then acting on
Fannie Mae, the owner of the mortgage, proceeded to foreclose on
the home. Finding no one willing to buy it for the same market
price that Mr. Chandler was given, Fannie Mae began efforts to
evict him from the property.
The Department of Housing and Urban Development rescinded its non-
recourse guidance on April 6, during the initial lawsuit, which
was filed in March.
HUD then issued new servicer FAQs on July 21 to clarify its
guidance. "When a HECM loan becomes due and payable as a result
of the mortgagor's death and the property is conveyed by will or
operation of law to the mortgagor's estate or heirs, that party
may satisfy the HECM debt by paying the lesser of the mortgage
balance or 95% of the current appraised value of the property," as
stated in the FAQ.
"The new suit alleges that, despite HUD's correction of its rules,
the defendants are still failing to give notice to surviving
spouses and heirs of their rights to purchase the property for the
lower value, and are foreclosing and seeking to evict an heir who
is attempting to pay off the current fair market price on an
underwater home," AARP said in a statement.
The AARP complaint claims there are thousands of potential
defendants in a similar situation.
"In the wake of HUD's reversal of its rule on the rights of
surviving spouses and heirs earlier this year, we have been
contacted by many, many others facing the same problem. It is
difficult to understand why reverse mortgage lenders continue to
deny them their contractual and legal rights," said Jean
Constantine-Davis, a senior attorney with AARP Foundation
Litigation.
* Small U.S. Banks Want Customers to Opt for Arbitration
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Robin Sidel, writing for The Wall Street Journal, reports that
some small and regional U.S. banks are prohibiting unhappy
customers from taking their complaints to court or joining class-
action lawsuits, instead requiring them to resolve disputes
through arbitration.
The banks are emboldened by a U.S. Supreme Court ruling in April
that said state laws can't supersede private contracts that
require customers to present their complaints individually to an
arbitrator.
The decision attracted attention from financial firms and other
companies like cellphone providers that embrace mandatory third-
party arbitration for customer gripes, saying it helps them
resolve disputes fairly for customers and more cleanly than
getting tied up in lengthy and costly court cases.
Consumer advocates say they don't like arbitration because it
restricts the ways in which a customer can resolve a dispute, and
that consumers are less likely to go through the arbitration
process than to sue.
Dispute Resolution
Many of the nation's banks require customers to pursue arbitration
to resolve disagreements on basic checking and savings accounts.
Other banks permit customers to file lawsuits.
"I get all these 'we've changed the terms of your agreement'
letters, but they make it very difficult to understand what was
changed," said Vic Bullara, who runs an executive-coaching company
in Lake Forest, Calif.
Regions Financial Corp., a regional bank based in Birmingham,
Ala., last month strengthened the existing mandatory-arbitration
provision contained in its deposit accounts.
Regions also simplified the language in the provision and moved it
to the beginning of the 43-page agreement.
The July 21 agreement includes a boldface box that tells customers
they "will not have the right to pursue [a] claim in court or have
a jury decide the claim and you will not have the right to bring
or participate in any class action or similar proceeding in court
or in arbitration."
At the same time, Regions eliminated a provision that permitted
some court actions even while a case was going through
arbitration. The bank also extended the mandatory arbitration
provision to heirs of a deceased customer.
A spokeswoman for Regions declined to comment.
First Tennessee Bank, which has nearly 200 branches, is "looking
at the mandatory-arbitration-clause issue and will probably adopt
whatever becomes the industry standard practice," said a spokesman
for the bank, a unit of First Horizon National Corp., of Memphis,
Tenn.
Alan Kaplinsky, a partner at law firm Ballard Spahr LLP in
Philadelphia, said he has received "a ton of requests" from banks
and other companies to help them put together mandatory
arbitration provisions for consumer contracts. He declined to
identify those banks, citing client confidentiality.
"The Supreme Court opinion has been a wake-up call for a lot of
these companies to at least consider" mandatory-arbitration
clauses, he said.
The nation's largest banks have long included such provisions in
credit-card agreements and consumer-deposit products like checking
and savings accounts.
According to a recent survey by Pew Charitable Trusts, nearly
three-quarters of 265 accounts offered by the 10 largest U.S.
banks included mandatory arbitration provisions.
Still, the practice is scattered. Wells Fargo & Co. and J.P.
Morgan Chase & Co. both include mandatory-arbitration clauses in
their deposit accounts, according to the companies.
Bank of America Corp., of Charlotte, N.C., eliminated mandatory
arbitration from its consumer accounts in 2009 after the practice
came under attack in debt-collection proceedings. Capital One
Financial Corp. doesn't have mandatory-arbitration provisions on
any of its products, said a spokeswoman for the McLean, Va.,
company.
Mr. Bullara, the executive coach, said he didn't realize that his
multiple accounts with J.P. Morgan's Chase unit require disputes
to go through an arbitration process. "I don't know if that's a
good or bad thing," he said.
The practice has been less common among smaller institutions,
which tend to highlight consumer-friendly policies.
"Consumer protection and fairness suggest it's not a good
provision," said Steve Zuckerman, president of Self-Help Federal
Credit Union.
The Durham, N.C., credit union mostly serves women and rural and
minority communities in North Carolina, California and other U.S.
states. Self-Help doesn't require arbitration and doesn't plan to
change its policy, he said.
Mandatory arbitration was thrown into disarray two years ago when
big arbitration firms backed away from participating in consumer
debt-collection disputes. As a result, many large banks stopped
using the process to chase down debtors. It remained in place for
other consumer products.
April's Supreme Court decision is making more banks comfortable
with the practice. In that case, California consumers sued AT&T
Inc., saying they were defrauded because the company charged them
$30.22 apiece in sales tax on cellphones that were advertised as
free. AT&T invoked its arbitration clause, but California courts
later concluded that such provisions were so unfair that they were
void. The Supreme Court overturned the state ruling.
"Most of our community-bank clients believe that having the
arbitration clause would be beneficial," says Joseph Porter,
chairman of the financial-institutions practice at law firm
Polsinelli Shughart in St. Louis.
The Dodd-Frank financial-overhaul law requires the newly formed
Consumer Financial Protection Bureau to examine mandatory-
arbitration agreements, but doesn't set a specific time frame for
the agency to do so.
"We need more scrutiny over these things and make sure they are
fair to consumers," said Susan Weinstock, a project director at
Pew.
The arbitration issue is creeping up in other court cases. Nearly
three dozen banks are facing lawsuits over overdraft fees in cases
that were initiated before the April ruling.
Some of those banks had mandatory arbitration clauses for their
customers. The cases still are pending.
"What the banks have done with these arbitration programs is buy
themselves immunity with respect to complaints about their
consumer practices," said Bruce Rogow, a lawyer at Alters Boldt
Brown Rash & Culmo in Miami, which is involved in the overdraft
cases.
*********
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
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Copyright 2011. All rights reserved. ISSN 1525-2272.
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