/raid1/www/Hosts/bankrupt/CAR_Public/110811.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, August 11, 2011, Vol. 13, No. 158
Headlines
ADDUS HOMECARE: Illinois Court Okays Deal & Dismisses Class Suit
AIR TRANSPORT: Unit Continues to Defend Immigration Suit in Ohio
ALLIED HEALTHCARE: Being Sold for Too Little, Suit Says
AMERIGROUP CORP: Continues to Defend Consolidated Suit in New York
AT&T: Faces Family & Medical Leave Act Class Action
AVON PRODUCTS: Sept. 6 Class Action Lead Plaintiff Deadline Set
AXIS CAPITAL: Awaits Final Okay of Antitrust Class Suit Settlement
BANK OF AMERICA: Sued in D.C. for Outsourcing Customer Calls
BANK OF AMERICA: Settles Overdraft Fee Class Action
BMW NORTH OF AMERICA: Sued in Calif. Over Defective Alloy Wheels
BRINK'S HOME: Sued Over Failure to Provide Security System
CALIFORNIA: Lake-Poisoning Suit Can't Proceed as Class Action
CEPHALON INC: Continues to Defend Class Actions in Pennsylvania
CEPHALON INC: Continues to Face Suits Relating to Valeant Bid
CLEARWIRE CORP: Oral Argument in "Minnick" Appeal Set for Nov. 10
CLEARWIRE CORP: Continues to Defend "Kwan" Suit in Washington
CLEARWIRE CORP: To Renew Motion for Arbitration in "Denning" Suit
CLEARWIRE CORP: Continues to Defend "Newton" Suit in California
CONSOL ENERGY: Awaits Decision on Appeal in "Hale" Class Suit
CONSOL ENERGY: To Seek Early Dismissal of New "Comer" Suit
CONSOL ENERGY: Continues to Defend "Hall" Suit in Pennsylvania
CONSOL ENERGY: Unit's Plea to Dismiss "Addison" Suit Still Pending
CONSOL ENERGY: Continues to Defend Shareholder Class Suits
DETROIT, MI: Teachers Unions File Class Action Over Pay Cuts
DOLLAR TREE: Judge Decertifies Store Managers' Wage Class Action
E*TRADE FINANCIAL: Appeal From "Oughtred" Suit Dismissal Pending
E*TRADE FINANCIAL: Continues to Defend "Freudenberg" Suit
E*TRADE FINANCIAL: Still Defends "Roling" Suit in California
EQUITITRUST: Piper Alderman to Launch Class Action This Month
EURONET WORLDWIDE: Wage and Hour Violations Suit Still Pending
FACEBOOK INC: Seeks Dismissal of Class Action
FBL FINANCIAL: Court Confirmed Reconsideration Denial in "Tabares"
FBL FINANCIAL: Expects Ruling on Motion to Amend Complaint Soon
FORCE PROTECTION: Settlement Order and Judgment Now Final
FORTINET INC: Stockholder Suit Remains Pending in California
GALEOS CAFE: Settles Class Action Over Salad Dressing Labels
GOOGLE INC: Accused of Snooping on Non-Gmail Accountholders
GREEN MOUNTAIN: Briefing on Dismissal Motions Not Yet Completed
HARMONY GOLD: Settles US Securities Class Action
HARTFORD FINANCIAL: Awaits Final Settlement Pact in Conn. Suit
HARTFORD FINANCIAL: Bid to Dismiss Securities Suit Still Pending
HEADWATERS INC: Appeal in "Adtech" Suit Remains Pending
HEADWATERS INC: Discovery Is Ongoing in Suit vs. Eldorado
HUNTSMAN CORP: Final Hearing on Kansas Class Deal Set for Sept. 27
IKANOS COMMUNICATIONS: Appeal From IPO Suit Dismissal Pending
IMPAX LAB: "Budeprion" Parties May File Supplements by Oct. 7
LENDER PROCESSING: Still Defends Fee Splitting Class Suits
LENDER PROCESSING: Seeks Dismissal of "St. Clair" Suit
MIDLAND FUNDING: Kansas Opposes Class Action Settlement
NATIONAL CITY: Settles Securities Fraud Class Action
PAR PHARMACEUTICAL: Intends to Oppose Class Cert. in N.J. Suit
PAXFIRE: Sued for Directing Internet Users to Dummy Web Pages
PG&E CORP: Continues to Defend Suits Over San Bruno Accident
QC HOLDINGS: Negotiates Tentative Settlement in Missouri Suit
REACHLOCAL INC: Wage & Hour Suits Remain Pending in California
REGIONS FINANCIAL: Continues to Defend Suits on Overdraft Fees
REGIONS FINANCIAL: Alabama Securities Class Suit Remains Pending
REGIONS FINANCIAL: Class Suits on "Keegan" Funds Remain Pending
S1 CORP: Faces Stockholder Class Suit in Delaware
SILICON IMAGE: Appeals From Settlement Approval Still Pending
SIRIUS XM: Judge Hears Objections to Class Action Settlement
SMITH MICRO: Continues to Defend California Class Action
SOUTHERN OCEAN: Sued Over Failure to Control Abalone Virus
STEWART INFORMATION: Appeal From RESPA Claims Dismissal Pending
SUNRISE SENIOR: Accused of Violating Wage and Hour Laws in Calif.
SUNRISE SENIOR: Hearing in "Purnell" Suit Set for Sept. 2011
SYNGENTA AG: Judge to Decide on Jurisdiction in Atrazine Suit
UK: Hindraf Lawyers to Meet Clients in Malaysia for Class Action
UMB FINANCIAL: Hearing on "Allen" Suit Settlement Set for Oct. 31
VARIAN SEMICONDUCTOR: Robbins Umeda Files Class Action in Mass.
VONAGE HOLDINGS: Obtained Final Approval of Consumer Suit Deal
VULCAN MATERIALS: July 2012 Trial Set in Suits vs. Florida Rock
VULCAN MATERIALS: "Addair" Suit Still Stayed in West Virginia
WAL-MART STORES: Faces Class Action Over Unpaid Overtime
WEBMD HEALTH: Oct. 3 Class Action Lead Plaintiff Deadline Set
WELLS FARGO: Settles "Pick-a-Pay" Loan Class Action for $627MM
YUHE INT'L: Class Action Lead Plaintiff Motion Deadline Nears
*********
ADDUS HOMECARE: Illinois Court Okays Deal & Dismisses Class Suit
----------------------------------------------------------------
A federal court in Illinois has dismissed a class action lawsuit
arising from Addus Homecare Corporation's initial public offering
pursuant to a settlement entered into by the parties, according to
the Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On March 26, 2010, a class action lawsuit was filed in the United
States District Court for the Northern District of Illinois on
behalf of a class consisting of all persons or entities who
purchased or otherwise acquired the Company's common stock between
October 27, 2009, and March 18, 2010, in connection with the
Company's IPO. The complaint, which was amended on August 10,
2010, asserts claims against the Company and individual officers
and directors pursuant to Sections 11 and 15 of the Securities Act
of 1933 and alleges, inter alia, that the Company's registration
statement was materially false and/or omitted the following: (1)
that the Company's accounts receivable included at least $1.5
million in aging receivables that should have been reserved for;
and (2) that the Company's home health segment's revenues were
falling short of internal forecasts due to a slowdown in
admissions from the Company's integrated services program due to
the State of Illinois' effort to develop new procedures for
integrating care. A motion to dismiss the complaint was filed on
behalf of the defendants on September 20, 2010. The Company and
the other defendants have denied and continue to deny all charges
of wrongdoing or liability arising out of any conduct, statements,
acts or omissions alleged in the complaint. In addition, on
April 16, 2010, Robert W. Baird & Company, on behalf of the
underwriters of the IPO, notified the Company that the
underwriters are seeking indemnification in respect of the action
pursuant to the underwriting agreement entered into in connection
with the IPO.
On March 21, 2011, the Company and the other named defendants
entered into a stipulation of settlement with the plaintiffs with
respect to the class action, pursuant to which they are to cause
$3 million to be paid into a settlement fund. The monetary amount
of this settlement is covered by insurance.
On July 21, 2011, the United States District Court for the
Northern District of Illinois approved the settlement and
dismissed the class action with prejudice.
The effectiveness of the settlement is conditioned on the judgment
of dismissal entered by the court becoming final (which will occur
if no appeal is filed by August 25, 2011). There can be no
assurance the settlement will become effective.
AIR TRANSPORT: Unit Continues to Defend Immigration Suit in Ohio
----------------------------------------------------------------
A unit of Air Transport Services Group, Inc. continues to defend
itself from a putative class action in Ohio for alleged violations
of immigration laws, according to the Company's August 3, 2011
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
On December 31, 2008, a former employee of ABX Air, Inc. filed a
complaint against ABX, a total of four current and former
executives and managers of ABX, Garcia Labor Company of Ohio, and
three former executives of the Garcia Labor companies, in the U.S.
District Court for the Southern District of Ohio. The case was
filed as a putative class action against the defendants, and
asserts violations of the Racketeer Influenced and Corrupt
Practices Act (RICO). The complaint, which was later amended to
include a second former employee plaintiff, seeks damages in an
unspecified amount and alleges that the defendants engaged in a
scheme to hire illegal immigrant workers to depress the wages paid
to hourly wage employees during the period from December 1999 to
January 2005. On March 18, 2010, the Court issued a decision in
response to a motion filed by ABX and the other ABX defendants,
dismissing three of the five claims constituting the basis of
Plaintiffs' complaint. Most recently, the Court issued a decision
on October 7, 2010, permitting the plaintiffs to amend their
complaint for the purpose of reinstating one of their dismissed
claims. On October 26, 2010, ABX and the other ABX defendants
filed an answer denying the allegations contained in plaintiffs'
second amended complaint.
The complaint is similar to a prior complaint filed by another
former employee in April 2007. The prior complaint was
subsequently dismissed without prejudice at the plaintiff's
request on November 3, 2008.
Air Transport Services Group, Inc. is a holding company whose
principal subsidiaries include three independently certificated
airlines, ABX Air, Inc., Capital Cargo International Airlines,
Inc. and Air Transport International, LLC, and an aircraft leasing
company, Cargo Aircraft Management, Inc.
ALLIED HEALTHCARE: Being Sold for Too Little, Suit Says
-------------------------------------------------------
Hershal Weber, Individually and on behalf of all others similarly
situated v. Allied Healthcare International Inc., Saga Group
Limited, AHL Acquisition Corp., [Jeffrey S. Peris, Alexander
"Sandy" Young, Sophia Corona, Mark Hanley, Wayne Palladino,
Raymond J. Playford, and Ann Thornburg, Case No. 652188/2011 (N.Y.
Sup. Ct., August 4, 2011) is a shareholder class action lawsuit
arising out of the proposed all cash sale of the Company to Saga
Group, through AHL, for $3.90 per share, for a total of
approximately $175 million.
The Plaintiff alleges that each of the Defendants has breached and
has aided and abetted the other Defendants' breaches of their
fiduciary duties of candor, loyalty, good faith, honesty, fair
dealing and independence in conjunction with the Proposed
Transaction, which was entered through a flawed process for
grossly inadequate consideration and was announced less than a
week before positive quarterly financial results became public.
The Plaintiff is a resident of New York, and owns 3,500 shares of
Allied common stock.
Allied is a New York corporation and is a leading provider of
domiciliary home care and healthcare staffing services within the
United Kingdom. Saga is a corporation organized under the laws of
England and Wales, and is a leading provider of services to
individuals aged 50 and over in the U.K. AHL is a New York
corporation and wholly owned subsidiary of Saga. The Individual
Defendants are directors and officers of Allied.
The Plaintiff is represented by:
Gustavo F. Bruckner, Esq.
Marc I. Gross, Esq.
Samuel J. Adams, Esq.
Marie L. Oliver, Esq.
POMERANTZ HAUDEK GROSSMAN & GROSS LLP
100 Park Avenue, 26th Floor
New York, NY 10017
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: gfbruckner@pomlaw.com
migross@pomlaw.com
MLOliver@pomlaw.com
- and -
Jacob T. Fogel, Esq.
LAW OFFICE OF JACOB T. FOGEL, P.C.
32 Court Street
Brooklyn, NY 11201
Telephone: (718) 855-4792
Facsimile: (718) 228-9278
E-mail: JAYFOGEL@ATT.NET
AMERIGROUP CORP: Continues to Defend Consolidated Suit in New York
------------------------------------------------------------------
AMERIGROUP Corporation continues to defend itself against a
consolidated class action lawsuit in New York, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On November 22, 2010, Hamel Toure, a former AMERIGROUP New York,
LLC marketing representative, filed a putative collective and
class action complaint against AMERIGROUP Corporation and
AMERIGROUP New York, LLC in the United States District Court,
Eastern District of New York. Subsequently, another lawsuit,
styled Andrea Burch, individually and on behalf of all others
similarly situated v. AMERIGROUP Corporation and AMERIGROUP New
York, LLC, was consolidated with the Toure case.
At this early stage of the case, the Company is unable to make a
reasonable estimate of the amount or range of loss that could
result from an unfavorable outcome because, among other things,
the scope and size of the potential class has not been determined
and no specific amount of monetary damages has been alleged. The
Company believes it has meritorious defenses to the claims against
it and intends to defend itself vigorously.
AT&T: Faces Family & Medical Leave Act Class Action
---------------------------------------------------
According to an article posted at jobmouse by Lynn Herman, two
ex-employees of AT&T served the company on August 1 with a
proposed Family and Medical Leave Act class action, claiming that
the company's so-called total absence policy counted FMLA-
protected time off against workers.
The plaintiffs, Andre Beard and Gloribel Guerrero, filed their
complaint against Pacific Bell Telephone Co., which does business
as AT&T California. Andre Beard claims he was ineligible for
promotion because he took protected leave, and Gloribel Guerrero
was allegedly terminated because she took FMLA leave.
The Family and Medical Leave Act (FMLA) applies to both men and
women and requires that any employer with 15 or more employees
treat maternity leave the same as other personal or medical
leaves. The Act also provides employees job-protected unpaid
leave due to a serious health condition that makes the employee
unable to perform his or her job, or to take care of a sick family
member.
Mr. Beard and Ms. Guerrero claim the company ranked employees by
total absences, including FMLA leave. Its policy was to harass,
reprimand, demote or take other adverse action against workers in
the bottom 30% of the company's attendance records. They claim
the total absence policy, combined with the corollary policy of
taking action against workers with the most time out, amounts to
an FMLA violation.
The class would include non-managerial employees who worked for
the company at call centers, collection centers or bilingual
centers in California within the past three years, who took
AT&T-designated FMLA leave and were at the bottom 30% of the
company's absence tally during the class period.
Mr. Beard is suing on behalf of himself and managerial workers.
Hersh & Hersh's Charles Kelly, who represents Mr. Beard and
Ms. Guerrero, on August 3 said that he was confident about the
plaintiffs' prospects for winning class certification, because the
policy at issue was applied across the board in California.
According to Mr. Kelly, managers were given "black lists"
identifying workers with the worst attendance records and told to
"make these people's lives miserable."
"We look forward to pursuing the case," Mr. Kelly said.
AT&T spokesman Marty Richter told Law360 on August 3 "AT&T
complies with all applicable federal and state employment-related
laws, including the FMLA."
AVON PRODUCTS: Sept. 6 Class Action Lead Plaintiff Deadline Set
---------------------------------------------------------------
The Shuman Law Firm on August 8 disclosed that a class action
lawsuit has been filed in the United States District Court for the
Southern District of New York on behalf of purchasers of the
common stock of Avon Products, Inc. between July 31, 2006 through
May 24, 2011, inclusive.
If you wish to discuss this action or have any questions
concerning this notice or your rights and interests with respect
to this matter, please contact Kip B. Shuman or Rusty E. Glenn
toll-free at (866) 974-8626 or e-mail Mr. Shuman at
kip@shumanlawfirm.com or e-mail Mr. Glenn at
rusty@shumanlawfirm.com
The complaint alleges that during the Class Period, defendants
misled investors as to the breadth of potential violations of the
Foreign Corrupt Practices Act (FCPA) allegedly perpetrated by the
Company. A May 4, 2011 article in the Wall Street Journal
reported that an internal investigation discovered that the
Company may have made improper payments to officials in multiple
countries. In 2010 four executives were suspended after their
involvement in instances of improper expenses was discovered.
According to reports, the Company has spent more than one billion
dollars on the ongoing investigation.
If you purchased Avon common stock during the Class Period, you
may request that the Court appoint you as lead plaintiff of the
class no later than September 6, 2011. A lead plaintiff is a
class member that acts on behalf of other class members in
directing the litigation.
The Shuman Law Firm -- http://www.shumanlawfirm.com--
represents investors throughout the nation, concentrating its
practice in securities class actions and shareholder derivative
actions.
AXIS CAPITAL: Awaits Final Okay of Antitrust Class Suit Settlement
------------------------------------------------------------------
Axis Capital Holdings Limited is awaiting final court approval of
a settlement resolving an antitrust class action complaint in New
Jersey, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
In 2005, a putative class action lawsuit was filed against the
Company's U.S. insurance subsidiaries. In re Insurance Brokerage
Antitrust Litigation was filed on August 15, 2005, in the U.S.
District Court for the District of New Jersey and includes as
defendants numerous insurance brokers and insurance companies.
The lawsuit alleges antitrust and Racketeer Influenced and Corrupt
Organizations Act ("RICO") violations in connection with the
payment of contingent commissions and manipulation of insurance
bids and seeks damages in an unspecified amount. On October 3,
2006, the District Court granted, in part, motions to dismiss
filed by the defendants, and ordered plaintiffs to file
supplemental pleadings setting forth sufficient facts to allege
their antitrust and RICO claims. After plaintiffs filed their
supplemental pleadings, defendants renewed their motions to
dismiss. On April 15, 2007, the District Court dismissed without
prejudice plaintiffs' complaint, as amended, and granted
plaintiffs 30 days to file another amended complaint and/or
revised RICO Statement and Statements of Particularity. In May
2007, plaintiffs filed (i) a Second Consolidated Amended
Commercial Class Action complaint, (ii) a Revised Particularized
Statement Describing the Horizontal Conspiracies Alleged in the
Second Consolidated Amended Commercial Class Action Complaint, and
(iii) a Third Amended Commercial Insurance Plaintiffs' RICO Case
Statement Pursuant to Local Rule 16.1(B)(4). On June 21, 2007, the
defendants filed renewed motions to dismiss. On September 28,
2007, the District Court dismissed with prejudice plaintiffs'
antitrust and RICO claims and declined to exercise supplemental
jurisdiction over plaintiffs' remaining state law claims. On
October 10, 2007, plaintiffs filed a notice of appeal of all
adverse orders and decisions to the United States Court of Appeals
for the Third Circuit, and a hearing was held in April 2009. On
August 16, 2010, the Third Circuit Court of Appeals affirmed the
District Court's dismissal of the antitrust and RICO claims
arising from the contingent commission arrangements and remanded
the case to the District Court with respect to the manipulation of
insurance bids allegations. The Company continued to believe that
the lawsuit was completely without merit and on that basis
vigorously defended the filed action. However, for the sole
purpose of avoiding additional litigation costs, the Company
reached an agreement in principle with plaintiffs during the first
quarter of 2011 to settle all claims and causes of action in the
matter for an immaterial amount. On June 27, 2011, the District
Court preliminarily approved the terms and conditions of the
settlement.
Axis Capital Holdings Limited is a Bermuda-based global provider
of specialty lines insurance and treaty reinsurance products with
operations in Bermuda, the United States, Europe, Singapore,
Canada and Australia. Its underwriting operations are organized
around two global underwriting platforms, AXIS Insurance and AXIS
Reinsurance.
BANK OF AMERICA: Sued in D.C. for Outsourcing Customer Calls
------------------------------------------------------------
Zoe Tillman, writing for The National Law Journal, reports that a
class action filed on August 3 accuses Bank of America Corp. of
putting the privacy of its customers' financial data at risk of
U.S. government surveillance by transferring service calls to
overseas call centers.
According to the complaint, which was filed on behalf of Bank of
America customers in Washington and nationwide, service calls to
the bank are often transferred abroad without any notice to
customers. When that happens, the customers' digitized financial
records are sent electronically to the call center. The suit was
filed in U.S. District Court for the District of Columbia.
Outsourcing to foreign call centers is a common practice, but the
problem, according to the lawsuit, is that the financial
information being transferred electronically isn't protected
against U.S. government collection or surveillance in the same
vein as domestic electronic transfers of the same information.
"By routing Plaintiffs' [financial information] to foreign
national personnel residing overseas, Bank of America affects a
forfeiture of the Constitutional and statutory rights that
constrain the surveillance by the United States Government," the
class alleges.
The lawsuit claims violations of the federal Right to Financial
Privacy Act and other local consumer protection laws.
The class is seeking $100 per class member for each electronic
transfer for data overseas, along with other damages, including
treble damages.
The complaint also asks for Bank of America to stop transferring
the data overseas without first getting authorization from
customers.
The class is being represented by Joseph Hennessey of Beins,
Goldberg & Hennessey in Chevy Chase, Md.
"When they make the decision, as a cost cutting measure, to
outsource calls to foreign nationals overseas, they're doing it at
the expense of their customers' rights under U.S. law and the
Constitution," Mr. Hennessey said in a phone interview on
August 8. By law, he said, "consumers should be provided notice
and some kind of choice about how their data is handled and how
the telecommunications are serviced."
Bank of America spokesman Lawrence Grayson said the company had
not received the lawsuit or had an opportunity to review it.
Mr. Hennessey's firm filed similar class actions against American
Express Company in late May and early June in Washington federal
court and a California Superior Court. Mr. Hennessey has also
written for years on what he sees as potential violations of the
Fourth Amendment right against unreasonable search and seizure
posed by the transmission of information to call centers overseas.
In a 2005 piece published in the Legal Times, Mr. Hennessey wrote
that, "Since the Fourth Amendment provides no protection to
foreigners living overseas, the National Security Agency has the
authority to intercept any communication that has at least one
foreign terminus."
"The same statute that makes it a criminal act to intercept wire,
oral, and electronic communications preserves the NSA's right to
intercept such signals when they are directed outside the United
States," he wrote.
BANK OF AMERICA: Settles Overdraft Fee Class Action
---------------------------------------------------
Emily Knapp, writing for Wall St. Cheat Sheet, reports that Bank
of America has begun contacting customers who may be entitled to a
refund as part of a class-action settlement over how the bank
charged overdraft fees. Bank of America has set up a $410 million
fund to settle the suit, and will reimburse customers who were
charged overdraft fees as a result of the bank's processing debit
card transactions in order of size, with the largest coming first,
rather than chronologically.
Anyone who incurred overdraft fees between January 2001 and May
2011 as a result of the bank's overdraft procedure are entitled to
part of the settlement. Bank of America is only one of nearly
three dozen banks named in a series of class-action lawsuits over
"reordering", which the suits allege was done intentionally to
increase bank revenue from overdraft fees. Banks averaged about
$39 billion a year while the procedure was in place, with the
Federal Reserve stepping in just last year with new regulations
requiring banks to obtain a customer's written permission before
providing overdraft protection.
Customers will be receiving postcards from Bank of America
notifying them of the settlement and providing a web address where
more information is available. Customers who are a part of the
suit will automatically receive their money if the court approves
the settlement in a hearing scheduled for November 7. Up to 30%
of the $410 million awarded will cover the plaintiffs' legal fees.
Those wishing to file their own suit must exclude themselves from
the current settlement by October 3.
BMW NORTH OF AMERICA: Sued in Calif. Over Defective Alloy Wheels
----------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
the BMW 5 series comes with alloy wheels that crack under normal
driving conditions.
A copy of the Complaint in Castelblanco v. BMW of North America,
LLC, Case No. 11-cv-06460 (C.D. Calif.), is available at:
http://www.courthousenews.com/2011/08/08/BMWClass.pdf
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Michael M. Goldberg, Esq.
GLANCY BINKOW & GOLDBERG LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: info@glancylaw.com
- and -
Rosemary M. Rivas, Esq.
FINKELSTEIN THOMPSON LLP
100 Bush Street, Suite 1450
San Francisco, CA 94104
Telephone: (415) 398-8700
E-mail: rrivas@finkelsteinthompson.com
- and -
Vahn Alexander, Esq.
Christopher B. Hayes, Esq.
FARUQI & FARUQI, LLP
1901 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Telephone: (310) 461-1426
E-mail: valexander@faruqilaw.com
chayes@faruqilaw.com
BRINK'S HOME: Sued Over Failure to Provide Security System
----------------------------------------------------------
Courthouse News Service reports that Brink's Home Security charged
extra for months for a "cellular/radio backup security system,"
knowing that the system had been cut off, irate customers say in a
class action.
A copy of the Complaint in Friedman v. Brink's Home Security,
Inc., et al., Case No. CV11761379 (Ohio C.P. Ct., Cuyahoga Cty.),
is available at:
http://www.courthousenews.com/2011/08/08/ThanksaLot.pdf
The Plaintiff is represented by:
Jack Landskroner, Esq.
Drew Legando, Esq.
LANDSKRONER GRIECO MADDEN, LLC
1360 West 9th Street, Suite 200
Cleveland, OH 44113
Telephone: (216) 522-9000
E-mail: jack@lgmlegal.com
drew@lgmlegal.com
- and -
Christian R. Patno, Esq.
MCCARTHY, LEBIT, CRYSTAL & LIFFMAN CO., LPA
101 West Prospect Avenue
1800 Midland Building
Cleveland, OH 44115
Telephone: (216) 696-1430
E-mail: crp@mccarthylebit.com
CALIFORNIA: Lake-Poisoning Suit Can't Proceed as Class Action
-------------------------------------------------------------
Denny Walsh, writing for Sacramento Bee, reports that the state's
Herculean effort to wipe the northern pike out of Lake Davis in
Plumas County wreaked havoc on the economy in and around Portola,
but the city and owners and operators of businesses and property
may not proceed in court against the state as a class, an
appellate court has ruled.
The character and interests of the proposed plaintiffs are far too
varied to allow them to press a single lawsuit as a class, a
three-justice panel of the 3rd District Court of Appeal in
Sacramento decided.
The justices struck down class certification granted by Plumas
Superior Court Judge Janet Hilde. Their ruling means the
plaintiffs will have to sue the state individually.
In 1997 and 2007, the California Fish and Game Department dumped
thousands of gallons of rotenone -- a naturally occurring poison
deadly to gilled creatures -- into the scenic mountain reservoir
and its tributaries to rid them of the invasive, voracious fish.
After the 1997 poisoning, which was unsuccessful, the Legislature
determined the area's residents had suffered economic harm and
appropriated more than $9.1 million to compensate them.
After the 2007 poisoning -- during much harder economic times --
six individuals, a family trust, an RV park and the city of
Portola filed damage claims with the state Victim Compensation and
Government Claims Board, but the claims were rejected.
The goals of Fish and Game were to preserve tourism in the
sparsely populated area and to prevent migration of the pike to
other bodies of water.
In 2007, in addition to the poisoning, Fish and Game widely
publicized its plan, closed all roads to Lake Davis, and placed
large, blinking signs on Highway 70 advising the public what was
going on.
According to the plaintiffs, the signs were unclear and
misleading, prompting a widespread belief that the entire area,
including Portola, was closed. They also allege that Fish and
Game left the signs up for more than a week after the roads were
reopened.
The forest around Lake Davis remained closed from September 2007
through January 2008, and the lake was not again certified as a
source of drinking water until May 2008.
In 2009, a group of financial stakeholders sued Fish and Game and
others, claiming the agency's solution for the pike problem
created a decline in tourism that adversely affected business
income, property values and tax receipts for the period leading up
to and following the eradication process.
Judge Hilde certified three subclasses:
* Persons and entities owning or operating businesses in the
Lake Davis area that had claims for damages resulting from the
2007 poisoning rejected by the state.
* Real property owners whose damage claims based on a decrease
in property values or a loss of income or sales due to the 2007
poisoning were rejected.
* Persons and entities whose rejected damage claims were tied
to the 2007 poisoning and based on lost property and sales tax
revenues, lost economic development and economic growth.
The 65-page published opinion was written by Associate Justice
Harry Hull, with Acting Presiding Justice Cole Blease and
Associate Justice M. Kathleen Butz concurring.
The appellate justices said Judge Hilde erred in "uncritically
looking at plaintiffs' showing in support of . . . class
certification . . . and then looking to defendants' showing" with
a critical eye. She "failed to give any weight to the various
opinions asserted by defendants' experts that appear to be
rationally based and are not refuted by plaintiffs' experts.
"In light of deficiencies in the plaintiffs' expert evidence,
. . . there is no substantial evidence to support the trial
court's conclusion that common issues predominate," the justices
concluded.
With respect to the subclass claiming lost taxes and economic
growth, it "appears to have only one member, the city of Portola,
although it has been suggested it may also contain a local
resident who claims to have been deprived of the right to fish in
Lake Davis during the 2007 poisoning" the justices said.
"Obviously, the city . . . and the fisherman have no community of
interests making them a proper class. And to the extent the class
is composed of the city alone, a class of one is not a class."
CEPHALON INC: Continues to Defend Class Actions in Pennsylvania
---------------------------------------------------------------
Cephalon, Inc. continues to defend itself from putative class
action lawsuits filed in Pennsylvania by entities that claim to
have reimbursed for prescriptions of ACTIQ, GABITRIL and PROVIGIL,
according to the Company's August 3, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In late 2007, the Company was served with a series of putative
class action complaints filed in the U.S. District Court for the
Eastern District of Pennsylvania on behalf of entities that claim
to have reimbursed for prescriptions of ACTIQ for uses outside of
the product's approved label in non-cancer patients. The
complaints allege violations of various state consumer protection
laws, as well as the violation of the common law of unjust
enrichment, and seek an unspecified amount of money in actual,
punitive and/or treble damages, with interest, and/or disgorgement
of profits. In May 2008, the plaintiffs filed a consolidated and
amended complaint that also alleges violations of RICO and
conspiracy to violate RICO. The RICO allegations were dismissed
with prejudice in May 2009. In February 2009, the Company was
served with an additional putative class action complaint filed on
behalf of two health and welfare trust funds that claim to have
reimbursed for prescriptions of GABITRIL and PROVIGIL for uses
outside the approved labels for each product. The complaint
alleges violations of RICO and the common law of unjust enrichment
and seeks an unspecified amount of money in actual, punitive
and/or treble damages, with interest. The Company believes the
allegations in the complaints are without merit, and the Company
intends to vigorously defend itself in these matters and in any
similar actions that may be filed in the future. These efforts
will be both expensive and time consuming and, ultimately, due to
the nature of litigation, there can be no assurance that these
efforts will be successful.
Cephalon, Inc. is a global biopharmaceutical company.
CEPHALON INC: Continues to Face Suits Relating to Valeant Bid
--------------------------------------------------------------
Cephalon, Inc. continues to face three putative class actions
alleging breach of duties in connection with Valeant
Pharmaceuticals International, Inc.'s non-binding acquisition
proposal, according to the Company's August 3, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Three putative class actions have been filed in the Delaware Court
of Chancery against the Company's Board or the Company, alleging
breach of duties in connection with Valeant's non-binding
acquisition proposal and seeking injunctive relief. The Company
expects additional complaints to be filed relating to its proposed
acquisition by Teva Pharmaceuticals. The Company intends to
vigorously defend these actions.
Cephalon, Inc. is a global biopharmaceutical company.
CLEARWIRE CORP: Oral Argument in "Minnick" Appeal Set for Nov. 10
-----------------------------------------------------------------
Oral argument in an appeal from the dismissal of a class action
lawsuit against Clearwire Corporation's subsidiary is set for
November 10, 2011, according to the Company's August 4, 2011 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On April 22, 2009, a purported class action lawsuit was filed
against Clearwire U.S. LLC in Superior Court in King County,
Washington by a group of five plaintiffs from Hawaii, Minnesota,
North Carolina and Washington (Chad Minnick, et al.). The lawsuit
generally alleges that Clearwire U.S. disseminated false
advertising about the quality and reliability of its services;
imposed an unlawful early termination fee, which it refers to as
ETF; and invoked allegedly unconscionable provisions of its Terms
of Service to the detriment of subscribers. Among other things,
the lawsuit seeks a determination that the alleged claims may be
asserted on a class-wide basis; an order declaring certain
provisions of Clearwire's Terms of Service, including the ETF
provision, void and unenforceable; an injunction prohibiting the
Company from collecting ETFs and further false advertising;
restitution of any early termination fees paid by its subscribers;
equitable relief; and an award of unspecified damages and
attorneys' fees. Plaintiffs subsequently amended their complaint
adding seven additional plaintiffs, including individuals from New
Mexico, Virginia and Wisconsin. Clearwire removed the action to
the United States District Court for the Western District of
Washington. On July 23, 2009, Clearwire filed a motion to dismiss
the amended complaint. The Court stayed discovery pending its
ruling on the motion, and on February 2, 2010 granted Clearwire's
motion to dismiss in its entirety. Plaintiffs appealed to the
Ninth Circuit Court of Appeals, where oral argument took place
November 3, 2010. On March 29, 2011 the Court of Appeals entered
an Order Certifying Question to the Supreme Court of Washington
requesting guidance on a question of Washington state law. The
parties have briefed the issue and oral argument is scheduled for
November 10, 2011. Once the Washington Supreme Court issues its
opinion, the Court of Appeals will continue considering the appeal
of the District Court's dismissal of all claims in the First
Amended Complaint. On March 31, 2011, plaintiffs filed with the
District Court a Motion for an Indicative Ruling on Whether the
Court Would Grant Leave for Filing of Second Amended Complaint,
attaching a proposed Second Amended Complaint seeking to add new
claims concerning Clearwire's customer pre-qualification tool. The
Court denied the motion, stating it would not grant leave to amend
the complaint. This case is in the early stages of litigation, its
outcome is unknown and an estimate of any potential loss cannot be
made at this time.
CLEARWIRE CORP: Continues to Defend "Kwan" Suit in Washington
-------------------------------------------------------------
Clearwire Corporation's renewed motion to compel arbitration in a
class action lawsuit filed by representative plaintiff Rosa Kwan
remains pending, according to the Company's August 4, 2011 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On September 1, 2009, the Company was served with a purported
class action lawsuit filed in King County Superior Court, brought
by representative plaintiff Rosa Kwan. The complaint alleges the
Company placed unlawful telephone calls using automatic dialing
and announcing devices and engaged in unlawful collection
practices. It seeks declaratory, injunctive, and/or equitable
relief and actual and statutory damages under federal and state
law. On October 1, 2009, the Company removed the case to the
United States District Court for the Western District of
Washington. On October 22, 2009, the Court issued a stipulated
order granting plaintiff until October 29, 2009 to file an Amended
Complaint. The parties further stipulated to allow a Second
Amended Complaint, which plaintiffs filed on December 23, 2009.
The Company then filed a motion to dismiss that was fully briefed
on January 15, 2010. On February 22, 2010, the Court granted the
Company's motion to dismiss in part, dismissing certain claims
with prejudice and granting plaintiff leave to further amend the
complaint. Plaintiff filed a Third Amended Complaint adding
additional state law claims and joining Bureau of Recovery, a
purported collection agency, as a co-defendant. On January 27,
2011, the court granted the parties' stipulation allowing
plaintiff to file a Fourth Amended Complaint adding two new class
representatives. In response to the Fourth Amended Complaint, on
March 3, 2011, Clearwire filed concurrent motions to (1) compel
the newly-added plaintiffs to arbitrate their individual claims or
alternatively, (2) to stay this case pending the United States
Supreme Court's decision in AT&T Mobility LLC v. Concepcion, No.
09-893. On March 29, 2011, the Court granted the parties'
stipulation to stay the litigation in its entirety pending
resolution of Concepcion and vacated all pretrial and other
deadlines including the briefing schedule for class certification.
On April 27, 2011, the U.S. Supreme Court decided Concepcion, and
as a result, the Company has renewed its motion to compel the
newly-added plaintiffs to arbitrate their individual claims. This
case is in the early stages of litigation, its outcome is unknown
and an estimate of any potential loss cannot be made at this time.
CLEARWIRE CORP: To Renew Motion for Arbitration in "Denning" Suit
-----------------------------------------------------------------
Clearwire Corporation expects to renew its motion to compel
arbitration in the class action lawsuit filed by Angelo Dennings,
according to the Company's August 4, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On November 15, 2010, a purported class action was filed by Angelo
Dennings against Clearwire in the U.S. District Court for the
Western District of Washington. The complaint generally alleges
the Company slows network speeds when network demand is highest
and that such network management violates its agreements with
subscribers and is contrary to the company's advertising and
marketing claims. Plaintiffs also allege that subscribers do not
review the Terms of Service prior to subscribing, and when
subscribers cancel service due to network management, the Company
charges an ETF or restocking fee that they claim is unconscionable
under the circumstances. The claims asserted include violations of
the Computer Fraud and Abuse Act, breach of contract, breach of
the covenant of good faith and fair dealing and unjust enrichment.
Plaintiffs seek class certification; unspecified damages and
restitution; a declaratory judgment that Clearwire's ETF and
restocking fee are unconscionable under the alleged circumstances;
an injunction prohibiting Clearwire from engaging in alleged
deceptive marketing and from charging ETFs; interest; and
attorneys' fees and costs. On January 13, 2011, Clearwire filed
concurrent motions to compel arbitration and in the alternative,
to dismiss the complaint for failure to state a claim upon which
relief may be granted. In response to Clearwire's motions,
Plaintiff abandoned its fraud claim and amended its complaint on
March 3, 2011, adding fourteen additional plaintiffs in eight
separate jurisdictions. Plaintiff further added new claims of
violation of Consumer Protection statutes under various state
laws. On March 31, 2011, Clearwire filed concurrent motions to (1)
compel the newly-added plaintiffs to arbitrate their individual
claims, (2) alternatively, to stay this case pending the United
States Supreme Court's decision in AT&T Mobility LLC v.
Concepcion, No. 09-893, and (3) to dismiss the complaint for
failure to state a claim upon which relief may be granted.
Plaintiffs did not oppose Clearwire's motion to stay the
litigation pending Concepcion, and the parties stipulated to stay
the litigation. On April 27, 2011, the U.S. Supreme Court decided
Concepcion, and as a result, the Company expects to renew its
motion to compel arbitration. This case is in the early stages of
litigation, its outcome is unknown and an estimate of any
potential loss cannot be made at this time.
CLEARWIRE CORP: Continues to Defend "Newton" Suit in California
---------------------------------------------------------------
Clearwire Corporation's motion to compel arbitration in the
purported class action lawsuit captioned Newton v. Clearwire,
Inc.[sic] remains pending, according to the Company's August 4,
2011 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
On March 30, 2011, Clearwire was served with a purported class
action filed in the U.S. District Court for the Eastern District
of California. The case, Newton v. Clearwire, Inc. [sic], alleges
Clearwire's network management and advertising practices
constitute breach of contract, unjust enrichment, unfair
competition under California's Business and Professions Code
Sections 17200 et seq., and violation of California's Consumers'
Legal Remedies Act. Plaintiff contends Clearwire's advertisements
of "no speed cap" and "unlimited data" are false and misleading.
Plaintiff alleges Clearwire has breached its contracts with
customers by not delivering the Internet service as advertised.
Plaintiff also claims slow data speeds are due to Clearwire's
network management practices. Plaintiff seeks class certification;
declaratory and injunctive relief; unspecified restitution and/or
disgorgement of fees paid for Clearwire service; and unspecified
damages, interest, fees and costs. The court stayed the action
pending the U.S. Supreme Court's ruling in AT&T Mobility LLC v.
Concepcion (Case No. 08-56394). On April 27, 2011, the Court
decided Concepcion. On June 9, 2011, Clearwire filed a motion to
compel arbitration. Plaintiff has not yet responded to the motion.
This case is in the early stages of litigation, its outcome is
unknown and any estimate of any potential loss cannot be made at
this time.
CONSOL ENERGY: Awaits Decision on Appeal in "Hale" Class Suit
-------------------------------------------------------------
CONSOL Energy Inc. is awaiting a trial court decision on its
appeal from a magistrate judge's report and recommendation in the
lawsuit captioned Hale v. CNX Gas Company LLC et. al., according
to the Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
A purported class action lawsuit was filed on September 23, 2010,
in U.S. District Court in Abingdon, Virginia styled Hale v. CNX
Gas Company LLC et. al. The lawsuit alleges that the plaintiff
class consists of oil and gas owners, that the Virginia Supreme
Court has decided that coalbed methane (CBM) belongs to the owner
of the oil and gas estate, that the Virginia Gas and Oil Act of
1990 unconstitutionally allows force pooling of CBM, that the Act
unconstitutionally provides only a 1/8 royalty to CBM owners for
gas produced under the force pooling orders, and that the Company
only relied upon control of the coal estate in force pooling the
CBM notwithstanding the Virginia Supreme Court decision holding
that if only the coal estate is controlled, the CBM is not thereby
controlled. The lawsuit seeks a judicial declaration of ownership
of the CBM and that the entire net proceeds of CBM production
(that is, the 1/8 royalty and the 7/8 of net revenues since
production began) be distributed to the class members. The
Magistrate Judge issued a Report and Recommendation in which she
recommended that the District Judge decide that the deemed lease
provision of the Gas and Oil Act is constitutional as is the 1/8
royalty, and that the Company's subsidiary, CNX Gas Corporation,
need not distribute the net proceeds to class members. The
Magistrate Judge recommended against the dismissal of certain
other claims, none of which are believed to have any significance.
The Company has have appealed that recommendation to the trial
judge and are awaiting a decision. CONSOL Energy believes that
the case is without merit and intends to defend it vigorously.
CONSOL ENERGY: To Seek Early Dismissal of New "Comer" Suit
----------------------------------------------------------
CONSOL Energy Inc. intends to seek early dismissal of a new class
action lawsuit filed by Ned Comer, which makes nearly the same
allegations in his dismissed complaint, according to the Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In 2005, plaintiffs Ned Comer and others filed a purported class
action lawsuit in the U.S. District Court for the Southern
District of Mississippi against a number of companies in energy,
fossil fuels and chemical industries, including CONSOL Energy
styled, Comer, et al. v. Murphy Oil, et al. The plaintiffs,
residents and owners of property along the Mississippi Gulf coast,
alleged that the defendants caused the emission of greenhouse
gasses that contributed to global warming, which in turn caused a
rise in sea levels and added to the ferocity of Hurricane Katrina,
which combined to destroy the plaintiffs' property. The District
Court dismissed the case and the plaintiffs appealed. The Circuit
Court panel reversed and the defendants sought a rehearing before
the entire court. A rehearing before the entire court was
granted, which had the effect of vacating the panel's reversal,
but before the case could be heard on the merits, a number of
judges recused themselves and there was no longer a quorum. As a
result, the District Court's dismissal was effectively reinstated.
The plaintiffs asked the U.S. Supreme Court to require the Circuit
Court to address the merits of their appeal.
On January 11, 2011, the Supreme Court denied that request.
Although that should have resulted in the dismissal being a
finality, the plaintiffs filed a lawsuit on May 27, 2011, in the
same jurisdiction against essentially the same defendants making
nearly identical allegations as in the original lawsuit. The
defendants intend to seek an early dismissal of the case.
CONSOL ENERGY: Continues to Defend "Hall" Suit in Pennsylvania
--------------------------------------------------------------
A Pennsylvania court dismissed claims for underpayment of
royalties on gas lost or used before the point of sale in the
class action lawsuit commenced by Earl D. Hall, according to
CONSOL Energy Inc.'s August 4, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
A purported class action lawsuit was filed on December 23, 2010,
styled Hall v. CONSOL Gas Company in Allegheny County Pennsylvania
Common Pleas Court. The named plaintiff is Earl D. Hall. The
purported class plaintiffs are all Pennsylvania oil and gas
lessors to Dominion Exploration and Production Company, whose
leases were acquired by CONSOL Energy. The complaint alleges more
than 1,000 similarly situated lessors. The lawsuit alleges that
CONSOL Energy incorrectly calculated royalties by (i) calculating
line loss on the basis of allocated volumes rather than on a well-
by-well basis, (ii) possibly calculating the royalty on the basis
of an incorrect price, (iii) possibly taking unreasonable
deductions for post-production costs and costs that were not arms-
length, (iv) not paying royalties on gas lost or used before the
point of sale, and (v) not paying royalties on oil production. The
complaint also alleges that royalty statements were false and
misleading. The complaint seeks damages, interest and an
accounting on a well-by-well basis. The plaintiff amended the
complaint and the Company has filed preliminary objections. In
response to the Company's preliminary objections, the Court
dismissed the plaintiffs' claims for underpayment of royalties on
gas lost or used before the point of sale and allowed the
plaintiffs to amend their complaint to specifically state their
claim on oil production. CONSOL Energy believes that the case is
without merit and intends to defend it vigorously.
CONSOL ENERGY: Unit's Plea to Dismiss "Addison" Suit Still Pending
------------------------------------------------------------------
CONSOL Energy Inc.'s motion to dismiss a class action lawsuit
against its subsidiary, CNX Gas Corporation, remains pending,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
A purported class action lawsuit was filed on April 28, 2010, in
Federal court in Virginia styled Addison v. CNX Gas Company LLC.
The case involves two primary claims: (i) the plaintiff and
similarly situated CNX Gas lessors identified as conflicting
claimants during the force pooling process before the Virginia Gas
and Oil Board are the owners of the CBM and, accordingly, the
owners of the escrowed royalty payments being held by the
Commonwealth of Virginia; and (ii) CNX Gas failed to either pay
royalties due these conflicting claimant lessors or paid them less
than required because of the alleged practice of improper below
market sales and/or taking alleged improper post-production
deductions. Plaintiffs seek a declaratory judgment regarding
ownership and compensatory and punitive damages for breach of
contract; conversion; negligence (voluntary undertaking), for
force pooling coal owners after the Ratliff decision declared coal
owners did not own the CBM; negligent breach of duties as an
operator; breach of fiduciary duties; and unjust enrichment. The
Company filed a Motion to Dismiss in this case, which is pending.
CONSOL Energy believes that the case is without merit and intends
to defend it vigorously.
No further updates were reported in the Company's latest SEC
filing.
CONSOL ENERGY: Continues to Defend Shareholder Class Suits
----------------------------------------------------------
CONSOL Energy Inc. continues to defend itself against shareholder
class action lawsuits, according to the Company's August 4, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
CONSOL Energy has been named as a defendant in five putative class
actions brought by alleged shareholders of its subsidiary, CNX Gas
Corporation ("CNX Gas"), challenging the tender offer by CONSOL
Energy to acquire all of the shares of CNX Gas common stock that
CONSOL Energy did not already own for $38.25 per share. The two
cases filed in Pennsylvania Common Pleas Court have been stayed
and the three cases filed in the Delaware Chancery Court have been
consolidated under the caption In Re CNX Gas Shareholders
Litigation (C.A. No. 5377-VCL). With one exception, these cases
also name CNX Gas and certain officers and directors of CONSOL
Energy and CNX Gas as defendants. All five actions generally
allege that CONSOL Energy breached and/or aided and abetted in the
breach of fiduciary duties purportedly owed to CNX Gas public
shareholders, essentially alleging that the $38.25 per share price
that CONSOL Energy paid to CNX Gas shareholders in the tender
offer and subsequent short-form merger was unfair. Among other
things, the actions sought a permanent injunction against or
rescission of the tender offer, damages, and attorneys' fees and
expenses. The Delaware Court of Chancery denied an injunction
against the tender offer and CONSOL Energy completed the
acquisition of the outstanding shares of CNX Gas on June 1, 2010.
The Delaware Court of Chancery certified to the Delaware Supreme
Court the question of what legal standard should be applied to the
tender offer, which would effectively determine whether the
shareholders can proceed with a damage claim. The Delaware
Supreme Court declined to accept the appeal pending a final
judgment. Therefore, the lawsuit will likely go to trial,
possibly later in 2011. There may be mediation prior to any
trial. CONSOL Energy believes that these actions are without
merit and intends to defend them vigorously.
DETROIT, MI: Teachers Unions File Class Action Over Pay Cuts
------------------------------------------------------------
Jamie Ross at Courthouse News Service reports that three unions
say the emergency manager of Detroit public schools has made
unconstitutional "draconian reductions" in their wages and
benefits, in violation of collective-bargaining agreements.
Detroit public schools have been placed "under the sole management
and control of defendant Roy Roberts Jr., the current 'emergency
manager,' who has virtually unbridled powers under Michigan's
recently enacted Local Government and School District Fiscal
Accountability Act, 2011 Public Act 4 ('P.A. 4')," according to
the federal class action. "Emergency Manager Roberts has ordered
draconian reductions in the negotiated wages and benefits that the
District, through its former 'emergency financial manager,'
Robert Bobb, agreed to provide to employees under collective
bargaining agreements with plaintiffs that currently are in
effect. The Emergency Manager's action was taken with the
approval of defendant Andy Dillon, the State Treasurer."
Plaintiffs -- the Detroit Federation of Teachers, American
Federation of Teachers Local 231; the Detroit Association of
Educational Office Employees, AFT Local 4168; and the Detroit
Federation of Paraprofessionals, AFT Local 2350 -- say the Local
Government and School District Fiscal Accountability Act gave the
state the power to "ride rough-shod over the U.S. Constitution"
and the "power to displace the elected local board of education
and operate the district singlehandedly."
Mr. Roberts was appointed emergency manager of Detroit Public
Schools on March 16. He was given "power to reject, modify or
terminate one or more terms and conditions of a collective
bargaining agreement" under the Act.
On July 29, Mr. Roberts imposed on members of the Detroit
Federation of Teachers a 10% pay cut; a 20% mandatory employee
premium contribution for medical and dental insurance;
discontinuance of step increases in pay; discontinuance of payout
of unused sick days; elimination of compensation for teachers with
large classes; discontinuance of a longevity bonus; and suspension
of other compensation.
Mr. Roberts' order also imposed a 10% pay cut on the Detroit
Association of Educational Office Employees and a 20% mandatory
contribution for medical and dental insurance contribution, among
other things; and imposed a 20% mandatory insurance contribution
on the Detroit Federation of Paraprofessionals.
Mr. Roberts made these changes after Robert Bobb, the former
emergency manager, had "agreed to provide to employees under
collective bargaining agreements . . . that currently are in
effect," the unions say.
Mr. Bobb in 2009 had persuaded the Detroit Federation of Teachers
to give up about $87 million in concessions to the school district
to "help the district avoid bankruptcy, even with a drop in
student population in the next school year," according to the
complaint.
That agreement was to be effective through June 2013. But
Mr. Roberts changed it.
The unions seek a restraining order and injunction, claiming that
without it, "the district's employees, who have faithfully served
the district and its students and who have given back millions of
dollars in hard-won wages and benefits in recently negotiated
agreements, will again be forced to bear the brunt of the
district's fiscal woes, this time in violation of their
constitutional rights."
Mr. Roberts' ukase will "effect an unconstitutional taking of
private property without just compensation in violation of the
Fifth Amendment" and of the Contract Clause of the U.S.
Constitution, the unions say.
The unions say that the school district posted on its Web site
that Mr. Roberts' cuts to union contracts would save the district
$81.1 million.
The unions seek an injunction and a declaratory judgment that Mr.
Roberts' cuts are unconstitutional.
A copy of the Complaint in Detroit Federation of Teachers American
Federation of Teaches Local 231, et al. v. Roberts, et al., Case
No. 11-cv-13392 (E.D. Mich.), is available at:
http://www.courthousenews.com/2011/08/08/DetroitTeachers.pdf
The Plaintiffs are represented by:
Andrew Nickelhoff, Esq.
Marshall J. Widick, Esq.
SACHS WALDMAN, P.C.
1000 Farmer Street
Detroit, MI 48226
Telephone: (313) 965-3464
E-mail: anickelhoff@sachswaldman.com
mwidick@sachswaldman.com
DOLLAR TREE: Judge Decertifies Store Managers' Wage Class Action
----------------------------------------------------------------
Linda Coady, writing for Westlaw Journals, reports that a
California federal judge has decertified a class of Dollar Tree
store managers who brought wage-and-hour claims against the
company, finding that recent developments in class-action law make
continued certification inappropriate.
U.S. District Judge Samuel Conti of the Northern District of
California cited the U.S. Supreme Court's recent decision in a
massive class action against Wal-Mart in support of his conclusion
that the class in this case had not produced common proof of
class-wide liability.
In Wal-Mart v. Dukes, 131 S. Ct. 2541 (June 20, 2011), the high
court reversed certification of a class of female Wal-Mart
employees who claimed the company denied them equal pay and
promotions.
The 5-4 decision emphasized that "it was not enough to pose common
questions; rather those questions must be subject to common
resolution," Judge Conti said.
In the suit against Dollar Tree, the plaintiffs claimed they were
misclassified as exempt from state wage-and-hour provisions, which
prevented them from getting overtime.
They offered their payroll certification forms as proof, but Judge
Conti found this insufficient to show commonality for
certification purposes.
"Plaintiffs have failed to provide common proof to serve as the
'glue' that would allow a class-wide determination of how class
members spent their time on a weekly basis," he said.
The plaintiffs allege Dollar Tree improperly classifies its store
managers as executive-exempt employees under California and
federal labor laws. Laws providing for overtime do not cover an
exempt employee.
The plaintiffs argue that Dollar Tree required them to fill out
weekly payroll certifications to show that they spent more than
50% of their actual work time performing some 17 listed duties the
company maintains are "managerial," the opinion said."
The plaintiffs said that some store managers were not always
truthful when filling out those payroll certifications and should
have received overtime because they performed such tasks as
receiving product, distributing and storing merchandise, stocking,
and cashiering, all non-executive activities.
In May 2009, the court certified a class of 718 retail store
managers employed by Dollar Tree between Dec. 12, 2004, and
May 26, 2009.
Dollar Tree moved for decertification in June 2010, and the court
partially decertified the class and narrowed its definition,
reducing the class to 273 members.
Judge Conti revisited the issue of certification again during a
hearing on trial plans submitted by Dollar Tree and the
plaintiffs.
Concerned about recent judicial decisions since the partial
decertification order, the judge asked the parties for briefs on
whether continued decertification was appropriate.
Two decisions in particular were the focus of Judge Conti's
concern: Marlo v. United Parcel Service, 2011 WL 1598354 (9th Cir.
Apr. 28, 2011), and Dukes.
In Marlo, the appeals court decided that the plaintiffs could not
rely on representative testimony without providing a reliable way
to extrapolate that testimony to the class as a whole. In the
suit against Dollar Tree, the plaintiffs had suggested allowing
representative workers to testify about how they filled out their
payroll certifications.
Judge Conti concluded that decertification of the class was
warranted.
The judge disagreed with the plaintiffs' contention that their
payroll certification forms could provide proof that class members
were spending more than 51% of their time on managerial duties in
any given work week. Instead, plaintiffs must rely on individual
testimony by class members at trial, he said.
A class-action plaintiff is required to produce common proof of
class-wide liability in order to justify class certification, and
that is not present here, the judge explained.
Judge Conti also noted that since issuing the partial
certification order, he had learned that about 60% of class
members stated under oath that either:
* They were not truthful when submitting their weekly payroll
certifications.
* Their "yes" responses did not indicate they had spent more
than 50% of their actual work time on the duties listed on the
form.
Finally, the judge rejected the plaintiffs' plan to make their
case at trial through representative testimony. There is no
reliable way to extrapolate from the testimony of a few exemplar
class members to the class as a whole, Judge Conti said.
The judge decertified the class and notified class counsel that
they could move to equitably toll the limitations period on the
claims of former class members to preserve their right to pursue
individual claims against Dollar Tree.
Cruz et al. v. Dollar Tree Stores Inc., Nos. 07-2050 and 07-4012,
2011 WL 2682967 (N.D. Cal. July 8, 2011).
E*TRADE FINANCIAL: Appeal From "Oughtred" Suit Dismissal Pending
----------------------------------------------------------------
An appeal from the dismissal of the class action lawsuit commenced
by John W. Oughtred in New York remains pending, according to
E*TRADE Financial Corporation's August 4, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2011.
On April 2, 2008, a class action complaint alleging violations of
the federal securities laws was filed by John W. Oughtred on his
own behalf and on behalf of all others similarly situated in the
United States District Court for the Southern District of New York
against the Company. Plaintiff contends, among other things, that
the Company committed various sales practice violations in the
sale of certain auction rate securities to investors between
April 2, 2003, and February 13, 2008, by allegedly misrepresenting
that these securities were highly liquid and safe investments for
short term investing. On December 18, 2008, plaintiffs filed
their first amended class action complaint. Defendants filed
their pending motion to dismiss plaintiffs' amended complaint on
February 5, 2009, and briefing on defendants' motion to dismiss
was completed on April 15, 2009. Plaintiffs seek to recover
damages in an amount to be proven at trial, or, in the
alternative, rescission of auction rate securities purchases, plus
interest and attorney's fees and costs. On March 18, 2010, the
District Court dismissed the complaint without prejudice. On
April 22, 2010, Plaintiffs amended their complaint. The Company
has moved to dismiss the amended complaint. By an Order dated
March 31, 2011, the Court granted E*TRADE's motion and dismissed
the action with prejudice. On May 2, 2011, Plaintiffs filed a
Notice of Appeal.
E*TRADE FINANCIAL: Continues to Defend "Freudenberg" Suit
---------------------------------------------------------
E*TRADE Financial Corporation continues to defend itself against a
class action lawsuit commenced by Larry Freudenberg in New York,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On October 2, 2007, a class action complaint alleging violations
of the federal securities laws was filed in the United States
District Court for the Southern District of New York against the
Company and its then Chief Executive Officer and Chief Financial
Officer, Mitchell H. Caplan and Robert J. Simmons, by Larry
Freudenberg on his own behalf and on behalf of others similarly
situated (the "Freudenberg Action"). On July 17, 2008, the trial
court consolidated this action with four other purported class
actions, all of which were filed in the United States District
Court for the Southern District of New York and which were based
on the same facts and circumstances. On January 16, 2009,
plaintiffs served their consolidated amended class action
complaint in which they also named Dennis Webb, the Company's
former Capital Markets Division President, as a defendant.
Plaintiffs contend, among other things, that the value of the
Company's stock between April 19, 2006, and November 9, 2007, was
artificially inflated because the defendants issued materially
false and misleading statements and failed to disclose that the
Company was experiencing a rise in delinquency rates in its
mortgage and home equity portfolios; failed to timely record an
impairment on its mortgage and home equity portfolios; materially
overvalued its securities portfolio, which included assets backed
by mortgages; and based on the foregoing, lacked a reasonable
basis for the positive statements made about the Company's
earnings and prospects.
Plaintiffs seek to recover damages in an amount to be proven at
trial, including interest and attorneys' fees and costs.
Defendants filed their motion to dismiss on April 2, 2009, and
briefing on defendants' motion to dismiss was completed on
August 31, 2009. On May 11, 2010, the Court issued an order
denying defendants' motion to dismiss. The Company filed an
Answer to the Complaint on June 25, 2010. Fact discovery and
expert discovery are expected to conclude on May 15, 2012. The
Company says it intends to vigorously defend itself against these
claims.
E*TRADE FINANCIAL: Still Defends "Roling" Suit in California
------------------------------------------------------------
E*TRADE Financial Corporation continues to defend itself against a
class action lawsuit commenced by Joseph Roling in California,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On February 3, 2010, a class action complaint was filed in the
United States District Court for the Northern District of
California against E*TRADE Securities LLC by Joseph Roling on his
own behalf and on behalf of all others similarly situated. The
lead plaintiff alleges that E*TRADE Securities LLC unlawfully
charged and collected certain account activity fees from its
customers. Claimant, on behalf of himself and the putative class,
asserts breach of contract, unjust enrichment and violation of
California Civil Code Section 1671 and seeks equitable and
injunctive relief for alleged illegal, unfair and fraudulent
practices under California's Unfair Competition Law, California
Business and Professional Code Section 17200 et seq. The
plaintiff seeks, among other things, certification of the class
action on behalf of alleged similarly situated plaintiffs,
unspecified damages and restitution of amounts allegedly
wrongfully collected by E*TRADE Securities LLC, attorneys fees and
expenses and injunctive relief. The Company moved to transfer
venue on the case to the Southern District of New York; that
motion was denied. The Court granted E*TRADE's motion to dismiss
in part and denied the motion to dismiss in part. The Court
bifurcated discovery to permit initial discovery on individual
claims and class certification. Discovery on the merits will not
commence until a class could be certified; the Court has set a
date in 2012 for conclusion of discovery. The Company says it
intends to vigorously defend itself against the claims raised in
this action.
EQUITITRUST: Piper Alderman to Launch Class Action This Month
-------------------------------------------------------------
Colin Kruger, writing for The Sydney Morning Herald, reports that
the law firm Piper Alderman has confirmed it will launch a class
action law suit against the Gold Coast mortgage fund operator
Equititrust this month with a statement of claim expected to be
lodged against within weeks.
"We have instructions to commence the class action," said a
Piper Alderman partner, Amanda Banton. "Interest in the class
action has been extremely high."
The law firm signed up investors who have more than AU$33 million
invested in the flagship Equititrust Income Fund. Ms. Banton said
this has given the litigation funder backing the class action the
critical mass needed to go ahead. EIF investors have yet to be
updated on the losses expected on the AU$200 million they
invested. Piper Alderman has been investigating potential claims
against EIF's directors for allegedly breaching their statutory
and fiduciary duties.
This includes payments to Equititrust, as the fund's manager,
which the law firm does not consider bona fide. In the second
half of last year EIF paid Equititrust AU$4 million, leaving the
fund with almost no cash by year's end.
Also under investigation are possible unauthorized, imprudent
investments by the company. This includes AU$70 million loaned to
companies associated with the twice-bankrupt developer, Dudley
Quinlivan, for a project that Equititrust now estimates to be
worth as little as AU$20 million.
Equititrust completed a review of the value of EIF assets in
June but has yet to provide an update to the market based on this
review. Based on valuations from April this year, investors are
estimated to have lost up to 20% of their money.
The only announcements from Equititrust have been concerned with
shoring up its corporate governance. Last week it appointed an
external custodian for the first time to hold the EIF assets and
appointed David Jackson, QC, as a director. "Equititrust Limited
will continue to act as responsible entity of EIF and . . . to
make all decisions as to the assets of the fund and have all
communication with unitholders as to their investment," the
company said in a prepared statement.
The company was forced to back down on the claimed independence of
another director, David Tucker, admitting "it may be suggested
that Mr. Tucker is not an independent director" as the law firm
where he is a partner, Tucker & Cowen Solicitors, is a
"substantial provider" of legal services to Equititrust.
Equititrust said the number of defaulting loans means the fund's
legal costs will rise as it appoints receivers, exercises power of
sale over properties and takes action against guarantors.
EURONET WORLDWIDE: Wage and Hour Violations Suit Still Pending
--------------------------------------------------------------
A class action lawsuit commenced against a subsidiary of Euronet
Worldwide, Inc., remains pending, according to the Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
During 2010, the Company's subsidiary, Continental Exchange
Solutions, Inc., doing business as Ria Financial Services, was
served with a class action lawsuit filed by a former employee for
alleged wage and hour violations related to overtime and meal and
rest period requirements under California law. California law
regarding an employer's obligations to provide lunch and rest
periods is under review by the California Supreme Court.
The proceeding is in the preliminary stages and the Company says
it intends to vigorously defend the lawsuit. At the current stage
of the proceedings, the Company considers that it is not possible
to determine a range of loss, if any, that may arise from this
lawsuit.
FACEBOOK INC: Seeks Dismissal of Class Action
---------------------------------------------
Joe Harris at Courthouse News Service reports that Facebook asked
a federal judge to dismiss a class action accusing it of
exploiting children, claiming that Facebook users' "like"
statements qualify as matters of public interest.
"Expressions of consumer opinion, such as the plaintiffs' Like
statements challenged here, have repeatedly qualified as matters
of public interest under the First Amendment," Facebook claimed in
a motion seeking "more definite statement or dismissal."
On behalf of their children, Melissa Dawes and Jennifer DeYoung
filed a class action on June 1, claiming Facebook's non-negotiable
terms of membership that say its members are subject to such
advertising and marketing do not apply to minor children.
The plaintiffs say children lack the capacity to consent to the
use of their name and photographs for marketing, advertising and
selling of goods and services.
Facebook uses users' "Like" statements to advertise products.
Facebook claims republishing the "Likes" is protected and provides
a service.
"By republishing a user's name or likeness along with the true
statement -- already shared with the user's Friends -- that he or
she 'Likes' certain content being advertised on its Web site,
Facebook provides a forum for authentic endorsements by persons
who, without pecuniary motive, have expressed their approval of a
particular product, service, or cause," Facebook claims.
"This serves a particularly valuable public interest because the
information is republished only to the user's friends -- persons
for whom a user's opinion may be of particular interest, and with
whom the user has already decided to share that information.
Consequently, Facebook has a right under IRPA [Illinois Right of
Publicity Act] to republish information that the courts have
explicitly recognized relates to matters of public interest."
Facebook also claims that the plaintiffs failed to specify which
law it broke.
"Plaintiffs' vague references to unspecified 'state law' render
their claims unintelligible, prejudice Facebook's ability to
prepare its defense, and will hinder the Court's efforts to
evaluate the sufficiency of plaintiffs' claims," Facebook says.
"This defect requires dismissal and a more definite statement
under Federal Rule of Civil Procedure 12(e)."
Facebook cited a similar case in California Federal Court that was
dismissed.
Facebook seeks oral argument, and wants the complaint dismissed
with prejudice.
A copy of Facebook Inc.'s Motion for More Definite Statement or
Dismissal in E.K.D., et al. v. Facebook, Inc., Case No. 11-cv-
00461 (S.D. Ill.), is available at:
http://www.courthousenews.com/2011/08/08/FaceDismiss.pdf
Facebook Inc. is represented by:
Matthew D. Brown, Esq.
Jeffrey M. Gutkin, Esq.
COOLEY LLP
101 California Street, Fifth Floor
San Francisco, CA 94111-5800
Telephone: (415) 693-2000
E-mail: brownmd@cooley.com
jgutkin@cooley.com
- and -
Charles Swartwout, Esq.
BOYLE BRASHER LLC
5000 West Main Street
P.O. Box 23560
Belleville, IL 62223
Telephone: 618-277-9000
E-mail: cswartwout@boylebrasher.com
FBL FINANCIAL: Court Confirmed Reconsideration Denial in "Tabares"
------------------------------------------------------------------
The Los Angeles Superior Court confirmed its earlier denial of a
motion for reconsideration in a class action lawsuit against an
FBL Financial Group, Inc., subsidiary, according to the Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
Tabares v. EquiTrust Life Insurance Company, was filed in Los
Angeles Superior Court on May 5, 2008. Tabares is a California
class action on behalf of all persons who purchased certain
deferred index annuities from EquiTrust Life. The complaint
asserts a sub-class of purchasers that were age 60 or older at the
time of purchasing those annuities from EquiTrust Life.
Plaintiffs sought restitution and injunctive relief on behalf of
all class members, compensatory damages for breach of contract,
punitive and treble damages for common law fraud, and declaratory
relief. Plaintiffs' motion for class certification was heard on
June 22, 2010. On August 2, 2010, the trial court issued an Order
"Denying in Part and Granting in Part Class Certification." The
Court denied certification on Plaintiffs' core claims for fraud
and violation of the consumer protection statute. The Court did
grant certification on the claims for breach of contract (breach
of the covenant of good faith and fair dealing) and declaratory
relief. This certification does not represent a finding on the
merits with respect to Plaintiffs' claim, only that it meets the
criteria for the establishment of a class. In addition, the Court
dismissed the only class representative of "senior" status and
ordered the attorneys to confer and draft a suitable notice to be
sent to all class members. Following a subsequent hearing on
July 6, 2011, the Court confirmed its earlier denial of
Plaintiff's motion for reconsideration. Plaintiffs' counsel is
currently searching for an individual to represent this sub-class.
FBL FINANCIAL: Expects Ruling on Motion to Amend Complaint Soon
---------------------------------------------------------------
FBL Financial Group, Inc.'s subsidiary expects a court ruling by
mid-to-late August 2011 on a motion to add a claim for breach of
contract in a class action lawsuit pending in Arizona, according
to the Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Eller v. EquiTrust Life Insurance Company, was filed in the United
States District Court, District of Arizona, on January 12, 2009.
The original first named plaintiff, Mary Eller, was voluntarily
dismissed from the case in 2010. A single named plaintiff now
remains -- Paul Harrington. This purported national class action
originally included all persons who purchased EquiTrust Life
deferred index annuities, with one sub-class for all persons age
65 and older that purchased an EquiTrust Life index annuity
contract with a maturity date beyond the annuitant's actuarial
life expectancy; and a 30-state sub-class under various consumer
protection and unfair insurance practices statutes. Plaintiff
seeks compensatory damages; treble damages; consequential and
incidental damages; punitive damages; equitable and injunctive
relief including restitution, disgorgement, a constructive trust
and an equitable lien; and attorneys' fees. Plaintiff filed his
motion for class certification on June 24, 2011, and also filed a
motion to amend the complaint. Among other changes, Plaintiff's
proposed amended complaint drops several theories of liability,
reduces the index annuities at issue to four specific products,
reduces the number of states included in each class, drops the
claim for conspiracy, and adds a claim for breach of
contract/breach of implied covenant of fair dealing. EquiTrust
Life opposed Plaintiff's request to add this new breach of
contract claim, and the Company expects the Court's ruling by mid-
to-late August 2011. The Court also recently entered an amended
scheduling order requiring dispositive motions to be filed by
September 23, 2011, and EquiTrust Life's opposition to Plaintiff's
class certification motion to be filed by October 3, 2011.
Additional responsive briefing by the parties will be on a
staggered basis, to be completed by December 16, 2011.
FORCE PROTECTION: Settlement Order and Judgment Now Final
---------------------------------------------------------
The order and final judgment approving a settlement in the
consolidated class action lawsuit against Force Protection, Inc.,
has become final, according to the Company's August 4, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On March 10, 2008, the first of ten related class action lawsuits
was filed against the Company and certain of its former and
current directors and officers in the U.S. District Court for the
District of South Carolina, Charleston Division, on behalf of a
purported class of investors who purchased or otherwise acquired
the Company's stock during the period between August 14, 2006, and
February 29, 2008. The complaints sought class certification, and
the allegations include, but are not limited to, that the
defendants violated the Securities Exchange Act of 1934 and made
false or misleading public statements and/or omissions concerning
the Company's business, internal controls, and financial results.
The individual class action lawsuits were consolidated on June 10,
2008, under the caption In Re Force Protection, Inc. Securities
Litigation, Action No. 2:08-cv-845-CWH (Securities Class Action).
The parties to the Securities Class Action filed a stipulation of
settlement on September 27, 2010, calling for payment of $24
million to the settlement class. Following a hearing on
January 25, 2011, the Court issued an Order and Final Judgment
approving the settlement on March 8, 2011. The Order and Final
Judgment was not appealed and, hence, is final.
Neither the Company nor any of its present and former directors
and officers has admitted any wrongdoing or liability in
connection with the settlement. Additionally, the settlement
provides that the parties have reached a mutually agreeable
resolution of the case to avoid protracted and expensive
litigation, including the outcome and risks associated with
proceeding. In connection with the shareholder class action and
Federal Derivative Action settlements, the Company recorded an
$8.5 million charge to General and administrative expenses in the
third quarter of 2010. As of December 31, 2010, the Company
recorded a $24.0 million asset within Other current assets in the
accompanying unaudited condensed consolidated balance sheet,
reflecting the escrow account that related to the class action
settlement, as well as a $24.0 million litigation reserve for the
class action settlement, which was included in Other current
liabilities. Since all legal contingencies that could have
affected the class action settlement were exhausted during the
second quarter of 2011, this liability and related asset were
removed from the accompanying unaudited condensed consolidated
balance sheet as of June 30, 2011. However, the Company has an
asset account and a liability account based on management's
estimates and beliefs, to address certain litigation-related
matters.
FORTINET INC: Stockholder Suit Remains Pending in California
------------------------------------------------------------
A class action lawsuit filed by a former stockholder of Fortinet,
Inc., remains pending in California.
In April 2010, an individual, a former stockholder of Fortinet,
filed a class action lawsuit against the Company in the Superior
Court of the State of California for the County of Los Angeles
alleging violation of various California Corporations' Code
sections and related tort claims alleging misrepresentation and
breach of fiduciary duty regarding the 2009 repurchase by Fortinet
of shares of its stock while the Company was a privately-held
company. In September 2010, the Court granted the Company's motion
to transfer the case to the California Superior Court for Santa
Clara County and the plaintiff has filed an amended complaint in
the Superior Court to add individual defendants, among other
amendments. The Company cannot currently predict the outcome of
this dispute nor determine the amount or a reasonable range of
potential loss, if any.
No updates were reported in the Company's August 4, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Fortinet Inc. -- http://www.fortinet.com/-- is a worldwide
provider of network security appliances and a market leader in
unified threat management. The company's products and
subscription services provide broad, integrated and high-
performance protection against dynamic security threats while
simplifying the IT security infrastructure. The company's
customers include enterprises, service providers and government
entities worldwide, including the majority of the 2009 Fortune
Global 100. Fortinet's flagship FortiGate(R) product delivers
ASIC-accelerated performance and integrates multiple layers of
security designed to help protect against application and network
threats. Fortinet's broad product line goes beyond UTM to help
secure the extended enterprise -- from endpoints, to the perimeter
and the core, including databases and applications. Fortinet is
headquartered in Sunnyvale, Calif., with offices around the world.
GALEOS CAFE: Settles Class Action Over Salad Dressing Labels
------------------------------------------------------------
A settlement has been reached in several class action lawsuits
filed against Galeos Cafe, LLC, the maker of Galeos Salad
Dressings and Spreads. The lawsuits were consolidated into a
single action, Cooperman et al. v. Galeos, LLC, et al., in the
United States District Court for the Central District of
California, Southern Division, Case No. SACV 10-018I5-NS (FFMx).
The lawsuits alleged that some of the nutritional information on
Galeos Salad Dressings labels was incorrect, and that the
dressings actually had a higher fat content than was stated on the
labels. Galeos denies these claims and contends that the fat
content of its labels was accurate and remains accurate.
Who's Included? You are included if you purchased Galeos Salad
Dressings, for personal use and not for resale, during the period
November 29, 2006 to May 3,2011.
What Can You Get? If you purchased Galeos Products during the
Class Period and have proof(s) of purchase, you may obtain a full
refund for your purchases. If you do not have proof(s) of
purchase, you may be entitled to the retail value of up to three
(3) bottles of Galeos products.
How to Participate? If you wish to receive a refund of Galeos
products you purchased, you must visit http://galeoscafe.comand
submit a complete and accurate refund request. To do so, click on
the Lawsuit Settlement link at the top of the homepage. The
Lawsuit Settlement webpage contains instructions for submitting
your electronic request. The deadline to submit a refund or
replacement request is December 31, 2011.
Your Other Rights? If you do nothing, your rights will be
affected. If you do not want to be legally bound by the
Settlement, you must take action to exclude yourself from the
Settlement. The deadline to exclude yourself is December 31,
2011. If you do not exclude yourself, you will not be able to sue
Galeos for any claim relating in any way to the lawsuits. If you
participate in the Settlement, you may formally object to it by
October 26, 2011. A hearing will be held before the Honorable
James V. Selna in Courtroom 10C, of the above-mentioned Court,
located at 411 W. 4th Street, Santa Ana, California 92701, at 1:30
p.m., on July 25, 2011, to determine whether the proposed
settlement should be approved by the Court and whether a proposed
plan of refunds and replacement products should be approved as
fair, adequate, and reasonable. You can appear at the hearing, but
you don't have to. You can hire your own attorney, at your own
expense, to appear or speak for you at the hearing.
Additional inquiries may be made to Plaintiffs' Lead Counsel:
PARIS ACKERMAN & SCHMIERER
Attention: David S. Paris, Esq.
101 Eisenhower Parkway
Roseland, NJ 07068
Telephone: (973) 228-6667
GOOGLE INC: Accused of Snooping on Non-Gmail Accountholders
-----------------------------------------------------------
Jonny Bonner at Courthouse News Service reports that Google can
offer gmail for free because it snoops on electronic messages that
non-gmail accountholders send to people with accounts, and sells
the information to use in targeted ads, a class action claims.
Lead plaintiff Debra Marquis says Google violates state wiretap
law: specifically MGL c 272 Sec. 99 (C)(1), the wiretap section,
the state law about "Crimes against Chastity, Morality, Decency
and Good Order."
Ms. Marquis says Google intercepted and snooped e-mail from her
AOL account to the personal accounts of gmail holders.
"Google touts Gmail as a 'free' service, but makes money from
Gmail through selling advertising," according to the complaint in
Suffolk County Court.
The complaint continues: "Google intercepts, discloses or scans
emails sent from non-Gmail users to Gmail users within the meaning
of MGLC 272, Sec. 99(Q) [the Massachusetts Wiretapping Act],
acquires keywords or content from non-Gmail users' emails, and
then sends ads related to those keywords or content. For an
example, an email exchange between a Gmail user and a non-Gmail
user about cars would result in Google sending an ad for a car
manufacturer to that Gmail user."
The class adds: "Google now uses a new advertising system dubbed
'interest-based advertising.' Instead of basing advertising off
of keywords found in a single email, as it did originally, Google
intercepts, discloses or scans numerous emails exchanged between
Gmail users and non-Gmail users."
Ms. Marquis says she has had an AOL account since the 1990s, and
that "Google has used its proprietary technology to secretly
intercept, disclose or scan emails that plaintiffs have exchanged
with Gmail users."
Ms. Marquis says "Google's intentional, willful, and secret use of
a device to intercept and use electronic communications for
monetary gain without the consent of both parties violates MGLC
272 Sec. 99(c)(1) and Sec. 99(c)(3)."
Ms. Marquis seeks class certification and actual or statutory
damages "at the rate of $100 per day for each day of violation or
$1,000, whichever is higher," and disgorgement of Google's profits
from its snooping.
Ms. Marquis is represented by:
Jason Adkins, Esq.
ADKINS, KELSTON & ZAVEZ
90 Canal Street, Suite 500
Boston, MA 02114
Telephone: (617) 367-1040
E-mail: jadkins@akzlaw.com
GREEN MOUNTAIN: Briefing on Dismissal Motions Not Yet Completed
---------------------------------------------------------------
Briefing on motions to dismiss a consolidated putative securities
fraud class action captioned Horowitz v. Green Mountain Coffee
Roasters, Inc. has not yet been completed, according to the
Company's August 3, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 25, 2011.
The consolidated putative securities fraud class action, organized
under the caption Horowitz v. Green Mountain Coffee Roasters,
Inc., Civ. No. 2:10-cv-00227, is pending in the United States
District Court for the District of Vermont before the Honorable
William K. Sessions, III. The underlying complaints in the
consolidated action allege violations of the federal securities
laws in connection with the Company's disclosures relating to its
revenues and its forward guidance. The complaints include counts
for violation of Section 10(b) of the Securities Exchange Act of
1934, as amended and Rule 10b-5 against all defendants, and for
violation of Section 20(a) of the Exchange Act against the officer
defendants. The plaintiffs seek to represent all purchasers of the
Company's securities between July 28, 2010 and September 28, 2010
or September 29, 2010. The complaints seek class certification,
compensatory damages, equitable and/or injunctive relief,
attorneys' fees, costs, and such other relief as the court should
deem just and proper. Pursuant to the Private Securities
Litigation Reform Act of 1995, 15 U.S.C. Section 78u-4(a)(3),
plaintiffs had until November 29, 2010 to move the court to serve
as lead plaintiff of the putative class. On December 20, 2010, the
court appointed Jerzy Warchol, Robert M. Nichols, Jennifer M.
Nichols, Marc Schmerler and Mike Shanley lead plaintiffs and
approved their selection of Glancy Binkow & Goldberg LLP and
Robbins Geller Rudman & Dowd LLP as co-lead counsel and the Law
Office of Brian Hehir and Woodward & Kelley, PLLC as liaison
counsel. On December 29, 2010 and January 3, 2011, two of the
plaintiffs in the underlying actions in the consolidated
proceedings, Russell Blank and Dan M. Horowitz, voluntarily
dismissed their cases without prejudice. Pursuant to a stipulated
motion granted by the court on November 29, 2010, the lead
plaintiffs filed a consolidated complaint on February 23, 2011,
and defendants moved to dismiss that complaint on April 25, 2011.
Briefing on the motions to dismiss has not yet been completed.
The Company and the other defendants intend to vigorously defend
the pending lawsuits. Additional lawsuits may be filed and, at
this time, the Company is unable to predict the outcome of these
lawsuits, the possible loss or range of loss, if any, associated
with the resolution of these lawsuits or any potential effect they
may have on the Company or its operations.
Green Mountain Coffee Roasters, Inc. manages its operations
through three operating segments, the Specialty Coffee business
unit, the Keurig business unit and the Canadian business unit
created primarily from the recently acquired Van Houtte business.
HARMONY GOLD: Settles US Securities Class Action
------------------------------------------------
Brindaveni Naidoo, writing for miningweekly.com, reports that
South African miner Harmony Gold said on August 8 it had reached a
"mutually acceptable settlement" with the lead plaintiff in the
class action filed against it in the U.S. in 2008.
The action was instituted on the basis of alleged losses suffered
by investors in certain securities traded in U.S. securities
markets between April 25 and August 7, 2007.
CEO Graham Briggs said a mediated settlement process was followed
to avoid protracted and expensive litigation.
Schiffrin Barroway Topaz & Kessler filed the lawsuit in a New York
district court, on behalf of buyers and sellers of Harmony
securities, prior to Mr. Briggs's appointment as CEO. It was
alleged that Harmony misrepresented facts regarding its costs,
production and earnings in 2007.
Corporate and investor relations executive Marian van der Walt
told Mining Weekly Online that Harmony Gold maintained that it
"did not act wrongly and would not admit to any liability" with
regard to the matter.
"As soon as we discovered the error in the financial system during
the stated period, it was immediately disclosed to the market,"
she said.
The settlement requires final approval from the court in a hearing
scheduled for November 10. If approved, the settlement would
result in the dismissal of all claims against Harmony.
"Management will continue to focus on what is important --
producing safe, profitable ounces and report its results in a
transparent and responsible manner," Mr. Briggs said.
HARTFORD FINANCIAL: Awaits Final Settlement Pact in Conn. Suit
--------------------------------------------------------------
Parties in a consolidated class action in Connecticut over
violations of the Employee Retirement Income Security Act, have
yet to execute a final settlement agreement, according to The
Hartford Financial Services Group, Inc.'s August 3, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
In November and December 2008, following a decline in the share
price of the Company's common stock, seven putative class action
lawsuits were filed in the United States District Court for the
District of Connecticut on behalf of certain participants in the
Company's Investment and Savings Plan, which offers the Company's
common stock as one of many investment options. These lawsuits
have been consolidated, and a consolidated amended class-action
complaint was filed on March 23, 2009, alleging that the Company
and certain of its officers and employees violated ERISA by
allowing the Plan's participants to invest in the Company's common
stock and by failing to disclose to the Plan's participants
information about the Company's financial condition. The lawsuit
seeks restitution or damages for losses arising from the
investment of the Plan's assets in the Company's common stock
during the period from December 10, 2007 to the present. In
January 2010, the district court denied the Company's motion to
dismiss the consolidated amended complaint. In February 2011, the
parties reached an agreement in principle to settle on a class
basis for an immaterial amount. The settlement is contingent upon
the execution of a final settlement agreement and preliminary and
final court approval.
Founded in 1810, The Hartford Financial Services Group, Inc. is
one of the largest insurance and investment companies based in the
United States, with offices in the United States, Japan, the
United Kingdom, Canada, Brazil and Ireland.
HARTFORD FINANCIAL: Bid to Dismiss Securities Suit Still Pending
----------------------------------------------------------------
A motion to dismiss a class action lawsuit filed in New York is
still pending, according to The Hartford Financial Services Group,
Inc.'s August 3, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
The Company and certain of its present or former officers are
defendants in a putative securities class action lawsuit filed in
the United States District Court for the Southern District of New
York in March 2010. The operative complaint, filed in October
2010, is brought on behalf of persons who acquired Hartford common
stock during the period of July 28, 2008 through February 5, 2009,
and alleges that the defendants violated Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5, by making false or
misleading statements during the alleged class period about the
Company's valuation of certain asset-backed securities and its
effect on the Company's capital position. The Company disputes the
allegations and has moved to dismiss the complaint.
Founded in 1810, The Hartford Financial Services Group, Inc. is
one of the largest insurance and investment companies based in the
United States, with offices in the United States, Japan, the
United Kingdom, Canada, Brazil and Ireland.
HEADWATERS INC: Appeal in "Adtech" Suit Remains Pending
-------------------------------------------------------
Headwaters Incorporated's appeal from a $16 million judgment in
the lawsuit involving former stockholders of Adtech, Inc., remains
pending, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
In 1998, Headwaters entered into a technology purchase agreement
with James G. Davidson and Adtech, Inc. The transaction
transferred certain patent and royalty rights to Headwaters
related to a synthetic fuel technology invented by Davidson. In
2002, Headwaters received a summons and complaint from the United
States District Court for the Western District of Tennessee filed
by former stockholders of Adtech alleging, among other things,
fraud, conspiracy, constructive trust, conversion, patent
infringement and interference with contract arising out of the
1998 technology purchase agreement entered into between Davidson
and Adtech on the one hand, and Headwaters on the other. All
claims against Headwaters were dismissed in pretrial proceedings
except claims of conspiracy and constructive trust. The District
Court certified a class comprised of substantially all purported
stockholders of Adtech, Inc. The plaintiffs sought compensatory
damages from Headwaters in the approximate amount of $43.0 million
plus prejudgment interest and punitive damages. In June 2009, a
jury reached a verdict in a trial in the amount of $8.7 million
for the eight named plaintiffs representing a portion of the class
members.
In September 2010, a jury reached a verdict after a trial for the
remaining 46 members of the class in the amount of $7.3 million.
In April 2011, the trial court entered an order for a constructive
trust in the amount of approximately $16 million (the same amount
as the sum of the previous jury verdicts), denied all other
outstanding motions, and entered judgment against Headwaters in
the total approximate amount of $16 million, in accordance with
the verdicts and order on constructive trust. The court denied
all post-judgment motions by the parties. Headwaters has filed a
supersedeas bond and a notice of appeal from the judgment to the
United States Court of Appeals for the Federal Circuit.
Plaintiffs have also filed notice of an appeal. Because the
resolution of the litigation is uncertain, legal counsel and
management cannot express an opinion as to the ultimate amount, if
any, of Headwaters' liability.
HEADWATERS INC: Discovery Is Ongoing in Suit vs. Eldorado
---------------------------------------------------------
Discovery is underway in the claim of negligence against a
subsidiary of Headwaters Incorporated, according to the Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
Archstone owns an apartment complex in Westbury, New York.
Archstone alleges that moisture penetrated the building envelope
and damaged moisture sensitive parts of the buildings which began
to rot and grow mold. In 2008, Archstone evicted its tenants and
began repairing the twenty-one apartment buildings. Also in 2008,
Archstone filed a complaint in the Nassau County Supreme Court of
the State of New York against the prime contractor and its
performance bond surety, the designer, and the Company's
subsidiary, Eldorado Stone, LLC, which supplied architectural
stone that was installed by others during construction. The prime
contractor then sued over a dozen subcontractors who in turn sued
others. Archstone claims as damages approximately $36.0 million
in repair costs, $15.0 million in lost lease payments, $7.0
million paid to tenants who sued Archstone, and $7.0 million for
class action defense fees, plus prejudgment interest and
attorney's fees. Eldorado Stone answered denying liability and
tendered the matter to its insurers who are paying for the defense
of the case. The court has dismissed all claims against Eldorado
Stone, except the claim of negligence, and discovery is underway.
Because the resolution of the action is uncertain, legal counsel
and management cannot express an opinion concerning the likely
outcome of this matter, the liability of Eldorado Stone, if any,
or the insurers' obligation to indemnify Eldorado Stone against
loss, if any.
HUNTSMAN CORP: Final Hearing on Kansas Class Deal Set for Sept. 27
------------------------------------------------------------------
The hearing to consider final approval of a class settlement
Huntsman Corporation negotiated to resolve a consolidated
antitrust suit in Kansas has been set for Sept. 27, 2011, the
Company disclosed in its Aug. 4, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
The Company has been named as a defendant in civil class action
antitrust suits alleging that between 1999 and 2004, it conspired
with Bayer, BASF, Dow and Lyondell to fix the prices of MDI, TDI,
polyether polyols, and related systems -- "polyether polyol
products -- sold in the U.S. in violation of the federal Sherman
Act. These cases are consolidated as the "Polyether Polyols"
cases in multidistrict litigation pending in the U.S. District
Court for the District of Kansas.
In addition, the Company and the other Polyether Polyol defendants
have been named as defendants in three civil antitrust suits
brought by certain direct purchasers of polyether polyol products
that opted out of the class certified in the Kansas multidistrict
litigation. The relevant time frame for these cases is 1994 to
2004 and they are referred to as the "direct action cases."
The class action and the direct action cases have been
consolidated in the Kansas court for the purposes of discovery and
other pretrial matters. Discovery in the direct action cases is
ongoing and the Company does not anticipate a trial of the direct
action cases until 2013.
On May 26, 2011, the Company entered into a settlement agreement
with the class plaintiffs. Although it vigorously denies any
wrongdoing alleged in the litigation, the Company determined to
enter into the settlement to avoid the substantial burdens and
uncertainties inherent in complex business litigation.
Under the settlement agreement, the Company paid $11 million into
an escrow fund for the benefit of the class on June 27, 2011,
after the court preliminarily approved the settlement. The
Company will pay an additional $11 million within one year
thereafter and a third $11 million payment within two years of the
initial payment. In exchange for these payments, the Company will
receive from the class a release and discharge of all claims
against it, as described in the settlement agreement. The
settlement is subject to final approval by the court after notice
is given to the class members. The hearing on final approval is
scheduled for September 27, 2011.
The Company fully accrued for this matter in prior quarters. The
settlement does not resolve the direct action cases nor the other
pending antitrust litigation, which are:
* Two purported class action cases, which were filed May 5 and
17, 2006 in the Superior Court of Justice, Ontario Canada and
Superior Court, Province of Quebec, District of Quebec, by
direct purchasers of MDI, TDI and polyether polyols and by
indirect purchasers of these products. The class
certification hearing is scheduled for April 2, 2012. A
purported class action case filed February 15, 2002, by
purchasers of products containing rubber and urethanes
products and pending in Superior Court of California, County
of San Francisco is stayed pending resolution of the Kansas
multidistrict litigation. The plaintiffs in each of these
matters make similar claims against the defendants as the
class plaintiffs in the Kansas multidistrict litigation.
* The Company has been named as a defendant in two purported
class action civil antitrust suits alleging that the Company
and its co-defendants and other co-conspirators conspired to
fix prices of titanium dioxide sold in the U.S. between at
least March 1, 2002 and the present. The cases were filed on
February 9 and 12, 2010 in the U.S. District Court for the
District of Maryland and a consolidated complaint was filed
on April 12, 2010. The other defendants named in this matter
are E.I. du Pont de Nemours and Company, Kronos Worldwide
Inc., Millennium Inorganic Chemicals, Inc. and the National
Titanium Dioxide Company Limited (d/b/a Cristal). A class
certification hearing is scheduled for August 16, 2012, and
trial is set to begin September 9, 2013. Discovery is
ongoing.
In all of the antitrust litigation currently pending against the
Company, the plaintiffs generally are seeking injunctive relief,
treble damages, costs of suit and attorneys fees. The Company is
not aware of any illegal conduct by it or any of its employees.
Nevertheless, the Company has incurred costs relating to these
claims and could incur additional costs in amounts material to it.
Huntsman Corporation is a manufacturer of differentiated organic
chemical products and of inorganic chemical products. The
Company's products comprise a broad range of chemicals and
formulations, which the Company markets globally to a diversified
group of consumer and industrial customers. The Company's
products are used in a wide range of applications, including those
in the adhesives, aerospace, automotive, construction products,
durable and nondurable consumer products, electronics, medical,
packaging, paints and coatings, power generation, refining,
synthetic fiber, textile chemicals and dye industries. The
Company is a global producer in many of key product lines,
including MDI, amines, surfactants, epoxy-based polymer
formulations, textile chemicals, dyes, maleic anhydride and
titanium dioxide.
IKANOS COMMUNICATIONS: Appeal From IPO Suit Dismissal Pending
-------------------------------------------------------------
An appeal from the dismissal of a consolidated securities class
action lawsuit against Ikanos Communications Inc. remains pending,
the Company disclosed in its August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 3, 2011.
In November 2006, three putative class action lawsuits were filed
in the United States District Court for the Southern District of
New York against the Company, its directors and two former
executive officers, as well as the lead underwriters for its
initial and secondary public offerings. The lawsuits were
consolidated and an amended complaint was filed on April 24, 2007.
The amended complaint sought unspecified damages for certain
alleged misrepresentations and omissions made by the Company in
connection with both its initial public offering in September 2005
and its follow-on offering in March 2006. On June 25, 2007, the
Company filed motions to dismiss the amended complaint, and on
March 10, 2008, the Court dismissed the case with prejudice. On
March 25, 2008, plaintiffs filed a motion for reconsideration, and
on June 12, 2008, the District Court denied the motion for
reconsideration. On October 15, 2008, plaintiffs appealed the
District Court's dismissal of the amended complaint and denial of
its motion for reconsideration to the United States Court of
Appeals for the Second Circuit. On September 17, 2009, the Court
of Appeals affirmed the District Court's dismissal of the amended
complaint, but vacated its judgment on the motion for
reconsideration and remanded the case to the District Court for
further proceedings. On May 13, 2010, the District Court granted
plaintiffs leave to file a motion to amend the pleadings.
Plaintiffs filed a motion for leave to amend the complaint on
June 11, 2010. The Company opposed on July 11, 2010, and on
November 23, 2010, the District Court denied the motion. On
January 6, 2011, plaintiffs filed a notice of appeal with the
United States Court of Appeals for the Second Circuit and, on
March 18, 2011, filed Appellant's Opening Brief. The Company
filed its opposition brief on June 17, 2011, and on July 5, 2011,
plaintiffs filed a reply. Both parties have requested oral
argument before the District Court. The Company cannot predict
the likely outcome of the appeal, and an adverse result could have
a material effect on its financial statements.
Ikanos Communications Inc. -- http://www.ikanos.com/-- engages
in the development and provision of programmable semiconductors
that enable fiber-fast broadband services over telephone
companies' existing copper lines. The company offers very-high-
bit-rate digital subscriber lines that are designed to address
different segments of the broadband semiconductor market for
carrier networks and subscriber premises equipment.
IMPAX LAB: "Budeprion" Parties May File Supplements by Oct. 7
-------------------------------------------------------------
Impax Laboratories, Inc., and other parties in the Budeprion XL
litigation may supplement their class certification briefs by
October 7, 2011, in view of a recent United States Supreme Court
decision in a case against Wal-Mart Stores, Inc., according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In June 2009, the Company was named a co-defendant in class action
lawsuits filed in California state court in an action titled Kelly
v. Teva Pharmaceuticals Indus. Ltd, et al., No. BC414812 (Calif.
Superior Crt. L.A. County). Subsequently, additional class action
lawsuits were filed in Louisiana (Morgan v. Teva Pharmaceuticals
Indus. Ltd, et al., No. 673880 (24th Dist Crt., Jefferson Parish,
LA.)), North Carolina (Weber v. Teva Pharmaceuticals Indus., Ltd.,
et al., No. 07 CV5002556, (N.C. Superior Crt., Hanover County)),
Pennsylvania (Rosenfeld v. Teva Pharmaceuticals USA, Inc. et al.,
No. 2:09-CV-2811 (E.D. Pa.)), Florida (Henchenski and Vogel v.
Teva Pharmaceuticals Industries Ltd., et al., No. 2:09-CV-470-FLM-
29SPC (M.D. Fla.)), Texas (Anderson v. Teva Pharmaceuticals
Indus., Ltd., et al., No. 3-09CV1200-M (N.D. Tex.)), Oklahoma
(Brown et al. v. Teva Pharmaceuticals Inds., Ltd., et al., No. 09-
cv-649-TCK-PJC (N.D. OK)), Ohio (Latvala et al. v. Teva
Pharmaceuticals Inds., Ltd., et al., No. 2:09-cv-795 (S.D. OH)),
Alabama (Jordan v. Teva Pharmaceuticals Indus. Ltd et al., No.
CV09-709 (Ala. Cir. Crt. Baldwin County)), and Washington (Leighty
v. Teva Pharmaceuticals Indus. Ltd et al., No. CV09-01640 (W. D.
Wa.)). All of the complaints involve Budeprion XL, a generic
version of Wellbutrin XL(R) that is manufactured by the Company
and marketed by Teva, and allege that, contrary to representations
of Teva, Budeprion XL is less effective in treating depression,
and more likely to cause dangerous side effects, than Wellbutrin
XL. The actions are brought on behalf of purchasers of Budeprion
XL and assert claims such as unfair competition, unfair trade
practices and negligent misrepresentation under state law. Each
lawsuit seeks damages in an unspecified amount consisting of the
cost of Budeprion XL paid by class members, as well as any
applicable penalties imposed by state law, and disclaims damages
for personal injury. The state court cases have been removed to
federal court, and a petition for multidistrict litigation to
consolidate the cases in federal court has been granted. These
cases and any subsequently filed cases will be heard under the
consolidated action entitled In re: Budeprion XL Marketing Sales
Practices, and Products Liability Litigation, MDL No. 2107, in the
United States District Court for the Eastern District of
Pennsylvania.
The Company filed a motion to dismiss and a motion to certify that
order for interlocutory appeal, both of which were denied.
Plaintiffs have filed a motion for class certification and the
Company has filed an opposition to that motion. The class
certification hearing was held on May 17, 2011. The parties may
supplement their class certification briefs on October 7, 2011, in
view of the United States Supreme Court decision in Wal-Mart
Stores, Inc. v. Duke. The parties may also file any motion for
summary judgment on September 23, 2011, including grounds related
to federal preemption of plaintiffs' claims based on the United
States Supreme Court decision in PLIVA, Inc. v. Mensing. No trial
date has been scheduled.
LENDER PROCESSING: Still Defends Fee Splitting Class Suits
----------------------------------------------------------
Lender Processing Services, Inc., continues to defend itself
against eight putative class actions alleging unauthorized
practice of law and unlawful fee splitting with attorneys,
according to the Company's August 4, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
The Company has been named in eight putative class actions filed
in Alabama, Florida and Mississippi that generally allege that the
defendants engaged in the unauthorized practice of law and
unlawful fee splitting with attorneys representing creditors in
bankruptcy proceedings. Each of these individual complaints was
filed by the same plaintiff's attorney. In seven of these cases,
the Company did not provide the default administrative services
alleged in the complaint. Each of these cases is in the
preliminary stages and none of these cases has been certified as a
class action. Lawsuits containing similar allegations previously
filed against the Company were dismissed with prejudice or on
summary judgment.
LENDER PROCESSING: Seeks Dismissal of "St. Clair" Suit
------------------------------------------------------
Lender Processing Services, Inc., is seeking the dismissal of a
putative class action entitled St. Clair Shores General Employees'
Retirement System v. Lender Processing Services, Inc., pending in
Florida, according to the Company's August 4, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
On December 1, 2010, the Company was served with a complaint
entitled St. Clair Shores General Employees' Retirement System v.
Lender Processing Services, Inc., et al., which was filed in the
United States District Court for the Middle District of Florida.
The putative class action seeks damages for alleged violations of
federal securities laws in connection with the Company's
disclosures relating to its default operations. An Amended
Complaint was filed on May 18, 2011. LPS filed a motion to dismiss
the complaint on July 18, 2011.
MIDLAND FUNDING: Kansas Opposes Class Action Settlement
-------------------------------------------------------
The Wichita Eagle reports that Kansas Attorney General Derek
Schmidt has joined 37 other states' attorneys general to oppose a
proposed class action settlement in an Ohio lawsuit against
Midland Funding.
A judge has given preliminary approval to the proposed $5.7
million settlement.
It would provide an estimated 1.4 million consumers throughout the
country a payment capped at $10.
In exchange, the consumers would give up the right to sue Midland
over alleged faulty affidavits filed in court to try to collect
debts.
Mr. Schmidt joined Kansas to a multistate legal brief opposing the
settlement, saying it's inadequate and unfair to consumers.
The Federal Trade Commission also opposes the settlement.
Mr. Schmidt said the proposed Ohio settlement could restrict
Kansans' right to raise issues of inadequate affidavits to defend
themselves if they find out later that they've been sued by
Midland.
"It looked to us like if those terms were adopted, consumers would
get very little benefit . . . and in exchange would potentially
give up a large amount of potential remedies," Mr. Schmidt said.
"We just thought it was grossly disproportionate what consumers
were being asked to give up in exchange for what they were
receiving."
NATIONAL CITY: Settles Securities Fraud Class Action
----------------------------------------------------
Celeste Katz, writing for New York Daily News, reports that via
state Comptroller Tom DiNapoli: The NYS Common Retirement Fund
announced a proposed $168 million settlement of its securities
fraud class action lawsuit against National City Corporation
related to investment losses.
"This is a good result for the Fund and the more than one million
Fund members who rely on these investments," said Mr. DiNapoli,
trustee of the $146.5 billion fund and lead plaintiff. "It sends
a message that we will always fight to protect the best interests
of our members."
The complaint, filed in U.S. District Court for the Northern
District of Ohio in 2008, alleged National City wasn't upfront
about either the quality of its home equity loans and mortgages
nor the severity of its losses.
National City agreed to pay the $168 million, but admitted no
wrongdoing. The settlement will be presented in court in the next
few weeks, after which members of the class action will be
notified, Mr. DiNapoli's office said.
PAR PHARMACEUTICAL: Intends to Oppose Class Cert. in N.J. Suit
--------------------------------------------------------------
Par Pharmaceutical Companies, Inc. intends to oppose a motion for
class certification pending before the U.S. District Court for the
District of New Jersey, according to the Company's August 3, 2011
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
The Company and certain of its former executive officers have been
named as defendants in consolidated class action lawsuits filed on
behalf of purchasers of its common stock between July 23, 2001 and
July 5, 2006. The lawsuits followed the Company's July 5, 2006
announcement regarding the restatement of certain of its financial
statements and allege that the Company and certain members of its
then management engaged in violations of the Exchange Act, by
issuing false and misleading statements concerning its financial
condition and results of operations. The class actions are
pending in the U.S. District Court for the District of New Jersey.
On July 23, 2008, co-lead plaintiffs filed a Second Consolidated
Amended complaint. On September 30, 2009, the Court granted a
motion to dismiss all claims as against Kenneth Sawyer but denied
the motion as to the Company, Dennis O'Connor, and Scott Tarriff.
The Company and Messrs. O'Connor and Tarriff have answered the
Amended complaint and intend to vigorously defend the consolidated
class action. Plaintiffs have filed a motion for class
certification which the Company and the other defendants intend to
oppose.
Par Pharmaceutical Companies, Inc. operates primarily through its
wholly owned subsidiary, Par Pharmaceutical, Inc., in two business
segments, namely the general products division and branded
products division.
PAXFIRE: Sued for Directing Internet Users to Dummy Web Pages
-------------------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that millions
of people's Internet searches are routinely monitored, intercepted
and misdirected by Internet service providers that direct
searchers to counterfeit Web pages, laced with ads, using
technology provided by Paxfire, according to a federal class
action in Manhattan.
Paxfire, based in Sterling, Va., "works with ISPs throughout the
United States," and boasts that it "'generate(s) millions of
dollars a month in new advertising revenue for our partners by
enabling them to participate in the booming $20 billion a year
search advertising market," according to the complaint.
Sued with Paxfire is RCN Corp., one of many Internet service
providers (ISPs) that work with Paxfire.
"This case arises from defendants' intentional and knowing
interception of data intended for Yahoo!, Bing or Google (the
'Search Engines') via use of hardware and/or software provided by
defendant Paxfire, as well as the monitoring, manipulation,
aggregation, and/or marketing of the data. This interception was
done secretly, without users' consent or knowledge, in violation
of federal and state laws, and in breach of RCN's agreements with
its customer," the complaint states.
The class claims that the defendants direct Internet users to
dummy pages, laced with ads, rather than to the Internet pages the
customers actually sought via search engine.
During an Internet search, "Defendant RCN and the other ISPs use
technology provided by defendant Paxfire to give false answers to
certain of customers' requests, and to send plaintiff and the
classes to servers either owned or controlled by defendant
Paxfire, or to servers owned by the ISP and utilizing Paxfire's
services (collectively 'Paxfire-based proxy servers')," according
to the complaint.
It adds: "Defendants violated plaintiff's privacy and compromised
her financial interests and computer security, by knowingly and
intentionally intercepting her internet communications in order to
generate income for themselves. Rather than direct plaintiff to
the Web sites she actually requested, defendants secretly gave her
computer system false information that directed plaintiff to
Web sites that looked like the Web sites she intended to visit,
but were actually controlled by and located on servers belonging
to defendant RCN and/or defendant Paxfire. In other instances,
when plaintiff ran searches, defendants directed plaintiff through
advertising affiliates into third-party commercial web pages,
rather than provide plaintiff with the requested search results.
Without plaintiff's knowledge or consent, defendants used
Paxfire's hardware and/or software to misdirect plaintiff to these
servers; impersonate the Web sites plaintiff wished to view, and
monitor, manipulate, and/or monetize the searched run and page
visits made by plaintiff."
Named plaintiff Betsy Feist says researchers discovered these
legal violations, conversion, unjust enrichment, breach of
contract and breach of faith with a recently developed Internet
tool called Netalyzr: "Netalyzr is a network measurement,
debugging, and diagnostic tool that evaluates the functionality
provided by people's internet connectivity. One of the primary
focus areas of Netalyzr is DNS [Domain Name System] behavior.
When users run the Netalyzr, the data gathered from the program is
sent back to its developers. The creators of Natalyzr analyzed
data from numerous tests and discovered cases of ISPs, including
defendant RCN, using DNS to redirect web searches to their own
proxies."
In a footnote, the complaint adds: "Defendants redirect searches
run via search.yahoo.com and www.bing.com through Paxfire servers.
Searches run through www.google.com are not redirected by all
ISPs; when Google searches are redirected, they are sometimes
redirected through Paxfire servers, and sometimes redirected
through ISP-located servers that utilize Paxfire technology."
In language that would make George Orwell turn in his grave, the
complaint states: "Defendant RCN installed Paxfire technology
(either as software on its DNS servers or as physical hardware
that sits before its DNS server) to monetize (i.e., generate
revenue from) its customers' private searches. Publicly, Paxfire
claims to monetize 'DNS Error traffic,' which occurs when an
Internet user types in a domain name that does not exist or that
contains a typo. In the case of a DNS Error, the user of an ISP
that employs Paxfire is redirected to a Paxfire-created search
results page, rather than being directed to an error page (e.g.,
'site not found').
"However, as revealed by Netalyzr, Paxfire is also being used by
the ISPs to intercept and monetize search data even when the user
types in the correct address of an existing domain name or when
the user is simply running a search. Paxfire (and the ISPs) can
monetize search data in a number of ways that fall into two major
categories: monitoring and modification. Defendant RCN and
defendant Paxfire can monitor searches and market the data to
advertisers and data aggregators interested in creating
demographic profiles. Defendants can also modify the search data
(e.g., prioritize the search results differently so as to
eliminate certain Web sites or make others more prominent, or
include sponsored/paid listings in the search results); can modify
the advertisements that appear on the page to generate income from
the traffic to the page; and can redirect the user completely by
sending him or her to an advertising affiliate's webpage, rather
than providing the requested search results."
In other words: "While plaintiff and the members of the class
think they are communicating directly with one of the search
engines, they are actually communicating with a server owned and
controlled by defendant Paxfire and/or defendant RCN. Each time a
customer enters a search into the search engine, the search goes
to the Paxfire-based proxy server, which forwards the search to
the search engine, then receives the search results on its own
proxy server, and finally forwards the results back to the
customer."
Ms. Feist says similar deceptions are done through computers'
search bar, via "approximately 170 brand keywords that, when used
in searches, are not only intercepted by defendants, but are
forwarded on to a third-party advertising affiliate, who redirects
the user to the brand's webpage. Instead of receiver search
results when a brand keyword is used as a search term, defendants
intercept plaintiff's search, and a webpage for a particular brand
is displayed."
Ms. Feist then describes how she used Netalyzr to discover how the
defendants were manipulating her Internet searches.
She continues: "This breach of plaintiff's privacy and computer
security is meaningful and problematic for numerous reasons,
including inter alia: it allows defendant and Paxfire to receive,
review, and compile the content of each of the user's searches, no
matter how personal or private, and to share that information with
and/or sell that information to third parties; it allows defendant
and Paxfire to manipulate plaintiff's search terms, such that
results she receives are altered; it allows defendant and Paxfire
to manipulate the web page returned to plaintiff, by reordering
and reprioritizing search results, including paid and/or sponsored
pages as search results, or altering advertizing on the search
page; it allows defendant and Paxfire to send plaintiff's private
searches to a third-party advertizing affiliate, earning money in
the process, and directing plaintiff to a brand's commercial
webpage rather than to the search results she requested; it allows
defendant and Paxfire to know which Web sites the customer chooses
among search results; and if the plaintiff or a class member is
logged in to a service connected with the search engine (e.g.,
searching on google.com while being logged into Gmail, or
searching on search.yahoo.com while logged into Yahoo! Mail), the
customer's search history can be connected to his or her actual
identity."
Ms. Feist says that RCN's purported privacy policies, which it
disseminates to its customers, are untrue, misleading, incomplete
and deceptive, and that it does not give customers a chance to opt
out.
Ms. Feist claims Paxfire technology has been used to monitor,
intercept, alter and/or redirect Internet searches of customers of
Cavalier, Charter, Cincinnati Bell, Cogent Communications,
DirecPC, Frontier, Insight Broadband, Iowa Telecom, RCN, Wide Open
West, and others.
She seeks restitution and damages for violations of the federal
Wiretap Act, 18 U.S.C. Sec. 2510 et seq., violations of state
consumer laws, conversion, unjust enrichment, breach of contract
and breach of faith.
Ms. Feist is represented by:
Sanford P. Dumain, Esq.
Peter Seidman, Esq.
MILBERG LLP
One Pennsylvania Plaza
49th Floor
New York, NY 10119
Telephone: (212) 594-5300
(212) 631-8625
E-mail: sdumain@milberg.com
pseidman@milberg.com
PG&E CORP: Continues to Defend Suits Over San Bruno Accident
------------------------------------------------------------
PG&E Corporation continues to defend lawsuits arising from an
accident in San Bruno, California, according to the Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
The Company conducts its business principally through Pacific Gas
and Electric Company ("Utility"), a public utility operating in
northern and central California. The Utility is regulated by the
California Public Utilities Commission ("CPUC") and the Federal
Energy Regulatory Commission ("FERC").
On September 9, 2010, an underground 30-inch natural gas
transmission pipeline (Line 132) owned and operated by the
Utility, ruptured in a residential area located in the City of San
Bruno, California ("San Bruno accident"). The ensuing explosion
and fire resulted in the deaths of eight people, numerous personal
injuries, and extensive property damage. The National
Transportation Safety Board ("NTSB") has issued several public
statements regarding its investigation of the San Bruno accident
but has not yet made a final determination of the probable cause
of the pipeline rupture. The CPUC initiated an investigation
pertaining to safety recordkeeping for the Utility's gas
transmission pipeline that ruptured in San Bruno, as well as for
its entire gas transmission system. Additionally, the Utility has
received notification that a criminal investigation is being
conducted in connection with the San Bruno accident.
In addition to these investigations, approximately 90 tort
lawsuits on behalf of approximately 320 plaintiffs, including two
class action lawsuits, have been filed against PG&E Corporation
and the Utility. The lawsuits seek compensation for personal
injury, property damage, and other relief. The Utility recorded a
provision of $220 million in 2010 for estimated third-party claims
related to the San Bruno accident. During the quarter ended June
30, 2011, the Utility recorded an additional $59 million provision
for third-party claims, reflecting the outcome of settlements and
changes in estimates and assumptions regarding these claims.
As of June 30, 2011, and December 31, 2010, $211 million and $214
million, respectively, was accrued for third-party claims related
to the San Bruno accident in PG&E Corporation's and the Utility's
Condensed Consolidated Balance Sheets.
The Utility estimates that it may record as much as an additional
$121 million for third-party claims, for a total possible loss of
$400 million. As more information becomes known, including
information resulting from the pending investigations and
settlement of claims, estimates and assumptions regarding the
amount of third-party liability incurred in connection with the
San Bruno accident may change. The Company says it is possible
that a change in estimate, and any penalties resulting from
investigations, could have a material impact on PG&E Corporation's
and the Utility's financial condition, results of operations, or
cash flows.
The Utility has liability insurance from various insurers who
provide coverage at different policy limits that are triggered in
sequential order or "layers." Generally, as the policy limit for
a layer is exhausted the next layer of insurance becomes
available. The aggregate amount of this insurance coverage is
approximately $992 million in excess of a $10 million deductible.
During the quarter ended June 30, 2011, the Utility submitted
insurance claims to certain insurers for the lower (or "primary")
layers and recognized $60 million for insurance recoveries that
have been deemed probable under applicable accounting standards.
As of June 30, 2011, $60 million was recorded as a receivable for
insurance recoveries in PG&E Corporation's and the Utility's
Condensed Consolidated Balance Sheets. As of December 31, 2010,
no receivable for insurance recoveries was recorded. Although the
Utility currently considers it likely that a significant portion
of costs incurred for third-party claims relating to the San Bruno
accident will ultimately be recovered through its insurance, it is
unable to predict the amount and timing of additional insurance
recoveries.
QC HOLDINGS: Negotiates Tentative Settlement in Missouri Suit
-------------------------------------------------------------
QC Holdings, Inc., reached a tentative settlement in the nearly
five-year-old Missouri legal matter, the Company disclosed in an
August 4, 2011, press release relating to its second quarter
results for 2011. Although the company believes the matter is
without merit, the settlement reflects the Company's decision to
mitigate the costs, including the distractions for management,
associated with the purported class action arbitration.
As previously reported in the Class Action Reporter, on Oct. 13,
2006, one of the Company's Missouri customers sued the Company in
the Circuit Court of St. Louis County, Missouri, in a purported
class action. The lawsuit alleges violations of the Missouri
statute pertaining to unsecured loans under $500 and the Missouri
Merchandising Practices Act. The lawsuit seeks monetary damages
and a declaratory judgment that the arbitration agreement with the
plaintiff is not enforceable on a variety of theories. The
Company moved to compel arbitration of the matter. In December
2007, the court entered an order striking the class action waiver
provision in the Company's customer arbitration agreement, ordered
the case to arbitration, and dismissed the lawsuit filed in
Circuit Court. In July 2008, the Company filed its appeal of the
court's order with the Missouri Court of Appeals. In December
2008, the Court of Appeals affirmed the decision of the trial
court. In September 2009, the plaintiff filed her action in
arbitration. The Company has filed its answer, and a three-person
arbitration panel has been chosen. Discovery commenced, and the
parties was set to possibly argue class certification in mid-2011.
Founded in 1998, QC Holdings, Inc., has been primarily engaged in
the business of providing short-term consumer loans, known as
payday loans, with principal values that typically range from $100
to $500.
REACHLOCAL INC: Wage & Hour Suits Remain Pending in California
--------------------------------------------------------------
ReachLocal Inc. continues to defend itself against class action
lawsuits alleging wage and hour violations in California.
On March 1, 2010, a class action lawsuit was filed by two of the
Company's former employees in California Superior Court in Los
Angeles, California. The complaint alleged wage and hour
violations in a Fair Labor Standards Act collective action and a
California class action. On May 6, 2011, the Court granted
preliminary approval of a settlement of the class action for
$800,000, which together with legal costs resulting in a charge of
$832,000 recoded in fiscal 2010. On or about February 2, 2011, a
second class action lawsuit was filed by former employees alleging
substantially similar wage and hour violations. The second
lawsuit is not expected to disrupt the prior settlement or result
in material additional costs.
No updates were reported in the Company's August 4, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
ReachLocal, Inc. offers online marketing and reporting solutions,
including search engine marketing, display advertising,
remarketing and online marketing analytics, each targeted to the
small and medium-sized businesses (SMB) market. The Company
delivers these solutions to SMBs through a combination of it RL
Platform and its direct, feet-on-the-street sales force of
Internet Marketing Consultants (IMCs), and select third-party
agencies and resellers. The Company uses its RL Platform to
create advertising campaigns for SMBs to target potential
customers in their geographic area, optimize those campaigns in
real time and track tangible results.
REGIONS FINANCIAL: Continues to Defend Suits on Overdraft Fees
--------------------------------------------------------------
Regions Financial Corporation continues to defend itself against
class action lawsuits in Florida and Arkansas relating to
overdraft fees, the Company disclosed in its August 4, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
In September 2009, Regions was named as a defendant in a purported
class action lawsuit filed by customers of Regions Bank in the
U.S. District Court for the Northern District of Georgia
challenging the manner in which non-sufficient funds ("NSF") and
overdraft fees were charged and the policies related to posting
order. The case was transferred to multidistrict litigation in
the U.S. District Court for the Southern District of Florida, and
in May 2010, an order to compel arbitration was denied. Regions
appealed the denial and on April 29, 2011, the Eleventh Circuit
Court of Appeals vacated the denial and remanded the case to the
district court for reconsideration of Regions' motion to compel
arbitration. On April 29, 2011 and July 19, 2011, separate class
actions involving this subject were filed in the U.S. District
Courts for the Eastern District of Arkansas and the Middle
District of Florida making claims under Arkansas' and Florida's
Deceptive Trade Practices Acts, breach of contract, unjust
enrichment and conversion. Plaintiffs in these cases have
requested equitable relief and unspecified monetary damages. No
class has been certified.
Regions Financial Corporation provides a full range of banking and
bank-related services to individual and corporate customers
through its subsidiaries and branch offices located primarily in
Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South
Carolina, Tennessee, Texas and Virginia.
REGIONS FINANCIAL: Alabama Securities Class Suit Remains Pending
----------------------------------------------------------------
A securities class action complaint against Regions Financial
Corporation remains pending in an Alabama court, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In October 2010, a purported class action lawsuit was filed by
Regions' stockholders in the U.S. District Court for the Northern
District of Alabama against Regions and certain former officers of
Regions. The lawsuit alleges violations of the federal securities
laws, including allegations that statements that were materially
false and misleading were included in filings made with the SEC.
The plaintiffs have requested equitable relief and unspecified
monetary damages. On June 7, 2011, the trial court denied
Regions' motion to dismiss this lawsuit. This case is still early
in its development and no class has been certified.
Regions Financial Corporation provides a full range of banking and
bank-related services to individual and corporate customers
through its subsidiaries and branch offices located primarily in
Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South
Carolina, Tennessee, Texas and Virginia.
REGIONS FINANCIAL: Class Suits on "Keegan" Funds Remain Pending
---------------------------------------------------------------
Class action complaints alleging non-disclosure of important
information relating to the Regions Morgan Keegan Select Funds
remain pending against Regions Financial Corporation, et al.,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
Beginning in December 2007, Regions and certain of its affiliates
have been named in class action lawsuits filed in federal and
state courts on behalf of investors who purchased shares of
certain Regions Morgan Keegan Select Funds (the "Funds") and
shareholders of Regions. The Funds were formerly managed by
Morgan Asset Management, Inc. Morgan Asset Management no longer
manages these Funds, which were transferred to Hyperion Brookfield
Asset Management in 2008. Certain of the Funds have since been
terminated by Hyperion. The complaints contain various
allegations, including claims that the Funds and the defendants
misrepresented or failed to disclose material facts relating to
the activities of the Funds. Plaintiffs have requested equitable
relief and unspecified monetary damages. No classes have been
certified. Certain of the shareholders in these Funds and other
interested parties have entered into arbitration proceedings and
individual civil claims, in lieu of participating in the class
actions.
Regions Financial Corporation provides a full range of banking and
bank-related services to individual and corporate customers
through its subsidiaries and branch offices located primarily in
Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South
Carolina, Tennessee, Texas and Virginia.
S1 CORP: Faces Stockholder Class Suit in Delaware
-------------------------------------------------
S1 Corporation is facing a stockholder class action lawsuit
commenced by Michael Levitan in Delaware, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On July 29, 2011, a putative stockholder class action was filed in
the Court of Chancery of the State of Delaware by Michael Levitan
against the Company and the individual members of the Company's
board of directors. The complaint, which appears to proceed from
the erroneous assumption that the Company has entered into an
agreement to be acquired by ACI Worldwide, Inc., alleges, among
other things, that the Company's directors breached their
fiduciary duties in connection with such a proposed acquisition of
the company by the ACI. Among other things, the complaint seeks
to enjoin the Company and its directors from completing a
transaction with ACI, or alternatively, recission of the
transaction proposed by ACI in the event the Company and ACI were
able to consummate such a transaction.
The Company believes that the claims against the Company set forth
in the complaint are without merit, and the Company intends to
vigorously defend against such claims once properly served with
the complaint. However, at this time, the Company cannot
determine the final resolution of the lawsuit or when it might be
resolved. The Company will continue to assess the potential
impact, if any, on its financial condition, results of operations
or cash flows.
SILICON IMAGE: Appeals From Settlement Approval Still Pending
-------------------------------------------------------------
Appeals from the final approval of Silicon Image, Inc.'s
settlement resolving a consolidated shareholders lawsuit remain
pending, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
On December 7, 2001, the Company and certain of its officers and
directors were named as defendants, along with the underwriters of
the Company's initial public offering, in a securities class
action lawsuit. The lawsuit alleges that the defendants
participated in a scheme to inflate the price of the Company's
stock in its initial public offering and in the aftermarket
through a series of misstatements and omissions associated with
the offering. The lawsuit is one of several hundred similar cases
pending in the Southern District of New York that have been
consolidated by the court. In February 2003, the District Court
issued an order denying a motion to dismiss by all defendants on
common issues of law. In July 2003, the Company, along with over
300 other issuers named as defendants, agreed to a settlement of
this litigation with plaintiffs. While the parties' request for
court approval of the settlement was pending, in December 2006 the
United States Court of Appeals for the Second Circuit reversed the
District Court's determination that six focus cases could be
certified as class actions. In April 2007, the Second Circuit
denied plaintiffs' petition for rehearing, but acknowledged that
the District Court might certify a more limited class. At a
June 26, 2007 status conference, the Court terminated the proposed
settlement as stipulated among the parties. Plaintiffs filed an
amended complaint on August 14, 2007. On September 27, 2007,
plaintiffs filed a motion for class certification in the six focus
cases, which was withdrawn on October 10, 2008. On November 13,
2007, defendants in the six focus cases filed a motion to dismiss
the complaint for failure to state a claim, which the district
court denied in March 2008. Plaintiffs, the issuer defendants
(including the Company), the underwriter defendants, and the
insurance carriers for the defendants, have engaged in mediation
and settlement negotiations.
The parties have reached a settlement agreement, which was
submitted to the District Court for preliminary approval on
April 2, 2009. As part of this settlement, the Company's
insurance carrier has agreed to assume the Company's entire
payment obligation under the terms of the settlement. On
June 10, 2009, the District Court granted preliminary approval of
the proposed settlement agreement. After a September 10, 2009
hearing, the District Court gave final approval to the settlement
on October 5, 2009. Several objectors to the settlement have
filed notices of appeal to the United States Court of Appeal for
the Second Circuit from the District Court's order granting final
approval of the settlement.
Although the District Court has granted final approval of the
settlement agreement, there can be no guarantee that it will not
be reversed on appeal. The Company believes that it has
meritorious defenses to these claims. If the settlement is not
implemented and the litigation continues against the Company, the
Company would continue to defend against this action vigorously.
In light of the uncertainty of the appellate process, and any
subsequent proceedings in the trial court in the event the
settlement is reversed on appeal, the Company is unable to
determine the likelihood of an unfavorable outcome against them
and is unable to reasonably estimate a range of loss, if any.
No further updates were reported in the Company's latest SEC
filing.
SIRIUS XM: Judge Hears Objections to Class Action Settlement
------------------------------------------------------------
Don Jeffrey, writing for Bloomberg News, reports that a federal
judge heard objections to the settlement of a lawsuit by Sirius XM
Radio Inc. (SIRI) subscribers who claimed the satellite radio
broadcaster broke the law when it raised prices after merging with
its only rival.
U.S. District Judge Harold Baer in Manhattan made no decision on
August 8 on approving the accord after subscribers argued at a
hearing that the agreement gives them too little and the lawyers
too much.
Subscriber Carl Blessing of Florida sued Sirius XM in 2009,
claiming it violated federal antitrust and state consumer-
protection laws when it raised prices and levied a music royalty
fee after Sirius Satellite Radio and XM Satellite Radio completed
their merger in 2008. Mr. Blessing said in his complaint his
monthly rate jumped 40% to $27.88 after the merger.
"I rely on satellite radio every day for weather and news,"
Marguerite Willis, a subscriber from South Carolina who commutes
180 miles a day for work, told the judge. "I have no alternative.
Combining Sirius and XM created a firm with monopoly power in
rural South Carolina."
The subscribers said New York-based Sirius XM broke promises it
made to win approval of the merger from the U.S. Federal
Communications Commission and Justice Department. Sirius XM said
the increases were imposed to cover higher costs.
Judge Baer in March let the federal antitrust claim proceed as a
class-action, or group, lawsuit, on behalf of Sirius XM
subscribers. He denied class-action status on the state-law
claims.
Preliminary Approval
The class and Sirius XM reached a pretrial settlement, and
Judge Baer gave preliminary approval to the agreement in May.
"The settlement is appropriately scaled to the scope of the case,"
John Marjoras, a lawyer representing Sirius, told the judge on
August 8. "There were hard-fought negotiations. We fully
expected to go to trial."
The accord, valued at $180 million, provides that prices for basic
service and Internet access, as well as the music royalty fee,
will remain at current levels through the end of the year.
Subscribers who canceled can reconnect without paying a fee.
Those whose plans expire after Dec. 31 can renew before that time
at current rates. Subscribers will get no cash.
"The expectation was that the price would increase $2 a month"
after a cap imposed by the FCC expired in July, Joseph Sabella, a
lawyer representing the class, told the judge. He said there were
67 objections to the settlement out of 15 million class members.
$13 Million
Objectors argued that Sirius XM never said it would raise prices
before year-end. Some objected to language in the accord that
would release Sirius from further claims. They also objected to
the $13 million Sirius would pay for fees and expenses to the
lawyers representing the class.
Mr. Sabella said "$13 million, considering the value conveyed on
the class, is certainly justified." He added that if the judge
reduced the fees, the money would go back to Sirius, not the class
members.
Sirius dropped 24 cents, or 12.7%, to $1.65 at 4:30 p.m. New York
time in Nasdaq Stock Market trading on August 8. The shares have
risen 1.2% this year. The company said it had 21 million
subscribers as of June 30, 8% more than the previous year.
Sirius XM provides 135 channels of commercial-free music as well
as talk shows featuring Howard Stern and Martha Stewart, which
carry advertisements, and professional sports.
The basic monthly charge is $12.99. In 2009, Sirius XM increased
the rate a subscriber paid to get service on an additional radio
to $8.99 a month from $6.99. The class also complained about a
$2.99 charge for Internet access, which had been free. The music
charge, assessed after new royalty rates with record companies
were set, amounted to $1.98 a month.
The case is Blessing v. Sirius XM Radio, 1:09-cv-10035, U.S.
District Court, Southern District of New York (Manhattan).
SMITH MICRO: Continues to Defend California Class Action
--------------------------------------------------------
Smith Micro Software, Inc. continues to defend itself in a
purported class action in California, brought on behalf of
purchasers of the Company's common stock, according to the
Company's August 3, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
On June 29, 2011, a complaint was filed in the US District Court
for the Central District of California against the Company and
certain of its current officers and directors on behalf of certain
purchasers of its common stock. The complaint has been brought as
a purported stockholder class action, and, in general, includes
allegations that the Company and certain of its officers and
directors violated federal securities laws by making materially
false and misleading statements regarding the Company's business
prospects and financial results, thereby artificially inflating
the price of its common stock. The plaintiff is seeking
unspecified monetary damages and other relief. The Company expects
the court to appoint a lead plaintiff and order the lead plaintiff
to file an amended complaint. The Company intends to vigorously
defend against the claims advanced, and intends to file a motion
to dismiss the amended complaint.
Smith Micro Software, Inc. designs, develops and markets software
products and services primarily for the mobile computing and
communications industries.
SOUTHERN OCEAN: Sued Over Failure to Control Abalone Virus
----------------------------------------------------------
Alex Sinnott, writing for Warrnambool Standard, reports that a
class action has been launched on behalf of dozens of abalone
operators and divers against the state government and a Port
Fairy-based company.
Law firm Maurice Blackburn announced on August 7 that it had
launched legal proceedings against Southern Ocean Mariculture and
the government for their alleged failure to control a deadly
herpes-like virus that massacred south-west abalone stocks.
The abalone viral ganglioneuritis decimated valuable abalone
stocks along a 200-kilometer section of coast from Cape
Bridgewater to just west of Cape Otway.
The highly-contagious disease was discovered in December 2005 when
several abalone aquaculture farms, including Southern Ocean
Mariculture at Port Fairy, had unusually high levels of abalone
deaths.
Maurice Blackburn general counsel Steven Harris alleged the state
government and the aquaculture farm had failed to contain an
outbreak of abalone viral ganglioneuritis which escaped into the
ocean near Port Fairy.
He said the class action was on behalf of 50 license-holders, 39
divers and two abalone processing plants.
"Infected abalone was moved from different tanks on the farm and
eventually dead abalone and contaminated tank water was flushed
into the ocean, causing the virus to spread to the wild abalone
population," Mr. Harris claimed.
"The virus has absolutely decimated the wild abalone population
and in turn has turned upside-down the lives of abalone license-
holders, divers and workers at abalone processing plants . . . the
ramifications of the disease have impacted our clients
professionally and financially."
Maurice Blackburn will hold a mediation session on August 7 with
legal representatives from the state government and Southern Ocean
Mariculture.
Victorian Abalone Divers Association chief executive Vin Gannon
said the organization itself was not involved in the class action,
although many individual members were. He said it was encouraging
to note the virus had not been detected off the south-west coast
since February 2010.
STEWART INFORMATION: Appeal From RESPA Claims Dismissal Pending
-------------------------------------------------------------
An appeal regarding the dismissal of claims under the Real Estate
Settlement Procedures Act by a New York court remains pending,
according to Stewart Information Services Corporation's August 3,
2011 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
In February 2008, an antitrust class action was filed in the
United States District Court for the Eastern District of New York
against Stewart Title Insurance Company, Monroe Title Insurance
Corporation, Stewart Information Services Corporation, several
other unaffiliated title insurance companies and the Title
Insurance Rate Service Association, Inc. (TIRSA). The complaint
alleges that the defendants violated Section 1 of the Sherman
Antitrust Act by collectively filing proposed rates for title
insurance in New York through TIRSA, a state-authorized and
licensed rate service organization.
Complaints were subsequently filed in the United States District
Courts for the Eastern and Southern Districts of New York and in
the United States District Courts in Pennsylvania, New Jersey,
Ohio, Florida, Massachusetts, Arkansas, California, Washington,
West Virginia, Texas and Delaware. All of the complaints make
similar class action allegations, except that certain of the
complaints also allege violations of the Real Estate Settlement
Procedures Act (RESPA) and various state antitrust and consumer
protection laws. The complaints generally request treble damages
in unspecified amounts, declaratory and injunctive relief and
attorneys' fees. To date, 78 such complaints have been filed, each
of which names the Company and/or one or more of its affiliates as
a defendant (and have been consolidated in the states), of which
seven have been voluntarily dismissed. As of July 8, 2011, the
Company has obtained dismissals of the claims in Arkansas,
California, Delaware, Florida, Massachusetts, New Jersey, New
York, Ohio, Pennsylvania (where the court dismissed the damages
claims and granted defendants summary judgment on the injunctive
claims), Texas and Washington. The Company filed a motion to
dismiss in West Virginia (where all proceedings have been stayed
and the docket closed). The plaintiffs have appealed the dismissal
in Ohio to the United States Court of Appeals for the Sixth
Circuit and the dismissals in Delaware, New Jersey and
Pennsylvania to the United States Court of Appeals for the Third
Circuit. The dismissals in New York and Texas have been affirmed
by the United States Courts of Appeals for the Second and Fifth
Circuits, respectively, and on October 4, 2010, the United States
Supreme Court denied the plaintiffs' petitions for review of those
decisions. The plaintiffs have appealed to the Second Circuit the
dismissal of the RESPA claims by the court in New York. Although
the Company cannot predict the outcome of these actions, it is
vigorously defending itself against the allegations and does not
believe that the outcome will materially affect its consolidated
financial condition or results of operations.
Stewart Information Services Corporation's business has two main
operating segments: title insurance-related services and real
estate information (REI).
SUNRISE SENIOR: Accused of Violating Wage and Hour Laws in Calif.
-----------------------------------------------------------------
Sunrise Senior Living, Inc., is facing a purported class action
lawsuit alleging violations of California's wage and hour laws,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On July 7, 2011, Plaintiff Janet M. Feely, a former Sunrise
employee, filed a lawsuit on behalf of herself and others
similarly situated in the Superior Court of the State of
California, County of Los Angeles, against Sunrise Senior Living,
Inc., captioned Janet M. Feely, individually and on behalf of
other persons similarly situated v. Sunrise Senior Living, Inc.
and Does 1 through 55, Case No. BC 465006 (Los Angeles County
Superior Court). Plaintiff's complaint is styled as a class
action and alleges that Sunrise improperly classified a position
formerly held by her as exempt from the overtime obligations of
California's wage and hour laws. The complaint asserts claims
for: (1) failure to pay overtime wages, (2) failure to provide
accurate wage statements, (3) unfair competition, and (4) failure
to pay all wages owed upon termination. Plaintiff seeks
unspecified compensatory damages, statutory penalties provided for
under the California Labor Code, restitution and disgorgement of
unpaid overtime wages under the California Business and
Professions Code, prejudgment interest, costs and attorney's fees.
Sunrise believes that Plaintiff's allegations are not meritorious
and that a class action is not appropriate in this case, and
intends to defend itself vigorously. Because of the early stage
of this lawsuit, Sunrise cannot at this time estimate an amount or
range of potential loss in the event of an unfavorable outcome.
SUNRISE SENIOR: Hearing in "Purnell" Suit Set for Sept. 2011
------------------------------------------------------------
A hearing on a motion for class certification in the lawsuit
commenced by LaShone Purnell against a Sunrise Senior Living, Inc.
subsidiary is scheduled for September 2011, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On May 14, 2010, Plaintiff LaShone Purnell filed a lawsuit on
behalf of herself and others similarly situated in the Superior
Court of the State of California, Orange County, against the
Company's subsidiary, Sunrise Senior Living Management, Inc.,
captioned LaShone Purnell as an individual and on behalf of all
employees similarly situated v. Sunrise Senior Living Management,
Inc. and Does 1 through 50, Case No. 30-2010-00372725 (Orange
County Superior Court). Plaintiff's complaint is styled as a
class action and alleges that Sunrise failed to properly schedule
the purported class of care givers and other related positions so
that they would be able to take meal and rest breaks as provided
for under California law. The complaint asserts claims for: (1)
failure to pay overtime wages; (2) failure to provide meal
periods; (3) failure to provide rest periods; (4) failure to pay
wages upon ending employment; (5) failure to keep accurate payroll
records; (6) unfair business practices; and (7) unfair
competition. Plaintiff seeks unspecified compensatory damages,
statutory penalties provided for under the California Labor Code,
injunctive relief, and costs and attorneys' fees. On June 17,
2010, Sunrise removed this action to the United States District
Court for the Central District of California (Case No. SACV 10-897
CJC (MLGx)). On July 16, 2010, plaintiff filed a motion to remand
the case to state court. On August 10, 2010, the Court stayed all
proceedings pending early mediation by the parties. Early
mediation was unsuccessful, and on January 18, 2011, the United
States District Court for the Central District of California
denied plaintiff's motion to remand the action to state court.
On July 1, 2011, Plaintiff filed her motion for class
certification and limited discovery related to the class
certification motion is ongoing. A hearing on Plaintiff's motion
for class certification is presently scheduled for September 2011.
Sunrise believes that Plaintiff's allegations are not meritorious
and that a class action is not appropriate in this case, and
intends to defend itself vigorously. Because of the early stage
of this lawsuit, the Company cannot at this time estimate an
amount or range of potential loss in the event of an unfavorable
outcome.
SYNGENTA AG: Judge to Decide on Jurisdiction in Atrazine Suit
-------------------------------------------------------------
Steve Korris, writing for The Madison St. Clair Record, reports
that as U.S. District Judge Phil Gilbert decides whether to
exercise jurisdiction over Swiss holding company Syngenta AG, he
will consider evidence that plaintiff lawyer Stephen Tillery urged
him to ignore.
At a hearing on July 27, Judge Gilbert denied Mr. Tillery's motion
to strike declarations of Syngenta AG staff lawyers Elizabeth
Quarles and Tobias Meili.
Ms. Quarles and Mr. Meili countered Mr. Tillery's claim that
Syngenta AG controls Syngenta Crop Protection Inc., a company in
North Carolina.
Mr. Tillery sued Syngenta AG and Syngenta Crop Protection last
year on behalf of public and private water suppliers in Illinois,
Indiana, Ohio, Missouri, Iowa and Kansas.
He claimed weed killer atrazine, a product of Syngenta Crop
Protection, contaminated water supplies.
Syngenta AG moved to dismiss for lack of jurisdiction, and it
submitted declarations of Ms. Quarles and Mr. Meili.
Their statements disturbed Mr. Tillery, who moved last December to
strike them.
He wrote that Ms. Quarles made recommendations to conceal
discrepancies between Syngenta AG's management and corporate forms
to avoid jurisdiction of U. S. courts.
Mr. Tillery wrote that "management is actually performed by global
and regional teams that operate outside corporate boundaries."
He wrote that all managers at Syngenta AG subsidiaries must answer
to Syngenta AG's global or regional leaders regarding all non
trivial activities.
He wrote that its lawyers do not advise changes to the management
structure.
"Instead, they suggest ways to conceal or paper over problems,"
Mr. Tillery wrote.
He wrote that Ms. Quarles and Mr. Meili swore Syngenta AG is
merely an investment vehicle with no interest in Syngenta Crop
Protection Services, or SCPI.
"In his sworn declaration, Meili denies Syngenta AG's board and
executive committee make decisions regarding SCPI's manufacture,
marketing and sale of atrazine or any other products," Mr. Tillery
wrote.
"Meili is either ignorant or willfully blind to how Syngenta AG
conscripts SCPI employees to perform Syngenta AG's work, including
requiring SCPI employees to oversee the management and operations
of unrelated Syngenta companies and to manufacture and test
products for other Syngenta entities."
He wrote that Ms. Quarles reported to Christoph Mader, "who sits
atop Syngenta AG's global legal hierarchy."
He wrote that her declaration was littered with unsupported legal
conclusions and that she stated that:
-- Syngenta AG doesn't own 100% of SCPI.
-- it doesn't produce, market or sell atrazine.
-- SCPI never acted as agent of Syngenta AG.
-- Syngenta AG doesn't direct or control SCPI's day to day
operations.
-- Syngenta AG's board didn't make day to day decisions
regarding manufacture, marketing or sale of atrazine.
-- SCPI manages its own employees.
-- Syngenta AG doesn't earn billions from SCPI's sale of
atrazine in the U.S.
Mr. Tillery asked Judge Gilbert to reject Ms. Quarles' declaration
and Mr. Meili's, but after a five hour hearing, he decided to
admit them.
He said he would decide Syngenta AG's motion to dismiss as soon as
possible.
UK: Hindraf Lawyers to Meet Clients in Malaysia for Class Action
----------------------------------------------------------------
Athi Shankar, writing for Free Malaysia Today, reports that
Hindraf Makkal Sakti's London-based lawyers, who will be in
Malaysia starting today, Aug. 11, want to meet potential co-
clients for the class action suit against the British government.
In a statement to FMT, Hindraf counsel Imran Khan said he would be
in Malaysia for several days to accept instructions from ethnic
Indians as their legal representative in order to consider
including them as co-claimants in the suit.
The two-man delegation would also engage in a fact-finding mission
to obtain first-hand information on the perceived injustices meted
out on ethnic Indians.
Hindraf would be organizing a public forum on this at the Hokkien
Hall in Klang on Aug 14.
Imran said the suit was initiated by Hindraf chairman P
Waythamoorthy due to the former colonial master's failure to
protect the ethnic Indian community's rights, interests and
benefits under the Malaya Federal Constitution.
He said his client saw the legal action as a class action on
behalf of current ethnic Malaysian Indians, whose forefathers were
transported as laborers under the indentured labor system.
He pointed out that Waythmoorthy's own great grandfather was
forcibly abducted and transported to Malaya as a laborer.
The indentured labor system was devised by the British colonial
office to address the acute labor shortage in Malaya. Most ethnic
Indians were brought in to work in rubber plantations.
Waythamoorthy's research of British records on Malaya revealed
that rubber export was undisputedly the number one revenue earner
for the country for decades, even after independence.
He originally filed the class action suit on Aug 31, 2007, in
conjunction with the 50th anniversary of Malaysia's independence,
in London seeking US$4 trillion as compensation for Indian
Malaysians.
However, the suit was stalled following the Malaysian government's
clampdown on Hindraf and arrest of several lawyers, including
Waythamoorthy's brother and the movement's legal adviser P
Uthayakumar, under the Internal Security Act.
Among others, the suit claimed that after granting independence to
Malaya, the British had left the Indians without representation
and at the mercy of Malay extremism practiced by the Umno
government.
Suit to be re-filed
Following Waythamoorthy's instruction in 2009 to re-file the
stalled class action, Imran had the opportunity to consider
several documents pertaining to the independence of Malaya.
After a perusal of the documents, Imran and Waythamoorthy had a
conference on issues of relevance with a senior Queen's Counsel in
June 2010.
"Due to client confidentiality, I am not able to reveal the
outcome of the conference," said Imran.
Acting on the QC's advice, Imran wrote to the UK Foreign and
Commonwealth Office (FCO) in London to request the release of all
documents pertaining to Malaya's independence.
The documents kept under the British Freedom of Information (FoI)
Act 2000 were mostly from the period between 1945 and 1957.
Imran said FCO recently confirmed that some documents in its
possession remained classified.
Access to those documents would not be possible until FCO
consulted relevant departments before deciding on whether to
declassify the documents.
As of now, the FCO had used its discretionary powers vested under
the FoI to deny Hindraf access to the documents.
Following this, Imran took legal steps under the recommended
appeal procedure to challenge the FCO decision.
UMB FINANCIAL: Hearing on "Allen" Suit Settlement Set for Oct. 31
-----------------------------------------------------------------
A fairness hearing is scheduled for October 31, 2011, in
connection with the settlement of the lawsuit captioned Allen, et.
al. vs. UMB Bank N.A., et. al., according to UMB Financial
Corporation's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
During 2010, two lawsuits were filed against the Company
subsidiary, UMB Bank, N.A. (the "Bank") in Missouri state court
alleging that the Bank's deposit account posting practices
resulted in excessive overdraft fees in violation of Missouri's
consumer protection statute and the account agreement. Both
lawsuits sought class-action status for the Bank's Missouri
customers who may have been similarly affected. The Bank removed
the first of the two lawsuits (Johnson, et. al. vs. UMB Bank N.A.)
to the U.S. District Court for the Western District of Missouri.
The action was then transferred to the multidistrict litigation in
the U.S. District Court for the Southern District of Florida,
where similar claims against other financial institutions are
pending. The second lawsuit (Allen, et. al. vs. UMB Bank N.A.,
et. al.) was also filed in Missouri state court by another Bank
customer alleging substantially identical facts. The Allen
lawsuit was subsequently amended to add the Company and all of its
other bank subsidiaries as defendants, and to seek to include
customers of all of the defendant banks in a class action. During
the first quarter of 2011, a third lawsuit (Downing vs. UMB Bank
N.A., et. al.) was filed in the U.S. District Court for the
Western District of Oklahoma by another bank customer alleging
similar facts and also seeking class action status.
On May 10, 2011, the Company began mediation with the plaintiffs
in the Allen lawsuit, and on May 13, 2011, the Company and all of
its bank subsidiaries entered into an agreement to settle the
Allen lawsuit. To resolve the litigation, and without admitting
any wrongdoing, the Company agreed to establish a $7.8 million
escrow settlement fund, and recognized the related expense in its
consolidated statements of income for the period ended June 30,
2011. The settlement is subject to approval by the Circuit Court
of Jackson County, Missouri, and a fairness hearing has been
scheduled for October 31, 2011.
VARIAN SEMICONDUCTOR: Robbins Umeda Files Class Action in Mass.
---------------------------------------------------------------
Robbins Umeda LLP on August 8 disclosed that the firm commenced a
class action lawsuit on July 21, 2011, in the U.S. District Court
for the District of Massachusetts on behalf of all persons who
hold shares of common stock of Varian Semiconductor Equipment
Associates, Inc. against Varian Semiconductors and its board of
directors for violations of sections 14(a) and 20(a) of the
Securities and Exchange Act of 1934 in connection with the
proposed acquisition of Varian Semiconductors by Applied
Materials, Inc.
The complaint arises out of a May 4, 2011 press release announcing
that Varian Semiconductors had entered into a definitive merger
agreement with Applied Materials, pursuant to which Varian
Semiconductors shareholders would receive $63 for each share of
Varian Semiconductors they own.
The complaint alleges that certain of the defendants, in
connection with Proposed Acquisition, breached or aided and
abetted the other defendants' breaches of their fiduciary duties
of loyalty and due care, as well as federal securities laws. The
complaint further alleges that, in an attempt to secure
shareholder approval of the Proposed Acquisition, the defendants
filed a materially misleading Form S-4 Registration Statement with
the U.S. Securities and Exchange Commission in violation of
sections 14(a) and 20(a) of the Securities Exchange Act of 1934.
The omitted and/or misrepresented information is believed to be
material in assisting Varian Semiconductors shareholders in making
an informed decision whether or not to vote in favor of the
Proposed Acquisition.
Plaintiff seeks injunctive relief on behalf of all Varian
Semiconductors shareholders as of May 4, 2011. The plaintiff is
represented by Robbins Umeda LLP.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from July 21, 2011. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact Gregory E. Del Gaizo, Esq. of
Robbins Umeda LLP at 800-350-6003, via the shareholder information
form on our Web site or by e-mail at info@robbinsumeda.com
Any member of the Class may move the Court to serve as lead
plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member.
Robbins Umeda LLP -- http://www.robbinsumeda.com-- is a
California-based law firm with significant experience representing
investors in securities fraud class actions, merger-related
shareholder class actions, and shareholder derivative actions.
VONAGE HOLDINGS: Obtained Final Approval of Consumer Suit Deal
--------------------------------------------------------------
Vonage Holdings, Inc., obtained final court approval of a
settlement resolving a consolidated consumer class action
complaint, the Company disclosed in its August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
The Company was named in several purported class actions venued in
California, New Jersey, and Washington alleging a wide variety of
deficiencies with respect to the Company's business practices and
marketing disclosures.
The class actions, on behalf of both nationwide and state classes,
generally alleged that the Company delayed and/or refused to allow
consumers to cancel their Vonage service; failed to disclose
procedural impediments to cancellation; failed to adequately
disclose that their 30 or 60-day money back guarantee did not give
consumers 30 to 60 days to try out the Company's services;
suppressed and concealed the true nature of the Company's services
and disseminated false advertising about the quality, nature and
terms of its services; imposed an unlawful early termination fee;
and invoked unconscionable provisions of the Company's Terms of
Service to the detriment of customers. On August 15, 2007, the
actions were consolidated and transferred to the United States
Court for the District of New Jersey, captioned In re Vonage
Marketing and Sales Practices Litigation, MDL No. 1862, Master
Docket No. 07-CV-3906 (USDC, D.N.J.). On September 23, 2010, the
parties reached a proposed settlement that includes a release and
dismissal with prejudice of all consumer claims against the
Company alleged in the Class Action and provides a settlement
benefit of $4,750,000 into a common fund for the benefit of class
members. The common fund includes all awarded fees, costs, and
expenses (including attorneys' fees and costs), certain costs to
provide notice of settlement, administrative expenses, and
incentive awards, if any, with the remainder of the common fund to
be distributed to members of the class pursuant to a plan of
allocation among class members. On January 3, 2011, the Court
granted preliminary approval of the settlement and set a schedule
whereby notice of the proposed settlement, the final hearing date,
and other interim deadlines were to be provided to potentially
eligible plaintiffs. A final hearing on the settlement occurred
on May 12, 2011. At that hearing, the Court granted final
approval of the settlement. The deadline for filing claims was
July 11, 2011.
The Company previously recorded a reserve of $4,750,000 to reflect
the proposed settlement. This amount was paid into an escrow
account in January 2011. Of this amount, $2,750,000 was recorded
for the three months ended September 30, 2010; with $1,500,000 and
$750,000 recorded as a reduction to customer equipment and
shipping and telephony services revenue, respectively, and
$500,000 recorded as selling, general and administrative expense
in the consolidated statement of operations. The remaining
$2,000,000 was recorded as selling, general and administrative
expense in the consolidated statement of operations for the three
months ended March 31, 2010.
Vonnage Holdings Inc. is a provider of communications services
connecting individuals through broadband devices worldwide. It
relies heavily on its network, which is a flexible, scalable
Session Initiation Protocol (SIP) based Voice over Internet
Protocol, or VoIP, network that rides on top of the Internet. The
platform enables a user via a single "identity," either a number
or user name, to access and utilize services and features
regardless of how they are connected to the Internet, including
over 3G, 4G, Cable, or DSL broadband networks. This technology
enables the Company to offer attractively priced services that
provide the Company's customers with access to Vonage voice,
messaging, and features, regardless of location, device, or their
form of Internet access.
VULCAN MATERIALS: July 2012 Trial Set in Suits vs. Florida Rock
---------------------------------------------------------------
A July 2012 trial has been set in the consolidated class action
lawsuits against Vulcan Materials Company's subsidiary, Florida
Rock Industries, Inc., according to the Company's August 4, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
The Company's subsidiary, Florida Rock Industries, Inc., has been
named as a defendant in a number of class action lawsuits filed in
the United States District Court for the Southern District of
Florida. The lawsuits were filed by several ready-mixed concrete
producers and construction companies against a number of concrete
and cement producers and importers in Florida. There are now two
consolidated amended complaints: (1) on behalf of direct
independent ready-mixed concrete producers, and (2) on behalf of
indirect users of ready-mixed concrete. The other defendants
include Cemex Inc., Tarmac America LLC, and VCNA Prestige Ready-
Mix Florida, Inc. The complaints allege various violations under
the federal antitrust laws, including price fixing and market
allocations.
The Company says it has no reason to believe that Florida Rock is
liable for any of the matters alleged in the complaint, and the
Company is defending the case vigorously. Discovery is ongoing.
Trial is scheduled for July 2012.
VULCAN MATERIALS: "Addair" Suit Still Stayed in West Virginia
-------------------------------------------------------------
The purported class action lawsuit styled Addair et al. v.
Processing Company, LLC, et al., remains stayed, according to
Vulcan Materials Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
A purported class action case for medical monitoring and personal
injury damages styled Addair et al. v. Processing Company, LLC, et
al., is pending in the Circuit Court of Wyoming County, West
Virginia. The plaintiffs allege various personal injuries from
exposure to perchloroethylene (perc), which was a product
manufactured by Vulcan's former Chemicals business, used in coal
sink labs. Perc is a cleaning solvent used in dry cleaning and
other industrial applications. The perc manufacturing defendants,
including Vulcan, have filed a motion for summary judgment. The
Court has yet to rule on the motion but in the interim has stayed
the litigation. As such, there has been no activity on this
matter pending the Court's ruling.
WAL-MART STORES: Faces Class Action Over Unpaid Overtime
--------------------------------------------------------
Courthouse News Service reports that Wal-Mart stiffs its "asset
protection coordinators" for overtime, a class action claims in
San Bernardino County Court.
A copy of the Complaint in Zackaria v. Wal-Mart Stores, Inc., et
al., Case No. CIVRS1107132 (Calif. Super. Ct., San Bernardino
Cty.), is available at:
http://www.courthousenews.com/2011/08/08/WalMart.pdf
The Plaintiff is represented by:
R. Rex Parris, Esq.
Alexander R. Wheeler, Esq.
Kitty Szeto, Esq.
Douglas Han, Esq.
R. REX PARRIS LAW FIRM
42220 10th Street West, Suite 109
Lancaster, CA 93534
Telephone: (661) 949-2595
- and -
Edwin Aiwazian, Esq.
THE AIWAZIAN LAW FIRM
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
WEBMD HEALTH: Oct. 3 Class Action Lead Plaintiff Deadline Set
-------------------------------------------------------------
Levi & Korsinsky on August 3 disclosed that a class action lawsuit
has been commenced in the United States District Court for the
Southern District of New York on behalf of purchasers of WebMD
Health Corp. common stock from February 23, 2011, through July 15,
2011.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and prospects. Specifically, defendants
misrepresented and/or failed to disclose the following: (a) that,
due to legal and regulatory reviews, WebMD was experiencing
sponsorship cancellations; (b) that WebMD's customers were
delaying advertising on the Company's Web site as a result of
smaller advertising budgets; and (c) as a result of the
aforementioned, defendants lacked a reasonable basis for their
positive statements about the Company and its prospects.
If you are a member of the class and suffered a loss in WebMD
stock, you have until October 3, 2011 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery is not affected by the decision whether or not to serve
as a lead plaintiff. To obtain additional information about your
rights, contact Joseph Levi, Esq. either via e-mail at
jlevi@zlk.com or by telephone at (877) 363-5972, or visit
http://www.zlk.com/webmd-health-wbmd.html
Levi & Korsinsky LLP -- http://www.zlk.com-- is a law firm with
expertise in prosecuting investor securities litigation and
extensive experience in actions involving financial fraud and
represents investors throughout the nation, concentrating its
practice in securities and shareholder litigation.
WELLS FARGO: Settles "Pick-a-Pay" Loan Class Action for $627MM
--------------------------------------------------------------
E. Scott Reckard, writing for Los Angeles Times, reports that in
the latest legal fallout from the mortgage implosion, Wells Fargo
& Co. has agreed to pay $590 million and accounting firm KPMG has
agreed to pay $37 million to settle class-action lawsuits
centering on controversial "pick-a-pay" loans issued by Oakland's
World Savings and later by Wachovia Corp.
Wells Fargo disclosed the proposed settlement on August 5 in a
quarterly filing with the Securities and Exchange Commission. If
approved by a judge, the deal would settle claims of
misrepresentation that investors brought against Wachovia, which
acquired World Savings' parent company in 2006 and was taken over
in turn by Wells Fargo during the financial crisis.
Wells Fargo also said demands from Freddie Mac and Fannie Mae that
it repurchase soured loans may cost it as much as $1.8 billion in
addition to the $1.2 billion it had set aside for such costs as of
June 20.
In a related mortgage bombshell, Bank of America Corp. said in its
quarterly filing on August 4 that Fannie and Freddie were
demanding that it buy back delinquent loans "in numbers that were
not expected." BofA agreed in January to pay the mortgage finance
giants $3 billion to settle such claims, an amount it said at the
time appeared adequate.
Bank of America in June announced an additional $20 billion in
charges related to home loans written by Countrywide Financial
Corp., the aggressive Calabasas lender it acquired in 2008. But
New York Atty. Gen. Eric Schneiderman has urged a state court
judge to reject as inadequate a key settlement agreement: a
proposed $8.5-billion payment to investors in mortgage bonds not
backed by Fannie and Freddie.
Investors spooked by the prospect of still more mortgage losses
drove Bank of America shares down 66 cents, or 7.5%, to $8.17 on
August 5, after a 7.4% fall on August 4.
Wells Fargo's shares fell 53 cents, or 2%, to $25.21 on August 5.
Common stock in the San Francisco-based bank has fallen 13% since
its recent high of $29.01 on July 22, before the big sell-off in
the stock market began.
Darren Robbins, a San Diego attorney representing the plaintiffs,
said the $627 million to be forked over by Wells and KPMG is the
largest total settlement so far of any securities class-action
claims resulting from the mortgage and credit meltdowns.
The runner-up: a $624-million settlement by Bank of America and
KPMG in federal court in Los Angeles of a shareholder class action
alleging that Countrywide misled investors about its financial
condition and lending practices.
"There were about five litigations by various entities,"
Mr. Robbins said. "This suit is the only one that survived . . .
. It's a dramatic recovery."
Wells told investors its financial reporting would not be affected
by the settlement with Wachovia investors because it already had
set aside funds to cover the gigantic payout. It admitted no
liability or wrongdoing by Wachovia in settling with the
plaintiffs, which are pension funds and other large investors that
bought Wachovia's bonds and preferred stock.
Wells Fargo and KPMG, which had audited the books of Charlotte,
N.C.-based Wachovia, said they had agreed to the settlement terms
to avoid the expense and distractions of the litigation.
Several lawsuits consolidated before U.S. District Judge Richard
J. Sullivan in New York alleged that Wachovia had been negligent
in failing to disclose the risks embedded in the portfolio of
pick-a-pay loans, which gave borrowers the option of paying so
little that the amount they owed went up instead of down.
Judge Sullivan in March tossed out many claims against Wachovia
and its former managers, including dismissing lawsuits filed on
behalf of Wachovia's common shareholders. Judge Sullivan rejected
claims that the managers, including former Wachovia Chief
Executive Ken Thompson, had intentionally defrauded or misled
investors.
"Although a colossal blunder with grave consequences for many,
such a failure is simply not enough to support a claim for
securities fraud," Judge Sullivan ruled. "Bad judgment and poor
management are not fraud, even when they lead to the demise of a
once venerable financial institution."
However, he let securities lawsuits filed on behalf of the holders
of Wachovia bonds and preferred shares proceed on grounds of
negligence.
Klayman & Toskes, P.A.'s Statement
The Securities Arbitration Law Firm of Klayman & Toskes, P.A. on
August 6 disclosed that a global settlement has been reached with
all defendants in the class action lawsuit, In re: Wachovia
Preferred Securities and Bond/Notes Litigation, Case No. 09-cv-
06351, on behalf of investors who purchased certain Wachovia n/k/a
Wells Fargo preferred securities and bonds pursuant or traceable
to numerous public offerings between July 31, 2006 and May 29,
2008. The settlement consists of a $590 million settlement with
Wachovia and its affiliated entities, including various
underwriters and certain former Wachovia officers and directors,
as well as a $37 million settlement with KPMG, LLP, Wachovia's
auditor. The settlements still need to be reviewed and approved
by the District Court Judge.
Potential class members who purchased Wachovia preferred
securities and bond/notes from an underwriter/broker dealer
defendant should consider whether they should opt out to file an
individual securities arbitration claim against the brokerage firm
who sold them the products, or participate in the class action.
K&T reminds investors of the benefits of filing an individual
securities arbitration claim, as opposed to participating in a
class action lawsuit. By participating in a class action lawsuit,
an investor may only recover a nominal amount. However, if one
has experienced significant losses, it may be more beneficial for
them to file an individual securities arbitration claim. In 2003,
K&T conducted a detailed study of securities arbitration versus
class action. The study concluded that investors who file a
securities arbitration claim traditionally obtain an overall
higher rate of recovery as opposed to participating in a class
action lawsuit.
Investors who purchased Wachovia preferred securities and
bond/notes from a full service brokerage firm and sustained
significant losses can contact K&T to explore their legal rights
and options. The attorneys at K&T are dedicated to pursuing
claims on behalf of high-net-worth, ultra-high-net-worth and
institutional investors who have suffered investment losses. K&T,
an experienced, qualified and nationally recognized securities
litigation law firm, practices exclusively in the field of
securities arbitration and litigation. It continues its
representation of investors throughout the world in securities
arbitration and litigation matters against major Wall Street
brokerage firms.
If you wish to discuss this announcement or sustained investment
losses of $250,000 or more in Wachovia preferred securities and
bond/notes, please contact:
Steven D. Toskes, Esq.
Jahan K. Manasseh, Esq.
Klayman & Toskes, P.A.
Telephone: 888-997-9956
Web site: http://www.nasd-law.com
YUHE INT'L: Class Action Lead Plaintiff Motion Deadline Nears
-------------------------------------------------------------
Class action lawsuits were filed in the United States District
Courts for the Southern District of Florida, the Central District
of California, and the Southern District of New York, on behalf of
purchasers of the common stock of Yuhe International, Inc. between
December 31, 2009, and June 23, 2011.
According to the complaints, on June 16, 2011, GeoInvesting
published a report that revealed to investors that Yuhe did not
acquire 13 breeder farms from Weifangshi Dajiang Group Co. Ltd, as
Yuhe represented. In reaction to the report, shares of Yuhe fell
more than 70% to close at $1.21 per share on June 17, 2011, when
NASDAQ imposed a trading halt.
On June 23, 2011, Yuhe announced that its auditor resigned due to
"management's misrepresentation and failure to disclose material
facts surrounding certain acquisition transactions and off-balance
sheet related party transactions." The auditor said Yuhe's 2010
financial statements should not be relied upon.
If you purchased Yuhe stock during the Class Period you may, no
later than August 23, 2011, file a motion with the Court to
appoint your lead plaintiff. A lead plaintiff is a representative
party that directs the litigation, and will be the movant that the
Court determines to have the largest financial interest in the
litigation with claims typical of those of other class members and
the ability to adequately represent the class. Your share in any
recovery will not be enhanced or diminished by serving as a lead
plaintiff. You do not need to be a lead plaintiff to recover in a
class action; you can recover as an absent class member. You may
retain Milberg LLP, or other attorneys, for this action, but do
not need to retain counsel to recover as an absent class member.
The complaints in this action were not filed by Milberg.
Please visit the Milberg Web site -- http://www.milberg.com-- for
more information about the firm. If you wish to discuss this
matter with us, please contact the following attorney:
Andrei V. Rado, Esq.
Milberg LLP
One Pennsylvania Plaza, 49th Fl.
New York, NY 10119-0165
Telephone: (800) 320-5081
E-mail: contactus@milberg.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne
Lopez, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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