CAR_Public/110908.mbx              C L A S S   A C T I O N   R E P O R T E R

           Thursday, September 8, 2011, Vol. 13, No. 178

                             Headlines

BJ'S WHOLESALE: Faces 13 Class Suits Over Proposed Sale to Beacon
BLUE COAT: Faces Securities Class Suit in California
BLUE COAT: Objector Cannot Appeal Settlement Order, Court Says
BORDERS: Employees Seek Class Action Over Severance Pay
CAMSING GLOBAL: Recalls 10T LED Night Lights Due to Burn Hazard

CONSTELLATION ENERGY: Robbins Umeda Files Class Action
DURHAM REGION: Class Action Opt-Out Deadline Passes
GOV'T OF AUSTRALIA: Asylum Seekers Sent to Nauru Can File Suit
GOV'T OF AUSTRALIA: May Face Class Action Over Eastlink Cameras
HONDA CARS: Recalls 19,143 units of Jazz, City and CR-V Models

IMPERIAL SUGAR: Weiss & Lurie Looks Into Securities Violations
JAMAICA PUBLIC SERVICE: Set to Face Class Action This Week
LEIGHTON HOLDINGS: Class Action Won't Hurt Airport Link Project
MERCK CANADA: Motion to Convene Fosamax Quebec Suit Dismissed
MICROSOFT: Gets Location Data Without Permission, Kamkar Says

MILLER ENERGY: Class Action Lead Plaintiff Deadline Nears
POWERCOR: Has Liability for Black Saturday Bushfires, Suit Says
TUESDAY MORNING: Continues to Defend Alabama Class Suit
TUESDAY MORNING: Continues to Defend California Class Suit
VENOCO INC: Weiss & Lurie Investigates Fiduciary Duty Breaches

WASHINGTON UNIVERSITY: Nov. 28 Settlement Fairness Hearing Set

* Mexico Enacts Class Action Laws
* Reform Sought for Wisconsin's Class-Action Statute





                             *********

BJ'S WHOLESALE: Faces 13 Class Suits Over Proposed Sale to Beacon
-----------------------------------------------------------------
BJ's Wholesale Club, Inc., is facing 13 shareholder class action
lawsuits over its proposed sale to Beacon Holding Inc., according
to the Company's September 1, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 30,
2011.

On June 28, 2011, the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Beacon Holding Inc.
("Buyer") and Beacon Merger Sub Inc., a wholly-owned subsidiary of
Buyer ("Transitory Subsidiary"), providing for the merger of
Transitory Subsidiary with and into the Company (the "Merger"),
with the Company surviving the Merger as a wholly-owned subsidiary
of Buyer.  Buyer and Transitory Subsidiary are affiliates of
Leonard Green & Partners, L.P. ("Leonard Green") and CVC Capital
Partners ("CVC").  Pursuant to the Merger Agreement, at the
effective time of the Merger, each issued and outstanding share of
the Company's common stock will be canceled and converted
automatically into the right to receive $51.25 in cash, without
interest and less any applicable withholding taxes.  The aggregate
purchase price approximates $2.8 billion.

The Company, its directors, Buyer, Transitory Subsidiary, Leonard
Green and CVC have been named as defendants in twelve putative
class actions filed in the Court of Chancery of the State of
Delaware between June 29, 2011, and July 13, 2011.  On July 26,
2011, these cases were consolidated into one action captioned In
re BJ's Wholesale Club, Inc. Shareholder Litigation, Consolidated
C.A. No. 6623-VCN, and on July 28, 2011, the plaintiffs filed a
consolidated complaint.  That action, purportedly brought as a
class action on behalf of all of the Company's stockholders (other
than the defendants), alleges that the Company's directors
breached their fiduciary duties in connection with the proposed
merger by, among other things, failing to fully inform themselves
of the Company's market value, failing to issue complete and
accurate disclosures related to the merger, failing to maximize
stockholder value, failing to obtain the best financial and other
terms and act in the best interest of public stockholders, and by
seeking to benefit themselves improperly.  The complaint further
alleges that the non-Company and non-director defendants aided and
abetted the directors' purported breaches.  The plaintiffs sought
injunctive and other equitable relief, including to enjoin the
Company from consummating the merger, in addition to fees and
costs.  After expedited discovery in the action, the Company filed
two Definitive Additional Proxy materials on August 29 and
August 31.  As a result of those filings, the plaintiffs withdrew
their motion for a preliminary injunction.

In addition, the Company, its directors, Buyer, Transitory
Subsidiary, Leonard Green, and CVC have been named as defendants
in a putative class action filed in the United States District
Court for the District of Massachusetts in an action captioned
Puzey v. BJ's Wholesale Club, Inc., et al., No. 1:11-cv-11339-MWL.
In addition to the allegations contained in the consolidated
litigation, the Massachusetts action alleges that the defendants
violated federal securities laws in connection with the filing of
the preliminary proxy.  The plaintiffs also seek injunctive and
other equitable relief, including to enjoin the Company from
consummating the merger and to impose a constructive trust, in
addition to fees and costs.  The Company filed a motion to stay
the case on August 30, 2011.

The Company, the members of its board of directors and each of the
other named defendants believe that the lawsuits are without merit
and intend to defend each of them vigorously.  The Company does
not expect that these lawsuits will have a material adverse effect
on its financial statements.


BLUE COAT: Faces Securities Class Suit in California
----------------------------------------------------
Blue Coat Systems, Inc., is facing a purported securities class
action lawsuit in California, according to the Company's
August 31, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2011.

On August 30, 2011, a purported securities class action complaint
was filed in the Unites States District Court for the Northern
District of California against the Company and certain of its
current and former officers by an individual on behalf of a
putative class of persons who purchased the Company's common stock
between November 24, 2009, and May 27, 2010.  The complaint
alleges that the defendants made false or misleading statements
about the Company's business and prospects in violation of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5 promulgated thereunder.  The complaint seeks
compensatory damages, attorneys' fees and costs, and such other
relief as the court deems proper.  Due to the recent filing of the
complaint, management has not yet assessed the potential impact of
the outcome of the claim.


BLUE COAT: Objector Cannot Appeal Settlement Order, Court Says
--------------------------------------------------------------
The United States District Court for the Southern District of New
York ruled that the objector that submitted the remaining set of
appeals from the approval of a global settlement in the
consolidated IPO lawsuit involving Blue Coat Systems, Inc., and
its subsidiary does not have standing to object to the settlement,
according to the Company's August 31, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 31, 2011.

Beginning on May 16, 2001, a series of putative securities class
actions were filed in the United States District Court for the
Southern District of New York against the firms that underwrote
the Company's initial public offering, the Company, and some of
its officers and directors.  These cases have been consolidated
under the case captioned In re CacheFlow, Inc. Initial Public
Offering Securities Litigation, Civil Action No. 1-01-CV-5143.  In
November 2001, a putative class action lawsuit was filed in the
United States District Court for the Southern District of New York
against the firms that underwrote the initial public offering of
the Company's subsidiary, Packeteer Inc., Packeteer, and some of
its officers and directors.  An amended complaint, captioned In
re, Inc. Initial Public Offering Securities Litigation, Civil
Action No. 01-CV-10185, was filed on April 20, 2002.

These are two of a number of actions coordinated for pretrial
purposes as In re Initial Public Offering Securities Litigation,
21 MC 92, with the first action filed on January 12, 2001.
Plaintiffs in the coordinated proceeding are bringing claims under
the federal securities laws against numerous underwriters,
companies, and individuals, alleging generally that defendant
underwriters engaged in improper and undisclosed activities
concerning the allocation of shares in the IPOs of more than 300
companies during late 1998 through 2000.  Among other things, the
plaintiffs allege that the underwriters' customers had to pay
excessive brokerage commissions and purchase additional shares of
stock in the aftermarket in order to receive favorable allocations
of shares in an IPO.

The consolidated amended complaint in the Company's case seeks
unspecified damages on behalf of a purported class of purchasers
of the Company's common stock between December 9, 1999, and
December 6, 2000.  Pursuant to a tolling agreement, the individual
defendants were dismissed without prejudice.  On February 19,
2003, the Court denied the Company's motion to dismiss the claims
against the Company.

The amended complaint in the Packeteer case seeks unspecified
damages on behalf of a purported class of purchasers of
Packeteer's common stock between July 27, 1999, and December 6,
2000.

In June 2004, a stipulation of settlement and release of claims
against the issuer defendants, including the Company and
Packeteer, was submitted to the Court for approval.  On
August 31, 2005, the Court preliminarily approved the settlement.
In December 2006, the appellate court overturned the certification
of classes in six test cases that were selected by the underwriter
defendants and plaintiffs in the coordinated proceedings.  Because
class certification was a condition of the settlement, it was
deemed unlikely that the settlement would receive final Court
approval.  On June 25, 2007, the Court entered an order
terminating the proposed settlement based upon a stipulation among
the parties to the settlement.  Plaintiffs have filed amended
master allegations and amended complaints in the six focus cases.
On March 26, 2008, the Court denied the defendants' motion to
dismiss the amended complaints.

The parties reached a global settlement of the litigation and the
plaintiffs filed a motion for preliminary settlement approval with
the Court on April 2, 2009.  Under the settlement, the insurers
will pay the full amount of settlement share allocated to the
Company and Packeteer, and the Company and Packeteer would not
bear any financial liability.  On October 5, 2009, the Court
entered an order granting final approval of the settlement.
Certain objectors appealed that order to the Court of Appeals for
the Second Circuit and submitted their opening briefs in fall
2010.  In December 2010, the plaintiffs moved to dismiss certain
appeals and in May 2011, the Second Circuit issued an order
granting the motion to dismiss as to one set of appeals and
remanding the remaining set of appeals to the Court for further
action.  On August 25, 2011, the Court ruled that the objector
that submitted the remaining set of appeals is not a class member,
and therefore, does not have standing to object to the settlement.


BORDERS: Employees Seek Class Action Over Severance Pay
-------------------------------------------------------
Judith Rosen, writing for Publishers Weekly, reports that when the
Key Employee Incentive Plan, or KEIP, was approved in April, it
was intended to encourage Borders's senior management to stay on
and either reorganize Borders or sell it as a going concern.
Since that didn't happen, the company is back in court to request
a bonus package for management, which totals $1.75 million.  The
severance provides for $125,000 for fifteen management employees,
including former CEO Mike Edwards and former CFO Scott Henry who
were both terminated on July 29.

In a filing in support of the payments, Borders president Holly
Felder Etlin, managing director of AlixPartners, writes that "in
coordinating an expeditious and orderly liquidation, Mr. [Jim}
Freering, Ms. [Rosalind] Thompson, and the Non-Insider Management
Employees remaining with the company are working tirelessly for
the benefit of all creditors, yet are currently working themselves
out of a job upon completion of the task."  She also praises
Edwards and Henry for working "long, hard and to the absolute best
of their abilities for the Debtors."

While Borders is looking to reward management for its tireless
efforts, rank-and-file Borders employees, who were part of a mass
layoff at the company's headquarters in Ann Arbor, have issued a
class action lawsuit to obtain their severance pay.  On Sept. 2,
Jared Pinsker, who was terminated on July 23, filed for 60 days of
unpaid wages and benefits under WARN, the Worker Adjustment and
Retraining Notification Act of 1988, for himself and 300 other
employees.

Both issues will likely be taken up at a hearing today.


CAMSING GLOBAL: Recalls 10T LED Night Lights Due to Burn Hazard
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Corvest Acquisition Inc., now Camsing Global LLC, of Largo,
Florida, announced a voluntary recall of about 10,000 LED night
lights.  Consumers should stop using recalled products immediately
unless otherwise instructed.  It is illegal to resell or attempt
to resell a recalled consumer product.

The LED night lights can overheat, smolder, and melt which may
cause minor burns to consumers.

The firm has received five reports of the recalled LED night
lights overheating, smoldering or melting.  No injuries have been
reported.

The LED night light contains flame retardant elements, plugs into
an electrical outlet, has a white or blue LED bulb, and a clear
bulb cover.  "Model SBD01", the number "E314462" and "Made in
China" are stamped on the back of the night light's plastic white
base.  The night lights measure about 1 3/4 inches wide by 3 3/4
inches high.  Pictures of the recalled products are available at:

     http://www.cpsc.gov/cpscpub/prerel/prhtml11/11318.html

The recalled products were manufactured in China and distributed
by various companies as a free promotional product, imprinted with
the company's name from December 2010 through March 2011.

Consumers should immediately stop using the recalled night lights
and discard them.  For additional information, contact Camsing
Global toll-free at (877) 924-4624 between 9:00 a.m. and 5:00 p.m.
Eastern Time, or visit the firm's Web site at
http://www.camsingglobal.com/


CONSTELLATION ENERGY: Robbins Umeda Files Class Action
------------------------------------------------------
Robbins Umeda LLP disclosed that the firm commenced a class action
lawsuit on August 30, 2011, in the U.S. District Court for the
District of Maryland on behalf of all persons who hold shares of
common stock of Constellation Energy Group, Inc. against
Constellation Energy and its board of directors for violations of
sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in
connection with the proposed acquisition of Constellation Energy
by Exelon Corporation.

The complaint arises out of an April 28, 2011, press release
announcing that Constellation Energy had entered into a definitive
merger agreement with Exelon, pursuant to which Constellation
Energy shareholders would receive 0.930 shares of Exelon for each
share of Constellation Energy they own, which based on Exelon's
closing price on April 27, 2011, is equivalent to $38.59 per
share.

The complaint alleges that certain of the defendants, in
connection with the 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 Constellation Energy 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 Constellation
Energy shareholders as of April 28, 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 September 1, 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.
The firm's skilled litigation teams include former federal
prosecutors, former defense counsel from top multinational
corporate law firms, and career shareholder rights attorneys.
Robbins Umeda LLP has helped its clients realize more than $1
billion of value for themselves and the companies in which they
have invested.


DURHAM REGION: Class Action Opt-Out Deadline Passes
---------------------------------------------------
Geoff Zochodne, writing for The Oshawa Express, reports that the
Deadline to opt-out of a class action lawsuit against the Durham
Region Health Department has passed.

Aug. 31 was the final day for any one of those residents to opt
out of the lawsuit.

The class action stems from the loss of a USB storage device that
held the personal and confidential information of more than 83,500
residents.  Forty million dollars worth of damages are being
sought by the plaintiffs, who are charging the Region with
negligence, a breach of fiduciary duty and a breach of Section 7
of the Canadian Charter of Rights and Freedoms among other
reasons.

The C$40 million asked for would include funds for special credit
monitoring to protect against identity theft.

A motion made back in December 2010 alleges the lawsuit was
launched, "for damages arising out of the loss of the USB key, and
especially in light of the prospect that the confidential
information about the Class Members contained in the USB key might
be used to facilitate identity theft."

The plaintiffs are being represented by law firm Flaherty Dow
Elliott & McCarthy LLP, which would be paid 25%, if approved by
the court, and if they successfully complete the class action.

The Region of Durham and its counsel, Toronto lawyer David
Boghosian, stated previously to The Express that they regret the
loss, but have yet to see any consequences from it.

"The period of risk is past," said Mr. Boghosian on the
possibility of the information being misused.  "Seeing as we're
more than a year-and-a-half past the loss of the key . . . it's
not going to happen."

The court ordered members of the class action should have been
alerted through newspaper advertisements and by mailing alerts to
last known addresses.

The reason for automatic inclusion was clarified by the Region as
being, ". . . mandated by the Class Proceedings Act, which is the
provincial legislation that governs class actions in Ontario."


GOV'T OF AUSTRALIA: Asylum Seekers Sent to Nauru Can File Suit
--------------------------------------------------------------
Kirsty Needham, writing for The Sydney Morning Herald, reports
that asylum seekers sent to Nauru by the Howard government -- and
the families of those who died after being returned to Afghanistan
-- could now sue, lawyers have told the Herald.

George Newhouse, of Shine Lawyers, said the firm is investigating
whether there was a class action for the wrongful removal of
detainees from Australia to Nauru on the basis that the minister's
declaration of Nauru "as a declared country" under section 198A of
the Migration Act was invalid.

Mr. Newhouse said there may be statute of limitation concerns, but
this and other issues were being compiled into a brief to the
former Federal Court judge Ron Merkel, QC.

The opposition wants to reopen Nauru for offshore processing, but
the federal government has argued last week's High Court decision
not only knocks out its Malaysia deal, but also prevents the
removal of asylum seekers from Australia to Nauru and Papua New
Guinea.

Stephen Estcourt, QC, in a written opinion for the Edmund Rice
Centre, agreed on Sept. 5 that the High Court's ruling meant that
removing asylum seekers to Nauru or Papua New Guinea under Section
198A was invalid.

Mr. Estcourt told the Herald this opened the "distinct
possibility" that asylum seekers sent to Nauru by the Howard
government could sue.

"They would have been removed under a statute that didn't allow
their removal . . . The potential is there for not just wrongful
removal, but wrongful detention," he said.

The agreement between Australia and Nauru signed in 2001 "cannot
be practically enforced or relied upon".

The Edmund Rice Centre director, Phil Glendenning, said nine
Afghans who had been held on Nauru and were sent back to
Afghanistan died, including children.  Others developed mental
illness.  "Having seen what Nauru did last time, we just can't go
there again," Mr. Glendenning said.

Mr. Newhouse sued the Howard government on behalf of Vivian
Alvarez Solon, who was illegally removed from an Australian
immigration detention to the Philippines in 2001, and was awarded
$4.5 million.  Another client, Cornelia Rau, who was wrongfully
detained, was awarded $2.6 million.

The Immigration Minister, Chris Bowen, said on Sept. 5 the 335
asylum seekers who had arrived after the Malaysia deal was signed
would be processed in Australia.  "That's the right thing to do,"
he said.

The immigration department said it was looking at options to
school a large group of unaccompanied teenagers.


GOV'T OF AUSTRALIA: May Face Class Action Over Eastlink Cameras
---------------------------------------------------------------
Paul Tatnell, writing for Herald Sun, reports that drivers were
fined on the same stretch of road and nabbed by the same cameras.

But just like scores of other angry drivers, they had no choice
but to pay their fines.

Michele Flynn was nabbed six times in five weeks along EastLink
and said she did not have the time, money or legal help to fight
the fines.

She still claims she was doing 95km/h, not the alleged 106km/h.

"I knew the whole time there was a problem and that someone,
somewhere would come by and actually win," Ms. Flynn said.

"I hate the fact the people with limited funds cannot take a legal
stand because they don't have the time or money.  Most of us (now)
just avoid the road.

"But I am impressed that (Sen-Constable Pitman) stayed in there
and fought.  Good on her."

Langwarrin man Victor Armstrong was also fined in June 2009 -- he
too claimed he was travelling at 98km/h.

And, like Ms. Pitman, he said he watched his speedometer as he
went under the camera that nabbed him.

"I know I wasn't speeding, I just warned my daughter to be careful
because of all the cameras," Mr. Armstrong said.

"I deliberately slowed to under 100km/h."

But despite missing two days off work to fight the fine, he
eventually paid up.

"Someone had to beat it, and I would like to join any class action
to recoup the money that I and everybody has paid," he said.


HONDA CARS: Recalls 19,143 units of Jazz, City and CR-V Models
--------------------------------------------------------------
Abigail L. Ho of the Philippine Daily Inquirer reports that Honda
Cars Philippines Inc. (HCPI) has initiated a recall of 19,143
units of its Jazz, City and CR-V models to replace the power
window master switch assembly.

HCPI sales and corporate communications head Voltaire Gonzales
told newsmen on Monday, September 5, 2011, the recall did not
involve major safety issues, but was only being done to forestall
any inconvenience to motorists.

Mr. Gonzales said car owners who use silicon-based air fresheners
and cleaning agents were likely to damage the switch as the
silicon enters the assembly and hastens wear.

Silicon particles can accumulate between the power source and the
switch, causing carbonization of the resin material in the switch.
This can result in smoke or, at worst, partial burning of the
window switch cover, Mr. Gonzales said.

So far, none of the vehicles that had been brought for repair had
such problems, he said.

"The problem manifests itself over time, so car owners won't
immediately encounter this.  It won't cause an explosion, but it
could be an inconvenience to the user if it happens," he said.

Covered by the recall are 2,924 units of the 2005-2007 Jazz,
13,352 units of the 2006-2008 City, and 2,867 units of the 2005-
2006 CR-V.

Vehicle owners will not be charged for the parts, including labor
and materials.  Owners of affected vehicles only have to set an
appointment with any of the 28 authorized HCPI dealers and three
service centers nationwide.  Repairs, excluding waiting time, will
take only 30 minutes, Mr. Gonzales said.


IMPERIAL SUGAR: Weiss & Lurie Looks Into Securities Violations
--------------------------------------------------------------
Weiss & Lurie, a national class action and shareholder rights law
firm with offices in New York City and Los Angeles, is
investigating possible violations of federal securities laws by
Imperial Sugar Company IPSU on behalf of investors who purchased
Imperial Sugar securities between December 29, 2010, and August 5,
2011.

On August 5, 2011, Imperial Sugar filed its Form 10-Q for the
quarter ended June 30, 2011, and shocked investors by revealing
that the Company's industrial sales volumes had declined by more
than 40% from the same prior year period.  As a result, Imperial
Sugar stock fell by over 60%, from $23.19 on August 4, 2011, to
$9.44 on August 5, 2011.

In connection with this news, Weiss & Lurie is investigating
whether Defendants issued materially false and misleading
statements during the Class Period by, among other things,
misrepresenting or failing to disclose that: (i) Imperial Sugar
was experiencing a known reduction in customer demand for its
products resulting from Mexican and other sugar refiners selling
sugar products into Imperial Sugar's markets at steeply discounted
prices; (ii) that the decline in sales volumes was primarily due
to a lack of customer demand ensuing from competitors selling
lower-priced products into Imperial Sugar's markets and not due to
Company refinery production supply constraints; (iii) Imperial
Sugar was experiencing a significant decline in its gross margins;
and (iv) Imperial Sugar's Port Wentworth refinery was experiencing
ongoing operating defects resulting in higher production costs and
adversely impacting Imperial Sugar's gross margins.

If you purchased Imperial Sugar securities during the Class Period
and suffered losses, or if you have any information that may be
relevant to our investigation, please contact Michael A. Rogovin
by e-mail at info@weisslurie.com or by telephone at (888) 593-
4771. If you wish to serve as lead plaintiff in a class action
lawsuit against Imperial Sugar, you must file a motion with the
Court by October 31, 2011.  Any class member may move to serve as
lead plaintiff, or can choose to do nothing and remain an absent
class member.


JAMAICA PUBLIC SERVICE: Set to Face Class Action This Week
----------------------------------------------------------
Jerome Reynolds, writing for the Jamaica Gleaner, reports that a
group organizing a class action suit against the Jamaica Public
Service Company (JPS) is expected to hear details of the legal
arguments, its lawyer plans to make in court, during a meeting
currently underway.

The meeting is being held at Jo-Jo's Restaurant on Waterloo Road.

The group is being represented by attorney-at-law, Hugh Wildman,
who has indicated that the suit will be filed in the Supreme Court
this week.

Contacted by Jamaica Gleaner's news center, Mr. Wildman declined
to provide details of the declarations or orders he will seek in
the class action suit.

However, the attorney said he will challenge the constitutionality
of the JPS license.

Mr. Wildman has contended that the license became unconstitutional
with the passage of the Charter of Rights earlier this year.

He said sections of the Charter of Rights stipulate that every
Jamaican has the right to equality under the law and the right to
equitable and humane treatment by any public authority in the
exercise of any function.

There have been mounting calls for the Government to end the JPS
monopoly on electricity distribution, amid increasing electricity
bills and complaints about poor customer service.

The group is inviting Jamaicans who have been victims of
questionable electricity bills to join the class action suit
against the light and power company.

Persons, who wish to sign the petition to bring the class action
suit against the JPS, can visit the Web site --
http://www.jpspetition.comand sign up.


LEIGHTON HOLDINGS: Class Action Won't Hurt Airport Link Project
---------------------------------------------------------------
Nine News reports that Queensland Treasurer Andrew Fraser says a
class action against the government's private partner on the
Airport Link won't place the project in jeopardy.

Law firm Maurice Blackburn says shareholders will take legal
action against Leighton Holdings, claiming it failed to disclose
problems on key infrastructure projects, including cost increases,
delays, and the need for further write-downs.

On April 11, Leighton announced it expected to post a loss of
AUD427 million for the 2010/11 financial year, a turnaround from a
AUD480 million profit in 2009/10.

Mr. Fraser said the class action was a matter for Leighton and was
not embarrassing for the state.

"I have no doubt whatsoever that the Airport Link will be
delivered on time next year in full," he told reporters in
Brisbane on Sept. 1.

"In the end, what we've got is a great deal for taxpayers.  You're
going to get the tunnel delivered and that's the upshot."

Airport Link will be the first major motorway linking Brisbane
city to the northern suburbs and airport precinct, avoiding up to
18 sets of traffic lights.


MERCK CANADA: Motion to Convene Fosamax Quebec Suit Dismissed
-------------------------------------------------------------
In early June 2011, the Quebec Superior Court dismissed a motion
seeking authorization of a class action against Merck Canada Inc.
and Merck & Co. Inc. on behalf of all natural persons in Quebec
who had purchased or taken Fosamax.  The petitioner in case no.
2011 QCCS 2447, Option consommateurs (a not-for-profit association
"whose mission is to promote and defend the basic rights of
consumers and ensure that they are recognized and respected,"
according to its Web site), alleged that the Merck companies had
been negligent and failed in their duties to inform when marketing
the drug, the use of which has been linked to osteonecrosis of the
jaw.  The petitioner also alleged that Fosamax increases the risk
of atypical bone fractures.  The class action would have sought
reimbursement of the price paid for the drug, plus compensatory
and punitive damages.

The Superior Court denied the motion, finding that the petitioner
had failed to show that certain prerequisites to the approval of
class action were met.  Specifically, the court found that the
individual questions concerning the existence of harm, a causal
relationship between the harm and the drug, and exculpatory
grounds were too numerous for class action to be appropriate.
Only the question of fault (that is, negligence, manufacturing
defect, and/or a breach of the duty to inform the public of the
dangers of the drug) might be decided on a common basis.

Further, the court was evidently not persuaded that there are so
many potential class members that a class it warranted, nor that
the petitioner is in a position to provide adequate representation
of any class that might be established (in part because of
inconsistencies in the petitioner's designee's testimony and her
stated intention to move to Germany).

The U.S. Food and Drug Administration issued a Fosamax warning in
October 2010, stating that the drug, among other bisphosphonates,
causes atypical low-impact femur fractures.  Subsequently,
numerous lawsuits were filed against the manufacturer in various
federal courts.  The suits (consolidated for pretrial proceedings
as In Re: Fosamax (Alendronate Sodium) Products Liability
Litigation (No. II), Civil Action No, 08-08 in the United States
District Court for the District of New Jersey) allege, among other
things, that Merck inadequately tested the drug and then failed to
warn users of its dangers.

The Rottenstein Law Group urges anyone whose friend or relative
has been prescribed Fosamax or another osteoporosis drug to reach
out to that person and recommend that he or she consult a
physician immediately and then speak to a qualified personal
injury lawyer.  The Rottenstein Law Group maintains a Fosamax
Lawsuit Information Center at
http://www.fosamaxfemurfracturelawsuit.com.

                 About The Rottenstein Law Group

The Rottenstein Law Group -- http://www.rotlaw.com-- is a New
York-based law firm that represents clients in mass tort actions.

Contact: The Rottenstein Law Group, LLP
         Rochelle Rottenstein, Esq.
         1259 Veeder Drive
         Hewlett NY 11557
         Telephone: (212) 933-9500 (office phone)
         E-mail: rochelle@rotlaw.com


MICROSOFT: Gets Location Data Without Permission, Kamkar Says
-------------------------------------------------------------
Declan McCullagh, writing for CNET News reports that a security
researcher says that Microsoft's Windows Phone 7 software can
transmit your location without your explicit permission.

An analysis by Samy Kamkar says that the Camera application sends
the device's location -- complete with latitude and longitude, a
unique ID, and nearby Wi-Fi access points -- to Microsoft even
when the user has not given the app permission to do so.  Here are
more details on how it works.

"The Windows Mobile operating system is clearly sending
information that can lead to accurate location information of the
mobile device regardless of whether the user allowed it,"
Mr. Kamkar wrote in an analysis made public on Aug. 31 as part of
a lawsuit filed against Microsoft.  Lawyers for the suit, who are
seeking class action status, hired him to perform the testing.
An excerpt from analysis by Samy Kamkar, says the Camera app
transmits the phone's latitude and longitude to Microsoft servers.

Microsoft declined to comment to CNET.

Mr. Kamkar, who once landed in legal hot water for creating a worm
that garnered him a million friends on MySpace overnight in 2005,
has recently focused on geolocation privacy issues, including
creating a Web site that allowed people to look up the unique ID
of their computer or Wi-Fi access point and see its location.
Google disabled that service after a CNET article in June drew
attention to privacy concerns.

The privacy issue that Kamkar identified may not be huge: for one
thing, there's no evidence even a single customer was harmed as a
result.  Second, turning off location services completely (through
the phone's global settings option) should disable any
transmission of geolocation data to Microsoft.  Like Google,
Apple, and Skyhook Wireless, Microsoft is assembling a
crowdsourced database using what customers' phones can see.

On the other hand, if he's right, Microsoft would be violating its
own privacy pledges to customers.

A Microsoft Web page says the company "surveys available Wi-Fi
access points" only when "the user has allowed a particular
application to access location services and the application
requests location information."  Microsoft has made similar
statements to Congress.

Mr. Kamkar says the Camera application transmits location data to
Microsoft's inference.location.live.net even if the user chooses
to say "no" when prompted.

Concern this year over geolocation privacy began in April, when
researchers showed that iPhones and iPads surreptitiously record
their owner's approximate location and store the data on the
device.  Apple responded by calling it a "bug" and promising a
fix.

The Seattle-based law firm Tousley Brain Stephens, which boasts of
having "a national reputation for achieving exceptional results"
in class action lawsuits, filed the case against Microsoft on
Aug. 31 in federal district court in Washington state.

Their complaint, which cites an Aug. 1 CNET article, says
"Microsoft surreptitiously forces even unwilling users into its
non-stop geo-tracking program in the interest of developing its
digital marketing grid."  (There's no evidence, however, that
Microsoft is using its geolocation database for marketing.  These
databases are typically used to speed up location fixes with Wi-Fi
when cellular connectivity is poor.)

The class action lawyers claim that Microsoft violated a federal
law called the Stored Communications Act, the Electronic
Communications Privacy Act, and the Washington Consumer Protection
Act.


MILLER ENERGY: Class Action Lead Plaintiff Deadline Nears
---------------------------------------------------------
The Rosen Law Firm, P.A. reminds investors of the important
October 11, 2011 lead plaintiff deadline in the securities class
action against Miller Energy Resources, Inc.  If you purchased
Miller common stock during the period from March 15, 2010, through
August 1, 2011, you should contact the Rosen Law Firm for more
information about the importance of serving as lead plaintiff.

To join the Miller class action, visit the Rosen Law Firm's
Web site at http://www.rosenlegal.comor call Laurence Rosen,
Esq., toll-free, at 866-767-3653; you may also e-mail
lrosen@rosenlegal.com for information on the class action.

The Complaint alleges violations of the Securities Exchange Act
against Miller, its Chief Executive Officer, Scott Boruff and CFO
Paul Boyd.  The Complaint alleges that the Company overstated the
value of assets it purchased in a bankruptcy sale by over 1,000%,
and that the Company falsely claimed it had obtained the approval
of its registered independent accountant, KPMG, for this
valuation.

On July 28, 2011, analysts Melissa Davis and Janice Shell issued a
report questioning the valuation. The report revealed that the
assets had been on the market for a year, and that industry
experts found the valuation incredible.  On July 29, 2011, Miller
issued an annual report on Form 10-K, purporting to rebut the
claims, and purporting to include an unqualified audit letter from
KPMG.  On August 1, 2011, Miller issued a current report on Form
8-K saying that the July 29 10-K should no longer be relied upon
because, among other things, KPMG had not completed its audit.

Disclosure that its financial statements can no longer be relied
on caused Miller's stock price to drop, damaging investors.

If you wish to serve as lead plaintiff, you must move the Court no
later than October 11, 2011.  A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation.  If you wish to join the litigation, or to discuss
your rights or interests regarding this class action, please
contact Laurence Rosen, Esq. of The Rosen Law Firm, toll-free, at
866-767-3653, or via e-mail at lrosen@rosenlegal.com.  You may
also visit the firm's Web site at http://www.rosenlegal.com

The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.


POWERCOR: Has Liability for Black Saturday Bushfires, Suit Says
---------------------------------------------------------------
Michelle Draper, writing for The Australian Associated Press,
reports that farmers suing an electricity distributor over
Victoria's Black Saturday bushfires allege the company put
commercial needs ahead of safety by operating a power network that
was an unacceptable fire risk.

The first class action arising from the 2009 Victorian bushfires,
which killed 173 people, claims electricity supplier Powercor
breached its duty to operate safely and exercise reasonable care.

But Powercor argues that electricity provision is inherently
dangerous and the risk can be managed but not eliminated.

The class action brought by lead plaintiff, farmer Laurie Thomas
on behalf of 67 claimants against Powercor got under way in the
Victorian city of Horsham on Sept. 5.

Barrister Tim Tobin, SC, in his opening address to the Supreme
Court in the civil case, said the Horsham fire burnt nearly 2,500
hectares and destroyed 13 homes and many more buildings.

He said the fire was sparked by a live power line that detached
and fell from a pole and ignited grass in the blustery conditions
on the outskirts of Horsham.

Mr. Tobin alleged two screws on the power pole came loose prior to
the 2009 bushfires.

He said Powercor's decision to move from inspections of
electricity infrastructure every three years to every five years
had contributed to the failure of its assets.

"Powercor did not try to make the system safer when it was easily
able to be done, but for commercial reasons including decreasing
inspection frequency by 40%, they operated with a system that
included an unacceptable risk," Mr. Tobin said.

Mr. Tobin said his clients alleged Powercor breached its common
law and statutory duty, under Section 75 of the Electricity Safety
Act.

They are also pursuing Powercor for creating a nuisance, namely
the fire.

Mr. Thomas, who farms cattle, sheep and crops on his property at
Drung, near Horsham, lost 40 lambs in the bushfires, as well as
fencing, bridges, sheds, machinery, pasture and trees, Mr. Tobin
said.

The former policeman, who farmed part-time while he worked for
Victoria Police until 2007, alleges he suffered loss of profits
and is seeking $300,000 in damages.

David Curtain QC, for Powercor, accepted that the fire was caused
by a falling power line, but said only one screw had become loose
before February 2009 on the pole in question.

He said Powercor's maintenance regime was reasonable and it was
impossible to eliminate all the risks associated with transmitting
electricity.

"Electricity is inherently dangerous (and) gives rise to a level
of risk which can be managed, but never extinguished," Mr. Curtain
said.

He rejected criticisms of Powercor's move to five-year inspections
of electricity infrastructure, saying it was the norm in the
industry and had led to improved training of inspectors.

Mr. Curtain also rejected the argument that Powercor's maintenance
regime was driven by costs.

The class action before Justice Jack Forrest is expected to run
for six weeks.


TUESDAY MORNING: Continues to Defend Alabama Class Suit
-------------------------------------------------------
Tuesday Morning Corporation continues to defend a class action
lawsuit relating to overtime pay in Alabama, according to the
Company's August 31, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended June 30,
2011.

In July 2009, a lawsuit alleging failure to pay overtime
compensation was filed in Alabama by a former store manager.  The
plaintiff sought to certify a class action made up current and
former store managers.  In fiscal 2010, the Company filed a
request with the court to deny this motion.  The court has not
ruled, and no trial date has been set.  Tuesday Morning will
rigorously defend its position at trial, and does not expect these
complaints to have a material impact on its financial statements.


TUESDAY MORNING: Continues to Defend California Class Suit
----------------------------------------------------------
Tuesday Morning Corporation continues to defend a class action
lawsuit in California over meal and rest period violations,
according to the Company's August 31, 2011, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
June 30, 2011.

In December 2008, a class action lawsuit was filed by hourly, non-
exempt employees in the Superior Court of California in and for
the County of Los Angeles, alleging claims covering meal and rest
period violations.  The parties are presently conducting
discovery.  The Company does not expect this complaint to have a
material impact on its financial statements.


VENOCO INC: Weiss & Lurie Investigates Fiduciary Duty Breaches
--------------------------------------------------------------
Weiss & Lurie, a national class action and shareholder rights law
firm with offices in New York City and Los Angeles, is
investigating Venoco Inc. for potential breaches of fiduciary duty
and other violations of law by its Board of Directors arising from
the Board's evaluation of a non-binding buy-out offer by the
Company's Chairman, CEO, and majority shareholder, Timothy M.
Marquez.

Mr. Marquez already holds 50.3% of Venoco's outstanding common
stock and seeks to purchase the remainder of the Company for
merely $12.50 per share.  The proposed price values Venoco's
shares more than 44% below the stock's 52-week high of $22.46 in
February 2011.  Most, if not all, analysts covering Venoco have
set the price target for the stock at or above $14 per share, with
a high target of $24 per share.

As Chairman and CEO, Mr. Marquez understands the intrinsic value
of the Company and its prospects for growth.  Notably, in its most
recent quarter, in attempting to offset low gas prices, Venoco
invested half its capital expenditure in the oil-rich Monterey
shale formation.  In making his proposal at this time, Mr. Marquez
appears to be seeking to take advantage of the recent dip in the
Company's stock.  In fact, less than a week before Mr. Marquez
made his proposal, Venoco's stock hit its 52-week low of $8.18 per
share.

If you have held Venoco shares since at least August 29, 2011 and
would like more information about your rights as a shareholder or
additional information concerning our investigation, please
contact Julia J. Sun either by e-mail at info@weisslurie.com or by
telephone at (888) 593-4771.

Weiss & Lurie has litigated hundreds of stockholder class and
derivative actions for violations of corporate and fiduciary
duties.

Contact: Weiss & Lurie
         Julia J. Sun, Esq.
         1500 Broadway, 16th Floor
         New York, NY 10036
         Telephone: 212-682-3025
         E-mail: info@weisslurie.com
         Web site: http://www.weisslurie.com


WASHINGTON UNIVERSITY: Nov. 28 Settlement Fairness Hearing Set
--------------------------------------------------------------
A proposed settlement has been reached with Washington University,
to resolve a case filed on August 4, 2010, involving the
acquisition of databases of information from the Missouri
Department of Revenue, which contained personal information of
licensed drivers in Missouri.  Plaintiffs claimed that the
Defendant's alleged actions violated the Driver's Privacy
Protection Act.  Washington University denies any violation of the
DPPA or any liability.

As part of the settlement terms, Washington University conducted
an investigation and has concluded and certifies that no social
security numbers have been disclosed to third parties.  The
university also certifies that it will delete social security
numbers from the Missouri Department of Revenue from its research
systems, and that it will comply with federal and/or state law in
any future use of information from the Mo DOR driver's license
database.  Washington University also agrees to pay Third Party
Administration Costs, the costs of Notice, Class Counsel's
Attorney's Fees and Costs, and Incentive Awards to the named class
representatives.

The Court has defined the "Settlement Class" of Plaintiffs as:
"All Missouri licensed drivers whose personal information and/or
highly restricted personal information from their motor vehicle
records, as defined by 18 U.S.C. section 2725, was obtained,
disclosed, or used by Washington University, or any agent,
officer, employee, parent, subsidiary, affiliate, or contractor of
Washington University from August 4, 2006 to the present.
Excluded from the Class are (1) any officer, agent, or employee of
Washington University or family members thereof; (2) any of the
undersigned attorneys or any member of the undersigned attorneys'
immediate families; (3) the Court presiding over this case; and
(4) any personnel of the Court presiding over this case."

A hearing is scheduled for November 28, 2011 in the U.S. District
Court Western District of Missouri to determine whether the
settlement is fair, reasonable and adequate.

Attorney Mitch Burgess noted that class members may obtain more
information about the proposed settlement by contacting his law
firm, Burgess & Lamb, P.C., in Kansas City, Missouri or by
visiting the settlement Web site at WashUsettlement.com.


* Mexico Enacts Class Action Laws
---------------------------------
Nathan Koppel, writing for The Wall Street Journal's Law Blog,
reports that the Mexican Congress in April enacted its first law
allowing consumers to bring class actions.  The law was published
last week in Mexico's Official Gazette, which marks the start of
the six-month period leading up to the law's debut, in March 2012.

"Mexico is the latest in a string of countries in Europe and Latin
America to enact class action laws," Shook Hardy partner Bill
Crampton told the Law Blog.  "Class actions have been a costly
form of litigation for U.S. companies for many years and companies
doing business in Mexico need to be aware that they now face
similar risks in our neighboring country."

The Mexican law includes various requirements that must be
satisfied to bring a class action, including that prospective
class members be "in the same common factual or legal
circumstances," Chadbourne & Parke explains, noting that the law
allows claimants to obtain restitution, monetary damages, or
injunctive relief.

Another interesting component of the Mexican law is that it
includes a loser pays provision.

The law, according to a Bloomberg Businessweek article, will help
consumers challenge companies that overcharge for goods and
services and that fail to meet quality standards.  "We have a big
problem of overcharging," said Alfonso Ramirez, director of El
Barzon, a Monterrey-based consumers? rights advocacy group.  "Now
consumers may be able to challenge this abuse in an important
way."


* Reform Sought for Wisconsin's Class-Action Statute
----------------------------------------------------
Paul Benson, Joe Olson & Ben Kaplan at Wisconsin Lawyer report
that Wisconsin's class-action statute is vague and provides
insufficient guidance for the state's courts and attorneys.
Wisconsin should repeal section 803.08 and adopt some or all of
the language of the federal class-action statute, thereby
following the lead of the 43 other states that have done so.

The language of Wisconsin's 49-word class-action statute, Wis.
Stat. section 803.08, has been untouched since it was adopted by
supreme court order in 1975.  The 1975 language is nearly
identical to Wisconsin's first class-action statute from 1898 --
which was itself a remnant of the 1849 Field Code.  Thirty-seven
years ago, the Wisconsin Supreme Court found section 803.08 had
"intentionally been left in vague language unamended."

In 1973, the State Bar of Wisconsin's Civil Rules Revision
Committee advised against updating section 803.08 to conform to
the federal statute, Federal Rule of Civil Procedure 23
(hereinafter Rule 23).  The committee reasoned that although Rule
23 had been amended and improved seven years earlier, "Wisconsin
would be wise not to adopt either version of Rule 23 until more
experience is gained in other jurisdictions."

In the 38 years since that suggestion was made, federal law has
developed, Rule 23 has undergone several refinements, and no fewer
than 43 states have drafted or amended their class-action statutes
to align with Rule 23.  It is time for Wisconsin to become number
44.

Section 803.08's Plain Language

Section 803.08 reads, in its entirety, as follows: "When the
question before the court is one of a common or general interest
of many persons or when the parties are very numerous and it may
be impracticable to bring them all before the court, one or more
may sue or defend for the benefit of the whole."  Two potential
requirements for class certification are explicitly mentioned:
commonality and numerosity.  Those requirements are stated in the
disjunctive ("or") rather than the conjunctive ("and").  This
suggests that a Wisconsin circuit court judge could properly
certify a class based on either commonality or numerosity alone.
Most Wisconsin courts, however, ignore the plain language of the
statute and interpret it conjunctively to require both commonality
and numerosity for a class to be certified.

The plain language of section 803.08 does not include some of Rule
23's requirements.  These include the concepts of adequacy of the
class representative and superiority, meaning that handling the
cases as a class action must be superior to handling the cases
individually.  It also is silent on the requirement of
predominance, which necessitates that common questions of law or
fact outweigh the individual issues involved.

A staple of statutory interpretation is that courts begin with the
statute's text.  If the language is plain and unambiguous, the
inquiry ends.   Because of the sparse language of section 803.08,
however, opinions in which the courts attempted to interpret it as
written are few and far between, and those that have done so often
are unhelpful.  In Mercury Records Productions Inc. v. Economic
Consultants Inc., the court of appeals complained, "there is no
case or statutory law in Wisconsin governing the procedural
aspects of class action suits.  . . . There has been no real
guidance given by our Supreme Court in the area of state
procedural requirements for class actions."  Unfortunately, this
statement remains true today.

Supreme Court Efforts to Interpret Section 803.08

The Wisconsin Supreme Court has not published an opinion truly
analyzing section 803.08 since 1978.  These early decisions, while
helpful, only go so far.  Among other things, they show the court
struggling to add to the statute elements -- found nowhere in its
text -- to make it more robust.  The reasoning supporting these
early cases was quite varied, as the court attempted to apply the
scanty statutory language.

Schlosser v. Allis-Chalmers Corp. (Schlosser I).  In 1974, the
Wisconsin Supreme Court evaluated whether former Allis-Chalmers
employees could bring suit as a class against their former
employer, the defendant corporation.  After determining that
plaintiffs need not satisfy joinder requirements to bring a class-
action suit, the court analyzed the plaintiffs' class-
certification claim.  Recognizing that Wisconsin's governing
statute was intentionally left vague, the Schlosser I court found
three prerequisites to certification: a community of interests,
adequate representation, and numerousness.  Also, although not
explicitly separating it from the three recognized class-action
criteria, the court gave credence to the concept of manageability:
"[T]he court must determine whether the advantages of disposing of
the entire controversy in one proceeding are outweighed by the
difficulties of combining divergent issues and persons."
Ultimately, the plaintiffs were permitted to join as a class.

Browne v. Milwaukee Board of School Directors.  A year after
Schlosser I, the Wisconsin Supreme Court heard an appeal to class
certification of employees of the Milwaukee Board of School
Directors, who brought the action to challenge a portion of the
Municipal Employment Relations Act.  In rejecting the defendants'
appeal, the Browne court held the community-of-interest
requirement demands that all members of the purported class desire
the same outcome of the suit as do their alleged representatives.
This evaluation merged Schlosser I's separate requirements of a
community of interests and adequate representation.  The court
also relied on a 1960 Wisconsin Supreme Court case, Pipkorn v.
Brown Deer, which referenced the typicality and adequate-
representation elements by relying on the general discussion of
class actions found in the treatise, American Jurisprudence.

Nolte v. Michels Pipeline Construction Inc.  The three Schlosser I
criteria were reaffirmed by the Wisconsin Supreme Court in 1978 in
Nolte.  Nolte is significant because the court clearly accepted
Schlosser I's manageability criterion.  The concept of
manageability requires the court to decide whether the benefits of
the plaintiffs proceeding as a class outweigh the "inherent
difficulties, so as to justify maintaining" a class-action suit.
The court saw this determination as a weighing of convenience and
efficiency on one hand versus accuracy and fairness on the other.
The court asked whether the class-action suit will settle all the
issues involved or whether the parties will need to maintain
individual actions afterwards.  This determination was left to the
sole discretion of the circuit court.

Although this is an effective and common-sense element of a class-
certification evaluation, it is nowhere to be found in the
statute.  The court clearly was struggling with the minimal
statutory language.  The Nolte court cited two 1960 supreme court
cases, Lozoff and Pipkorn, along with Schlosser I.  The two 1960
cases, however, discuss the circuit court's discretion in
determining numerosity, not manageability.  And as mentioned
above, although Schlosser I does evaluate manageability as a
prerequisite to certification, the opinion does not cite binding
Wisconsin authority but does cite Zechariah Chafee's 1950 book,
Some Problems of Equity.  The court made significant progress,
albeit with shaky support.

The Nolte court ultimately concluded certification was
inappropriate in situations in which the members of the purported
class suffer both different amounts and different types of injury.

Goebel v. First Federal Savings & Loan Association.  Only one day
after releasing its opinion in Nolte, the supreme court heard oral
arguments in an appeal to the class certification of a group of
mortgagors.  In evaluating whether the class was improperly
certified, the Goebel court focused on the commonality and
adequate-representation requirements.  The court found commonality
requires only "a community of interest among [the class members]
in the questions of law and fact involved in the general
controversy, or in the kind and form of relief demanded and
obtained by or against each individual member of the numerous
body."  This appears to be inconsistent with the language of the
Rule 23 commonality provision, which requires that class actions
have "questions of law or fact common to the class."  There is no
mention of commonality of relief sought being a possible
substitute for commonality of issues at play or alleged injuries
suffered.2

The Goebel court concluded by determining that the balancing
process favored certification of the class, and that there was no
question that "all the members of the purported class desire the
same outcome of the suit that their alleged representatives
desire."

Schlosser v. Allis-Chalmers Corp. (Schlosser II).  After hearing
Schlosser I and permitting the plaintiffs to proceed as a class,
the supreme court again heard an appeal in this case, this time
from an interlocutory summary judgment finding the defendant
liable to the plaintiffs.  The Schlosser II court reiterated the
class-certification criteria from Schlosser I -- commonality,
numerosity, and adequate representation ?- and held that the
decision "whether the action may proceed as a class suit is
addressed to the trial court's discretion.  It involves a weighing
of the benefits to be gained from disposing of the entire
controversy in one proceeding against the difficulties inherent in
a single action."  Later in its analysis, the Schlosser II court
discussed the propriety of a class constructed on an "opt-out"
basis as opposed to an "opt-in" basis.  The court upheld the "opt-
out" scheme, as "expressly prescribed by [Rule 23]."

Subsequent Efforts to Interpret Section 803.08

An ever-increasing class-action docket has required the Wisconsin
Court of Appeals to further develop the section 803.08 analysis
over the past three-and-a-half decades.  Perhaps not
coincidentally, the court has reached toward federal law and begun
to follow the more developed and nuanced Rule 23 jurisprudence.

In 1989, the court of appeals stated in Sisters of St. Mary v.
AAER Sprayed Insulation that class certification required the
three then-regularly applied section 803.08 elements and also
required manageability, with near-full discretion given to the
circuit court.  In Sisters, however, the court supported its
manageability holding by citing not to Wisconsin precedent but to
a Fourth Circuit case interpreting Rule 23.  Although the concept
of manageability had been a part of Wisconsin case law for at
least a decade at that point, the Sisters court asked, "Is the
proposed class action manageable? This is the same question
federal courts are faced with" under Rule 23.36 Further, the court
of appeals supported its holding that manageability determinations
fall within the circuit court's broad discretion, a well-developed
component of section 803.08, by citing not to a Wisconsin case but
to a Third Circuit opinion.

Similarly, in Cruz v. All Saints Healthcare System Inc., the court
of appeals analyzed the adequacy-of-representation requirement for
certification.  Although the court was evaluating an element
discussed in Nolte and Browne, it found more persuasive an 11th
Circuit opinion using a two-factor test: 1) whether plaintiffs or
counsel have interests antagonistic to absent class members, and
2) whether class counsel are generally able and qualified to
conduct the proposed litigation.39 In this way, Sisters and Cruz
demonstrate the modern judicial mindset of seeking direction from
federal authority, not only when the issue is not addressed in
Wisconsin precedent but also when the federal law is more clearly
developed.

That is not to say appellate courts have completely abandoned or
ignored state standards. In 2006, the court of appeals stated in
Noonan that it "rel[ied] on Wisconsin case law" regarding
deference to the circuit court on manageability determinations,
but that is the same area in which Sisters relied on federal law.
Later in that opinion, the Noonan court stated that because
manageability is primarily a factual determination that mirrors
Rule 23 evaluation, the circuit court "correctly relied for
guidance on federal cases discussing class certification."

Arguably, these court of appeals decisions relying on federal
statutes and case law are of uncertain precedential value.  As an
error-correcting body, the Wisconsin court of appeals "does not
have [a] law-developing or law-declaring function."  Inserting
federal standards into section 803.08 could be termed by some as
"law-developing," thereby placing these decisions outside the
purview of an error-correcting court.  Thus, Wisconsin's class-
action jurisprudence is muddled indeed.

Proposal: Formally Adopt Rule 23 as Wisconsin's Class Action
Statute

The current judicial trend appears to be a piece-by-piece
incorporation of Rule 23 standards into section 803.08.  That
being the case, Wisconsin should simply overhaul section 803.08 to
follow its federal counterpart.

The advantages of importing the federal rule into the Wisconsin
statutes is readily apparent: circuit courts would have a much
wider, more refined body of precedent as guidance; certification
considerations would become more uniform; questions of what
jurisprudence was controlling would be clarified; and parties
could predict with greater accuracy the merits of their
litigation, potentially lowering the costs involved in the
litigation for both the parties involved and the judiciary.

Rule 23 should be imported in full. However, if in the process of
political compromise there is a desire to maintain aspects of
Wisconsin's class-action jurisprudence, that can easily be
accomplished.  This should not be an impediment to the overhaul
but simply a point of negotiation.  In fact, of the 43 state
statutes based on Rule 23, only a few adopted every provision of
the federal rule.  If, for example, the Wisconsin legislature
wants circuit courts to have greater deference in determining
manageability, it may decide to include that in the language of
the new statute.  There is no requirement that Rule 23 be adopted
in its entirety, and the desire to avoid such absolute adherence
should not prevent implementation of the majority of Rule 23.

Some may ask, given that Rule 23 is so often looked to for
guidance, why should Wisconsin bother updating its statute?  Will
this change have much impact?  The answer is that an obvious and
foreseeable problem remains. Circuit court judges apply different
standards in their interpretation and application of the statute
and are forced to continually look beyond Wisconsin case law and
the plain language of the statute for guidance.  Compounding this
problem is Wisconsin's grant of "sole discretion" to circuit
courts for manageability evaluations, a threshold determination in
class certification.  Forum shopping and inconsistent intrastate
results could very well be the result.

Conclusion

Class actions are a different animal today than in 1975 and vastly
different from when the statutory language of section 803.08
originated.  Judges face a dearth of guidance, attorneys face
substantial uncertainty, and courts produce inter- and intra-
district discrepancies that are justifiable under the current law.
It is time to act, by adopting Rule 23 as the class-action law of
Wisconsin.


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S U B S C R I P T I O N   I N F O R M A T I O N

Class Action Reporter is a daily newsletter, co-published by
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