/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111006.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 6, 2011, Vol. 13, No. 198 Headlines BLUEBONNET ELECTRIC: Faces Class Action Over September Wildfire CITY OF LAKELAND, FL: Refunds Red Light Tickets After Class Suit ENER1 INC: Class Action Lead Plaintiff Deadline Nears EPSTEIN BECKER: Lawyers & Auditors Can't Be Sued in Prior Case FACEBOOK: Faces Two Class Actions for Unlawfully Tracking Users GOODRICH CORP: Being Sold for Too Little, Class Suit Alleges GOODRICH CORP: Being Sold to United Tech for Too Little GT ADVANCED: Judge Approves $10.5-Mil. Class Action Settlement HEWLETT-PACKARD: Accused in Calif. of Misleading Shareholders IMPERIAL HOLDINGS: Faces Shareholder Class Action in Florida JPMORGAN CHASE: Supreme Ct. Refuses to Hear Check Fee Class Action MILLER ENERGY: Class Action Lead Plaintiff Deadline Nears NEXTEL COMMS: 2nd Cir. Revives Claims in Suit Over Settlement NOKIA CORP: High Court Blocks Mobile Radiation Class Action REPUBLIC OF ARGENTINA: Appeal From Dismissal of 8 Suits Pending RITE-AID: Faces Class Action Over Bait-and-Switch Scam STANFORD HOSPITAL: Keller Grover Files Data Breach Class Action U.S. DAIRY COMPANIES: Faces Class Actions Over Slaughtered Cows WELLCARE HEALTH: 11th Circuit Dismisses Appeal in Securities Suit * Walmart Sup. Court Decision May Change Future of Class Actions ********* BLUEBONNET ELECTRIC: Faces Class Action Over September Wildfire --------------------------------------------------------------- Bonnie Barron at Courthouse News Service reports that the devastating September wildfire that burned 1,600 homes southeast of Austin was caused by an electric company's poorly maintained easements that allowed power lines to become tangled in a tinderbox of trees, 17 named plaintiffs say in a class action. The class sued Bluebonnet Electric Cooperative in Bastrop County Court. Lead plaintiff Joni Jack claims that despite record- breaking heat and statewide drought, the electricity co-op failed to clear overgrown trees and brush from its easements. Dead trees toppled onto power lines in two places on Sept. 4, which set off the inferno, according to the complaint. Thirty- four thousand acres burned, including more than 1,600 homes and outbuildings, in the Bastrop Fire alone, the class says, citing a Sept. 22 report from the Texas Forest Service. The Bastrop Fire was one of thousands (sic) that torched nearly 3.8 million acres in Texas this year. More than 23,000 fires in Texas burned more than 2,700 homes during this year's fire season -- 1,939 of the homes burned over Labor Day weekend, according to federal statistics. The Bastrop Fire, which killed two people, was the worst single wildfire in state history. The class action adds: "The Texas Forest Service investigation found that there was no evidence of any cause of the Bastrop Fire other than defendant's power lines". The proposed class consists of residents who suffered property damage from the fire, but excludes those who claim personal injuries or lost profits. The proposed class is represented by Robert Kizer of Austin and Joe Grady Tuck of Bastrop. In a separate complaint, three more plaintiffs say the Bluebonnet Co-op knew of the hazards, as a tree hit a power line and ignited a previous Bastrop fire in 2009. "The downed power line started a fire that burned 1,491 acres and destroyed 26 homes, 44 outbuildings and 20 businesses," lead plaintiff Brandon Strambler says in the complaint. "The tree that snapped at the fire's point of origin was in or near an easement owned by Bluebonnet." Mr. Strambler's complaint sets the scenario for the disaster: "By September 2011, 87 percent of Texas was experiencing 'exceptional' drought conditions as measured by the U.S. Drought Monitor. 2011 was not 'one of', but was 'the worst' one year drought in Texas history. By at least May 2011, Bluebonnet knew that the combination of strong winds, distressed trees and overhead power lines posed an extreme risk of fire danger. Indeed, Bluebonnet's CEO, Mark Rose, opened Bluebonnet's annual meeting on May 10, 2011 by acknowledging '[p]ole fires are a constant threat in these conditions.'" Mr. Strambler and his co-plaintiffs seek damages for property damage and personal injuries. They are represented by William Rossick of Austin. A copy of the Complaint in Jack, et al. v. Bluebonnet Electric Cooperative, Inc., Case No. 28218 (Tex. Dist. Ct., Bastrop Cty.), is available at: http://www.courthousenews.com/2011/10/03/BastropFire.pdf The Plaintiffs are represented by: Robert D. Kizer, Esq. LAW OFFICE OF ROBERT D. KIZER 1213 N IH 35 Austin, TX 78702 Telephone: (512) 457-8100 - and - Joe Grady Tuck, Esq. LAW OFFICE OF JOE GRADY TUCK 906 Main Street Bastrop, TX 78602 Telephone: (512) 321-4944 CITY OF LAKELAND, FL: Refunds Red Light Tickets After Class Suit ---------------------------------------------------------------- Ken Suarez, writing for FOX 13 News Polk County, reports that drivers who were caught on camera and cited for turning right on red will get nearly $1 million in refunds. During the first few months Lakeland's red light cameras were in operation, hundreds of people were cited for making an illegal right hand turn, or running a red light. There was quite an uproar. People complained to city hall on a daily basis. Now it seems some satisfaction may be coming their way. They will receive a check for about $30 from the City of Lakeland and ATS, the company which installed the cameras. "Full payment would be nice, but partial payment is good," said driver Victoria Westbrook. The cameras were installed a few years ago. Drivers who were caught on them making an illegal right turn received tickets that averaged $150. The ticketed drivers can thank a class action suit for the repayment. It argued that the tickets were unconstitutional because they were given out before the state passed a law okaying the cameras. A judge agreed. So here's the bottom line. If you got a ticket as a result of a red light camera before July 1, 2010, you can expect a check. The City of Lakeland will end up paying more than $600,000, and ATS will pay more than $300,000. ENER1 INC: Class Action Lead Plaintiff Deadline Nears ----------------------------------------------------- On August 18, 2011, a class action lawsuit was filed in the United States District Court for the Southern District of New York against Ener1, Inc. Federman & Sherwood reminds current and former shareholders of Ener1, Inc. that they only have until Monday, October 17, 2011 to move for appointment as a lead plaintiff in this case. The Complaint alleges violations of Section 10(b) and Section 20(a) of the Securities Exchange Act, and Rule 10b-5 promulgated thereunder. If you purchased Ener1, Inc. between January 10, 2011 and August 15, 2011, and wish to move the court to serve as a plaintiff, please contact our office as soon as possible. Federman & Sherwood seeks to recover damages on behalf of the Class. The firm has extensive experience and expertise in prosecuting securities litigation involving financial fraud. It represents investors throughout the country in shareholder litigation. If you wish to join this class action or have further questions, please contact: William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235-1560 E-mail to: wbf@federmanlaw.com Web site: http://www.federmanlaw.com EPSTEIN BECKER: Lawyers & Auditors Can't Be Sued in Prior Case -------------------------------------------------------------- Sheri Qualters, writing for The National Law Journal, reports that plaintiffs may not proceed with class actions against lawyers and auditors who worked for the defendants in an earlier class action, the U.S. Court of Appeals for the 1st Circuit has ruled. On Sept. 22, a unanimous panel held that a constructive trust established by the judge in the first action could not reach payments made by the defendants to lawyers and accountants in exchange for services. It also ruled the new class actions were entirely new lawsuits, not enforcement actions for the prior case, and they could not proceed unless the class was certified anew. The ruling in the consolidated appeals of the two cases, Zimmerman v. Epstein Becker & Green and Zimmerman v. BDO Seidman LLP, affirmed a July 2010 dismissal of the two cases by Senior Judge Michael Ponsor of the District of Massachusetts. In the original action, Zimmermann v. Cambridge Credit Counseling Corp., named plaintiffs Andrew and Kelly Zimmermann brought a suit under the Credit Repair Organization Act (CROA) against Richard and John Puccio and credit repair companies they controlled. Judge Ponsor entered judgment in December 2008 in favor of the certified class for $259 million. He also established a constructive trust over "all fees that consumers paid to the current or former defendant entities." As the 1st Circuit put it, "the plaintiffs found that the judgment was 'largely uncollectable' against the class action defendants, and so the Zimmermanns sought new targets." They filed one against the defendants' auditors and another against the defendants' law firms and attorneys in November 2009. The lawyer case was against the following defendants: Epstein Becker, Sheppard, Mullin, Richter & Hampton of Los Angeles; Paul Kaplan, a lawyer who previously worked at both Epstein Becker and Sheppard Mullin, according to court papers; New York lawyer Brian Davis, his prior New York practice and his Garden City, N.Y., successor firm, Spence & Davis; and New York attorney Douglas Viviani and his firm. The auditor case named BDO Seidman, Chipetine Neu & Silverman of New York and Massachusetts-based Kostin, Ruffkes & Co. as defendants. The Zimmermanns stated two causes of action in the attorney and auditor cases. The first was enforcement of "a constructive trust seeking the return of [the plaintiffs'] own money" that was allegedly fraudulently taken by the individual and corporate defendants in the Cambridge Credit case and transferred to the auditor and attorney defendants. The second was that the defendants, except Sheppard Mullin, provided material assistance to the Cambridge Credit defendants, which violated the CROA. The plaintiffs' brief before the 1st Circuit claimed that some fees the Zimmermann class paid the defendants in the underlying case can be linked to fees later paid to the attorney and auditor defendants. These include: more than $6.9 million to Epstein Becker, nearly $1.2 million to Paul Kaplan, about $249,000 to Sheppard Mullin and roughly $330,000 to the Davis defendants. The 1st Circuit heard oral arguments on July 25. Judge Michael Boudin authored the opinion, joined by Judge Juan Torruella and Federal Circuit Judge Timothy Dyk, who sat on the panel by designation. Judge Boudin wrote that "the narrowest and clearest basis for rejecting" the plaintiffs' constructive trust claim is that such a "trust cannot be read as intended to claw back monies expended, prior to the imposition of the trust, by the [individual defendants] or their companies in the ordinary course of business and in exchange for fair value." Judge Boudin explained that a constructive trust is a court- imposed device set up to prevent unjust enrichment. Judge Boudin also noted that the lower court imposed a constructive trust because the individual defendants commingled the finances of the various companies they controlled or managed and used the companies' money for personal use. Judge Boudin acknowledged that the language of the particular constructive trust established by the court "might in some circumstances" reach transfers that happened before the constructive trust was established and paid to innocent persons or entities. He also wrote that the constructive trust's language "is not as clear cut as it might be." "But very little suggests that the order was intended to reach payments, made before the constructive trust was even imposed, to lawyers, accountants or the butcher, baker or candlestick maker," Judge Boudin wrote. "It is even less credible that it was intended to reach payments made in exchange for the fair value of such services. Very serious questions -- of retroactivity, fair notice, and equity -- would be raised by such a reading." He noted that "it can hardly be 'unjust enrichment' for lawyers and accountants hired by companies to be paid for their services." Judge Boudin then tackled the plaintiffs' CROA claims against the defendants. In order to have a case, Judge Boudin wrote, the plaintiffs must proceed under Federal Rule of Civil Procedure Rule 23, which governs class actions. "But a certified class in one action is not a free floating entity entitled to conduct new and separate lawsuits against new defendants -- unless and until it is certified in the new action." He concluded by stating that "new CROA claims against a new set of defendants cannot ride on the coat-tails of the earlier action under the guise of an enforcement proceeding." The plaintiffs' lawyer, Joseph Tusa, a New York-based solo practitioner, did not respond to requests for comment. Several defense lawyers split the oral argument time on July 25. These included Neil Dilloff, a Baltimore DLA Piper partner who represented Epstein Becker; Maura Barry Grinalds, a New York partner at Skadden, Arps, Slate, Meagher & Flom who represented Paul Kaplan; Lisa Wood, a partner at Boston's Foley Hoag who represented BDO Seidman; Anthony Scibelli, a Boston Hiscock & Barclay partner who represented Chipetine Neu & Silverman; and Mark Goidell, a partner at Amityville, N.Y.-based Ansanelli Law Group who represented Davis, Spence & Davis and Viviani. Mr. Dilloff said Epstein Becker "is gratified that the appellate panel so quickly affirmed the decision of the district court in its favor." "The fact that the decision came less than two months after oral argument fully validates [Epstein Becker's] position," Mr. Dilloff said. "It is hoped that this favorable decision will put this matter to rest once and for all." Mr. Goidell said his clients are gratified by the ruling and pleased the court used such strong language in admonishing plaintiffs' counsel about the frivolity of their claims. "We're also pleased the court recognized the chilling effect that this claim and these kinds of claims, if permitted, would have for all attorneys who would otherwise defend statutory fraud claims." Ms. Wood said that the court's holding that BDO Seidman was not liable on either theory "extended the long line of cases holding that an auditor is not secondarily liable for the misconduct of an audit or tax client." "The 1st Circuit also made clear that a plaintiff cannot make an end run around this well established precedent by trying to enforce a previously obtained judgment against an auditor or indeed other third parties who provided professional services to the judgment debtor," Ms. Wood said. "The First Circuit's decision will prevent other parties from trying to pursue the constructive trust theory in other cases." The ruling is significant because if the 1st Circuit had allowed the plaintiffs' "unprecedented attempt to recycle a previously certified class into a roving class, it would have radically transformed class action litigation, jettisoning fundamental notions of due process along the way," added Ms. Grinalds. Mr. Scibelli did not respond to requests for comment. FACEBOOK: Faces Two Class Actions for Unlawfully Tracking Users --------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Facebook has been hit with two separate potential class-action lawsuits alleging that it unlawfully tracked users after they had logged out of the service. Both cases were filed on Sept. 30 by users who allege that the social networking company violates various laws, including the federal wiretap one. One lawsuit was brought by Web user Chandra Thompson in federal district court in Missouri. The other case, filed in federal court in San Jose, Calif., was brought by a coalition of seven users -- Perrin Aikens Davis, Petersen Gross, Tommasina Iannuzzi, Brian K Lentz, Lisa Sabato, Jennifer Sauro and Tracy Sauro. The lawsuits were filed the same week that Australian developer Nic Cubrilovic publicized research showing that Facebook received information about users -- including their IDs -- whenever they visited sites with a Like button or other social widget, even when the users had logged out. After he blogged about his findings, Facebook quickly said it would fix the "bug" that allowed it to receive data about logged- out users. The company also denied "tracking" users, saying that it immediately destroyed any information it received about people who were logged out. Nonetheless, the fact remains: Facebook received data about sites visited by logged-out users. What's more, even though Mr. Cubrilovic says he reported the matter to Facebook on at least two occasions in the last year, the company didn't take action until he posted about his findings. The revelations didn't just spur class-action lawyers to action. Last week Reps. Ed Markey (D-Mass.) and Joe Barton (R-Texas) called for the Federal Trade Commission to probe the company for allegedly tracking users who had logged out. A coalition of privacy groups additionally called for an investigation. Now that the matter is in court, Facebook could be forced to rethink its approach to privacy even if the FTC doesn't investigate. In the last few years, class-action lawyers have successfully challenged other questionable privacy practices. Consider the history of Flash cookies. In 2009, researchers detailed how some Web companies were able to use hard-to-delete Flash cookies to circumvent users' privacy settings. FTC officials criticized that practice, but haven't yet publicly brought an enforcement action. Class-action lawyers, however, filed four lawsuits. All of them resulted in settlements and promises to avoid using Flash cookies to track people who don't wish to be tracked. GOODRICH CORP: Being Sold for Too Little, Class Suit Alleges ------------------------------------------------------------ Brian Ruschel, individually and on behalf of all others similarly situated v. Goodrich Corp., Carolyn Corvi, Diane C. Creel, Harris E. DeLoach, Jr., James W. Griffith, William R. Holland, John P. Jumper, Marshall O. Larsen, Lloyd W. Newton, Alfred M. Rankin, Jr., and United Technologies Corp., Case No. 652695/2011 (October 3, 2011) is a shareholder class action on behalf of the public stockholders of Goodrich seeking to enjoin a merger, pursuant to which Goodrich is attempting to sell itself to United Technologies through an insufficient process and for an inadequate price. The Plaintiff alleges that the consideration offered to Goodrich shareholders is inadequate as it does not reflect the intrinsic value of Goodrich's stock. The Plaintiff is a shareholder of Goodrich. Goodrich is a New York corporation headquartered in Charlotte, North Carolina. The Company is a global supplier of systems and services to aircraft and engine manufacturers, airlines and defense forces around the world. The Individual Defendants are officers and directors of the Company. United Technologies, a Delaware corporation headquartered in Hartford, Connecticut, provides technology products and services to the building systems and aerospace industries worldwide. The Plaintiff is represented by: Joseph E. Levi, Esq. W. Scott Holleman, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 15th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: jlevi@zlk.com sholleman@zlk.com - and - Douglas G. Thompson, Esq. Richard M. Volin, Esq. Thomas M. Gottschlich, Esq. FINKELSTEIN THOMPSON LLP 1050 30th Street, N.W. Washington, DC 20007 Telephone: (202) 337-8000 Facsimile: (202) 337-8090 E-mail: dthompson@finkelsteinthompson.com rvolin@finkelsteinthompson.com tgottschlich@finkelsteinthompson.com GOODRICH CORP: Being Sold to United Tech for Too Little ------------------------------------------------------- Courthouse News Service reports that a shareholder class action claims Goodrich is selling itself too cheaply through an unfair process to United Technologies Corp., for $18.4 billion or an "unfair and inadequate" $127.50 per share. A copy of the Complaint in Pifko v. Goodrich Corporation, et al., Index No. 11111146 (N.Y. Sup. Ct., N.Y. Cty.), is available at: http://www.courthousenews.com/2011/10/03/Goodrich.pdf The Plaintiff is represented by: Joseph H. Weiss, Esq. Julia J. Sun, Esq. Joshua M. Rubin, Esq. WEISS & LURIE 1500 Broadway 16th Floor New York, NY 10036 Telephone: (212) 682-3025 E-mail: jweiss@weisslurie.com jsun@weisslurie.com jrubin@weisslurie.com GT ADVANCED: Judge Approves $10.5-Mil. Class Action Settlement -------------------------------------------------------------- The United States District Court for the District of New Hampshire dismissed, and approved the settlement agreement resolving, the securities class action lawsuits against GT Advanced Technologies Inc., according to the Company's October 3, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. Beginning on August 1, 2008, seven putative securities class action lawsuits were commenced in the United States District Court for the District of New Hampshire (the "Court"), against GT Advanced Technologies Inc. (then operating under the name GT Solar International, Inc. (the "Company")), certain of its officers and directors, certain underwriters of the July 24, 2008 initial public offering and others, including certain investors (collectively, the "federal class actions"). On October 3, 2008, the Court entered an order consolidating the federal class actions into a single action captioned Braun et al. v. GT Solar International, Inc., et al. The Court selected the lead plaintiff and lead plaintiff's counsel in the consolidated matter on October 29, 2008. The lead plaintiff filed an amended consolidated complaint on December 22, 2008. The lead plaintiff asserted claims under various sections of the Securities Act of 1933, as amended. The amended consolidated complaint alleges, among other things, that the defendants made false and materially misleading statements and failed to disclose material information in certain SEC filings, including the registration statement and Prospectus for the Company's July 24, 2008 initial public offering, and other public statements, regarding the Company's business relationship with LDK Solar, Ltd., one of the Company's customers, JYT Corporation, one of the Company's competitors, and certain of the Company's products, including the DSS furnaces. In addition, on September 18, 2008, a putative securities class action was filed in New Hampshire state court in the Superior Court for Hillsborough County, Southern District (the "State Court"), under the caption Hamel v. GT Solar International, Inc., et al., against the Company, certain of its officers and directors and certain underwriters of the July 24, 2008 initial public offering (the "state class action"). The state class action plaintiffs asserted claims under various sections of the Securities Act of 1933, as amended. The state class action complaint alleges, among other things, that the defendants made false and materially misleading statements and failed to disclose material information in certain SEC filings, including the registration statement for the Company's July 24, 2008 initial public offering, and other public statements, regarding the status of the Company's business relationship with LDK Solar. On March 7, 2011, the Company announced that it had reached an agreement in principle to settle both the federal class actions and the state class actions. The parties subsequently memorialized their agreement in a stipulation of settlement (the "Settlement Agreement") that was filed with the Court. The Settlement Agreement provided, among other things, that: (i) the Company and all other defendants made no admission of liability or wrongdoing, (ii) the Company and all other defendants would receive a full and complete release of all claims that were or could have been brought against all defendants in both the federal and state securities actions, (iii) the Company would pay $10.5 million into a settlement fund. Of this amount, the Company contributed $1.0 million and the Company's liability insurers contributed the remaining $9.5 million. The Company's contribution represented its contractual indemnification obligation to its underwriters. On September 27, 2011, after a hearing to consider the fairness and adequacy of the settlement, the court entered a final judgment (the "Order") approving the settlement and dismissing the federal class actions. Pursuant to the Settlement Agreement, the state class action will also be dismissed as a result of the entry of the Order. Bob Sanders, writing for New Hampshire Business Review, reports that the settlement gives those who purchased shares of the stock on July 24, 2008 -- when GT Advanced, formerly GT Solar International, first went public -- an average of about 23 cents a share. The payout will probably come next spring. Shareholders would have gotten 35 cents a share, but for 12 cents a share set aside for attorney fees ($2.62 million) and various expenses (just under $230,000). Small shareholders won't get a dime. The settled class action suit charged the company didn't reveal in its initial public offering disclosures that it was in imminent danger of losing business from LDK Solar Co., a Chinese firm that at the time accounted for more than 60% of GT Solar's sales. The stock tumbled from a $16.50-a-share opening to as low as $9.30. The class action suit claimed the alleged deception was responsible for share value drop of about $60.6 million, or about $2 a share. The stock price continued to decline as the general economic decline hurt energy demand, and the falling price of oil made it harder for energy alternatives like solar. But GT prospered anyway, winning one multimillion-dollar order after another, and branching into the lucrative sapphire technology necessary for the lucrative LED sector. (That decision resulted in the recent change in the company's name to GT Advanced Technologies.) GT denied the allegations. The Washington law firm (Cohen Milstein Sellers & Toll PLLC ) representing the lead plaintiff (Arkansas Public Employees Retirement System) argued that the settlement -- 17.3% of the original claim -- was a good deal, given the uncertainty of litigation and the "strong and skillful defenses" on behalf of the company's attorneys. The average class action settlement since 1996 was between 5.5 and 6.2%, according to one study, and another study found that the median was as low as 3.4%. In 2010, the median was 2.8% or about $6 million. Class members will have until November to say whether they want to be part of the settlement. For more information, shareholders can call 866-274-4004 or e-mail info@strategicclaims.net. HEWLETT-PACKARD: Accused in Calif. of Misleading Shareholders ------------------------------------------------------------- Courthouse News Service reports that shareholders say in a derivative complaint that Hewlett-Packard directors issued false and misleading statements and made the company "waste $9.6 billion on the purchase of its own stock at artificially inflated prices." A copy of the Complaint in Gonzalez v. Apotheker, et al., Case No. 30-201100511941 (Calif. Super. Ct., Orange Cty.), is available at: http://www.courthousenews.com/2011/10/03/HPCA.pdf The Plaintiff is represented by: Frank J. Johnson, Esq. JOHNSON & WEAVER LLP 110 West "A" Street, Suite 750 San Diego, CA 92101 Telephone: (619) 230-0063 IMPERIAL HOLDINGS: Faces Shareholder Class Action in Florida ------------------------------------------------------------ Courthouse News Service reports that shareholders claim in a class action that their stock value was devastated when the (nonparty) FBI raided Imperial Holdings' office on Sept. 27, knocking the share price from $6.30 to $2.19. Imperial describes itself as a "specialty finance company providing liquidity solutions with a focus on individual life insurance policies and purchasing structured settlement payments," in a statement announcing the raid, which is cited in the complaint. A copy of the Complaint in Fuller v. Imperial Holdings, Inc., et al., Case No. 2011CA015075 (Fla. Cir. Ct., Beach Cty.), is available at: http://www.courthousenews.com/2011/10/03/FBIRaid.pdf The Plaintiff is represented by: Paul J. Geller, Esq. Stuart A. Davidson, Esq. Robert J. Robbins, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 E-mail: PGeller@rgrdlaw.com SDavidson@rgrdlaw.com RRobbins@rgrdlaw.com - and - Samuel H. Rudman, Esq. Mario Alba, Jr., Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 E-mail: SRudman@rgrdlaw.com malba@rgrdlaw.com - and - Michael I. Fistel, Jr., Esq. Marshall Dees, Esq. HOLZER HOLZER & FISTEL LLC 200 Ashford Center North, Suite 300 Atlanta, GA 30338 Telephone: (770) 392-0090 - and - Jeffrey A. Berens, Esq. DYER & BERENS LLP 303 East 17th Avenue, Suite 300 Denver, CO 80203 Telephone: (303) 861-1764 JPMORGAN CHASE: Supreme Ct. Refuses to Hear Check Fee Class Action ------------------------------------------------------------------ Eric Hornbeck, writing for Law360, reports that the U.S. Supreme Court declined on Oct. 3 to hear a Florida consumer's putative class action accusing JPMorgan Chase Bank NA of violating a state law by charging check-cashing fees to individuals who don't have Chase accounts. The high court denied the petition for writ of certiorari in a brief order. Vida Baptista filed the class action in January 2010, claiming a $6 fee Chase charged her for cashing an account holder's check violated Florida law barring such fees for nonaccount holders and unjustly enriched the bank. MILLER ENERGY: Class Action Lead Plaintiff Deadline Nears --------------------------------------------------------- Several class actions have been filed against Miller Energy Resources, Inc., in the United States District Court for the Eastern District of Tennessee on behalf of purchasers of common stock. Based on the complaints, the longest class period is from December 16, 2009, through and including August 8, 2011. The lawsuit alleges that throughout the Class Period, Miller, an oil and gas exploration, production, and drilling firm, and the other Defendants made materially false and misleading statements about Miller's financial results and the valuation of certain oil- and-gas-producing assets it acquired in Alaska from Pacific Energy Alaska Operating LLC and Pacific Energy Alaska Holdings, LLC. Specifically, the complaint alleges that Defendants (1) issued false and misleading consolidated balance sheets, statements of operations, and cash flows; (2) failed to properly classify royalty expenses; (3) failed to properly record sufficient compensation expense on equity awards; (4) failed to properly calculate the liability for derivative instruments; (5) did not properly consolidate entities under its control; and (6) improperly reported a value materially higher than actual value for certain Alaskan oil and gas assets. As a result of these problems, the Company was required to restate its financial results. Over a series of almost daily disclosures occurring on July 28, 2011, July 29, 2011, and August 1, 2011, Miller's stock price dropped from $7.04 per share on July 27, 2011, to a close of $3.37 per share on August 2, 2011, a total drop of $3.67 or 52%. If you purchased Miller shares during the Class Period you may, no later than October 11, 2011, request that the court appoint you lead plaintiff of the proposed class. A lead plaintiff is a class member that represents other class members in directing the litigation. Your share in any recovery will not be affected by serving as a lead plaintiff, however, lead plaintiffs make important decisions that could affect the overall recovery for class members. You do not need to be a lead plaintiff to recover. You may retain Milberg LLP, or other attorneys, for this action, but do not need to retain counsel to recover. If this action is certified as a class action, class members will be automatically represented by court-appointed counsel. The complaint in this action was not filed by Milberg. Milberg LLP has represented individual and institutional investors for over four decades and serves as lead counsel in courts throughout the United States. 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 attorneys: Andrei Rado, Esq. Milberg LLP One Pennsylvania Plaza 49th Floor New York, NY 10119-0165 Telephone: (800) 320-5081 E-mail: arado@milberg.com NEXTEL COMMS: 2nd Cir. Revives Claims in Suit Over Settlement ------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that the United States Court of Appeals for the Second Circuit revived claims that Nextel Communications hired their employees' lawyers while they were fighting a discrimination class action, inviting a conflict of interest, to pressure them into a lowball settlement. A three-judge appellate panel described that settlement agreement as little more than Nextel's "employment contract" for their adversaries' firm, Leeds, Morelli & Brown. The contract stipulated that 587 employees would split $2 million to waive all claims, while the firm collected $3.5 million in fees and an additional $2 million to work as a consultant for Nextel, the 24-page opinion states. Leeds Morelli also promised not to accept new clients with claims against Nextel, refer any client to another lawyer, or accept compensation for any prior referral. Nextel employees say that the firm encouraged them to skip over the pages describing the consultancy agreement and head straight to the signature page. In October 2006, they sued Nextel and the law firm for a host of claims including breach of fiduciary duty, commercial bribery, fraud, unjust enrichment, legal malpractice, breach of contract, unauthorized practice of law, conversion, and violation of the New Jersey RICO statute. U.S. District Judge George Daniels had dismissed all of the charges for failure to state a claim, but the federal appeals court reinstated several of those claims last week. "It cannot be gainsaid that, viewed on its face alone, the [settlement agreement] created an enormous conflict of interest between LMB and its clients," Judge Ralph K. Winter wrote for the court, using the initials of Leeds, Morelli & Brown. "On the face of the [settlement], its inevitable purpose was to create an irresistible incentive -- millions of dollars in payments having no relation to services performed for, or recovery by, the claimants -- for LMB to engage in an en masse solicitation of agreement to, and performance of, the [settlement's] terms from approximately 587 claimant clients." The other members of the appellate panel were Circuit Judge Peter W. Hall and U.S. District Judge Miriam Goldman Cedarbaum, sitting by designation from New York's Southern District. They say the settlement agreement stipulated that Nextel would not have to pay a dime if the claimants could not prove 587 employees in their class, and would pay the law firm based on the speed with which they resolved the claims. "Indeed, we express our candid opinion that the [settlement] was an employment contract between Nextel and LMB designed to achieve an en masse processing and resolution of claims that LMB was obligated to pursue individually on behalf of each of its clients," Judge Winter wrote. "The only sensitivity shown to potential conflicts of interest by the [settlement] is in the provisions in which LMB promises not to represent new clients, or refer new claims, against Nextel. Tellingly, this sensitivity appears aimed only at avoiding conflicts that could have an impact on LMB's new-found relationship with Nextel." The allegations will return to the Southern District of New York on remand. A copy of the decision in Johnson, et al. v. Nextel Communications, Inc., et al., Case No. 09-cv-01892 (2nd Cir.), is available at http://is.gd/uGiQ9T The Plaintiffs-Appellants were represented by: Kenneth S. Thyne, Esq. ROPER & TWARDOWSKY, LLC 77 Jefferson Place Totowa, NJ 07512-2614 Telephone: (973) 790-4441 Defendants-Appellees Leeds, Morelli & Brown, Lenard Leeds, Steven A. Morelli, and Jeffrey K. Brown were represented by: Michael McConnell, Esq. Traci Van Pelt, Esq. Robert W. Steinmetz, Esq. MCCONNELL, FLEISCHNER, HOUGHTALING & CRAIGMILE, LLC Denver Corporate Center, Tower 1 4700 S. Syracuse St., Suite 200 Denver, CO 80237 Telephone: (303) 480-0400 E-mail: mmcconnell@mfhlegal.com tvanpelt@mfhlegal.com rsteinmetz@mfhlegal.com - and - Janice J. DiGennaro, Esq. Shari Claire Lewis, Esq. LEWIS, RIVKIN RADLER LLP 926 RXR Plaza Uniondale, New York 11556-0926 Telephone: (516) 357-3000 E-mail: janice.digennaro@rivkin.com shari.lewis@rivkin.com Defendant-Appellee Nextel Communications, Inc. was represented by: Inc. Lawrence R. Sandak, Esq. PROSKAUER ROSE LLP One Newark Center Newark, NJ 07102-5211 Telephone: (973) 274.3256 E-mail: lsandak@proskauer.com - and - Thomas A. McKinney, Esq. CASTRONOVO & MCKINNEY LLC 18 MacCulloch Avenue Morristown, NJ 07960 Telephone: (973) 920-7923 E-mail: tom@law-cm.com NOKIA CORP: High Court Blocks Mobile Radiation Class Action ----------------------------------------------------------- Erin Fuchs, writing for Law360, reports that the U.S. Supreme Court on Oct. 3 refused to consider reviving a proposed class action alleging Nokia Corp. and more than a dozen other defendants sold cellphones without protecting users from dangerous radio frequency emissions. Chief Justice John Roberts and Justice Stephen Breyer did not participate in the decision not to grant certiorari. They both owned stock in Nokia as of December 2010, they revealed in their most recent financial disclosure statements. REPUBLIC OF ARGENTINA: Appeal From Dismissal of 8 Suits Pending --------------------------------------------------------------- An appeal from the dismissal of eight certified class action lawsuits against The Republic of Argentina remains pending, according to the Government's September 30, 2011, Form 18-K filing with the U.S. Securities and Exchange Commission. The Argentina Government's default on its foreign currency- denominated debt in December 2001 prompted a number of lawsuits by plaintiffs seeking to collect on bonds issued by the Government. Plaintiffs in each of these actions have asserted that the Government failed to make timely payments of interest and/or principal on their bonds, and seek to obtain judgments for the face value of and/or accrued interest on those bonds. The Government is involved in class action litigation in the United States District Court for the Southern District of New York. Currently, eighteen class actions are pending. Class certification has been granted in thirteen cases: * H.W. Urban GmbH v. The Republic of Argentina, 02 Civ. 5899 (TPG) (purporting to represent holders of 11.375% bonds due January 30, 2017, and 11.75% bonds due April 7, 2009); * Seijas v. The Republic of Argentina, 04 Civ. 400 (TPG) (purporting to represent holders of 11% bonds due October 9, 2006); * Seijas v. The Republic of Argentina, 04 Civ. 401 (TPG) (purporting to represent holders of 7% bonds due December 19, 2008); * Castro v. The Republic of Argentina, 04 Civ. 506 (TPG) (purporting to represent holders of 9.75% bonds due September 19, 2027); * Hickory Sec. Ltd. v. The Republic of Argentina, 04 Civ. 936 (TPG) (purporting to represent holders of 11.75% bonds due June 15, 2015); * Azza v. The Republic of Argentina, 04 Civ. 937 (TPG) (purporting to represent holders of 11% bonds due December 4, 2005); * Azza v. The Republic of Argentina, 04 Civ. 1085 (TPG) (purporting to represent holders of 8.375% bonds due December 20, 2003); * Puricelli v. The Republic of Argentina, 04 Civ. 2117 (TPG) (purporting to represent holders of 12.375% bonds due February 21, 2012); * Chorny v. The Republic of Argentina, 04 Civ. 2118 (TPG) (purporting to represent holders of floating rate bonds due March 29, 2005); * Scappini v. The Republic of Argentina, 04 Civ. 9788 (TPG) (purporting to represent holders of 8.125% global euro bonds due April 21, 2008); * Daelli v. The Republic of Argentina, 05 Civ. 3095 (TPG) (purporting to represent holders of 11.375% bonds due March 15, 2010); * Barboni v. The Republic of Argentina, 06 Civ. 5157 (TPG) (purporting to represent holders of floating rate European Medium Term Note bonds due May 27, 2004); and * Brecher v. The Republic of Argentina, 06 Civ. 15297 (TPG) (purporting to represent holders of 9.25% European Medium Term Note bonds due July 20, 2004). There are five putative class actions in which plaintiffs have not yet sought class certification: * Lavaggi v. The Republic of Argentina, 04 Civ. 5068 (TPG) (purporting to represent holders of 12.125% bonds due February 25, 2019, 10% European Medium Term Note bonds due June 25, 2007, and 3.5% European Medium Term Note bonds due August 11, 2009); * Daho v. The Republic of Argentina, 05 Civ. 1033 (TPG) (purporting to represent holders of the same bonds at issue in Azza v. The Republic of Argentina, 04 Civ. 1085 (TPG)); * Dussault v. The Republic of Argentina, 06 Civ. 13085 (TPG) (purporting to represent holders of 11% bonds due November 5, 2003, 10% bonds due January 7, 2005, and 10% bonds due February 22, 2007) * Newbadem Invest. S.A. v. The Republic of Argentina, 07 Civ. 1938 (TPG) (purporting to represent holders of 12.25% bonds due June 19, 2018); and * Cavero v. The Republic of Argentina, 07 Civ. 11591 (TPG) (purporting to represent holders of 9.5% bonds due November 30, 2002). On January 9, 2009, the District Court entered aggregate class judgments totaling approximately $2.2 billion in eight of the certified class actions, which the United States Court of Appeals for the Second Circuit ("Court of Appeals") vacated on May 27, 2010, having found the judgments to be inflated. Thereafter, the District Court entered revised aggregate class judgments totaling approximately $287 million in the eight actions on July 22, 2011, which Argentina has appealed. On April 26, 2010, the District Court denied a motion by plaintiffs and class representatives in two certified class actions, Urban v. The Republic of Argentina, 02 Civ. 5899 (TPG), and Barboni v. The Republic of Argentina, 06 Civ. 5157 (TPG), to enjoin Argentina from making any proposed debt exchange offer, or communication regarding such an offer, to purported members of the Urban and Barboni classes. The appeal by the plaintiff in Barboni, was dismissed as moot by the Court of Appeals on June 6, 2011, given that the exchange offer plaintiffs sought to enjoin had settled in 2010. Attempts to Attach Argentine Property In September 2008, two plaintiffs obtained attachment and restraining orders on an ex parte basis of certain assets held by Banco de la Nacion Argentina ("BNA") in New York under the theory that the bank is an alter ego of Argentina. The same plaintiffs also obtained attachments and restraining orders on an ex parte basis of accounts held by Argentina at the Miami and New York branches of Banco de la Nacion Argentina. On September 30, 2009, the District Court held that Banco de la Nacion Argentina is not the alter ego of Argentina and vacated the attachments of Banco de la Nacion Argentina's assets. In May 2010, these plaintiffs and the class representatives in eight certified class actions obtained additional ex parte attachment orders on certain assets held by Banco de la Nacion Argentina in New York under the theory that recent Argentine resolutions authorizing loans from Banco de la Nacion Argentina to Argentina were evidence that the bank is an alter ego of Argentina. Argentina and Banco de la Nacion Argentina moved to vacate these orders. On September 24, 2010, following agreement of the parties, the District Court vacated the 2008 and 2010 restraints and attachments of BNA property. Pending Appeal On March 28, 2011, the District Court granted Argentina's and BNA's motions to dismiss and dismissed the complaint of the eight class representatives in the eight certified class actions who had also alleged that Banco de la Nacion Argentina was the alter ego of Argentina. The class plaintiffs filed a notice of appeal of the dismissal and the appeal is pending. RITE-AID: Faces Class Action Over Bait-and-Switch Scam ------------------------------------------------------ Courthouse News Service reports that a federal class action claims Rite-Aid drugstores run a bait and switch scam by advertising Sunday specials, but marking up prices for "sale" items on Saturday. A copy of the Complaint in Nichols v. Rite Aid Corporation, Case No. 11-cv-03510 (N.D. Ala.) (Kallon, J.), is available at: http://www.courthousenews.com/2011/10/03/RiteAid.pdf The Plaintiff is represented by: Anna L. Hart, Esq. Dan C. King III, Esq. STEWART & STEWART, P.C. 1826 3rd Avenue North Suite 300 Bessemer, AL 35020 Telephone: (205) 425-1166 E-mail: ahart@stewartandstewart.net dckiii@hotmail.com - and - W. Taylor Stewart, Esq. P.O. Box 2274 Anniston, AL 36202 Telephone: (256) 237-9311 E-mail: wts70@donaldstewart.net STANFORD HOSPITAL: Keller Grover Files Data Breach Class Action --------------------------------------------------------------- Sue Dremann, writing for Palo Alto Online, reports that Keller Grover, a law firm that has been investigating a patient- information breach at Stanford Hospital & Clinics, has filed a class-action lawsuit against the hospital and Multi-Specialty Collection Services, LLC, the outside vendor that caused the breach, the hospitals announced on Oct. 3. The hospitals acknowledged on Sept. 8 that a data breach involving 20,000 patients' records had occurred. The patients were seen in the emergency room between March and August of 2009. The patients' names, diagnosis codes and billing amounts were posted on a public Web site for nearly a year before being removed Aug. 22. Social Security numbers or credit card information was not among the data, hospital officials said. A subcontractor of an outside vendor, Multi-Specialty Collection Service, created the compromised data file, Stanford said. The data was posted on the Student of Fortune Web site, according to the New York Times. The site provides homework help and the data was used to show how to create a bar graph. Stanford said in a statement it has heard of the class-action lawsuit but did not provide details regarding the lawsuit. "Stanford Hospital & Clinics (SHC) intends to vigorously defend the lawsuit that has been filed as it acted appropriately and did not violate the law as claimed in the lawsuit. "SHC takes very seriously its obligation to treat its patient information as private and confidential. As soon as this was brought to SHC's attention by a patient, the hospital demanded and had the spreadsheet taken down from the Web site and backup servers. "SHC quickly notified the affected patients of this breach and offered to provide free identity protection services to all the patients, even though the information disclosed on the Web site is not the type used for identity theft. "To date there is no evidence that anyone saw this information on the Web site and improperly used it for fraudulent or any other improper purpose. SHC has investigated this matter, terminated its relationship with Multi-Specialty Collection Services, and reported this breach to law-enforcement authorities," the hospital said in the statement. Stanford officials said Multi-Specialty Collection Services, a California company, provided business and financial support to the hospitals. Multi-Specialty was operating under a contract that specifically required it to protect the privacy of the patient information. The hospital sent the data to Multi-Specialty in an encrypted format to protect its confidentiality. A hospital investigation found that Multi-Specialty prepared an electronic spreadsheet from the data that had patient names, addresses and diagnosis codes. The company sent the spreadsheet to a third person who was not authorized to have the information and who posted it on a Web site. "This mishandling of private patient information was in complete contravention of the law and of the requirements of MSCS's contract with SHC and is shockingly irresponsible. SHC regrets that its patients' confidentiality was breached and is committed to protecting the health and privacy of all of its patients," the hospital said. A spokesperson for Multi-Specialty said the company could not comment on the lawsuit or Stanford's allegations, since there is an ongoing investigation. U.S. DAIRY COMPANIES: Faces Class Actions Over Slaughtered Cows --------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that more than half a million cows have been slaughtered in order to raise the price of milk in the United States, according to a pair of class action lawsuits filed against some of the nation's largest dairy companies and trade associations. Both suits, brought in federal court in Northern California on Sept. 26 and Sept. 27, were filed against the National Milk Producers Federation in Arlington, Va., and one of its programs, Cooperatives Working Together, a trade group that produces 70% of the nation's milk. The suits allege that more than 500,000 cows were slaughtered from 2003 to 2010 under a "dairy herd retirement program" by Cooperatives Working Together, which allowed its members to earn more than $9.5 billion in additional revenue. "We believe this case serves two important causes," said Steve Berman, managing partner of Seattle's Hagens Berman Sobol Shapiro, which brought the suits, in a prepared statement. "A resolution to this case will protect consumers from artificially-inflated milk prices and also will prevent the unnecessary and shameful killing of tens of thousands of cows each year." Jim Tillison, chief operative officer of Cooperatives Working Together, speaking on behalf of the National Milk Producers Association, said the program was designed in 2003 to assist dairy farmers who were losing money on milk production. "The program was designed and has always been operated in a manner fully consistent with the anti-trust laws of the United States," he said. "The lawsuit filed [Wed]nesday in California at the instigation of a West Coast animal rights group is without merit. National Milk Producers will vigorously defend its actions and those of its member cooperatives and their producers in this lawsuit and expect that those actions will ultimately be vindicated." Also sued were individual members of Cooperatives Working Together, including Dairy Farmers of America Inc., the largest dairy farmer cooperative in the nation, based in Kansas City, Mo.; Land O'Lakes Inc., the second largest cooperative, based in Arden Hills, Minn.; Dairylea Cooperative Inc., based in Syracuse, N.Y.; and Agri-Mark Inc., based in Lawrence, Mass. Kristi Dale, spokeswoman for Dairy Farmers of America, and Jennifer Huson, a spokeswoman for DairyLea, referred calls to Cooperatives Working Together. Jeannie Forbis, a spokeswoman for Land O'Lakes, said in a statement: "Upon an initial review of the lawsuit, we believe the accusations made are unfounded. Beyond that, we will not comment on pending litigation." A spokesman for Agri-Mark did not respond to a request for comment. The suits allege that Cooperatives Working Together had a different goal: Force small farmers to kill their entire herds, thus benefiting larger companies. "The purpose and effect of the herd retirement program was to reduce the supply of raw farm milk in order to increase its price, which in turn increased the price paid by consumers for milk and other fresh milk products," one of the suits says. "By manipulating the supply of raw farm milk through herd retirement, price competition has been suppressed and prices have been supported at artificially high levels through the United States. As a result, indirect purchasers of milk and other fresh milk products have paid supracompetitive prices." The suits seek damages for separate classes under the antitrust laws of 27 states, including California, Florida, Illinois, Massachusetts, New York and Wisconsin. The classes consist of consumers who have purchased milk or fresh milk products since 2004. One suit was brought on behalf of two individual consumers -- one in San Francisco and one in Cold Spring Harbor, N.Y. -- and the Torah Montessori School in Chicago. The other suit was brought on behalf of two individual consumers, one in Waukesha, Wis., and one in Greenfield, Wis. Hagens Berman collaborated with a group called Compassion Over Killing, an organization focused on animal protection based in Los Angeles and Washington. Among other things, the group has petitioned the Food and Drug Administration to crack down on the misleading labeling of egg cartons. WELLCARE HEALTH: 11th Circuit Dismisses Appeal in Securities Suit ----------------------------------------------------------------- The United States Court of Appeals for the Eleventh Circuit dismissed a stockholder's appeal from the approval of a settlement resolving a consolidated securities lawsuit involving WellCare Health Plans, Inc., according to the Company's October 3, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On December 17, 2010, WellCare Health Plans, Inc. (the "Company") entered a Stipulation and Agreement of Settlement (the "Stipulation Agreement") with a group of five public pension funds appointed by the United States District Court for the Middle District of Florida (the "Federal Court") to act as lead plaintiffs in the consolidated securities class action Eastwood Enterprises, L.L.C. v. Farha, et al., Case No. 8:07-cv-1940-VMC- EAJ (the "Class Action"). The Stipulation Agreement was approved by the Federal Court on May 4, 2011 (the "Approval Date"). Among other things, the Stipulation Agreement provides that the Company will issue to the class tradable unsecured subordinated notes having an aggregate face value of $112.5 million, with a fixed coupon of 6% and a maturity date of December 31, 2016 (the "Notes"). In June 2011, an individual stockholder filed a notice of appeal with respect to this settlement with the United States Court of Appeals for the Eleventh Circuit (the "Appeals Court") which was dismissed by the Appeals Court on August 17, 2011. On September 30, 2011, the Company, as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Bank"), entered into an Indenture (the "Indenture") with respect to the Company's issuance of the Notes. The Indenture sets forth the terms and conditions applicable to the Company's issuance of the Notes. Among other things, the terms of the Indenture require the Company to: * Deposit with the Bank all amounts due for interest or principal payments by the dates on which such payments are due; * Designate the Bank as the initial paying agent and primary registrar for the Notes; * Set forth administrative procedures for the transfer, cancellation and redemption of Notes; and * Provide for acceleration of the principal of the Notes and accrued interest in the event of the Company's default under the Indenture. Under the Indenture an event of default will have occurred in any of these events: * the Company defaults in payment of the principal or any interest on any Note when such becomes due and payable; * the Company consolidates, merges or otherwise transfers its assets without the consent of the holders of the Notes, other than as expressly permitted by the terms of the Indenture; * the Company fails to comply with any of its other covenants in the Notes or the Indenture and fails to cure such default within 60 days after the Company receives a notice of such default; * the Company (i) commences a voluntary bankruptcy proceeding; (ii) consents to the entry of an order for relief against it in an involuntary bankruptcy proceeding or the commencement of any case against it; or (iii) participates in certain other actions related to the relief of debtors; or * a court of competent jurisdiction enters a bankruptcy order that (i) is for relief against the Company in an involuntary proceeding, or adjudicates the Company insolvent or bankrupt; (ii) appoints any receiver, trustee or similar official of the Company or for any substantial part of its property; or (iii) orders the winding up or liquidation of the Company, and the order remains unstayed for 60 days. * Walmart Sup. Court Decision May Change Future of Class Actions ---------------------------------------------------------------- Andrea Lannom, writing for West Virgin Media, reports that change could be in the future for class action suits, according to a U.S. Supreme Court decision involving a case with more than 1 million plaintiffs. The case began when 1.5 million former and current employees filed a class action suit against Walmart for alleged discrimination. Plaintiffs sought backpay, declaratory and injunctive relief. In a 5-4 decision, the U.S. Supreme Court decided that plaintiffs would have to file individual complaints against the mega retailer because the action did not meet certain class action criteria. Larry Blalock, member and manager of Jackson Kelly's Wheeling office, explained that plaintiffs attempted to certify the action under 23(b)(2). This certification means that the opposing party has "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole," according to the Supreme Court's opinion. Mr. Blalock explained that class actions must meet four criteria, including commonality. "The court found commonality had not been met," he said. "Usually in (b)(2), you have policy or practice which is applied universally across all company stores. The only national policy relevant was the non-discrimination policy." "The court found it unlikely that thousands of managers are acting in common," Mr. Blalock added. The Supreme Court reversed certification for this reason, holding that even though there was the national discrimination policy, pay and promotion activities were localized decisions. Thus, plaintiffs will either have to file individual lawsuits or attempt to certify the action under a different section. Mr. Blalock explained that the second significant part of this decision deals with plaintiffs' requested relief. According to the opinion, class action law applies only when "a single injunction or declaratory judgment would provide relief to each member of the class." The opinion additionally states that Rule 23(b)(2) does not authorize class certification when different class members are entitled to different judgments against the defendant. "Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages," the opinion states. Mr. Blalock says this landmark decision will change future class action suits. "Class action law is complex," he said. "But this case certainly . . . will be a retardant to future massive class action claims . . . There will be spill over affect into class actions of other types though." This "spill over" will mean a stricter scrutiny in class action claims. "The message is clear," he said. "For efforts under (b)(2), lower courts need to be more scrutinizing in ensuring that various elements have been established. It's raised the bar for what complaints in massive class actions will have to prove." ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *