/raid1/www/Hosts/bankrupt/CAR_Public/111010.mbx
C L A S S A C T I O N R E P O R T E R
Monday, October 10, 2011, Vol. 13, No. 200
Headlines
AOL-TIME WARNER: Securities Class Suit Goes to Trial
BIDCACTUS.COM: Faces Class Action for Exploiting Consumers
BIRD BRAIN: Recalls 1.6 million Bottles of Pourable Gel Fuel
BLUEKNIGHT ENERGY: Class Action Settlements Gets Final Court OK
CADENCE DESIGN: Dist. Ct. Defers Ruling on Securities Class Pact
CENTRO: Class Action Fails to Halt Restructuring
CHESAPEAKE APPALACHIA: Judge OKs $3.4-MM Class Action Settlement
CINGULAR WIRELESS: 11th Cir. Upholds Fla. Consumer Suit Dismissal
CITY OF HAZELWOOD, MO: Faces Class Action Over Red Light Cameras
CITY OF NEW YORK: Activists File Class Action Over Arrests
EDUCATION MANAGEMENT: Judge Dismisses Shareholder Class Action
ENHANCED SERVICES: 7th Cir. Affirms Denial of Consumer Suit
FLEETBOSTON FINANCIAL: Settles Summit Securities Class Action
GENTEK BUILDING: Eliason Consumer Suit Survives Dismissal Motion
HARRIS & HARRIS: 7th Circuit Remands Kasalo Lawsuit
HONDA MOTOR: Faces Class Action Over Brake Defect Warranty
HONORE-MERCIER HOSPITAL: Class Action Settlement Nears
INTUITIVE SURGICAL: Calif. Ct. Dismisses Securities Class Suit
ITT TECHNICAL: Accused in Tenn. Suit of Defrauding Students
NATIONWIDE PROPERTY: 6th Cir. Upholds $3MM Attorneys Fee Order
NORTHERN LIFE: Settles Class Action Over Fixed Annuities
PACIFIC LIFE: District Court Pares Down Zarrella Suit
PHILIP MORRIS: 7th Cir. Affirms Dismissal of Ill. Consumer Suit
RENAISSANCE LEARNING: Brualdi Law Firm Files Class Action
RITE AID: Continues to Defend Wage and Hour-Violations Suits
RITE AID: Still Defends FLSA-Violations Class Suits
SANTICA RESEARCH: Sued Over Misleading CelluScience Product Ads
SCHOLASTIC CORP: Consolidated Securities Class Suit Dismissed
ST. VINCENT: 7th Cir. Affirms Non-Certification of Employee Suit
TERRIBLE HERBST: Settlement Rejection Does Not Moot Pitts' Lawsuit
TICKET MASTER: 9th Circuit Rules on Appeals in 3 Class Suits
TUT SYSTEMS: District Court Excludes J. Hayes From IPO Class Suit
WELLCARE HEALTH: Settles Securities Class Action
WHITE DIRECTORY: 4th Cir. Affirms Class Certification of Gray Suit
YU WEI: Recalls 8,000 Drop-Side Cribs Sold at jcpenney.com
*********
AOL-TIME WARNER: Securities Class Suit Goes to Trial
----------------------------------------------------
Judge Nancy Gertner of the U.S. District Court for the District of
Massachusetts denied summary judgment motions of the individual
defendants in the case captioned, In re Credit Suisse-AOL
Securities Litigation, Civil Action No. 02cv12146-NG (D. Mass.)
The case is a consolidated securities class action led by court-
appointed lead plaintiff Bricklayers and Trowel Trades
International Pension Fund, asserting claims on behalf of
individuals who purchased common stock of AOL-Time Warner, Inc.,
from January 12, 2001, through July 24, 2002.
The defendants are (1) Credit Suisse First Boston (USA), Inc.; (2)
Credit Suisse First Boston, LLC; and (3) four individuals employed
by CSFB during all or part of the Class Period, namely James
Kiggen and Laura Martin, former CSFB research analysts, Frank
Quattrone, former Senior Managing Director and Global Head of
CSFB's Technology Group, and Elliot Rogers, Managing Director and
Global Director of Technology Research at CSFB.
The individual defendants challenged the plaintiffs' allegations
of misrepresentations related to the AOL-Time Warner common stock.
Judge Gertner cited that many aspects of the case are unique:
-- The plaintiffs produced e-mails that reflect the individual
defendants' scienter that the company's finances were far
more precarious that their reports reported.
-- The AOL-Time Warner merger produced a unique company at the
very start of the dot-com era and given the novelty of the
merger, the investing public would have relied on analyst's
reports even more than in the usual case.
-- While the individual defendants are analysts rather than
issuers of the securities, it is true the defendant analysts
are one voice of many reporting on AOL and this fact
complicates the evaluation of causation essential to the
claim but does not immunize the defendant analysts from
scrutiny.
A copy of the District Court's Aug. 26, 2011 Memorandum and Order
is available at http://is.gd/7Nn9Kcfrom Leagle.com.
BIDCACTUS.COM: Faces Class Action for Exploiting Consumers
----------------------------------------------------------
Meredith Yeomans, writing for azfamily.com, reports that a Valley
man has filed a class action lawsuit against a penny auction Web
site called BidCactus.com.
In January, Steve Mendelson registered with the Web site in order
to get good deals on Christmas gifts.
In four weeks, he wound up spending $15,000 with the Web site,
including $650 for an I-Pod that retails for only $230, and more
than $1,000 on Wii gaming accessories that sells in stores for
$450.
Each one-cent bid actually costs the consumer 75 cents.
Mr. Mendelson says that makes it easy for users to get carried
away because you're not thinking about the overall amount you're
actually spending.
In the lawsuit, attorneys claim "Bidcactus auctions feed the
temptation to continue to bid and bid . . . And also exploits the
difficulty consumers have in making snap decisions."
Unlike Web sites like EBay, where if you bid on an auction and
lose, you don't pay; with BidCactus the money you spend is gone
once it's used.
Mr. Mendelson and his attorney believe that makes BidCactus more
like a lottery or gambling Web site, not an auction, and they want
the money he lost returned.
"There's just something that's still wrong," Mr. Mendelson said.
"I mean, obviously I did win things and bid on things but majority
of it should be coming back. It's just wasted. It's a trickery.
It's not legit."
3 On Your Side contacted BidCactus about the lawsuit which was
filed in federal court.
In a statement, a representative writes:
"Bidcactus categorically denies these claims and has retained
counsel to resolve this matter. BidCactus stands by its
commitment to fairness, and honest practices as stated in its Seal
of Assurance."
BIRD BRAIN: Recalls 1.6 million Bottles of Pourable Gel Fuel
------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Bird Brain Inc. of Ypsilanti, Michigan, announced a voluntary
recall of about 1.6 million bottles and cans of Bird Brain Firepot
Fuel Gel, Bird Brain Firepot Citronella Fuel Gel and Bird Brain
BioFuel Fuel Gel. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The pourable gel fuel can ignite unexpectedly and splatter onto
people and objects nearby when it is poured into a firepot that is
still burning. This hazard can occur if the consumer does not see
the flame or is not aware that the firepot is still ignited. Gel
fuel that splatters and ignites can pose fire and burn risks to
consumers that can be fatal.
Bird Brain is aware of 20 reports of incidents, resulting in 11
injuries that involved first-, second- and third-degree burns.
This recall involves pourable gel fuels packaged in 16-ounce 32-
ounce and 64-ounce plastic bottles and sold with or without
citronella oil. The labels on the container say "Bird Brain
Firepot Fuel Gel" or "BioFuel Fuel Gel." The bottles were sold as
single bottles and in multiple-bottle packages. The gel fuel is
poured into a stainless steel cup in the center of ceramic
firepots or other decorative lighting devices and ignited. The
following products are affected by this recall:
Size Model Name Item # UPC
---- ---------- ------ -------------
16 oz. Bottle Firepot Clear 11820010 03913803231-7
Fuel Gel
16 oz. Bottle Firepot Citronella 11820011 03913802866-2
Fuel Gel
32 oz. Bottle Firepot Clear 11820001 03913805081-6
Fuel Gel 11820006 03913805081-6
11820007 03913805081-6
11820008 03913805081-6
11820013 03913803591-2
11820024 03913807473-7
32 oz. Metal Firepot Clear 11820014 03913803160-0
Can Fuel Gel 11820018 03913803160-0
32 oz. Bottle Firepot Citronella 11820002 03913805082-3
Fuel Gel 11820009 03913805082-3
11820028 03913803592-9
32 oz. Metal Firepot Citronella 11820020 03913803161-7
Can Fuel Gel 11820019 03913803161-7
32 oz. Bottle BioFuel Gel 11820016 03913803322-2
64 oz. Bottle Firepot Clear 11820022 03913803304-8
Fuel Gel
64 oz. Bottle Firepot Citronella 11820023 03913803305-5
Fuel Gel
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12002.html
The recalled products were manufactured in the United States of
America and China and sold at Sears, K-Mart, Target and other
major retailers; Amazon.com, Target.com, Buy.com and various
online specialty, home and garden, pet and gift shops and
independent retailers from October 2008 through August 2011.
Individual units were sold for between $8 and $18. Multi-packs
were sold for between for between $18 and $136.
Consumers should immediately stop using the pourable gel fuel and
return the gel fuel to the company for a full refund. For
additional information, contact Bird Brain toll-free at (877) 414-
0842 anytime (live operators available between 8:30 a.m. and 5:30
p.m. Eastern Time, Monday through Friday) or visit the company's
Web site at http://www.birdbrainrecall.com/
This firm is part of a larger set of pourable gel fuel recalls.
For more information, please see:
News Release: Nine Manufacturers, Distributors Announce Consumer
Recall of Pourable Gel Fuel Due to Burn and Flash
Fire Hazards (Sept. 1, 2011)
[http://www.cpsc.gov/cpscpub/prerel/prhtml11/11315.html]
News Release: Napa Home & Garden Recalls NAPAfire and FIREGEL
Pourable Gel Fuel Due to Fire and Burn Hazards
(June 22, 2011)
[http://www.cpsc.gov/cpscpub/prerel/prhtml11/11255.html]
OnSafety Blog: Stop Using Pourable Gel Fuels (June 22, 2011)
[http://www.cpsc.gov/onsafety/2011/09/stop-using-pourable-gel-fuels/]
Alert: Press Statement on Gel Fuels and Other Illuminating Fuels
(June 14, 2011)
[http://www.cpsc.gov/PR/fuels06142011.html]
BLUEKNIGHT ENERGY: Class Action Settlements Gets Final Court OK
---------------------------------------------------------------
Blueknight Energy Partners, L.P., a midstream energy company
focused on providing integrated services for companies engaged in
the production, distribution and marketing of crude oil, asphalt
and other petroleum products, on Oct. 5 disclosed that the U.S.
District Court for the Northern District of Oklahoma granted on
October 5, 2011, final approval and issued a final judgment
relating to the settlement of the consolidated securities class
action litigation, In Re: SemGroup Energy Partners, L.P.
Securities Litigation, Case No. 08-MD-1989-GKF-FHM, in accordance
with the Stipulation of Settlement entered into by the parties on
May 3, 2011.
The settlement provides for, among other things, dismissal of the
Class Action Litigation with prejudice, releases in favor of the
defendants and collective payment by the defendants in accordance
with the Stipulation of Settlement. The Stipulation of Settlement
was provided for in the Partnership's December 31, 2010 financial
statements. No parties admit any wrongdoing as part of the
settlement.
"Settlement of the Class Action Litigation is another step that
furthers BKEP's restructuring. We are pleased to have this
SemGroup legacy issue resolved and behind us," explained Mr. James
C. Dyer, Chief Executive Officer of BKEP's general partner.
About Blueknight Energy Partners, L.P.
BKEP -- http://www.bkep.com-- owns and operates a diversified
portfolio of complementary midstream energy assets consisting of
approximately 8.1 million barrels of crude oil storage located in
Oklahoma and Texas, approximately 6.7 million barrels of which are
located at the Cushing Oklahoma Interchange, approximately 1,285
miles of crude oil pipeline located primarily in Oklahoma and
Texas, approximately 300 crude oil transportation and oilfield
services vehicles deployed in Kansas, Colorado, New Mexico,
Oklahoma and Texas and approximately 7.4 million barrels of
combined asphalt product and residual fuel oil storage located at
45 terminals in 22 states. BKEP provides integrated services for
companies engaged in the production, distribution and marketing of
crude oil, asphalt and other petroleum products. BKEP is based in
Oklahoma City, Oklahoma and Tulsa, Oklahoma.
CADENCE DESIGN: Dist. Ct. Defers Ruling on Securities Class Pact
----------------------------------------------------------------
Judge Samuel Conti of the U.S. District Court for the Northern
District of California deferred ruling on the proposed class
action and derivative settlements in In re Cadence Design Systems,
Inc. Securities Litigation, Case No. 08-4966 SC (N.D. Calif.)
Judge Conti said he lacks the information required to rule on the
requests. Accordingly, he invited plaintiffs to file supplemental
briefing or amended motions addressing the issues.
The case stems from a 2008 complaint by Changhui Hu alleging
violation of federal securities laws by Cadence Design and its
officers Michael J. Fister, William Porter and Kevin S. Palatnik.
Two similar actions were filed shortly thereafter. The three
actions were consolidated in 2009 and Alaska Electrical Pension
Fund was appointed as lead plaintiff. In 2010, three related
shareholder derivative actions were filed against Cadence. The
trial court stayed the litigation pending settlement discussions.
Before the district court are two unopposed motions for settlement
related to the litigation -- one filed by the Lead Plaintiff in
the consolidated action and the other by the shareholder
plaintiffs.
Under the proposed class action settlement, Cadence would pay
$38 million into an escrow account to establish a settlement fund.
The settlement is silent on attorneys' fees and expenses.
Under the proposed derivative class action, Cadence would alter
its corporate governance practices in a manner shareholders argue
would strengthen Cadence's internal controls. The only economic
recovery under the settlement is a $1.75 million payment in
attorney's fees by Cadence to the plaintiff's counsel and service
awards of $2,500 to each shareholder.
A copy of the District Court's Aug. 26, 2011 Order is available at
http://is.gd/9QTYiLfrom Leagle.com.
CENTRO: Class Action Fails to Halt Restructuring
------------------------------------------------
Leonie Lamont and Carolyn Cummins, writing for The Sydney Morning
Herald, report that the NSW Supreme Court has cleared the way for
Centro's AUD4 billion restructuring, saying it can proceed to put
its complex debt-for-equity proposal to votes of senior lenders,
security holders and creditors.
The restructuring was in doubt after an attempt by the members of
a class action and the auditor PricewaterhouseCoopers, who had
sought to stop the vote of the senior lenders.
Under the revamp, only AUD10 million would be made available to
satisfy contingent creditors -- far short of the AUD300 million
they expected to recover if successful. PwC, as Centro's auditor,
is being sued by the class-action group and has cross claimed
against various Centro entities and the directors.
Justice Reg Barrett said, so far, the objectors had not presented
a "knockout blow" that would warrant the court's intervention.
"Whether they later assume that status is a question for the
future," he said in his judgment delivered on Oct. 5.
He noted that while the public policy issues identified were of
potentially "great significance", the legal teams for the
objectors had very little time to consider the documents and their
objections were of a general nature.
"The appropriate course is to allow the meetings to be convened
and then to return to the particular objections if and when the
meeting of relevant creditors has made a positive decision," he
said.
Andrew Watson, a principal with Maurice Blackburn which is running
the class action, said it would more fully consider its position
and submissions between now and the next court hearing to approve
the scheme, on Nov. 24.
The court also heard that JPMorgan Chase would seek to join as a
defendant this week, which would give it access to all the
documents.
JPMorgan is a hybrid security holder and was previously a
creditor.
Following all court approvals, investors in Centro Properties will
receive a 5› payout from a pool of AUD100 million.
CHESAPEAKE APPALACHIA: Judge OKs $3.4-MM Class Action Settlement
----------------------------------------------------------------
Michael Owens, writing for TriCities.com, reports that a federal
judge on Oct. 4 approved a $3.4 million class-action lawsuit
settlement between Chesapeake Appalachia and some 1,850
landowners.
"It's going to be a nice Christmas around here," Don Barrett,
attorney for the plaintiffs, said after the ruling.
It marks the first agreement in a series of suits that Mr. Barrett
and a team of lawyers filed in U.S. District Court on behalf of
Southwest Virginia landowners who say gas was pumped from under
their land without fair compensation.
On Sept. 29, the same federal judge ruled that four other suits
show enough evidence of wrongdoing by large gas producers to go
forward in court. Each case is based on a complex series of
Virginia laws governing the ownership of land, the coal underneath
it, and the natural gas siphoned from coal seams.
Federal Judge James P. Jones alluded to the complexity on Oct. 4
when ruling that the settlement is fair to all sides.
"I'm sure the class [plaintiffs] realizes that, were it not for
the experienced and well-resourced counsel in this case, there
would be no recovery," he said.
The suit against Chesapeake, a subsidiary of the nation's second-
largest producer of natural gas, is considered the most
straightforward of the cases. Landowners claim the company
underpaid them for a decade, resulting in a loss of slightly less
than $3.6 million. The agreement accounts for 95 percent of that
loss and provides for no punitive damages.
David Stellings, one of the lawyers representing the landowners in
the multiple suits, said the amount recovered is higher than in
most class-action suits.
"We could either go for the final 5 percent or lose everything on
appeal," Mr. Stellings told Jones of the decision to take the
settlement.
The suit, filed in May 2010, involved landowners who voluntarily
leased their gas to Chesapeake for one-eighth of the profits and
received quarterly royalty checks.
In 1993, the plaintiffs argued, the company began unfairly
deducting the various costs of doing business -- transporting,
cleaning and marketing the gas -- from the royalty payments, then
lied on check stubs so the landowners wouldn't know that they'd
been shortchanged. Later, in 1999 and 2000, the company began
selling its gas to affiliates at below-market prices, they
claimed.
Attorney fees, typically a third of the settlement figure -- $1.11
million in this case -- and roughly $67,500 in expenses will be
deducted from the $3.4 million, which will be divided among the
landowners based upon their percentage of the total royalties
paid.
The other cases target royalties left unpaid by giants EQT
Production Co. and CNX Gas Co. and involve landowners whose
coalbed methane was leased without their consent to the companies
under the rubber stamped-approval of a state board.
Because both the landowner and the coal owner claim rights to the
gas, state law requires that the royalty payments be placed into
escrow accounts until either an agreement is reached or one party
sues another.
The plaintiffs want the money frozen in state-held escrow accounts
and argue that EQT and CNX failed to fully pay royalties into
escrow, deducted post-wellhead production expenses before
calculating royalties, and undersold gas to affiliates.
CINGULAR WIRELESS: 11th Cir. Upholds Fla. Consumer Suit Dismissal
-----------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit affirmed a
trial court's order dismissing the class action styled as, Lourdes
Cruz, Paul Flaherty, Jr., and Curtis Smith, on behalf of
themselves and all others similarly situated v. Cingular Wireless,
LLC, nka AT&T Mobility, LLC, Case No. 08-16080, (M.D. Fla.)
Cellular phone company AT&T and the Plaintiffs are parties to a
wireless service agreement, which contain a mandatory arbitration
agreement. The Plaintiffs allege that AT&T charged them with a
$2.99 per month for a roadside assistance plan they never ordered.
The trial court granted AT&T's motion to dismiss the complaint and
compel arbitration.
The Eleventh Circuit held that the class action waiver in the
Plaintiffs' arbitration agreement is enforceable under the Federal
Arbitration Act.
The appeals court panel comprise of Circuit Judges Stanley Marcus,
Peter Thorp Fay, and R. Lanier Anderson III.
A copy of the Eleventh Circuit's Aug. 11, 2011 order is available
at http://is.gd/rV6oYffrom Leagle.com.
CITY OF HAZELWOOD, MO: Faces Class Action Over Red Light Cameras
----------------------------------------------------------------
Valerie Schremp Hahn, writing for St. Louis Post-Dispatch, reports
that three people have filed a class-action lawsuit against the
city of Hazelwood and the company that provides the cameras,
saying the city's red light camera ordinance is unconstitutional.
The city and American Traffic Solutions, Inc., the suit says, have
"exploited" the city's ordinance "in an underhanded practice of
persecuting and bilking Missourians under the guise and pretext of
a public safety program known as red light cameras," according to
the suit.
Hazelwood first installed the cameras in 2007.
The ordinance creates a presumption of guilt, which is
unconstitutional, and shifts the burden of proof on the vehicle
owner to prove his or her innocence, the suit also says.
City attorney Kevin O'Keefe said on Oct. 5 that the city has not
yet been served the suit and he could not talk about it
specifically. He did say, however, that such issues have been
tried and tested in courts around the country.
Hazelwood Police Chief Carl Wolf said the red light cameras are
doing their job and that accidents and violations are down at the
intersections with red light cameras. "The people who complain
are the ones who run the red lights. The people who don't run
them, they say it's a good thing."
He said that the city has issued 14,442 red light violation
tickets so far this year. The city has 15 different cameras, and
that amounts to about four tickets per day per camera, he said.
The average collection rate is about 70 percent, but so far this
year, since people have begun questioning the legality of such
cameras, that response rate has fallen to about 54%, he said. The
city issued more than 3,500 tickets the first month it had cameras
running, and that monthly rate so far is about 1,600 tickets.
The suit, which was filed last month in St. Louis County circuit
court, was filed on behalf of county residents Mark and Juliet
Tolman and Dana Hunter, who all received red light tickets in
Hazelwood.
The suit was filed by John E. Campbell and Ryan A. Keane of The
Simon Law Firm in St. Louis.
CITY OF NEW YORK: Activists File Class Action Over Arrests
----------------------------------------------------------
Marci Savage, writing for Chicago Civil Rights Examiner, reports
that activists filed a class action lawsuit filed by Civic Action
for Justice against the City of New York for arrests made on
October 1, 2011. It was filed with the U.S. District Court's
Southern District of New York. The complaint calls the New York
Police Department's arrests "an unconstitutional effort to disrupt
and suppress the ability of the people to come together and
advocate for social change." The police "engaged in a
premeditated, planned, scripted and calculated effort to sweep the
streets of protestors and disrupt a growing protest movement in
New York. This lawsuit seeks to stop the NYPD from taking illegal
action against mass assembly protest."
In the press release, spokesperson Mara Verheyden-Hilliard,
Executive Director of the PCJF and counsel on the litigation
stated, "Police commanders led and escorted demonstrators onto the
roadway of the Brooklyn Bridge in an intentional entrapment. The
police conducted a charade - and duly videotaped it -- of speaking
inaudibly into a bullhorn that could not be heard mere feet away
from the officer. The NYPD knew no audible communication was
given. The NYPD also knew that the Constitution requires that any
ostensible command must be heard by those who are expected to be
bound by it. Instead, the NYPD engaged in a performance,
videotaped it, and sprang their trap."
Further examination of the document indicates, "After escorting
and leading a group of demonstrators and others well out onto the
Brooklyn Bridge roadway, the NYPD suddenly and without warning
curtailed further forward movement, blocked the ability of
person's to leave the Bridge from the rear, and arrested hundreds
of protestors in absence of probable cause."
The document is specifically requesting a trial by jury. No
response from Mayor Bloomberg has been given.
One of the Plaintiffs, Brian Becker likened the Brooklyn Bridge
incident to arrests made in Washington D.C. on April 15, 2000 at
the anti-IMF/World Bank demonstrations. D.C. police used similar
tactics called "trap and detain" or "kettling". A class action
law suit was filed Becker vs. D.C. When the Chief Charles H.
Ramsey was asked about the lawsuit he replied, "I apologize for
nothing we did. They have the right to sue us just like they had
the right to protest." Sound familiar? It should. Those are the
exact same words used by the police chief at the NYPD in response
to the Brooklyn Bridge arrests to the letter eleven years later.
In related news, the request made by Transportation Workers Union
Local 100 to bar police from forcing New York City Transit
Authority bus drivers to take protesters to holding facilities,
was rejected by U.S. District Judge Paul Engelmayer. The judge
stated the training materials strongly indicates that drivers were
aware they may need to assist police or fire officials. Buses
have been commandeered by the New York City Police Department at
least three other times: after the Sept. 11, 2001, terrorist
attacks; after a building collapse to take people to hospitals;
and ahead of the arrival of Hurricane Irene in August to evacuate
nursing home residents. New York state penal law requires a
person to assist police with an arrest when it's "reasonable" to
do so.
Police hailed buses traveling in downtown Brooklyn after
Department of Correction vehicles got stuck in traffic. The judge
did note that Saturday was the exception and that he expected that
police would be better prepared for the next demonstration
scheduled for later in the week.
The movement continues to expand and grow across the country and
around the world. Occupy Chicago had challenges of their own as
reported by fellow Examiner.com columnist Jaquie Piasta. Occupy
Together has continued to expand and grow their Web site to
include more ways to search for and engage other groups across the
country. Progressives are starting to embrace the movement which
is bring up concerns about ensuring the integrity of the movement
remains intact, and doesn't become a casualty of politics like the
Tea Party movement.
A Web site was created to tell the story of the movement. It
eloquently illustrates why people have engaged in the movement and
tells their personal story of how they have been affected.
EDUCATION MANAGEMENT: Judge Dismisses Shareholder Class Action
--------------------------------------------------------------
Carrie Ann Cherry at Courthouse News Service reports that a
federal judge dismissed a shareholder class action that claims the
for-profit college system Education Management Corp. exaggerated
the company's growth prospects and failed to disclose illegal
recruiting practices.
U.S. District Judge Nora Barry Fischer in Pittsburgh based her
decision on the recommendations of U.S. Magistrate Judge Robert
Mitchell, who said the lawsuit be dismissed because Education
Management was upfront about the risks it could face with changing
regulations, including those dealing with recruiting.
Education Management, with headquarters in Pittsburgh, provides
post-secondary education to more than 136,000 students. The
company grants undergraduate and graduate degrees through its
Argosy University, Brown Mackie colleges, Art Institute and South
University schools.
In the wake of a Government Accountability Office report that
cited misleading practices among secondary education providers, a
group of shareholders filed suit against Education Management.
They said the company had issued false and misleading information
about its operational performance during its initial public
offering, and had used manipulative recruiting tactics to
overstate its growth prospects.
Though Education Management was not explicitly named in the GAO
report, its stock dropped dramatically in the days following the
release.
For-profit schools face scrutiny over their compliance with
federal guidelines about compensating admissions staff with
incentives for boosting enrollment. Schools must comply with
these rules to be eligible for federal student aid.
Judge Mitchell's report finds fault with some of the statistics
and information that the shareholders cited in their complaint,
saying they are inconsistent with what was available at the time
of the IPO.
The lawsuit was filed on behalf of a class of purchasers of the
stock from Oct. 2, 2009, to Aug. 3, 2010.
A copy of the Order in Gaer v. Education Management Corp., et al.,
Case 10-cv-01061 (W.D. Pa.), is available at http://is.gd/UKQWu4
ENHANCED SERVICES: 7th Cir. Affirms Denial of Consumer Suit
-----------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit upheld a
district court's order denying class certification of the action
styled as, Lady Di's, Inc. v. Enhanced Services Billing Inc. and
ILD Telecommunications, Inc., 2010 WL 4751659 (S.D. Ind., Nov. 16,
2010).
The Plaintiff alleged that the Defendants are billing aggregators
engaged in "cramming" by placing unauthorized charges on the
telephone bills of more than one million Indiana telephone
numbers. The evidence, however, proved that the Plaintiff
actually ordered the services the Defendants charged it. The
district court denied the Plaintiff's request for class
certification and granted the Defendants' motions for summary
judgment on the unjust enrichment and statutory deception claims.
"Turning first to the merits, we conclude that the Indiana anti-
cramming regulation does not apply to these defendants because
they are not telephone companies and did not act in this case as
billing agents for telephone companies," said Circuit Judge David
Hamilton, who penned the appellate decision. "Second, we find
that there was no unjust enrichment where the plaintiff ordered
and received the services in question. Third, we find that the
Deceptive Commercial Solicitation Act does not apply because the
plaintiff had actually ordered the services for which it was
charged."
The Seventh Circuit further affirmed the district court's denial
of class certification because common issues do not predominate
over individual issues, as required for a class under Federal Rule
of Civil Procedure 23(b)(3).
The other members of the appellate panel are Circuit Judge Ilana
Rovner and the Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
A copy of the Seventh Circuit's Aug. 16, 2011 ruling is available
at http://is.gd/gk5iLqfrom Leagle.com.
FLEETBOSTON FINANCIAL: Settles Summit Securities Class Action
-------------------------------------------------------------
The United States District Court for the District of New Jersey
has ordered, pursuant to Rule 23 of the Federal Rules of Civil
Procedure, that notice be given of: (i) the pendency of a class
action entitled "Conditionally Certified Class of Certain Former
Summit Bancorp Shareholders v. FleetBoston Financial Corporation,
et al.", Civil Action No. 2:08-cv-04947-GEB-MCA, on behalf of all
Persons and entities that received shares of FleetBoston Financial
common stock in exchange for shares of Summit Bancorp common stock
in connection with the merger between FBF and Summit pursuant to
the Registration Statement and Prospectus filed on or about
January 25, 2001, sold such shares during the period from December
19, 2001 through November 6, 2003, inclusive, and were damaged
thereby, except for certain persons and entities who are excluded
from the Class by definition, and (ii) the proposed settlement of
the Action by the settling parties for $5,500,000 in cash.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED BY THE PENDING CLASS ACTION AND THE SETTLEMENT, AND
YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUND.
A hearing will be held on November 29, 2011, at 10:00 a.m. before
the Honorable Garrett E. Brown, Jr., Courtroom 4E, at the Clarkson
S. Fisher Building & U.S. Courthouse, 402 East State Street,
Trenton, New Jersey to determine: (i) whether the proposed
Settlement should be approved by the Court as fair, reasonable,
and adequate; (ii) whether the Action should be dismissed with
prejudice as to the Settling Defendants and the Released Claims
fully, finally and forever released, relinquished, and discharged
as against the Settling Defendants and the other Released Persons;
(iii) whether the proposed Plan of Allocation should be approved
as fair and reasonable; and (iv) whether Class Counsel's
application for an award of attorneys' fees and expenses should be
granted.
If you have not yet received the full printed Notice of (I)
Pendency and Proposed Settlement of Class Action; (II) Settlement
Hearing; and (III) Motion for Attorneys' Fees and Expenses and
Proof of Claim and Release form, you may obtain copies of these
documents by contacting the Claims Administrator at:
Summit/FBF Securities Litigation
c/o Berdon Claims Administration LLC
P.O. Box 9014
Jericho, NY 11753-8914
Toll-Free Phone: 800-766-3330
Fax: 516-931-0810
Web site: http://www.berdonclaims.com
Copies of the Notice and Claim Form, Stipulation and Agreement of
Settlement, the operative Complaint and certain Court rulings in
the Action may also be downloaded from the Web site above.
If you are a member of the Class, in order to be eligible to share
in the distribution of the Net Settlement Fund, you must submit a
Claim Form postmarked no later than November 29, 2011. If you are
a member of the Class and do not submit a valid Claim Form, you
will not share in the distribution of the Net Settlement Fund but
you will nevertheless be bound by any judgment entered by the
Court in the Action. To exclude yourself from the Class, you must
mail a written request for exclusion postmarked no later than
November 15, 2011, in accordance with the instructions set forth
in the Notice. Any objections to the proposed Settlement, the
Plan of Allocation and/or the application for an award of
attorneys' fees and expenses must be filed with the Court and
delivered to counsel for the settling parties as set forth in the
Notice such that they are received no later than November 15,
2011, in accordance with the instructions set forth in the Notice.
If you are a member of the Class and do not exclude yourself from
the Class, you will be bound by any judgment entered by the Court
in the Action.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Inquiries, other than requests for the Notice and
Claim Form, may be made to Class Counsel:
Ellen Gusikoff Stewart
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: elleng@rgrdlaw.com
Howard T. Longman
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Richard A. Acocelli
WEISS & LURIE
1500 Broadway
16th Floor
New York, NY 10036
E-mail: racocelli@weisslurie.com
GENTEK BUILDING: Eliason Consumer Suit Survives Dismissal Motion
----------------------------------------------------------------
Judge Benita Y. Pearson of the U.S. District Court for the
Northern District of Ohio denied a motion to dismiss the amended
class action complaint styled, Donald Eliason, et al. v. Gentek
Building Products, Inc., et al., Case No. 1:10CV02093 (N.D. Ohio).
The plaintiffs are homeowners and residents of North Dakota,
Wisconsin and Idaho who purchased exterior siding manufactured and
distributed by the defendants. The plaintiffs experienced
delaminated paint in the product and thus, filed a warranty claim
with the defendants. The plaintiffs filed the class action
alleging violation of Ohio consumer laws, breach of warranty,
unjust enrichment and fraudulent concealment.
The plaintiffs have nudged each alleged cause of action across the
line from conceivable to plausible by asserting facts that
substantiate each claim and suggest actionable conduct, Judge
Pearson said.
Judge Pearson also added that while raising possibly valid
concerns, the defendants' arguments on class certification are
premature.
A copy of the District Court's Aug. 23, 2011 Memorandum of Order
and Opinion is available at http://is.gd/KIpXZcfrom Leagle.com.
HARRIS & HARRIS: 7th Circuit Remands Kasalo Lawsuit
---------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit reversed and
remanded a district court order dismissing the case captioned,
Mariana Kasalo v. Harris & Harris, Ltd., Case No. 10-2755 (7th
Cir.)
Harris & Harris is a collection agency sued by Ms. Kasalo for
violations of the Fair Debt Collection Practices Act in the
collection of an overdue hospital bill. The parties made known to
the district court that they would settle the Kasalo individual
claim, however, Ms. Kasalo's lawyer endeavored to transform the
case into a class action.
Ms. Kasalo's lawyer, J. Nicolas Albukerk, saw the potential for a
class action in Ms. Kasalo's assertion that Ms. Harris had engaged
in unlawful debt collection. He included in Ms. Kasalo's
complaint two class counts, which charged that various materials
used by Harris to collect debts -- specifically the company's
envelopes and payment reminders -- violated the harassment, false
representation, and unfair practices provisions of the Act.
On appeal, the Seventh Circuit concluded that the district court's
decision to dismiss the action for want of prosecution was an
abuse of discretion. If it was the district court's serious doubt
about the class counts that motivated the dismissal for want of
prosecution, dismissal was still the wrong procedure to choose,
the Seventh Circuit held. All the court needed to do was to
entertain the subject of class certification and make a proper
ruling, the Appellate Court said.
Moreover, further proceedings are necessary to ensure that Ms.
Kasalo's individual claim is resolved properly, the Seventh
Circuit opined. Mr. Albukerk is now on notice that he must
prosecute the remaining class theory expeditiously or risk a
ruling on the court's own motion on class certification.
A copy of the Seventh Circuit's Aug. 26, 2011 ruling is available
at http://is.gd/44xvbwfrom Leagle.com.
HONDA MOTOR: Faces Class Action Over Brake Defect Warranty
----------------------------------------------------------
Courthouse News Service reports that a federal class action claims
the front brake pads in 2008-10 Honda Civics wear out prematurely
-- every 7,500 to 15,000 miles -- and Honda won't repair them
under warranty.
A copy of the Complaint in Zakskorn, et al. v. American Honda
Motor Co., Inc., et al., Case No. 11-cv-02610 (E.D. Calif.), is
available at:
http://www.courthousenews.com/2011/10/05/HondaCA.pdf
The Plaintiffs are represented by:
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
Cory S. Fein, Esq.
CADDELL & CHAPMAN
1331 Lamar, Suite 1070
Houston, TX 77010-0400
Telephone: (713) 751-0400
E-mail: mac@caddellchapman.com
cbc@caddellchapman.com
csf@caddellchapman.com
HONORE-MERCIER HOSPITAL: Class Action Settlement Nears
------------------------------------------------------
CTV Montreal reports that a deadly C. difficile outbreak at
St-Hyacinthe's Honore-Mercier Hospital that claimed 16 victims has
reached its five-year anniversary, and the families of the victims
are hoping compensation for their loss will be coming soon.
The province's health minister at the time, Philippe Couillard,
said the hospital "clearly failed" to protect its patients, and a
class action lawsuit was launched three years ago by the families
of the victims.
Sylvie Dorion headed the class action, and she says it was not
only about the money.
"Because it's not normal. When you go to the hospital, you don't
have to die if you're not sick," said Ms. Dorion, who lost her
sister in the tragedy. "Money won't bring anyone back. But my
sister loved to spoil people, and if there's a little money coming
out of this we can continue doing that for those she loved."
A settlement on compensation for each of the victims' families
appears to be near, but one patients rights advocate says the
suit's underlying message is almost more important.
Paul Brunet says it is important for the population to know that
when they enter a Quebec hospital, they will be cared for in a
clean and secure environment.
But Mr. Brunet says that is not yet a reality in the province.
"We are spending over $400 million every year in the system to
treat patients that were not infected when they were admitted,"
says Mr. Brunet, president of the Council for the Protection of
Patients.
Quebec's public health department says the number of cases of C.
difficile has gone down.
Honore-Mercier Hospital officials won't comment on the out of
court settlement until all the details are finalized, but they say
things have changed since 2006.
"We work in a totally different manner," said spokesman Claude
Dallaire. "We take a lot more precautions and now we have teams
to control the spread of infection."
While that may be of some solace for Ms. Dorion, she is hoping the
settlement can be reached by the end of this year.
"I'm looking forward to this ending," she says. My sister didn't
die for nothing. We will see this through to the end."
INTUITIVE SURGICAL: Calif. Ct. Dismisses Securities Class Suit
--------------------------------------------------------------
Judge Lucy H. Koh of the U.S. District Court for the Northern
District of California granted the motion of defendants Intuitive
Surgical, Inc., Benjamin Gong, Aleks Cukic, Jerome McNamara, Mark
J. Rubash, Gary Guthart, Marshall Mohr, and Lonnie Smith for
dismissal of the claims in the securities class action commenced
against them by lead plaintiff Police Retirement Systems of Saint
Louis.
Intuitive Surgical is a medical device manufacturer of cutting-
edge robotic surgery devices used for certain kinds of minimally
invasive surgery procedures.
The Plaintiff acquired common stock of the Defendant. It alleged
that the Defendants misled investors about Intuitive Surgical's
financial prospects. The Plaintiff specifically pointed to 19
false and misleading statements or omissions made by the
Defendants covering four "analyst calls" in 2008.
The Court agreed with the Defendants that some of the statements
are vague assertions of corporate optimism. The Court added that
the Plaintiff failed to state a claim under Section 10(b) of the
Securities Exchange Act, and failed to allege any false statement
that would merit the inference of scienter.
Judge Koh granted the Defendants' motion to dismiss with leave for
the Plaintiff to file an amended complaint. However, Judge Koh
clarified, the Plaintiff may not add new causes of action or
parties without seeking leave of the Court.
A copy of the District Court's Aug. 10, 2011 decision is available
for free at http://is.gd/AKt2NSfrom Leagle.com.
ITT TECHNICAL: Accused in Tenn. Suit of Defrauding Students
-----------------------------------------------------------
Courthouse News Service reports that a class action claims ITT
Technical Institute recruited students and took their money and
student loans through false and deceptive statements.
A copy of the Complaint in Marshall v. ITT Technical Institute
Sallie Mae, Inc., et al., Case No. 1-513-11 (Tenn. Cir. Ct., Knox
Cty.), is available at:
http://www.courthousenews.com/2011/10/05/ForProfit.pdf
The Plaintiff is represented by:
Dan C. Stanley, Esq.
STANLEY & KURTZ, PLLC
422 Gay Street, Suite 301
Knoxville, TN 37902
Telephone: (865) 522-9942
NATIONWIDE PROPERTY: 6th Cir. Upholds $3MM Attorneys Fee Order
--------------------------------------------------------------
An appellate panel composed of Circuit Judges Alice M. Batchelder,
Richard Fred Suhrheinrich, and Richard Allen Griffin affirmed a
district court ruling awarding fees in a class action lawsuit,
Shannon Van Horn, et al. vs. Nationwide Property and Casualty
Insurance Company, et al., Case No. 10-3643 (6th Cir.).
The Class Counsel appealed the district court's award of
$3.1 million in attorneys' fees.
The plaintiffs, who alleged that the defendants failed to provide
them with the full rental car benefits under their insurance
policies, reached a settlement agreement with the defendants for
the provision of a common fund. The Class Counsel originally
sought $5.8 million in attorneys' fees from the fund.
A copy of the Appellate Court's Aug. 26, 2011 order is available
at http://is.gd/Gs7y8Zfrom Leagle.com.
NORTHERN LIFE: Settles Class Action Over Fixed Annuities
--------------------------------------------------------
Fran Matso Lysiak, writing for BestWeek, reports that Northern
Life Insurance Co. has settled a class-action suit for up to $31
million concerning the marketing of tax-sheltered fixed annuities,
mostly to teachers, starting in 1995, Washington Insurance
Commissioner Mike Kreidler announced.
A King County Superior Court judge approved the settlement in the
10-year court case that alleged Northern Life's annuity documents
misrepresented how interest would be calculated over the life of
the annuities, Mr. Kreidler's office said. Northern Life account
holders were allegedly led to expect more interest than they
received from the annuities. The company paid a high interest
rate in the first year of the contract, reducing the rate during
the remaining years, Mr. Kreidler's office said.
Northern Life agreed to pay $29 to $40 for each $10,000 in value
of a person's annuity, and the settlement provides up to $31
million for the payments. The company did not admit wrongdoing,
Mr. Kreidler's office said.
Fixed annuities, as well variable annuities, sold by insurers to
nonprofit primary and higher-education institutions are generally
marketed inside 403(b) retirement plans.
Northern Life has notified 406,000 account holders that they may
be affected by the settlement; an estimated 20,000 are in
Washington. Mr. Kreidler filed a court brief in favor of the
consumers.
Northern Life, which was based in Seattle, merged with the
Minnesota-based ReliaStar Life Insurance Co., in 2002. ReliaStar
Life is part of ING USA. ING USA declined to comment on the case.
The key life insurance entities of the U.S. operations of ING
Groep N.V. of the Netherlands are collectively known as ING USA.
Earlier this year, A.M. Best Co. said ING USA's ratings recognize
execution risk in successfully completing the planned initial
public offering of its U.S. insurance and asset management
business as part of its previously announced restructuring plan
between ING and the European Commission. The plan requires ING to
divest its global insurance, ING Direct (U.S. only) and asset
management operations by 2013 (Best's News Service, June 16,
2011).
ReliaStar Life Insurance Co., a member of ING USA Life Group,
currently has a Best's Financial Strength Rating of A (Excellent).
PACIFIC LIFE: District Court Pares Down Zarrella Suit
-----------------------------------------------------
Judge James I. Cohn of the U.S. District Court for the Southern
District of Florida granted, in part, and denied, in part, a
motion to dismiss the second amended class action complaint
styled, Larry Zarrella, Zarrella Construction, Inc. v. Pacific
Life Insurance Company, Case No. 10-60754-Civ-Cohn/Seltzer (S.D.
Fla.)
The class action was brought in May 2010 asserting claims arising
out of individual life insurance policies that Pacific Life sold
to the Plaintiffs.
Judge Cohn dismissed these charges, with prejudice:
* equitable fraud based on written misrepresentations;
* deceit based on written misrepresentations;
* fraud based on oral misrepresentations;
* negligence; and
* unlawful business acts and practices in violation of the
California Business and Professions Code based on a predicate
violation under California's Consumer Legal Remedies Act,
Cal. Civ. Code Sec. 1750 et seq.
The district court dismissed the Plaintiffs' claim based on the
Employee Retirement Income Security Act of 1974, without
prejudice, to refile in a separate action.
The motion to dismiss is denied, the district court ruled, as to
the charges on breach of contract and unlawful business acts and
practices in violation of California Business and Professions Code
based on a predicate violation under the False Advertising Law,
Cal. Bus. & Prof. Code Sec. 17500.
The Defendant's Motion to Stay Discovery and Pre-trial Deadlines
is denied as moot, Judge Cohn added.
A copy of the District Court's Aug. 22, 2011 order is available at
http://is.gd/t34CB8from Leagle.com.
PHILIP MORRIS: 7th Cir. Affirms Dismissal of Ill. Consumer Suit
---------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit upheld a
district court order dismissing the lawsuit entitled, Brian
Cleary, et al. v. Philip Morris Incorporated, et al., No. 10-2960
(7th Cir.).
The class action lawsuit, filed in an Illinois state court in
1998, is brought against Philip Morris, Inc., and several other
tobacco companies and tobacco-related entities.
The putative class consists of Illinois residents who bought or
smoked cigarettes. The plaintiffs allege that for years, the
tobacco companies conspired to conceal the facts about the
addictive and dangerous nature of cigarettes by using misleading
marketing and advertising.
Since 1998, the class complaint has undergone four amended
versions. The fourth iteration, filed in 2010, alleges (i) an
"addiction" claim for the defendants' concealment of the addictive
nature of cigarettes, and (ii) a "lights" claim for those who
bought Philip Morris' Marlboro Lights cigarettes. Both claims
were based solely on the theory of unjust enrichment.
The Seventh Circuit held that "the mere violation of a consumer's
legal right to know about a product's risks, without anything
more, cannot support a claim that the manufacturer unjustly
retained the revenue from the product's sale to the consumer's
detriment."
Accordingly, the Seventh Circuit agreed with the district court's
conclusion that the plaintiffs' allegations of unjust enrichment
are insufficient to state a claim for which relief can be granted.
"The district court correctly dismissed the plaintiffs' Fourth
Amended Complaint and entered judgment for the defendants," the
Seventh Circuit opined.
The Seventh Circuit added that the district court did not err by
not remanding the class complaint to state court nor did it err by
refusing to extend the "lights" class to additional brands besides
Marlboro Lights.
The appellate panel consists of Circuit Judges Richard Dickson
Cudahy, Daniel Anthony Manion, and David F. Hamilton.
A copy of the Seventh Circuit's Aug. 25, 2011 ruling is available
at http://is.gd/sAaPSkfrom Leagle.com.
RENAISSANCE LEARNING: Brualdi Law Firm Files Class Action
---------------------------------------------------------
The Brualdi Law Firm, P.C. disclosed that on September 23, 2011,
it filed a lawsuit in the Circuit Court of Wood County in
Wisconsin on behalf of holders of Renaissance Learning, Inc. stock
during the period between August 15, 2011 and the present,
inclusive, for breaches of fiduciary duties in connection with the
sale agreement between Renaissance and Permira Advisers LLC and
its affiliates.
To be a member of the class you need not take any action at this
time, and you may retain counsel of your choice. If you wish to
discuss this action or have any questions concerning this Notice
or your rights or interests with respect to these matters, please
contact:
David Titus, Esq.
THE BRUALDI LAW FIRM, P.C.
29 Broadway, Suite
2400, New York, NY 10006
Telephone: (877) 495-1187
(212) 952-0602
E-mail: dtitus@brualdilawfirm.com
Web site: http://www.brualdilawfirm.com
The complaint alleges that the Company and its directors breached
their fiduciary duties in connection with the sale agreement
entered into between Renaissance and Permira Advisers LLC and its
affiliates, and specifically the failure to give adequate
consideration to the offer from Plato Learning, Inc.
The Brualdi Law Firm, P.C. -- http://www.brualdilawfirm.com-- is
a New York, New York-based law firm that dedicates its practice to
vigorous representation of shareholders and investors in
litigation nationwide, with a particular emphasis on sophisticated
class action litigation in the securities and antitrust areas, as
well as corporate derivative suits.
RITE AID: Continues to Defend Wage and Hour-Violations Suits
------------------------------------------------------------
Rite Aid Corporation is currently a defendant in several putative
class action lawsuits filed in state courts in California alleging
violations of California wage and hour laws pertaining primarily
to pay for missed meals and rest periods. These lawsuits purport
to be class actions and seek substantial damages. At this time,
the Company says it is not able to predict the outcome of these
lawsuits, or any possible monetary exposure associated with the
lawsuits. The Company's management believes, however, that the
plaintiffs' allegations are without merit and that their claims
are not appropriate for class action treatment. The Company is
vigorously defending all of these claims.
No further updates were reported in the Company's October 5, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended August 27, 2011.
RITE AID: Still Defends FLSA-Violations Class Suits
---------------------------------------------------
Rite Aid Corporation continues to defend itself against several
class action lawsuits alleging violations of the Fair Labor
Standards Act, according to the Company's October 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended August 27, 2011.
The Company is currently a defendant in several putative
collective or class action lawsuits filed in federal or state
courts in several states, including Pennsylvania, New Jersey, New
York, Maryland, Massachusetts, Maine, Washington and Oregon,
purportedly on behalf of, in some cases (i) current and former
assistant store managers or (ii) current and former store managers
and assistant store managers, respectively, working in the
Company's stores at various locations. The lawsuits allege
violations of the Fair Labor Standards Act and of certain state
wage and hour statutes. The lawsuits seek various combinations of
unpaid compensation (including overtime compensation), liquidated
damages, exemplary damages, pre-and post-judgment interest as well
as attorneys' fees and costs.
In one of the cases, Craig et al v. Rite Aid Corporation et al,
pending in the United States District Court for the Middle
District of Pennsylvania, brought on behalf of current and former
assistant store managers, the Court, on December 9, 2009,
conditionally certified a nationwide collective group of
individuals who worked for the Company as assistant store managers
since December 9, 2006. Notice of the Craig action has been sent
to the purported members of the collective group (approximately
6,700 current and former assistant store managers) and
approximately 1,100 have joined the Craig action.
In another of the cases, Indergit v. Rite Aid Corporation et al,
pending in the United States District Court for the Southern
District of New York, brought on behalf of current and former
store managers and assistant store managers, the Court, on
April 2, 2010, conditionally certified a nationwide collective
group of individuals who worked for the Company as store managers
since March 31, 2007. The Court ordered that Notice of the
Indergit action be sent to the purported members of the collective
group (approximately 7,000 current and former store managers) and
approximately 1,550 have joined the Indergit action.
At this time, the Company says it is not able to predict the
outcome of these lawsuits, or any possible monetary exposure
associated with the lawsuits. The Company's management believes,
however, that the lawsuits are without merit and not appropriate
for collective or class action treatment. The Company is
vigorously defending all of these claims.
No further updates were reported in the Company's latest SEC
filing.
SANTICA RESEARCH: Sued Over Misleading CelluScience Product Ads
---------------------------------------------------------------
P.J. Preeshl, On Behalf of Herself and All Others Similarly
Situated v. Santica Research Labs, LLC, Case No. 1-11-CV-210400
(Calif. Super. Ct., Santa Clara Cty., October 4, 2011) is a
consumer class action that seeks to redress the pattern of false,
deceptive, misleading and otherwise improper advertising and
marketing practices that the Defendant has engaged in with respect
to its over-the-counter product, CelluScience Anti-Cellulite
Beaute Intensive. The Plaintiff seeks injunctive, declaratory and
equitable relief, damages, restitution and disgorgement of
profits.
Contrary to the Defendant's express representations, CelluScience
does not help to reduce cellulite and has not been subjected to
any legitimate clinical trials, Ms. Preeshl alleges. Simply put,
he points out, there is no substantial and reliable scientific
evidence to support the Defendant's claim.
Ms. Preeshl is a resident of Gilroy, Santa Clara County,
California. She contends that she was exposed to and saw the
Defendant's claims in magazines, on the internet and product
packaging, and purchased CelluScience for her personal use as a
result of the Defendant's representations and claims.
Santica Labs is a subsidiary of Medestea Internazionale, a company
based in Torino, Italy, which is purportedly involved in
cosmeceuticals, nutraceuticals and pharmaceuticals research and
development. Santica Labs, a Florida limited liability
corporation, is involved in the development, manufacture and
marketing of cosmetics, health and beauty supplements and garments
for use in the area of body beautification.
The Plaintiff is represented by:
Lesley E. Weaver, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
199 Fremont St., 20th Floor
San Francisco, CA 94105
Telephone: (415) 992-7282
Facsimile: (415) 489-7701
E-mail: lweaver@sfmslaw.com
- and -
Nathan C. Zipperian, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
1640 Town Center Cir., Suite 216
Weston, FL 33326
Telephone: (954) 515-0123
Facsimlle: (954) 515-0124
E-mail: nzipperian@sfmslaw.com
- and -
James C. Shah, Esq.
Natalie Finkelman Bennett, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
35 E. State St.
Media, PA 19063
Telephone: (610) 891-9880
Facsimile: (610) 891-9883
E-mail: jshah@sfmslaw.com
- and -
Kevin P. Roddy, Esq.
Daniel R. Lapinski, Esq.
WILENTZ, GOLDMAN & SPITZER, P.A.
90 Woodbridge Center Dr., Suite 900, Box 10
Woodbridge, NJ 07095
Telephone: (732) 636-8000
Facsimile: (732) 855-6117
E-mail: kroddy@wilentz.com
dlapinski@wilentz.com
SCHOLASTIC CORP: Consolidated Securities Class Suit Dismissed
-------------------------------------------------------------
A consolidated securities class action lawsuit has been terminated
in favor of Scholastic Corporation, the Company disclosed in its
October 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended August 31, 2011.
The Company was party to certain actions filed by each of Alaska
Laborers Employee Retirement Fund and Paul Baicu, which were
consolidated on November 8, 2007. On September 26, 2008, the
plaintiff sought leave of the Court to file a second amended class
action complaint, in order to add allegations relating to the
Company's restatement announced in the Company's Annual Report on
Form 10-K filed on July 30, 2008. The Court thereafter dismissed
the Company's pending motion to dismiss as moot. On October 20,
2008, the plaintiff filed the second amended complaint, and on
October 31, 2008, the Company filed a motion to dismiss the second
amended complaint. On September 30, 2010, the Court granted the
Company's motion to dismiss the second amended complaint for
failure to state a cause of action, while also granting leave to
the plaintiff to move to file a new proposed amended complaint.
On December 1, 2010, the plaintiff filed a motion for leave to
file a proposed third amended class action complaint, as well as a
motion to replace Alaska Laborer Employers Retirement Fund with
City of Sterling Heights Police and Fire Retirement System as lead
plaintiff, and, on January 14, 2011, the Company filed an
opposition to plaintiff's motions for leave to file a third
amended class action complaint and to substitute lead plaintiff,
which was argued on March 3, 2011. The proposed third amended
class action complaint shortened the original class action period
to end on December 16, 2005, rather than on March 23, 2006, but
otherwise continued to allege securities fraud relating to
statements made by the Company concerning its operations and
financial results, now for the period between March 18, 2005, and
December 16, 2005, and sought unspecified compensatory damages.
On August 3, 2011, the Court denied plaintiff's motions for leave
to file a proposed third amended class action complaint and to
substitute a new lead plaintiff and dismissed the lawsuit.
Accordingly, with the time for appeal having expired on
September 2, 2011, with no appeal being filed, the action has now
been terminated in favor of the Company.
ST. VINCENT: 7th Cir. Affirms Non-Certification of Employee Suit
----------------------------------------------------------------
An appellate court panel upheld a district court's order denying
certification of a proposed class in the complaint entitled,
Blanca Gomex and Joan Wagner-Barnett v. St. Vincent Health, Inc.
(Case No. 10-2379).
Upon review, the Seventh Circuit held that the district court did
not err in denying class certification because it found the
proposed class counsel inadequate to represent the class.
The panel is composed of Circuit Judges Richard Dickson Cudahy,
Michael Stephen Kanne, and John Daniel Tinder of the U.S. Court of
Appeals for the Seventh Circuit.
The class action involves the Defendant's obligation to timely
notify qualified departing employees of their right to extend
their health insurance coverage at their own cost after their
employment ends. The Plaintiffs sought damages and statutory
penalties on the Defendant's violation of the notice provisions.
The Seventh Circuit added that the district court did not err in
(i) denying the named plaintiffs' request for statutory penalties,
and (ii) determining that the evidence did not support an
additional damage award based on Ms. Barnett's vision-care
expenses.
A copy of the Seventh Circuit's Aug. 15, 2011 order is available
at http://is.gd/ninoBRfrom Leagle.com.
TERRIBLE HERBST: Settlement Rejection Does Not Moot Pitts' Lawsuit
------------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit entered a ruling
in the action Gareth Pitts v. Terrible Herbst, Inc., Case No.
10-15965, holding that a rejected settlement offer for the full
amount of a putative class representative's individual claim does
not moot a class action complaint where the offer precedes the
filing of a motion for class certification.
Mr. Pitts is an employee of Terrible Herbst. The class action
complaint, filed in April 2009, alleges that the Defendant failed
to pay Mr. Pitts and other similarly situated employees overtime
and minimum wages.
In October 2009, the Defendant offered a $900 settlement plus
costs, but Mr. Pitts refused to accept the offer. The Defendant
maintained that its offer made the entire case moot. The trial
court noted that Mr. Pitts failed to move for class certification
before the initial discovery deadline. In this light, the trial
court dismissed the entire action and ordered the Defendant to pay
$900 to Mr. Pitts and $3,500 to Mr. Pitts' attorney. Mr. Pitts
appealed the trial court order.
Upon review, the Ninth Circuit opined that where a defendant makes
an unaccepted offer of judgment that fully satisfies a named
plaintiff's individual claim before the named plaintiff files a
motion for class certification, that offer does not moot the case
so long as the named plaintiff may still file a timely motion for
class certification. Once filed, a timely motion for class
certification relates back to the time of the filing of the
complaint.
The Ninth Circuit further held (i) that the district court abused
its discretion in finding that Mr. Pitts could no longer file a
timely motion for class certification -- especially where neither
the local rules nor the district court's own scheduling order
imposed a deadline for seeking class certification; (ii) that it
erred in refusing to allow Pitts to abandon his claims under the
Fair Labor Standards Act; and (iii) that it erred in holding that
Nev. Rev. Stat. Section 608.100 abrogates Mr. Pitts's breach of
contract claims.
The appeals court panel is composed of Circuit Judges Jay S. Bybee
and Ferdinand F. Fernandez, and Judge James K. Singleton, senior
district judge for the U.S. District Court of Alaska, in
Anchorage, sitting by designation.
A copy of the Ninth Circuit's Aug. 9, 2011 Opinion is available
for free at http://is.gd/9zslu3from Leagle.com.
Counsel for the Plaintiff is:
Leon Greenberg
LEON GREENBERG PROFESSIONAL CORPORATION
633 South 4th Street
Las Vegas, NV 89101
Tel: (702) 383-6085
Counsel to the Defendant are:
Patrick H. Hicks, Esq.
Wendy M. Krincek, Esq.
Wesley C. Shelton, Esq.
LITTLER MENDELSON, P.C.
3960 Howard Hughes Parkway, Suit 300
Las Vegas, NV 89169
Tel: (702) 862-8800
Fax: (702) 862-8811
E-mail: phicks@littler.com
wkrincek@littler.com
TICKET MASTER: 9th Circuit Rules on Appeals in 3 Class Suits
------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit affirmed, in part,
and reversed, in part, district court rulings in separate class
actions brought against Ticketmaster Entertainment, LLC and
Ticketmaster, LLC; Entertainment Publications, LLC (EPI); and
IAC/InterActiveCorp (IAC).
The class actions are John Mancini, et al. v. Ticketmaster, et
al.; Stephen Stearns v. Ticketmaster, et al.; and Craig Johnson,
et al. v. Ticketmaster, et al.
The Plaintiffs allege that the Defendants participated in a
"deceptive internet scheme," by inducing numerous individuals to
unwittingly sign up for a fee-based rewards program where amounts
were changed to their credit cards or directly deducted from their
bank accounts.
The Plaintiffs assert claims for violations of California's Unfair
Competition Law (UCL), California's Consumers Legal Remedies Act
(CLRA), and the Federal Electronic Fund Transfer Act (EFTA). The
district court denied class certification of the UCL claim, the
EFTA actual damages claim, and the CLRA claim in the Mancini
action. It dismissed both the Stearns and Johnson actions.
Upon review, the Ninth Circuit reversed the district court's
denial of the motions for class certification of the UCL claims in
the Mancini case, and affirmed its determination that Mancini and
Sanders are not typical of the class members and therefore, are
not proper representatives.
The Ninth Circuit affirmed (1) the district court's dismissal of
the CLRA claim in the Stearns case, and (2) the district court's
refusal to certify a class regarding the CLRA injunctive relief
claims in the Mancini case. However, the Ninth Circuit reversed
the district court's dismissal of the Johnson action regarding the
CLRA claim.
Finally, the Ninth Circuit affirmed the district court's refusal
to certify a class regarding the EFTA actual damage claim in the
Mancini case.
The parties shall bear their own costs on appeal.
The appellate panel is composed of Circuit Judges Ferdinand F.
Fernandez, Pamela Ann Rymer, and Richard C. Tallman.
A copy of the Ninth Circuit's Aug. 22, 2011 Opinion is available
at http://is.gd/ZFv03Afrom Leagle.com.
Counsel for the Plaintiffs-Appellants is:
Adam J. Gutride, Esq.
GUTRIDE SAFIER LLP
835 Douglass Street
San Francisco, CA 94114
Tel: (415) 271-6469
E-mail: adam@gutridesafier.com
Counsel for the Defendants-Appellees is:
Donald R. Brown, Esq.
MANATT, PHELPS & PHILIPPS, LLP
11355 W. Olympic Blvd.
Los Angeles, CA 90064
Tel No: (310) 312-4000
Fax No: (310) 312-4224
E-mail: dbrown@manatt.com
TUT SYSTEMS: District Court Excludes J. Hayes From IPO Class Suit
-----------------------------------------------------------------
Judge Shira A. Scheindlin of the U.S. District Court for the
Southern District of New York ruled that James J. Hayes is not a
class member in the lawsuit against Tut Systems, Inc., styled, In
re Initial Public Offering Securities Litigation, Master File No.
21 MC 92 (SAS) (S.D.N.Y.).
Tut Systems is one of 309 issuers whose securities are at issue in
the litigation.
Mr. Hayes alleged that he purchased stock in Tut Systems.
The district court opined that Mr. Hayes' proof to establish his
membership in the Tut Systems class is both untimely and
insufficient. Mr. Hayes' "proof" consisted of a "portion[] of his
1999 personal income tax form reporting a $2,317 trading loss in
Tut Systems, Inc. during the class period."
A copy of the District Court's Aug. 25, 2011 Memorandum Opinion
and Order is available at http://is.gd/VkGvnifrom Leagle.com.
WELLCARE HEALTH: Settles Securities Class Action
------------------------------------------------
Tampa Bay Business Journal reports that WellCare Health Plans Inc.
is working with The Bank of New York Mellon Trust Co. on issuing
$112.5 million in notes as part of a settlement of a securities
class-action lawsuit.
WellCare signed an indenture with the bank on Sept. 30, outlining
the terms and conditions applicable to the issuance of the notes,
a filing with the U.S. Securities and Exchange Commission said.
The company will issue tradable unsecured subordinated notes with
a fixed coupon of 6 percent and a maturity date of Dec. 31, 2016.
WellCare, a managed care company headquartered in Tampa, agreed
late last year to the settlement in the case, which stemmed from
allegations of health care fraud.
WHITE DIRECTORY: 4th Cir. Affirms Class Certification of Gray Suit
------------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit affirmed a
district court order certifying the class action complaint
entitled, William B. Gray, III, et al. v. Hearst Communications,
Inc., White Directory Holdings Carolina, LLC, et al., Case No.
10-1302 (4th Cir.).
White Directory and Hearst Communications appealed the district
court order conditionally certifying class action claims against
them for (1) breach of contract, (2) breach of the implied
covenant of good faith and fair dealing, and (3) unfair and
deceptive trade practices.
The claims, brought by William B. Gray, III, d/b/a Greenwood
Clinic of Chiropractic, and B & K Services, Inc., on behalf of
themselves and other similarly situated advertisers, stem from
Gray's purchase of advertising in The Talking Phone Book telephone
directories which are published and distributed by White Directory
in various markets throughout South Carolina.
Gray alleges that White Directory solicited the class members to
enter into advertising contracts with it emphasizing its superior
distribution coverage, however, White Directory knowingly
misrepresented its actual distribution; never made a full
distribution as promised; and intentionally sought to conceal this
deception.
On appeal, the Fourth Circuit found that the district court was
correct in determining that (1) the common question regarding
White Directory's distribution obligation predominates over any
individual issues because the putative class members all assert
injury from the same action, and (2) determination of whether
White Directory breached its standard distribution obligation will
resolve in one stroke an issue that is central to the validity of
the class members' breach of contract claims.
A three-judge panel of the Fourth Circuit reviewed the matter.
The majority opinion was written by Circuit Judge Dennis Shedd,
joined in by Judge Norman K. Moon, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
Circuit Judge J. Harvie Wilkinson III wrote a dissenting opinion.
Judge Wilkinson said the integrated contracts lack any uniform
distribution term to supply the necessary commonality of law or
fact. He recommends reversal of the class certification order in
the case.
A copy of the Fourth Circuit's Aug. 25, 2011 "unpublished opinion"
is available at http://is.gd/zKadM8from Leagle.com.
Counsel for the Defendants-Appellants is:
Alan Mansfield, Esq.
GREENBERG TRAURIG, LLP
MetLife Building
200 Park Avenue
New York, NY 10166
Tel: (212) 801-9200
Fax: (212) 801-6400
E-mail: mansfielda@gtlaw.com
Counsel for Plaintiffs-Appelles is:
Daniel S. Haltiwanger, Esq.
RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC
1730 Jackson Street
P.O. Box 1368
Barnwell, SC 29812
Tel: (803) 541-7850
Fax: (803) 541-9625
E-mail: dhaltiwanger@rpwb.com
YU WEI: Recalls 8,000 Drop-Side Cribs Sold at jcpenney.com
----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
importer, J. C. Penney Purchasing Corp., of Plano, Texas, and
manufacturer, Yu Wei Co. Ltd., of Taipei, Taiwan, announced a
voluntary recall of about 8,000 drop-side cribs. Consumers should
stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The drop-side rails on the crib can malfunction, detach or
unexpectedly fall down, causing part of the drop side to fall out
of position. When this happens, a space is created into which an
infant or toddler can roll and become wedged or entrapped, which
can lead to strangulation or suffocation. A child can also fall
out of the crib. Drop-side incidents can also occur due to
incorrect assembly and due to age-related wear and tear.
CPSC and the firms are aware of nine incidents involving drop side
rails that malfunctioned or detached, including one report of a
child who sustained minor abrasions to the arm.
This recall involves Yu Wei full-size cribs sold under the Scroll
and Lauren model names. The cribs were sold in antique white,
pecan and dark cherry, and have the following model numbers and
date codes listed on the inside of the crib's end panels:
Model # Description Date Code Between
------- ----------- -----------------
343-8225 Scroll Crib 01/2006-12/2010
343-9117 Lauren Crib 01/2007-12/2010
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12003.html
The recalled products were manufactured in Taiwan and sold at
jcpenney.com and in the jcpenney catalog from January 2006 through
December 2010 for between $300 and $450.
Consumers should immediately stop using the recalled cribs and
contact Yu Wei to get a free immobilizer kit that will immobilize
the drop side. In the meantime, parents are encouraged to find an
alternate, safe sleep environment for the child, such as a
bassinet, play yard or toddler bed depending on your child's age.
For additional information, contact Yu Wei at (877) 806-8190
between 9:00 a.m. and 5:00 p.m. Central Time Monday through
Friday, or visit the firm's Web site at
http://www.yuweicribrecalls.com/. Consumers can also e-mail the
firm at yuweiparts@aol.com to order a free immobilizer kit.
Important Message from CPSC
CPSC reminds parents not to use any crib with missing, broken or
loose parts. Make sure to tighten hardware from time to time to
keep the crib sturdy. When using a drop-side crib, parents should
check to make sure the drop side or any other moving part operates
smoothly. Always check all sides and corners of the crib for
parts separating that can create a gap and entrap a child. In
addition, do not try to repair any side of the crib. Babies have
died in cribs where repairs were attempted by caregivers. Crib
age is a factor in safety. At a minimum, CPSC staff recommends
that you do not use a crib that is older than 10 years old.
Effective June 28, 2011, new, mandatory federal crib rules require
that all cribs manufactured and sold after that date must meet new
and improved safety requirements. Older cribs do not meet the new
standard and can have a variety of safety problems. Check if your
crib has been recalled at http://www.cpsc.gov/
*********
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
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Information contained herein is obtained from sources believed to
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