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/raid1/www/Hosts/bankrupt/CAR_Public/111013.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 13, 2011, Vol. 13, No. 203 Headlines AMERIFIT INC: Morgan & Morgan to Review Culturelle Claims BANK CENTURY: MAKI Urges Public to File Corruption Class Action CARMAX INC: Awaits Order on Bid to Lift Stay & Compel Arbitration CINTAS CORP: Appeals From Summary Judgment Orders Still Pending CINTAS CORP: Paid $1.9-Mil. in Taxes for "Veliz" Class Members EQUITITRUST: Singapore Firm Agrees to Fund Investor Class Action GENTEK: Property Owners May File Suit Over Siding Problems KFC: Settles Class Action Over Free Sandwich Coupons NCAA: Bill Russell Files Name & Likeness Licensing Class Action RENAISSANCE LEARNING: Being Sold for Too Little, Suit Claims ROCKWELL INT'L: Supreme Court to Weigh on Plutonium Class Action SONY ENTERTAINMENT: Faces Class Action Over Cramming STATE OF OKLAHOMA: Juvenile Justice Center Reforms Slipping STEREOTAXIS INC: Faces Securities Class Action in Missouri TIBCO SOFTWARE: Further Appeal From IPO Suit Ruling Pending TIBCO SOFTWARE: Proginet Acquisition-Related Suit Dismissed UNITED STATES: Bid for Appeal Bond in Cobell Settlement Tossed UNITED STATES: Oct. 18-20 Meetings Set for Keepseagle Settlement VODAFONE: Law Firm Fails to Secure Funding for Class Action * DRI Supports Certoriari Petition in Kurns v. Railroad Friction * Michigan Banks, Credit Unions Face Class Actions Over ATM Fees * U.S. LENDERS: May Face Class Action Over VA Home Loan Fraud ********* AMERIFIT INC: Morgan & Morgan to Review Culturelle Claims --------------------------------------------------------- The class action attorneys at Morgan and Morgan would like to hear from consumers who purchased a Culturelle probiotic supplement to assist in their investigation into a potential lawsuit on behalf of these individuals. The attorneys at the firm are looking into allegations that Culturelle's advertised health claims are false and misleading and would like to determine if individuals who purchased the products believing that the probiotics would support their digestive and immune system have legal recourse to seek compensation for the cost of their supplement. If you purchased a Culturelle probiotic supplement, visit [ https://www.forthepeople.com/class-action-lawyers/culturelle-class-action/ -- Updated Jan. 23, 2018 ] and complete the free case review form with details of your Culturelle effectiveness claim to find out if you can seek recovery for the cost of your probiotic supplement. Culturelle probiotics are manufactured, marketed and sold by Amerifit Inc. According to the manufacturer, the probiotic supports the user's digestive health by helping with diarrhea, bloating and gas and by restoring the natural balance of bacteria in the digestive tract. Additionally, the probiotic supplement, according to advertised claims, will support the immune system. Products which were sold under these claims include the following: Culturelle Dairy Free Health and Wellness; Culturelle Digestive Health; Culturelle for Kids; Culturelle Natural Health and Wellness. If you purchased any of these supplements, the class action lawyers at Morgan and Morgan would like to hear about Culturelle's effectiveness for you. If the products do not live up to their advertised claims, consumers who bought these products may be able to participate in a Culturelle class action to seek compensation for the cost of their product. To learn more about your eligibility for a potential Culturelle class action, visit ForThePeople.com and fill out the free case review form. The attorneys at the firm are providing this online consultation at no cost and would like to hear about Culturelle effectiveness from any consumer who purchased these supplements. About Morgan and Morgan Morgan and Morgan is one of the largest personal injury law firms in the country with multiple office locations throughout Florida and the Southeast. The firm handles auto accident cases, personal injury cases, and medical malpractice cases, as well as claims against drug and medical device manufacturers. Visit Morgan and Morgan online at http://www.forthepeople.com/for a free case evaluation and information about your legal rights. BANK CENTURY: MAKI Urges Public to File Corruption Class Action --------------------------------------------------------------- TEMPO Interactive reports that the Indonesian Anti-Corruption Community (MAKI) is encouraging the public to file a class action suit for unresolved corruption cases, such as the Bank Century and Bank Indonesia Liquidity Support (BLBI) cases. MAKI coordinator Boyamin Saiman said the public has the right for clean governance. "It's easy to file a class action," he claimed following the Mobile Public Alliance declaration event in Surakarta on Oct. 9. A class action is free of charge and the public do not need to worry that they will be sued back. The trial process is only six days. Mr. Boyamin said he was ready to be the public's lawyer. CARMAX INC: Awaits Order on Bid to Lift Stay & Compel Arbitration ----------------------------------------------------------------- CarMax, Inc., is awaiting a court decision on its motion to lift the stay, and compel arbitration on an individualized basis, of remaining claims in the consolidated class action lawsuit over employee wages, the Company disclosed in its October 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 31, 2011. On April 2, 2008, Mr. John Fowler filed a putative class action lawsuit against CarMax Auto Superstores California, LLC and CarMax Auto Superstores West Coast, Inc. in the Superior Court of California, County of Los Angeles. Subsequently, two other lawsuits, Leena Areso et al. v. CarMax Auto Superstores California, LLC and Justin Weaver v. CarMax Auto Superstores California, LLC, were consolidated as part of the Fowler case. The allegations in the consolidated case involved: (1) failure to provide meal and rest breaks or compensation in lieu thereof; (2) failure to pay wages of terminated or resigned employees related to meal and rest breaks and overtime; (3) failure to pay overtime; (4) failure to comply with itemized employee wage statement provisions; and (5) unfair competition/California's Labor Code Private Attorney General Act. The putative class consisted of sales consultants, sales managers, and other hourly employees who worked for the company in California from April 2, 2004, to the present. On May 12, 2009, the court dismissed all of the class claims with respect to the sales manager putative class. On June 16, 2009, the court dismissed all claims related to the failure to comply with the itemized employee wage statement provisions. The court also granted CarMax's motion for summary adjudication with regard to CarMax's alleged failure to pay overtime to the sales consultant putative class. The plaintiffs appealed the court's ruling regarding the sales consultant overtime claim. On May 20, 2011, the California Court of Appeals affirmed the court's ruling in favor of CarMax. The plaintiffs filed a Petition of Review with the California Supreme Court, which was denied. As a result, the plaintiffs' overtime claims are no longer part of the case. The claims currently remaining in the lawsuit regarding the sales consultant putative class are: (1) failure to provide meal and rest breaks or compensation in lieu thereof; (2) failure to pay wages of terminated or resigned employees related to meal and rest breaks; and (3) unfair competition/California's Labor Code Private Attorney General Act. On June 16, 2009, the court entered a stay of these claims pending the outcome of a California Supreme Court case involving unrelated third parties but related legal issues. Subsequently, CarMax moved to lift the stay and compel the plaintiffs' remaining claims into arbitration on an individualized basis, which the court is considering. The Fowler lawsuit seeks compensatory and special damages, wages, interest, civil and statutory penalties, restitution, injunctive relief and the recovery of attorneys' fees. The Company says it is unable to make a reasonable estimate of the amount or range of loss that could result from an unfavorable outcome in these matters. CINTAS CORP: Appeals From Summary Judgment Orders Still Pending --------------------------------------------------------------- Cintas Corporation is a defendant in a purported class action lawsuit, Mirna E. Serrano, et al. v. Cintas Corporation (Serrano), filed on May 10, 2004, and pending in the United States District Court, Eastern District of Michigan, Southern Division. The Serrano plaintiffs alleged that Cintas discriminated against women in hiring into various service sales representative positions across all divisions of Cintas. On November 15, 2005, the Equal Employment Opportunity Commission (EEOC) intervened in the Serrano lawsuit. The Serrano plaintiffs seek injunctive relief, compensatory damages, punitive damages, attorneys' fees and other remedies. On October 27, 2008, the United States District Court in the Eastern District of Michigan granted summary judgment in favor of Cintas limiting the scope of the putative class in the Serrano lawsuit to female applicants for service sales representative positions at Cintas locations within the state of Michigan. Consequently, all claims brought by female applicants for service sales representative positions outside of the state of Michigan were dismissed. Similarly, any claims brought by the EEOC on behalf of similarly situated female applicants outside of the state of Michigan have also been dismissed from the Serrano lawsuit. Cintas is a defendant in another purported class action lawsuit, Blanca Nelly Avalos, et al. v. Cintas Corporation (Avalos), which was filed in the United States District Court, Eastern District of Michigan, Southern Division. The Avalos plaintiffs alleged that Cintas discriminated against women, African-Americans and Hispanics in hiring into various service sales representative positions in Cintas' Rental division only throughout the United States. The Avalos plaintiffs sought injunctive relief, compensatory damages, punitive damages, attorneys' fees and other remedies. The claims in Avalos originally were brought in the lawsuit captioned Robert Ramirez, et al. v. Cintas Corporation (Ramirez), filed on January 20, 2004, in the United States Districft Court, Northern District of California, San Francisco Division. On May 11, 2006, the Ramirez and Avalos African-American, Hispanic and female failure to hire into service sales representative positions claims and the EEOC's intervention were consolidated for pretrial purposes with the Serrano case and transferred to the United States District Court for the Eastern District of Michigan, Southern Division. The consolidated case was known as Mirna E. Serrano/Blanca Nelly Avalos, et al. v. Cintas Corporation (Serrano/Avalos). On March 31, 2009, the United States District Court, Eastern District of Michigan, Southern Division entered an order denying class certification to all plaintiffs in the Serrano/Avalos lawsuits. Following denial of class certification, the Court permitted the individual Avalos and Serrano plaintiffs to proceed separately. In the Avalos case, the Court dismissed the remaining claims of the individual plaintiffs who remained in that case after the denial of class certification. On May 11, 2010, Plaintiff Tanesha Davis, on behalf of all similarly situated plaintiffs in the Avalos case, filed a notice of appeal of the District Court's summary judgment order in the United States Court of Appeals for the Sixth Circuit. The Appellate Court has made no determination regarding the merits of Davis' appeal. In September 2010, the Court in Serrano dismissed all private individual claims and all claims of the EEOC and the 13 individuals it claimed to represent. The EEOC has appealed the District Court's summary judgment decisions and various other rulings to the United States Court of Appeals for the Sixth Circuit. The Court of Appeals has not yet ruled on the EEOC's appeal. No further updates were reported in the Company's October 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 31, 2011. The Company says the litigation, if decided or settled adversely to it, may, individually or in the aggregate, result in liability material to Cintas' consolidated financial condition or consolidated results of operation and could increase costs of operations on an ongoing basis. Any estimated liability relating to these proceedings is not determinable at this time. Cintas may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements if it believes such settlement is in the best interest of Cintas' shareholders. CINTAS CORP: Paid $1.9-Mil. in Taxes for "Veliz" Class Members -------------------------------------------------------------- On July 20, 2011, Cintas Corporation paid $1.9 million to satisfy the future income tax liabilities of class members in the lawsuit captioned Paul Veliz, et al. v. Cintas Corporation, according to the Company's October 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 31, 2011. Cintas is a defendant in a purported class action lawsuit, Paul Veliz, et al. v. Cintas Corporation (Veliz), filed on March 19, 2003, in the United States District Court, Northern District of California, Oakland Division, alleging that Cintas violated certain federal and state wage and hour laws applicable to its service sales representatives, whom Cintas considers exempt employees, and asserting additional related ERISA claims. On April 5, 2004, and February 14, 2006, the Court stayed the claims of all plaintiffs with valid arbitration agreements pending arbitration of those claims. Claims made in the Veliz action, therefore, are pending before the United States District Court, Northern District of California and Judge Bruce Meyerson (Ret.), an Arbitrator selected by the parties. On August 5, 2009, the parties in the Veliz action reached a settlement in principle. That settlement was granted preliminary approval by the District Court. The pre-tax impact, net of insurance proceeds, was $19.5 million in fiscal 2010. Pursuant to the settlement agreement, Cintas paid $22.8 million on December 17, 2010. On June 3, 2011, the Court granted final approval of the settlement. On July 20, 2011, Cintas paid $1.9 million to satisfy the future income tax liabilities of the class members as they receive their respective shares of the settlement funds. Any remaining balance of the settlement funds will be used to pay the fees and expenses of the settlement administrator or donated to a charitable organization as determined by the court. EQUITITRUST: Singapore Firm Agrees to Fund Investor Class Action ---------------------------------------------------------------- Colin Kruger, writing for The Sydney Morning Herald, reports that Singapore's International Litigation Partners has agreed to fund a potential class action against Equititrust amid growing signs of turmoil at the Gold Coast mortgage fund operator, which faces another winding up action by the Sydney businessman Ian Lazar. In a letter to unitholders with more than AUD250 million tied up in Equititrust's Income Fund and Premium Fund, the law firm Piper Alderman confirmed it has signed up ILP as litigation funder. The law firm, which is spearheading efforts to recover investor losses, detailed potential claims against Equititrust. This includes likely claims of "misleading and deceptive conduct, breach of trust, breach of fiduciary duties as trustee and breaches of the Corporations Act in relation to the managed investment schemes provisions", according to a letter Piper Alderman sent to unitholders. Adding to the turmoil at Equititrust is news that a newly appointed director, David JS Jackson, QC, has resigned as director two months after joining the company's board. No explanation for the resignation was offered in a brief statement from the company. A further company update on Oct. 10 confirmed that founder Mark McIvor is no longer involved in the company at any level. A company statement said while Mr. McIvor remained the sole shareholder of Equititrust, as well as a creditor and a unitholder in the Equititrust Income Fund, "Mr. McIvor is not involved in managing fund assets, recovering outstanding loans or otherwise involved in the management of the company or the funds". His actions while managing the company are likely to be central to any class action. Piper Alderman told unitholders it expects to make an application for preliminary discovery in the Federal Court in order to gain access to documents and help determine whether legal action should proceed against Equititrust or its directors. Mention was made of Mr. Lazar's latest attempt to wind up Equititrust which may also play a role. Piper Alderman said a successful application to wind up Equititrust means the company cannot continue as the manager and responsible entity (RE) of the two funds. A new responsible entity would be appointed by the Australian Securities and Investments Commission. According to the law firm, this will allow further investigations to be made by any new RE into Equititrust's conduct "which is likely to assist claims of other unitholders including those who join the action proposed by Piper Alderman". GENTEK: Property Owners May File Suit Over Siding Problems ---------------------------------------------------------- A Gentek class action lawsuit may be an option for homeowners who experienced problems with the company's aluminum or steel exterior siding, including peeling, chipping, cracking or a change in paint color. Potentially, these individuals may be able to participate in a Gentek class action lawsuit, which would allow a large number of homeowners the opportunity to collectively file a claim in court seeking compensation for repairs and other damages. To find out if you are eligible for a Gentek class action, visit http://www.classaction.org/gentek-siding.htmlto receive a no cost evaluation of your claim. According to a Gentek class action complaint, the exterior steel and aluminum siding manufactured by Gentek is inherently defective, as it starts to crack, chip or peel within the original warranty period. Allegedly, the warranties for this siding make the company liable for the repair, replacement or, for siding sold in 1995 and thereafter, refinishing of the siding. The Gentek class action complaint claims, however, that when the company receives a claim for peeling paint, it provides the property owner with either a small monetary sum or an offer to repaint the siding, which may not fully resolve the Gentek siding problems. Furthermore, the Gentek class action complaint alleges that the sum offered to property owners is significantly less than what the company is liable for under its warranties. Because Gentek allegedly manufactured defective exterior steel and aluminum siding and breached its product warranties, homeowners who experienced Gentek siding problems with this product may have legal recourse. Potentially, these individuals may be able to participate in a Gentek class action to recover compensation for the repair or replacement of their siding. If your Gentek exterior siding peeled, chipped or otherwise failed to perform as warranted, visit Class Action.org today for a free evaluation of your Gentek siding complaints. About Class Action.org Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.orgtoday for a no cost, no obligation case evaluation and information about your consumer rights. KFC: Settles Class Action Over Free Sandwich Coupons ---------------------------------------------------- According to an article posted at PointofLaw.com by Ted Frank, KFC decided to advertise with the help of Oprah, and was overwhelmed with customers demanding more free chicken sandwiches than the chain had available to offer. The company voluntarily replaced the coupons with rainchecks, 2.7 million of which were redeemed for free sandwiches, but there was still a class action demanding other recompense. That other recompense is now available in a class action settlement. The millions of class members who downloaded a coupon on May 5 or May 6, 2009, but didn't bother to get a free sandwich or other compensation from KFC have a second bite at the apple in the form of a settlement fund that reserves less than $678,000 for the class. If, given the hoop-jumping required to make a claim, the settlement fund is not exhausted by claims, the remainder goes in "cy pres" to local Illinois charities, despite it being a nationwide class. The attorneys are asking for $515,000 for themselves and $25,000 for their clients. The case is in the Northern District of Illinois (In re Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litigation, No. 1:09-cv-7670), and the Seventh Circuit does not look kindly on class action settlements like this one. One hopes that there is a class member willing to come forward to object to the settlement and that they take advantage of their ability to access one of the pro bono attorneys who represents such class members for free. NCAA: Bill Russell Files Name & Likeness Licensing Class Action --------------------------------------------------------------- Courthouse News Service reports that National Basketball Association (NBA) great Bill Russell is the latest to file a class action accusing the National Collegiate Athletic Association and Electronic Arts of conspiring to pay athletes nothing while using their names, images and careers for video games. A copy of the Complaint in Russell v. National Collegiate Athletic Association, et al., Case No. 11-cv-04938 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/10/10/Russell.pdf The Plaintiff is represented by: Michael P. Lehmann, Esq. Jon T. King, Esq. Arthur N. Bailey, Jr., Esq. HAUSFELD LLP 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 633-1908 E-mail: mlehmann@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com - and - Michael D. Hausfeld, Esq. HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 E-mail: mhausfeld@hausfeldllp.com RENAISSANCE LEARNING: Being Sold for Too Little, Suit Claims ------------------------------------------------------------ Courthouse News Service reports that shareholders claim Renaissance Learning is selling itself too cheaply to Raphael Acquisition Corp., for $14.85 a share or $440 million. A copy of the Complaint in Data Key Partners v. Permira Advisers LLC, et al., Case No. 11-cv-00688 (W.D. Wis.), is available at: http://www.courthousenews.com/2011/10/10/SCA.pdf The Plaintiff is represented by: Mark L. Thomsen, Esq. Robert D. Crivello, Esq. CANNON & DUNPHY, S.C. 595 North Barker Road P.O. Box 1750 Brookfield, WI 53008-1750 Telephone: (262) 782-2700 - and - Richard B. Brualdi, Esq. Gaitri Boodhoo, Esq. Lauren C. Watson, Esq. David Titus, Esq. THE BRUALDI LAW FIRM 29 Broadway, 24th Floor New York, NY 10006 Telephone: (212) 952-0602 ROCKWELL INT'L: Supreme Court to Weigh on Plutonium Class Action ---------------------------------------------------------------- Sean Wajert at Dechert LLP reports that the U.S. Supreme Court last week invited the Solicitor General to weigh in on the issues in a significant class action, in which the plaintiffs allege plutonium contamination. Merilyn Cook, et al. v. Rockwell International Corporation, et al., No. 10-1377 (U.S.). The plaintiffs were more than 15,000 property owners near the former Rocky Flats Nuclear Weapons Plant in Colorado. In 2006, a jury found against defendants Dow and Rockwell. In 2008, the federal trial court ordered the companies to pay a total of $926 million in damages. The 10th Circuit reversed. At issue now is whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and, secondly, whether, if a federal standard applies, a property owner whose land has been contaminated by plutonium must show some physical injury to the property beyond the contamination itself in order to recover. The court of appeals had concluded that plutonium contamination by itself was not adequate under the Act. In particular, property owners' fears that the plutonium might damage their health was not a sufficient basis to award damages. The case raises the all-too-familiar scenario of trial courts dispensing with traditional elements of a cause of action in order to proceed with class litigation. Plaintiffs alleged that defendants were responsible for plutonium emissions that diminished their property values. But they did not prove any present physical injury to person or property, or loss of use of property, on a class-wide basis. Rather, they vigorously --and successfully-- urged the district court to dispense with any such injury requirement. The district court allowed petitioners to recover based solely on a risk of injury to person or property, even if unverifiable or scientifically unfounded. SONY ENTERTAINMENT: Faces Class Action Over Cramming ---------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that a Racketeer Influenced and Corrupt Organizations Act (RICO) class action accuses Sony Entertainment and ringtone provider Flycell of cramming unasked-for "services" onto cell phone bills. The lead plaintiff, an Air Force pilot, says the facts show "the depth to which some of the most powerful combatants will go in order to steal billions of dollars from unwitting and relatively helpless consumers." In his federal complaint, named plaintiff Mark Smith claims, "This facts [sic] in this lawsuit will illuminate not only a portion of the worldwide battle for primacy in the delivery of downloadable digital media, but also the depth to which some of the most powerful combatants will go in order to steal billions of dollars from unwitting and relatively helpless consumers." Mr. Smith, of South Carolina, says he went to an AT&T outlet to complain about dropped calls, poor reception and high charges. (AT&T, though criticized, is not a defendant in the lawsuit.) "In the course of attempting to resolve the issues, AT&T's agent pointed to 2 lines on a 68-page, printed monthly bill that indicated charges in the amount of $19.99 to 'Flycell,'" the complaint states. "Further investigation of prior billings disclosed that AT&T had billed on behalf of Flycell charges of $19.99 every month for over a year." Flycell describes itself as an online hub for customers to download cell phone ringtones, graphics, games, entertainment, and sports programs. It is a wholly owned subsidiary of New York- based company Acotel, also a defendant. Up to 100 John Doe co-conspirators are also named as defendants. "At no time did plaintiff agree to pay for media content from Flycell," Mr. Smith says. Mr. Smith said he had to complain about the charges for 2 months to get them reversed. He seeks an injunction against cramming, and treble damages for fraud, RICO conspiracy and unjust enrichment. He is represented by Erik H. Langeland. The Federal Communications Commission defines cramming as "the practice of placing unauthorized, misleading, or deceptive charges on your telephone bill," according to the complaint. STATE OF OKLAHOMA: Juvenile Justice Center Reforms Slipping ----------------------------------------------------------- Barbara Hoberock, writing for Tulsa World, reports that the juvenile justice system is slipping back into the conditions that led to a decades-old class-action lawsuit that was responsible for sweeping reforms, Tulsa attorney Steven Novick said. Mr. Novick, who spearheaded the federal lawsuit, commented on Oct. 7 following the Board of Juvenile Affairs' approval on Oct. 6 of several security measures to clamp down on unruly juvenile offenders after an outbreak of violence and escapes at the Central Oklahoma Juvenile Center in Tecumseh. The outbreak came after the Office of Juvenile Affairs closed the state's only maximum-security juvenile facility, the L.E. Rader Center in Sand Springs, and transferred some of the youths from there to the state's two other juvenile institutions. Mr. Novick said he filed the suit in 1978 on behalf of a boy who described shocking conditions in state-run juvenile centers. The boy, dubbed Terry D., described the use of hogties and days of solitary confinement, Mr. Novick said. A tour Mr. Novick took of a juvenile facility in Taft in 1977 confirmed some of his suspicions, he said. He said the staff was proud of what it had been doing, adding that staff members were "every bit as institutionalized as the kids were. They didn't see what they were doing as possibly wrong or harmful. That was the springboard." The allegations mounted, Mr. Novick said, and the suit alleged that children were subjected to abusive use of restraints and solitary confinement and that staff used tranquilizing drugs to control juveniles, rather than treat them. "There was compelling evidence to support all those allegations," he said. In addition, children who had done nothing wrong -- such as victims of neglect -- were housed with those who had been adjudicated of crimes, Mr. Novick said. "And it really was a hard-fought lawsuit," said Jon Trzcinski, who served as the Office of Juvenile Affairs liaison to the court- appointed monitor in the case. "It was very contentious." A consent decree was issued in 1984. It resulted in the ban of abusive practices and closed many facilities. More juveniles were to be treated in community settings as a result, Mr. Novick said. The case finally ended in the late 1990s with an order of dismissal outlining guidelines for treatment. Mr. Novick said that since the issuance of the dismissal order, the system has started moving toward more of a corrections model than a true juvenile justice system. Mr. Trzcinski agrees. Mr. Novick said plans outlined by OJA, which include the use of Tasers and chemical spray, along with proposed modifications to the Terry D. order governing solitary confinement and restraints, are an indication that the reforms created by the case are losing ground. He said OJA has not addressed the causes of the violence or put forth a solution to address it. He described OJA's plans as "overkill." "This is all so unbelievable and unnecessary," Mr. Novick said. "It truly angers me that this agency is going to become the first in the country to use Tasers on kids when the problems at COJC are its own fault." He said the agency was not prepared when it closed Rader. Gene Christian, Office of Juvenile Affairs executive director, said treatment is not being sacrificed for security. In addition, the number of juveniles housed in facilities is down tremendously, he said. "I don't see how he can argue overall the system is more penal in nature," Mr. Christian said of Mr. Novick. "We are moving them out of secure settings or preventing delinquency in the first place." Linda Terrell, executive director of the Oklahoma Institute for Child Advocacy, is concerned that the proposals offered by OJA are more punitive. "We need to remember that they are children," she said. STEREOTAXIS INC: Faces Securities Class Action in Missouri ---------------------------------------------------------- Robbins Umeda LLP disclosed that the firm commenced a class action lawsuit on October 7, 2011, in the U.S. District Court for the Eastern District of Missouri, Eastern Division, on behalf of all persons or entities who purchased the common stock of Stereotaxis, Inc. between February 28, 2011, and August 9, 2011, against certain of the Company's officers and directors for violations of the Securities Exchange Act of 1934. The plaintiff is represented by Robbins Umeda LLP and Carey, Danis & Lowe. Stereotaxis designs, manufactures, and markets a cardiology instrument control system, called Niobe(R), for use in a hospital's interventional surgical suite to enhance the treatment of coronary artery disease and arrhythmias. The Company also markets the Odyssey system as a data management solution for remote viewing and recording of live interventional procedures. The Company's executive offices are located in St. Louis, Missouri. The complaint alleges that beginning on February 28, 2011, Chief Executive Officer Michael Kaminski, along with certain officers and directors at Stereotaxis, issued a series of positive statements to investors about the business condition and future prospects of the Company that were materially false and misleading, and that caused shares of the Company's stock to trade at artificially high prices. In particular, the complaint alleges that officials at the Company failed to disclose to investors material adverse facts that: (1) Stereotaxis was unable to leverage its extensive portfolio and scale of products and services in a strategically beneficial manner; (2) market feedback from users of the Company's technology was "mixed"; (3) the Niobe system was far from the "standard of care" and needed "fundamental product improvements"; (4) demand for the Niobe and Odyssey systems was weak, and that the number of units being sold was decreasing; (5) the reported backlog of orders did not fairly represent future revenue the Company expected to recognize; and that (6) the Company overstated its market edge. On August 8, 2011, the Company announced financial results for the second quarter of 2011 that revealed that the Company was performing well below expectations. Additionally, the press release disclosed to investors that the Company was forced to suspend its full year guidance for 2011, and that Daniel Johnston was resigning as the Chief Financial Officer. On this news, shares of Stereotaxis declined by more than 58% of their value, closing on August 9, 2011, at just $1.19 per share. If you purchased Stereotaxis stock during the Class Period and wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 10, 2011. To discuss your shareholder rights, please contact: Gregory E. Del Gaizo, Esq. ROBBINS UMEDA LLP Telephone: 800-350-6003 or via the shareholder information form. Robbins Umeda LLP -- http://www.robbinsumeda.com--represents individual and institutional shareholders in derivative, direct, and class action lawsuits. TIBCO SOFTWARE: Further Appeal From IPO Suit Ruling Pending ----------------------------------------------------------- An appeal from a court decision stating that an objector to a consolidated class action settlement had no standing to object to the settlement is pending, according to TIBCO Software Inc.'s October 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 28, 2011. The Company, certain of its directors and officers, and certain investment bank underwriters have been named in a putative class action for violation of the federal securities laws in the United States District Court for the Southern District of New York, captioned "In re TIBCO Software Inc. Initial Public Offering Securities Litigation." This is one of a number of cases challenging underwriting practices in the initial public offerings (each, an "IPO") of more than 300 companies, which have been coordinated for pretrial proceedings as "In re Initial Public Offering Securities Litigation." Plaintiffs generally allege that the underwriters engaged in undisclosed and improper underwriting activities, namely the receipt of excessive brokerage commissions and customer agreements regarding post-offering purchases of stock in exchange for allocations of IPO shares. Plaintiffs also allege that various investment bank securities analysts issued false and misleading analyst reports. The complaint against the Company claims that the purported improper underwriting activities were not disclosed in the registration statements for the Company's IPO and secondary public offering and seeks unspecified damages on behalf of a purported class of persons who purchased the Company's securities or sold put options during the time period from July 13, 1999, to December 6, 2000. A lawsuit with similar allegations of undisclosed improper underwriting practices, and part of the same coordinated proceedings, is pending against Talarian Corp, which the Company acquired in 2002. That action is captioned "In re Talarian Corp. Initial Public Offering Securities Litigation." The complaint against Talarian, certain of its underwriters and certain of its former directors and officers claims that the purported improper underwriting activities were not disclosed in the registration statement for Talarian's IPO and seeks unspecified damages on behalf of a purported class of persons who purchased Talarian securities during the time period from July 20, 2000, to December 6, 2000. The parties have reached a global settlement of the litigation, including the actions against the Company and Talarian. Under the settlement, the insurers will pay the full amount of settlement share allocated to the Company (its financial liability will be limited to paying the remaining balance of the applicable retention under Talarian's directors and officers liability insurance policy). In addition, the Company and the other defendants will receive complete dismissals from the case. In 2009, the Court granted final approval of the settlement. Certain objectors appealed; several of the appeals have been dismissed. Following remand from the appellate court, the district court in August 2011 determined that the remaining appellant was not a class member with standing to object to the settlement; that August order is now on appeal. TIBCO SOFTWARE: Proginet Acquisition-Related Suit Dismissed ----------------------------------------------------------- A shareholder class action lawsuit commenced in connection with the acquisition of Proginet Corporation by TIBCO Software Inc., has been dismissed with prejudice following court approval of the settlement resolving the lawsuit, according to TIBCO's October 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 28, 2011. On June 28, 2010, a putative shareholder class action lawsuit was filed by individual stockholders in the Supreme Court of the State of New York, Nassau County, against Proginet Corporation (which the Company acquired on September 15, 2010), certain of its officers and directors, the Company and its subsidiary created for the purpose of effectuating the acquisition of Proginet. The complaint generally alleged that the individual defendants breached their fiduciary duties by failing to maximize shareholder value in negotiating and approving the merger agreement, and that Proginet and the Company aided and abetted those alleged breaches of fiduciary duties. The complaint seeks, among other relief, class certification, certain forms of injunctive relief, including enjoining the proposed merger, and unspecified damages. The Company, Proginet and the other defendants in this action entered into an agreement providing for the settlement and dismissal with prejudice of this action. Although the Company and Proginet believe that the action is without merit, they entered into the settlement to avoid the risk of delaying the merger and to minimize the expense of defending the action. The settlement and dismissal with prejudice was approved by the court in July 2011 and resolved all of the claims that were or could have been brought in the action, including all claims relating to the merger (other than claims for appraisal under Section 262 of Delaware law). In connection with the settlement and dismissal with prejudice, Proginet and its insurer paid plaintiffs' counsel $200,000, the amount approved by the court for fees and expenses in the action. UNITED STATES: Bid for Appeal Bond in Cobell Settlement Tossed -------------------------------------------------------------- Courthouse News Service reports that a federal judge has threatened sanctions against a group of 450,000 Native Americans who claimed to need an $8.3 million bond against the Arizona lawyer appealing their $3.412 billion settlement with the United States. A copy of the Memorandum Opinion in Cobell, et al. v. Salazar, et al., Case No. 96-01285 (D.D.C.), is available at: http://www.courthousenews.com/2011/10/10/IndianSettlement.pdf UNITED STATES: Oct. 18-20 Meetings Set for Keepseagle Settlement ---------------------------------------------------------------- StGeorgeUtah.com reports that as part of the claims-filing process, attorneys appointed by the court will hold meetings around the country to provide assistance to Native American farmers and ranchers who wish to file a claim in the $760 million Keepseagle class action settlement. The settlement resolves a lawsuit claiming the U.S. Department of Agriculture discriminated against Native Americans in farm loan applications and servicing. Over the past six months, Native American farmers and ranchers around the country received information about their legal rights and options by postal mail and through print and radio notices. Class members who want to file a claim for cash and loan forgiveness must file their claims by Dec. 27, 2011. Class members can get free assistance in filing a claim at meetings that will be held around the country this Summer and Fall. There will be meetings in this area in the Dome Room of the Shoshone-Bannock Tribal Building in Fort Hall, ID on October 18 to 20 between 9 a.m. to 5 p.m. Class members who have already registered for a Claims Package will receive a schedule of meetings with that package. The complete schedule of Claims Filing Meetings is also available on the Indian Farm Class Web site or by calling 888-233-5506. The Web site schedule indicates meetings held in Utah and Nevada have already occurred. It does provide meetings yet to take place, Oct. 11, 12 and 13 in Arizona. Consult the Web site for Indian Farm Class Web site for Claims Filing Meetings in other states. Class members wishing to register to receive a Claims Package can do so through the Web site or toll-free number by writing to Keepseagle Settlement Administrator, P. O. Box 3560, Portland, Oregon 97208-3560. VODAFONE: Law Firm Fails to Secure Funding for Class Action ----------------------------------------------------------- Lucy Battersby, writing for The Sydney Morning Herald, reports that a potential class action between Vodafone and 23,000 disgruntled customers has stalled without any legal action taken or funding secured over the past 10 months. Legal firm Piper Alderman's proposed class action added to the negative publicity surrounding Vodafone when it entered a publicity nightmare late last year due to poor network performance and customer care. However, Piper Alderman has failed to secure any funding to take the matter to court, or taken any legal steps towards a class action since it started accepting customer details. Lawyer Sasha Ivanstoff confirmed that about 23,000 people had expressed interest in the case. However, the firm was now looking overseas for litigation funding after failing to find any Australian backers. "We are not at the point where all [funding] avenues have been exhausted and we have still got potential funders looking at it," he said. The law firm would not disclose the amount they were seeking for the class action to go ahead. But in comparison, listed litigation funder IMF has spent between AUD1.4 million to AUD24 million on class action cases, according to its latest annual report. A spokeswoman for Vodafone said the mobile company had not had any contact from Piper Alderman. The company lost about 375,000 customers in the first half of this year largely due to network problems, it revealed in a recent half-year update. Vodafone responded to the problems by apologizing to customers and fast-tracking a planned network upgrade. "In October last year we announced a significant network plan, the delivery of which was accelerated including upgrading the existing 2G and 3G network, adding capacity, building a new 850 megahertz network for smartphones and data, replacing equipment across all network sites with new equipment that is 4G ready, and adding new sites to the existing 3G network," a spokeswoman said. "Plans are on track and this month we completed our 850th installation on our new 850MHz 3G network. The aim of the network improvements is to deliver customers with better indoor coverage, faster downloads and a stronger signal than before." * DRI Supports Certoriari Petition in Kurns v. Railroad Friction ---------------------------------------------------------------- DRI - The Voice of the Defense Bar filed an amicus curiae brief in the United States Supreme Court in the case of Kurns v. Railroad Friction Products Corp. and Viad Corp. (U.S. Supreme Court No. 10- 879). In its brief, DRI reaffirms the importance of maintaining the doctrine of field preemption. The case involves a product liability suit. The plaintiffs are survivors of George Corson-Gloria Kurns and Freida E. Jung Corson. George Corson was a railroad worker who repaired locomotives. Some of the locomotive parts contained asbestos and Mr. Corson contracted an asbestos-related disease and died. Plaintiffs claim that the locomotive parts were defective because they contained asbestos and because defendants allegedly did not warn of the danger from the asbestos. The federal district court and Third Circuit held that the claims were preempted by the Locomotive Inspection Act, 49 U.S.C. section 20701 et seq. The U.S. Solicitor General and the plaintiffs argue that field preemption does not apply to locomotive and locomotive equipment while "off-line" in the repair shop and, in any event, does not extend to protect equipment manufacturers from common law claims. Alternatively, the solicitor general and the plaintiffs argue that failure-to-warn claims are not preempted even if design-defect claims are preempted. DRI is concerned that, if the Supreme Court adopted this distinction, it could effectively eliminate field preemption for many areas of product liability. A preempted design-defect claim could easily be recast as an unpreempted failure-to-warn-of-the-defect claim. DRI is also concerned with the plaintiffs urging the Supreme Court to discard field preemption. Plaintiffs' argument is apparently an attack on field preemption generally, not restricted to the locomotive and locomotive equipment, despite specific Supreme Court precedent from 1926. "If the Supreme Court rejects field preemption for petitioners' claims, other claims currently blocked by field preemption could be revived despite settled expectations by the business community," cautioned Minneapolis attorney Diane B. Bratvold, author of the DRI brief. For these reasons, DRI ? The Voice of the Defense Bar identified this case as one of great importance to the interests of DRI's membership. In supporting the defendants' petition for certiorari, DRI sends a message to the Supreme Court that this case presents an important issue worthy of its review. The DRI brief was authored by Diane B. Bratvold with Briggs and Morgan in Minneapolis. She is vice chair of DRI's Amicus Committee and an appellate lawyer with expertise on a wide range of issues, including constitutional law, employment law and tort liability. The brief is available in its entirety at http://www.dri.org About DRI - The Voice of the Defense Bar DRI - The Voice of the Defense Bar is an international organization of defense attorneys and corporate counsel that is recognized as a thought leader and an advocate for the defense bar at the national and state level, as well as in Europe. With more than 22,000 members, DRI provides members and their clients with access to world-class education, legal resources and numerous marketing and networking opportunities that facilitate career and law firm growth. For more information log on to http://www.dri.org * Michigan Banks, Credit Unions Face Class Actions Over ATM Fees ---------------------------------------------------------------- Brion Doyle at Varnum LLP reports that an increasing number of Michigan banks and credit unions have been named as defendants in class action lawsuits for allegedly failing to post notices of non-customer fees on the exterior of their ATMs -- even when that same notice is provided on the ATM screen. The class action plaintiffs argue that the Electronic Funds Transfer Act (15 U.S.C. Sec. 1963) requires ATM operators to post a sticker or sign with notice of the non-customer transaction fee, including the amount of the fee, on the exterior of the ATM. The class action plaintiffs argue that the exterior notice is required even if the same notice is contained on the ATM screen. Banks and their counsel find this argument (and the technical statutory language that supports this argument) maddening, because in most cases the onscreen notice does not allow the transaction to proceed unless the non-customer agrees to the fee. In almost every case, the same class action plaintiff who is suing a bank for lack of exterior notice on the machine has affirmatively agreed to the fee by pressing a button on the screen of the ATM. Class action counsel in Illinois filed suit for lack of exterior notice in 2005, developing an argument based on a technical reading of the statute. Since that time, a series of cases have been filed in Illinois, Pennsylvania, and California. These cases first appeared in federal court in Michigan in July 2009 and have given ATM operators much reason to be nervous. Class action plaintiffs are now actively seeking ATMs that lack exterior fee stickers in the state of Michigan. At the same time, many ATM operators assumed that their onscreen notice was sufficient to meet the requirements of the Act, in some cases because of guidance from their regulators. The claims have a one-year statute of limitations, so a bank, credit union, or other ATM operator could face liability for the lack of a sticker going back one year prior to the date a lawsuit is filed. Once a suit is filed, defending an EFTA class action claim carries significant risk. Under the Act, the ATM operator may be liable for any actual damage sustained by the plaintiff as well as a penalty of up to $1,000. However, in the case of a class action suit, the ATM operator could be liable for $500,000 or 1% of the net worth of the bank, whichever is less. In addition, a successful plaintiff is entitled to the recovery of costs and attorneys' fees. Given this potential risk, it is no surprise that EFTA class action claims are almost always settled. There are limited defenses available to ATM operators under the Act, and, in certain cases, the named plaintiff may be vulnerable to attack as an inadequate class representative. However, in the dozens and dozens of cases that have been filed, only a handful of defendants have successfully obtained a dismissal. Now that these claims have made their way to Michigan, financial institutions should strongly consider auditing their ATM machines on an annual basis. This audit should include taking pictures of the fee sticker on each machine. In addition, it is important to understand in advance whether insurance coverage will apply to a class action suit for violation of the EFTA for lack of a fee sticker. If coverage is not available, the bank or credit union should consider discussing policy options with their insurer. * U.S. LENDERS: May Face Class Action Over VA Home Loan Fraud ------------------------------------------------------------- Jann Swanson, writing for Mortgage News Daily, reports that three law firms are seeking participants in a class action law suit seeking damages from 13 lenders for alleged fraud against borrowers seeking Veterans Administration (VA) home loans. The suit charges that the lenders charged fees for their loans which were unallowable under VA mortgage rules, an action that technically, according to the suit, invalidated the VA guarantee. The suit, U.S. ex rel, Victor E. Bibby & Brian J. Donnelly v the defendants listed below, was originally filed in 2006 by two "whistleblowers" who were also mortgage brokers. The suit was refiled by the three law firms in the U.S. District Court for the Northern Division of Georgia this past June and is brought as a qui tam lawsuit, a civil proceeding that is used by whistleblowers to help the government stop many kinds of fraud such as Medicare or defense contractor fraud, and recover monies that have been stolen from the U.S. Treasury and taxpayers. In a qui tam suit, a whistleblower can win large rewards representing a portion of the civil recovery. Listed as defendants are Wells Fargo Bank, Bank of America, JPMorgan Chase Bank, GMAC Mortgage, CitiMortgage, Suntrust Mortgage, Washington Mutual Bank, PNC Bank (which acquired National City Mortgage Co.), Countrywide Home Loans, Mortgage Investors Corp., First Tennessee Bank (which acquired First Horizon Home Loan Corp.), Irwin Mortgage Corp. and New Freedom Mortgage Corp. The premise for the suit rests on a VA rule that certain fees typical to a real estate transaction i.e. attorneys' fees or settlement closing fees are not allowed in closing a VA loan for the purpose of refinancing. The defendants allegedly charged these fees but disguised them as allowable fee entries on HUD settlement statements. For example, the lender might charge a settlement fee of $400, but rather than entering that amount on the line provided in the statement where it would be disallowed, it might be bundled into the fee for a title search, increasing what would normally be an allowable $150 charge to $550. The plaintiff's attorneys charge that veterans don't know what the usual and customary charges for those allowable fees are, and the VA relied upon the banks to comply with VA regulations, rather than digging into every loan transaction. "The banks took advantage of that reliance to cheat veterans and taxpayers." According to the court papers, in the last ten years, more than 1.2 million of these refinanced loans have been made to veterans and their families and up to 90% of them may have been affected by the alleged fraud. "By concealing the unallowable fees they charged, the banks benefited in two ways," said Mary Louise Cohen, a Washington, DC, attorney who is also representing the whistleblowers. "The banks collected the illegal fees from veterans, and they obtained hundreds of millions of dollars in loan guarantees they otherwise wouldn't have received." They may have benefitted in a third way as well. If the VA loans were sold to investors, it is probable that the VA guarantee allowed the lender to extract a better price for the loan than would be the case without the guarantee. This type of fraud ultimately cheated taxpayers as well as the borrowers because charging an unallowable fee invalidates the VA guarantee which typically insures about 25% of the loan amount. When the loans containing unallowable fees went into default and foreclosure they cost taxpayers hundreds of millions of dollars in reimbursements to the lender under the guarantee. In response to news of the lawsuit, Senator Sherrod Brown (D-OH), Chairman of the Banking Subcommittee on Financial Institutions and Consumer Protection, has called for action from the VA and the Department of Justice. Mr. Brown said, "No consumer should be forced to pay illegal fees, but it is particularly disgraceful to impose such extraction schemes on our veterans." He asked the agencies to release full information on any internal investigations and responses to the suit. ********* 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 * * *