/raid1/www/Hosts/bankrupt/CAR_Public/111025.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 25, 2011, Vol. 13, No. 211
Headlines
ADT SECURITY: Recalls 20,000 CO 1224T Carbon Monoxide Detectors
AEROPOSTALE INC: Holzer Holzer & Fistel Files Class Action
AMERICAN AIRLINES: Consolidated Antitrust Suit Pending in N.Y.
AMERICAN AIRLINES: Continues to Defend "Turner" Suit in Calif.
APPLE REIT EIGHT: Plaintiffs Amend Complaint in "Kronberg" Suit
APPLE REIT NINE: Plaintiffs Amend Complaint in "Kronberg" Suit
APPLE REIT TEN: Plaintiffs Amend Complaint in "Kronberg" Suit
BRIGHAM EXPLORATION: Being Sold for Too Little, Suit Claims
CNINSURE INC: Holzer Holzer & Fistel Files Class Action
DOUGLAS VALESKA: Sued for Excluding Blacks from Jury Service
EBAY INC: Sued Over "Good 'Til Canceled" Recurring Auction Fees
EPHREN W. TAYLOR: List of Ponzi Scheme Victims Expected to Grow
FACEBOOK INC: Likeness Suits Won't Proceed as MDL
FULL TILT: Faces $900-Mil. Fraud Class Action in California
GLAXOSMITHKLINE: Settles Wellbutrin Class Action for $49 Million
GOV'T OF JAPAN: Faces Class Action Over Military Aircraft Noise
GUIDECRAFT INC: Recalls 760 Twist & Sort Toys Due to Choking Risk
HERSHEY CO: Accused of Not Paying Sales Reps' Overtime Wages
HORIZON HOBBY: Recalls 1,000 Losi NiMH Battery Chargers
HQ SUSTAINABLE: Cohen Milstein Appointed as Lead Counsel
INTUITIVE SURGICAL: Hearing in "Perlmutter" Suit Set for Jan. 2012
LIFEMARQUE: Recalls 50 LittleLife Discoverer Child Carriers
LOS ANGELES TIMES: Disputes Billboard Class Action Accusations
SOTHEBY'S INC: Faces Class Action Over Artwork Resale Royalties
TRAVELERS COS: Awaits Final Okay of Antitrust Suit Settlement
TRAVELERS COS: Oral Argument in Asbestos Suit Appeals on Oct. 26
U.S. EGG PRODUCERS: Price-Fixing Claims Can Proceed, Judge Rules
UNIVERSAL ENSCO: Faces Class Action Over Unpaid Overtime
*********
ADT SECURITY: Recalls 20,000 CO 1224T Carbon Monoxide Detectors
---------------------------------------------------------------
About 20,000 CO 1224T Carbon Monoxide (CO) detectors were
voluntarily recalled by manufacturer, Sensor System, of St.
Charles, Illinois, and distributor, ADT Security Services Inc. of
Boca Raton, Florida, in cooperation with the U.S. Consumer Product
Safety Commission. Consumers should stop using the product
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
When the CO detectors reach the end of their useful life, they
should send a signal to make a sound in the home alarm panel
alerting consumers it is time to replace them and a signal to
ADT's alarm monitoring center. Some of the detectors were not
wired properly to the ADT alarm system, resulting in the sound not
going off in the home alarm panel and no signal to the ADT alarm
monitoring center at the end of its useful life. Not replacing a
CO detector at the end its useful life poses a CO poisoning hazard
to consumers.
No incidents or injuries have been reported.
This recall involves hard-wired carbon monoxide detectors with
model CO 1224T installed by ADT. The model number is behind the
front cover. Picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12701.html
The recalled products were manufactured in China and Mexico and
installed by ADT between October 2008 and December 2010 as part of
home security systems.
Consumers should contact ADT immediately for a free inspection of
the recalled detectors and, if necessary, a free repair.
Consumers should not attempt to disable the recalled detectors.
ADT has contacted all customers. For additional information,
contact ADT toll-free at (800) 238-2727 between 8:00 a.m. and
10:00 p.m. Eastern Time Monday through Friday or visit the
company's Web site at http://www.us.adt.com/
AEROPOSTALE INC: Holzer Holzer & Fistel Files Class Action
----------------------------------------------------------
Holzer Holzer & Fistel, LLC on Oct. 20 disclosed that it has filed
a class action lawsuit in the United States District Court for the
Southern District of New York on behalf of purchasers of
Aeropostale, Inc. common stock who purchased shares between
February 3, 2011 and August 3, 2011, inclusive. The lawsuit
alleges that Aeropostale knew but failed to timely disclose that
it was experiencing declining demand for its women's fashion
division, which accounts for up to 70% of the Company's sales.
The lawsuit further alleges that the Company concealed information
relating to pressure it faced on its profit margins as a result of
increasing inventory and higher discounts on its clothing.
If you purchased Aeropostale common stock during the Class Period,
you have the legal right to petition the Court to be appointed a
"lead plaintiff." A lead plaintiff is a representative party that
acts on behalf of other class members in directing the litigation.
Any such request must satisfy certain criteria and be made no
later than December 12, 2011. Any member of the purported class
may move the Court to serve as lead plaintiff through counsel of
their choice, or may choose to do nothing and remain an absent
class member. If you are an Aeropostale investor and would like
to discuss a potential lead plaintiff appointment, or your rights
and interests with respect to the lawsuit, you may contact Michael
I. Fistel, Jr., Esq., or Marshall P. Dees, Esq. via e-mail at
mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free
telephone at (888) 508-6832.
Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com-- is an
Atlanta, Georgia law firm that dedicates its practice to vigorous
representation of shareholders and investors in litigation
nationwide, including shareholder class action and derivative
litigation.
AMERICAN AIRLINES: Consolidated Antitrust Suit Pending in N.Y.
--------------------------------------------------------------
Forty-five purported class action lawsuits have been filed in the
U.S. against American Airlines, Inc., and certain foreign and
domestic air carriers alleging that the defendants violated U.S.
antitrust laws by illegally conspiring to set prices and
surcharges on cargo shipments. These cases, along with other
purported class action lawsuits in which the Company was not
named, were consolidated in the United States District Court for
the Eastern District of New York as In re Air Cargo Shipping
Services Antitrust Litigation, 06-MD-1775 on June 20, 2006.
Plaintiffs are seeking trebled money damages and injunctive
relief. To facilitate a settlement on a class basis, the Company
agreed to be named in a separate class action complaint, which was
filed on July 26, 2010. The settlement of that complaint, in
which the company does not admit and denies liability, was
approved by the court and final judgment was entered on April 6,
2011. Approximately 40 members of the class have elected to opt
out, thereby preserving their rights to sue the Company
separately. The Company says any adverse judgment could have a
material adverse impact on it.
Canadian Matter
Also, on January 23, 2007, the Company was served with a purported
class action complaint filed against it and certain foreign and
domestic air carriers in the Supreme Court of British Columbia in
Canada (McKay v. Ace Aviation Holdings, et al.). The plaintiff
alleges that the defendants violated Canadian competition laws by
illegally conspiring to set prices and surcharges on cargo
shipments. The complaint seeks compensatory and punitive damages
under Canadian law. On June 22, 2007, the plaintiffs agreed to
dismiss their claims against the Company. The dismissal is
without prejudice and the Company could be brought back into the
litigation at a future date. If litigation is recommenced against
the Company in the Canadian courts, the Company says it will
vigorously defend itself; however, any adverse judgment could have
a material adverse impact on the Company.
No further updates were reported in the Company's October 19,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
AMERICAN AIRLINES: Continues to Defend "Turner" Suit in Calif.
--------------------------------------------------------------
Approximately 52 purported class action lawsuits have been filed
in the U.S. against American Airlines, Inc., and certain foreign
and domestic air carriers alleging that the defendants violated
U.S. antitrust laws by illegally conspiring to set prices and
surcharges for passenger transportation. On October 25, 2006,
these cases, along with other purported class action lawsuits in
which the Company was not named, were consolidated in the United
States District Court for the Northern District of California as
In re International Air Transportation Surcharge Antitrust
Litigation, Civ. No. 06-1793 (the Passenger MDL). On July 9,
2007, the Company was named as a defendant in the Passenger MDL.
On August 25, 2008, the plaintiffs dismissed their claims against
the Company in this action. On March 13, 2008, and March 14,
2008, an additional purported class action complaint, Turner v.
American Airlines, et al., Civ. No. 08-1444 (N.D. Cal.), was filed
against the Company, alleging that the Company violated U.S.
antitrust laws by illegally conspiring to set prices and
surcharges for passenger transportation in Japan and certain
European countries, respectively. The Turner plaintiffs have
failed to perfect service against the Company, and it is unclear
whether they intend to pursue their claims.
In the event that the Turner plaintiffs pursue their claims, the
Company says it will vigorously defend these lawsuits, but any
adverse judgment in these actions could have a material adverse
impact on the Company.
No further updates were reported in the Company's October 19,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
APPLE REIT EIGHT: Plaintiffs Amend Complaint in "Kronberg" Suit
---------------------------------------------------------------
Plaintiffs in the case captioned Kronberg et al. v. David Lerner
Associates Inc., et al., filed an amended class action complaint,
according to Apple REIT Eight, Inc.'s October 19, 2011, Form 8-K
filing with the U.S. Securities and Exchange Commission.
On October 10, 2011, the plaintiffs in Kronberg et al. v. David
Lerner Associates Inc., et al., Case No. 2:11-cv-03558, filed an
amended class action complaint in the United States District Court
for the District of New Jersey, adding new parties and new claims
to the action originally filed on June 20, 2011. The new
plaintiffs are residents of New York, Connecticut, and Florida
alleged to be investors in the Company, Apple REIT Nine, Inc. and
Apple REIT Ten, Inc. The new defendants are directors of these
companies and Apple Suites Realty Group, Inc., Apple Eight
Advisors, Inc., Apple Nine Advisors, Inc., Apple Ten Advisors,
Inc., and Apple Fund Management, LLC. The amended complaint adds
claims on behalf of subclasses of residents of New Jersey, New
York, Connecticut and Florida, in addition to the putative
nationwide class, and no longer includes purchasers of Apple REIT
Six, Inc. and Apple REIT Seven, Inc. The amended complaint
asserts new claims for breach of fiduciary duty and for violation
of the securities laws of the states of New Jersey, Connecticut
and Florida, and seeks certification of the subclasses, monetary
damages including pre- and post-judgment interest, equitable
relief and fees and costs. In addition to the allegations
contained in the original complaint, the amended complaint alleges
that David Lerner Associates, Inc., and the directors breached a
fiduciary duty to the shareholders by failing to disclose material
information about the prior Apple REIT Companies' sources of
distributions and share valuation, that they aided and abetted one
another's breaches, and that the Apple REIT entities and directors
are jointly and severally liable for the acts of David Lerner
Associates, Inc. The amended complaint also asserts that
plaintiffs are entitled to recover under certain state securities
laws.
The Company believes that the claims against it, its officers and
directors and other Apple entities are without merit, and intends
to defend against them vigorously. At this time, the Company says
it cannot reasonably predict the outcome of these proceedings or
an estimate of damages or provide a reasonable estimate of the
possible loss or range of loss due to these proceedings, if any.
APPLE REIT NINE: Plaintiffs Amend Complaint in "Kronberg" Suit
--------------------------------------------------------------
Plaintiffs in the case captioned Kronberg et al. v. David Lerner
Associates Inc., et al., filed an amended class action complaint,
according to Apple REIT Nine, Inc.'s October 19, 2011, Form 8-K
filing with the U.S. Securities and Exchange Commission.
On October 10, 2011, the plaintiffs in Kronberg et al. v. David
Lerner Associates Inc., et al., Case No. 2:11-cv-03558, filed an
amended class action complaint in the United States District Court
for the District of New Jersey, adding new parties and new claims
to the action originally filed on June 20, 2011. The new
plaintiffs are residents of New York, Connecticut, and Florida
alleged to be investors in the Company, Apple REIT Eight, Inc. and
Apple REIT Ten, Inc. The new defendants are directors of these
companies and Apple Suites Realty Group, Inc., Apple Eight
Advisors, Inc., Apple Nine Advisors, Inc., Apple Ten Advisors,
Inc., and Apple Fund Management, LLC. The amended complaint adds
claims on behalf of subclasses of residents of New Jersey, New
York, Connecticut and Florida, in addition to the putative
nationwide class, and no longer includes purchasers of Apple REIT
Six, Inc. and Apple REIT Seven, Inc. The amended complaint
asserts new claims for breach of fiduciary duty and for violation
of the securities laws of the states of New Jersey, Connecticut
and Florida, and seeks certification of the subclasses, monetary
damages including pre- and post-judgment interest, equitable
relief and fees and costs. In addition to the allegations
contained in the original complaint, the amended complaint alleges
that David Lerner Associates, Inc., and the directors breached a
fiduciary duty to the shareholders by failing to disclose material
information about the prior Apple REIT Companies' sources of
distributions and share valuation, that they aided and abetted one
another's breaches, and that the Apple REIT entities and directors
are jointly and severally liable for the acts of David Lerner
Associates, Inc. The amended complaint also asserts that
plaintiffs are entitled to recover under certain state securities
laws.
The Company believes that the claims against it, its officers and
directors and other Apple entities are without merit, and intends
to defend against them vigorously. At this time, the Company says
it cannot reasonably predict the outcome of these proceedings or
an estimate of damages or provide a reasonable estimate of the
possible loss or range of loss due to these proceedings, if any.
APPLE REIT TEN: Plaintiffs Amend Complaint in "Kronberg" Suit
-------------------------------------------------------------
Plaintiffs in the case captioned Kronberg et al. v. David Lerner
Associates Inc., et al., filed an amended class action complaint,
according to Apple REIT Ten, Inc.'s October 19, 2011, Form 8-K
filing with the U.S. Securities and Exchange Commission.
On October 10, 2011, the plaintiffs in Kronberg et al. v. David
Lerner Associates Inc., et al., Case No. 2:11-cv-03558, filed an
amended class action complaint in the United States District Court
for the District of New Jersey, adding new parties and new claims
to the action originally filed on June 20, 2011. The new
plaintiffs are residents of New York, Connecticut, and Florida
alleged to be investors in the Company, Apple REIT Eight, Inc. and
Apple REIT Nine, Inc. The new defendants are directors of these
companies and Apple Suites Realty Group, Inc., Apple Eight
Advisors, Inc., Apple Nine Advisors, Inc., Apple Ten Advisors,
Inc., and Apple Fund Management, LLC. The amended complaint adds
claims on behalf of subclasses of residents of New Jersey, New
York, Connecticut and Florida, in addition to the putative
nationwide class, and no longer includes purchasers of Apple REIT
Six, Inc. and Apple REIT Seven, Inc. The amended complaint
asserts new claims for breach of fiduciary duty and for violation
of the securities laws of the states of New Jersey, Connecticut
and Florida, and seeks certification of the subclasses, monetary
damages including pre- and post-judgment interest, equitable
relief and fees and costs. In addition to the allegations
contained in the original complaint, the amended complaint alleges
that David Lerner Associates, Inc., and the directors breached a
fiduciary duty to the shareholders by failing to disclose material
information about the prior Apple REIT Companies' sources of
distributions and share valuation, that they aided and abetted one
another's breaches, and that the Apple REIT entities and directors
are jointly and severally liable for the acts of David Lerner
Associates, Inc. The amended complaint also asserts that
plaintiffs are entitled to recover under certain state securities
laws.
The Company believes that the claims against it, its officers and
directors and other Apple entities are without merit, and intends
to defend against them vigorously. At this time, the Company says
it cannot reasonably predict the outcome of these proceedings or
an estimate of damages or provide a reasonable estimate of the
possible loss or range of loss due to these proceedings, if any.
BRIGHAM EXPLORATION: Being Sold for Too Little, Suit Claims
-----------------------------------------------------------
Courthouse News Service reports that shareholders say Brigham
Exploration Co. is selling itself too cheaply through an unfair
process to Statoil, for $4.4 billion, or $36.50 a share.
A copy of the Complaint in Duncan v. Brigham Exploration Company,
et al., Case No. D-1-GN-11-003215 (Tex. Dist. Ct., Travis Cty.),
is available at:
http://www.courthousenews.com/2011/10/20/SCA.pdf
The Plaintiff is represented by:
Joe Kendall, Esq.
Daniel Hill, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, LLP
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Telephone: (214) 744-3000
CNINSURE INC: Holzer Holzer & Fistel Files Class Action
-------------------------------------------------------
Holzer Holzer & Fistel, LLC on Oct. 20 disclosed that it has filed
a class action lawsuit in the United States District Court for the
Southern District of New York on behalf of purchasers of CNinsure,
Inc. American Depository Shares who purchased between March 2,
2010 and September 14, 2011, inclusive. The lawsuit alleges that
Defendants failed to disclose adverse information in violation of
federal securities laws. Specifically, the lawsuit alleges that:
(a) the Company was materially overstating its net income by
understating the costs associated with the Company's scorecard
system; (b) the Company failed to account for incentives provided
to the Company's agents as costs since those incentives were
reasonably likely to be tendered at a future date; and (c), as a
result of the foregoing, defendants lacked a reasonable basis for
their positive statements about the Company and its prospects.
If you purchased CNinsure common stock during the Class Period,
you have the legal right to petition the Court to be appointed a
"lead plaintiff." A lead plaintiff is a representative party that
acts on behalf of other class members in directing the litigation.
Any such request must satisfy certain criteria and be made no
later than December 16, 2011. Any member of the purported class
may move the Court to serve as lead plaintiff through counsel of
their choice, or may choose to do nothing and remain an absent
class member. If you are a CNinsure investor and would like to
discuss a potential lead plaintiff appointment, or your rights and
interests with respect to the lawsuit, you may contact Michael I.
Fistel, Jr., Esq., or Marshall P. Dees, Esq. via e-mail at
mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free
telephone at (888) 508-6832.
Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com-- is an
Atlanta, Georgia law firm that dedicates its practice to vigorous
representation of shareholders and investors in litigation
nationwide, including shareholder class action and derivative
litigation.
DOUGLAS VALESKA: Sued for Excluding Blacks from Jury Service
------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
District Attorney Douglas Valeska "for decades" has excluded
blacks from serving on juries in serious felony cases,
"principally capital cases, in Houston County and Henry County,
Alabama."
A copy of the Complaint in Hall, et al. v. Valeska, et al., Case
No. 11-cv-00894 (M.D. Ala.), is available at:
http://www.courthousenews.com/2011/10/20/Capital.pdf
The Plaintiffs are represented by:
Bryan A. Stevenson, Esq.
Angela L. Setzer, Esq.
Alicia A. D'Addario, Esq.
EQUAL JUSTICE INITIATIVE
122 Commerce Street
Montgomery, AL 36104
Telephone: (334) 269-1803
E-mail: bstevenson@eji.org
asetzer@eji.org
adaddario@eji.org
- and -
Gerald S. Hartman, Esq.
DRINKER BIDDLE & REATH LLP
1500 K Street, N.W., Suite 1100
Washington, D.C. 20005-1209
Telephone: (202) 842-8800
- and -
Paul G. Nittoly, Esq.
Lauren D. Godfrey, Esq.
DRINKER BIDDLE & REATH LLP
500 Campus Drive
Florham Park, NJ 07932-1047
Telephone: (973) 549-7180
EBAY INC: Sued Over "Good 'Til Canceled" Recurring Auction Fees
---------------------------------------------------------------
Westlaw Journals reports that online auctioneer eBay has
improperly charged recurring fees to customers who sign up for its
ostensibly flat-rate "Good 'Til Canceled" option, according to a
putative class-action lawsuit filed in a California federal court.
Plaintiff Richard Noll sued the company and its European and
international subsidiaries in the U.S. District Court for the
Northern District of California. The complaint includes claims
for breach of contract, unfair competition, unjust enrichment,
fraud, and violation of California's consumer protection and
false-advertising statutes.
Mr. Noll, who says he used eBay to sell a Sony television in 2010,
seeks to lead a nationwide class of all eBay users who were
improperly charged recurring fees beginning Sept. 16, 2008.
According to its Web site, eBay operates by charging fees to sell
items on its auction site. The basic, mandatory fees consist of
an upfront insertion fee and a final value fee that is only
charged if the item sells.
The site also charges various fees for additional services such as
placing listings higher up on search results, extra item photos,
visibility on its international Web sites, "Buy it Now" auctions,
auctions with reserve prices and so on. Each auction also runs
for a fixed length of time ranging from one to 10 days.
According to the complaint, in September 2008, eBay first
introduced a 30-day auction and, at the same time, a "Good 'Til
Canceled" option that could be renewed monthly for an indefinite
period. The company said this option was available at "no extra
cost," the complaint says.
Despite this, eBay repeatedly charged "Good 'Til Canceled" sellers
all the fees each time they renewed their listings, Mr. Noll says.
At most, they should have been charged a new listing fee with each
renewal and should not have been re-charged for the optional
services, the suit says.
Mr. Noll says this unannounced change was buried in a section of
the company's eBay Motors' Web site titled "The Fine Print." That
site is the company's venue for sales of cars and trucks, auto
parts, motorcycles, and boats.
In addition to class certification, Mr. Noll is seeking
clarification of the "no extra charge" language, as well as
damages, costs, injunctive relief and attorney fees.
U.S. District Judge Paul Singh Grewal is slated to hear the case.
Noll v. eBay Inc. et al., No. 11-CV-04585-PSG, complaint filed
(N.D. Cal., San Jose Div. Sept. 15, 2011).
EPHREN W. TAYLOR: List of Ponzi Scheme Victims Expected to Grow
---------------------------------------------------------------
A class action lawsuit alleges that Ephren W. Taylor II, famous
for becoming "America's youngest African American CEO of a public
company," was in reality the ringleader of a series of cynical
Ponzi schemes that stole tens of millions of dollars from hard-
working churchgoers. Mr. Taylor was prominently featured in media
outlets including NPR, Fox, ABC, CNN, Forbes and others, and was
apparently tapped to create and manage a $1 million endowment fund
for rapper Snoop Dogg's Youth Football League.
The lawsuit, filed this month in the U.S. District Court for the
Eastern District of North Carolina, accuses Mr. Taylor and other
individuals and financial institutions who allegedly helped him
perpetrate his Ponzi schemes with wire fraud, interstate
transportation of stolen property, money laundering, racketeering,
violations of the RICO Act and a number of other serious
violations.
"Today is the first step in achieving justice for hundreds of
victims whose tens of millions were supposed to go toward
'socially conscious' investments, but instead enriched Ephren
Taylor and his cohorts," said Cathy J. Lerman, Founder of Cathy
Jackson Lerman, PA, which filed the class action suit along with
co-counsel Jim Gitkin, principal of Salpeter Gitkin, LLP in Fort
Lauderdale, and David Schiller, principal of the Schiller &
Schiller law firm in Raleigh, North Carolina who serves as local
counsel. "This self-described minister who targeted and bilked
hard-working, devout minorities for his own financial gain must be
brought to justice."
The class action lawsuit, available at http://www.lermanfirm.com
is 100-plus pages, and contains several hundred additional pages
of exhibit files detailing alleged misdeeds by Mr. Taylor and
various companies he led and with whom he worked. The list of
Mr. Taylor's victims is expected to grow into the hundreds with
the total Ponzi scheme losses reaching tens of millions of
dollars.
Victims of Mr. Taylor's alleged crimes include devout Christians
whose clergy invited Mr. Taylor into their houses of worship to
deliver sermons and financial seminars, and who lost their life
savings after being solicited from the pulpit. Mr. Taylor has
refused public entreaties to return victims' money, some of which
went toward gaming devices that were installed without permits in
several states and subsequently shut down by police as illegal
gambling operations.
FACEBOOK INC: Likeness Suits Won't Proceed as MDL
-------------------------------------------------
Steve Korris, writing for The Madison St. Clair Record, reports
that California lawyers who set out to compete against Stephen
Tillery of St. Louis for leadership of a class action against
Facebook have joined Mr. Tillery's team.
Mark Tamblyn and Ian Barlow, of Wexler Wallace in Sacramento,
entered their appearances in Mr. Tillery's case at federal court
in East St. Louis on Oct. 7 and Oct. 12.
Mr. Tillery filed suit in June, on behalf of two mothers alleging
Facebook uses names and likenesses of minors without consent of
their parents.
Messrs. Tamblyn and Barlow filed a similar suit for a New Jersey
father at federal court in San Francisco in July, but voluntarily
dismissed it in August.
Two class actions against Facebook remain pending at federal court
in San Francisco.
Facebook sought to consolidate Mr. Tillery's case with those at
San Francisco, but the U.S. Judicial Panel on Multi District
Litigation denied consolidation on Oct. 13.
Los Angeles lawyers started the litigation last November, on
behalf of adults alleging Facebook misappropriated names and
likenesses through its Friend Finder service.
Facebook moved to dismiss the complaint, arguing it alleged no
injury.
District Judge Richard Seeborg dismissed it in June but granted
leave to amend it, telling lawyers they must at a minimum allege
mental anguish.
They amended the complaint in July, and Facebook lawyer Matthew
Brown of San Francisco moved to dismiss it in August.
"Plaintiffs do not allege any hurt feelings or other actual
injury," he wrote.
"Nor do they allege that the right to use their names or
likenesses has any readily ascertainable value or was impaired in
any way," he wrote.
Jay Spillane and Eric Carlson, of Spillane Weingarten in Los
Angeles, answered that they adequately pleaded violation of rights
of publicity.
"The tort in question, originally conceived as an aspect of the
multi faceted law of privacy, over time also became known as a
right of publicity, wherein name and likeness is seen as a form of
property, misappropriation of which results in economic loss,"
they wrote on Aug. 23.
"The right of publicity is available to all, celebrity and non
celebrity alike, each of whom may plead economic loss, regardless
of whether mental anguish is also alleged," they wrote.
They wrote that they pleaded that a property right having value
was taken.
"Plaintiffs should be given an opportunity to adduce evidence of
such value," they wrote.
Mr. Brown replied in September that they squandered an opportunity
to fix the complaint and presented what was, in reality, a motion
for reconsideration.
He wrote that they alleged no economic injury and no emotional
harm.
"Plaintiffs' plea for discovery is a tacit acknowledgement that
the first amended complaint fails to adequately allege injury and
does not state a claim for relief," Mr. Brown wrote.
Judge Seeborg held a hearing on Sept. 15, and took it under
submission.
Two weeks later, District Judge Lucy Koh held a hearing and took
under submission a motion to dismiss a suit San Francisco and
Sacramento lawyers filed in March.
The suit alleges misappropriation through Facebook's Sponsored
Stories service.
The complaint stated, "Sponsored Stories is a deceptive phrase;
Sponsored Stories are neither sponsored in the sense that a
benefit is being conveyed free of charge, nor are they stories in
the customary sense of the word."
In response, Facebook invoked constitutional protection of free
speech.
"Plaintiffs' claim puts at issue the right of users to communicate
with their friends, and Facebook's right to republish content in
which users' friends have a legitimate interest," Mr. Brown wrote.
"Plaintiffs also have not alleged that they lost any money or
property, nor could they because Facebook is, and always has been,
a free service."
Facebook also raised a free speech defense in the Illinois case,
and Mr. Tillery associate Aaron Zigler disputed it.
"Facebook is simply incorrect in claiming that through its use of
names and likenesses, Facebook is simply republishing the
plaintiffs' statements," he wrote in September.
"When Facebook takes that user information and turns it into a
predesigned marketing tool to sell to the highest bidder, it is
not simply assisting children in expressing themselves," he wrote.
District Judge Patrick Murphy has not set a hearing.
He presides over Mr. Tillery's case while his wife, Patricia
Murphy of Energy, teams with Mr. Tillery in a lawsuit over weed
killer atrazine before District Judge Phil Gilbert.
District Judge Lucy Koh held a hearing on Sept. 29, on a motion to
dismiss the Sponsored Stories action.
Action in all three cases slowed while multi district judges
considered consolidation.
They denied it, finding that "centralization does not appear
necessary, given the limited overlap among the three putative
classes."
FULL TILT: Faces $900-Mil. Fraud Class Action in California
-----------------------------------------------------------
Tiffany Hsu, writing for Los Angeles Times, reports that the poker
Web site that federal prosecutors last month called a "global
Ponzi scheme" now faces a class-action complaint seeking $900
million in damages.
The newest suit, filed in federal court in California last week,
accuses Full Tilt Poker of fraud, unjust enrichment, "a pattern of
racketeering," "brazen money-laundering" and more.
Los Angeles residents Lary Kennedy and Greg Omotoy named a slew of
defendants, including Full Tilt Chief Executive Raymond Bitar and
board members Howard Lederer and Christopher Ferguson.
Also included: poker celebrities such as Phil Ivey and Gus Hansen,
whom the complaint said helped promote the Web site and attract
players.
The allegations resemble many of the ones made in an amended civil
lawsuit filed by federal prosecutors last month against Full Tilt.
Soon after, Mr. Ferguson's lawyer, Ian Imrich, said in a statement
that "under any reasonable interpretation, the worldwide
operations of the online card room are not a so-called Ponzi
scheme."
Mr. Imrich is among the defendants named in last week's complaint,
which alleges that Full Tilt misappropriated funds from player
accounts and fed it to the defendants. The site also illegally
deducted "rakes" -- a small fraction of each winner's pot --
according to the complaint.
Full Tilt "did not create financial reserves for amounts held on
behalf of players, but instead distributed the money for
operational expenses, marketing expenses, fees and losses arising
from money laundering . . . and massive distributions to the
individual defendants," the complaint says.
If the suit reaches class-action status, it could include
thousands of people across the country, according to the
complaint. While the site owes Mr. Omotoy $10, it is $120,000 in
debt to Mr. Kennedy, the suit alleges.
GLAXOSMITHKLINE: Settles Wellbutrin Class Action for $49 Million
----------------------------------------------------------------
Zack Needles, writing for The Legal Intelligencer, reports that
GlaxoSmithKline has reached a $49 million settlement agreement
with a class of direct purchasers who accused the drug maker of
bringing "sham" patent litigation against manufacturers of generic
versions of its popular antidepressant Wellbutrin SR in an attempt
to prolong its monopoly on the market.
The plaintiffs filed a motion for final approval of the settlement
on Oct. 14, about four-and-a-half months after the parties reached
an agreement during mediation.
According to the approval motion, the settlement calls for GSK to
pay class members $49 million in cash, "less taxes and attorney
fees, costs and class representative awards that this court may
grant."
The motion said the settlement also requires GSK to pay up to
$500,000 toward the costs of notifying the class and administering
the settlement.
Payments to the class members will be made in accordance with
their purchases of Wellbutrin SR during the class period, the
motion said. Judge Lawrence Stengel will hear final arguments on
the fairness of the deal at a hearing scheduled for Nov. 21.
Speaking to The Legal on Oct. 18, lead plaintiffs lawyer Joseph F.
Roda of Lancaster-based Roda Nast called the settlement "an
excellent result" that spares the parties on both sides from the
continuation of what has already been difficult litigation.
"This was an extremely hard-fought case for seven years," Mr. Roda
said. "It raised a number of legal issues that would have had to
be worked out at the trial level and possibly at the appellate
level."
In re Wellbutrin Antitrust Litigation , according to the approval
motion, began in 2004 when the plaintiffs, led by SAJ Distributors
Inc., Stephen L. LaFrance Holdings Inc., Meijer Inc. and Meijer
Distribution Inc. filed a class action in the U.S. District Court
for the Eastern District of Pennsylvania alleging GSK had violated
the Sherman Antitrust Act by filing "baseless" patent suits
against manufacturers of generic versions of the sustained release
form of its popular antidepressant Wellbutrin SR.
The class alleged GSK had done so in an attempt to hinder rival
manufacturers from entering the market with a generic competitor
to Wellbutrin SR and that, during that time period, purchasers
paid more for the drug than they would have if the generic
versions had been available, according to the motion.
The class, in its motion, called the litigation "complex and
difficult," particularly because GSK had filed its patent
infringement suits during a time when the Federal Circuit Court of
Appeals and the Supreme Court were mulling the patent law
doctrines of equivalents, prosecution history estoppel and clear
and unmistakable surrender, often interpreting them differently.
The class said in its motion that discovery had also been impeded
by GSK's refusal to hand over "thousands of documents," citing the
attorney-client privilege and work product doctrine.
According to the motion, the parties in the case tried and failed
to reach an agreement during a day-long private mediation session
with Boston University Law School professor Eric D. Green in
April.
The parties reconvened in June for another mediation session with
Prof. Green and were able to reach a settlement, about three weeks
before the scheduled June 27 trial date, according to the motion.
A settlement agreement was executed and preliminarily approved by
the court in August, the motion said.
According to a footnote in the motion, the settlement agreement,
if approved, would also allow class counsel to seek reimbursement
of attorney fees of up to one-third of the total $49 million
settlement fund along with awards of $25,000 each to SAJ and
Meijer for their roles as class representatives. That money would
be deducted from the $49 million settlement fund.
According to the motion, the settlement has "saved substantial
time and expense" both sides might have potentially incurred in
the case.
Mr. Roda told The Legal on Oct. 18 that because the case had been
fought so aggressively for so long, both sides, as well as the
court, had a "very full and fair appreciation" for the issues and
risks they would have had to contend with if the litigation were
allowed to drag on.
According to the approval motion, one of the riskiest endeavors
for the plaintiffs would have been attempting to establish
liability by proving GSK's patent infringement suits had been both
baseless and filed with the intent to stall competitors, which
"would have been anything but a sure bet."
"Were GSK to break just one link in the chain of elements that
plaintiffs had to prove, plaintiffs would not have made their
case," the class said in its motion.
At the time the settlement was reached, according to the approval
motion, GSK also had a pending motion seeking to bifurcate the
trial so that the issue of monopoly power would have been argued
first.
"Had the court granted that motion, this would not have ended
plaintiffs' case, but it would have forced plaintiffs to present
their case to the jury both in a sequence contrary to their
choosing and without the benefit of presenting all of the relevant
evidence in a single phase of trial," the class said in its
motion.
And even if it did obtain a jury verdict, the class admitted in
its motion, it still would have faced the possibility of having it
overturned on appeal.
"In short, although the amount of the settlement may cast some
doubt on GSK's defenses to liability, the risks that plaintiffs
faced were both multifold and formidable, and this factor, too,
weighs in favor of settlement," the class said.
GSK's attorney, David P. Gersch of Arnold & Porter in Washington,
D.C., could not be reached for comment.
GSK spokeswoman Mary Anne Rhyne said in a prepared statement, "We
believe we had strong legal defenses in the case but we're pleased
to reach an agreement with the plaintiffs and to put the case
behind us."
The proposed settlement would not affect a related consumer class
action. Nor would it affect a separate class action, certified in
2009, alleging that GSK colluded with Biovail Corp., a Canadian
pharmaceutical company, to drive up the price of a different
version of Wellbutrin.
GOV'T OF JAPAN: Faces Class Action Over Military Aircraft Noise
---------------------------------------------------------------
Chiyomi Sumida, writing for Stars and Stripes, reports that local
residents testified in a Japanese courtroom on Oct. 20 about
disruptions caused by U.S. military aircraft as part of the
opening hearing in a class-action lawsuit over noise from Kadena
Air Base.
More than 22,000 plaintiffs, including about one-third of the
population of a town that borders the air base, are suing the
Japanese government for a nighttime ban on military flights and
are asking for $544 million in compensation for physical and
mental damages they argue were caused by the roar of fighter jets
and other aircraft flying from Kadena.
It is the third time Okinawans have sued over aircraft noise at
the Air Force base, the largest in the region. In the past two
cases, Japan's Supreme Court refused to restrict air operations at
night but gave compensation payments to the residents, noting that
the noise was beyond permissible levels in some cases.
On Oct. 20, seven residents took the stand as witnesses before a
three-judge panel.
During school, "classes are suspended each time [a U.S. aircraft
flies over] and we just wait until the jet goes away. It happens
at least three to four times during a class," said Himeka
Matayoshi, 17, a high school student who lives in Kadena Town,
which borders the air base. "It is very stressful for both
teachers and students. And I now know that it is not normal."
In a written brief to the court, the Japanese government said the
class-action suit should be dismissed because it has no power to
restrict U.S. military flight operations according to an
international treaty with the United States.
Kadena Air Base officials said on Oct. 20 they would not comment
on a lawsuit between Japanese residents and the Japanese
government.
The U.S. and Japan did agree to move some training scheduled at
the air base this month to Guam in an attempt to cut back on the
noise and have said more moves will occur in the future.
Meanwhile, Takahiro Nakanishi, one of the residents' lawyers, told
the court that it should not rule out the demand on a nighttime
flight ban despite court decisions in the past.
"The Japanese government is never a third party who has no control
over the noise," he said.
"It is the Japanese government who allows stationing of US
military on Japanese soil. Under the mutual security treaty, how
on earth does Japan, as a sovereign nation, not have a say in the
military operations?"
The next hearing in the class-action suit is scheduled for
Jan. 19.
GUIDECRAFT INC: Recalls 760 Twist & Sort Toys Due to Choking Risk
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Guidecraft Inc., of Winthrop, Minnesota, announced a voluntary
recall of about 760 Twist and Sort Toys. Consumers should stop
using recalled products immediately unless otherwise instructed.
It is illegal to resell or attempt to resell a recalled consumer
product.
The small pegs on three of the four posts can detach, posing a
choking hazard to young children.
No incidents or injuries have been reported.
This recall involves Twist 'n Sort wooden toys. The toy has a
square base, four posts and twelve primary-colored game pieces
that can be arranged to fit over the posts. Product number "712"
is printed on underside of base. Picture of the recalled products
is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12014.html
The recalled products were manufactured in China and sold at
specialty toy stores and gift shops nationwide, catalogs and
online from September 2009 through November 2010 for about $20.
Consumers should immediately take the recalled toys from children
and contact Guidecraft to receive a replacement or another product
of equal value. For additional information, contact Guidecraft
toll-free at (888) 824-1308 between 9:00 a.m. and 4:30 p.m.
Eastern Time Monday through Friday, or visit the firm's Web site
at http://www.guidecraft.com/
HERSHEY CO: Accused of Not Paying Sales Reps' Overtime Wages
------------------------------------------------------------
Ryan Zulewski, John Davis, Alex Langan, Nicholas Esposito, Brandon
Turner, Sharrell Fisher, Jay Cook, Markessa Carter, Rachel
Eckroth, Christina Tyson, Shane Huey, Dominick Ippolito on their
own behalf and on behalf of all others similarly situated v. The
Hershey Company, Case No. 3:11-cv-05117 (N.D. Calif., October 19,
2011) seeks injunctive, declaratory and monetary relief from
Hershey's alleged massive, long-term violations of the Plaintiffs'
and other retail sales representatives' federally and state law
protected right to receive compensation for hours worked in excess
of 40 hours per week.
The Plaintiffs allege that though Hershey's executives annually
pocket tens of millions of dollars in compensation and benefits,
Hershey has at the same time refused to honor its legal obligation
to comply with federal and state overtime pay and other wage laws,
systemically depriving hundreds of past and present workers of
sorely needed compensation for any and all time they were demanded
to work over forty hours per week.
All of the Plaintiffs, except for Ms. Eckroth, are former retail
sales representatives ("RSR") employed by Hershey. Ms. Eckroth is
a current RSR employed by Hershey.
Hershey, a Delaware corporation with its principal place of
business in Pennsylvania, is a multi-national producer of
chocolate and non-chocolate confectionary products. Hershey's
operations include the manufacturing, marketing and sales of these
products.
The Plaintiffs are represented by:
Thomas J. Brandi, Esq.
Brian J. Malloy, Esq.
THE BRANDI LAW FIRM
354 Pine Street, Third Floor
San Francisco, CA 94104
Telephone: (415) 989-1800
Facsimile: (415) 707-2024
E-mail: tjb@brandilaw.com
- and -
DAVID C. FEOLA, Esq.
HOBAN & FEOLA, LLC
1626 Wazee Street, Suite 2A
Denver, CO 80202
Telephone: (303) 674-7000, Ext. 2
Facsimile: (303) 382-4685
E-mail: David@Feolalaw.com
HORIZON HOBBY: Recalls 1,000 Losi NiMH Battery Chargers
-------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Horizon Hobby Inc., of Champaign, Illinois,
announced a voluntary recall of about 975 units of Losi NiMH
Start-Up Combo Charger in the United States of America and 25 in
Canada. Consumers should stop using recalled products immediately
unless otherwise instructed. It is illegal to resell or attempt
to resell a recalled consumer product.
The charger and battery can emit excessive heat, posing a burn and
fire hazard.
Horizon Hobby has received eight reports of the batteries emitting
excessive heat. No injuries have been reported.
The Losi NiMH Start-Up Combo Charger is black, measures 4" x 2"
and has model number LOSB9904. The model number is printed on the
back of the product's packaging with the bar code. A Losi logo
sticker is on the front of the charger, along with another sticker
bearing the instruction: "Use only with 7.2V NiMH Batteries
1500mAh or higher." On the back of the charger is a sticker with
voltage and current ratings for input (100-240VAC, 1.0A) and
output (8.5V, 3A) along with another Losi logo.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12015.html
The recalled products were manufactured in China, and sold at
hobby stores nationwide. The battery chargers were also given
away for free or for a small charge with a purchase, depending on
the retailer, from January 2011 to March 2011.
Consumers should immediately stop using this product and contact
Horizon Hobby for a refund of the retail value. For additional
information, contact Horizon Hobby toll-free at (877) 504-0233
between 8:00 a.m. and 7:00 p.m. Central Time Monday through
Friday, between 8:00 a.m. and 5:00 p.m. Central Time Saturday and
between 12:00 p.m. and 5:00 p.m. Sunday or visit the Web site at
http://www.horizonhobby.com/losicombo/
HQ SUSTAINABLE: Cohen Milstein Appointed as Lead Counsel
--------------------------------------------------------
Judge Robert S. Lasnik has appointed Cohen Milstein Sellers & Toll
PLLC as Lead Counsel on behalf of all purchasers of the common
stock of HQ Sustainable Maritime Industries, Inc. between
May 11, 2009, and April 1, 2011, inclusive. The lawsuit is
pending in the U.S. District Court for the Western District of
Washington and alleges that HQ Sustainable Maritime Industries,
Inc. and certain of its officers and directors made false or
misleading statements and/or omissions in violation of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934. Cohen
Milstein is investigating whether the Company and certain of its
officers and directors also violated the Securities Act of 1933 in
connection with Secondary Offerings that were issued on or about
June 11, 2009 and/or August 10, 2010. Cohen Milstein encourages
any purchaser of HQS stock in connection with the Company's
secondary offerings or former employees with information
concerning those offerings to contact the firm.
HQS produces and processes aquatic products and is headquartered
in Seattle, Washington with operations in China. The complaint
alleges that Defendants misrepresented and/or failed to disclose
that: (1) a substantial portion of the Company's revenues were
overstated; (2) HQS' financial statements were materially false or
misleading and not prepared in accordance with GAAP; (3) HQS had
material deficiencies in its system of internal control over its
financial reporting; and (4) in light of the foregoing, Defendants
lacked a reasonable basis for their positive statements about the
Company, its prospects and growth.
On March 16, 2011, HQS announced that it would be unable to timely
file its 2010 Form 10-K, citing "delays in compiling information
for the preparation of the financial statements." The Company
assured investors that it expected to file its annual report by
April 1. Despite that assurance, on April 1 HQS announced that it
would not be able to file its 2010 Form 10-K "because the audit of
the Company's financial statements has not been completed due to
difficulties and delays in obtaining and verifying certain
information." Trading in HQS shares was suspended on April 1 and
the shares last traded at $2.78.
On April 6, Andrew Intrater, the Chairman of HQS' Audit Committee,
abruptly resigned, explaining in a letter to defendant Norbert
Sporns, Chief Executive Officer and President of HQS, that
Intrater was "compelled by conscience" to do so because of the
"delay and resistance" the Audit Committee encountered from Sporns
and other members of management in its efforts to verify
"information relating to the company's accounts and customer
positions." The following day, HQS reported that it had been
notified by NYSE Amex that, as a result of Intrater's resignation,
HQS was no longer in compliance with listing standards which
required the Company to have a majority of independent directors
and at least three independent directors on its Audit Committee.
If you are a HQS shareholder and would like to discuss your right
to recover for your economic loss, you may, without any cost or
obligation, call Cohen Milstein's Managing Partner, Steven J. Toll
at (888) 240-0775 or (202) 408-4600, or e-mail him at
stoll@cohenmilstein.com
Cohen Milstein Sellers & Toll PLLC -- http://www.cohenmilstein.com
-- has significant experience in prosecuting investor class
actions and actions involving securities fraud. The firm has
offices in Washington, D.C., New York, Philadelphia, and Chicago,
and is active in major litigation pending in federal and state
courts throughout the nation.
Contact:
Steven J. Toll, Managing Partner
Cohen Milstein Sellers & Toll PLLC
Telephone: 888-240-0775
202-408-4600
E-mail: stoll@cohenmilstein.com
INTUITIVE SURGICAL: Hearing in "Perlmutter" Suit Set for Jan. 2012
------------------------------------------------------------------
A hearing on Intuitive Surgical, Inc.'s motion to dismiss the
amended complaint in the "Perlmutter" lawsuit will be held in
January 2012, according to the Company's October 19, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011.
On August 6, 2010, a purported class action lawsuit entitled
Perlmutter v. Intuitive Surgical et al., No. CV10-3451, was filed
against the Company and seven of its current and former officers
and directors in the United States District Court for the Northern
District of California. The lawsuit seeks unspecified damages on
behalf of a putative class of persons who purchased or otherwise
acquired the Company's common stock between February 1, 2008, and
January 7, 2009. The complaint alleges that the defendants
violated federal securities laws by making allegedly false and
misleading statements and omitting certain material facts in the
Company's filings with the Securities and Exchange Commission. On
February 15, 2011, the Police Retirement System of St. Louis was
appointed Lead Plaintiff in the case pursuant to the Private
Securities Litigation Reform Act of 1995. An amended complaint
was filed on April 15, 2011, making allegations substantially
similar to the allegations in the Perlmutter lawsuit. On May 23,
2011, the Company filed a motion to dismiss the amended complaint.
On August 10, 2011, that motion was granted and the action was
dismissed; the plaintiffs were given 30 days to file an amended
complaint.
On September 12, 2011, plaintiffs filed their amended complaint.
The allegations contained therein are substantially similar to the
allegations in the prior complaint. The Company filed a motion to
dismiss the amended complaint. A hearing on that motion will not
occur until January 2012.
LIFEMARQUE: Recalls 50 LittleLife Discoverer Child Carriers
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with manufacturer, Lifemarque, of United Kingdom, and
importer, Rock Gear, of Canada, announced a voluntary recall of
about 40 units of LittleLife Discoverer Child Carriers in the
United States of America and 10 units in Canada. Consumers should
stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The carriers were sold without bolts that attach the carrier's
main frame to the metal stand. Missing bolts cause the carrier to
disconnect from the stand and fall backwards, posing a fall hazard
to a child in the carrier.
No incidents or injuries have been reported.
This recall involves LittleLife Discoverer child carriers.
"LittleLife" is printed on the back of the carriers. Number
LS55060 is printed on a tab sewn underneath the care label. The
carriers are green and gray with a black metal frame at the back
with a folding leg bracket to enable the carriers to stand.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12013.html
The recalled products were manufactured in Vietnam and sold at
outdoor stores nationwide, Champaign Surplus in Champaign,
Illinois, Skinny Skis in Jackson, Wyoming, Base Camp stores in
Montana, and online at www.amazon.com, www.skinnyskis.com,
www.thebasecamp.com, and www.MadAthlete.com from January 2011
through July 2011 for about $200.
Consumers should immediately stop using the carriers and check to
make sure there are two bolts on each side where the carrier's
main frame attaches to the metal stand. If the bolts are missing,
contact LittleLife for a free replacement product. For additional
information, contact the firm toll-free at (877) 922-5462 between
12:00 p.m. and 7:00 p.m. Eastern Time Monday through Friday, e-
mail the firm at customer.services@littlelife.co.uk or visit the
firm's Web site at http://www.littlelife.com/
LOS ANGELES TIMES: Disputes Billboard Class Action Accusations
--------------------------------------------------------------
Stuart Pfeifer, writing for Los Angeles Times, reports that
billboards have been placed along Southern California freeways,
apparently seeking plaintiffs for a lawsuit against the Los
Angeles Times.
Under the heading, "Class Action Lawsuit," the billboards urge
motorists to contact San Diego lawyer Jeffrey Krinsk if they
believe they were "Illegaly [sic] wire-tapped by the LA Times" or
to "Report LA Times Fraud."
Mr. Krinsk, who did not immediately respond to a request for
comment, represents Robert Silverman in a Los Angeles County
Superior Court lawsuit against Times' columnist, Michael Hiltzik.
The lawsuit accuses Mr. Hiltzik of secretly recording telephone
conversations he had with Mr. Silverman, an attorney who
represents 1-800-GET-THIN, a company that markets Lap-Band weight-
loss surgery.
Mr. Hiltzik did not record any conversations with Mr. Silverman,
Times spokeswoman Nancy Sullivan said in a statement. Notably,
the class action does not allege either wiretapping or fraud, as
suggested by the billboards, Ms. Sullivan said.
The Times has published a series of articles and columns detailing
the deaths of five patients after having Lap-Band surgery at
centers affiliated with 1-800-GET-THIN.
Mr. Silverman has represented 1-800-GET-THIN and two of the people
behind the campaign, Michael and Julian Omidi, in three lawsuits
against The Times and its journalists. All three lawsuits were
dismissed. The Omidis were ordered to pay The Times legal
expenses in two of the cases.
They have filed appeals in all three cases.
"It is just another baseless lawsuit filed by the people behind
the 1-800-GET-THIN marketing campaign in an attempt to deter
further reporting by The Times," Ms. Sullivan said. "Numerous
related lawsuits that they filed against The Times and its
employees have been thrown out of court. We are confident that
this latest, equally meritless lawsuit also will be thrown out."
SOTHEBY'S INC: Faces Class Action Over Artwork Resale Royalties
---------------------------------------------------------------
Iulia Filip at Courthouse News Service reports that in three
federal class actions, Chuck Close and other artists accuse New
York-based Sotheby's and Christie's, and Internet auctioneer eBay,
of "willful and systematic violation" of their obligation to pay
royalties on artworks sold in California or at auction by
California residents. The artists say the auctioneers
"affirmatively engaged in a pattern of conduct intended to
conceal" the sales, and the money due to the artists.
Close, of New York, L.A. artist Laddie John Dill and the estate of
L.A. sculptor Robert Graham claim the auction houses and eBay
violated the California Resale Royalties Act of 1977, which
entitles visual artists or their estates to 5% of the proceeds
from resale of their artwork in California or out of state by a
California resident.
The law, which defines fine art as "an original painting,
sculpture, or drawing, or an original work of art in glass,"
applies to works by artists who are alive or who have been dead
for less than 20 years.
The foundation of California painter Sam Francis, who died in
1994, is a plaintiff in the lawsuits against Christie's and eBay.
The artists say the defendants sold their artwork at California
auctions and on behalf of California sellers, but failed to
withhold royalties due.
The virtually identical complaints state: "Under California's
Resale Royalties Act (section 986 of California's Civil Code) (the
'act'), Sotheby's was required to withhold at the time of the
auction or sale, and then pay to the artist (or agent or estate
thereof) within 90 days, five percent of the amount of such sales
(herein, the 'royalty'). More specifically, the act obligated
Sotheby's to remit the royalty when it sold the fine art 'at an
auction' and/or when otherwise serving as the 'seller's agent.'
"Sotheby's failed and refused to pay the royalty owed to the
plaintiffs and class members, and also failed and refused to
apprise plaintiffs and class members when a fine art sale occurred
that would entitle class members to the royalty due. (Nor did
Sotheby's, as required by the act -- where 'unable to locate and
pay the artist within 90 days' -- transfer the amount of the
royalty to California's Art Council, for deposit 'in an account in
the Special Deposit Fund in the State Treasury.')"
The artists say Christie's and eBay engaged in similar practices
to conceal auctions and sales that entitled them to royalties.
"Worse still, Sotheby's [/Christie's] affirmatively engaged in a
pattern of conduct intended to conceal from plaintiffs and class
members those circumstances in which a fine art sale -- because it
involved a California resident seller, or because the sale took
place in California -- entitled plaintiffs and class members to a
royalty," according to the complaints against the auction houses.
"Sotheby's [/Christie's] custom and practice is to conceal the
fact of a seller's California residency, or the fact that a sale
took place in California, from communications with the public
concerning auctions and sales of fine art. By way of several
examples Sotheby's [/Christie's] auction catalogs generally
conceal from the reader the state of residency of a seller of fine
arts, and Sotheby's [/Christie's] will refuse -- upon inquiry --
to reveal said information. None of these practices is necessary
to maintain the anonymity of a seller of fine art, since Sotheby's
[/Christie's] could -- but refuse to -- identify the state of
residency (and not the identity) of a fine art seller, or could
otherwise denote by the inclusion of a symbol in their catalog
materials . . . that the lot is one for which the artist will be
entitled to the royalty due under California law. Similarly,
Sotheby's [/Christie's] conceal information from the public that
would enable a reader to learn whether a non-auction sale of fine
art took place in California."
Mr. Close and his co-plaintiffs claim to represent hundreds of
artists and artists' estates whose work was sold by California
residents or at auctions organized by the defendants in
California, and who have not received royalties.
They seek class certification, royalties, compensatory and
punitive damages for violations of California's Resale Royalties
Act and California's Unfair Competition Law, and they want the
defendants to pay royalties on all future California artwork
sales.
A copy of the Complaint in Estate of Robert Graham, et al. v.
Sotheby's, Inc., Case No. 11-cv-08604 (C.D. Calif.), is available
at:
http://www.courthousenews.com/2011/10/20/Sothebys.pdf
The Plaintiffs are represented by:
Eric M. George, Esq.
Michael A. Bowse, Esq.
Ira Bibbero, Esq.
Peter Shimamoto, Esq.
BROWNE GEORGE ROSS LLP
2121 Avenue of the Stars, Suite 2400
Los Angeles, CA 90067
Telephone: (310) 274-7100
E-mail: egeorge@bgrfirm.com
mbowse@bgrfirm.com
ibibbero@bgrfirm.com
pshimamoto@bgrfirm.com
TRAVELERS COS: Awaits Final Okay of Antitrust Suit Settlement
-------------------------------------------------------------
The Travelers Companies, Inc., is awaiting final court approval of
its settlement resolving a consolidated antitrust class action
lawsuit, according to the Company's October 19, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2011.
In 2005, four putative class action lawsuits were brought against
a number of insurance brokers and insurers, including the Company,
by plaintiffs who allegedly purchased insurance products through
one or more of the defendant brokers. The plaintiffs alleged that
various insurance brokers conspired with each other and with
various insurers, including the Company, to artificially inflate
premiums, allocate brokerage customers and rig bids for insurance
products offered to those customers. To the extent they were not
originally filed there, the federal class actions were transferred
to the U.S. District Court for the District of New Jersey and were
consolidated for pre-trial proceedings with other class actions
under the caption In re Insurance Brokerage Antitrust Litigation.
On August 1, 2005, various plaintiffs, including the four named
plaintiffs in the class actions, filed an amended consolidated
class action complaint naming various brokers and insurers,
including the Company, on behalf of a putative nationwide class of
policyholders. The complaint included causes of action under the
Sherman Act, the Racketeer Influenced and Corrupt Organizations
Act (RICO), state common law and the laws of the various states
prohibiting antitrust violations. The complaint sought monetary
damages, including punitive damages and trebled damages, permanent
injunctive relief, restitution, including disgorgement of profits,
interest and costs, including attorneys' fees.
All defendants moved to dismiss the complaint for failure to state
a claim. After giving plaintiffs multiple opportunities to
replead, the court dismissed the Sherman Act claims on August 31,
2007, and the RICO claims on September 28, 2007, both with
prejudice, and declined to exercise supplemental jurisdiction over
the state law claims. The plaintiffs appealed the district
court's decisions to the U.S. Court of Appeals for the Third
Circuit. On August 16, 2010, the Third Circuit affirmed the
district court's dismissal of all Sherman Act and RICO claims
against certain defendants, including the Company, except for
Sherman Act and RICO claims involving the sale of excess casualty
insurance through a single defendant broker, as well as all state
law claims, which they remanded to the district court for further
proceedings. On October 1, 2010, defendants, including the
Company, filed renewed motions to dismiss the remanded claims.
On March 18, 2011, the Company and certain other defendants
entered into an agreement with the plaintiffs to settle the
lawsuit. The settlement, under which the Company agreed to pay
$6.75 million, is subject to court approval. Preliminary approval
of the settlement was granted on June 27, 2011. On September 14,
2011, the court conducted a final fairness hearing and the
settling parties await the court's decision.
TRAVELERS COS: Oral Argument in Asbestos Suit Appeals on Oct. 26
----------------------------------------------------------------
Oral argument on the appeals in asbestos-related lawsuits has been
scheduled for October 26, 2011, according to The Travelers
Companies, Inc.'s October 19, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
September 30, 2011.
In October 2001 and April 2002, two purported class action
lawsuits (Wise v. Travelers and Meninger v. Travelers) were filed
against Travelers Property Casualty Corp. (TPC) and other insurers
(not including The St. Paul Companies, Inc. (SPC)) in state court
in West Virginia. These and other cases subsequently filed in
West Virginia were consolidated into a single proceeding in the
Circuit Court of Kanawha County, West Virginia. The plaintiffs
allege that the insurer defendants engaged in unfair trade
practices in violation of state statutes by inappropriately
handling and settling asbestos claims. The plaintiffs seek to
reopen large numbers of settled asbestos claims and to impose
liability for damages, including punitive damages, directly on
insurers. Similar lawsuits alleging inappropriate handling and
settling of asbestos claims were filed in Massachusetts and Hawaii
state courts. These lawsuits are collectively referred to as the
Statutory and Hawaii Actions.
In March 2002, the plaintiffs in consolidated asbestos actions
pending before a mass tort panel of judges in West Virginia state
court amended their complaint to include TPC as a defendant,
alleging that TPC and other insurers breached alleged duties to
certain users of asbestos products. The plaintiffs seek damages,
including punitive damages. Lawsuits seeking similar relief and
raising similar allegations, primarily violations of purported
common law duties to third parties, have also been asserted in
various state courts against TPC and SPC. The claims asserted in
these lawsuits are collectively referred to as the Common Law
Claims.
The federal bankruptcy court that had presided over the bankruptcy
of TPC's former policyholder Johns-Manville Corporation issued a
temporary injunction prohibiting the prosecution of the Statutory
Actions (but not the Hawaii Actions), the Common Law Claims and an
additional set of cases filed in various state courts in Texas and
Ohio, and enjoining certain attorneys from filing any further
lawsuits against TPC based on similar allegations.
Notwithstanding the injunction, additional common law claims were
filed against TPC.
In November 2003, the parties reached a settlement of the
Statutory and Hawaii Actions. This settlement includes a lump-sum
payment of up to $412 million by TPC, subject to a number of
significant contingencies. In May 2004, the parties reached a
settlement resolving substantially all pending and similar future
Common Law Claims against TPC. This settlement requires a payment
of up to $90 million by TPC, subject to a number of significant
contingencies. Among the contingencies for each of these
settlements is a final order of the bankruptcy court clarifying
that all of these claims, and similar future asbestos-related
claims against TPC, are barred by prior orders entered by the
bankruptcy court ("the 1986 Orders").
On August 17, 2004, the bankruptcy court entered an order
approving the settlements and clarifying that the 1986 Orders
barred the pending Statutory and Hawaii Actions and substantially
all Common Law Claims pending against TPC ("the Clarifying
Order"). The Clarifying Order also applies to similar direct
action claims that may be filed in the future.
On March 29, 2006, the U.S. District Court for the Southern
District of New York substantially affirmed the Clarifying Order
while vacating that portion of the order that required all future
direct actions against TPC to first be approved by the bankruptcy
court before proceeding in state or federal court.
Various parties appealed the district court's March 29, 2006
ruling to the U.S. Court of Appeals for the Second Circuit. On
February 15, 2008, the Second Circuit issued an opinion vacating
on jurisdictional grounds the District Court's approval of the
Clarifying Order. On February 29, 2008, TPC and certain other
parties to the appeals filed petitions for rehearing and/or
rehearing en banc, requesting reinstatement of the district
court's judgment, which were denied. TPC and certain other
parties filed Petitions for Writ of Certiorari in the United
States Supreme Court seeking review of the Second Circuit's
decision, and on December 12, 2008, the Petitions were granted.
On June 18, 2009, the Supreme Court ruled in favor of TPC,
reversing the Second Circuit's February 15, 2008 decision,
finding, among other things, that the 1986 Orders are final and
generally bar the Statutory and Hawaii actions and substantially
all Common Law Claims against TPC. Further, the Supreme Court
ruled that the bankruptcy court had jurisdiction to issue the
Clarifying Order. However, since the Second Circuit had not ruled
on certain additional issues, principally related to procedural
matters and the adequacy of notice provided to certain parties,
the Supreme Court remanded the case to the Second Circuit for
further proceedings on those specific issues. On October 21,
2009, all but one of the objectors to the Clarifying Order
requested that the Second Circuit dismiss their appeal of the
order approving the settlement, and that request was granted.
On March 22, 2010, the Second Circuit issued an opinion in which
it found that the notice of the 1986 Orders provided to the
remaining objector was insufficient to bar contribution claims by
that objector against TPC. On April 5, 2010, TPC filed a Petition
for Rehearing and Rehearing En Banc with the Second Circuit,
requesting further review of its March 22, 2010 opinion, which was
denied on May 25, 2010. On August 18, 2010, TPC filed a Petition
for Writ of Certiorari in the United States Supreme Court seeking
review of the Second Circuit's March 22, 2010 opinion, and a
Petition for a Writ of Mandamus seeking an order from the Supreme
Court requiring the Second Circuit to comply with the Supreme
Court's June 18, 2009 ruling in TPC's favor. The Supreme Court
denied the Petitions on November 29, 2010.
The plaintiffs in the Statutory and Hawaii actions and the Common
Law Claims actions filed Motions to Compel with the bankruptcy
court on September 2, 2010 and September 3, 2010, respectively,
arguing that all conditions precedent to the settlements have been
met and seeking to require TPC to pay the settlement amounts. On
September 30, 2010, TPC filed an Opposition to the plaintiffs'
Motions to Compel on the grounds that the conditions precedent to
the settlements, principally the requirement that all contribution
claims be barred, have not been met in light of the Second
Circuit's March 22, 2010 opinion. On December 16, 2010, the
bankruptcy court granted the plaintiffs' motions and ruled that
TPC was required to fund the settlements. On January 20, 2011,
the bankruptcy court entered judgment in accordance with its
December 16, 2010 ruling and ordered TPC to pay the settlement
amounts plus prejudgment interest. On January 21, 2011, TPC filed
an appeal with the U.S. District Court for the Southern District
of New York from the bankruptcy court's January 20, 2011 judgment.
On January 24, 2011, certain of the plaintiffs in the Common Law
Claims actions appealed that portion of the bankruptcy court's
January 20, 2011 judgment that denied their request for an order
of contempt and for sanctions. Oral argument on the appeals has
been scheduled for October 26, 2011.
Currently, the Company says it is not possible to predict legal
outcomes and their impact on the future development of claims and
litigation relating to asbestos and environmental claims. Any
such development will be affected by future court decisions and
interpretations, as well as changes in applicable legislation.
Because of these uncertainties, additional liabilities may arise
for amounts in excess of the current related reserves. In
addition, the Company's estimate of ultimate claims and claim
adjustment expenses may change. These additional liabilities or
increases in estimates, or a range of either, cannot now be
reasonably estimated and could result in income statement charges
that could be material to the Company's results of operations in
future periods.
U.S. EGG PRODUCERS: Price-Fixing Claims Can Proceed, Judge Rules
----------------------------------------------------------------
Reuben Kramer at Courthouse News Service reports that the nation's
largest egg producers will face price-fixing claims over both
unprocessed and processed egg products from a class of direct
purchasers, a federal judge ruled.
The defendants, which include leading egg-industry trade groups,
asked U.S. District Judge Gene Pratter to dismiss any claim that
they conspired to fix the price of processed egg products, like
pasteurized egg whites.
Seventeen related actions were consolidated before Judge Pratter
in December 2008.
Some of the plaintiffs in those actions accused egg-products
producers of conspiring to allocate customers -- an accusation
that now appears abandoned, the defendants said.
The defendants told Judge Pratter that they were concerned that
plaintiffs' references to "egg products" in their complaint might
be used as leverage to revive that abandoned accusation, or as a
wedge expanding the scope of discovery to include information
outside of the alleged unprocessed egg supply-management
conspiracy.
The complaint alleges anti-competitive conduct with respect to egg
products, but fails to plausibly suggest that there was an egg-
products conspiracy that was distinct from the claimed conspiracy
to inflate the price of unprocessed eggs.
"Plaintiffs are trying to keep the door open to pursuing a
distinct egg products conspiracy claim," defendants argued.
But in a 16-page opinion filed on Oct. 17, Judge Pratter said the
defendants were trying to winnow pretrial issues, and that their
motion -- a 12(b)(6) "failure to state a claim" motion -- is "not
. . . an appropriate vehicle to achieve their goal."
"Defendants have filed a motion that specifically requires an
inquiry focused on whether the complaint states a claim," Judge
Pratter wrote.
"It simply is not the best use of Rule 12(b) motion procedure to
chisel issues for trial," she found, noting that discovery,
pretrial conferences, responsive pleadings and other case-
management procedures were more appropriate methods to address the
defendants' concern that plaintiffs might pursue claims for two
distinct price-fixing conspiracies.
And, Judge Pratter said, it doesn't even appear that the class is
alleging the existence of two conspiracies.
"Plaintiffs articulate a single antitrust claim as to
[unprocessed] shell eggs and egg products" and "seemingly agree
that the SAC [second amended complaint] does not allege a distinct
conspiracy as to egg products," Judge Pratter wrote.
Indeed, plaintiffs have acknowledged that they are claiming "a
multi-faceted supply reduction and price fixing conspiracy
directed at and involving both shell eggs and egg products."
But in light of the claims made in earlier suits, Judge Pratter
said she understands the defendants' concern that the term "egg
products" might serve as a litigation tactic.
"The court . . . will not be surprised to see the concern
articulated again in the course of discovery discussions -- a
chapter in which the concern may well be more appropriately
addressed and put to use," she wrote.
The plaintiffs have accused egg producers and their trade groups
of engaging in eight coordinated actions over the course of a
decade to reduce domestic egg production and jack up prices.
The owner of Land O'Lakes agreed to a $25 million settlement last
year.
Another major egg producer, Sparboe Farms, was given preliminary
approval in October 2009 for a nonmonetary settlement, under which
Sparboe agreed to produce witnesses and documents for the class
action.
A copy of the Memorandum in In re: Processed Egg Products
Antitrust Litigation, Case No. 08-md-02002 (E.D. Pa.), is
available at:
http://www.courthousenews.com/2011/10/20/Eggs%20Opinion.pdf
UNIVERSAL ENSCO: Faces Class Action Over Unpaid Overtime
--------------------------------------------------------
Kelly Holleran, writing for The Madison St. Clair Record, reports
that a field inspector for Universal Ensco claims the company
failed to pay him and other employees for overtime hours they
worked.
Chicago attorney, Douglas M. Werman of Werman Law Offices,
represents Gerald Spears in a putative class action lawsuit filed
Oct. 14 in Madison County Circuit Court.
In his complaint, Mr. Spears alleges he was hired in April of 2005
as a field inspector for the company, which provides engineering,
project management, survey and construction management services to
the on-shore and off-shore energy industry.
Since he has been hired, Mr. Spears has been paid a specific day
rate for the work he performs, regardless of how long the work
takes, according to the complaint.
Mr. Spears would regularly work more than 40 hours per week. In
fact, he most often worked at least 60 hours in a week, the suit
states. However, Mr. Spears claims he was not compensated for the
extra time he spent on the job.
"Defendant failed to pay Plaintiff one and one-half times his
regular rate of pay for time he worked in excess of 40 hours per
week," the complaint says.
Universal knew its payment system was illegal because it has
received a number of complaints about its failure to pay overtime,
Mr. Spears alleges.
In his complaint, Mr. Spears is seeking a judgment worth one and
one half times the pay that he should have received for overtime
hours worked, plus pre-judgment interest on back pay, attorney's
fees, injunctive relief and other relief the court deems just.
Madison County Circuit Court case number: 11-L-1057.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
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