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/raid1/www/Hosts/bankrupt/CAR_Public/111026.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 26, 2011, Vol. 13, No. 212 Headlines ALCOA INC: Continues to Defend ERISA-Violation Class Suit APOLLO GROUP: Awaits Approval of "Adoma" Suit Settlement APOLLO GROUP: Awaits Ruling on Bid to Dismiss Consolidated Suit APOLLO GROUP: Court Dismisses "Sabol" Wage and Hour Class Suit APOLLO GROUP: Settles Securities Class Suit Pending in Arizona APOLLO GROUP: Still Awaits Decision in "Teamsters" Class Suit ASPENBIO PHARMA: Response on Bid to Dismiss Suit Due Nov. 21 COZEN O'CONNOR: Full Tilt Poker Class Sues Over Money Laundering E.I. DU PONT: MDL Panel Consolidates Imprelis Class Actions ELECTRIC MOTION: Recalls 70 Lithium-Poly Battery Pack ENERGY PLUS: Sued in N.Y. Over Deceptive Electricity Billing GRUNENTHAL: Wants Thalidomide Class Action Heard in Germany HUMANA INC: "Sacred Heart" Suit vs. Unit Remains Pending ICE: Faces Class Action Over Sexual Assault of 3 Immigrant Women MARICOPA COUNTY, AZ: Jail Class Action Nears Resolution MICROSOFT CORP: Suit Ruling Review Pending in Canadian Supreme Ct. PHARMACEUTICAL PRODUCT: Being Sold for Too Little, Suit Says POWERCOR: Settles Bushfire Class Action for AUD40 Million RAM MEDICAL: Faces Class Action Over Counterfeit Surgical Mesh SUPERVALU INC: Class Suit Over C&S Transaction Remains Pending SUPERVALU INC: Wisc. Suit Still Stayed Pending IOS D&O Suit Ruling SUTHERLAND GLOBAL: Class Action Settlement Gets Final Approval TARGET CORP: Recalls 3,400 Children's Frog Masks TICKETMASTER: Proposed Settlement Pending Approval in California U.S. POSTAL SERVICE: Faces Millions of Grievance Payouts WPX ENERGY: Appeal in Suit Over Gas Price Indices Remains Pending WPX ENERGY: Royalty Interest Class Suit Pending in Colorado ********* ALCOA INC: Continues to Defend ERISA-Violation Class Suit --------------------------------------------------------- Alcoa Inc. continues to defend itself from a class action lawsuit alleging violation of the Employee Retirement Income Security Act, according to the Company's October 20, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. In November 2006, in Curtis v. Alcoa Inc., Civil Action No. 3:06cv448 (E.D. Tenn.), a class action was filed by plaintiffs representing approximately 13,000 retired former employees of Alcoa or Reynolds Metals Company and spouses and dependents of such retirees alleging violation of the Employee Retirement Income Security Act (ERISA) and the Labor-Management Relations Act by requiring plaintiffs, beginning January 1, 2007, to pay health insurance premiums and increased co-payments and co-insurance for certain medical procedures and prescription drugs. Plaintiffs alleged these changes to their retiree health care plans violated their rights to vested health care benefits. Plaintiffs additionally alleged that Alcoa had breached its fiduciary duty to plaintiffs under ERISA by misrepresenting to them that their health benefits would never change. Plaintiffs sought injunctive and declaratory relief, back payment of benefits, and attorneys' fees. Alcoa had consented to treatment of plaintiffs' claims as a class action. During the fourth quarter of 2007, following briefing and argument, the court ordered consolidation of the plaintiffs' motion for preliminary injunction with trial, certified a plaintiff class, bifurcated and stayed the plaintiffs' breach of fiduciary duty claims, struck the plaintiffs' jury demand, but indicated it would use an advisory jury, and set a trial date of September 17, 2008. In August 2008, the court set a new trial date of March 24, 2009, and, subsequently, the trial date was moved to September 22, 2009. In June 2009, the court indicated that it would not use an advisory jury at trial. Trial in the matter was held over eight days commencing September 22, 2009, and ending on October 1, 2009, in federal court in Knoxville, TN, before the Honorable Thomas Phillips, U.S. District Court Judge. At the conclusion of evidence, the court set a post- hearing briefing schedule for submission of proposed findings of fact and conclusions of law by the parties and for replies to the same. Post trial briefing was submitted on December 4, 2009. On March 9, 2011, the court issued a judgment order dismissing plaintiffs' lawsuit in its entirety with prejudice for the reasons stated in its Findings of Fact and Conclusions of Law. On March 23, 2011, plaintiffs filed a motion for clarification and/or amendment of the judgment order, which seeks, among other things, a declaration that plaintiffs' retiree benefits are vested subject to an annual cap and an injunction preventing Alcoa, prior to 2017, from modifying the plan design to which plaintiffs are subject or changing the premiums and deductibles that plaintiffs must pay. Also on March 23, 2011, plaintiffs filed a motion for award of attorney's fees and expenses. Alcoa filed its opposition to both motions on April 11, 2011. The time for plaintiffs to appeal from the court's March 9, 2011 judgment will not begin until the court disposes of these motions. APOLLO GROUP: Awaits Approval of "Adoma" Suit Settlement -------------------------------------------------------- Apollo Group, Inc. is awaiting the court's approval of its settlement to resolve the wage and hour class action lawsuit commenced by Diane Adoma, according to the Company's October 20, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. On January 8, 2010, Diane Adoma filed an action in United States District Court, Eastern District of California, alleging wage and hour claims under the Fair Labor Standards Act and California law for failure to pay overtime and other violations, entitled Adoma et al. v. University of Phoenix, et al, Case Number 2:10-cv-04134- JCJ. On March 5, 2010, the Company filed a motion to dismiss, or in the alternative to stay or transfer, the case based on the previously filed Sabol and Juric actions. On May 3, 2010, the Court denied the motion to dismiss and/or transfer. On April 12, 2010, plaintiff filed her motion for conditional collective action certification. The Court denied class certification under the Fair Labor Standards Act and transferred these claims to the District Court in Pennsylvania. On August 31, 2010, the Court granted plaintiff's motion for class action certification of the California claims. On September 14, 2010, the Company filed a petition for permission to appeal the class certification order with the Ninth Circuit, which was denied on November 3, 2010. There are approximately 1,500 current and former employees in the class. In August 2011, the parties agreed to settle the case for an immaterial amount, which was accrued in the Company's financial statements during the fourth quarter of fiscal year 2011. The agreement, in which the Company does not admit any liability, is subject to pending approval by the Court. APOLLO GROUP: Awaits Ruling on Bid to Dismiss Consolidated Suit --------------------------------------------------------------- Apollo Group, Inc. is still awaiting a court decision on its motion to dismiss a consolidated securities lawsuit, according to the Company's October 20, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. On August 13, 2010, a securities class action complaint was filed in the U.S. District Court for the District of Arizona by Douglas N. Gaer naming the Company, John G. Sperling, Gregory W. Cappelli, Charles B. Edelstein, Joseph L. D'Amico, Brian L. Swartz and Gregory J. Iverson as defendants for allegedly making false and misleading statements regarding the Company's business practices and prospects for growth. That complaint asserted a putative class period stemming from December 7, 2009, to August 3, 2010. A substantially similar complaint was also filed in the same court by John T. Fitch on September 23, 2010, making similar allegations against the same defendants for the same purported class period. Finally, on October 4, 2010, another purported securities class action complaint was filed in the same court by Robert Roth against the same defendants as well as Brian Mueller, Terri C. Bishop and Peter V. Sperling based upon the same general set of allegations, but with a defined class period of February 12, 2007, to August 3, 2010. The complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On October 15, 2010, three additional parties filed motions to consolidate the related actions and be appointed the lead plaintiff. On November 23, 2010, the Fitch and Roth actions were consolidated with Gaer and the Court appointed the "Apollo Institutional Investors Group" consisting of the Oregon Public Employees Retirement Fund, the Mineworkers' Pension Scheme, and Amalgamated Bank as lead plaintiffs. The case is now entitled, In re Apollo Group, Inc. Securities Litigation, Lead Case Number CV-10-1735- PHX-JAT. On February 18, 2011, the lead plaintiffs filed a consolidated complaint naming Apollo, John G. Sperling, Peter V. Sperling, Joseph L. D'Amico, Gregory W. Cappelli, Charles B. Edelstein, Brian L. Swartz, Brian E. Mueller, Gregory J. Iverson, and William J. Pepicello as defendants. The consolidated complaint asserts a putative class period of May 21, 2007, to October 13, 2010. On April 19, 2011, the Company filed a motion to dismiss and oral argument on the motion was held before the Court on October 17, 2011. Discovery in this case has not yet begun. The Company anticipates that the plaintiffs will seek substantial damages, including damages representing the aggregate investment losses attributable to the alleged false and misleading statements by all shareholders who purchased shares during the 29-month putative class period and still held those shares on October 13, 2010. Because of the many questions of fact and law that may arise, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, the Company says it cannot reasonably estimate a range of loss for this action and accordingly have not accrued any liability associated with these actions. No further updates are reported in the Company's latest SEC filing. APOLLO GROUP: Court Dismisses "Sabol" Wage and Hour Class Suit -------------------------------------------------------------- The Court dismissed the wage and hour class action lawsuit commenced by Sabol, et al., against Apollo Group, Inc. in September, according to the Company's October 20, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. On July 31, 2009, several former employees filed an action in Federal District Court in Philadelphia alleging wage and hour claims under the Fair Labor Standards Act for failure to pay overtime and other violations, entitled, Sabol, et al. v. Apollo Group, Inc., et al, Case Number 2:09-cv-03439-JCJ. In January 2011, the parties agreed to settle the case for an immaterial amount, which was accrued in the Company's financial statements during the second quarter of fiscal year 2011. The agreement, in which the Company does not admit liability, was approved by the Court on June 28, 2011, and the case was dismissed with prejudice on September 26, 2011. APOLLO GROUP: Settles Securities Class Suit Pending in Arizona -------------------------------------------------------------- Apollo Group, Inc. entered into an agreement in September to settle a securities class action lawsuit pending in Arizona, according to the Company's October 20, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. In January 2008, a jury returned an adverse verdict against the Company and two remaining individual co-defendants in a securities class action lawsuit entitled, In re Apollo Group, Inc. Securities Litigation, Case No. CV04-2147-PHX-JAT, filed in the U.S. District Court for the District of Arizona, relating to alleged false and misleading statements in connection with the Company's failure to publicly disclose the contents of a preliminary U.S. Department of Education program review report. After various post-trial challenges, the case was returned to the trial court in March 2011 to administer the shareholder claims process. In September 2011, the Company entered into an agreement in principle with the plaintiffs to settle the litigation for a payment of $145.0 million. The Company says the outcome of this legal proceeding remains uncertain including, but not limited to, the requirement that any settlement agreement must be approved by the court. Prior to entering into an agreement in principle to settle, the Company had an accrual of $181.9 million related to this matter. The Company had estimated for financial reporting purposes, using statistically valid models and a 60% confidence interval, that the damages could range from $127.2 million to $228.0 million, which included the Company's estimates of (a) damages payable to the plaintiff class; (b) the amount the Company may be required to reimburse the Company's insurance carriers for amounts advanced for defense costs; and (c) future defense costs. The Company recorded charges in fiscal year 2010 that represented the mid- point of the estimated range of damages payable to the plaintiffs, plus the other estimated costs and expenses. The Company recorded an amount based on the mid-point of the range of damages payable to the plaintiff class because under statistically valid modeling techniques the mid-point of the range is in fact a more likely estimate than other points in the range, and the point at which there is an equal probability that the ultimate loss could be toward the lower end or the higher end of the range. The Company has also recorded charges in subsequent periods for estimated incremental post-judgment interest and additional estimated future legal costs. Based on the settlement agreement, the Company reversed $20.7 million of the charges during the fourth quarter of fiscal year 2011 through litigation (credit) charge, net on the Company's Consolidated Statements of Income. As of August 31, 2011, the Company's remaining accrual of $161.2 million represents the $145.0 million settlement, an estimate of the disputed amount the Company may be required to reimburse its insurance carriers for defense costs advanced to it, and estimated future legal costs. APOLLO GROUP: Still Awaits Decision in "Teamsters" Class Suit ------------------------------------------------------------- Apollo Group, Inc., is still awaiting a court decision on plaintiffs' motion for reconsideration of a ruling dismissing a securities class action lawsuit commenced by the Teamsters Local 617 Pension and Welfare Funds,, according to the Company's October 20, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. On November 2, 2006, the Teamsters Local 617 Pension and Welfare Funds filed a class action complaint purporting to represent a class of shareholders who purchased the Company's stock between November 28, 2001, and October 18, 2006. The complaint, filed in the U.S. District Court for the District of Arizona, is entitled Teamsters Local 617 Pension & Welfare Funds v. Apollo Group, Inc. et al., Case Number 06-cv-02674-RCB, and alleges that the Company and certain of the Company's current and former directors and officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by purportedly making misrepresentations concerning the Company's stock option granting policies and practices and related accounting. The defendants are Apollo Group, Inc., J. Jorge Klor de Alva, Daniel E. Bachus, John M. Blair, Dino J. DeConcini, Kenda B. Gonzales, Hedy F. Govenar, Brian E. Mueller, Todd S. Nelson, Laura Palmer Noone, John R. Norton III, John G. Sperling and Peter V. Sperling. On September 11, 2007, the Court appointed The Pension Trust Fund for Operating Engineers as lead plaintiff. Lead plaintiff filed an amended complaint on November 23, 2007, asserting the same legal claims as the original complaint and adding claims for violations of Section 20A of the Securities Exchange Act of 1934 and allegations of breach of fiduciary duties and civil conspiracy. On January 22, 2008, all defendants filed motions to dismiss. On March 31, 2009, the Court dismissed the case with prejudice as to Daniel Bachus, Hedy Govenar, Brian E. Mueller, Dino J. DeConcini, and Laura Palmer Noone. The Court also dismissed the case as to John Sperling and Peter Sperling, but granted plaintiffs leave to file an amended complaint against them. Finally, the Court dismissed all of plaintiffs' claims concerning misconduct before November 2001 and all of the state law claims for conspiracy and breach of fiduciary duty. On April 30, 2009, plaintiffs filed their Second Amended Complaint, which alleges similar claims for alleged securities fraud against the same defendants. On June 15, 2009, all defendants filed another motion to dismiss the Second Amended Complaint. On February 22, 2010, the Court partially granted the plaintiffs' motion for reconsideration, but withheld a final determination on the individual defendants pending the Court's ruling on the motion to dismiss the Second Amended Complaint. On March 31, 2011, the U.S. District Court for the District of Arizona dismissed the case with prejudice and entered judgment in the Company's favor. Plaintiffs filed a motion for reconsideration of this ruling and, if that is not successful, plaintiffs have indicated they will appeal the ruling. The Company says the outcome of this legal proceeding is uncertain at this point. Based on the information available to the Company at present, the Company says it cannot reasonably estimate a range of loss for this action and, accordingly, it has not accrued any liability associated with this action. ASPENBIO PHARMA: Response on Bid to Dismiss Suit Due Nov. 21 ------------------------------------------------------------ Plaintiffs' response on AspenBio Pharma, Inc.'s motion to dismiss a securities class action lawsuit is due November 21, 2011, according to the Company's October 20, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On October 1, 2010, the Company received a complaint, captioned John Wolfe, individually and on behalf of all others similarly situated v. AspenBio Pharma, Inc. et al., Case No. CV10 7365. This federal securities purported class action was filed in the United States District Court in the Central District of California on behalf of all persons, other than the defendants, who purchased common stock of the Company during the period between February 22, 2007, and July 19, 2010, inclusive. The complaint names as defendants certain officers and directors of the Company during such period. The complaint includes allegations of violations of Section 10(b) of the Exchange Act and SEC Rule 10b-5 against all defendants, and of Section 20(a) of the Exchange Act against the individual defendants, all related to the Company's blood-based acute appendicitis test in development known as AppyScore. On the Company's motion, this action was also transferred to the U.S. District Court for the District of Colorado by order dated January 21, 2011. The action has been assigned a District of Colorado Civil Case No. 11-cv-00165-REB-KMT. On July 11, 2011, the court appointed a lead plaintiff and approved lead counsel. On August 23, 2011, the lead plaintiff filed an amended putative class action complaint, alleging the same class period. Based on a review of the amended complaint, the Company and the individual defendants believe that the plaintiffs' allegations are without merit and intend to vigorously defend against these claims. On October 7, 2011, the Company filed a motion to dismiss the amended complaint. The motion is currently pending with the plaintiffs' response due on November 21, 2011. COZEN O'CONNOR: Full Tilt Poker Class Sues Over Money Laundering ---------------------------------------------------------------- Leigh Jones, writing for Reuters, reports that a purported class of as many as 200,000 online poker players is suing Cozen O'Connor, claiming that the law firm should disgorge legal fees it received for representing clients involved in an Internet poker operation. The suit, filed on Oct. 17 in California federal court, claims that Cozen O'Connor received more than $2 million in fees from money laundered through a scheme orchestrated by the companies behind the Web site Full Tilt Poker. The lawsuit alleges that Cozen knew or had reason to know that the fees were derived from illegal sources and that it should repay those fees to the plaintiffs. Also named as defendants are Chris Ferguson, Howard Lederer, Rafe Furst and other owners of companies behind Full Tilt Poker. Last month, they were also sued by the U.S. Department of Justice for allegedly defrauding thousands of online poker players out of millions, part of a DOJ crackdown on illegal Internet gambling. Cozen, which has represented some of the defendants named in the government's case, was not part of that action. Cozen's general counsel, Robert Fiebach, declined to comment on the Oct. 17 lawsuit, saying that the law firm had not been served with the complaint. The Philadelphia-based firm has about 500 attorneys, with about 80 in New York. The action, filed in the U.S. District Court for the Central District of California, alleges fraud, violations of federal anti- racketeering law, unjust enrichment and violations of California civil law against all of the defendants. Representing the plaintiffs is Cyrus Sanai, a solo practitioner in Beverly Hills, Calif. Mr. Sanai, who asserts that the class comprises about 200,000 consumers, said that a 2010 decision from the U.S. Court of Appeals for the Ninth Circuit, FTC v. Network Services Depot, enables his clients to recover fees paid to law firms through illegal activity. He alleges that his clients are entitled to about $900 million from all of the named defendants. The case is Kennedy v. Ferguson, CV-118591, U.S. District Court for the Central District of California. For the plaintiffs: Cyrus Sanai, Sanais, Beverly Hills, Calif. For the defendants: Not immediately available. E.I. DU PONT: MDL Panel Consolidates Imprelis Class Actions ----------------------------------------------------------- Mario Massillamany of the Indiana law firm of Starr, Austen & Miller, LLP, announced the ruling by the Multidistrict Litigation Panel regarding the nationwide class action lawsuit against E.I. du Pont de Nemours & Company ("DuPont"), charging that DuPont's herbicide Imprelis is allegedly causing widespread death among trees and other non-targeted vegetation across the country. This allows Starr Austen & Miller, LLP case, entitled as Shomo v. E.I. du Pont de Nemours & Company (Case Number 1:11-00633), to move forward. The federal panel ruled under MDL number 2284 that the Eastern District of Pennsylvania will serve the over 40 class actions pending in 18 districts. The panel's basis was due to the U.S. Environmental Protection Agency office responsible for the investigation and handling of Imprelis is located in Philadelphia. Furthermore, the federal courthouse of Philadelphia is not far from DuPont headquarters in Wilmington, Delaware and is within the geographic concentration of Imprelis damage. "We are most gratified that the MDL panel agreed with our arguments that the Eastern District of Pennsylvania was the best forum to handle this extremely important and complex litigation," stated plaintiffs' counsel Scott Starr. Multidistrict litigation is a procedure utilized in the federal court system to transfer to one federal judge all pending civil cases of a similar type filed throughout the United States. The decision whether cases should be transferred is made by a panel of seven federal judges appointed by the Chief Justice of the United States Supreme Court. The Judicial Panel on Multidistrict Litigation was created by legislation in 1968 with the intent to have one court rule on all pretrial proceedings and discovery. The lawsuit was filed in federal court in Delaware where DuPont has its headquarters. Entitled as Shomo v. E.I. du Pont de Nemours & Company (Case Number 1:11-00633), the proposed class includes all persons and entities who own property on which Imprelis was applied, own trees or other vegetation whose roots extend under property on which Imprelis was applied, or who own property to which Imprelis migrated between October 4, 2010, and the date of trial. Plaintiffs seek relief for themselves. The proposed class includes compensation for the cost of replacing any trees that are dying or have died and an injunction barring DuPont from continuing to sell Imprelis. Starr, Austen & Miller, LLP provides instructions on how to take and preserve a soil sample, along with a copy of the complaint, and complete a form to request further information on the case for property owners who may have been affected by Imprelis. These resources can by obtained at the bottom of the web page located at http://www.starrausten.com/imprelis-class-action/ Legal Resources for Impacted Property Owners If you have suffered damage to trees on your property after the spraying of Imprelis, please visit http://www.starrausten.com/imprelis-class-action/to learn more about the Imprelis class action lawsuit and report your experiences. Contact: Mario Massillamany, Esq. Starr Austen & Miller, LLP 201 S 3rd Street Logansport, IN 46947-3102 Telephone: (574) 722-6676 Web site: http://www.starrausten.com ELECTRIC MOTION: Recalls 70 Lithium-Poly Battery Pack ----------------------------------------------------- About 70 units of rechargeable lithium-poly battery were voluntarily recalled by Electric Motion Systems LLC of Dulles, Virginia, 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. The battery can overheat and catch fire. The Company is aware of three reports of the battery catching fire. One incident resulted in a consumer receiving minor burns. The recalled product is a black lithium-poly 37 volt, 10Ah battery used in electric bicycles and propulsion systems. The battery is 8.75 inches x 5.75 inches x 3.25 inches. "E+" appears on a label on the side of the battery. Recalled batteries have "EMS# 11819- 101" at the top right of the label with a serial number between 10001 and 10200. The batteries were sold on their own and as part of the E+ Flex Kits. The kits are complete propulsion systems. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12702.html The recalled products were manufactured in China and sold at bike shops nationwide and the company's Web site, from October 2009 through November 2010. Batteries sold for between $900 and $1,000 and the E+ Flex Kits were sold for between $2,325 and $2,675. Consumers should immediately stop using the battery packs and contact Electric Motion Systems, LLC. If you own a flex kit, you will receive a free battery pack installed on a new front wheel for your electric bike. If you purchased just the battery, Electric Motion Systems, LLC will provide you one of several choices including a new, free frame to fit with your existing electric propulsion system. For additional information, contact Electric Motion Systems, LLC toll-free at (877) 824-5339 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, visit their Web site at http://www.epluselectricbike.com/or e-mail the company at info@epluselectricbike.com. The company is contacting its customers directly. ENERGY PLUS: Sued in N.Y. Over Deceptive Electricity Billing ------------------------------------------------------------ Courthouse News Service reports that a federal class action filed in Manhattan claims Energy Plus overcharged "tens of thousands of New York consumers" for electricity, through deceptive advertise and billing. GRUNENTHAL: Wants Thalidomide Class Action Heard in Germany ----------------------------------------------------------- Elissa Hunt, writing for Herald Sun, reports that the makers of deformity drug thalidomide are trying to force a woman born without arms and legs to fly to Germany to take legal action. Lynette Rowe is leading a Supreme Court class action for compensation for unrecognized victims of the anti-nausea drug which caused stillbirths and severe birth deformities. But the drug's makers Grunenthal have indicated they want the case heard in Germany, where its headquarters are and some witnesses live. Ms. Rowe's lawyer, Peter Gordon, said outside court his client did not even own a passport and overseas travel would be difficult. "We say Lynette has the right to invoke the jurisdiction of the Victorian Supreme Court and to have her claim heard in her home town," Mr. Gordon said. "This is where she was born, she has lived here her whole life. "Her mum took the thalidomide tablets in Victoria. Getting to Germany would not be an easy thing for her." Ms. Rowe's parents Wendy and Ian have cared for her for 50 years but are now close to their 80s. They have urged the court to give them a quick hearing. The parties will return to court to argue whether the case can be heard here in December. In a separate report, ABC Melbourne relates that in a statement, the distributor of the drug, Diageo, says it is disappointed by the Australian class action. The company says it has already agreed to pay compensation to some Australian victims. It says it was prepared to consider the possibility of paying future victims, before legal action was commenced. HUMANA INC: "Sacred Heart" Suit vs. Unit Remains Pending -------------------------------------------------------- Humana Inc.'s subsidiary, Humana Military Healthcare Services, Inc. ("Humana Military") was named as a defendant in Sacred Heart Health System, Inc., et al. v. Humana Military Healthcare Services Inc., Case No. 3:07-cv-00062 MCR/EMT (the "Sacred Heart" Complaint), a class action lawsuit filed on February 5, 2007, in the U.S. District Court for the Northern District of Florida asserting contract and fraud claims against Humana Military. The Sacred Heart Complaint alleged, among other things, that, Humana Military breached its network agreements with a class of hospitals in six states, including the seven named plaintiffs, that contracted for reimbursement of outpatient services provided to beneficiaries of the Department of Defense's (DoD's) TRICARE health benefits program ("TRICARE"). The Complaint alleged that Humana Military breached its network agreements when it failed to reimburse the hospitals based on negotiated discounts for non- surgical outpatient services performed on or after October 1, 1999, and instead reimbursed them based on published CHAMPUS Maximum Allowable Charges (so-called "CMAC rates"). Humana Military denied that it breached the network agreements with the hospitals and asserted a number of defenses to these claims. The Complaint sought, among other things, the following relief for the purported class members: (i) damages as a result of the alleged breach of contract by Humana Military, (ii) taxable costs of the litigation, (iii) attorneys fees, and (iv) any other relief the court deems just and proper. Separate and apart from the class relief, named plaintiff Sacred Heart Health System Inc. requested damages and other relief for its individual claim against Humana Military for fraud in the inducement to contract. On September 25, 2008, the district court certified a class consisting of all institutional healthcare service providers in TRICARE former Regions 3 and 4 which had network agreements with Humana Military to provide outpatient non- surgical services to CHAMPUS/TRICARE beneficiaries as of November 18, 1999, excluding those network providers who contractually agreed with Humana Military to submit any such disputes with Humana Military to arbitration. On March 3, 2010, the Court of Appeals reversed the district court's class certification order and remanded the case to the district court for further proceeding. On June 28, 2010, the plaintiffs sought leave of the district court to amend their complaint to join additional hospital plaintiffs. Humana Military filed its response to the motion on July 28, 2010. The district court granted the plaintiffs' motion to join 33 additional hospitals on September 24, 2010. On October 27, 2010, the plaintiffs filed their Fourth Amended Complaint claiming the U.S. District Court for the Northern District of Florida has subject matter jurisdiction over the case because the allegations in the complaint raise a substantial question under federal law. The amended complaint asserts no other material changes to the allegations or relief sought by the plaintiffs. Humana Military's Answer to the Fourth Amended Complaint was filed on November 30, 2010. Humana says it intends to defend the action vigorously. No further updates were reported in the Company's October 20, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. ICE: Faces Class Action Over Sexual Assault of 3 Immigrant Women ---------------------------------------------------------------- Rafael Romo and Nick Valencia, writing for CNN, report that a class-action lawsuit has been filed on behalf of three immigrant women who were allegedly sexually assaulted while in the custody of Immigration and Customs Enforcement in Texas, the American Civil Liberties Union said last week. The ACLU, citing documents it said it had obtained through the Freedom of Information Act, said in a news release that there have been nearly 200 allegations of sexual abuse of immigration detainees jailed at detention facilities across the United States since 2007. The ACLU release did not give dates of any of the alleged assaults, including those involving the three women who are plaintiffs in the class-action suit. The plaintiffs were identified only as Sarah Doe, Kimberly Doe and Raquel Doe "to protect them from further harm," the ACLU said. The alleged attacks occurred while the plaintiffs were being transported from the T. Don Hutto Family Residential Center in Taylor, Texas, to the airport or bus station in nearby Austin, the ACLU said. Its release did not say where the class-action suit was filed on Oct. 19, but it said defendants include three ICE officials; Williamson County, Texas, where the Hutto facility is; the Corrections Corporation of America (CCA), a private prison company that manages the Hutto facility; the former facility administrator for Hutto; and a guard at the facility. The lawsuit alleges that ICE along with Williamson County and the Corrections Corporation of America were "deliberately indifferent and willfully blind to the fact that (the guard named as a defendant) and other employees regularly violated the rule that detainees are not be transported without another escort officer of the same gender present," the ACLU said. ICE did not comment specifically on the ACLU's announcement of the lawsuit, but an agency spokeswoman said ICE "maintains a strict zero tolerance policy for any kind of abusive or inappropriate behavior and requires all contractors working with the agency to adhere to this policy." ICE Public Affairs Officer Gillian Christensen added that the agency requires regular criminal backgrounds checks for its workforce. "The (Department of Homeland Security) Office of the Inspector General and ICE's Office of Professional Responsibility investigate ALL allegations of sexual abuse or misconduct and the agency takes appropriate action -- whether it is pursuing criminal charges or administrative action -- when those allegations are substantiated," Ms. Christensen said in the ICE statement. The Corrections Corporation of America did not immediately respond to requests for comment on the ACLU announcement. The ACLU said it was basing its claim that there have been 185 allegations of sexual abuse in federal detention centers against female immigration detainees on various federal documents. The documents -- obtained from the Department of Homeland Security's Office of Inspector General, Office of Civil Rights and Civil Liberties and ICE, according to the ACLU -- showed that Texas had more alleged abuse cases, 56, than any other state, the organization's news release said. "While the information gleaned from the documents likely does not represent the full scope of the problem given that sexual abuse is notoriously underreported, the documents nonetheless make clear that the sexual abuse of immigration detainees is not an isolated problem limited to a few rogue facilities or to a handful of bad- apple government contractors who staff some of the nation's immigration jails," the ACLU said. "Unfortunately, we believe these complaints are just the tip of the iceberg," said Mark Whitburn, senior staff attorney for the ACLU of Texas. MARICOPA COUNTY, AZ: Jail Class Action Nears Resolution ------------------------------------------------------- JJ Hensley, writing for The Arizona Republic, reports that the inmates, jails and sheriff have all changed since a class-action lawsuit was filed over county jail conditions 34 years ago, but ongoing concerns kept the lawsuit alive. That legal action, which over time changed the way Maricopa County holds and treats inmates, appears finally to be coming to an end -- if the Sheriff's Office can attend to a few minor issues in the next few months. Attorneys for inmates and the Sheriff's Office scheduled to present their cases to a federal judge in the decades-old fight canceled the hearings after lawyers on both sides agreed they were close enough to resolving a final few issues that they did not need to go before a judge. "If, in fact, we do what we intend to do, it should be done -- no hearing, nothing," said Jack MacIntyre, a sheriff's chief deputy. It would be a milestone. For years, county jails have been subject to court-ordered oversight to ensure that inmate conditions improved. While a separate piece of the lawsuit targeting Correctional Health Services -- a taxpayer-funded agency that provides constitutionally mandated health care to inmates -- will continue under court oversight, the fact that the rest of the Sheriff's Office's jail operations could emerge from oversight is significant. If the Sheriff's Office can, by early March 2012, increase the caloric intake of inmates, address overcrowding in a holding facility and prove there is proper sanitation, the agency will emerge from court oversight. Those requirements were part of an amended judgment issued by a federal judge. "We're pleased to see that the sheriff is agreeing to cooperate and resolve and come into compliance with the second amended judgment," said Sharad Desai, an attorney representing the inmates. Advocates say it has been a long time coming. Three inmates held in the First Avenue Jail brought the original lawsuit against then-Sheriff Jerry Hill in 1977, asking a federal court to intervene over conditions they claimed were "degrading, inhuman, punitive, unhealthy and dangerous." Court documents and news reports from the time depict jails that appear brutal compared with the spartan facilities Sheriff Joe Arpaio now proudly operates. The unsentenced inmates complained in court filings of cold food that could contain glass or spit and meat that was sometimes uncooked or dropped on the floor and served for dinner; of rodents and insects living in 136-square-foot cells with up to eight inmates who weren't allowed to shower for days; and of going days, weeks, even months without seeing the sun or getting the chance for recreation. Patrick Schiffer was a young attorney at the time working in a Community Legal Services office when he took the case in 1979, and while he calls the case the most fun he has had as a lawyer, he also recalls the horrid conditions. "They had 8-by-21-foot cells with eight people and a toilet at the end, so only about three guys could stand up at a time and they spent 24 hours a day in there because the day rooms between the cells were stacked with mattresses," he said. Mr. Schiffer's work on the case also made him skeptical about the county's commitment to change the jail system. Correctional Health Services' ongoing court oversight and Mr. Arpaio's inclination to make life hard on inmates leave Mr. Schiffer wondering about the effect of the court orders to improve conditions over the years. "That's been the problem from Day One of the judgment," Mr. Schiffer said. "They don't follow what they promise to do. They do some of it." The condition of jails in Maricopa County was not unique at the time. In the early 1970s, federal judges began getting involved in cases about prison conditions at the state and county levels, and what they found was shocking, said Michele Deitch, an attorney and University of Texas professor who served as a court-appointed monitor in Texas prisons. By the mid-1980s, nearly 40 states were operating all or parts of their prison and jail systems under some sort of court order, she said. "A lot of these problems were invisible for a long time. I think there were abuses in these facilities for many, many years. A lot of it was sort of swept under the rug," Ms. Deitch said. "When all the testimony about these conditions started coming out, they couldn't be ignored. So judges started imposing remedies to fix these conditions." Many of the cases, including Maricopa County's, took decades to resolve because it took years to get funding, build new facilities and change the culture of jail systems to meet the court-ordered remedies, she said. A federal judge first issued guidelines on legal compliance for Maricopa County jails in 1981. That judgment was amended in 1995. Then in 2001, the Sheriff's Office tried to terminate the judgment under the Prison Litigation Reform Act, which states that decrees on jail conditions are up for dismissal after two years unless inmates can show their constitutional rights are being denied. That led to U.S. District Judge Neil Wake's 2008 ruling that unconstitutional conditions persisted in the county's jails. Judge Wake issued a second amended judgment, which the Sheriff's Office is now trying to prove it has complied with. Despite the long-running legal battle and the millions spent to litigate the case, Mr. MacIntyre said the lawsuit has had a lasting impact on jail operations. It played a role in the county's decision to seek funding for new jail facilities, including the Lower Buckeye and Fourth Avenue jails, and caused detention officials to closely examine the way they treat and house inmates, he said. "There's certainly been some benefit from that. But it's time," Mr. MacIntyre said. "The system has benefited from it, but it's time to return all the management back to the Sheriff's Office." MICROSOFT CORP: Suit Ruling Review Pending in Canadian Supreme Ct. ------------------------------------------------------------------ A large number of antitrust and unfair competition class action lawsuits were filed against Microsoft Corporation in various state, federal, and Canadian courts on behalf of various classes of direct and indirect purchasers of the Company's PC operating system and certain other software products. The Company obtained dismissals or reached settlements of all claims that have been made to date in the United States. All settlements in the United States have received final court approval. Under the settlements, generally class members can obtain vouchers that entitle them to be reimbursed for purchases of a wide variety of platform-neutral computer hardware and software. The total value of vouchers that the Company may issue varies by state. The Company will make available to certain schools a percentage of those vouchers that are not issued or claimed (one-half to two-thirds depending on the state). The total value of vouchers the Company ultimately issue will depend on the number of class members who make claims and are issued vouchers. The maximum value of vouchers to be issued is approximately $2.7 billion. The actual costs of these settlements will be less than that maximum amount, depending on the number of class members and schools that are issued and redeem vouchers. The Company estimate the total cost to resolve all of the state overcharge class action cases will range between $1.9 billion and $2.0 billion. At September 30, 2011, the Company has recorded a liability related to these claims of approximately $538 million, which reflects the Company's estimated exposure of $1.9 billion less payments made to date of approximately $1.4 billion mostly for vouchers, legal fees, and administrative expenses. The three cases pending in British Columbia, Ontario, and Quebec, Canada have not been settled. In March 2010, the court in the British Columbia case certified it as a class action. On April 15, 2011, the British Columbia Court of Appeal reversed the class certification ruling and dismissed the case, holding that indirect purchasers do not have a claim. The plaintiffs have sought review by the Canadian Supreme Court. The other two actions have been stayed. No further updates were reported in the Company's October 20, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. PHARMACEUTICAL PRODUCT: Being Sold for Too Little, Suit Says ------------------------------------------------------------ Courthouse News Service reports that shareholders say Pharmaceutical Product Development is selling itself too cheaply to the Carlyle Group, for $3.9 billion, or $33.25 a share. A copy of the Complaint in Litwin v. Eshelman, et al., Case No. 11CV004333 (N.C. Super. Ct., New Hanover Cty.), is available at: http://www.courthousenews.com/2011/10/21/SCA.pdf The Plaintiff is represented by: David G. Schiller, Esq. Marvin Schiller, Esq. SCHILLER & SCHILLER, PLLC Professional Park at Pleasant Valley 5540 Munford Road, Suite 101 Raleigh, NC 27612 Telephone: (919) 789-4677 - and - Joseph H. Weiss, Esq. Mark D. Smilow, Esq. Richard A. Acocelli, Esq. WEISS & LURIE 551 Fifth Avenue, Suite 1600 New York, NY 10176 Telephone: (212) 682-3025 POWERCOR: Settles Bushfire Class Action for AUD40 Million --------------------------------------------------------- Cameron Houston and Michael Bachelard, writing for The Age, report that the first class action from the Black Saturday bushfires has been settled, with electricity distributor Powercor agreeing to pay Horsham residents and businesses up to AUD40 million. The conditional settlement will result in Powercor paying 66% of all losses from the Horsham fire. It is expected to have significant implications for four other cases seeking to recover huge losses caused by the devastating fires. Given the result at Horsham, several large insurance companies are now expected to help finance other legal challenges. Maddens Lawyers and Maurice Blackburn are understood to be locked in negotiations with several insurance giants which have taken a passive role in the legal proceedings to this point. The settlement requires approval from the Supreme Court next month, but faulty Powercor power lines were found to have caused the blaze that destroyed 13 houses and 2,346 hectares on the outskirts of Horsham. The payout of 66% of losses includes an 11% payment for interest owing. While Powercor refused to accept legal liability as a condition of the settlement, the company conceded the fire began on land owned by local farmer Laurie Thomas after a live power line fell from a pole and ignited grass. It was alleged several screws on the power line in question had come loose, which was blamed on inadequate maintenance. Brendan Pendergast, a director of Maddens Lawyers, which mounted the Horsham class action, said the five-week trial uncovered a series of maintenance failures that could influence other legal challenges involving fallen power lines. "I need to be careful with what I say, but there are many similarities between these fires and their causation, including those in Coleraine and Beechworth," Mr. Pendergast said. The decision by Powercor's lawyers to settle the matter is believed to have been influenced by the testimony of maintenance experts, including former SEC employees, who expressed serious concerns about the condition of Victoria's ageing electricity assets. Several criticized Powercor's decision to move from three-yearly inspections of electricity infrastructure to inspections every five years. The Kilmore East fire that claimed 119 lives has been blamed on a power line maintained by another electricity distributor, SP AusNet. The Bushfire Royal Commission found the wire that broke was probably installed in 1968. The class action for the Kilmore East blaze was recently deferred, and will not start until January 2013, but that case dwarfs all the others. As well as leaving 119 people dead, 1,242 homes were destroyed. Lawyers there are expected to seek losses of up to AUD1 billion on behalf of thousands of victims. SP AusNet has not admitted that its power line sparked the Kilmore East blaze, despite a finding by the royal commission that it did. Instead, the Singapore government-owned company has blamed the Country Fire Authority and other government agencies for failing to contain the fire. Mr. Pendergast said up to 300 farmers and local businesses could claim losses of almost AUD70 million from the Horsham fire alone. RAM MEDICAL: Faces Class Action Over Counterfeit Surgical Mesh -------------------------------------------------------------- Chris Fry at Courthouse News Service reports that a class action claims eight medical distributors sold sterile surgical mesh under the C.R. Bard label that was neither sterile nor made by Bard, but were "counterfeits made in the Republic of China." Bard is one of the defendants. Named plaintiff Irene Kirk Calo says she had counterfeit mesh implanted in her during a gastric banding operation on Oct. 21, 2009. She claims lead defendant RAM Medical recalled 16 lots of the surgical mesh in March 2010, and in June that year, "the FDA classified defendant RAM Medical's recall as a Class I recall, a designation reserved for the most serious types of recalls." Ms. Calo claims the mesh "was affixed with genuine Bard lot numbers" and represented "as if having been manufactured by C.R. Bard." Also sued are Amerimed Corp., Henry Schein Inc., Medline Industries, Marathon Medical Corp., MMS-A Medical Supply Co., and Q-Med Corp. Ms. Calo estimates that the class, of "all consumers in the United States who had defendants' counterfeit surgical mesh surgically implanted from September 1, 2007 until the present day," may "exceed one thousand individuals." "Surgical mesh is regularly used during surgical procedures to reinforce soft tissue in the body where weakness exists, such as in the repair of hernias and chest wall defects," according to the complaint. It continues: "The FDA has determined that surgical mesh manufactured or caused to be manufactured, marketed, distributed or sold by defendant is counterfeit. The counterfeit products were labeled and sold as 'Bard' brand surgical mesh but, upon information and belief, were counterfeits made in the Republic of China. "According to the FDA, RAM Medical, Inc., distributed the counterfeit surgical mesh between October 2008 and October 2009, and the counterfeit surgical mesh was affixed with genuine Bard lot numbers." Ms. Calo says the defendants claimed, inter alia, that "the product was sterile," that it had "been approved for surgical use by the United States Food and Drug Administration" and that it was "indicated for a specific surgical use." But she says the hospital where she had her surgery, the (nonparty) Lexington Medical Center in South Carolina, sent her a letter in July 2010 "informing her that the surgical mesh implanted during her October 2009 surgery was counterfeit surgical mesh." Ms. Calo claims the defendants "were able to and did charge a premium price for their counterfeit surgical mesh -- a price higher than that charged for similar products. In the condition in which defendants' counterfeit surgical mesh was sold, the counterfeit surgical mesh was of no value whatsoever to plaintiff or members of the class." Ms. Calo does not specify in the complaint whether she suffered a particular physical injury from the mesh. She says she and the class members "have sustained physical, mental, and/or emotional injuries, fright, inconvenience and interruption of or intrusion into their personal lives, and economic damages including loss of income, and that they continue to suffer harm because of defendants' wrongful conduct in violation of the law, as alleged herein." She seeks class damages for fraud, unjust enrichment, breach of warranty and product liability. A copy of the Complaint in Calo v. RAM Medical, Inc., et al., Case No. 4679-11 (N.J. Super. Ct., Passaic Cty.), is available at: http://www.courthousenews.com/2011/10/21/Mesh.pdf The Plaintiff is represented by: E. Drew Britcher, Esq. BRITCHER, LEONE & ROTH, L.L.C. 175 Rock Road Glen Rock, NJ 07452 Telephone: (201) 444-1644 SUPERVALU INC: Class Suit Over C&S Transaction Remains Pending -------------------------------------------------------------- In December 2008, a class action complaint was filed in the United States District Court for the Western District of Wisconsin against SUPERVALU INC. alleging that a 2003 transaction between the Company and C&S Wholesale Grocers, Inc. ("C&S") was a conspiracy to restrain trade and allocate markets. In the 2003 transaction, the Company purchased certain assets of the Fleming Corporation as part of Fleming Corporation's bankruptcy proceedings and sold certain assets of the Company to C&S which were located in New England. Since December 2008, three other retailers have filed similar complaints in other jurisdictions. The cases have been consolidated and are proceeding in the United States District Court for the District of Minnesota. The complaints allege that the conspiracy was concealed and continued through the use of non-compete and non-solicitation agreements and the closing down of the distribution facilities that the Company and C&S purchased from each other. Plaintiffs are seeking monetary damages, injunctive relief and attorneys' fees. The Company says it is vigorously defending these lawsuits. Separately from these civil lawsuits, on September 14, 2009, the United States Federal Trade Commission ("FTC") issued a subpoena to the Company requesting documents related to the C&S transaction as part of the FTC's investigation into whether the Company and C&S engaged in unfair methods of competition. The Company cooperated with the FTC. On March 18, 2011, the FTC notified the Company that it had determined that no additional action was warranted by the FTC and that it had closed its investigation. No further updates were reported in the Company's October 20, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 10, 2011. SUPERVALU INC: Wisc. Suit Still Stayed Pending IOS D&O Suit Ruling ------------------------------------------------------------------ In September 2008, a class action complaint was filed against SUPERVALU INC., as well as International Outsourcing Services, LLC ("IOS"), Inmar, Inc., Carolina Manufacturer's Services, Inc., Carolina Coupon Clearing, Inc. and Carolina Services, in the United States District Court in the Eastern District of Wisconsin. The plaintiffs in the case are a consumer goods manufacturer, a grocery co-operative and a retailer marketing services company who allege on behalf of a purported class that the Company and the other defendants (i) conspired to restrict the markets for coupon processing services under the Sherman Act and (ii) were part of an illegal enterprise to defraud the plaintiffs under the Federal Racketeer Influenced and Corrupt Organizations Act. The plaintiffs seek monetary damages, attorneys' fees and injunctive relief. The Company says it intends to vigorously defend this lawsuit, however all proceedings have been stayed in the case pending the result of the criminal prosecution of certain former officers of IOS. Although this lawsuit is subject to the uncertainties inherent in the litigation process, based on the information presently available to the Company, management does not expect that the ultimate resolution of this lawsuit will have a material adverse effect on the Company's financial condition, results of operations or cash flows. No further updates were reported in the Company's October 20, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 10, 2011. SUTHERLAND GLOBAL: Class Action Settlement Gets Final Approval -------------------------------------------------------------- Democrat and Chronicle reports that Sutherland Global Services Ltd. has settled a class-action lawsuit alleging it didn't pay its call center telemarketers the overtime they were owed. The lawsuit, filed in 2005 in U.S. District Court for the Western District of New York, was brought by a pair of Rochester employees of the Perinton-based business process outsourcing company. The suit eventually grew to 10 named employees and hundreds of unnamed workers, claiming they regularly worked more than 40 hours a week but were not paid overtime. Sutherland denied the allegations. But the company agreed in July to a $4 million settlement to be divvied up among members of the class. Under the settlement, Sutherland does not admit any violation of law. U.S. District Judge David G. Larimer last week gave final approval to the settlement, ending the litigation. TARGET CORP: Recalls 3,400 Children's Frog Masks ------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Target Corp., of Minneapolis, Minnesota, announced a voluntary recall of about 3,400 Children's Frog Masks. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The plush frog masks lack proper ventilation. When secured in place across a child's face, it presents a suffocation hazard to the child. No incidents or injuries have been reported. This recall involves child-sized frog-themed animal masks. The plush mask is green with yellow and red highlights. There are two eye cutouts and a green elastic band with a fastener used to secure the mask at the back of the child's head. UPC code 06626491474 is printed on a label attached to the mask. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12017.html The recalled products were manufactured in China and sold exclusively at Target stores nationwide from August 2011 through September 2011 for about $1. Consumers should immediately take masks from young children and return the product to any Target store for a full refund. For additional information, contact Target Guest Relations at (800) 440-0680 between 7:00 a.m. and 6:00 p.m. Central Time Monday through Friday, or visit the firm's Web site at http://www.target.com/ TICKETMASTER: Proposed Settlement Pending Approval in California ---------------------------------------------------------------- Thorin Klosowski, writing for Denver Westword, reports that in 2009, a class action lawsuit was filed against Ticketmaster by ticket buyers who were automatically redirected by Ticketmaster to TicketsNow.com, a reseller charging prices above face value. Between 2008 and 2009, ticket buyers across the country purchasing tickets for shows by acts like Bruce Springsteen, Miley Cyrus and Radiohead, among others, were redirected without notification. A proposed settlement of as much as $16,500,00 is pending approval in California District Court. In February 2009, Ellen Diamond filed a class action complaint against Ticketmaster in California District Court, and her suit was followed by ten additional suits, all making similar claims and all of which were consolidated into one action, with approximately 165,000 subsequent members of the class. Once the proposed settlement has been approved, the members of the class, which includes a number of Coloradans, will receive information about how to redeem the settlement, which, as proposed, is either $10 (thus the up to $16,500,000 figure) or a rebate on any future purchases made through TicketsNow.com equaling 18.5% of the total transaction. The settlement still requires final approval by a judge. Another provision of the proposed settlement involves Ticketmaster offering disclosure on an interstitial page when users are directed there from Ticketmaster. The proposed disclosure: "You are leaving the Ticketmaster.com Web site and linking with TicketsNow.com, a ticket resale marketplace. Tickets on our affiliate site, TicketsNow.com are at "market value" and often exceed the face value of the ticket. For more information about TicketNow, visit the FAQ page on TicketsNow.com." Deven Westword spoke with a few people who either missed out or paid extra for Springsteen tickets when he was in town in 2009. One ticket buyer remembers the TicketsNow.com price being about $70 more, and he was logging in at 10:00 a.m., right after tickets went on sale. Another tells Deven Westword that he thought the site had been hacked and decided not to purchase tickets online and instead rushed to a retail outlet. U.S. POSTAL SERVICE: Faces Millions of Grievance Payouts -------------------------------------------------------- Sean Reilly, writing for Federal Times, reports that besides paying tens of billions of dollars each year in compensation, operations and overhead costs, the financially strapped U.S. Postal Service has another huge annual expense: hundreds of millions of dollars in settlements to disgruntled employees and former employees. This year, the Postal Service more than doubled its projections of "probable" liabilities related to employee grievances and lawsuits: $641 million, according to the agency's latest quarterly financial report. The mail carrier booked another $88 million for possible payouts stemming from environmental, contract and tort claims. Grievance payouts alone cost the mail carrier $250 million in 2008 and $179 million in 2009, according to an inspector general's report last year. The mail carrier is the focus of thousands of grievances each year from members of its four unions over alleged contract violations. Postal officials did not respond to a Federal Times request for an accounting of the amounts spent in recent years to settle lawsuits and grievances. Moreover, it is unclear whether millions paid out in grievance settlements are even legitimate. Postal auditors found that the agency often failed to adequately document grievance payments. As a result, "there is no assurance that at least $27.8 million in grievance settlement payments were justified or warranted," the report said. Union officials sometimes received disproportionately large shares of class-action grievance settlements; in one case, a local union president received up to 35% of the money, while some other payees received less than 1%, the report said. Neither the president nor the union was identified. Underlying such episodes, the IG said, was the Postal Service's failure to establish procedures for ensuring that settlement recipients identified by the union were in fact part of a class action. Just recently, former Texas postal worker John Woods pleaded guilty to a misdemeanor charge of unlawful compensation over allegations that he used his union post to pocket money from class-action settlements. The plea agreement came as Mr. Woods, a one-time branch president of the National Postal Mail Handlers Union in Fort Worth, was set to go to trial on federal wire fraud charges for allegedly orchestrating a scheme in 2006-2007 to defraud union members at a local processing plant. According to the February indictment, Mr. Woods or his chief shop stewards filed grievances over purported contract violations, but then kept more than $225,000 in settlement money for themselves. Under the original charges, Mr. Woods could have faced years in prison. Assuming that a judge approves the plea agreement, he instead will have to pay $95,732 in restitution and spend some time on probation. Mr. Woods could not be reached for comment; officials at the Washington headquarters of the National Postal Mail Handlers Union did not return phone calls. Doug Tulino, the Postal Service's vice president for labor relations, disputed many of the IG's findings. Half of the cases reviewed by the IG involved informal pay adjustments that did not require the same level of documentation as formal grievances, Mr. Tulino said in a written reply to the report. While settlements must be reviewed to ensure that the money is going to the right people, he added, "ignoring the reality that [a] union official or member is harmed in a dispute" could be seen as a violation of federal protections for union activity. Under a separate law, however, the Postal Service was implementing new controls that would help managers track grievance payout activity and high-dollar amounts, he said. The Postal Service has since addressed the recommendations in the report, a spokeswoman for the inspector general's office said. Huge Class-Action Lawsuit A considerable portion of the liabilities the Postal Service has accounted for stems from one of the largest class-action discrimination cases ever considered by the Equal Employment Opportunity Commission. The case, dating back to 2006, charges that the Postal Service violated federal disability law under a now-ended program known as the National Reassessment Process that forced some employees out of the USPS workforce because no limited-duty assignments could be found for them after they were hurt on the job. Although the Postal Service described the size of the class only as "very large," an attorney for the plaintiffs, Jeremy Wright of Washington, put the figure at 130,000 past and present postal workers. The reassessment program ended in January. The Postal Service said it had concluded the reassessment of all employees working in modified assignments. In its latest quarterly financial report, for the three-month period ending in June, the Postal Service increased the amount of money booked for "probable losses from claims and suits" from $314 million last fall to $729 million. Asked about the reason for the jump, a USPS spokesman cited the EEOC case, which was certified as a class action last year. If the plaintiffs win, the impact on the Postal Service could be "material," the financial report said, adding that the Postal Service "intends to vigorously contest the matter." Lawyers expect to keep collecting information through the legal discovery process for another year, Mr. Wright said, adding that he did not know why the Postal Service opted to note the case as a possible liability this year. USPS spokesman Dave Partenheimer declined comment on the grounds that the matter is covered by attorney-client privilege. The complaint began with Sandra McConnell, a former mail carrier from Rochester, N.Y., who suffered a permanent back injury in 1997 after slipping on stairs while delivering mail. After returning to work, Ms. McConnell was given a job with modified duties that included customer assistance, warming up vehicles in winter and delivering mis-sent Priority Mail, according to a filing in her case. That ended in May 2006, when she was pushed out of her position by the National Reassessment Process, the filing said. Among other allegations, Ms. McConnell charged that the reassessment program targeted employees with disabilities and created a hostile work environment. While she and other plaintiffs have not put a dollar figure on the total amount of damages sought, possible relief would include reinstatement with back pay and compensatory damages, Mr. Wright said. Postal Service spokesman Mark Saunders said in a statement that the agency makes every attempt to find "necessary work" for employees who have physical limitations because of on-the-job injuries. Doing so, however, presents a growing challenge, Mr. Saunders said, because of both declining workload and increased automation. Launched in 2006, the National Reassessment Process reviewed assignments for tens of thousands of injured workers to make sure they still met the Postal Service's operating needs. When work was available that an individual employee with physical restrictions could perform, the Postal Service offered such options as a return to full duty with slight modification or part- time modified assignments, the statement said. If no job was available, employees were told of their right to file for workers' compensation from the Labor Department. WPX ENERGY: Appeal in Suit Over Gas Price Indices Remains Pending ----------------------------------------------------------------- An appeal relating to allegations of manipulating published gas price indices remains pending, according to WPX Energy, Inc.'s October 20, 2011, Form 10 filing with the U.S. Securities and Exchange Commission. In a letter dated October 19, 2011, and addressed to the stockholders of The Williams Companies, Inc., Alan Armstrong, its chief executive officer said that the Board of Directors of Williams approved the spin-off of its natural gas and oil exploration and production business as a separate, publicly traded company named as WPX Energy, Inc. Civil lawsuits based on allegations of manipulating published gas price indices have been brought against Williams and others, in each case seeking an unspecified amount of damages. Williams and WPX are currently defendants in class action litigation and other litigation originally filed in state court in Colorado, Kansas, Missouri and Wisconsin brought on behalf of direct and indirect purchasers of natural gas in those states. These cases were transferred to the federal court in Nevada. In 2008, the court granted summary judgment in the Colorado case in favor of Williams and most of the other defendants based on plaintiffs' lack of standing. On January 8, 2009, the court denied the plaintiffs' request for reconsideration of the Colorado dismissal and entered judgment in Williams' favor. WPX expects that the Colorado plaintiffs will appeal now that the court's order became final on July 18, 2011. In the other cases, on July 18, 2011, the Nevada district court granted Williams' joint motions for summary judgment to preclude the plaintiffs' state law claims because the federal Natural Gas Act gives the Federal Energy Regulatory Commission exclusive jurisdiction to resolve those issues. The court also denied the plaintiffs' class certification motion as moot. On July 22, 2011, the plaintiffs filed their notice of appeal with the Nevada district court. Because of the uncertainty around these current pending unresolved issues, including an insufficient description of the purported classes and other related matters, WPX says it cannot reasonably estimate a range of potential exposures at this time. However, it is reasonably possible that the ultimate resolution of these items could result in future charges that may be material to WPX's results of operations. Pursuant to the separation and distribution agreement, Williams will indemnify WPX for any cash payments (including indirect, punitive or consequential damages) incurred by WPX in connection with pending proceeding. WPX ENERGY: Royalty Interest Class Suit Pending in Colorado ----------------------------------------------------------- WPX Energy, Inc., continues to defend itself against a class action lawsuit filed by royalty interest owners in Garfield County, Colorado, according to the Company's October 20, 2011, Form 10 filing with the U.S. Securities and Exchange Commission. In a letter dated October 19, 2011, and addressed to the stockholders of The Williams Companies, Inc., Alan Armstrong, its chief executive officer said that the Board of Directors of Williams approved the spin-off of its natural gas and oil exploration and production business as a separate, publicly traded company named as WPX Energy, Inc. As previously reported, in September 2006, royalty interest owners in Garfield County, Colorado, filed a class action lawsuit in District Court, Garfield County, Colorado, alleging Williams improperly calculated oil and gas royalty payments, failed to account for the proceeds that Williams received from the sale of natural gas and extracted products, improperly charged certain expenses and failed to refund amounts withheld in excess of ad valorem tax obligations. Plaintiffs sought to certify a class of royalty interest owners, recover underpayment of royalties, and obtain corrected payments resulting from calculation errors. Williams entered into a final partial settlement agreement. The partial settlement agreement defined the class members for class certification, reserved two claims for court resolution, resolved all other class claims relating to past calculation of royalty and overriding royalty payments, and established certain rules to govern future royalty and overriding royalty payments. This settlement resolved all claims relating to past withholding for ad valorem tax payments and established a procedure for refunds of any such excess withholding in the future. The first reserved claim is whether Williams is entitled to deduct in its calculation of royalty payments a portion of the costs it incurs beyond the tailgates of the treating or processing plants for mainline pipeline transportation. Williams received a favorable ruling on its motion for summary judgment on the first reserved claim. Plaintiffs appealed that ruling and the Colorado Court of Appeals found in Williams' favor in April 2011. In June 2011, Plaintiffs filed a Petition for Certiorari with the Colorado Supreme Court. WPX anticipates that the Court will issue a decision on whether to grant further review later in 2011 or early in 2012. The second reserved claim relates to whether Williams is required to have proportionately increased the value of natural gas by transporting that gas on mainline transmission lines and, if required, whether Williams did so and is, thus, entitled to deduct a proportionate share of transportation costs in calculating royalty payments. WPX anticipates trial on the second reserved claim following resolution of the first reserved claim. WPX believes the royalty calculations have been properly determined in accordance with the appropriate contractual arrangements and Colorado law. At this time, the plaintiffs have not provided WPX a sufficient framework to calculate an estimated range of exposure related to their claims. However, it is reasonably possible that the ultimate resolution of this item could result in a future charge that may be material to WPX's results of operations. Pursuant to the separation and distribution agreement, Williams will indemnify WPX for any cash payments (including indirect, punitive or consequential damages) incurred by WPX in connection with pending proceeding. ********* 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 * * *