/raid1/www/Hosts/bankrupt/CAR_Public/111205.mbx
C L A S S A C T I O N R E P O R T E R
Monday, December 5, 2011, Vol. 13, No. 240
Headlines
ALEXANDER & BALDWIN: 9th Cir. Affirmed Suit Dismissal in Sept.
ALLERGAN INC: Sued Over Unlawful Botox Promotional Scheme
APOLLO GLOBAL: Deadline to Complete Fact Discovery on April 17
BEST BUY: Recalls 32T Rocketfish iPhone 3G Mobile Battery Cases
COMPUCREDIT HOLDINGS: Unit Still Defends "Greenwood" Class Suit
COMPUCREDIT HOLDINGS: Unit Still Defends "Knox" Suit in N.C.
COMPUTER SCIENCES: Awaits Ruling on Bid to Dismiss Virginia Suit
COMPUTER SCIENCES: Bid to Dismiss "Morefield" Suit Still Pending
CVB FINANCIAL: Awaits Ruling on Bid to Dismiss Consolidated Suit
EMDEON INC: Plaintiffs Dismiss Merger-Related Class Suits
FARMERS INSURANCE: Settles Nationwide Class Action
FIFTH THIRD: Antitrust Class Suit Still in Pre-Trial Phase
FIFTH THIRD: Appeals in ERISA-Violations Suits Remain Pending
FIFTH THIRD: Securities Class Suit Remains in Discovery Stage
FORD MOTOR: Settles Class Action Over Oakville Third Shift Plan
GENERAL MOTORS: Canadian Health Care Trust Implemented on Oct. 31
GENERAL MOTORS: Still Defends Suit by Unit's Ex-Canadian Dealers
GOV'T OF KOREA: KT 2G Service Users File Class Action v. KCC
GT ADVANCED: Class Suit in New Hampshire State Court Dismissed
HECKMANN CORP: Still Awaits Ruling on Bid to Dismiss Class Suit
HSBC FINANCE: Faces New Class Suit Over Debt Cancellation Issues
HSBC FINANCE: Still Awaits "Jaffe" Suit Claims Admin. Completion
HSBC FINANCE: Still Awaits Okay of Deal in Interchange Fees Suit
LIZ CLAIBORNE: Plaintiffs Did Not Appeal "Tyler" Suit Dismissal
LOJACK CORP: Awaits Approval of "Rutti" Federal Suit Settlement
LOJACK CORP: Fairness Hearing on "Morin" Suit Deal on Dec. 5
MOPHIE LLC: Recalls 6,118 iPod Touch External Battery Cases
MORGAN KEEGAN: Faces Class Action Over Unpaid Overtime Wages
OLD SECOND BANCORP: Completion of Discovery Set for Feb. 8
PFIZER: Ex-MP Terry Martin Joins Parkinson's Drug Class Action
PHARMASSET INC: Being Sold to Gilead for Too Little, Suit Claims
POSTROCK ENERGY: Awaits Approval of Kansas Suit Settlement
PROSHARES TRUST: Still Defends Consolidated Suit in New York
RASER TECHNOLOGIES: Rigrodsky & Egleston File Class Action
SSM HEALTH CARE: Sued Over Deceptive Billing Practices
ST. JUDE: Awaits Decision on Motion to Dismiss Securities Suit
ST. JUDE: Continues to Defend Suits Over Silzone(R) Coating
ST. JUDE: Delaware Court Dismissed Suit Over AGA Acquisition
STACY MAKHNEVICH: Faces Class Action Over "Privacy Agreement"
SWIFT TRANSPORTATION: "Sheer" Plaintiffs' Bid for Appeal Pending
SWIFT TRANSPORTATION: "Burnell" Class Suit Still Stayed in Calif.
SWIFT TRANSPORTATION: Defends Suits Over Orientation Payment
SWIFT TRANSPORTATION: Faces "Slack" Class Suit in Washington
SWIFT TRANSPORTATION: Faces Discrimination Class Suit in Illinois
SWIFT TRANSPORTATION: "Sanders" Class Suit Still Stayed in Calif.
SWIFT TRANSPORTATION: Stills Awaits Ruling in "Ham" Class Suit
SWIFT TRANSPORTATION: To Pursue Stayed Motions in "Garza" Suit
SWIFT TRANSPORTATION: Will Respond to Amended "Daniel" Suit Soon
SYNOVUS FINANCIAL: Continues to Defend Class Suit in Georgia
SYNOVUS FINANCIAL: Overdraft Fees-Related Suits Remain Pending
SYNOVUS FINANCIAL: Bid to Arbitrate in "Greenwood" Suit Pending
SYNOVUS FINANCIAL: Unit Can Seek Urgent Review in "Griner" Suit
TOWERS WATSON: Still Defends Consolidated Shareholder Class Suit
UNITED STATES: Dec. 20-22 Keepseagle Class Action Meetings Set
YONGYE INTERNATIONAL: Still Defends Securities Suits in New York
ZOCOR: May Face Class Action Over Drug Side Effects
* Draft Proposal on Class Action Sparks Debate in China
*********
ALEXANDER & BALDWIN: 9th Cir. Affirmed Suit Dismissal in Sept.
--------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit affirmed in
September 2011 the U.S. District Court for the Western District of
Washington's dismissal of the consolidated class action lawsuit
involving Alexander & Baldwin, Inc., and a subsidiary, the Company
disclosed in its November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
The Company and its subsidiary, Matson Navigation Company, Inc.,
were named as defendants in a consolidated civil lawsuit
purporting to be a class action in the U.S. District Court for the
Western District of Washington in Seattle. The lawsuit alleged
violations of the antitrust laws and also named as a defendant
Horizon Lines, Inc., another domestic shipping carrier operating
in the Hawaii and Guam trades. On August 18, 2009, the court
granted the defendants' motion to dismiss the complaint with leave
to amend the complaint to allege claims consistent with the
court's order. On May 28, 2010, the plaintiffs filed a second
amended complaint. On November 30, 2010, the judge dismissed the
complaint with prejudice. On December 22, 2010, the plaintiffs
filed an appeal to the Ninth Circuit Court of Appeals. On
September 29, 2011, the Ninth Circuit affirmed the District
Court's dismissal of the complaint with prejudice.
ALLERGAN INC: Sued Over Unlawful Botox Promotional Scheme
---------------------------------------------------------
Courthouse News Service reports that Allergan purposely
misrepresented that doctors can use one vial of Botox on multiple
patients to maximize profits, but in reality the oversize product
suffers from excessive packaging and a short shelf life, a federal
class action claims.
A copy of the Complaint in Garcia v. Allergan, Inc., Case No. 11-
cv-09811 (C.D. Calif.), is available at:
http://www.courthousenews.com/2011/11/30/botox.pdf
The Plaintiff is represented by:
Rosemary M. Rivas, Esq.
Danielle A. Stoumbos, Esq.
FINKELSTEIN THOMPSON LLP
100 Bush street, Suite #1450
Telephone: (415) 398-8700
E-mail: rrivas@finkelsteinthompson.com
dstoumbos@finkelsteinthompson.com
- and -
Tracy D. Rezvani, Esq.
Robert O. Wilson, Esq.
FINKELSTEIN THOMPSON LLP
1050 30th Street, N.W.
Washington, DC 20007
Telephone: (202) 337-8000
E-mail: trezvani@finkelsteinthompson.com
rwilson@finkelsteinthompson.com
- and -
Michael L. Kelly, Esq.
Behram V. Parekh, Esq.
KIRTLAND AND PACKARD LLP
2361 Rosecrans Avenue, Fourth Floor
El Segundo, CA 90245
Telephone: (310) 536-1000
E-mail: mlk@kirtlandpackard.com
bvp@kirtlandpackard.com
- and -
James D. Sill, Esq.
Matthew J. Sill, Esq.
SILL & MEDLEY PLLC
14005 N. Eastern Ave.
Edmond, OK 73013
Telephone: (405) 509-6300
E-mail: matt.sill@sillmedleylaw.com
jim.sill@sillmedleylaw.com
APOLLO GLOBAL: Deadline to Complete Fact Discovery on April 17
--------------------------------------------------------------
A Massachusetts court set April 17, 2012, as the deadline for
completing all fact discovery in an antitrust class action lawsuit
against Apollo Global Management, LLC, according to the Company's
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
On July 16, 2008, Apollo was joined as a defendant in a
pre-existing purported class action pending in Massachusetts
federal court against, among other defendants, numerous private
equity firms. The lawsuit alleges that beginning in mid-2003,
Apollo and the other private equity firm defendants violated the
U.S. antitrust laws by forming "bidding clubs" or "consortia"
that, among other things, rigged the bidding for control of
various public corporations, restricted the supply of private
equity financing, fixed the prices for target companies at
artificially low levels and allocated amongst themselves an
alleged market for private equity services in leveraged buyouts.
The lawsuit seeks class action certification, declaratory and
injunctive relief, unspecified damages and attorneys' fees. On
August 27, 2008, Apollo and its co-defendants moved to dismiss
plaintiffs' complaint and on November 20, 2008, the Court granted
the Company's motion. The Court also dismissed two other
defendants, Permira and Merrill Lynch. In an order dated
August 18, 2010, the Court granted in part and denied in part
plaintiffs' motion to expand the complaint and to obtain
additional discovery. The Court ruled that plaintiffs could amend
the complaint and obtain discovery in a second discovery phase
limited to eight additional transactions. The Court gave the
plaintiffs until September 17, 2010, to amend the complaint to
include the additional eight transactions. On September 17, 2010,
the plaintiffs filed a motion to amend the complaint by adding the
additional eight transactions and adding Apollo as a defendant.
On October 6, 2010, the Court granted plaintiffs' motion to file
the fourth amended complaint. Plaintiffs' fourth amended
complaint, filed on October 7, 2010, adds Apollo Global
Management, LLC, as a defendant. On November 4, 2010, Apollo
moved to dismiss, arguing that the claims against Apollo are time-
barred and that the allegations against Apollo are insufficient to
state an antitrust conspiracy claim.
On February 17, 2011, the Court denied Apollo's motion to dismiss,
ruling that Apollo should raise the statute of limitations issues
on summary judgment after discovery is completed. Apollo filed
its answer to the fourth amended complaint on March 21, 2011. On
July 11, 2011, the plaintiffs filed a motion for leave to file a
fifth amended complaint that adds ten additional transactions and
expands the scope of the class seeking relief. On September 7,
2011, the Court denied the motion for leave to amend without
prejudice and gave plaintiffs permission to take limited discovery
on the ten additional transactions. The Court set April 17, 2012,
as the deadline for completing all fact discovery.
Currently, the Company does not believe that a loss from liability
in this case is either probable or reasonably estimable. The
Court granted Apollo's motion to dismiss plaintiffs' initial
complaint in 2008, ruling that Apollo was released from the only
transaction in which it allegedly was involved. While plaintiffs
have survived Apollo's motion to dismiss the fourth amended
complaint, the Court stated in denying the motion that it will
consider the statute of limitations (one of the bases for Apollo's
motion to dismiss) at the summary judgment stage. Based on the
applicable statute of limitations, among other reasons, Apollo
believes that plaintiffs' claims lack factual and legal merit.
For these reasons, no estimate of possible loss, if any, can be
made at this time.
Apollo believes that this action is without merit and intends to
defend itself vigorously.
BEST BUY: Recalls 32T Rocketfish iPhone 3G Mobile Battery Cases
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Best Buy Co. Inc., of Richfield, Minnesota,
announced a voluntary recall of about 31,000 units of
Rocketfish(TM) Model RF-KL12 Mobile Battery Cases for iPhone 3G
and 3GS, and about 1,000 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 battery case can overheat while charging, posing a fire
hazard.
CPSC and the Company have received about 14 reports of the battery
cases overheating in the United States, including three reports of
minor burns to consumers and four reports of minor property
damage.
This recall includes the Rocketfish(TM) Model RF-KL12 Mobile
Battery Case. The battery case is made of black lightweight,
soft-touch rubberized material designed to hold the phone
securely, and comes with a built-in battery. The model number
"RF-KL12" appears on the front of the product's packaging, on the
packaging barcode, and in white print on the curved inner surface
of the product. Pictures of the recalled products are available
at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12048.html
The recalled products were manufactured in China and sold
exclusively at Best Buy stores nationwide, Future Shop and Best
Buy stores in Canada, and online from about April 2010 through
about September 2011 for between $10 and $60.
Consumers should immediately stop using the product and contact
Best Buy for instructions on returning the product and receiving a
Best Buy gift card for $70 or $105 in Canada. For additional
information, consumers should contact Best Buy toll-free at (800)
917-5737 between 8:00 a.m. and 8:00 p.m. Eastern Time any day, or
visit the firm's Web site at http://www.bestbuy.com/(US) or
http://www.bestbuy.ca/or http://www.futureshop.ca/(Canada).
COMPUCREDIT HOLDINGS: Unit Still Defends "Greenwood" Class Suit
---------------------------------------------------------------
CompuCredit Holdings Corporation's subsidiary, CompuCredit
Corporation, is named as a defendant in a class action lawsuit
entitled Wanda Greenwood, et al. vs. CompuCredit Corporation and
Columbus Bank and Trust, No. 4:08-cv-4878, filed in the U.S.
District Court for the Northern District of California. The
plaintiffs allege that in marketing and managing the Aspire Visa
card the defendants violated the federal Credit Repair
Organizations Act and California Unfair Competition Law. The
class includes all persons who within the four years prior to the
filing of the lawsuit were issued an Aspire Visa card or paid
money with respect thereto. The plaintiffs seek various forms of
damage, including unspecified monetary damages and the voiding of
the plaintiffs' obligations. The Company says it is vigorously
defending this lawsuit.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
COMPUCREDIT HOLDINGS: Unit Still Defends "Knox" Suit in N.C.
------------------------------------------------------------
CompuCredit Holdings Corporation's subsidiary, CompuCredit
Corporation, and five of the Company's other subsidiaries are
defendants in a purported class action lawsuit entitled Knox, et
al., vs. First Southern Cash Advance, et al., No. 5 CV 0445, filed
in the Superior Court of New Hanover County, North Carolina, on
February 8, 2005. The plaintiffs allege that in conducting a so-
called "payday lending" business, certain subsidiaries within the
Company's Retail Micro-Loans segment (the operations of which were
sold in October 2011, subject to the Company's retention of
liability for this litigation) violated various laws governing
consumer finance, lending, check cashing, trade practices and loan
brokering. The plaintiffs further allege that CompuCredit
Corporation was the alter ego of the subsidiaries and is liable
for their actions. The plaintiffs are seeking damages of up to
$75,000 per class member, and attorney's fees. These claims are
similar to those that have been asserted against several other
market participants in transactions involving small-balance,
short-term loans made to consumers in North Carolina. The Company
says it is vigorously defending this lawsuit.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
COMPUTER SCIENCES: Awaits Ruling on Bid to Dismiss Virginia Suit
----------------------------------------------------------------
Computer Sciences Corporation is awaiting a court decision on its
motion to dismiss a consolidated securities class action lawsuit
pending in Virginia, according to the Company's November 9, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2011.
Between June 3, 2011, and July 21, 2011, four putative class
action complaints were filed in the United States District Court
for the Eastern District of Virginia, entitled City of Roseville
Employee's Retirement System v. Computer Sciences Corporation, et
al. (No. 1:11-cv-00610-TSE-IDD), Murphy v. Computer Sciences
Corporation, et al. (No. 1:11-cv-00636-TSE-IDD), Kramer v.
Computer Sciences Corporation, et al. (No. 1:11-cv-00636-TSE-IDD)
and Goldman v. Computer Sciences Corporation, et al. (No. 1:11-cv-
777-TSE-IDD). On August 29, 2011, the four actions were
consolidated as In re Computer Sciences Corporation Securities
Litigation (No. 1:11-cv-610-TSE-IDD) and Ontario Teachers' Pension
Plan Board was appointed lead plaintiff. A consolidated class
action complaint was filed by plaintiff on September 26, 2011, and
names as defendants CSC, Michael W. Laphen, Michael J. Mancuso and
Donald G. DeBuck. A corrected complaint was filed on October 19,
2011.
The complaint alleges violations of the federal securities laws in
connection with alleged misrepresentations and omissions regarding
the business and operations of the Company. Specifically, the
allegations arise from the Company's disclosure of the Company's
investigation into certain accounting irregularities in the Nordic
region and its disclosure regarding the status of the Company's
agreement with U.K. National Health Service (NHS). Among other
things, the plaintiff seeks unspecified monetary damages. The
plaintiff filed a motion for class certification with the court on
September 22, 2011, and the defendants filed a motion to dismiss
on October 18, 2011. Both motions are fully briefed, a hearing
was held on November 4, 2011, and the motions are now pending
before the court.
The defendants deny the allegations and intend to defend their
position vigorously. The Company says it is not possible to make
reasonable estimates of the amounts or range of losses that could
result from this matter at this time.
COMPUTER SCIENCES: Bid to Dismiss "Morefield" Suit Still Pending
----------------------------------------------------------------
On May 29, 2009, a class action lawsuit entitled Shirley Morefield
vs. Computer Sciences Corporation, et al., Case No.
A-09-591338-C, was brought in state court in Clark County, Nevada,
against the Company and certain current and former officers and
directors asserting claims for declarative and injunctive relief
related to stock option backdating. The alleged factual basis for
the claims is the same as that which was alleged in a prior
derivative case, In re CSC Shareholder Derivative Litigation, CV
06-5288, filed in U.S. District Court in Los Angeles, which was
dismissed on August 9, 2007, by such court. This dismissal was
affirmed on appeal by the Ninth Circuit, which judgment is final.
The defendants in the Morefield case deny the allegations in the
complaint. On June 30, 2009, the Company removed the case to the
United States District Court for the District of Nevada, Case No.
2:09-cv-1176-KJD-GWF. On motion made by the plaintiffs, the
District Court remanded the case to state court on February 18,
2010. Defendants filed a motion to dismiss on April 30, 2010, and
plaintiffs filed their opposition on June 14, 2010. A hearing
took place on August 18, 2010. A decision is pending. The
Company says it is not possible to make reasonable estimate of the
amount or range of loss, if any, that could result from this
matter at this time.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
CVB FINANCIAL: Awaits Ruling on Bid to Dismiss Consolidated Suit
----------------------------------------------------------------
CVB Financial Corp. is awaiting a court decision on its motion to
dismiss a purported shareholder class action lawsuit pending in
California, according to the Company's November 9, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011.
On August 23, 2010, a purported shareholder class action complaint
was filed against the Company in an action captioned Lloyd v. CVB
Financial Corp., et al., Case No. CV 10-06256-MMM, in the United
States District Court for the Central District of California.
Along with the Company, Christopher D. Myers (President and Chief
Executive Officer) and Edward J. Biebrich Jr. (former Chief
Financial Officer) were also named as defendants. On September
14, 2010, a second purported shareholder class action complaint
was filed against the Company in an action originally captioned
Englund v. CVB Financial Corp., et al., Case No. CV 10-06815-RGK,
in the United States District Court for the Central District of
California. The Englund complaint named the same defendants as
the Lloyd complaint and made allegations substantially similar to
those included in the Lloyd complaint.
On January 21, 2011, the Court consolidated the two actions for
all purposes under the Lloyd action now captioned as Case No. CV
10-06256-MMM (PJWx). That same day, the Court also appointed the
Jacksonville Police and Fire Pension Fund (the "Jacksonville
Fund") as lead plaintiff and approved the Jacksonville Fund's
selection of lead counsel.
On March 7, 2011, the Jacksonville Fund filed a consolidated
complaint naming the same defendants and alleging violations by
all defendants of Section 10(b) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder and violations by the
individual defendants of Section 20(a) of the Exchange Act.
Specifically, the complaint alleges that defendants misrepresented
and failed to disclose conditions adversely affecting the Company
throughout the purported class period, which is alleged to be
between October 21, 2009, and August 9, 2010. The complaint seeks
compensatory damages and other relief in favor of the purported
class. On May 13, 2011, defendants filed a motion to dismiss the
consolidated complaint. Following the filing by each side of
supplemental motions and memoranda, the District Court conducted a
hearing on August 29, 2011, and the parties are awaiting the
judge's ruling on the motion to dismiss.
The Company says it cannot predict any range of loss or even if
any loss is probable related to the action because the case is in
its early stages.
EMDEON INC: Plaintiffs Dismiss Merger-Related Class Suits
---------------------------------------------------------
Plaintiffs dismissed their merger-related class action lawsuits
against Emdeon Inc. and other entities involved in that merger,
according to the Company's November 9, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2011.
On August 3, 2011, the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Beagle Parent Corp.
("Parent") and Beagle Acquisition Corp. ("Merger Sub"), an
indirect wholly-owned subsidiary of Parent. At a special meeting
of stockholders held on November 1, 2011, the Company's
stockholders voted to approve the transactions contemplated by the
Merger Agreement. On November 2, 2011, Merger Sub merged with and
into the Company with the Company surviving the merger (the
"Merger"). Subsequent to the Merger, the Company became an
indirectly wholly-owned subsidiary of Parent, which is controlled
by affiliates of The Blackstone Group L.P. ("Blackstone").
Six putative stockholder class action lawsuits were filed in
connection with the Merger, each of which sought to enjoin the
Merger, generally alleging that the Company's board of directors
breached its fiduciary duties to its stockholders in connection
with the Merger and that the Company, certain investment funds
affiliated with Blackstone, General Atlantic LLC and Hellman &
Friedman LLC ("H&F") each aided and abetted that breach. Four of
those lawsuits were filed in Delaware Chancery Court between
August 5, 2011, and August 10, 2011, and were subsequently
consolidated into a single action (the "Delaware Action") which
named as defendants the Company, its directors, Blackstone,
General Atlantic and H&F. A fifth lawsuit was filed in the
Chancery Court for Davidson County, Tennessee, Twentieth Judicial
District, on August 10, 2011 (the "Tennessee Chancery Action"),
which named as defendants the Company, its directors and
Blackstone. A sixth lawsuit was filed in United States District
Court for the Middle District of Tennessee, on September 6, 2011
(the "Tennessee Federal Court Action"), purportedly alleging
violations of Sections 14(a) and 20(a) of the Exchange Act and
regulations promulgated thereunder, in addition to claims that the
Company's board of directors breached its fiduciary duties to its
stockholders in connection with the Merger and that the Company,
Blackstone, General Atlantic and H&F aided and abetted that
breach, and naming as defendants the Company, its directors,
Blackstone, General Atlantic and H&F. The plaintiff in the
Tennessee Chancery Action filed an amended complaint on
September 6, 2011. The plaintiff in the Tennessee Federal Court
Action filed an amended complaint on September 12, 2011.
On October 19, 2011, the plaintiff in the Tennessee Federal Court
Action filed a notice of voluntary dismissal, and on October 20,
2011, the Middle District of Tennessee dismissed the action
without prejudice. On October 24, 2011, the plaintiffs in the
Tennessee Chancery Action filed a notice of voluntary dismissal,
and on November 7, 2011, the Tennessee Chancery Court dismissed
the action without prejudice. On October 25, 2011, the plaintiffs
in the Delaware Action filed a notice of voluntary dismissal, and
on October 28, 2011, the Delaware Chancery Court dismissed the
action with prejudice as to the plaintiffs.
FARMERS INSURANCE: Settles Nationwide Class Action
--------------------------------------------------
Farmers Insurance entered into a settlement of a nationwide class
action lawsuit, In Re Farmers Med-Pay Litigation, pending in the
District Court of Canadian County, Oklahoma. The settlement
includes Farmers Insurance Company, Inc., Farmers Insurance
Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-
Century Insurance Company, Farmers Group, Inc., Illinois Farmers
Insurance Company, and certain related entities. The Court
entered a final order approving the settlement on November 29,
2011.
Plaintiffs alleged that Farmers failed to pay reasonable expenses
for necessary medical services related to automobile accidents
under Medical Payments ("Med-pay") and Personal Injury Protection
("PIP") coverage in automobile policies based on Farmers' use of
certain claim adjustment systems and procedures. Farmers denies
all of Plaintiffs' claims in the lawsuit. However, Farmers agreed
to resolve the lawsuit to avoid the burden and expense of
continued litigation.
The Settlement Class includes all persons who submitted claims for
payment of medical bills related to an automobile accident under
Med-pay or PIP coverage if (a) the claim was adjusted from January
1, 2001 to February 9, 2009 based upon a recommended reduction
from Zurich Services Corporation, (b) the claim was paid at less
than the amount billed, and (c) total Med-pay or PIP payments were
less than the respective limits of coverage. The Class also
includes medical providers who were assigned the right to assert
these claims.
Those affected by this settlement must complete and submit a valid
claim form postmarked no later than December 29, 2011. Further
information and claim forms can be obtained by visiting
http://www.MedpayClaimsAdministration.comor calling 1-877-846-
0588.
Farmers Insurance Group of Companies -- http://www.farmers.com--
is the country's 3rd largest insurer of both personal lines
passenger automobile and homeowners insurance, and also provides a
wide range of other insurance and financial services products.
Farmers Insurance serves more than 10 million households with more
than 20 million individual policies across all 50 states through
the efforts of over 50,000 exclusive and independent agents and
nearly 24,000 employees.
Farmers Group, Inc., a management and holding company, along with
its subsidiaries, is wholly owned by the Zurich Financial Services
Group. The Farmers Exchanges are three reciprocal insurers
(Farmers Insurance Exchange, Fire Insurance Exchange and Truck
Insurance Exchange), including their subsidiaries and affiliates,
owned by their policyholders, and managed by Farmers Group, Inc.
and its subsidiaries.
FIFTH THIRD: Antitrust Class Suit Still in Pre-Trial Phase
----------------------------------------------------------
During April 2006, Fifth Third Bancorp was added as a defendant in
a consolidated antitrust class action lawsuit originally filed
against Visa(R), MasterCard(R) and several other major financial
institutions in the United States District Court for the Eastern
District of New York. The plaintiffs, merchants operating
commercial businesses throughout the U.S. and trade associations,
claim that the interchange fees charged by card-issuing banks are
unreasonable and seek injunctive relief and unspecified damages.
In addition to being a named defendant, the Bancorp is also
subject to a possible indemnification obligation of Visa and has
also entered into with Visa, MasterCard and certain other named
defendants judgment and loss sharing agreements that attempt to
allocate financial responsibility to the parties thereto in the
event certain settlements or judgments occur. Accordingly, prior
to the sale of Class B shares during 2009, the Bancorp had
recorded a litigation reserve of $243 million to account for its
potential exposure in this and related litigation. Additionally,
the Bancorp had also recorded its proportional share of $199
million of the Visa escrow account funded with proceeds from the
Visa IPO along with several subsequent fundings. Upon the
Bancorp's sale of Visa, Inc. Class B shares during 2009, and the
recognition of the total return swap that transfers conversion
risk of the Class B shares back to the Bancorp, the Bancorp
reversed the remaining net litigation reserve related to the
Bancorp's exposure through Visa. Additionally, the Bancorp has
remaining reserves related to this litigation of $31 million, $30
million and $30 million as of September 30, 2011, December 31,
2010 and September 30, 2010, respectively. This antitrust
litigation is still in the pre-trial phase.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
FIFTH THIRD: Appeals in ERISA-Violations Suits Remain Pending
-------------------------------------------------------------
Two cases were filed in the United States District Court for the
Southern District of Ohio against Fifth Third Bancorp and certain
officers alleging violations of the Employee Retirement Income
Security Act of 1974 ("ERISA") based on allegations similar to
those set forth in the securities class action cases filed during
the same period of time. The two cases alleging violations of
ERISA were dismissed by the trial court, and are being appealed to
the United States Sixth Circuit Court of Appeals.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
FIFTH THIRD: Securities Class Suit Remains in Discovery Stage
-------------------------------------------------------------
For the year ended December 31, 2008, five putative securities
class action complaints were filed against Fifth Third Bancorp and
its Chief Executive Officer, among other parties. The five cases
have been consolidated, and are currently pending in the United
States District Court for the Southern District of Ohio. The
lawsuits allege violations of federal securities laws related to
disclosures made by the Bancorp in press releases and filings with
the SEC regarding its quality and sufficiency of capital, credit
losses and related matters, and seeking unquantified damages on
behalf of putative classes of persons who either purchased the
Bancorp's securities, or acquired the Bancorp's securities
pursuant to the acquisition of First Charter Corporation. These
cases remain in the discovery stages of litigation. The Company
says the impact of the final disposition of these lawsuits cannot
be assessed at this time.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
FORD MOTOR: Settles Class Action Over Oakville Third Shift Plan
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Steve Buist, writing for TheSpec.com, reports that more than 300
people who were newly hired employees of Ford Motor Company have
won a settlement in their class-action lawsuit against the
Oakville automaker.
The $835,000 settlement resolves a three-year-old lawsuit that was
launched when Ford abandoned its plan to introduce a third shift
at the Oakville plant in July 2008.
About 350 people had been offered employment by the company, gone
through medical checks and been given their start dates.
A week before they were about to begin, however, the new workers
were told that the third shift had been delayed.
Days after the postponement was announced, Ford's U.S. parent
company announced its worst quarterly results ever -- a loss of
nearly $8.7 billion US. A couple of weeks later, Ford indicated
that the third shift in Oakville had been cancelled and the new
workers were left without jobs.
Under the terms of the settlement, the 300 newly hired employees
who were part of the class-action lawsuit will each receive
approximately $830 as a base amount, which was intended to
represent about two weeks of net pay.
Each prospective worker can also submit a supplemental claim for
up to $10,000 if the worker can show there were additional
hardships suffered. In some cases, for instance, the affected
people may have left a job to accept Ford's offer of employment.
Ford is also offering each affected person discounts ranging from
$500 to $1,500 that can be applied to the purchase of a new Ford
vehicle.
About 55 people who opted out of the class-action lawsuit will
also be given the opportunity to opt back in.
"We're happy the court approved the settlement and found it to be
fair and reasonable," said Hamilton lawyer David Thompson, one of
the legal representatives for the class-action members.
"While not a huge ultimate dollar value, it has significantly
affected roughly 350 individuals and I'm sure for them it's an
important issue and we pursued it and treated it as an important
issue," added Mr. Thompson, a lawyer with Scarfone Hawkins LLP.
Ford's only comment on the settlement was a brief three-line
statement sent by email.
"We are pleased that a resolution has been reached," read the
company's statement.
The court-approved settlement also includes a clause at Ford's
request that prohibits a press release from being distributed.
"The parties acknowledge and agree that there shall be no press
release or advertisement or other public announcement in relation
to this matter," the settlement states.
Mr. Thompson said the inclusion of such nondisclosure clauses is a
growing trend when it comes to class-action settlements.
"I think it is a provision that is intended to control the
communication or message that goes out to class members," said
Thompson, "and that is, in my position as the plaintiffs' lawyer,
an understandable and fair consideration when communicating with a
group of people who have been affected by an action. "
Ford's statement simply noted that "this type of provision is
typical."
The settlement also notes that Ford has agreed to donate any
unclaimed funds from the supplemental compensation pool to the
United Way.
GENERAL MOTORS: Canadian Health Care Trust Implemented on Oct. 31
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The implementation date of the Canadian Health Care Trust occurred
on October 31, 2011, following the achievement of certain
conditions relating to a settlement between Canadian Auto Workers
Union and General Motors Company's Canadian unit, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
In December 2009 and May 2010 in furtherance of implementing its
restructuring plan and pursuant to a June 2009 agreement between
General Motors of Canada Limited (GMCL) and the Canadian Auto
Workers Union (CAW) to establish an independent Canadian Health
Care Trust (HCT) to provide retiree healthcare benefits to certain
active and retired employees, litigation commenced regarding
GMCL's right to unilaterally amend and terminate postretirement
healthcare benefits. The parties reached a settlement to
consensually resolve the litigation, which was approved on
September 13, 2011, by the Ontario Superior Court and was approved
on September 19, 2011, by the Quebec Superior Court. At September
30, 2011, the settlement was not implemented because certain
conditions precedent to the settlement had not been met, including
the expiration of the time period allowed for individual CAW
retirees and surviving spouses to decide to opt out of
participation in the class action process. GMCL is obligated to
make a payment to the HCT of CAD $1.0 billion within 10 days of
the HCT implementation date, October 31, 2011, which it will fund
out of its CAD $1.0 billion escrow funds, adjusted for the net
difference between the amount of retiree monthly contributions
received during the period January 1, 2010, through the HCT
implementation date less the cost of benefits paid for claims
incurred by covered employees during this period and certain
related costs. GMCL also provided to the HCT a CAD $800 million
note payable with interest accruing at an annual rate of 7.0%
starting January 1, 2010, with five equal annual installments of
CAD $256 million due December 31, 2014, through 2018. In
addition, GMCL will make two additional payments of CAD $130
million each on December 31, 2014, and 2015. Concurrent with the
implementation of the HCT, GMCL is legally released from all
obligations associated with the cost of providing retiree
healthcare benefits to CAW retirees and surviving spouses bound by
the class action process and to CAW active employees as of June 8,
2009. As a result of conditions precedent to the settlement not
having yet been achieved as of September 30, 2011, there was no
accounting recognition for the HCT at September 30, 2011.
In October 2011 the time period allowed for individual CAW
retirees and surviving spouses to decide to opt out of
participation in the class action process elapsed. The conditions
precedent to the settlement have been achieved and the HCT
implementation date occurred on October 31, 2011, with the
transfer of escrow funds set to occur in November.
The Company says it will account, in the three months ending
December 31, 2011, for the related termination of CAW hourly
retiree healthcare benefits as a settlement, and record a gain of
approximately $800 million, based upon the difference between the
fair value of the notes of approximately $1.1 billion and cash
contributed and the healthcare plan obligation (as at the
implementation date) relating to individuals who in the future
will have their health care benefits provided by the HCT.
GENERAL MOTORS: Still Defends Suit by Unit's Ex-Canadian Dealers
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General Motors Company continues to defend a class action lawsuit
brought by former dealers of its Canadian unit, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
On February 12, 2010, a claim was filed in the Ontario Superior
Court of Justice against General Motors of Canada Limited (GMCL)
on behalf of a purported class of over 200 former Canadian GMCL
dealers (the Plaintiff Dealers) which had entered into wind-down
agreements with GMCL. In May 2009, in the context of the global
restructuring of the business and the possibility that GMCL might
be required to initiate insolvency proceedings, GMCL offered the
Plaintiff Dealers the wind-down agreements to assist with their
exit from the GMCL Canadian dealer network and to facilitate
winding down their operations in an orderly fashion by
December 31, 2009, or such other date as GMCL approved but no
later than upon the expiration of the Plaintiff Dealers' Dealer
Sales and Service Agreements (DSSAs) on October 31, 2010. The
Plaintiff Dealers allege that the DSSAs were wrongly terminated by
GMCL and that GMCL failed to comply with certain disclosure
obligations, breached its statutory duty of fair dealing and
unlawfully interfered with the Plaintiff Dealers' statutory right
to associate in an attempt to coerce the Plaintiff Dealers into
accepting the wind-down agreements. The Plaintiff Dealers seek
damages and assert that the wind-down agreements are rescindable.
The Plaintiff Dealers' initial pleading makes reference to a claim
"not exceeding" CAD $750 million, without explanation of any
specific measure of damages.
On March 1, 2011, the Court approved certification of a class for
the purpose of deciding a number of specifically defined issues,
including: (1) whether GMCL breached its obligation of "good
faith" in offering the wind-down agreements; (2) whether GMCL
interfered with the Plaintiff Dealers' rights of free association;
(3) whether GMCL was obligated to provide a disclosure statement
and/or disclose more specific information regarding its
restructuring plans in connection with proffering the wind-down
agreements; and (4) assuming liability, whether the Plaintiff
Dealers can recover damages in the aggregate (as opposed to
proving individual damages). On June 22, 2011, the court granted
GMCL permission to appeal the class certification decision.
No further updates were reported in the Company's latest SEC
filing.
At this juncture, the Company says the prospects for liability are
uncertain, but because liability is not deemed probable, the
Company has no accrual relating to this litigation. In addition,
the Company cannot estimate the range of reasonably possible loss
in the event of liability, as the case presents a variety of
different legal theories, none of which GMCL believes are valid,
on behalf of a large number of Plaintiff Dealers, each of which
presents substantial differences in underlying facts and
circumstances which GMCL believes should affect both potential
liability and recoverable damages, if any, on an individual basis.
GOV'T OF KOREA: KT 2G Service Users File Class Action v. KCC
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Lee Hyo-sik, writing for The Korea Times, reports that nearly
1,000 users of second-generation (2G) handsets have filed a class
action lawsuit against the Korea Communications Commission (KCC)
to nullify the regulator's approval of KT's plan to end its 2G
wireless service.
Jang Baek, a law firm in southern Seoul, said on Nov. 30 that it
filed the suit with the Seoul Administrative Court against KCC on
behalf of 970 individual 2G service users of the country's second-
largest wireless service provider.
"We filed the class-action suit against the communications
regulator Wednesday afternoon in a bid to invalidate the decision
allowing KT to halt 2G mobile service on Dec. 8," lawyer Choi Soo-
jin said. "We also asked the court to suspend KCC's approval
until it issues a verdict on the matter."
After rejecting KT's two previous bids, the regulator voted on
Nov. 23 to approve the company plan to end its 2G wireless service
in the 1.8 gigahertz bandwidth. The approval enables Korea's
second-biggest mobile operator to begin long-term evolution (LTE)
service on the band.
Ms. Choi argued KCC violated the Electro Communications Business
Act that requires both landline and wireless communications
service providers to notify users of service changes 60 days in
advance.
"Under the law, if KT's 2G service comes to an end on Dec. 8, the
company should have informed 2G handset users of its plan to
terminate services before Oct. 8. But it did not. This clearly
breached the communications act," the lawyer said. "Additionally,
KT was engaged in dubious activities to artificially reduce the
number of 2G service users in order to get the regulator's
approval."
Before allowing KT to halt the 2G services, KCC should look into
the company's unlawful behavior.
Ms. Choi said she will consider initiating another class-action
lawsuit seeking compensation after the administrative court ruled
on the initial suit. "Nearly 160,000 2G users will be affected by
KCC's decision. They should have been given a chance to voice
their views," the lawyer said.
The commission rejected KT's previous requests in April and July,
saying the company's number of 2G handset users was too large to
force an end to the service.
KT, which had 1.1 million 2G mobile phone users in March, only had
340,000 users by August after waging aggressive marketing
campaigns to woo 2G mobile phone users to upgrade to third-
generation (3G) handsets.
Though its dogged methods sometimes faced a backlash and
complaints from 2G users, the number dropped to below 160,000 in
November, less than 1 percent of its wireless subscribers. The
remaining 2G users can either subscribe to 3G mobile services or
switch mobile carriers.
GT ADVANCED: Class Suit in New Hampshire State Court Dismissed
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A putative securities class action lawsuit filed in New Hampshire
state court has been dismissed pursuant to a settlement agreement
resolving similar lawsuits pending in federal court, according to
GT Advanced Technologies Inc.'s November 9, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended October 1, 2011.
Beginning on August 1, 2008, seven putative securities class
action lawsuits were commenced in the United States District Court
for the District of New Hampshire, or the Court, against the
Company, certain of its officers and directors, certain
underwriters of its July 24, 2008 initial public offering and
others, including certain of its investors, together called the
"federal class actions." In addition, on September 18, 2008, a
putative securities class action was filed in New Hampshire state
court in the Superior Court for Hillsborough County, Southern
District, or the State Court, under the caption Hamel v. GT Solar
International, Inc., et al., against the Company, certain of its
officers and directors and certain underwriters of its July 24,
2008 initial public offering, called the "state class action."
Both the federal class actions and the state class action asserted
claims under various sections of the Securities Act of 1933, as
amended. The plaintiffs in these actions alleged, among other
things, that the defendants made false and materially misleading
statements and failed to disclose material information in certain
SEC filings, including the registration statement and Prospectus
for the Company's July 24, 2008 initial public offering, and other
public statements, regarding its business relationship with LDK
Solar, Ltd., one of its customers, JYT Corporation, one of its
competitors, and certain of its products, including the
directional solidification ("DSS") furnaces.
On March 7, 2011, the Company announced that it had reached an
agreement in principle to settle both the federal class actions
and the state class action. The parties subsequently memorialized
their agreement in a stipulation of settlement (the "Settlement
Agreement") that was filed with the Court. The Settlement
Agreement provided, among other things, that: (i) the Company and
all other defendants made no admission of liability or wrongdoing,
(ii) the Company and all other defendants would receive a full and
complete release of all claims that were or could have been
brought against all defendants in both the federal and state
securities actions, (iii) the Company would pay $10,500,000 into a
settlement fund. Of this amount, the Company contributed $1
million and the Company's liability insurers contributed the
remaining $9,500,000. The Company's contribution represented its
contractual indemnification obligation to its underwriters.
On September 27, 2011, after a hearing to consider the fairness
and adequacy of the settlement, the court entered a final judgment
(the "Order") approving the settlement and dismissing the federal
class actions. Pursuant to the Settlement Agreement, the state
class action was also dismissed as a result of the entry of the
Order.
HECKMANN CORP: Still Awaits Ruling on Bid to Dismiss Class Suit
---------------------------------------------------------------
Heckmann Corporation is still awaiting a court decision on its
motion to dismiss a class action lawsuit, which motion a
magistrate judge recommended to deny, according to the Company's
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
On May 21, 2010, Richard P. Gielata, an individual purporting to
act on behalf of shareholders, served a class action lawsuit filed
May 6, 2010, against the Company and various directors and
officers in the United States District Court for the District of
Delaware (the "Class Action"). The Class Action alleges
violations of federal securities laws in connection with the
acquisition of China Water & Drinks, Inc. The Company responded
by filing a motion to transfer the Class Action to California and
a motion to dismiss the case. On October 6, 2010, the Magistrate
Judge issued a report and recommendation to the District Court
Judge to deny the motion to transfer. On October 8, 2010, the
court-appointed lead plaintiff, Matthew Haberkorn, filed an
Amended Class Action Complaint that adds China Water as a
defendant. On October 25, 2010, the Company filed objections to
the Magistrate Judge's report and recommendation on the motion to
transfer. The court adopted the report and recommendation on the
motion to transfer on March 31, 2011. The Company filed a motion
to dismiss the Amended Class Action Complaint and a reply to lead
plaintiff's opposition to the motion to dismiss. On June 16,
2011, the Magistrate Judge issued a report and recommendation to
the District Court Judge to deny the motion to dismiss. The
Company filed objections to the Magistrate Judge's report and
recommendation on the motion to dismiss. Plaintiff has filed a
response to the Company's objections. On October 25, 2011, the
court heard oral argument on the Company's objections to the
report and recommendation on the motion to dismiss. The court has
not yet ruled on the objections.
The Company says the outcome of the Class Action could have a
material adverse effect on its consolidated financial statements.
HSBC FINANCE: Faces New Class Suit Over Debt Cancellation Issues
----------------------------------------------------------------
HSBC Finance Corporation is facing a new class action lawsuit in
connection with the marketing, selling and administering of debt
cancellation and suspension products to consumers, according to
the Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
Between July 2010 and May 2011, eight substantially similar
putative class actions were filed against the Company's
subsidiaries, HSBC Bank Nevada, N.A. ("HSBC Bank Nevada") and HSBC
Card Services Inc.: Rizera et al. v. HSBC Bank Nevada et al.
(D.N.J. No. 10-CV-03375); Esslinger et al v. HSBC Bank Nevada,
N.A. et al. (E.D. Pa. No. 10-CV-03213); McAlister et al. v. HSBC
Bank Nevada, N.A. et al. (W.D. Wash. No. 10-CV-05831); Mitchell v.
HSBC Bank Nevada, N.A. et al. (D. Md. No. 10-CV-03232); Samuels v.
HSBC Bank Nevada, N.A. et al. (N.D. III. No. 11-CV-00548);
McKinney v. HSBC Card Services et al. (S.D. III. No. 10-CV-00786);
Chastain v. HSBC Bank Nevada, N.A. (South Carolina Court of Common
Pleas, 13th Circuit) (filed as a counterclaim to a pending
collections action); Colton et al. v. HSBC Bank Nevada, N.A. et
al. (C.D. Ca. No. 11-CV-03742). These actions principally allege
that cardholders were enrolled in debt cancellation or suspension
products and challenge various marketing or administrative
practices relating to those products. The plaintiffs' claims
include breach of contract and the implied covenant of good faith
and fair dealing, unconscionability, unjust enrichment, and
violations of state consumer protection and deceptive acts and
practices statutes. The Mitchell action was withdrawn by the
plaintiff in March 2011. In July 2011, the parties in Rizera,
Esslinger, McAlister, Samuels, McKinney and Colton executed a
memorandum of settlement and filed notices of settlement of all
claims in each respective court. The parties are currently in the
process of memorializing the terms and conditions of settlement in
a formal agreement, which will be submitted to one court on a
consolidated basis for approval. The Company says it is
adequately reserved for the proposed settlement. A motion for
class certification and a motion to defer consideration of class
certification pending completion of the settlement were recently
heard in the Chastain action. A ruling is expected shortly.
In October 2011, the Attorney General for the State of West
Virginia filed a purported class action in the Circuit Court of
Mason County, West Virginia, captioned State of West Virginia ex
rel. Darrell V. McGraw, Jr. et al v. HSBC Bank Nevada, N.A. et al.
(No. 11-C-93-N), alleging similar claims in connection with the
marketing, selling and administering of debt cancellation and
suspension products to consumers in West Virginia. In addition to
damages, the Attorney General is seeking civil money penalties and
injunctive relief. The action was removed to Federal Court and
the Attorney General's motion to remand is pending. The Company
says it has received a similar inquiry from another state's
Attorney General, although no action has yet been filed.
HSBC FINANCE: Still Awaits "Jaffe" Suit Claims Admin. Completion
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HSBC Finance Corporation is still awaiting completion of the
claims administration process in the securities class action
lawsuit pending in the District of Columbia, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
As a result of an August 2002 restatement of previously reported
consolidated financial statements and other corporate events,
including the 2002 settlement with 46 states and the District of
Columbia relating to real estate lending practices, Household
International Inc., the predecessor of the Company, and certain
former officers were named as defendants in a class action
lawsuit, Jaffe v. Household International, Inc., et al. (N.D. Ill.
No. 02 C5893), filed August 19, 2002. The complaint asserted
claims under Section 10 and Section 20 of the Securities Exchange
Act of 1934, on behalf of all persons who acquired and disposed of
Household International common stock between July 30, 1999, and
October 11, 2002. The claims alleged that the defendants
knowingly or recklessly made false and misleading statements of
material fact relating to Household's Consumer Lending operations,
including collections, sales and lending practices, some of which
ultimately led to the 2002 state settlement agreement, and facts
relating to accounting practices evidenced by the restatement. A
jury trial concluded on
April 30, 2009, and the jury rendered a verdict on May 7 partially
in favor of the plaintiffs with respect to Household International
and three former officers.
A second phase of the case was to proceed to determine the actual
damages, if any, due to the plaintiff class and issues of
reliance. On November 22, 2010, the Court issued a ruling on the
second phase of the case. On the issue of reliance, the Court
ruled that claim forms would be mailed to class members and that
class members who file claims would be asked to check a "YES" or
"NO" box to a question that asks whether they would have purchased
Household stock had they known false and misleading statements
inflated the stock price. As for damages, the Court set out a
method for calculating damages for class members who file claims.
As previously reported, in Court filings in March 2010,
plaintiff's lawyers have estimated that damages could range
'somewhere between $2.4 billion to $3.2 billion to class members',
before pre-judgment interest. The defendants filed a motion for
reconsideration from the Court's November 22 ruling. On January
14, 2011, the Court partially granted that motion, slightly
modifying the claim form, allowing defendants to take limited
discovery on the issue of reliance and reserving on the issue
whether the defendants would ultimately be entitled to a jury
trial on the issues of reliance and damages. On January 31, 2011,
and April 7, 2011, the Court issued other rulings clarifying the
scope of discovery. Plaintiffs mailed the claim forms with the
modified language to class members.
Class members had until May 24 to file claims. In filings with
the Court, plaintiffs indicated that the Court-appointed claims
administrator mailed claim forms for delivery to 646,715 potential
class members and received 77,436 claims by the May 24, 2011
deadline. Plaintiffs also indicated that the claims administrator
has determined preliminarily that 45,332 of the claimants have an
allowed loss, and that the "preliminary, estimated damages for
these potential class members, subject to revision as duplicate
claims are identified and supplemental information is received,
exceeds $2,000,000,000." All submitted claims are subject to a
validation process that, as indicated in the plaintiffs' filings,
will not be completed until December 2011. Once the claims
administration process is complete, plaintiffs are expected to ask
the Court to assess pre-judgment interest to be included as part
of the Court's final judgment.
The Company says that the date on which the Court may enter a
final judgment is not known at this time and the timing and
outcome of the ultimate resolution of this matter is uncertain.
When a final judgment is entered by the District Court, the
parties have 30 days in which to appeal the verdict to the Seventh
Circuit Court of Appeals. The Company continues to believe that
it has meritorious grounds for appeal of one or more of the
rulings in the case and intends to appeal the Court's final
judgment, which could involve a substantial amount. Upon appeal,
the Company will be required to secure the judgment in order to
suspend execution of the judgment while the appeal is ongoing by
depositing cash in an interest-bearing escrow account or posting
an appeal bond in the amount of the judgment (including any pre-
judgment interest awarded). Given the complexity and
uncertainties associated with the actual determination of damages,
including the outcome of any appeals, there is a wide range of
possible damages. The Company believes it has meritorious grounds
for appeal on matters of both liability and damages, and will
argue on appeal that damages should be zero or a relatively
insignificant amount. If the Appeals Court partially accepts or
rejects the Company's arguments, the amount of damages, including
pre-judgment interest, could be higher, and may lie in a range
from a relatively insignificant amount to somewhere in the region
of $3.0 billion.
HSBC FINANCE: Still Awaits Okay of Deal in Interchange Fees Suit
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HSBC Finance Corporation is still awaiting court approval of its
settlement in a consolidated lawsuit over interchange fees charged
for credit card transactions, according to the Company's November
9, 2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
Since June 2005, HSBC Finance Corporation, HSBC North America, and
HSBC, as well as other banks and Visa Inc. and Master Card
Incorporated, have been named as defendants in four class actions
filed in Connecticut and the Eastern District of New York; Photos
Etc. Corp. et al. v. Visa U.S.A., Inc., et al. (D. Conn. No. 05-
CV-01007 (WWE)): National Association of Convenience Stores, et
al. v. Visa U.S.A., Inc., et al.(E.D.N.Y. No. 05-CV 4520 (JG));
Jethro Holdings, Inc., et al. v. Visa U.S.A., Inc. et al.
(E.D.N.Y. No. 05-CV-4521 (JG)); and American Booksellers Ass'n v.
Visa U.S.A., Inc. et al. (E.D.N.Y. No. 05-CV-5391 (JG)). Numerous
other complaints containing similar allegations (in which no HSBC
entity is named) were filed across the country against Visa Inc.,
MasterCard Incorporated and other banks. These actions
principally allege that the imposition of a no-surcharge rule by
the associations and/or the establishment of the interchange fee
charged for credit card transactions causes the merchant discount
fee paid by retailers to be set at supracompetitive levels in
violation of the Federal antitrust laws. These lawsuits have been
consolidated and transferred to the Eastern District of New York.
The consolidated case is: In re Payment Card Interchange Fee and
Merchant Discount Antitrust Litigation, MDL 1720, E.D.N.Y. ("MDL
1720"). A consolidated, amended complaint was filed by the
plaintiffs on April 24, 2006, and a second consolidated amended
complaint was filed on
January 29, 2009. The parties are engaged in discovery, motion
practice and mediation.
On February 7, 2011, MasterCard Incorporated, Visa Inc., the other
defendants, including HSBC Finance Corporation, and certain
affiliates of the defendants entered into settlement and judgment
sharing agreements (the "Agreements") that provide for the
apportionment of certain defined costs and liabilities that the
defendants, including HSBC Finance Corporation and its affiliates,
may incur, jointly and/or severally, in the event of an adverse
judgment or global settlement of one or all of these actions. The
Agreements also cover any other potential or future actions that
are transferred for coordinated pre-trial proceedings with MDL
1720.
No further updates were reported in the Company's latest SEC
filing.
The Company says it continues to defend the claims in this action
vigorously and the Company's entry into the Agreements in no way
serves as an admission as to the validity of the allegations in
the complaints. Similarly, the Agreements have had no impact on
the Company's ability to quantify the potential impact from this
action, if any, and it is unable to do so at this time.
LIZ CLAIBORNE: Plaintiffs Did Not Appeal "Tyler" Suit Dismissal
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The time to appeal the dismissal of a class action lawsuit
commenced by Angela Tyler has expired and no appeal was filed,
according to Liz Claiborne, Inc.'s November 9, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended October 1, 2011.
A purported class action complaint captioned Angela Tyler
(individually and on behalf of all others similarly situated) v.
Liz Claiborne, Inc, Trudy F. Sullivan and William L. McComb, was
filed in the United States District Court in the Southern District
of New York on April 28, 2009, against the Company, its Chief
Executive Officer, William L. McComb and Trudy Sullivan, a former
President of the Company. The complaint alleges certain
violations of the federal securities laws, claiming misstatements
and omissions surrounding the Company's wholesale business.
On September 29, 2011, Judge Richard Holwell issued an opinion and
order granting the Company's motion to dismiss in its entirety,
with prejudice. The court also dismissed with prejudice the
claims against the other defendants. The time to appeal the
dismissal has expired and the plaintiffs did not appeal this
ruling.
LOJACK CORP: Awaits Approval of "Rutti" Federal Suit Settlement
---------------------------------------------------------------
LoJack Corporation is awaiting court approval of its settlement to
resolve a class action lawsuit commenced by Mike Rutti in a
federal court in California, according to the Company's
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
In April 2006, Mike Rutti vs. LoJack Corporation, Inc. was filed
in the United States District Court for the Central District of
California, or the District Court, by a former employee alleging
violations of the Fair Labor Standards Act, or the FLSA, the
California Labor Code, and the California Business & Professions
Code, and seeking class action status, or the Federal Court Case.
In September 2007, the Company's motion for summary judgment was
granted and the District Court dismissed all of the plaintiff's
federal law claims. The plaintiff appealed the dismissal to the
United States Court of Appeals for the Ninth Circuit, or the Ninth
Circuit, and, in August 2009, the Ninth Circuit affirmed the
District Court's grant of summary judgment on all claims except as
to the claim for compensation for the required postliminary data
transmission, or the Data Transmission Claim, for which the
dismissal was reversed. The plaintiff filed a petition for
rehearing and, on March 2, 2010, the Ninth Circuit amended its
decision to affirm the District Court's grant of summary judgment
on all claims except as to (a) the Data Transmission Claim and (b)
the claim for compensation for commuting under state law, or the
Commuting Claim. The plaintiff later sought to pursue the
Commuting Claim in the State Court Case. The plaintiff moved for
conditional certification of the Data Transmission Claim under the
FLSA and, on January 14, 2011, the District Court granted the
plaintiff's motion.
On October 7, 2011, the parties filed a joint stipulation with the
District Court stating that they had reached a settlement of the
Data Transmission Claims. On November 7, 2011, the parties filed
a joint motion for approval of the settlement as required by the
FLSA. Pursuant to the terms of the settlement, the Federal Court
Case would be dismissed; the plaintiffs would release the Company
of the claims asserted in the Federal Court Case and all other
wage-and-hour claims (except, in the case of two plaintiffs, the
claims asserted in the State Court Case); and the Company would
pay to the plaintiffs an aggregate amount of approximately
$115,000 and pay to their attorneys an amount for attorneys' fees
and costs to be determined by the District Court after noticed
motion but not to exceed $1,100,000. During the three months
ended September 30, 2011, the Company recorded an accrual in the
amount of $1,215,000 with respect to the terms of the settlement.
Nothing in the settlement would constitute an admission of any
wrongdoing, liability or violation of law by the Company. Rather,
the Company says it has agreed to the settlement to resolve the
Federal Court Case, thereby eliminating the uncertainties and
expense of further protracted litigation.
Due to the dismissal of the plaintiff's claims by the District
Court in September 2007, in November 2007, the plaintiff and a
second plaintiff filed in the Superior Court of California for Los
Angeles County, or the Superior Court, Mike Rutti, Gerson Anaya
vs. LoJack Corporation, Inc. to assert wage-and-hour claims under
California law on behalf of current and former Company
technicians, or the State Court Case. In September 2009, the
Superior Court granted class certification with respect to nine
claims and denied class certification with respect to five claims.
The Company sought appellate review of this decision. On March
26, 2010, the California Court of Appeals for the Second Appellate
District granted the Company's request in part, denying
certification with respect to certain claims but affirming
certification with respect to certain other claims.
On July 29, 2011, the Superior Court granted class certification
of the remaining claims except for a vehicle maintenance expense
reimbursement claim. Thus, in the State Court Case there
currently are 16 certified claims, including the Commuting Claim;
a Data Transmission Claim arising under state law; claims for
various amounts of unpaid time; claims for reimbursement of work
tools expenses and the cost of washing the company vehicle; claims
for unfair competition under California Business and Professions
Code section 17200; and claims for waiting-time penalties and
penalties under the California Labor Code Private Attorneys
General Act. Trial of the State Court Case is currently set for
July 2012.
In the State Court Case, the plaintiff, on behalf of the class,
seeks unpaid wages, penalties, interest and attorneys' fees.
The Company believes that it has substantial legal and factual
defenses to these claims and intends to defend its interests
vigorously.
The Company says it has recorded an accrual in the amount of
$970,000, with respect to certain of the claims in the State Court
Case based on its best estimates, where a potential loss is
considered probable. The Company has estimated its range of
possible loss with respect to the State Court Case to be between
$970,000 and $30,000,000.
LOJACK CORP: Fairness Hearing on "Morin" Suit Deal on Dec. 5
------------------------------------------------------------
A fairness hearing for final approval of a settlement in the class
action lawsuit commenced by Louis Morin is scheduled for December
5, 2011, according to LoJack Corporation's November 9, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011.
On September 15, 2010, a lawsuit entitled Louis Morin v. LoJack
Corp., Inc., et al. was filed in the Los Angeles County Superior
Court of the State of California (Central District) alleging,
amongst other claims, violations of the California Consumers Legal
Remedies Act, the California Business and Professions Code Section
17200 (unfair competition) and Section 17500 (false advertising),
and breach of implied warranty with respect to LoJack Early
Warning for motorcycles, and seeking class action status. On July
29, 2010, the Company removed the case to the United States
District Court for the Central District Court of California. On
August 23, 2010, the Company filed a motion to dismiss all claims,
which was granted by the Court on
September 27, 2010, without prejudice. The dismissal without
prejudice provided the plaintiff with the opportunity to amend its
complaint, and on October 25, 2010, the plaintiff filed an amended
complaint, for alleged fraud, violations of the California
Consumers Legal Remedies Act, the California Business and
Professions Code Section 17200 (unfair competition) and Section
17500 (false advertising), and breach of implied warranty and
again sought class certification. On November 12, 2010, the
Company filed a motion to dismiss all claims and a motion to
strike certain claims. On December 28, 2010, the Court denied the
Company's motion to dismiss. The plaintiff, on behalf of the
class, sought injunctive relief, restitution, disgorgement,
punitive damages, and attorneys' fees in unspecified amounts. On
March 3, 2011, the plaintiff filed a motion for class
certification and the Company filed its opposition to class
certification on March 28, 2011.
The parties participated in a mediation hearing on March 29, 2011,
and reached a settlement to resolve all claims on a class-wide
basis. The United States District Court for the Central District
of California preliminarily approved the settlement on September
16, 2011. Pursuant to the terms of the settlement, the Company
would revise its disclosures in motorcycle related marketing
materials and provide class members with a twelve month extension
of the terms of the Company's Limited Recovery Warranty. The
Company would also pay an enhancement award of $20,000 to the
named plaintiff and would pay the plaintiffs' attorneys' fees and
costs up to $415,000. Under the terms of the settlement, the
Company would receive a release by all potential class members who
do not affirmatively opt out of the settlement. Nothing in the
settlement agreement constitutes an admission of any wrongdoing,
liability or violation of law by the Company. Rather, the Company
has signed the settlement agreement to resolve the litigation,
thereby eliminating the uncertainties and expense of further
protracted litigation. A fairness hearing for final approval of
the settlement is scheduled for December 5, 2011.
The Company says it has recorded an accrual in the amount of
$570,000, with respect to the terms of the settlement, including a
$135,000 accrual relating to the twelve month warranty extension,
which did not have a material impact on its consolidated financial
position or results of operations.
MOPHIE LLC: Recalls 6,118 iPod Touch External Battery Cases
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Mophie LLC, of Paw Paw, Michigan, announced a voluntary recall of
about 6,118 units of rechargeable external battery case.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The battery case's integrated circuit switch can overheat, posing
a burn hazard to consumers.
Mophie has received 110 reports of the product becoming warm to
the touch, 44 reports of the product deforming and nine reports of
minor burns.
The recalled product is a Mophie Juice Pack Air rechargeable
external battery which consists of a lithium polymer battery built
into a plastic case designed to snap onto the back of an iPod
Touch 4G music player. The battery cases come in black, blue or
red. Only battery cases with serial numbers that have the first
five alphanumeric characters of TR113 through TR120 are subject to
this recall. The serial number can be found inside the housing of
the product. Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12049.html
The recalled products were manufactured in China and sold at B& H
Photo, Barnes & Noble, InMotion Entertainment, J&R Music World,
Marine Corps Exchange stores, Amazon.com and mophie.com since
April 2011 for about $50.
Consumers should immediately stop using the recalled product and
contact Mophie for instructions on receiving a replacement
product. For additional information, contact Mophie toll-free at
(877) 308-4581 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday
through Friday or visit the firm's Web site at
http://www.mophie.com/exchange/
MORGAN KEEGAN: Faces Class Action Over Unpaid Overtime Wages
------------------------------------------------------------
A former Administrative Assistant has filed a putative class
action against Morgan Keegan & Company, Inc. and Regions Financial
Corporation in which she alleges violations of the Fair Labor
Standards Act (FLSA) for unpaid overtime wages. The plaintiff in
this action, represented by Blake Andrews of the Blake Andrews Law
Firm, LLC and Renee Huskey of Ichter Thomas, LLC, claims that she
and other similarly situated current and former employees did not
receive proper compensation for all overtime hours worked.
Dudley v. Regions Financial Corporation and Morgan Keegan &
Company, Inc., (Case Number 1:11-cv-02700-RLV) was filed in the
United States District Court for Northern District of Georgia in
August 2011. The presiding judge is Judge [Vinings]. Though the
case was filed in Georgia, the plaintiff seeks to represent a
class of similarly situated employees in all states where the
defendants have offices and business locations.
In this putative collective/class action lawsuit, the plaintiff
alleges that Morgan Keegan & Company and Regions Financial
Corporation violated the FLSA by failing to properly compensate
Administrative Assistants for all overtime hours worked.
According to the allegations in the lawsuit, the Administrative
Assistants were responsible for performing work outside of their
scheduled shifts. For example, according to the complaint,
Administrative Assistants frequently began work before the start
of their scheduled shift and continued to work after the end of
their scheduled shift. As another example stated in the
complaint, Administrative Assistants frequently worked through
their scheduled lunch breaks/meal period. As yet another example,
Administrative Assistants frequently worked from home by, for
example, completing expense reports or changing flight and hotel
reservations for the bankers for whom they worked. Although they
regularly worked over forty hours per week, the Defendants did not
properly compensate them for all of those hours. Instead, they
were generally paid only their regular salary, regardless of the
actual amount of hours they worked, and, in the rare instance
where they were paid for some overtime, those payments were made
late.
Blake Andrews and Renee Huskey are representing the plaintiff in
an effort to recover unpaid wages for the overtime work she and
other Administrative Assistants performed, but for which they did
not receive the proper overtime pay. According to a federal law
known as the Fair Labor Standards Act (FLSA), non-exempt
employees, which includes some employees who are paid a salary,
are entitled to time-and-a-half for all hours worked over forty in
a given workweek.
Importantly, the Fair Labor Standards Act (FLSA) prohibits
employers from retaliating against employees for reporting
overtime violations. In this lawsuit, the plaintiff alleges an
additional claim that she was retaliated against by the defendants
when she reported that she was not being paid for all hours worked
over 40 per workweek.
All Administrative Assistants who have worked for Morgan Keegan &
Company (and/or Regions Financial Corporation), within the last
three (3) years and who worked over forty hours in at least one
week are potentially eligible to join the case. For more
information about this case, please visit
http://www.blakeandrewslaw.comor http://www.ichterthomas.com
OLD SECOND BANCORP: Completion of Discovery Set for Feb. 8
----------------------------------------------------------
Completion of discovery phase in a class action lawsuit pending in
Illinois is scheduled for February 8, 2012, according to Old
Second Bancorp, Inc.'s November 9, 2011, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
September 30, 2011.
On February 17, 2011, a former employee filed a purported class
action complaint in the U.S. District Court for the Northern
District of Illinois on behalf of participants and beneficiaries
of the Old Second Bancorp, Inc. Employees' 401(k) Savings Plan and
Trust alleging that the Company, the Bank, the Employee Benefits
Committee of Old Second Bancorp, Inc. and certain of the Company's
officers and employees violated certain disclosure requirements
and fiduciary duties established under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). On June 21,
2011, the complaint was amended to add a second lead plaintiff,
also a former Old Second employee. The complaint seeks equitable
and as-of-yet unquantified monetary relief. The court granted
class certification as to one named plaintiff, but denied it as to
the second. Discovery on the merits of the case has begun;
completion of this phase has been scheduled by the judge for
February 8, 2012.
The Company believes that it, its affiliates, and its officers and
employees have acted and continue to act in compliance with ERISA
law with respect to these matters and has moved the court to
dismiss all claims; no ruling has yet been issued on the motion to
dismiss. The Company intends to vigorously defend against the
allegations of the complaint.
PFIZER: Ex-MP Terry Martin Joins Parkinson's Drug Class Action
--------------------------------------------------------------
ABC Newcastle reports that convicted child sex offender and former
MP Terry Martin is part of a class action against the drug
companies which distribute medication that causes hypersexual
tendencies.
Mr. Martin, 54, has been convicted of two child sex offences
relating to a 12-year-old girl who was prostituted by her mother
in 2009.
A judge gave Mr. Martin a suspended jail sentence because his
offending was directly linked to Cabergoline, a drug he was
prescribed in 2006 for Parkinson's disease.
The drug is distributed by Pfizer and Aspen Pharmacare.
The class action has been started by Melbourne firm Arnold, Thomas
and Becker.
It involves about 200 people who developed a range of gambling,
sex and shopping addictions.
Lawyer Allanah Goodwin says the Federal Court is expected to order
a pre-hearing conference early next year.
"The literature in the common domain and studies undertaken by the
drug companies indicate that they knew, or should have known, of
the side effects of a compulsive control disorder," she said.
"They therefore had an obligation to warn patients for whom their
drugs have been prescribed.
"The impact has been absolutely devastating financially,
emotionally. In many cases it's caused a breakdown in
relationships.
"Most people have suffered not only financial losses but also
significant psychological symptoms as a result of family and
relationship breakdown."
Parkinson's Tasmania has urged people to see their doctor if they
have concerns about their medication.
President Helen Connor-Kendray says the impulses went away when
people stopped taking the drug but they had had a devastating
impact on their lives.
"One of the most important things is for people to realize that
they should not just stop taking their Parkinson's medication
because not all Parkinson's medication causes these side effects,
and if anyone's concerned about their medication they should
contact their doctor."
PHARMASSET INC: Being Sold to Gilead for Too Little, Suit Claims
----------------------------------------------------------------
Courthouse News Service reports that Pharmasset, which is
developing a drug to treat hepatitis C, is selling itself too
cheaply to Gilead Sciences, for $137 per share or $11 billion,
shareholders say.
A copy of the Complaint in Diana v. Price, et al., Case No. 7073
(Del. Ch. Ct.), is available at:
http://www.courthousenews.com/2011/11/30/SCA.pdf
The Plaintiff is represented by:
Blake A. Bennett, Esq.
COOCH & TAYLOR, P.A.
The Brandywine Building
1000 West Street, 10th Floor
Wilmington, DE 19801
Telephone: (302) 984-3800
E-mail: bbennett@coochtaylor.com
- and -
Donald J. Enright, Esq.
Elizabeth K. Tripodi, Esq.
LEVI & KORSINSKY LLP
1101 30th Street, N.W.
Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
E-mail: denright@zlk.com
etripodi@zlk.com
POSTROCK ENERGY: Awaits Approval of Kansas Suit Settlement
----------------------------------------------------------
PostRock Energy Corporation is awaiting court approval of its
settlement to resolve a class action lawsuit pending in Kansas,
according to the Company's November 9, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2011.
The Company had been sued in royalty owner lawsuits filed in
Oklahoma and Kansas.
Oklahoma Lawsuit
In Oklahoma, lawsuits by a group of individual royalty owners and
by a putative class representing all remaining royalty owners were
filed in the District Court of Nowata County, Oklahoma.
Generally, the lawsuits alleged that the Company wrongfully
deducted post-production costs from the plaintiffs' royalties and
engaged in self-dealing contracts and agreements resulting in a
less than market price for the gas production. The Company denied
the allegations. Settlements have been reached in each of the
cases, and on July 28, 2011, the Court entered a final order
approving the class action settlement. The Company funded the
$5.6 million in settlements on July 29, 2011.
Kansas Lawsuit
The Kansas lawsuit is a putative class action filed in the United
States District Court for the District of Kansas, brought on
behalf of all the Company's royalty owners in that state.
Plaintiffs generally allege that the Company failed to properly
make royalty payments by, among other things, charging post-
production costs to royalty owners in violation of the underlying
lease contracts, paying royalties based on sale point volumes
rather than wellhead volumes, allocating expenses in excess of the
actual and reasonable post-production costs incurred, allocating
production costs and marketing costs to royalty owners, and making
royalty payments after the statutorily prescribed time for doing
so without paying interest thereon. The parties have reached a
settlement in this class action which is subject to approval by
the Court. The settlement includes a payment of $3.0 million to
be made within 30 days after final approval by the Court and a
payment of $4.5 million one year thereafter.
At September 30, 2011, the Company had reserved $7.0 million for
the estimated cost to resolve the Kansas action. The $7.0 million
includes $3.0 million expected to be paid in January 2012 and $4.0
million representing the present value of an additional $4.5
million expected to be paid one year thereafter. The $4.0 million
reserve is reflected in other noncurrent liabilities in the
condensed consolidated balance sheet. Increases to the reserve
for both the Oklahoma and Kansas royalty owner lawsuits included
$9.5 million, $100,000 and $2.0 million added in the first, second
and third quarters of 2011, respectively.
PROSHARES TRUST: Still Defends Consolidated Suit in New York
------------------------------------------------------------
ProShares Trust II ("Trust") and certain principals of ProShare
Capital Management LLC (the "Sponsor") are defendants (along with
several other parties) in a consolidated class action lawsuit
styled In re ProShares Trust Securities Litigation, Civ. No.
09-cv-6935, filed in the United States District Court for the
Southern District of New York. The complaint, as amended, alleges
that the defendants violated Sections 11 and 15 of the Securities
Act of 1933 by including untrue statements of material fact and
omitting material facts in the Registration Statement for one or
more ProShares exchange-traded funds ("ETFs"), allegedly failing
to adequately disclose the Trust's Funds' investment objectives
and risks. The six Funds of the Trust named in the complaint are
ProShares Ultra Silver, ProShares UltraShort Gold, ProShares Ultra
Gold, ProShares UltraShort DJ-UBS Crude Oil, ProShares Ultra DJ-
UBS Crude Oil and ProShares UltraShort Silver. The Trust believes
the complaint is without merit and that the anticipated outcome
will not adversely impact the operation of the Trust or any of its
Funds. Accordingly, no loss contingency has been recorded in the
balance sheet and the amount of loss, if any, cannot be reasonably
estimated at this time.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
RASER TECHNOLOGIES: Rigrodsky & Egleston File Class Action
----------------------------------------------------------
Rigrodsky & Long, P.A. and The Egleston Law Firm on Nov. 29
disclosed that they have filed a shareholder class action lawsuit
in the United States District Court for the District of Delaware
on behalf of all persons or entities who purchased or otherwise
acquired the securities of Raser Technologies, Inc. between
May 11, 2009 and April 29, 2011, inclusive, alleging violations of
the Securities Exchange Act of 1934. The case is entitled
Bartesch v. Cook, C.A. No. 11-CV-1173 (D. Del.).
If you wish to view a copy of the Complaint, discuss this action,
or have any questions concerning this notice or your rights or
interests, please contact Timothy J. MacFall, Esquire or Noah R.
Wortman, Case Development Director of Rigrodsky & Long, P.A., 919
North Market Street, Suite 980 Wilmington, Delaware, 19801 at
(888) 969-4242, by e-mail to info@rigrodskylong.com or at:
http://www.rigrodskylong.com/news/raser-technologies-inc; or
Gregory M. Egleston, Esquire of The Egleston Law Firm, 440 Park
Avenue South, New York, New York, 10016 at (212) 683-3400 or by
e-mail to egleston@gme-law.com
Raser is purported to be an environmental energy technology
company focused on geothermal power development and technology
licensing. On April 29, 2011, Raser and its wholly-owned
subsidiaries filed voluntary petitions for reorganization under
Chapter 11 of Title 11 of the United States Code in the United
States Bankruptcy Court for the District of Delaware. As a result
of Raser's filing for protection under the Bankruptcy Code, it has
not been named as a defendant.
The Complaint names certain of the Company's current and former
directors and officers as defendants. The Complaint alleges that
the Defendants failed to disclose material adverse facts regarding
the Company's Thermo No. 1 geothermal plant. Unbeknownst to the
investment community, soon after it was completed, the Thermo No.
1 geothermal plant evidenced material design deficiencies and use
of inefficient recirculation pumps. In addition, heat transfer
could not be implemented successfully because of an inadequate
testing of well field temperature and an inadequate test of well
flow prior to construction. As a result, by approximately June
2009, Defendants knew that the Thermo No. 1 geothermal plant could
not raise its output above a net level of approximately 6.6
megawatts and, at this level, it was impossible for the Thermo No.
1 geothermal plant to operate at a profit or for the cost of the
plant to be recovered through ongoing operations. Accordingly,
for accounting purposes, the Thermo No. 1 geothermal plant was
impaired.
Had Raser properly recognized its impairment losses throughout the
Class Period: (i) Plaintiff and the Class would have been made
aware of the fact that the Thermo No. 1 geothermal power plant was
incapable of generating cash sufficient to recover its carrying
value, and (ii) the Company's balance sheet would have reflected
the fact that liabilities materially exceeded assets and that,
accordingly, the Company was in a technical state of bankruptcy,
which might have triggered adverse actions by Raser's creditors.
Defendants' failure to disclose the existence of the design
deficiencies that limited Thermo No. 1's output, and Defendants'
material overstatement of the carrying value of Thermo No. 1,
caused the market price of Raser's common stock to be artificially
inflated during the Class Period.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from November 29, 2011. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. In order to be appointed lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the
class member will adequately represent the class. Your ability to
share in any recovery is not, however, affected by the decision
whether or not to serve as a lead plaintiff. Any member of the
proposed 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.
Rigrodsky & Long, P.A., with offices in Wilmington, Delaware and
Garden City, New York, regularly litigates securities class,
derivative and direct actions, shareholder rights litigation and
corporate governance litigation, including claims for breach of
fiduciary duty and proxy violations in the Delaware Court of
Chancery and in state and federal courts throughout the United
States.
The Egleston Law Firm is based in New York and litigates
throughout the State of New York in both state and federal court
and throughout the country. The founder of the firm, Gregory M.
Egleston, has been engaged in the practice of law for more than
ten years. The Egleston Law Firm concentrates in class action
litigation on behalf of investors, consumers and small businesses.
SSM HEALTH CARE: Sued Over Deceptive Billing Practices
------------------------------------------------------
Jim Doyle, writing for St. Louis Post-Dispatch, reports that a few
weeks after Allison Zaromb took her 4-year-old son Meir to see a
dermatologist in an outpatient office at the SSM Cardinal Glennon
Children's Medical Center campus, she received separate bills from
the doctor and the hospital.
The cost for a 3-minute procedure to treat Meir's warts totaled
$538, which included a $220 bill for physician services -- and a
separate bill for a $318 hospital "facility fee."
Ms. Zaromb, a periodontist who lives in University City, is now
suing SSM Health Care Corp. and Cardinal Glennon Children's
Medical Center in a proposed class action lawsuit on behalf of
other patients.
The lawsuit, filed in September in the state Circuit Court of the
city of St. Louis, accuses the non-profit hospital system of
deceptive business practices -- in particular, violating a
Missouri consumer practices statute -- in failing to fully
disclose the costs. A judge still must decide whether to certify
the lawsuit as a class action.
"No one told me that I would have to pay more than my co-pay
before I took my son to that doctor," Allison Zaromb said in an
interview. "Had I known they were going to charge a fee beyond my
co-pay for the physician, I would not have taken him there."
With the proliferation of hospital-owned outpatient centers and
hospital-owned physician practices, hospital "facility fees" have
become increasingly common. Such hospital facility fees often
involve greater dollar amounts than the fees charged by
physicians. And as patients bear a greater portion of their
health costs, they are voicing outrage over some of the bills they
receive.
"The hospitals should be far more transparent in giving the
consumers the information they need to make intelligent
decisions," said John Phillips, one of Ms. Zaromb's lawyers on the
case. "All the lawsuit is attacking is the failure to give
patients decent information so they can walk with their feet and
go to the low-cost provider."
Ms. Zaromb said that she had not been charged hospital facility
fees in the past when taking her children to appointments at other
outpatient centers in the St. Louis area. In this case,
Ms. Zaromb's health insurer paid nearly half of the $538 total,
but she was left to personally pay $206 toward the facility fee in
addition to a $40 co-pay for the physician's charges.
Her lawsuit is the latest in a string of proposed class action
lawsuits challenging St. Louis area hospitals' billing practices
-- a thorny subject that many hospital officials are reluctant to
discuss.
SSM Health Care officials declined to comment on Ms. Zaromb's
pending lawsuit, but described their billing practices at Cardinal
Glennon and other SSM outpatient clinics.
"We do recognize that all these kinds of arrangements get complex
. . . We talk with patients one on one," said Karen Rewerts, a
vice president and chief financial officer of SSM operations in
the St. Louis area. "We're following all of the regulatory
requirements. . . . We thought it was clear, but I agree that
there are always ways to make that patient experience better."
She said the parents of children who visit Cardinal Glennon's
outpatient clinic receive two invoices: a bill for physician
services that are provided by medical faculty members of St. Louis
University; and a bill that charges a facility fee "to cover the
nursing care, the technology, the equipment and supplies, and
space."
Ms. Rewerts said the hospital's outpatient clinic, which has 60
examination rooms, is an efficient way for the hospital to provide
specialized care. Signs inform children's parents of the
hospital's billing practices, she said, along with a form that
must be signed upon registration.
Robert Zirkelbach, a spokesman for the America's Health Insurance
Plans in Washington, D.C., said that billing outpatients for
hospital facility fees is "not something we have a general policy
on." But, he added, the insurance industry stresses "the
importance of transparency so that patients don't get stuck with a
fee they were not expecting."
Mark Reifsteck, president and chief executive of the southern
Illinois division of Hospital Sisters Health System, which
operates St. Elizabeth's Hospital in Belleville, Ill., said that
hospitals have traditionally charged facility fees to cover the
costs of their services.
But, he added, patients have increasingly complained about such
fees with the proliferation of outpatient facilities, especially
ambulatory surgery centers and imaging centers. Outpatient
clinics have lower overhead costs than a hospital because they do
not operate emergency rooms, so there is more pressure on
hospitals to make up their high costs through such outpatient
clinics.
"Hospital charging is very arcane and bizarre, and the biggest
problem with the billing is that major payers such as Medicare and
insurance don't pay the full cost," Ms. Reifsteck said. "So
hospitals that take in large amounts of Medicare and Medicaid
patients need cost-shifting to make up the difference -- and
sometimes outpatient procedures is the place to do that. When
patients see (the bill), they'll get sticker shock."
Patients who visit an outpatient clinic owned by St. Elizabeth
Hospital typically receive two bills: one for a physician's
services, and the other for technical services, which may include
laboratory work, a pathologist's report, and a hospital facility
fee.
BJC HealthCare -- which operates Barnes-Jewish Hospital, Missouri
Baptist Medical Center, Christian Hospital, and several other
hospitals and outpatient centers in the greater St. Louis
metropolitan area -- did not respond to repeated requests for
comment about its billing practices.
Officials at Mercy Health, which operates Mercy Hospital St. Louis
in Creve Coeur, declined to discuss their billing practices, but
issued this written statement: "How hospital services are billed
is governed by the Centers for Medicare and Medicaid Services
(CMS) and by individual insurance companies. Mercy follows both
CMS and insurance company requirements in our billing practices
for hospital services."
Under federal regulations, health systems are permitted to charge
a hospital facility fee for an outpatient service if it's done in
a clinic that is "hospital-based" -- meaning that the clinic is
owned and operated as part of a hospital or health system,
regardless of whether the clinic is physically located on the
hospital grounds.
St. Anthony's Medical Center and St. Luke's Hospital declined to
discuss their billing practices, but St. Luke's said in a written
statement that anytime a patient receives care at one of its
hospital-owned outpatient facilities the patient is billed for
physician fees as well as for "a facility fee that includes costs
for things such as staff services, supplies and equipment that the
hospital provides."
Saint Louis University Hospital, which is owned by Dallas-based
Tenet Healthcare Corp., has a contract with university-operated
SLUCare physicians group. The hospital runs two outpatient
centers: a gastrointestinal clinic at a doctors' office building
across the street from the hospital; and an orthopedic clinic with
outpatient surgery and imaging equipment at the Anheuser Busch
Institute. SLUCare physicians, who are paid by the university,
treat patients at both clinics. The hospital staffs the two
clinics with nurses, technicians, schedulers, and lab technicians.
It also pays rent on the GI clinic, and owns the building where
the orthopedic clinic is located.
"We have signs in our clinic, and new patients get a letter when
they sign up, saying they will receive two bills," said Laura
Keller, a spokeswoman for SLU Hospital. "We are very transparent
and up front with that. We're not in the surprise business."
But not all patients are satisfied with SLU Hospital's billing
practices. John Thomas of Ballwin said that Tenet Healthcare
misled patients about the rising cost of medical bills associated
with the hospital's gastrointestinal outpatient clinic.
He said the hospital issued a letter in January 2010 saying that,
although its outpatient clinic would be under new hospital
management, total health care charges for outpatients would remain
the same. Instead, because of the addition of facility fees, he
said, Medicare is being billed about 63% more for his wife Pat's
outpatient visits than it was charged in 2009.
"It's not fraud. But just because something is allowable, does
not make it right," Mr. Thomas said. "I consider this to be a
blatant abuse of Medicare."
Mr. Phillips, a Seattle lawyer, has brought two successful
lawsuits against Seattle hospitals that were based on similar
grounds.
Those cases resulted in refunds to consumers and agreements by
hospitals to provide more billing information to patients on their
Web sites.
He said that several years ago consultants began advising
hospitals that if they acquired physician practices and called
those practices "hospital-based," the hospitals could charge not
only for physician fees but also for hospital fees.
"From a consumer's perspective, when you go see your doctor, you
go see your doctor -- whether it's in an office inside a larger
hospital complex or right across the street," Mr. Phillips said.
"The doctor's practice remains the same. . . . They're making the
doctor's office a 'hospital-based' clinic for one reason: to make
money by charging a facility fee, not to improve consumer
service."
ST. JUDE: Awaits Decision on Motion to Dismiss Securities Suit
--------------------------------------------------------------
St. Jude Medical, Inc., is awaiting a court decision on its motion
to dismiss a securities class action lawsuit pending in Minnesota,
according to the Company's November 9, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
October 1, 2011.
In March 2010, a securities class action lawsuit was filed in
federal district court in Minnesota against the Company and
certain officers on behalf of purchasers of St. Jude Medical
common stock between April 22, 2009, and October 6, 2009. The
lawsuit relates to the Company's earnings announcements for the
first, second and third quarters of 2009, as well as a preliminary
earnings release dated October 6, 2009. The complaint, which
seeks unspecified damages and other relief as well as attorneys'
fees, alleges that the Company failed to disclose that it was
experiencing a slowdown in demand for its products and was not
receiving anticipated orders for Cardiac Rhythm Management (CRM)
devices. Class members allege that the Company's failure to
disclose the information resulted in the class purchasing St. Jude
Medical stock at an artificially inflated price. The Company says
it intends to vigorously defend against the claims asserted in
this lawsuit. In October 2010, the Company filed a motion to
dismiss the lawsuit, which was heard by the district court in
April 2011.
ST. JUDE: Continues to Defend Suits Over Silzone(R) Coating
-----------------------------------------------------------
St. Jude Medical, Inc., continues to defend itself against class
action lawsuits commenced by some patients who received a heart
valve product with Silzone(R) coating, which the Company stopped
selling in January 2000, according to the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended October 1, 2011.
The Company has two outstanding class action cases in Ontario, one
individual case in British Columbia by the Provincial health
insurer, one individual lawsuit in state court in Minnesota, and
one individual lawsuit in federal court in Nevada. In Ontario, a
class action case involving Silzone patients has been certified,
and the trial on common class issues began in February 2010. The
testimony and evidence submissions for this trial were completed
in March 2011, and closing briefing and argument were completed in
September 2011. Depending on the Court's ruling in this common
issues trial, there may be further proceedings, including appeal,
in the future. A second case seeking class action status in
Ontario has been stayed pending resolution of the ongoing Ontario
class action. The complaints in the Ontario cases request damages
up to 2.0 billion Canadian Dollars (the equivalent of $1.9 billion
at October 1, 2011). The Minnesota state court complaint requests
damages in excess of $50 thousand and the complaint in the
recently filed in lawsuit in Nevada requests damages in excess of
$75 thousand. Based on the Company's historical experience, the
amount ultimately paid, if any, often does not bear any
relationship to the amount claimed. The British Columbia
Provincial health insurer has a lawsuit seeking to recover the
cost of insured services furnished or to be furnished to class
members in the British Columbia class action resolved in 2010, and
that lawsuit remains pending in the British Columbia court.
ST. JUDE: Delaware Court Dismissed Suit Over AGA Acquisition
------------------------------------------------------------
The Delaware Court of Chancery dismissed in September 2011 a
putative stockholder class action lawsuit arising from St. Jude
Medical, Inc.'s acquisition of AGA Medical Inc., according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
October 1, 2011.
In connection with the acquisition of AGA Medical Inc. (AGA
Medical), the Company, in addition to AGA Medical and other
defendants, was named as a defendant in two putative stockholder
class action complaints, one filed in the Fourth Judicial District
Court of Minnesota and the other filed in the Delaware Court of
Chancery, both in October 2010. The plaintiffs in the complaints
alleged, among other claims, that AGA Medical's directors breached
their fiduciary duties to AGA Medical's stockholders by accepting
an inadequate price, failing to make full disclosure and utilizing
unreasonable deal protection devices and further alleged that AGA
Medical and the Company aided and abetted the purported breaches
of fiduciary duty. The parties to this action entered into a
memorandum of understanding in November 2010 to settle the
litigation, the amount of which was not material. The parties
have since executed a stipulation of settlement, pursuant to which
the action was dismissed with prejudice by the Delaware Court of
Chancery on September 27, 2011.
STACY MAKHNEVICH: Faces Class Action Over "Privacy Agreement"
-------------------------------------------------------------
Timothy B. Lee, writing for Ars Technica, reports that a patient
has filed a class-action lawsuit against his New York dentist over
her attempts to use copyright law to gag the patient's online
reviews of her services. Robert Lee, who recently moved to
Maryland, has asked a New York federal court to declare that his
comments are protected under copyright's fair use doctrine, that
the dentist's attempts to gag him breach dental ethics, and that
the "privacy agreement" the patient was forced to sign is invalid
and illegal under New York law.
The agreement is provided to doctors and dentists around the
country by an organization called Medical Justice. They have
reacted to the announcement by backpedaling furiously, telling Ars
Technica that they will be "retiring" the agreement effective
immediately.
Mr. Lee told Ars that the controversy began last year, when he
spent a weekend camping in Alabama. He developed a toothache so
severe that he visited a local hospital. He was given
painkillers, and when he returned home to New York on Monday he
called Dr. Stacy Makhnevich's office to schedule an appointment.
They couldn't see him until Thursday, and he says he had to take
sleeping pills that week to allow him to sleep through the pain.
When he arrived for his appointment, he was required to sign a
"Mutual Agreement to Maintain Privacy" before he could receive
treatment. Mr. Lee says he understood the contract, but he was in
intense pain, and "I couldn't think of any way a dentist would
want to screw me over, so I went ahead and signed it."
After Mr. Lee signed the contract, Dr. Makhnevich drained his
tooth and, on a subsequent visit, put in a filling, charging
$4,800 for the two procedures. According to Mr. Lee, she demanded
that he pay for the procedures out of pocket, but promised to
submit documentation to his insurance company to allow him to be
reimbursed.
But he says Dr. Makhnevich's office never submitted the necessary
documentation. And when Mr. Lee requested a copy of his records
so he could submit a claim himself, he was asked to pay hundreds
of dollars for a copy of his own dental records.
Frustrated, Mr. Lee posted reviews on Yelp and other Web sites.
"Overcharged me by about $4000 for what should have been only a
couple hundred dollar procedure," he wrote. "Refuses to submit
the claim to my insurance company. When asked for records to
submit the claim myself they referred me to a 3rd party that wants
5% of the bill ($268) to get the records for me."
Dr. Makhnevich responded by invoking the "privacy agreement,"
demanding that Mr. Lee remove his reviews. A letter dated
October 17 stated that "according to The Ethics of Medical
Justice/Dental Justice Agreements, under the Code of Internet
Ethics, your comments are not considered constructive commentaries
but rather as personal attacks to the office's well-being and
reputation." It promised that "all legal possible actions will be
taken against you."
Dr. Makhnevich's office also began sending him invoices purporting
to charge him $100 for every day the reviews remained online. And
they submitted a takedown request to Yelp and other sites under
the Digital Millennium Copyright Act.
Mr. Lee didn't back down. He contacted Paul Alan Levy of Public
Citizen, who agreed to represent him and help him file a lawsuit
against Dr. Makhnevich.
The filing is a class-action lawsuit, representing Mr. Lee and all
other Makhnevich patients who have signed Medical Justice-style
contracts. It asks the court to declare that forcing patients to
sign the contract constitutes a breach of "fiduciary duty and
violations of dental ethics." It also argues that the contract
deceives patients by promising not to use patient information for
marketing purposes, despite the fact that (according to the
complaint) such disclosures are already barred under the Health
Insurance Portability and Accountability Act. And it asks the
court to declare that the contract is unconscionable and void
under New York law.
As for the copyright claims, the complaint asks the court to
declare that, even if the copyright assignment is valid, the
posting of the reviews is allowed by copyright's fair use
doctrine.
Finally, it seeks a declaration that Mr. Lee's online posts are
nondefamatory, and it seeks compensation for Dr. Makhnevich's
failure to submit the insurance paperwork as promised.
Mr. Lee says he hopes the lawsuit will allow him to recover the
nearly $5,000 he lost due to the billing dispute. But he says
he's even more concerned with holding Dr. Makhnevich accountable
for her misconduct. "I'm not as concerned with getting the money
back as I am with the way they've treated me," he said. "Every
step of the way they've been trying to screw me over, and I can't
think of why. I showed up for my appointment and paid my bills on
time. I don't get it. These seem like bad people to me."
Mr. Levy, who is representing Mr. Lee, tells Ars that now that the
lawsuit is filed, Dr. Makhnevich won't be able to get rid of it
merely by settling her billing dispute with Mr. Lee. Mr. Lee is
seeking to be a representative plaintiff for all of Dr.
Makhnevich's patients who signed the agreement. That means any
resolution will need to be equally broad. Mr. Levy is hoping to
set a precedent that will benefit others asked to sign similar
agreements around the country.
Two calls made to Dr. Makhnevich's office, but these were never
returned. Ars did receive a response from Medical Justice.
"While we believe these agreements are honest, ethical, and legal,
we are going to use this situation as an opportunity to retire
these written agreements used since 2007," MJ CEO Jeffrey Segal
told Ars on Nov. 30. He claims that MJ will recommend to doctors
that they stop using the agreements, and that patients will not be
asked to sign any such agreements in the future.
"I'm gratified," Mr. Levy said when we told him of MJ's decision
to drop the agreements. "But I think there's another question
that they need to think long and hard about. They must have been
thinking of these issues [before Lee's lawsuit was filed]. When
did they let their customers know they were having doubts?"
We asked Mr. Segal if he was planning to offer representation to
Dr. Makhnevich. "We provide the agreements," he said, "it's up to
our clients how they decide to use it," he said.
We pressed him on this, pointing out that this might make doctors
nervous about using MJ's legal services if the organization left
clients (as Mr. Levy put it) "high and dry."
"Maybe you misunderstood what I said," he said. "I'm not saying
there won't be any interests served here. I'm just receiving the
information. We do have an interest in the outcome of this case.
My guess is we will have an involvement." But he said they hadn't
made any decisions about what support, if any, to offer to Dr.
Makhnevich.
Mr. Levy tells Ars that declining to support Dr. Makhnevich would
reflect poorly on Medical Justice. "If they don't provide a legal
defense, dentists and doctors are going to learn they're being set
up like suckers," he said. Given MJ's hasty "retirement" of its
"privacy agreement," he questioned whether customers should trust
Medical Justice's advice with regard to other legal products.
SWIFT TRANSPORTATION: "Sheer" Plaintiffs' Bid for Appeal Pending
----------------------------------------------------------------
Swift Transportation Company is awaiting a court decision on
plaintiffs' request for interlocutory appeal in the class action
lawsuit commenced by John Doe 1 and Joseph Sheer, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
On December 22, 2009, a class action lawsuit was filed against
Swift Transportation and Interstate Equipment Leasing, LLC
("IEL"): John Doe 1 and Joseph Sheer v. Swift Transportation Co.,
Inc., and Interstate Equipment Leasing, Inc., Jerry Moyes, and
Chad Killebrew, Case No. 09-CIV-10376 filed in the United States
District Court for the Southern District of New York, or the Sheer
Complaint. The putative class involves owner-operators alleging
that Swift Transportation misclassified owner-operators as
independent contractors in violation of the federal Fair Labor
Standards Act, or FLSA, and various New York and California state
laws and that such owner-operators should be considered employees.
The lawsuit also raises certain related issues with respect to the
lease agreements that certain owner-operators have entered into
with IEL. At present, in addition to the named plaintiffs,
approximately 200 other current or former owner-operators have
joined this lawsuit. Upon the Company's motion, the matter has
been transferred from the United States District Court for the
Southern District of New York to the United States District Court
in Arizona. On May 10, 2010, plaintiffs filed a motion to
conditionally certify an FLSA collective action and authorize
notice to the potential class members. On June 23, 2010,
plaintiffs filed a motion for a preliminary injunction seeking to
enjoin Swift and IEL from collecting payments from plaintiffs who
are in default under their lease agreements and related relief.
On September 30, 2010, the District Court granted Swift's motion
to compel arbitration and ordered that the class action be stayed
pending the outcome of arbitration. The court further denied
plaintiff's motion for preliminary injunction and motion for
conditional class certification. The Court also denied plaintiffs
request to arbitrate the matter as a class. The plaintiff filed a
petition for a writ of mandamus asking that the District Court's
order be vacated. On July 27, 2011, the court denied the
plaintiff's petition for writ of mandamus and plaintiffs filed
another request for interlocutory appeal. The Company says it
intends to vigorously defend against any arbitration proceedings.
The final disposition of this case and the impact of such final
disposition cannot be determined at this time.
SWIFT TRANSPORTATION: "Burnell" Class Suit Still Stayed in Calif.
-----------------------------------------------------------------
On March 22, 2010, a class action lawsuit was filed by John
Burnell, individually and on behalf of all other similarly
situated persons against Swift Transportation Company: John
Burnell and all others similarly situated v. Swift Transportation
Co., Inc., Case No. CIVDS 1004377 filed in the Superior Court of
the State of California, for the County of San Bernardino, or the
Burnell Complaint. On June 3, 2010, upon motion by Swift, the
matter was removed to the United States District Court for the
central District of California, Case No. EDCV10-00809-VAP. The
putative class includes drivers who worked for the Company during
the four years preceding the date of filing alleging that the
Company failed to pay the California minimum wage, failed to
provide proper meal and rest periods, and failed to timely pay
wages upon separation from employment. The Burnell Complaint is
currently subject to a stay of proceedings pending determination
of similar issues in a case unrelated to Swift, Brinker v
Hohnbaum, which is currently pending before the California Supreme
Court. The Company says it intends to vigorously defend
certification of the class as well as the merits of these matters
should the class be certified. The final disposition of this case
and the impact of such final disposition of this case cannot be
determined at this time.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
SWIFT TRANSPORTATION: Defends Suits Over Orientation Payment
------------------------------------------------------------
Swift Transportation Company continues to defend two class action
lawsuits pending in California over orientation payment, according
to the Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
On July 12, 2011, a class action lawsuit was filed by Simona
Montalvo on behalf of herself and all similarly situated persons
against Swift Transportation: Montalvo et al. v. Swift
Transportation Corporation d/b/a ST Swift Transportation
Corporation in the Superior Court of California, County of San
Diego ("Montalvo"). The Montalvo matter was removed to federal
court on August 15, 2011, case number 3-11-CV-01827-L. On
July 11, 2011, a class action lawsuit was filed by Glen Ridderbush
on behalf of himself and all similarly situated persons against
Swift Transportation: Ridderbush et al. v. Swift Transportation
Co. of Arizona LLC and Swift Transportation Services, LLC in the
Circuit Court for the State of Oregon, Multnomah County
("Ridderbush"). The Ridderbush matter was removed to federal
court on August 24, 2011, case number 3-11-CV-01028. Both
putative classes include employees alleging that candidates for
employment within the four year statutory period in California and
within the three year statutory period in Oregon, were not paid
the state mandated minimum wage during their orientation phase.
The issue of class certification must first be resolved before the
court will address the merits of the case, and the Company retains
all of its defenses against liability and damages pending a
determination of class certification. The Company says it intends
to vigorously defend against certification of the class as well as
the merits of this matter should the class be certified. The
final disposition of this case and the impact of such final
disposition cannot be determined at this time.
SWIFT TRANSPORTATION: Faces "Slack" Class Suit in Washington
------------------------------------------------------------
Swift Transportation Company is facing a class action lawsuit in
Washington commenced by Troy Slack, according to the Company's
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
On September 9, 2011, a class action lawsuit was filed by Troy
Slack on behalf of himself and all similarly situated persons
against Swift Transportation: Troy Slack, et al v. Swift
Transportation Co. of Arizona, LLC and Swift Transportation
Corporation in the State Court of Washington, Pierce County
("Slack"). The Slack matter was removed to federal court on
October 12, 2011, case number 11-2-11438-0. The putative class
includes all current and former Washington State based employee
drivers during the three year statutory period alleging that they
were not paid overtime in accordance with Washington State law and
that they were not properly paid for meal and rest periods. The
Company says it intends to vigorously defend certification of the
class as well as the merits of these matters should the class be
certified. The final disposition of this case and the impact of
such final disposition of this case cannot be determined at this
time.
SWIFT TRANSPORTATION: Faces Discrimination Class Suit in Illinois
-----------------------------------------------------------------
Swift Transportation Company is facing a class action lawsuit in
Illinois alleging it failed to treat Black employees in the same
manner as Caucasian employees, according to the Company's November
9, 2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
On October 3, 2011, a class action lawsuit was filed by Steve C.
Bluford on behalf of himself and all similarly situated persons
against Swift Transportation: Steve C. Bluford v Swift v.
Transportation, in the United States District Court for the
Northern District of Illinois, Eastern Division, case number 1-
11CV-06932. The putative class includes all African American
employee drivers who worked from the Illinois terminal during the
two year statutory period alleging that Swift failed to treat
similarly situated African American or Black employees in the same
manner as Caucasian employees. The named plaintiff, Steve
Bluford, previously filed an Equal Employment Opportunity
Commission ("EEOC") complaint raising the same allegations which
was dismissed by the EEOC as having no merit. The Company says it
intends to vigorously defend certification of the class as well as
the merits of these matters should the class be certified. The
final disposition of this case and the impact of such final
disposition of this case cannot be determined at this time.
SWIFT TRANSPORTATION: "Sanders" Class Suit Still Stayed in Calif.
-----------------------------------------------------------------
On July 1, 2010, a class action lawsuit was filed by Michael
Sanders against Swift Transportation Company and Interstate
Equipment Leasing, LLC ("IEL"): Michael Sanders individually and
on behalf of others similarly situated v. Swift Transportation
Co., Inc. and Interstate Equipment Leasing, Case No. 10523440 in
the Superior Court of California, County of Alameda, or the
Sanders Complaint. The putative class involves both owner-
operators and driver employees alleging differing claims against
Swift and IEL. Many of the claims alleged by both the putative
class of owner-operators and the putative class of employee
drivers overlap the same claims as alleged in the Complaint filed
by John Doe 1 and Joseph Sheer with respect to owner-operators and
the Complaint filed by John Burnell as it relates to employee
drivers. As alleged in the Sheer Complaint, the putative class
includes owner-operators of Swift during the four years preceding
the date of filing alleging that Swift misclassified owner-
operators as independent contractors in violation of the Fair
Labor Standards Act ("FLSA") and various California state laws and
that such owner-operators should be considered employees. As also
alleged in the Sheer Complaint, the owner-operator portion of the
Sanders Complaint also raises certain related issues with respect
to the lease agreements that certain owner-operators have entered
into with IEL. As alleged in the Burnell Complaint, the putative
class in the Sanders Complaint includes drivers who worked for the
Company during the four years preceding the date of filing
alleging that the Company failed to provide proper meal and rest
periods, failed to provide accurate wage statement upon separation
from employment, and failed to timely pay wages upon separation
from employment. The Sanders Complaint also raises two issues
with respect to the owner-operators and two issues with respect to
drivers that were not also alleged as part of either the Sheer
Complaint or the Burnell Complaint. These separate owner-operator
claims allege that Swift failed to provide accurate wage
statements and failed to properly compensate for waiting times.
The separate employee driver claims allege that Swift failed to
reimburse business expenses and coerced driver employees to
patronize the employer. The Sanders Complaint seeks to create two
classes, one which is mostly (but not entirely) encompassed by the
Sheer Complaint and another which is mostly (but not entirely)
encompassed by the Burnell Complaint. Upon the Company's motion,
the Sanders Complaint has been transferred from the Superior Court
of California for the County of Alameda to the United States
District Court for the Northern District of California. The
Sanders matter is currently subject to a stay of proceedings
pending determinations in other unrelated appellate cases that
seek to address similar issues. The issue of class certification
must first be resolved before the court will address the merits of
the case, and the Company retains all of its defenses against
liability and damages pending a determination of class
certification. The Company says it intends to vigorously defend
against certification of the class as well as the merits of this
matter should the class be certified. The final disposition of
this case and the impact of such final disposition cannot be
determined at this time.
No further updates were reported in the Company's November 9,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2011.
SWIFT TRANSPORTATION: Stills Awaits Ruling in "Ham" Class Suit
--------------------------------------------------------------
Swift Transportation Company is still awaiting a court decision on
its motion for reconsideration of an order certifying a class in
the consolidated class action lawsuit pending in Tennessee,
according to the Company's November 9, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2011.
On March 11, 2009, a class action lawsuit was filed by Michael
Ham, Jemonia Ham, Dennis Wolf, and Francis Wolf on behalf of
themselves and all similarly situated persons against Swift
Transportation: Michael Ham, Jemonia Ham, Dennis Wolf and Francis
Wolf v. Swift Transportation Co., Inc., Case No. 2:09-cv-02145-
STA-dkv, or the Ham Complaint. The case was filed in the United
States District Court for the Western Section of Tennessee Western
Division. The putative class involves former students of the
Company's Tennessee driving academy who are seeking relief against
the Company for the suspension of their Commercial Driver
Licenses, or CDLs, and any CDL retesting that may be required of
the former students by the relevant state department of motor
vehicles. The allegations arise from the Tennessee Department of
Safety, or TDOS, having released a general statement questioning
the validity of CDLs issued by the State of Tennessee in
connection with the Swift Driving Academy located in the State of
Tennessee. The Company has filed an answer to the Ham Complaint.
The Company has also filed a cross claim against the Commissioner
of the TDOS, or the Commissioner, for a judicial declaration and
judgment that the Company did not engage in any wrongdoing as
alleged in the complaint and a grant of injunctive relief to
compel the Commissioner to redact any statements or publications
that allege wrongdoing by the Company and to issue corrective
statements to any recipients of any such publications. The
Commissioner's motion to dismiss the Company's cross claim has
been dismissed by the court.
On April 23, 2009, two class action lawsuits were filed against
the Company in New Jersey and Pennsylvania, respectively: Michael
Pascarella, et al. v. Swift Transportation Co., Inc., Sharon A.
Harrington, Chief Administrator of the New Jersey Motor Vehicle
Commission, and David Mitchell, Commissioner of the Tennessee
Department of Safety, Case No. 09-1921(JBS), in the United States
District Court for the District of New Jersey, or the Pascarella
Complaint; and Shawn McAlarnen et al. v. Swift Transportation Co.,
Inc., Janet Dolan, Director of the Bureau of Driver Licensing of
The Pennsylvania Department of Transportation, and David Mitchell,
Commissioner of the Tennessee Department of Safety, Case No. 09-
1737 (E.D. Pa.), in the United States District Court for the
Eastern District of Pennsylvania, or the McAlarnen Complaint.
Both putative class action complaints involve former students of
the Company's Tennessee driving academy who are seeking relief
against the Company, the TDOS, and the state motor vehicle
agencies for the threatened suspension of their CDLs and any CDL
retesting that may be required of the former students by the
relevant state department of motor vehicles. The potential
suspension and CDL re-testing was initiated by certain states in
response to the general statement by the TDOS questioning the
validity of CDL licenses the State of Tennessee issued in
connection with the Swift Driving Academy located in Tennessee.
The Pascarella Complaint and the McAlarnen Complaint are both
based upon substantially the same facts and circumstances as
alleged in the Ham Complaint. The only notable difference among
the three complaints is that both the Pascarella and McAlarnen
Complaints name the local motor vehicles agency and the TDOS as
defendants, whereas the Ham Complaint does not. The Company
denies the allegations of any alleged wrongdoing and intends to
vigorously defend the Company's position. The McAlarnen Complaint
has been dismissed without prejudice because the McAlarnen
plaintiff has elected to pursue the Director of the Bureau of
Driver Licensing of the Pennsylvania Department of Transportation
for damages. The Company has filed an answer to the Pascarella
Complaint. The Company has also filed a cross-claim against the
Commissioner for a judicial declaration and judgment that the
Company did not engage in any wrongdoing as alleged in the
complaint and a request for injunctive relief to compel the
Commissioner to redact any statements or publications that allege
wrongdoing by the Company and to issue corrective statements to
any recipients of any such publications. The Commissioner's
motion to dismiss the Company's cross claim has been dismissed by
the court.
On May 29, 2009, the Company was served with two additional class
action complaints involving the same alleged facts as set forth in
the Ham Complaint and the Pascarella Complaint. The two matters
are Gerald L. Lott and Francisco Armenta on behalf of themselves
and all others similarly situated v. Swift Transportation Co.,
Inc. and David Mitchell the Commissioner of the Tennessee
Department of Safety, Case No. 2:09-cv-02287, filed on May 7,
2009, in the United States District Court for the Western District
of Tennessee, or the Lott Complaint; and Marylene Broadnax on
behalf of herself and all others similarly situated v. Swift
Transportation Corporation, Case No. 09-cv-6486-7, filed on May
22, 2009, in the Superior Court of Dekalb County, State of
Georgia, or the Broadnax Complaint. While the Ham Complaint, the
Pascarella Complaint, and the Lott Complaint all were filed in
federal district courts, the Broadnax Complaint was filed in state
court. As with all of these related complaints, the Company has
filed an answer to the Lott Complaint and the Broadnax Complaint.
The Company has also filed a cross-claim against the Commissioner
for a judicial declaration and judgment that the Company did not
engage in any wrongdoing as alleged in the complaint and a request
for injunctive relief to compel the Commissioner to redact any
statements or publications that allege wrongdoing by the Company
and to issue corrective statements to any recipients of any such
publications. The Commissioner's motion to dismiss the Company's
cross claim has been dismissed by the court. The portion of the
Lott complaint against the Commissioner has been dismissed as a
result of a settlement agreement reached between the approximately
138 Lott class members and the Commissioner granting the class
members 90 days to retake the test for their CDL.
The Pascarella Complaint, the Lott Complaint, and the Broadnax
Complaint are consolidated with the Ham Complaint in the United
States District Court for the Western District of Tennessee and
discovery is ongoing.
On July 1, 2011, the United States District Court for the Western
District of Tennessee Western division entered an order of court
granting class certification of the consolidated matters. The
Company believes that the court committed reversible error in
granting class certification and on July 15, 2011, the Company
filed a motion for reconsideration of the class certification
determination.
No further updates were reported in the Company's latest SEC
filing.
The Company says it intends to vigorously contest class
certification as well as the allegations made by the plaintiffs
should the class remain certified. Based on its knowledge of the
facts and advice of outside counsel, management does not believe
the outcome of this litigation is likely to have a material
adverse effect on the Company; however, the final disposition of
this case and the impact of such final disposition cannot be
determined at this time.
SWIFT TRANSPORTATION: To Pursue Stayed Motions in "Garza" Suit
--------------------------------------------------------------
Swift Transportation Company said in its November 9, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011, that it will now continue to
pursue its motions with a trial court that were stayed pending
decisions at the appellate court level.
On January 30, 2004, a class action lawsuit was filed by Leonel
Garza on behalf of himself and all similarly situated persons
against Swift Transportation: Garza vs. Swift Transportation Co.,
Inc., Case No. CV07-0472. The putative class originally involved
certain owner-operators who contracted with the Company under a
2001 Contractor Agreement that was in place for one year. The
putative class is alleging that the Company should have reimbursed
owner-operators for actual miles driven rather than the contracted
and industry standard remuneration based upon dispatched miles.
The trial court denied plaintiff's petition for class
certification, the plaintiff appealed and on August 6, 2008, the
Arizona Court of Appeals issued an unpublished Memorandum Decision
reversing the trial court's denial of class certification and
remanding the case back to the trial court. On November 14, 2008,
the Company filed a petition for review to the Arizona Supreme
Court regarding the issue of class certification as a consequence
of the denial of the Motion for Reconsideration by the Court of
Appeals. On March 17, 2009, the Arizona Supreme Court granted the
Company's petition for review, and on July 31, 2009, the Arizona
Supreme Court vacated the decision of the Court of Appeals opining
that the Court of Appeals lacked automatic appellate jurisdiction
to reverse the trial court's original denial of class
certification and remanded the matter back to the trial court for
further evaluation and determination. Thereafter, the plaintiff
renewed the motion for class certification and expanded it to
include all persons who were employed by Swift as employee drivers
or who contracted with Swift as owner-operators on or after
January 30, 1998, in each case who were compensated by reference
to miles driven.
On November 4, 2010, the Maricopa County trial court entered an
order certifying a class of owner-operators and expanding the
class to include employees. Upon certification, the Company filed
a motion to compel arbitration as well as filing numerous motions
in the trial court urging dismissal on several other grounds
including, but not limited to the lack of an employee as a class
representative, and because the named owner operator class
representative only contracted with the Company for a three month
period under a one year contract that no longer exists. In
addition to these trial court motions, the Company also filed a
petition for special action with the Arizona Court of Appeals
arguing that the trial court erred in certifying the class because
the trial court relied upon the Court of Appeals ruling that was
previously overturned by the Arizona Supreme Court. On April 7,
2011, the Arizona Court of Appeals declined jurisdiction to hear
this petition for special action and the Company filed a petition
for review to the Arizona Supreme Court.
On August 31, 2011, the Arizona Supreme Court declined to review
the decision of the Arizona Court of Appeals and the Company will
now continue to pursue its original motions with the trial court
that were stayed pending the foregoing decisions at the appellate
court level.
The Company says it intends to pursue all available appellate
relief supported by the record, which the Company believes
demonstrates that the class is improperly certified and, further,
that the claims raised have no merit or are subject to mandatory
arbitration. The Maricopa County trial court's decision pertains
only to the issue of class certification, and the Company retains
all of its defenses against liability and damages. The final
disposition of this case and the impact of such final disposition
cannot be determined at this time.
SWIFT TRANSPORTATION: Will Respond to Amended "Daniel" Suit Soon
----------------------------------------------------------------
Swift Transportation Company said in its November 9, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011, that it is reviewing Kelvin
Daniel and Tanna Hodges' amended complaint and will respond to it
in due course.
On August 8, 2011, a class action lawsuit was filed by Kelvin
Daniel and Tanna Hodges on behalf of themselves and all similarly
situated persons against Swift Transportation Corporation: Kelvin
Daniel and Tanna Hodges et al v. Swift Transportation Corporation,
in the United States District Court for the District of Arizona,
case number 11-CV-01548-ROS. The putative class includes job
applicants during the five year statutory period in Arizona who
were not hired by Swift alleging certain violations of the Fair
Credit Reporting Act ("FCRA") including, that the Company does not
conspicuously advise job applicants that criminal and motor
vehicle background reports will be obtained as part of the
employment application process, that Swift does not obtain an
adequate release from job applicants to obtain such background
information and that upon receipt of adverse and disqualifying
background information, Swift does not provide the applicant with
proper notice thereof. In October 2011, in response to a partial
motion to dismiss filed by Swift Transportation of Arizona, LLC,
the plaintiffs filed an amended complaint. The Company is
reviewing that amended pleading and plan to respond in due course
to that amended pleading.
The Company says it intends to vigorously defend certification of
the class as well as the merits of these matters should the class
be certified. The final disposition of this case and the impact of
such final disposition of this case cannot be determined at this
time.
SYNOVUS FINANCIAL: Continues to Defend Class Suit in Georgia
------------------------------------------------------------
Synovus Financial Corp. continues to defend itself against a
securities class action lawsuit and derivative lawsuits pending in
Georgia, according to the Company's November 9, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2011.
On July 7, 2009, the City of Pompano Beach General Employees'
Retirement System filed a lawsuit against Synovus, and certain of
Synovus' current and former officers, in the United States
District Court, Northern District of Georgia (Civil Action File
No. 1 09-CV-1811) (the "Securities Class Action") and on June 11,
2010, Lead Plaintiffs, the Labourers' Pension Fund of Central and
Eastern Canada and the Sheet Metal Workers' National Pension Fund,
filed an amended complaint alleging that Synovus and the named
individual defendants misrepresented or failed to disclose
material facts that artificially inflated Synovus' stock price in
violation of the federal securities laws. Lead Plaintiffs'
allegations are based on purported exposure to Synovus' lending
relationship with the Sea Island Company and the impact of such
alleged exposure on Synovus' financial condition. Lead Plaintiffs
in the Securities Class Action seek damages in an unspecified
amount. On May 19, 2011, the Court ruled that the amended
complaint failed to satisfy the mandatory pleading requirements of
the Private Securities Litigation Reform Act. The Court also
ruled that Lead Plaintiffs would be allowed the opportunity to
submit a further amended complaint. Lead Plaintiffs served their
second amended complaint on June 27, 2011. Defendants filed a
Motion to Dismiss that complaint on July 27, 2011. The motion is
fully briefed and the parties are waiting on a ruling by the
court. Discovery continues to be stayed pursuant to the Private
Securities Litigation Reform Act.
On November 4, 2009, a shareholder filed a putative derivative
action purportedly on behalf of Synovus in the United States
District Court, Northern District of Georgia (Civil Action File
No. 1 09-CV-3069) (the "Federal Shareholder Derivative Lawsuit"),
against certain current and/or former directors and executive
officers of Synovus. The Federal Shareholder Derivative Lawsuit
asserts that the individual defendants violated their fiduciary
duties based upon substantially the same facts as alleged in the
Securities Class Action. The plaintiff is seeking to recover
damages in an unspecified amount and equitable and/or injunctive
relief.
On December 1, 2009, the Court consolidated the Securities Class
Action and Federal Shareholder Derivative Lawsuit for discovery
purposes, captioned In re Synovus Financial Corp., 09-CV-1811-JOF,
holding that the two cases involve "common issues of law and
fact."
On December 21, 2009, a shareholder filed a putative derivative
action purportedly on behalf of Synovus in the Superior Court of
Fulton County, Georgia (the "State Shareholder Derivative
Lawsuit"), against certain current and/or former directors and
executive officers of Synovus. The State Shareholder Derivative
Lawsuit asserts that the individual defendants violated their
fiduciary duties based upon substantially the same facts as
alleged in the Federal Shareholder Derivative Lawsuit. The
plaintiff is seeking to recover damages in an unspecified amount
and equitable and/or injunctive relief. On June 17, 2010, the
Superior Court entered an Order staying the State Shareholder
Derivative Lawsuit pending resolution of the Federal Shareholder
Derivative Lawsuit.
Synovus and the individual named defendants collectively intend to
vigorously defend themselves against the Securities Class Action
and Shareholder Derivative Lawsuits allegations. The Company,
however, says that there are significant uncertainties involved in
any potential class action and derivative litigation. Although
the ultimate outcome of these lawsuits cannot be ascertained at
this time, at this stage of the Securities Class Action and
Shareholder Derivative Lawsuits, based upon information that
presently is available to it, Synovus' management is unable to
predict the outcome of the Securities Class Action or the
Shareholder Derivative Lawsuits and cannot determine the
probability of an adverse result or reasonably estimate a range of
potential loss, if any. In addition, management is unable to
estimate a range of reasonably possible losses with respect to
these claims.
SYNOVUS FINANCIAL: Overdraft Fees-Related Suits Remain Pending
--------------------------------------------------------------
Class action lawsuits against Synovus Financial Corp.'s subsidiary
relating to overdraft fees remain pending, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
On September 21, 2010, the Company, Synovus Bank and Columbus Bank
and Trust Company were named as defendants in a second putative
class action relating to the manner in which Synovus Bank charges
overdraft fees to customers. CB&T is a division of the Company's
wholly owned subsidiary, Synovus Bank. The second case Childs et
al. v. Columbus Bank and Trust et al., was filed in the Northern
District of Georgia, Atlanta Division, and asserts claims for
breach of contract and breach of the covenant of good faith and
fair dealing, unconscionability, conversion and unjust enrichment
for alleged injuries suffered by plaintiffs as a result of Synovus
Bank's assessment of overdraft charges allegedly resulting from
the sequence used to post payments to the plaintiffs' accounts.
On October 25, 2010, the Childs case was transferred to a multi
district proceeding in the Southern District of Florida, In Re:
Checking Account Overdraft Litigation, MDL No. 2036. Synovus
Bank's deadline to respond to the complaint was November 2011.
These cases, and certain of the other litigation and regulatory
matters to which Synovus is subject, assert claims for substantial
or indeterminate damages. Additional lawsuits containing similar
claims may be filed in the future.
Synovus says it intends to vigorously pursue all available
defenses to these claims. The Company says these cases are in the
early stages and no damages have been specified, and there are
significant uncertainties involved in any potential class action.
Although the ultimate outcome of these lawsuits cannot be
ascertained at this time, based upon information that presently is
available to it, Synovus' management is unable to predict the
outcome of these cases and cannot determine the probability of an
adverse result or reasonably estimate a range of potential loss,
if any. In addition, management is unable to estimate a range of
reasonably possible losses with respect to these claims.
SYNOVUS FINANCIAL: Bid to Arbitrate in "Greenwood" Suit Pending
---------------------------------------------------------------
A motion to compel arbitration of claims asserted under the
California Unfair Competition Law in a class action lawsuit
involving a division of Synovus Financial Corp.'s wholly owned
subsidiary, Synovus Bank, remains pending, according to the
Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
Columbus Bank and Trust Company ("CB&T") and CompuCredit
Corporation ("CompuCredit") previously were parties to an affinity
agreement ("Affinity Agreement") pursuant to which CB&T issued
credit cards that were marketed and serviced by CompuCredit. CB&T
is a division of the Company's wholly owned subsidiary, Synovus
Bank.
On October 24, 2008, a putative class action lawsuit was filed
against CompuCredit and CB&T in the United States District Court
for the Northern District of California, Greenwood v. CompuCredit,
et al., Case No. 4:08-cv-04878 (CW) ("Greenwood"), alleging that
one of the credit card programs offered pursuant to the Affinity
Agreement violated the Credit Repair Organization Act, 15 U.S.C.
Section 1679 ("CROA Claims") and the California Unfair Competition
Law, Cal. Bus. & Prof. Code Section 17200 ("California UCL
Claims"). CB&T intends to vigorously defend itself against these
allegations.
On January 22, 2009, the Georgia Superior Court in separate
litigation between CB&T and CompuCredit ruled that CompuCredit
must pay the reasonable attorneys' fees incurred by CB&T in
connection with the Greenwood case pursuant to the indemnification
provision of the Affinity Agreement. Any losses that CB&T incurs
in connection with Greenwood are also expected to be subject to
the indemnification provisions of the Affinity Agreement.
On May 2, 2011, the United States Supreme Court granted a writ of
certiorari to review the decision of the Ninth Circuit Court of
Appeals that affirmed a denial of the defendants' motion to compel
arbitration of the CROA Claims in Greenwood. The CROA claims have
been stayed pending the resolution of the appeal. The Supreme
Court heard oral arguments on the case on October 11, 2011. The
District Court has certified the California UCL claims as a class
action, but following the April 27, 2011 decision of the United
States Supreme Court in AT&T Mobility LLC v. Concepcion that
overruled prior California law limiting arbitration of class
actions, defendants have moved to compel arbitration of the State
UCL Claims, and that motion is currently pending before the
district court.
At this stage of the lawsuit, and in view of the inherent
inability to predict the outcome of litigation, particularly where
there are many claimants, Synovus says it cannot determine the
probability of a material adverse result or reasonably estimate a
range of potential exposures, if any. At this time, based on
current knowledge and advice of counsel, management does not
believe that the eventual outcome of this case will have a
material adverse effect on Synovus' consolidated financial
condition, results of operations or cash flows.
SYNOVUS FINANCIAL: Unit Can Seek Urgent Review in "Griner" Suit
---------------------------------------------------------------
A Georgia state court denied Synovus Bank's motion to dismiss a
class action lawsuit, but granted its request for a certificate of
immediate review, Synovus Financial Corp. disclosed in its
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
In the wake of the ongoing financial credit crisis that began in
2007, Synovus, like many other financial institutions, has become
the target of numerous legal actions and other proceedings
asserting claims for damages and related relief for losses
resulting from this crisis. These actions include claims and
counterclaims asserted by individual borrowers related to their
loans and allegations of violations of state and federal laws and
regulations relating to banking practices, including several
purported putative class action matters. Synovus Bank was named
as a defendant in a purported putative class action relating to
overdraft fees charged to customers. The case, Griner et. al. v.
Synovus Bank, et. al. was filed in Gwinnett County State Court
(state of Georgia) on July 30, 2010, and asserts claims for usury,
conversion and money had and received for alleged injuries
suffered by the plaintiffs as a result of Synovus Bank's
assessment of overdraft charges in connection with its POS/debit
and automated-teller machine cards used to access customer
accounts. On September 1, 2010, Synovus Bank removed the case to
the United States District Court for the Northern District of
Georgia, Atlanta Division. The plaintiffs filed a motion to
remand the case to state court. On July 22, 2011, the federal
court entered an order granting plaintiffs' motion to remand the
case to the Gwinnett County State Court. Synovus Bank
subsequently filed a motion to dismiss. On November 2, 2011, the
state court denied the motion to dismiss. The court, however,
granted Synovus Bank's request for a certificate of immediate
review thereby permitting Synovus Bank to petition the Georgia
Court of Appeals for a discretionary appeal of the motion to
dismiss.
TOWERS WATSON: Still Defends Consolidated Shareholder Class Suit
----------------------------------------------------------------
Towers Watson & Co. continues to defend a consolidated shareholder
lawsuit pending in Pennsylvania, according to the Company's
November 9, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2011.
Towers Watson was formed on January 1, 2010, pursuant to the
Agreement and Plan of Merger, as amended. Watson Wyatt Worldwide,
Inc. ("Watson Wyatt") and Towers, Perrin, Forster & Crosby, Inc.
("Towers Perrin") combined their businesses through two
simultaneous mergers (the "Merger") and became wholly-owned
subsidiaries of Jupiter Saturn Holding Company, which subsequently
changed its name to Towers Watson & Co. Since the consummation of
the Merger, Towers Perrin changed its name to Towers Watson
Pennsylvania Inc., and Watson Wyatt changed its name to Towers
Watson Delaware Holdings Inc.
A putative class action lawsuit filed by certain former
shareholders of Towers Perrin (the "Dugan Action") previously was
reported in Amendment No. 3 to the Registration Statement on Form
S-4/A (File No. 333-161705) filed on November 9, 2009, by the
Jupiter Saturn Holding Company (the "Registration Statement"). As
reported in the Registration Statement, the complaint was filed on
November 5, 2009, against Towers Perrin, members of its board of
directors, and certain members of senior management in the United
States District Court for the Eastern District of Pennsylvania.
Plaintiffs in this action are former members of Towers Perrin's
senior management, who left Towers Perrin at various times between
1995 and 2000. The Dugan plaintiffs seek to represent a class of
former Towers Perrin shareholders who separated from service on or
after January 1, 1971, and who also meet certain other specified
criteria. The complaint does not contain a quantification of the
damages sought.
On December 9, 2009, Watson Wyatt was informed by Towers Perrin of
a settlement demand from the plaintiffs in the Dugan Action.
Although the complaint in the Dugan Action does not contain a
quantification of the damages sought, plaintiffs' settlement
demand, which was orally communicated to Towers Perrin on December
8, 2009, and in writing on December 9, 2009, sought a payment of
$800 million to settle the action on behalf of the proposed class.
Plaintiffs requested that Towers Perrin communicate the settlement
demand to Watson Wyatt.
On December 17, 2009, four other former Towers Perrin
shareholders, all of whom voluntarily left Towers Perrin in May or
June 2005 and all of whom are excluded from the proposed class in
the Dugan Action, commenced a separate legal proceeding (the
"Allen Action") in the United States District Court for the
Eastern District of Pennsylvania alleging the same claims in
substantially the same form as those alleged in the Dugan Action.
A fifth plaintiff has joined this action. These plaintiffs are
proceeding in their individual capacities and do not seek to
represent a proposed class.
On January 15, 2010, another former Towers Perrin shareholder who
separated from service with Towers Perrin in March 2005 when
Towers Perrin and EDS launched a joint venture that led to the
creation of a corporate entity known as ExcellerateHRO ("eHRO"),
commenced a separate legal proceeding (the "Pao Action") in the
United States District Court of the Eastern District of
Pennsylvania alleging the same claims in substantially the same
form as those alleged in the Dugan Action. Towers Perrin
contributed its Towers Perrin Administrative Solutions ("TPAS")
business to eHRO and formerly was a minority shareholder (15%) of
eHRO. Pao seeks to represent a class of former Towers Perrin
shareholders who separated from service in connection with Towers
Perrin's contribution to eHRO of its TPAS business and who are
excluded from the proposed class in the Dugan Action. Towers
Watson is also named as a defendant in the Pao Action.
Pursuant to the Towers Perrin Bylaws in effect at the time of
their separations, the Towers Perrin shares held by all plaintiffs
were redeemed by Towers Perrin at book value at the time these
individuals separated from employment. The complaints allege
variously that there either was a promise that Towers Perrin would
remain privately owned in perpetuity (Dugan Action) or that in the
event of a change to public ownership plaintiffs would receive
compensation (Allen and Pao Actions). Plaintiffs allege that by
agreeing to sell their shares back to Towers Perrin at book value
upon separation, they and other members of the putative classes
relied upon these alleged promises, which they claim were breached
as a result of the consummation of the Merger between Watson Wyatt
and Towers Perrin. The complaints assert claims for breach of
contract, breach of express trust, breach of fiduciary duty,
promissory estoppel, quasi-contract/unjust enrichment, and
constructive trust, and seek equitable relief including an
accounting, disgorgement, rescission and/or restitution, and the
imposition of a constructive trust. On January 20, 2010, the
court consolidated the three actions for all purposes.
On February 22, 2010, defendants filed a motion to dismiss the
complaints in their entireties. By order dated September 30,
2010, the court granted the motion to dismiss plaintiffs' claim
for a constructive trust and denied the motion with respect to all
other claims alleged. Pursuant to the court's September 30 order,
defendants also filed answers to plaintiffs' complaints on October
22, 2010. The parties are currently engaged in fact discovery.
Given the stage of the proceedings, the Company has concluded that
a loss is neither probable nor estimable, and that the Company is
unable to estimate a reasonably possible loss or range of loss.
No further updates were reported in the Company's latest SEC
filing.
Towers Watson continues to believe the claims in these lawsuits
are without merit and intends to continue to defend against them
vigorously. However, the cost of defending against the claims
could be substantial and the outcome of these legal proceedings is
inherently uncertain and could be unfavorable to Towers Watson.
UNITED STATES: Dec. 20-22 Keepseagle Class Action Meetings Set
--------------------------------------------------------------
The Bismark Tribune reports that American Indian farmers and
ranchers who wish to file a claim in the $760 million Keepseagle
class action settlement with the U.S. Department of Agriculture
can receive legal help.
Meetings are scheduled from 9 a.m. to 5 p.m. Dec. 20-22 at the
Jack Barden Center at United Tribes Technical College.
Those wishing to file a claim for cash and loan forgiveness must
do so by Dec. 27.
The complete schedule of claims meetings can be found online at
http://www.IndianFarmClass.comor by calling 1-888-233-5506 or
writing to: Keepseagle Settlement Administrator, P.O. Box 3560,
Portland, OR 97208-3560.
YONGYE INTERNATIONAL: Still Defends Securities Suits in New York
----------------------------------------------------------------
Yongye International, Inc., continues to defend itself against
securities class action lawsuits pending in New York, according to
the Company's November 9, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2011.
On May 26, 2011, and June 3, 2011, the Company and three of its
officers and directors were named in putative class action
lawsuits filed in the US Federal District Court for the Southern
District of New York alleging, among other things, that the
Company and such officers and directors issued false and
misleading information to investors about the Company's financial
and business condition. These securities class action complaints
generally allege that Yongye's business was not growing at the
rate represented by the defendants and that Yongye's financial
results as reported to the Securities and Exchange Commission were
inconsistent with its production capabilities. On July 19, 2011,
the Company and certain of its officers and directors were named
in a derivative lawsuit filed in the First Judicial District Court
of the State of Nevada and Carson City alleging, among other
things, that the Company's directors and officers breached their
fiduciary duties to the Company, misrepresented Company earnings,
wasted corporate assets and unjustly enriched themselves at the
expense of the Company. The derivative complaint also alleges
that Yongye, at the direction of or with the approval of its
directors, failed to implement and adequate system of internal and
financial controls.
No further updates were reported in the Company's latest SEC
filing.
The Company says the lawsuits are in their early stages. The
Company believes the claims contained in the lawsuits to be
without merit and intends to defend itself vigorously.
ZOCOR: May Face Class Action Over Drug Side Effects
---------------------------------------------------
Irene Hobbs, writing for Zocor Lawsuit News, reports that numerous
injured patients around the country have enlisted a Zocor lawyer
to file a Zocor side effects lawsuit, alleging serious problems
such as Zocor muscle injury. To date, however, no Zocor class
action lawsuit has been organized. As potential plaintiffs
consult with an experienced Zocor lawyer to decide how best to
compensatory damages for the injuries they sustained as a result
of using the popular anti-cholesterol drug, many are wondering if
a potential Zocor class action lawsuit would prove to be the best
option for obtaining Zocor muscle injury settlements.
Potential plaintiffs consider a Zocor class action lawsuit
A Zocor lawyer will advise potential plaintiffs that while no
Zocor class action lawsuit has yet been formed, the possibility of
creating one is very real. A class action lawsuit occurs when one
or more plaintiffs bring a case, such as a Zocor muscle injury
lawsuit, against a defendant on behalf of a group of individuals
with a similar complaint. A class action suit, such as a
hypothetical Zocor class action lawsuit, is different than
multidistrict litigation (MDL), which addresses claims presented
by a large number of people who maintain their individual
plaintiff status.
A Zocor lawyer will inform potential clients that a major
difference between a Zocor class action lawsuit and MDL is the
representative plaintiff. In a class action lawsuit, a
representative plaintiff brings the lawsuit against the defendant
on behalf of other plaintiffs. In an MDL, plaintiffs bring their
own suits against the defendant.
Necessary steps to forming a Zocor class action lawsuit
If a Zocor class action lawsuit were to be formed by a Zocor
lawyer representing plaintiffs suffering from side effects such as
Zocor muscle injury or rhabdomyolysis, it would have to be filed
in a federal court if requested damages exceed $5 million.
Multi-state class action suits are challenging for plaintiffs and
defendants alike, as different states have different laws. For a
Zocor class action lawsuit to be filed, the representative
plaintiff and his or her Zocor lawyer would have to look for
fellow plaintiffs with similar complaints from within the same
state.
After the complaint is filed, a potential Zocor class action
lawsuit would have to be certified, which may require discovery, a
process that allows the court to determine if a class action suit
is valid. Defendants can object to the class action filing. If
the Zocor class action lawsuit were to move forward, any eligible
plaintiffs, such as patients who had reported Zocor muscle injury,
would be told about the action by a Zocor lawyer and given an
opportunity to opt out of the Zocor class action lawsuit.
If a Zocor class action lawsuit were to result in a settlement
negotiated by the representative plaintiff's Zocor lawyer, the
damages will be divided among all individuals involved with the
class action.
Challenges to forming a Zocor class action lawsuit
Forming a Zocor class action lawsuit will take time, patience and
extensive research on the part of a Zocor lawyer, as the court can
refuse the request for a class action suit if the defendant
presents a solid argument as to why a class action suit isn't
necessary.
Scientific studies touting the benefits of Zocor could,
theoretically, hurt the chances of a Zocor class action lawsuit.
For example, British researchers recently published a study
showing that statins such as Zocor reduce the risk of
cardiovascular disease by one quarter. The study also showed
statins will reduce heart attack and stroke. Though this is good
news for most Zocor users, it doesn't address Zocor muscle injury,
which is at the heart of most lawsuits filed by a Zocor lawyer on
behalf of seriously injured patients. Zocor muscle injury would
likely form the basis of any future Zocor class action lawsuit.
* Draft Proposal on Class Action Sparks Debate in China
-------------------------------------------------------
Zhao Yinan, writing for China Daily, reports that heated debate
has arisen over a 50-word article in a draft proposal meant to
help the public better protect its interests, particularly in
cases involving environmental pollution and food safety.
Judges, prosecutors and social organizations have all asked
whether the section is short on necessary details or is
inconsistent with current legal practices.
The article, part of a proposed draft amendment to the Civil
Procedure Law, entitles "relevant authorities and social
organizations" to file class-action lawsuits to defend public
interests, especially from cases of environmental pollution or
unsafe food.
Luo Dongchuan, deputy director of the Supreme People's Court's
research department, said fewer than 20 suits concerning public
interests have been filed and heard in the country in the past
decade. In those cases, the judicial precedents have concentrated
on one point -- environmental protection.
"A lack of explicit legal regulations is a big obstacle for class-
action suits in China," Mr. Luo said.
In current practice, local courts make their own decisions about
what kind of public-interest suits can be filed, as well as how
large the fines imposed in such cases can be.
If the lack of standards continues to be neglected, it will become
a "large defect" in the country's legal system, Mr. Luo said. He
added the draft should take into account local practices that have
produced the best results and put those into the law.
The draft amendment, which has been deemed by many as being one of
the top legislature's landmark projects, has met with complaints
from the public. Many people blame it for falling short of the
goals ostensibly behind it.
In the fewer than 20 public-interest suits that have been filed,
most of the plaintiffs have been government administrations and
prosecutors. Individuals and non-governmental organizations have
rarely been able to file litigation aimed at protecting the
public's interests, despite their many attempts.
"The only accuser that was not completely official was the semi-
official All-China Environment Federation, an organization
affiliated with the Ministry of Environmental Protection," Mr. Luo
said.
An environmental court in Qujing, a city in Yunnan province, was
established in 2008 and, in late October, accepted a case from
Friends of Nature, the oldest environmental NGO in China.
The case marked the first time in the country's history that a NGO
had been a plaintiff in a class-action lawsuit. Also among the
case's plaintiffs was the local environmental protection bureau.
"We didn't try to file with the local environmental protection
authority until the court suggested that we do so," said Yang
Yang, a program officer with Friends of Nature. "They said the
case will be easier to accept in that way."
Mr. Yang said the suit's chances in court were likely to improve
if a government agency had helped to file it. Such agencies, he
explained, can cite "government-controlled documents as proof".
Even so, "it is still impossible for us to independently file a
lawsuit, even after the proposal was passed", she said.
"The draft entitles only 'social groups', not all NGOs in China,
to file a class-action suit."
In China, a "social group" refers to a particular type of
organization, one that has completely different registration and
management procedures than social organizations, private non-
enterprise entities and other civil societies, according to the
country's Regulation on the Registration and Management of Social
Groups.
Because Friends of Nature is a private non-enterprise entity, the
draft proposal will not allow it to file a class-action lawsuit.
"To be registered as a social group, you have to go through a set
of strict procedures, making it almost impossible for us to
succeed."
Jia Xiaogang, vice-president of the Supreme People's
Procuratorate's civil and administrative tribunal, said a
discrepancy exists between the public's expectations for the
legislation and the draft proposal itself.
"There are issues that remain unclear and unspecified in the
draft, and they will lead to unexpected difficulties if they are
put into practice," he said.
Jia said social organizations should have more influence and
argued that the phrase "related authorities" is too ambiguous to
make the draft proposal's meaning clear.
He said government agencies should not be allowed to file public-
interest suits against subordinate bodies, which they already
supervise. They should not get an additional means of wielding
power over them, he said.
"It will be more practical to define 'related authorities' as
prosecutors, for we hold a relatively impartial stance compared
with the government," he said.
Xiao Jianguo, a law professor at Renmin University of China, said
the top legislature arrived at the current draft through much
heated discussion.
"It is ambiguous because it was made in response to the demands of
different interest groups," he said. "The strict control over
what agencies can file suits stems from a concern that the right
to take legal action may be abused."
Lawmakers read the draft amendment at their bimonthly session in
October and are now soliciting opinions about it on the National
People's Congress' Web site.
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