/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111228.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 28, 2011, Vol. 13, No. 257 Headlines ACCESS PLANS: Still Defends Class Suit vs. Unit in Georgia APPLE REIT NINE: Plaintiff Dismisses New York Shareholder Suit AVIS BUDGET: Sued Over Alleged Racketeering Activity BABIES "R" US: Judge Okays $35.5 Million Class Action Settlement BCSB BANCORP: Got Final OK of Settlement in Suit vs. Unit in Aug. BERNARD L. MADOFF: Standard Chartered Wins Dismissal of Class Suit BUILD-A-BEAR WORKSHOP: Recalls 297,200 Colorful Hearts Teddy Bears CIENA CORP: IPO-Related Suit Settlement Still Subject to Appeal COMMERCE BANK: Settles Overdraft Fee Class Action for $18.3 Mil. CONDE NAST: Faces Class Actions Over Customer Data Sharing E*TRADE FINANCIAL: Settles Securities Class Suits for $79 Million GENERAL FOAM: Recalls 1,000 Holiday Tree, Wreath & Garland Sets GROUP LEMUR: Recalls 1,750 Petit Lem Children's Pajamas HANNA ANDERSSON: Recalls 1,000 Children's Fleece Robes JOHNSON & JOHNSON: Cough Syrup Suit Can Proceed as Class Action LOCAL SERVICE: Named as Plaintiff in Suit v. Elbert County Board MARICOPA COUNTY, AZ: Latinos Can Join Immigration Class Action RALPH'S GROCERY: Faces Class Actions Over Unpaid Overtime Wages ROGERS COMMS: Faces Class Action Suit Over "System Access Fees" SQUARE ENIX: 9th Circuit Affirms Dismissal of Class Action TORO CO: Continues to Defend Suit by Lawnmower Owners in Canada VILLAGE OF DOWNERS GROVER, IL: Arrest Refund Suit Certified WASHINGTON COUNTY, IA: Residents Oppose New Sewage System WILLMOTT FORESTS: Investors File Class Action ********* ACCESS PLANS: Still Defends Class Suit vs. Unit in Georgia ---------------------------------------------------------- William Andrew Rivell, M.D. and Alan B. Whitehouse, M.D., individually and on behalf of all persons similarly situated, v. Private Health Care Systems and The Capella Group, Inc.; Civil Action File No: CV106-176 was filed and remains pending in the United States District Court for the Southern District of Georgia, Augusta Division. The plaintiffs in this case allege that the contracts entered into by medical providers with Access Plans, Inc.'s subsidiary, The Capella Group, Inc. ("Capella") through Capella's relationship with the Private Health Care Systems network of providers ("PHCS") did not allow for the use of the providers' names to market a discount medical plan whereby payment for services is made at the point of service by the consumer, and not by a third party payor such as an insurance company. The Company says it is vigorously contesting this assertion and intends to defend this case. The Plaintiffs are, however, seeking certification of this case as a class action on behalf of all similarly-situated physicians nationwide. If the plaintiffs succeed with such certification and ultimately prevail in the case, the Company says it could have a material adverse affect on its financial condition and its results of operation. The case was originally instituted on November 17, 2006, but was thereafter dismissed by the District Court. The United States Court of Appeals for the Eleventh Circuit vacated such dismissal and remanded the case to the District Court on March 24, 2008. In August of 2009 the District Court denied Plaintiffs' Amended Motion for Class Certification. In September of 2009 Plaintiffs filed their Motion for Reconsideration of Order Denying Amended Motion for Class Certification, asking the District Court to certify a smaller class. On September 30, 2010, the Court issued a ruling denying Plaintiff's Motion for Reconsideration of Order Denying Amended Motion for Class Certification. No further updates were reported in the Company's December 22, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. APPLE REIT NINE: Plaintiff Dismisses New York Shareholder Suit -------------------------------------------------------------- Barbara Blazer filed a voluntary dismissal of her complaint against Apple REIT Nine, Inc., and others, according to the Company's December 22, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On November 16, 2011, a shareholder of the Company filed a putative class action lawsuit captioned Barbara Blazer v. Apple REIT Nine, Inc., et al., in the Supreme Court of the State of New York against the Company, Glade M. Knight, David Lerner Associates, Inc., and David Lerner. By order, dated November 28, 2011, the Supreme Court of the State of New York transferred this case to the United States District Court for the Southern District of New York. On December 19, 2011, the plaintiff filed a voluntary dismissal of her complaint and all claims against the Company, Glade M. Knight, David Lerner Associates, Inc., and David Lerner without prejudice. AVIS BUDGET: Sued Over Alleged Racketeering Activity ---------------------------------------------------- Janet Sparks, writing for Blue Maumau, reports that an independent agency operator filed a class action lawsuit against Avis Budget Group, claiming the company intentionally participated in schemes to defraud its agency operators through its electronic reservation system. Avis is accused of being linked to racketeering activity under federal law. The amended complaint, Faith Enterprises Group v Avis Budget Group, Inc., filed November 15, 2011, explains how Avis engaged in an open and ongoing pattern of deceit and fraud through its Wizard reservation system. Under Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, the Avis system constitutes an "association-in-fact" enterprise. The purported scheme was to misrepresent through electronic communications the availability of vehicles for rent to the public, to divert business away from its agency operators to its own company locations. Nathan Copeland, CEO and president of Faith Enterprises in Atlanta, filed the lawsuit against Avis and its subsidiaries, on behalf of approximately 500 similarly situated independent agency operators of Avis. The class period is for September 19, 2005 to present. The Avis Wizard System is the electronic reservation system for booking all vehicles from Avis throughout the country. It processes millions of customer inquiries each day over interstate wires and is responsible for the large majority of all rentals on the Avis system. Customers make reservations in different ways; on the Avis Web site, through travel agencies and major airlines, all with direct connect technology. When the Wizard System shows a location as being "sold out," it is communicated throughout the country to all entities accessing Avis data for reservations. The lawsuit claims that Avis violates the federal RICO statute, as well as its fiduciary and contractual duties to independent operators, on a regular basis. It allegedly does this by using the Wizard System to routinely and systematically misrepresent to customers that independent operators are "sold out" of vehicles, even though vehicles are available. The misrepresentation is said to be accompanied by Avis' suggestion that the customer may rent from an Avis company-owned airport location. As a result of this practice, agency operators lose significant vehicle rental commissions on customers who book elsewhere. Under RICO, it would be a federal crime for Avis to intentionally participate in a scheme to defraud and use interstate wires in the furtherance of that strategy, the lawsuit asserts. The agency operator claims that the enterprise affects interstate commence in a variety of ways, in renting vehicles and making payments to Avis and franchisees through interstate wires. By this practice, Avis is said to also breach its fiduciary and contractual duties by routinely failing to provide sufficient vehicles to independent operators. The complaint further states that Avis also is unjustly enriched by its practice of requiring agency operators to honor, without compensation, Avis coupons given to customers for free vehicle rentals. Faith Enterprises is asking the court to certify the lawsuit as a class action. It is also asking for restitution and/or disgorgement of all amounts wrongfully obtained and for damages according to proof. They want treble damages where permitted under applicable law, and an award of costs and attorneys fees, and for both pre- and post-judgment interest on any amounts awarded. Avis declares the allegations are meritless. In its motion to dismiss the lawsuit, Avis Budget Group says Faith Enterprises' claims are without merit, asserting that Avis did not develop an elaborate scheme that intentionally directs available business away from independent operators. "The truth is, Avis can only generate revenue when its primary asset, its vehicle fleet, is being utilized. Thus, there is a great incentive to maximize its car rentals at all locations," the motion states. Avis contends that Faith provides no logical explanation for why Avis would risk losing potential rentals to competitors in order to prevent its own independent operators from renting its available cars, when those rentals would profit both. Regarding the RICO claims, Avis states that they should be dismissed, that they are not plausible given the myriad of obvious explanations about Avis' car allocation decisions. And, Faith cannot show proximate harm stemming from Avis' alleged acts, since they are addressed in its agency contract. Avis points to the Independent Operator Agreement, saying Avis has complete discretion regarding which cars it chooses to make available for rental. "Further, the Independent Operator Agreement is an integrated contract that "supersedes all prior agreements, negotiations, and discussions." Avis asserts that this is not a case of a scheme to injure all independent operators. "It is one Independent Operator's unhappiness that Avis takes a macro view of fleet management rather than micro view focused solely on it small operation. Avis emphasizes that "its conduct is entirely consistent with both the contract and sound business practices and do not amount to fraud of any sort." According to Ms. Sparks, her telephone calls and e-mails to both parties were not returned, in trying to get comments regarding the litigation. BABIES "R" US: Judge Okays $35.5 Million Class Action Settlement ---------------------------------------------------------------- Amaris Elliott-Engel, writing for The Legal Intelligencer, reports that a federal judge has approved a $35.5 million settlement in a class action in which plaintiffs alleged that Babies "R" Us and a group of baby product manufacturers violated antitrust law. U.S. District Court Judge Anita B. Brody of the Eastern District of Pennsylvania also awarded $11.75 million in fees and $2.23 million in costs to the plaintiffs counsel, which included co-lead counsel Hagens Berman Sobol Shapiro of Oak Park, Illinois, and Spector Roseman Kodroff & Willis of Philadelphia. The class alleged that Babies "R" Us conspired with the defendant manufacturers to restrict competition by requiring all retailers to sell their goods at or above a minimum resale price, and thus that the class paid inflated prices for baby products, Judge Brody said in her memorandum opinion in McDonough v. Toys "R" US Inc. and Elliott v. Toys "R" US Inc. Tuesday last week. The other defendants are Britax Child Safety Inc., Peg Perego USA Inc., BabyBjoern AB, Regal Lager Inc., Medela Inc., Maclaren USA Inc. and Kids Line LLC. The settlement represented 24 percent of estimated actual damages, Judge Brody said. Among reasons for approving the attorney fees, Judge Brody said that if all the claimants received 20% of the purchase price, which is proposed for the plaintiffs with proper documentation, as well as treble damages, for an item as expensive as a $300 Peg Perego stroller, there will be "plenty of funding to allow for the award of treble damages. . . . Thus, class members are likely to enjoy the maximum benefit from the size of the fund." Spector Roseman spent 20,945.5 hours on the case, Hagens Berman spent 13,561.75 hours on the case, and all of the 15 plaintiffs law firms spent 81,200.82 hours collectively on the case, Judge Brody said. Judge Brody did "admonish class counsel" for not posting the motion for attorney fees and costs on the Web site dedicated to the class action until after the deadline to object to the proposed settlement had passed. Among other factors weighing in favor of approving the settlement, the risk of establishing liability and damages weighed in favor of settlement, Judge Brody said. When the case was initiated, a resale price maintenance agreement was a per se violation of the Sherman Antitrust Act, but then the Supreme Court "overturned nearly a century of precedent to rule that RPM agreements are no longer per se violations. . . . Defendants, therefore, could argue that the challenged agreements constituted reasonable restraints on trade and thus were legal," Brody said. "Even if the plaintiffs could establish liability they would not have had an easy time providing damages because there were no universal price 'mark-up.'" Judge Brody also pointed out that the U.S. Supreme Court and the 3rd U.S. Circuit Court of Appeals have rendered opinions that make it more difficult for district courts to grant class certification, so verdicts in favor of the plaintiffs might face rejection by the appellate courts. Judge Brody also said that the complexity, expense and likely duration of the litigation weighed in favor of the settlement. "Parties reached this settlement just as they were preparing to conduct six separate, consecutive jury trials in which they would have had to address disputed contractual agreements between manufacturers, distributors and retailers," Judge Brody said. "Both sides would have likely called several expert witnesses to the stand and would have had to address disputed business practices over a number of years." Discovery involved the review of more than 1 million documents and more than 30 depositions, Judge Brody said. Over 1.28 million class members received notice of the settlement, Judge Brody said. At least 41,000 claims have been filed. "As the opinion notes, the settlement represents about 24% of damages and you know that we're not going to get 100% of the class members submitting claims . . . those that submit claims are in line to receive a rather significant recovery of their damages," class counsel Eugene A. Spector of Spector Roseman said. The settlement benefited the class, Mr. Spector said. BabyAge.com Inc. and The Baby Club of America Inc. filed a separate antitrust lawsuit against all of the defendants, alleging the plaintiffs were prevented from discounting items. Judge Brody said in her opinion she consolidated that case for purposes of discovery. Kendall Millard, an attorney for Peg Perego USA with Barnes & Thornburg in Indianapolis, said that the litigation resolved successfully for his client. The action with BabyAge against Peg Perego was dismissed with prejudice, requiring Peg Perego to not pay any money at all, Millard said. And the other settlement just approved by Judge Brody required Peg Perego only to make a "cost of litigation settlement," Mr. Millard said. Peg Perego also has maintained that it did not commit antitrust violations, Mr. Millard said. Marguerite M. Sullivan, an attorney for defendant Britax Child Safety Inc. with Latham & Watkins in Washington, D.C.; Neil E. McDonell, an attorney for BabyBjoern AB with Dorsey & Whitney in New York; Joseph A. Tate, an attorney for defendant Medela Inc. with Dechert in Philadelphia; Alan M. Pollack, an attorney for Maclaren USA Inc. with Robinson Brog Leinwand Greene Genovese & Gluck in New York; and Michael J. Hahn, an attorney for Kids Line with Lowenstein Sandler in Roseland, N.J., could not be reached immediately for comment, according to the report. While David R. Martin, an attorney for Regal Lager with D.R. Martin in Atlanta, declined comment. BCSB BANCORP: Got Final OK of Settlement in Suit vs. Unit in Aug. ----------------------------------------------------------------- An agreement settling a class action lawsuit against BCSB Bancorp, Inc.'s subsidiary was finally approved in August 2011, according to the Company's December 22, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. On November 2, 2010, the Company's subsidiary, Baltimore County Savings Bank, was sued in the United States District Court for the District of Maryland in the matter of Vicki Piontek v. Baltimore County Saving Bank, F.S.B. (Civil Action No. 10-cv-3101). The Plaintiff's Complaint alleges violations of the Electronic Funds Transfer Act concerning notice requirements to be displayed upon one of the Bank's ATM machines and seeks certification of the action as a class action. The Bank has answered the Complaint, denied any such violations and demanded that the Complaint be dismissed with prejudice and that it be awarded the costs of lawsuit, and reasonable attorneys fees and intends to vigorously defend the matter. On February 1, 2011, the parties entered into a settlement agreement, which upon final order of judgment dated August 30, 2011, was resolved. Pursuant to the terms of the settlement agreement the Bank agreed to pay attorneys fees and costs of $20,500 dollars and fund a cy pres trust in the amount of $8,928 for any class member who submitted a timely claim who would, if validated, receive a maximum payment of $100 dollars per participating class member. BERNARD L. MADOFF: Standard Chartered Wins Dismissal of Class Suit ------------------------------------------------------------------ Bill Rochelle, the bankruptcy columnist for Bloomberg News, reports that even though it's "unfair" and "unjust," U.S. District Judge Victor Marrero in New York said he was nonetheless compelled to dismiss a class action lawsuit brought against Standard Chartered Bank by investors in the Bernard Madoff Ponzi scheme. The report relates that the investors paid fees to London-based Standard Chartered for managing their investments in Fairfield Sentry Ltd., the largest feeder fund for Bernard L. Madoff Investment Securities Inc. They sued the bank for breach of contract, saying fees based on earnings were unearned because the investments were actually worthless. According to the report, Judge Marrero dismissed the class suit in a 21-page opinion. While he admitted the "losses are plain and the fees paid unfortunate," Judge Marrero said "that harsh reality does not create a breach of contract." Mr. Rochelle explains that according to Judge Marrero, the contract suit failed because the servicing fees were properly charged by Standard Chartered based on the net asset values reported by Madoff. In case the breach of contract claims failed, the investors also based the suit on the doctrine of unjust enrichment. Those claims failed likewise. While admitting that it was "indeed unfair -- and even unjust," Judge Marrero said the complaint failed because "'the law of restitution is very far from imposing liability for every instance of what might plausibly be called unjust enrichment,'" quoting a leading treatise on the subject. Judge Marrero threw the investors a small bone by giving them a chance to revise the complaint on the possibility that a new version will withstand a dismissal motion. About Bernard L. Madoff Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff orchestrated the largest Ponzi scheme in history, with losses topping US$50 billion. On Dec. 15, 2008, the Honorable Louis A. Stanton of the U.S. District Court for the Southern District of New York granted the application of the Securities Investor Protection Corporation for a decree adjudicating that the customers of BLMIS are in need of the protection afforded by the Securities Investor Protection Act of 1970. The District Court's Protective Order (i) appointed Irving H. Picard, Esq., as trustee for the liquidation of BLMIS, (ii) appointed Baker & Hostetler LLP as his counsel, and (iii) removed the SIPA Liquidation proceeding to the Bankruptcy Court (Bankr. S.D.N.Y. Adv. Pro. No. 08-01789) (Lifland, J.). Mr. Picard has retained AlixPartners LLP as claims agent. On April 13, 2009, former BLMIS clients filed an involuntary Chapter 7 bankruptcy petition against Bernard Madoff (Bankr. S.D.N.Y. 09-11893). The case is before Hon. Burton Lifland. The petitioning creditors -- Blumenthal & Associates Florida General Partnership, Martin Rappaport Charitable Remainder Unitrust, Martin Rappaport, Marc Cherno, and Steven Morganstern -- assert US$64 million in claims against Mr. Madoff based on the balances contained in the last statements they got from BLMIS. On April 14, 2009, Grant Thornton UK LLP as receiver placed Madoff Securities International Limited in London under bankruptcy protection pursuant to Chapter 15 of the U.S. Bankruptcy Code (Bankr. S.D. Fla. 09-16751). The Chapter 15 case was later transferred to Manhattan. In June 2009, Judge Lifland approved the consolidation of the Madoff SIPA proceedings and the bankruptcy case. Judge Denny Chin of the U.S. District Court for the Southern District of New York on June 29, 2009, sentenced Mr. Madoff to 150 years of life imprisonment for defrauding investors in United States v. Madoff, No. 09-CR-213 (S.D.N.Y.) As of July 15, 2011, a total of US$6.88 billion in claims by investors has been allowed, with US$794.9 million to be paid by the Securities Investor Protection Corp. Investors are expected to receive additional distributions from money recovered by Mr. Picard from lawsuits or settlements. Mr. Picard has filed 1,000 lawsuits seeking $100 billion from banks such as HSBC Holdings Plc and JPMorgan Chase & Co. The trustee has seen more than $28 billion of his claims tossed by district judges. About Fairfield Sentry Fairfield Sentry is being liquidated under the supervision of the Commercial Division of the High Court of Justice in the British Virgin Islands. It is one of the funds owned by the Fairfield Greenwich Group, an investment firm founded in 1983 in New York City. Fairfield Sentry and other Greenwich funds had among the largest exposures to the Bernard L. Madoff fraud. Fairfield Sentry Limited filed for Chapter 15 protection (Bankr. S.D.N.Y. Case No. 10-13164) on June 14, 2010. Greenwich Sentry, L.P., and an affiliate filed for Chapter 11 protection (Bankr. S.D.N.Y. Case No. 10-16229) on Nov. 19, 2010, hoping to settle lawsuits filed against it in connection with its investments with Bernard L. Madoff. On May 18, 2009, Irving H. Picard, the trustee liquidating the estate of Mr. Madoff and his firm, Bernard L. Madoff Investment Securities, LLC, filed a lawsuit against Fairfield Sentry and Greenwich, seeking the return of US$3.55 billion that Fairfield withdrew from Madoff during the period from 2002 to Mr. Madoff's arrest in December 2008. Since 1995, the Fairfield funds invested about US$4.5 billion with BLMIS. Mr. Picard claims that Fairfield knew or should have known about the fraud give that it received from BLMIS unrealistically high and consistent annual returns of between 10% and 21% in contrast to the vastly larger fluctuations in the S&P 100 Index. BUILD-A-BEAR WORKSHOP: Recalls 297,200 Colorful Hearts Teddy Bears ------------------------------------------------------------------ The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with Build-A-Bear Workshop Inc., of St. Louis, Missouri, announced a voluntary recall of about 284,000 Colorful Hearts Teddy Bears in the United States of America and 13,200 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 teddy bear's eyes could loosen and fall out, posing a choking hazard to children. No incidents or injuries have been reported. The Colorful Hearts Teddy is a stuffed animal about 16 inches high with black plastic eyes. The bear's fabric covering is printed with multi-colored heart shapes. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12068.html The recalled products were manufactured in China and sold by Build-A-Bear Workshops nationwide and online at http://www.buildabear.com/from April 2011 through December 2011 for about $18 in the U.S. and $23 in Canada. Consumers should immediately take the recalled teddy bear from children and return it to any Build-A-Bear store to receive a coupon for any available stuffed animal from Build-A-Bear. For additional information, contact the firm toll-free at (866) 236- 5683 between 8:00 a.m. and 8:00 p.m. Central Time Monday through Friday, on Saturday between 9:00 a.m. and 6:00 p.m. Central Time and on Sunday between 10:00 a.m. and 4:00 p.m. Central Time, visit the firm's Web site http://www.buildabear.com/or e-mail the firm at colorfulhearts@buildabear.com CIENA CORP: IPO-Related Suit Settlement Still Subject to Appeal --------------------------------------------------------------- The settlement of a coordinated securities class action lawsuit involving Ciena Corporation remains subject to appeal, according to the Company's December 22, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended October 31, 2011. As a result of its June 2002 merger with ONI Systems Corp., Ciena became a defendant in a securities class action lawsuit filed in the United States District Court for the Southern District of New York in August 2001. The complaint named ONI, certain former ONI officers, and certain underwriters of ONI's initial public offering (IPO) as defendants, and alleges, among other things, that the underwriter defendants violated the securities laws by failing to disclose alleged compensation arrangements (such as undisclosed commissions or stock stabilization practices) in ONI's registration statement and by engaging in manipulative practices to artificially inflate ONI's stock price after the IPO. The complaint also alleges that ONI and the named former officers violated the securities laws by failing to disclose the underwriters' alleged compensation arrangements and manipulative practices. No specific amount of damages has been claimed. Similar complaints have been filed against more than 300 other issuers that have had initial public offerings since 1998, and all of these actions have been included in a single coordinated proceeding. The former ONI officers have been dismissed from the action without prejudice. In July 2004, following mediated settlement negotiations, the plaintiffs, the issuer defendants (including Ciena), and their insurers entered into a settlement agreement. The settlement agreement did not require Ciena to pay any amount toward the settlement or to make any other payments. While the partial settlement was pending approval, the plaintiffs continued to litigate their cases against the underwriter defendants. In October 2004, the district court certified a class with respect to the Section 10(b) claims in six "focus cases" selected out of all of the consolidated cases, which cases did not include Ciena, and which decision was appealed by the underwriter defendants to the U.S. Court of Appeals for the Second Circuit. On February 15, 2005, the district court granted the motion for preliminary approval of the settlement agreement, subject to certain modifications, and on August 31, 2005, the district court issued a preliminary order approving the revised stipulated settlement agreement. On December 5, 2006, the U.S. Court of Appeals for the Second Circuit vacated the district court's grant of class certification in the six focus cases. On April 6, 2007, the Second Circuit denied plaintiffs' petition for rehearing. In light of the Second Circuit's decision, the parties agreed that the settlement could not be approved. On June 25, 2007, the district court approved a stipulation filed by the plaintiffs and the issuer defendants terminating the proposed settlement. On August 14, 2007, the plaintiffs filed second amended complaints against the defendants in the six focus cases. On September 27, 2007, the plaintiffs filed a motion for class certification based on their amended complaints and allegations. On March 26, 2008, the district court denied motions to dismiss the second amended complaints filed by the defendants in the six focus cases, except as to Section 11 claims raised by those plaintiffs who sold their securities for a price in excess of the initial offering price and those who purchased outside the previously certified class period. Briefing on the plaintiffs' motion for class certification in the focus cases was completed in May 2008. That motion was withdrawn without prejudice on October 10, 2008. On April 2, 2009, a stipulation and agreement of settlement between the plaintiffs, issuer defendants and underwriter defendants was submitted to the Court for preliminary approval. The Court granted the plaintiffs' motion for preliminary approval and preliminarily certified the settlement classes on June 10, 2009. The settlement fairness hearing was held on September 10, 2009. On October 6, 2009, the Court entered an opinion granting final approval to a settlement among the plaintiffs, issuer defendants and underwriter defendants, and directing that the Clerk of the Court close these actions. All appeals of the opinion granting final approval have been either resolved or dismissed, except one. On August 25, 2011, on remand from the Second Circuit, the District Court determined that the last remaining appellant did not have standing to assert his appeal. No further updates were reported in the Company's latest SEC filing. Due to the inherent uncertainties of litigation and because the settlement remains subject to appeal, the Company says the ultimate outcome of the matter is uncertain. COMMERCE BANK: Settles Overdraft Fee Class Action for $18.3 Mil. ---------------------------------------------------------------- Vince Brennan, writing for St. Louis Business Journal, reports that Commerce Bank has reached an $18.3 million settlement in a class action lawsuit that claimed the bank improperly charged overdraft fees on certain debit card transactions, according to a regulatory filing on Dec. 23. Pending court approval, Commerce will pay $18.3 million to refund class members, pay attorney fees and cover additional costs. Commerce said in the filing that the bank did not admit any wrongdoing in the case and settled the suit to avoid additional costs. Commerce Bank officials were unavailable to comment on the case. The class action lawsuit, Wolfgeher v. Commerce Bank, was originally filed in the Western District of Missouri before being transferred to the Southern District of Florida. In the quarter ended Sept. 30, Commerce Bancshares Inc., the bank's holding company, reported earnings of $65.4 million, up 17 percent from $55.9 million a year earlier. For the year ended Dec. 31, 2010, earnings totaled $221.7 million, up 31% from $169.1 million in 2009. CONDE NAST: Faces Class Actions Over Customer Data Sharing ---------------------------------------------------------- Courthouse News Service reports that Los Angeles Superior Court class actions claim Conde Nast Publications and Men's Journal failed to disclose their sharing of customers' personal information with marketing companies. E*TRADE FINANCIAL: Settles Securities Class Suits for $79 Million ----------------------------------------------------------------- E*Trade Financial Corporation has entered into a memorandum of understanding agreeing to settle class action lawsuits (the "Freudenberg Action") alleging violations of the federal securities laws by the Company and several of its former executives, according to the Company's December 21, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. The Freudenberg Action, as well as several consolidated lawsuits, were commenced in October 2007 after the Company experienced losses in its portfolio of mortgages and home equity loans. The agreement in principle, which requires court approval to become final, calls for the Company and its insurance carriers to make a settlement payment of $79 million, of which approximately $10.75 million will be paid by the Company, in return for full releases. The defendants continue to deny that they committed any violations of law or breached any fiduciary duty to shareholders. The Company's portion of the settlement payment will be reflected as an expense in the fourth quarter of 2011. The parties expect to enter into definitive agreements and seek court approval during the first quarter of 2012. GENERAL FOAM: Recalls 1,000 Holiday Tree, Wreath & Garland Sets --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with General Foam Plastic Corp., of Norfolk, Virginia, announced a voluntary recall of about 1,000 units of Brookfield Entry Way Tree Sets. 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 box that power lights on the artificial wreath can overheat, posing a fire hazard. The firm has received 12 reports of battery boxes overheating and being warm to the touch after batteries were installed. No injuries have been reported. This recall involves Brookfield entry way decorating sets which include two green artificial 48-inch (4 ft.) trees in black metal vases, one green 24-inch wide wreath and one green 9-foot long garland. The wreath has battery-powered white lights. The trees and the garland plug into wall outlets. "True Value," "True Value Item #136879" and "UPC code 0 29033 36798 0" are printed on the product's box. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12069.html The recalled products were manufactured in China and sold exclusively at True Value Hardware stores nationwide during November 2011 for about $40. Consumers should immediately stop using the recalled products and return them to True Value for a full refund. For additional information, contact General Foam Plastic Corp. toll-free at (855) 277-0085 from 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.genfoam.com/ GROUP LEMUR: Recalls 1,750 Petit Lem Children's Pajamas ------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Group Lemur Inc., of Montreal, Quebec, announced a voluntary recall of about 1,750 Children's pajamas. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The pajamas fail to meet the federal flammability standards for children's sleepwear posing a risk of burn injury to children. No incidents or injuries have been reported. The pajamas are a Petit Lem-brand, two-piece, cotton shorts and short-sleeved sleepwear set sold in sizes 2 to 12. The pajamas are blue with flowers, white with flowers and dots, yellow with umbrellas, or pink with butterflies and fairies. Petit Lem Lounge is printed at the inside neck of the shirt. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12071.html The recalled products were manufactured in China and sold at specialty children's stores and Web sites from January 2009 to November 2009 for about $30. Children should stop wearing the recalled pajamas immediately and consumers should return them to the retailer where they were purchased or Group Lemur for a refund, exchange or store credit. For additional information, contact Group Lemur toll-free at (877) 748-6698 from 8:30 a.m. to 5:00 p.m. Eastern Time Monday through Friday, by e-mail at info@lemurgroup.com or at the firm's Web site at http://www.petitlem.com/ HANNA ANDERSSON: Recalls 1,000 Children's Fleece Robes ------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with importer, Hanna Andersson, of Portland, Oregon, and manufacturer, C.F.L Commercial, of China, announced a voluntary recall of about 1,000 Children's fleece robes. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. These children's robes fail to meet the federal flammability standards for children's sleepwear, posing a risk of burn injury to children. No incidents or injuries have been reported. The robes are fluffy white fleece robes with large multi-color dots. The 100% polyester fleece robes were sold with Euro children's sizes 80-150 cm (24 months through size 14) printed on the hangtag of the garments. "Style 38310 Hanna Andersson" is printed on the neck tag of the robes. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12070.html The recalled products were manufactured in China and sold at Hanna Andersson retail stores, catalogs nationwide and the Hanna Andersson Web site from September 2011 through November 2011 for about $50. Consumers should take these recalled robes away from children immediately and return them to the retailer where purchased for a refund, exchange or store credit. For additional information, contact Hanna Andersson toll-free at (800) 222-0544 between 8:00 a.m. and 6:00 p.m. Pacific Time Monday through Saturday or visit the firm's Web site at http://www.HannaAndersson.com/ JOHNSON & JOHNSON: Cough Syrup Suit Can Proceed as Class Action --------------------------------------------------------------- Jennifer Saltman, writing for The Province, reports that a Vancouver woman suing children's cough syrup manufacturers for misrepresentation and non-disclosure has had her case certified as a class action. When Lana Wakelam's son, now seven years old, was younger she bought cough and cold syrup and gave it to him to relieve his symptoms. Now, the medicine is no longer marketed in Canada for that age group because it is considered ineffective for children between the ages of two and six. Ms. Wakelam claims buying the medicine was a waste of money and she alleges that because it offered no benefit to balance the risks of taking the medication, it exposed her son to a real and unnecessary risk of harm. Consequently, she asserts, the companies that made the cough syrup are all guilty of misrepresentation and non-disclosure. According to the written decision of B.C. Supreme Court Justice Christopher Grauer, the defendants called the action "a travesty" and opposed its certification on a number of grounds, including constitutional. "They note that no one has been injured or harmed. They point out that they are closely regulated by Health Canada and did nothing that was not specifically authorized by their federal regulators," Justice Grauer wrote. However, because Ms. Wakelam met all of the requirements of the Class Proceedings Act, Justice Grauer certified the action as a class proceeding. Ms. Wakelam initially filed her lawsuit in 2007, naming Johnson & Johnson, McNeil Consumer Healthcare Canada, Novartis, Wyeth Consumer Health Care, Pfizer Canada, Trillium Health Care Products, Vita Health Products, Procter & Gamble and the attorney- general of B.C. as defendants. The class action is open to all B.C. residents who purchased children's cough medicine for use by children under the age of six, that was supplied, offered for sale, advertised or promoted by the defendants between Dec. 24, 1997, and on Dec. 22, when the action was certified. LOCAL SERVICE: Named as Plaintiff in Suit v. Elbert County Board ---------------------------------------------------------------- Judge Lewis T. Babcock granted the request of various landowners in Elbert County, Colorado, to amend their class action lawsuit against the county's Board of Commissioners to (i) expand the definition of the class and (ii) add Local Service Corporation, through its Chapter 11 bankruptcy trustee, Simon E. Rodriguez, as plaintiff. The Plaintiffs, which include Onyx Properties LLC; Emerald Properties, LLC; Valley Bank and Trust, a Colorado State Bank; and Paul and Shauna Naftel, assert class claims pursuant to Fed. R. Civ. P. 23 for violations of their constitutional rights under 42 U.S.C. Sec. 1983, "including, but not limited to, the Fifth and Fourteenth Amendment" resulting in a taking of property rights by Elbert County without due process of law. The Plaintiffs also assert individual claims under Sec. 1983 for the loss of their individual property rights by Elbert County's enforcement of its allegedly invalid zoning regulations. They seek damages, as well as injunctive relief enjoining Elbert County "from any further use of their invalid Zoning Regulations against" Plaintiffs and all other members of the public. The Plaintiffs seek to expand the proposed class definition from "a class consisting of all persons who have on or after August 28, 1997 (1) submitted an application for an A-1 rezone; and (2) all persons who have had the A-1 provisions of the Zoning Regulations as amended by Wolf (inclusive of the Wolf Maps) and Elbert County enforced against them regarding the A-1 zone" to "all persons who submitted any application under Elbert County's Zoning Regulations and who were subjected to the county's enforcement of any aspect of its Zoning Regulations." Elbert County, in response, said its lack of opposition "should not be construed as a waiver of any of the Defendant's defenses regarding this party's claims." The case is ONYX PROPERTIES LLC, a Colorado Limited Liability Company; EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company; VALLEY BANK AND TRUST, a Colorado State Bank; PAUL NAFTEL, an individual; and SHAUNA NAFTEL, an individual, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY; and KENNETH G. ROHRBACH, KAREN L. ROHRBACH, PAUL K. ROHRBACH, and COMPOST EXPRESS, INC., a Colorado Corporation, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, in its official capacity, Civil Case No. 10-cv-01482-LTB- KLM, Consolidated No. w/11-cv-02321-RPM-MJW (D. Colo.). A copy of the Dec. 19, 2011 Order is available at http://is.gd/ZpgVeYfrom Leagle.com. Local Service Corporation filed for Chapter 11 bankruptcy (Bankr. D. Colo. Case No. 08-15543) on April 25, 2008. In June 2010, the U.S. Trustee's Office appointed Simon Rodriguez as the Chapter 11 trustee for the LSC estate. John D. Watson, who held stock interests in LSC, is a debtor in a separate Chapter 7 case. Jeffrey A. Weinman was appointed as the Chapter 7 trustee for Mr. Watson's bankruptcy estate (Bankr. D. Colo. Case No. 07-21077) in February 2008. Mr. Weinman became the sole board member of LSC, elected himself President, and was authorized to make decisions for LSC. MARICOPA COUNTY, AZ: Latinos Can Join Immigration Class Action -------------------------------------------------------------- JJ Hensley, writing for The Arizona Republic, reports that a federal judge issued a ruling on Dec. 23 that will curtail the Maricopa County Sheriff's Office's ability to target illegal immigrants and gives thousands of Hispanics standing in a civil lawsuit that seeks to fundamentally alter Sheriff Joe Arpaio's immigration-enforcement efforts. Judge Murray Snow's ruling created a class action, giving every Latino stopped, questioned or detained by the Sheriff's Office since January 2007 standing in the 4-year-old civil-rights lawsuit. The suit does not request monetary awards but seeks to change the way Mr. Arpaio's deputies enforce immigration laws. The judge's ruling also bars all sheriff's officers from arresting any person "only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States." Such knowledge or belief, Judge Snow ruled, does not amount to cause for arrest. The class standing offers court-ordered protection to that broad category of Latino residents, said Cecilia Wang, director of the American Civil Liberties Union's Immigrants' Rights Project. "It means that you have the protection of a federal court order that has stopped MCSO from arresting or detaining you by trying to figure out if you're lawfully in the United States," Ms. Wang said. "Our main mission with this litigation has been to stop MCSO from engaging in these illegal practices." Mr. Arpaio's attorney said that he plans to appeal the injunction and that deputies will comply with the ruling while continuing to enforce immigration-related laws. The most immediate impact from the ruling will be evident as deputies try to enforce Arizona's human-smuggling law. The Sheriff's Office says it has booked thousands of people on human-smuggling allegations since forming a human-smuggling unit in 2007. The law, passed in 2005, has several elements, including illegal presence in the U.S. Previously, sheriff's deputies could rely on their suspicions under that element of the law alone to detain a suspect and launch into further investigation. The judge's ruling means suspicion alone will not give officers probable cause. It requires deputies to develop reasonable suspicion that other factors of the law are being violated, including that the person is being transported for a commercial purpose. To prove violation of the human-smuggling law, authorities have to demonstrate the individual harbored, transported or found transportation for a person known to be in the country illegally, and did so for a profit or a commercial purpose. Interpretation of the law has been controversial. Former County Attorney Andrew Thomas interpreted it to allow charging people smuggled into the country as co-conspirators in their own smuggling, an interpretation that was only enforced in Maricopa County. Under the law, deputies have arrested undocumented immigrants who were not obviously in transit. Mr. Arpaio has said that he runs the only law-enforcement agency in Arizona enforcing all aspects of the state's human-smuggling law. But Judge Snow ruled that Mr. Arpaio's enforcement tactic is wrong, to the extent that deputies enforce the law by arresting illegal immigrants who are not actually being smuggled. "To the extent that Defendants claim that the human smuggling statute, or any Arizona or federal criminal law, authorizes them to detain people based solely on the knowledge, let alone the reasonable suspicion, that those people are not authorized to be in the country, they are incorrect as a matter of law," Judge Snow wrote. The ruling comes a little more than a week after the Justice Department issued the findings of a two-year investigation, accusing the Sheriff's Office of widespread civil-rights violations. In recent filings, attorneys in the suit cited those findings in support of their claims that the Sheriff's Office discriminates. Mr. Arpaio plans to appeal the ruling, but deputies will abide by the injunction, according to Mr. Arpaio's attorney, Tim Casey. "So long as the deputies are briefed and trained that they must comply with Judge Snow's findings, that you have to have reasonable suspicion on all the elements, crime-suppression operations can continue, the enforcement of the human-smuggling law can continue," Mr. Casey said. Despite the federal injunction, Mr. Casey claimed the ruling was a "wonderful victory" for the Sheriff's Office that will allow persistent claims of racial profiling to be thoroughly examined in U.S. court. "I think they got a very narrow slice of the pie," Mr. Casey said of [Judge] Snow's rulings in the plaintiffs' favor. "They're the ones that were out there telling the world that this is going to be coming down on racial profiling as a matter of law, and the judge said, 'No.'" Since Manuel de Jesus Ortega Melendres filed his lawsuit in December 2007, four other plaintiffs have joined the case with claims that Mr. Arpaio's deputies stopped or unreasonably detained them because of their race. All the plaintiffs are either U.S. citizens or legal residents. The case was delayed by the sheriff's destruction of or failure to turn over e-mails and other documents relevant to the plaintiffs' claims. Judge Snow already has forced the office to pay more than $90,000 in court costs and attorneys fees to offset the costs of depositions that had to be taken again after the Sheriff's Office produced thousands of records it initially said were not available. But not all the ruling went in favor of the plaintiffs. Judge Snow granted a judgment in favor of the Sheriff's Office in the case of David and Jessika Rodriguez, two plaintiffs who were stopped by sheriff's deputies after turning around on a washed-out road near Bartlett Lake in 2007. The deputies asked David for a Social Security card and issued him a citation but, according to the claim, did not request documents or cite other drivers in the party, who were White. Judge Snow found that none of those circumstances meant the couple were subjected to unreasonable search and seizure, as they had claimed. Judge Snow's ruling included a mention of Mr. Arpaio's handling of public requests for immigration sweeps based on people speaking Spanish in a fast-food restaurant and the appearance of Hispanic men on street corners, which Mr. Arpaio passed on to administrators for further investigation. The Sheriff's Office later conducted immigration sweeps in those same areas, though sheriff's officials have insisted that the correspondence and subsequent sweeps were unrelated. The claims deserve to be heard at trial, Judge Snow found, but the judge noted: "Sheriff Arpaio has made public statements that a fact finder could interpret as endorsing racial profiling." Those issues and other evidence amassed in the case will play a significant role in the trial, Ms. Wang said. "I think for any injunction in this sort of case to be effective and to really stop the unconstitutional behavior by MCSO, there needs to be significant reform," she said. "If we do prevail on the equal-protection claim, we'll be proposing that the court appoint a monitor." RALPH'S GROCERY: Faces Class Actions Over Unpaid Overtime Wages --------------------------------------------------------------- Courthouse News Service reports that Los Angeles Superior Court class actions claim Ralph's Grocery stiffed workers for overtime at its Food 4 Less stores, as does Sprouts Farmers Markets at its stores. ROGERS COMMS: Faces Class Action Suit Over "System Access Fees" --------------------------------------------------------------- Jane Seyd, writing for North Shore News, reports that a North Vancouver law firm specializing in class action lawsuits has filed court documents against four cellphone companies over "system access fees." Poyner Baxter filed the proposed class action lawsuit in B.C. Supreme Court Dec. 16 against Rogers Communications Inc., Bell Canada Enterprises Inc., Telus Corporation, Fido Solutions Inc. and their subsidiaries on behalf of all cellphone customers in B.C. If the claim is successful, it could be worth up to C$1 billion, said lawyer Jim Poyner. The law firm first looked into the system access fees when they were pointed out by one of the company's North Vancouver consultants. The claim alleges phone companies have regularly charged their customers what was described as a "systems access fee" "systems administrative fee or "license administrative fee" on monthly bills, usually an amount of about C$7. Decades ago, in the early days of cellphone use, there was such a fee charged by the federal government that the phone companies simply passed on, said Mr. Poyner. But while the government stopped charging that fee many years ago, the phone companies continued to bill their customers, said Mr. Poyner. According to the lawsuit, by separating that amount out, the cellphone companies misrepresented it as a tax or fee paid to government or a third party. Instead, the fee was just another charge collected by the cellphone companies for their own use, the lawsuit claims. The lawsuit asks the companies to stop charging the system access fees as separate amounts and to pay back customers the amounts already charged to them. It's not known how much money could be at stake if the case is successful, but Mr. Poyner estimates it could be up to C$1 billion, considering an estimated two million cellphone users in B.C. could potentially claim the fees back six years. Mr. Poyner added a very similar class-action case involving cellphone access fees has already been certified in Saskatchewan courts. A spokesman for Telus declined to comment on the case while another spokeswoman for Rogers and Fido said the company hasn't received the documents yet. The case has some similarities to another class-action suit launched by the North Vancouver law firm against several airlines. In those cases, the law firm is taking issue with amounts represented as "taxes" on airline tickets -- often amounting to several hundred dollars per ticket -- that it says are not taxes paid to government or third parties, but are simply additional fees collected by the airlines for their own use. SQUARE ENIX: 9th Circuit Affirms Dismissal of Class Action ---------------------------------------------------------- On December 20, 2011, the United States Court of Appeals for the Ninth affirmed dismissal with prejudice of the Leong v. Square Enix class action lawsuit, concluding that the plaintiffs' claims "are without merit." The case was brought by five alleged former players of FINAL FANTASY XI. The District Court ruled, and the Ninth Circuit affirmed, that Square Enix's business practices and click-through user agreements were both fair and legal. Both Courts confirmed that Square Enix owns all of the character-related data generated during gameplay. "We are very pleased with the Court's ruling," stated Steve Ross, Deputy General Counsel of Square Enix, Inc. "We feel vindicated since many of the allegations were patently false. We only wish plaintiffs had contacted our dedicated customer support for assistance before resorting to a lawsuit. Square Enix will defend itself against baseless litigation." Plaintiffs filed three versions of the class action complaint, each alleging different plaintiffs or legal theories, before the U.S. District Court for the Central District of California dismissed the case with prejudice on April 20, 2010. About Square Enix, Inc. Square Enix, Inc. -- http://www.square-enix.com-- develops, publishes, distributes and licenses SQUARE ENIX(R), EIDOS(R) and TAITO(R) branded entertainment content throughout the Americas as part of the Square Enix Group. The Square Enix Group operates a global network of leading development studios and boasts a valuable portfolio of intellectual property, including: FINAL FANTASY(R), which has sold over 100 million units worldwide; DRAGON QUEST(R), which has sold over 59 million units worldwide; TOMB RAIDER(R), which has sold over 35 million units worldwide; and the legendary SPACE INVADERS(R). Square Enix, Inc. is a U.S.- based, wholly-owned subsidiary of Square Enix Holdings Co., Ltd. TORO CO: Continues to Defend Suit by Lawnmower Owners in Canada --------------------------------------------------------------- In March 2010, individuals who claim to have purchased lawnmowers in Canada filed class action litigation against The Toro Company and other defendants that, (i) contains allegations under applicable Canadian law that are similar to the allegations made by the United States plaintiffs, (ii) seeks certification of a class of all persons in Canada who, beginning January 1, 1994, purchased a lawnmower containing a gas combustible engine up to 30 horsepower that was manufactured or sold by the Company and other defendants, and (iii) seeks under applicable Canadian law unspecified compensatory and punitive damages, attorneys' costs and fees, and equitable relief. No further updates were reported in the Company's December 21, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended October 31, 2011. Management continues to evaluate this Canadian litigation. In the event the Company is unable to favorably resolve this litigation, management is unable to assess at this time whether this litigation would have a material adverse effect on the Company's annual consolidated operating results or financial condition, although an unfavorable resolution or outcome could be material to the Company's consolidated operating results for a particular period. VILLAGE OF DOWNERS GROVER, IL: Arrest Refund Suit Certified ----------------------------------------------------------- Rose Bouboushian at Courthouse News Service reports that a federal judge granted class certification in a case against a suburb of Chicago that charges processing fees against suspects who come under arrest, regardless of whether the individual is later found innocent. Robert Bailiff, a resident of Downers Grover, Illinois, was arrested and charged with domestic battery in May 2009. At that time, he had to pay an administrative fee of $30. The village claimed that the fee was to "defray some of the cost of processing and booking an arrestee," and that the fee covered "about half of the village's cost." When Mr. Bailiff's case was dismissed in January 2011, however, he was not refunded his $30. In May 2011, he filed a class action against Downers Grove because the ordinance has no provision for reimbursement, allegedly in violation of the due process clause. While Mr. Bailiff initially sought injunctive relief, "the village has confirmed that it stopped imposing the booking fee in response to this lawsuit," court records state. U.S. District Judge Sheila Finnegan granted Mr. Bailiff's motion for class certification, with a slight modification to the class definition. Downers Grove argued that the court should deny class certification because the class definition could include individuals with time-barred claims. But Judge Finnegan managed to address that concern by specifying that the class would include all individuals who were arrested on or after May 18, 2009. The village also argued that the class includes individuals who were ultimately convicted of their crimes, who "cannot establish, as a matter of law, that their constitutional rights have been violated." Judge Finnegan disagreed. "The court is not convinced that the putative class 'contains a great many persons who have suffered no injury at the hands of the defendant," Judge Finnegan wrote, citing precedent. "To the extent it may turn out that convicted class members are not in fact entitled to relief, the court has broad discretion to modify the class definition as appropriate," she concluded. There were approximately 1,977 arrests in 2008, according to the 2008 Downers Grove Police Department Annual Report. A copy of the Memorandum Opinion and Order in Bailiff v. Village of Downers Grove, Case No. 11-cv-03335 (N.D. Ill.), is available at: http://www.courthousenews.com/2011/12/23/Booking%20fee.pdf WASHINGTON COUNTY, IA: Residents Oppose New Sewage System --------------------------------------------------------- Lee Rood, writing for DesMoinesRegister.com, reports that it doesn't take long to take a drive through the hilly town south of Kalona. Even faster, you can gauge how many residents feel about a new community sewage system planned for construction next year. Protests against the three-cell lagoon system are splayed in large red letters on pieces of plyboard dotting gravel roads. "It has split the town big-time," said Bonnie Knutson, who with her husband owns a century farm on a hill about 1,000 feet away from the lagoon site. "It's such a tangled spider web. It just kind of goes from bad to worse." A class-action lawsuit filed last month in Washington County by a group of about 40 residents and the only Catholic church in Richmond follows a two-year battle with county supervisors and the regional utility trying to build the new community sewage system. The lawsuit contests the legality and enforceability of a $2,000 fee to be assessed to those who resist signing over easements in coming months so the taxpayer-backed Regional Utility Service Systems can begin work. "It really doesn't make any sense for the residents to fight this new system," said Washington County Attorney Larry Brock, who is representing the county board of supervisors in the class-action suit. "Something has to be done." But experts say the fee, which was approved in September by RUSS' board, may be unprecedented among rural sewage systems in Iowa. "That's cutting new ground," said Bob Veenstra, a lawyer at Veenstra & Kimm Engineering in Des Moines, which has worked on numerous small community sewer systems. "It kind of makes my provide side curl up." The urgency to fix the unincorporated town's sewage problems began in 2001, after a resident's complaint led the Iowa's Department of Natural Resources to cite the city because human sewage was being poured into a ditch. RUSS, a regional sewage utility created in 1999, ultimately submitted an application for a federal grant that tied a community sewer project in Richmond to two completely different projects miles away in the more low-income communities of Rubio and Ollie. The application allowed Richmond to qualify for a federal grant and loan intended to provide sewer service to disadvantaged rural areas. The three communities were eventually awarded a $2.499 million grant from the U.S. Department of Agriculture's rural development division, as well as a $1.36 million low-interest loan. The grant covered 64.8 percent of eligible costs for all three communities. Surveys suggested a clear majority of residents favored the project early on. But that sentiment has shifted. At a public hearing in January, many of Richmond's residents in attendance voiced opposition to the project and preferred the less costly option of fixing only substandard septic systems, according to notes of the meeting taken by the DNR. Mr. Knutson said she and her husband are among the many in town who oppose the new system, even though they will not have to be hooked into it. The couple is unconvinced the sewage lagoons planned by RUSS will filter out anything but solid pollutants near the farm and livestock. "There's no reason this can't be fixed on a house-to-house basis or with a mound system. I want to protect my land that my grandparents sweat blood to buy." Nothing in state or federal law prohibits communities from simply updating septic systems, as long as all substandard and polluting systems are brought into compliance. But federal funding is easier to obtain for communitywide systems, the county supervisors who run RUSS say. In February last year, Wayne Gieselman, who heads the environmental sciences division of the DNR, sent a letter to the county board warning supervisors to take action or risk big fines. "It would be very disappointing if something happened to stop these improvements from occurring," Mr. Gieselman wrote. In November, the DNR issued an administrative order demanding that Richmond address pollution violations or risk civil penalties of up to $5,000 a day from the state and $10,000 from the federal Environmental Protection Agency. RUSS sent letters to Richmond residents offering $1 for easement land and offered to hook them up to the new system for free. Those who resisted doing so would be assessed the $2,000, and have to pay hookup fees of up to $6,000, the organization said. That move prompted residents to form a nonprofit group, Residents for a Better Richmond, to represent property owners in the class- action suit. Iowa law allows cities and counties to condemn land by eminent domain for such projects as long as property owners are compensated fairly. Typically, a six-person county compensation commission appointed by a chief judge decides what property is worth. So far, 38 property owners have joined in the lawsuit, according to Tom and Peggy Duwa, a couple leading the charge against the new system. Richmond residents say the costs of their town's project have escalated to $1.8 million as RUSS officials have been directed to build a three-cell lagoon system instead of a two-cell lagoon. The project will require miles of sewer line and several pumps on the hilly terrain. "We have had no control over the cost," said Mr. Duwa, who paid about $12,000 for a new septic system in 2004. Mr. Duwa said the town could buy top-of-the-line $15,000 septic systems for all 83 homes -- though roughly 20 were installed in the last 20 years -- and still come out more than $500,000 ahead. Instead, he and others face costs of $5,000 to $6,000 if they continue to resist the county's attempts to take their easements. WILLMOTT FORESTS: Investors File Class Action --------------------------------------------- Ben Butler, writing for The Sydney Morning Herald, reports that investors who pumped about AU$150 million into forestry schemes run by the failed agribusiness group Willmott Forests have launched a class action against the company, its directors and the Commonwealth Bank. The lawsuit is the latest fallout from the collapse of large plantation investment companies in the past three years, including Willmott, Timbercorp, Great Southern and Environinvest. In court documents filed in the Federal Court on Dec. 22, lawyers for the investors have alleged that documents spruiking three forestry managed investment schemes failed to disclose all the risks attached to the investments. The investors have also alleged that Willmott overstated the value of assets including land and future wood sales and understated its liabilities "by failing to provide for the cost of future plantation maintenance work". Willmott, which controlled about AUD400 million in investors' money, collapsed last September owing its banks, the Commonwealth and St George, about AUD120 million. Investors allege Willmott's directors -- its chairman, Jonathan Madgwick, chief executive, Marcus Derham, and non-executive directors James Higgins, Hugh Davies and Raymond Smith -- were "recklessly involved" in preparing the misleading product disclosure statements. The Commonwealth Bank and a subsidiary set up to fund loans to investors in schemes such as Willmott's, MIS Funding No. 1, are alleged to have breached their duty of care to investors and engaged in unconscionable conduct. Ron Willemsen, a solicitor with Macpherson+Kelley Lawyers, filed the lawsuits on behalf of investors in three Willmot schemes offered in 2008 and 2009. The company, its directors and the bank have yet to file defenses and a directions hearing is set for February 14. Mr. Willemsen was also the driving force behind a class action in which investors in schemes offered by another failed forestry group, Timbercorp, tried to have AUD450 million in loans set aside. That case was thrown out by the Victorian Supreme Court in September. Justice James Judd described some of the evidence given by investors as "implausible" because it downplayed the tax benefits of their investments. The industry's woes stem from a fall in subscriptions after the global financial crisis and the 2007 withdrawal of Tax Office rulings giving generous deductions for investment in the schemes. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *