/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120105.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 5, 2012, Vol. 14, No. 4 Headlines AFFYMETRIX INC: Faces Suit Over Proposed eBioscience Acquisition BUILDING PRODUCTS: Organic Shingle Claims Available for Review CAL-MAINE FOODS: Continues to Face Antitrust Suits Over Egg Price HOVNANIAN ENTERPRISES: Still Drafting "Sewell" Settlement Docs LLOYDS BANKING: US Investors File Class Action Over HBOS Deal PEAK 3 HOLDINGS: Accused of Making High Interest-Loans in Illinois UNITED STATES: 9th Cir. Allows Mass Surveillance Suit to Proceed VERIZON COMMUNICATIONS: Sued Over False Statements Against ITC WASHINGTON POST: Judge Tosses Securities Class Action * Trial Lawyers Reap Huge Rewards in California Class Actions ********* AFFYMETRIX INC: Faces Suit Over Proposed eBioscience Acquisition ---------------------------------------------------------------- Affymetrix Inc. is facing a class action lawsuit in California over its proposed acquisition of eBioscience Holding Company, Inc., according to the Company's December 30, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. On December 29, 2011, the Company received notice that Tang Capital Partners, LP, a holder of the Company's 3.50% Senior Convertible Notes Due 2038 (the "Notes"), had commenced class action litigation against the Company in the Superior Court of California, County of Santa Clara. The complaint alleges a variety of claims relating to the Company's previously announced proposed acquisition of eBioscience Holding Company, Inc., including that the acquisition would constitute a Fundamental Change under the indenture governing the Notes. The complaint seeks unspecified damages, temporary and permanent injunctive relief against completion of the eBioscience acquisition, and other remedies. The Company believes that the complaint is without merit. The Company is working towards closing the acquisition in January 2012. BUILDING PRODUCTS: Organic Shingle Claims Available for Review -------------------------------------------------------------- The attorneys working with Class Action.org are available to review claims from consumers who had their property installed with organic roofing shingles manufactured by Building Products (BP) of Canada Corp. Allegedly, the products, which include Eclipse, ProStandard and Rampart organic shingles, are defective and can fail earlier than expected due to cracking, moisture invasion, deterioration and other problems. In light of these allegations, property owners who experienced problems with these organic roofing shingles may have legal recourse to seek compensation for damages. To find out if you are eligible, visit http://www.classaction.org/bp-of-canada-organic-shingles.htmlfor free evaluation of your BP organic shingle failure claim. Reportedly, the organic roofing shingles manufactured and marketed by BP were said to be durable, suitable and long-lasting. However, it has been alleged that these products can experience premature BP organic shingles failure due to a number of problems including the following: cracking; adhesive failure; blistering; deteriorating; granulation loss; curling; and moisture invasion. Homeowners have also claimed that the shingles can blow off the roof or otherwise not perform in accordance with reasonable consumer expectations. Premature BP organic shingle failure can also result in progressive damage to underlying property and structures, according to allegations. Due to BP organic shingle failure, consumers have allegedly been forced to spend thousands of dollars to replace the shingles or to repair damages related to their failure. In light of allegations that the company knew or should have known about the BP organic shingle failure and failed to properly design, formulate and test the shingles, property owners who experienced problems with these products may have legal recourse. Potentially, these individuals may be able to participate in a BP shingle lawsuit to seek compensation for damages related to the allegedly defective organic shingles, including repair and replacement costs. To learn more about BP organic shingle failure and eligibility for legal recourse, visit Class Action.org. About Class Action.org Class Action.org -- http://www.classaction.org-- is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.orgfor a no cost, no obligation case evaluation and information about your consumer rights. CAL-MAINE FOODS: Continues to Face Antitrust Suits Over Egg Price ----------------------------------------------------------------- Cal-Maine Foods, Inc., continues to face antitrust lawsuits over the country's shell egg industry, according to the Company's December 30, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 26, 2011. Since September 25, 2008, the Company has been named as one of several defendants in twenty-five antitrust cases involving the United States shell egg industry. In sixteen of these cases, the named plaintiffs sued on behalf of themselves and a putative class of others who claim to be similarly situated. In fourteen of those putative class actions, the named plaintiffs allege that they are retailers or distributors that purchased shell eggs and egg products directly from one or more of the defendants. In the other two putative class actions, the named plaintiffs are individuals or companies who allege that they purchased shell eggs and egg products indirectly from one or more of the defendants -- that is, they purchased from retailers that had previously purchased from defendants or other parties. In the remaining nine cases, the plaintiffs sued for their own alleged damages and are not seeking to certify a class. The Judicial Panel on Multidistrict Litigation consolidated all of the putative class actions (as well as certain other cases in which the Company was not a named defendant) for pretrial proceedings in the United States District Court for the Eastern District of Pennsylvania. The Pennsylvania court has organized the putative class actions around two groups (direct purchasers and indirect purchasers) and has named interim lead counsel for the named plaintiffs in each group. Six of the nine non-class lawsuits were filed in the same court that is presiding over the putative class actions. Another of these non-class cases was filed in the United States District Court for the Western District of Pennsylvania, but it has been transferred to the Eastern District and consolidated for pretrial proceedings with the other cases. Another non-class lawsuit was filed in the District Court of Wyandotte County, Kansas. The defendants removed this case to the United States District Court for the District of Kansas, the Judicial Panel on Multidistrict Litigation granted the defendants' transfer request, and the case has now been consolidated in the Eastern District of Pennsylvania. The plaintiffs in this action have filed a motion to remand the case back to the District Court of Wyandotte County, Kansas, but that motion has not been decided. The remaining non-class lawsuit was filed in the United States District Court for the Northern District of Illinois but is likely to be transferred to and consolidated with the other cases in the Eastern District of Pennsylvania. The plaintiffs in two of the non-class lawsuits originally filed in the Eastern District of Pennsylvania voluntarily dismissed their lawsuits without prejudice, and there are, thus, now seven non-class lawsuits pending. The named plaintiffs in the direct purchaser case filed a consolidated complaint on January 30, 2009. On April 30, 2009, the Company filed motions to dismiss the direct purchasers' consolidated complaint. The direct purchaser plaintiffs did not respond to those motions. Instead, the direct purchaser plaintiffs announced a potential settlement with one defendant. The final hearing on approval of that settlement has been held, but the court has not yet ruled. If it is approved, the settlement would not require the settling party to pay any money. Instead, the settling defendant, while denying all liability, would provide cooperation in the form of documents and witness interviews to the plaintiffs' attorneys. After announcing this potential settlement with one defendant, the direct purchaser plaintiffs filed an amended complaint on December 11, 2009. On February 5, 2010, the Company joined with other defendants in moving to dismiss the direct purchaser plaintiffs' claims for damages outside the four-year statute of limitations period and claims arising from a supposed conspiracy in the egg products sector. The court denied the motion to dismiss the claims related to the egg products sector. The court granted the motion to dismiss plaintiffs' claims for damages outside the four-year statute of limitations but did so without prejudice to the plaintiffs' right to seek leave to further amend their complaint if they, in good faith, believe they can address the deficiencies noted by the court. On February 26, 2010, the Company filed its answer and affirmative defenses to the direct purchaser plaintiffs' amended complaint. On June 4, 2010, the direct purchaser plaintiffs announced a potential settlement with a second defendant. The final hearing on approval of this settlement has also been held, but the court has not ruled. If this settlement is approved, then the defendant would pay a total of $25 million and would provide other consideration in the form of documents, witness interviews, and declarations. This settling defendant denied all liability in its potential agreement with the direct purchaser plaintiffs and stated publicly that it settled merely to avoid the cost and uncertainty of continued litigation. The named plaintiffs in the indirect purchaser case filed a consolidated complaint on February 27, 2009. On April 30, 2009, the Company filed motions to dismiss the indirect purchasers' consolidated complaint. The indirect purchaser plaintiffs did not respond to those motions. Instead, the indirect purchaser plaintiffs filed an amended complaint on April 8, 2010. On May 7, 2010, the Company joined with other defendants in moving to dismiss the indirect purchaser plaintiffs' claims for damages outside the four-year statute of limitations period, claims arising from a supposed conspiracy in the egg products sector, claims arising under certain state antitrust and consumer fraud statutes, and common-law claims for unjust enrichment. The court heard oral argument on these motions but has not yet ruled. On June 4, 2010, the Company filed its answer and affirmative defenses to the indirect purchaser plaintiffs' amended complaint. The cases in which plaintiffs do not seek to certify a class were filed between November 16, 2010, and December 12, 2011. The Company has not yet answered or moved to dismiss any of these cases. In all of the cases, the plaintiffs allege that the Company and certain other large domestic egg producers conspired to reduce the domestic supply of eggs in a concerted effort to raise the price of eggs to artificially high levels. In each case, plaintiffs allege that all defendants agreed to reduce the domestic supply of eggs by (a) manipulating egg exports and (b) implementing industry-wide animal welfare guidelines that reduced the number of hens and eggs. Both groups of named plaintiffs in the putative class actions seek treble damages and injunctive relief on behalf of themselves and all other putative class members in the United States. Both groups of named plaintiffs in the putative class actions originally alleged a class period starting on January 1, 2000, and running "through the present." The court has now granted the defendants' motion to dismiss the direct purchasers' claims outside the four year statute of limitations, and thus the putative direct purchaser class claims now only relate to a September 2004 to present class period. The court has not yet ruled on the defendants' motion to dismiss the indirect purchasers' claims outside the four year statute of limitations, and the putative indirect purchaser class thus continues to assert a January 1, 2000, to present class period. The direct purchaser putative class action case alleges two separate sub-classes -- one for direct purchasers of shell eggs and one for direct purchasers of egg products. The direct purchaser putative class action case seeks relief under the Sherman Act. The indirect purchaser putative class action case seeks relief under the Sherman Act and the statutes and common-law of various states, the District of Columbia, and Puerto Rico. Seven of the nine non-class cases remain pending. In five of the remaining non-class cases, the plaintiffs seek damages and injunctive relief under the Sherman Act. In one of the remaining non-class cases, the plaintiff seeks damages and injunctive relief under the Sherman Act and the Ohio antitrust act (known as the Valentine Act). In the other remaining non-class case, the plaintiffs seek damages and injunctive relief under the Kansas Restraint of Trade Act. The Pennsylvania court has entered a series of orders in the putative class actions related to case management and scheduling. There is no definite schedule in either putative class action case for discovery, class certification proceedings, or filing motions for summary judgment. No trial date has been set in either putative class action case. The non-class cases were filed so recently that the court has not set any schedule for them. The Company says it intends to continue to defend these cases as vigorously as possible based on defenses which the Company believes are meritorious and provable. HOVNANIAN ENTERPRISES: Still Drafting "Sewell" Settlement Docs -------------------------------------------------------------- A subsidiary of Hovnanian Enterprises, Inc., has been named as a defendant in a purported class action lawsuit filed on May 30, 2007, in the United States District Court for the Middle District of Florida, Randolph Sewell, et al., v. D'Allesandro & Woodyard, et al., alleging violations of the federal securities acts, among other allegations, in connection with the sale of some of the subsidiary's homes in Fort Myers, Florida. Plaintiffs filed an amended complaint on October 19, 2007. Plaintiffs sought to represent a class of certain home purchasers in southwestern Florida and sought damages, rescission of certain purchase agreements, restitution of out-of-pocket expenses, and attorneys' fees and costs. The Company's subsidiary filed a motion to dismiss the amended complaint on December 14, 2007. Following oral argument on the motion in September 2008, the court dismissed the amended complaint with leave for plaintiffs to amend. Plaintiffs filed a second amended complaint on October 31, 2008. The Company's subsidiary filed a motion to dismiss this second amended complaint. The Court dismissed portions of the second amended complaint. The Court dismissed additional portions of the second amended complaint on April 28, 2010. The Company says it has recently agreed with the plaintiffs to settle this case for an immaterial amount, and the settlement documents are in the process of being drafted by counsel. No further updates were reported in the Company's December 30, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended October 31, 2011. LLOYDS BANKING: US Investors File Class Action Over HBOS Deal ------------------------------------------------------------- Juliette Garside, writing for guardian.co.uk, reports that Lloyds Banking Group's former chief executive, Eric Daniels, and previous chairman, Sir Victor Blank, have been accused of "reckless disregard for the truth" in a class action lawsuit filed in the U.S. by a retired British sea captain. Lawyers say that shareholders lost an estimated GBP14 billion as Lloyds shares crashed after news of its emergency acquisition of its troubled rival HBOS in 2008. About 1,400 US residents and numerous institutions that bought Lloyds TSB shares on the New York stock exchange could claim compensation. The case is being fronted by a 79-year-old former merchant navy captain, Albert Ross, who is originally from Scotland and now lives near New Orleans. He and his wife risk losing their home after the family's investment in Lloyds wiped more than $340,000 (GBP220,000) from their retirement fund. Mr. Ross, a writer of seafaring novels including the self- published Truth, Half Truth and Lies, told reporters: "My wife and I face losing everything we have worked for. It is not just our home but our dignity. We are proud people who have worked hard to maintain our independence only to see everything stripped away from us." Days after the HBOS acquisition was announced in September 2008, lawyers say that the troubled British bank was "technically insolvent". Because information was kept back, the market did not begin to understand the true nature of its financial woes until February 2009, when a GBP10 billion annual loss was reported. Announcing the merger, Mr. Daniels described it as "a fantastic deal", saying that the combined companies would have a "robust capital position". However, by October 1, HBOS had been forced to take emergency loans from the Bank of England, which later peaked at GBP25.4 billion, and borrow an estimated US$11.5 billion from the US Federal Reserve. During an analyst call on October 13, Mr. Daniels continued to assert that the HBOS acquisition was a "very good deal" for shareholders. Papers filed by lawyers acting for Mr. Ross claim the reverse was true: "At that point, HBOS was not only insolvent on a cashflow basis, but on the basis that its assets were substantially exceeded by its liabilities." Reference is made to a subsequent report by the Bank of England governor, Mervyn King, who said that without the emergency loans, HBOS "would not have survived". The claim is that Messrs. Blank and Daniels "acted with knowledge of or reckless disregard for the truth in omitting and/or misrepresenting material facts" regarding the bailout, which if true could put them in breach of the US Exchange Act. "United States securities law is very clear about the heavy consequences of withholding important information which investors are entitled to know when purchasing shares," said Jim Swanson, a partner for the firm bringing the suit. Lloyds has been listed on the New York stock exchange since 2001, and is bound to report company information in accordance with US market rules. If the Securities and Exchange Commission, the US regulator, pursues its own investigation, it can impose hefty fines. Last year Goldman Sachs paid a record $550 million after misleading investors in the marketing of sub-prime mortgages. Lloyds declined to comment and spokesmen for Messrs. Blank and Daniels did not respond to requests for comment, according to Ms. Garside. PEAK 3 HOLDINGS: Accused of Making High Interest-Loans in Illinois ------------------------------------------------------------------ Tiffany White, on behalf of plaintiff and the class members v. Peak 3 Holdings, LLC, Case No. 2011-CH-44916 (Ill. Cir. Ct., Cook Cty., December 30, 2011) is brought to secure redress from usurious loans made over the Internet to Illinois residents by Peak 3 Holdings, in violation of the Illinois Interest Act, the Illinois Payday Loan Reform Act, and the Illinois Consumer Fraud Act. The Plaintiff alleges that the rate of interest on all of the Defendant's loans exceeds 18%. The Plaintiff asserts that she obtained a loan from Peak 3 Holdings at a rate of 782.14%, which loan was obtained for personal, family or household purposes and not for business purposes. Ms. White also contends that Peak 3 Holdings was never licensed to make loans of any type by the Illinois Department of Financial and Professional Regulation. Ms. White is a resident of Evanston, Illinois. Peak 3 Holdings, a Nevada limited liability corporation, allegedly solicits and makes high-interest loans to persons residing in Illinois and elsewhere. The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Zachary A. Jacobs, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 120 S. LaSalle Street, 18th Floor Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: courtecl@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com UNITED STATES: 9th Cir. Allows Mass Surveillance Suit to Proceed ---------------------------------------------------------------- The 9th U.S. Circuit Court of Appeals on Dec. 29 blocked the government's attempt to bury the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, returning Jewel v. NSA to the District Court for the next step, according to EFF's press release. The court found that Jewel had alleged sufficient specifics about the warrantless wiretapping program to proceed. Justices rejected the government's argument that the allegations about the well- known spying program and the evidence of the Folsom Street facility in San Francisco were too speculative. "Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," said EFF Legal Director Cindy Cohn. "[Thurs]day, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans." Also on Dec. 29, the court upheld the dismissal of EFF's other case aimed at ending the illegal spying, Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the dragnet domestic wiretapping. The court found that the so- called "retroactive immunity" passed by Congress to stop telecommunications customers from suing the companies is constitutional, in part because the claims remained against the government in Jewel v. NSA. "By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "It is disappointing that [Thurs]day's decision endorsed the rights of telecommunications companies over those over their customers." The Dec. 29 decision comes nearly exactly six years after the first revelations of the warrantless wiretapping program were published in the New York Times on December 16, 2005. EFF will now move forward with the Jewel litigation in the Northern District of California federal court. The government is expected to raise the state secrets privilege as its next line of defense but this argument has already been rejected in other similar cases. According to Daily Tech's Jason Mick, the decision was still a quasi-victory for the EFF, who was leading the push against the warrantless wiretaps, at it prevents the most sweeping of protections on the domestic surveillance system, giving U.S. citizens at least one avenue to challenge the campaigns in court. The EFF was less-than-thrilled that the court upheld the immunity for telecoms who served as the government's accomplices, helping federal agents spy on their customers. The telecom immunity was granted by the "Protect America Act" of 2007 (Pub.L. 110-55, S. 1927). The EFF was seeking class action status for a lawsuit against AT&T, Inc. (T) and the U.S. National Security Agency (NSA). The EFF accuses AT&T of conspiring with the NSA to divert its customers voice, SMS, and internet traffic into special secure rooms at its facility across the country, giving the NSA the ability to freely snoop on whatever private communications they pleased. The operation was called "an unprecedented suspicionless general search" by the EFF, which accused it of being unconstitutional, based on the Fourth Amendment to the U.S. Constitution (part of the Bill of Rights), which states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A lower court had granted the EFF permission to go ahead with a class action lawsuit against AT&T and NSA, prompting the U.S. Department of Justice (DOJ) to appeal to the 9th Circuit. The 9th Circuit's decision partially reversed the lower court's ruling. Unlike the lower court, it ruled that the government granting immunity to its business accomplices was Constitutional. However, it refused the DOJ's request that the federal government also be made immune on "state secrets" grounds, saying lawsuits against the government were the place to challenge the Constitutionality of such programs. Judge Margaret McKeown, a member of the three-judge appeals panel, writes (PDF; pg. 21589), "The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims." The differentiation was an interesting one, in that it dealt a partial victory, partial loss to both the DOJ and EFF. It is important to note that the Appeals Court did not deliver an opinion on the legality of the warrantless wiretaps themselves. The irony of the Protect America Act was that it modified the Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. (Public Law) 95-511, 92 Stat. (Statute at large) 1783, enacted October 25, 1978, 50 U.S.C. ch.36, S. 1566) installing the kind of unregulated surveillance permissions that the FISA was originally designed to block at the time of its post-Watergate passage. The FISA's original authors recognized the danger of abuse if unregulated wiretaps were granted to federal officials and police. After, all at least one U.S. President -- Richard Nixon (R) -- used such powers to spy on his political rivals. Despite the strict FISA President George W. Bush (R) openly defied the law in the post 9-11 (2001) era, resuming warrantless wiretapping. President Bush convinced Congress to retroactively legalize the effort by modifying the FISA. With Congress's weight behind the unregulated domestic spying effort the President gained the unregulated spying power that had once led to the impeachment of President Nixon. When new President Barack Obama took office, he promised reform and to cut back on the warrantless spying, but once elected that "hope" turned to "nope" as President Obama proved remarked "Bush- like" and pushed to expand the program and vigorously defend the immunity for cooperative telecoms. President Obama and his predecessor President Bush agree on many things, including that the federal government should be granted unregulated spying on its citizens. It appears unlikely that the warrantless monitoring is going anywhere, anytime soon. Aside from President Obama support, most of the leading Republican candidates appear supportive of the practice, with many voting to support President Bush with the Protect America Act. Of the major candidates, the only one who has voiced major concerns about the federal spying is Ron Paul (R). It is unknown exactly how many telecoms participated in the government's plot to spy on citizens. However all three of America's largest cellular carriers -- AT&T; Sprint Nextel Corp. (S); and Verizon Wireless, the joint venture between Verizon Communications Inc. (VZ) and Vodafone Group Plc. (LON:VOD) -- were all listed as defendants in the EFF suit. They are now free to resume helping President Obama and Congress spy on American citizens without warrant, without having to be legal responsible for their actions. The EFF is contemplating whether to appeal the decision to restore the immunity provisions to a higher federal court. VERIZON COMMUNICATIONS: Sued Over False Statements Against ITC -------------------------------------------------------------- In Touch Concepts, Inc., d/b/a Zcom, on behalf of itself and all others similarly situated v. (1) Verizon Communications Inc., (2) Cellco Partnership d/b/a Verizon Wireless, (3) Vodafone Group Plc, (4) Ivan G. Seidenberg, (5) Lowell C. McAdam, (6) Daniel S. Mead, (7) Nancy Clark, (8) Ken Kayal, Esq., (9) Tom Verghese, (10) Ryan Broomes, (11) Shaid Mohammed, a/k/a "Shady Shad," (12) Jorge Velez, (13) Anthony Fiocco, (14) Bruno Pavlick, (15) Patrick Devlin, (16) Ajay Bhumitra; (17) Shelly Bhumitra, (18) Poonam Sawnhey, (19) Bell Atlantic Mobile Systems, Inc., (20) GTE Wireless Incorporated, (21) PCS Nucleus, L.P., (22) JV Partnerco, LLC, (23) John/Jane Doe Verizon Communications Personnel ## 1-10, so named as their identities have yet to be established, (24) John/Jane Doe Cellco Partnership d/b/a Verizon Wireless Personnel ## 1-10, so named as their identities have yet to be established; and, (25) John/Jane Doe Vodafone Group Plc Personnel ## 1-10, so named as their identities have yet to be established, Case No. 653635/2011 (N.Y. Sup. Ct., December 28, 2011) is brought to seek compensatory and punitive damages in connection with the Defendants' alleged individual and collective actions, which have tortiously interfered with the existing business relations and prospective business relations of Plaintiff ITC. The Plaintiff alleges that the Defendants have maliciously made false statements against it without regard to the economic harm that those falsities would cause. ITC contends that the Defendants' scheme was so brazen that they have used its fallout as an excuse to punish their so-called indirect agents involved in the sale and marketing of "Verizon Wireless" branded products and services, including ITC, and other members of the putative class, for the Defendants' own misconduct. ITC is a New York Domestic Business Corporation that maintains an agency relationship with Defendant Cellco Partnership, doing business as Verizon Wireless ("VZW"), wherein ITC is authorized to sell services on VZW's wireless network, and equipment that works on that network. Verizon, a Delaware corporation, delivers broadband and other wireless and wireline communications services. Verizon is a majority owner in Defendant Cellco Partnership or VZW, owning 55% via Defendants BAM and GTE. VZW is the wireless business unit of Verizon. Vodafone, via defendants PCS and JVP, is a 45% partner and owner of VZW. Individual Defendants Seidenberg, McAdam, Mead, Clark, Kayal, Verghese, Broomes, Mohammed, Velez, Fiocco, Pavlick and Devlin are officers and employees of Verizon and VZW. Ajay Bhumitra is allegedly the self-proclaimed "Godfather" of the wireless industry marketing wireless products and services in direct competition to ITC. Shelly Bhumitra, Ajay's brother, was a principal of ITC's sub agent and allegedly acted as a "Trojan Horse" within ITC. Poonam Sawnhey was a principal of ITC's sub agent. BAM, a Delaware corporation, is wholly owned and controlled by Verizon. GTE is a Delaware corporation owned and controlled by Verizon. PCS, a Delaware Limited Partnership, is wholly owned and controlled by Vodafone. JVP, a Delaware Limited Liability Company, is wholly owned and controlled by Vodafone. The identities of the Doe Defendants are still to be determined. The Plaintiff is represented by: Ravi Batra, Esq. Todd B. Sherman, Esq. Michael W. Kennedy, Esq. THE LAW FIRM OF RAVI BATRA, P.C. The Batra Building 142 Lexington Avenue New York, NY 10016 Telephone: (212) 545-1993 - and - John L. Sampson, Esq. 134-27 154th Street Jamaica, NY 11434 Telephone: (718) 272-8470 WASHINGTON POST: Judge Tosses Securities Class Action ----------------------------------------------------- According to an article posted at the Blog of Legal Times by Zoe Tillman, Am Law Litigation Daily reports that a federal judge in Washington recently dismissed a securities class action against the Washington Post Company, finding that the plaintiff shareholders failed to adequately plead their case. A group of investors sued the Post Co. in U.S. District Court for the District of Columbia in October 2010, accusing company officers of misleading investors by releasing false information on the health of its for-profit educational services arm, Kaplan Inc. The Post Co. moved for a dismissal in August, arguing that the complaint lacked any specific allegations of deliberate fraud on the part of the Post Co. or its officers, and that any financial losses were the result of changes in the regulatory environment surrounding Kaplan and other similar companies. On Dec. 23, U.S. District Judge Barbara Rothstein granted the Post Co.'s motion. * Trial Lawyers Reap Huge Rewards in California Class Actions ------------------------------------------------------------- Carol J. Williams, writing for Los Angeles Times, reports that lawyers often reap huge rewards in petty class-action suits while their clients net little. Many other states apply stricter judicial standards. Like any concerned mother, Athena Hohenberg wanted to be sure her 4-year-old was getting a good breakfast. So she served up Nutella, a hazelnut and cocoa spread marketed as part of a balanced breakfast. "Start your day with Nutella spread," urge the TV ads. But Ms. Hohenberg was shocked to learn, she said in a lawsuit filed in February, that the sandwich spread is chock full of fat and sugar -- "the next best thing to a candy bar," she alleged. Nutella manufacturer Ferrero USA Inc. has agreed to settle the suit brought by the San Diego mother on behalf of hundreds of thousands of consumers who may have been similarly deceived, even though the ads specified that fruit, milk and whole wheat bread were also part of that balanced meal. Lawyers declined to disclose details, but similar cases suggest that Ferrero is likely to pay out millions in $5 or $10 sums to Nutella consumers. At least a quarter of the settlement will go to lawyers. Pro-business factions contend that success in petty false advertising and fraud claims like the Nutella case have made California the go-to place for trial lawyers from all over the country seeking to enrich themselves on frivolous class-action litigation. The state's tough consumer-protection laws and consumer-friendly courts have created what the American Tort Reform Foundation recently termed a "judicial hellhole" that delays legitimate suits from being heard and chases away jobs and investment. Lawmakers' efforts to rein in the lawsuits in recent years have been mostly thwarted by legal lobbies, and critics say the problem has intensified as court budgets grow tighter and civil cases get backlogged. "We all pay" for cases like these "when they take up our judicial resources," said Katherine Pettibone, a lawyer and legislative director for the Civil Justice Assn. of California. "We just cut back $350 million from our state courts. This harms access to justice for everyone. Sometimes you just want to say 'pull your socks up and move on.'" Consumer attorneys counter that small-stakes class actions can be the average citizen's only defense against abuse by big corporations. And they contend that a recent U.S. Supreme Court ruling pushing disgruntled consumers into arbitration with their alleged deceivers imperils one of Americans' most fundamental rights: a jury trial to air their grievances. Although Vanderbilt Law School professor and class action expert Brian T. Fitzpatrick conceded that "unmeritorious" lawsuits sometimes succeed because defendants settle to avoid litigation costs, he disputed the idea that they are chiefly motivated by huge contingency fees. "There is a common perception about class actions that lawyers are the only ones who benefit," Mr. Fitzpatrick said, pointing to a recent settlement requiring Bank of America to pay about $15 to customers unfairly charged for overdrafts while lawyers will get at least $100 million. "It looks bad, but the reality is that the main benefit from these small-stakes cases is not to give you your $15 back. The main benefit is deterrence." Last month, in a ruling that seemed to draw a line on frivolous actions, the U.S. 9th Circuit Court of Appeals upheld the dismissal of a Los Angeles woman's lawsuit over $10 she spent on Trident White chewing gum that didn't noticeably whiten her teeth. But other claims of deception that could have been avoided with some consumer due diligence -- for example, reading the label -- have survived court scrutiny, saddling overworked judges with what some legal analysts call fights over peanuts. In June, a federal judge in Oakland allowed two consolidated class-action lawsuits to go forward against the makers of Breyers and Ben & Jerry's ice creams for claiming their products are "all natural" although they contain synthetic alkalized cocoa powder. Another Bay Area judge recently certified a class action against Sears, alleging fraud in its advertising of a clothes dryer with an "all stainless steel" drum that contains a small amount of ceramic coating on the edge. Such a case would undoubtedly be thrown out of court in many other states; in fact, the lead plaintiff in the California suit against Sears earlier had been sent packing by the 7th Circuit appeals court in Illinois, which called the complaint "near-frivolous" and a "confabulation." A version of consumer lawsuit -- those alleging minor violations of the Americans with Disabilities Act's requirements for handicapped access -- was the subject of proposed legislation this year aimed at curbing abuse of that law. The practice of forcing pretrial settlements from small business owners for coat hooks or paper towel dispensers that are a fraction of an inch off the law's exacting standards has become so widespread that it is essentially a cottage industry in California. The bill would have made it easier for courts to stop such "vexatious litigants." But trial lawyers opposed it, and it failed. Tim Blood, a class-action litigator and board member of Consumer Attorneys of California, argues that Californians benefit from small-scale consumer cases: "These lawsuits are making people at companies rethink their advertising campaigns," he said. But the ease with which consumers obtain relief here has also spawned what consumer advocates call a worrying trend: Big corporations have taken to divesting themselves of liability by requiring customers to submit complaints to arbitration, a dispute resolution method that tends to favor the companies paying for it. A U.S. Supreme Court ruling in April, AT&T vs. Concepcion, upheld a corporation's right to use such clauses. "After Concepcion, every cellphone company and every bank and credit card company began rewriting their contracts to require arbitration," said Harvey Rosenfield, founder of nonprofit Consumer Watchdog. He predicts that in time, arbitration clauses will be on labels for everything from cleaning products to milk. In the Nutella case, Ms. Hohenberg's attorney, Ronald A. Marron, declined comment. An attorney for defendant Ferrero, Keith Eggleton, didn't return phone calls. Shaun Martin, a University of San Diego law professor, has used his California Appellate Report blog to poke fun at resources wasted on meager disputes: In a case before the California Court of Appeal last year, in which a defendant argued that his fine should be $10 instead of $34, Mr. Martin noted that the case required the state-financed services of his lawyer, a deputy attorney general, three appellate justices, court staff and "some trees" to publish the 11-page opinion. "Twenty-four American dollars at stake," Mr. Martin scoffed. "Almost enough to buy Manhattan." ********* 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, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. 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 Peter Chapman at 240/629-3300. * * * End of Transmission * * *