/raid1/www/Hosts/bankrupt/CAR_Public/120119.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 19, 2012, Vol. 14, No. 14
Headlines
ASIC: Ariff Fraud Victims Mull Class Action
AUSTRALIAN BANKS: May Face Class Action Over Lending Practices
CHASE HOME: Faces Class Action Over Bogus Late Fees
CITY OF FERNLEY, NV: Flood Victims Get Share of Settlement
DIOCESE OF ANTIGONISH: Class Action Settlement Amount Reduced
ENSCO PLC: Continues to Defend Class Suits Over Pride Merger
IMMUCOR INC: Awaits Orders on Bids to Dismiss Merger-Related Suit
IMMUCOR INC: Enters $22MM Sherman Act-Violation Suits Settlement
NAT'L FOOTBALL LEAGUE: More Players Join Concussion Class Action
NETFLIX: Faces Class Action for Misleading Investors
NISSAN: Faces Class Action in Calif. Over Defective Radiators
PROVINCE OF ONTARIO, CANADA: Algonquin Groups File Class Action
STATE OF LOUISIANA: DHH Settles LT-PCS Medicaid Class Action
UNITED STATES: Iraq Veterans to Get Benefits in PSTD Suit
VALPEY-FISHER: Enters Settlement to Resolve Merger-Related Suit
VOLKSWAGEN AG: Recalls 500,000 Vehicles Due to Technical Problems
WELK GROUP: Judge Denies Motion to Compel Time-Share Arbitration
WHIRLPOOL: Faces Class Action Over Front Load Washing Machines
*********
ASIC: Ariff Fraud Victims Mull Class Action
-------------------------------------------
Giselle Wakatama, writing for ABC Newcastle, reports that business
people stung by a rogue Newcastle insolvency practitioner still
plan to pursue legal action against ASIC.
Last month, Stuart Ariff was given a six year jail term with three
years non-parole for fraud.
ASIC said its decision to pursue criminal charges against Ariff
demonstrates its commitment to deterring misconduct by insolvency
practitioners.
But businesses who lost millions of dollars at the hands of Ariff
say ASIC took several years to act.
Bill Doherty says a class action is the only way to recover lost
money.
"All the money that was stolen has been siphoned away and no-one,
no authority, no regulator is chasing it," he said.
"So therefore our only option is to look at where the problem
arose and the problem arose with ASIC's ineptitude."
Mr. Doherty is also worried action stemming from a Senate Inquiry
into the industry will not stop rogue insolvency practitioners.
He says new protocols proposed by the Government will have little
effect.
"When you look at the government proposals it is pretty obvious
that very little is going to change other than that the insolvency
industry are going to have more of a say.
"Even as far as the registration of their fellows and even the
discipline of their fellows and that is ridiculous."
AUSTRALIAN BANKS: May Face Class Action Over Lending Practices
--------------------------------------------------------------
Chris Vedelago, writing for The Sunday Age, reports that
Australia's banks could be facing a massive new class action over
allegations that their mortgage lending practices have put
thousands of families in severe financial stress or at risk of
losing their homes.
Organizers estimate that up to 300,000 mortgage holders would be
eligible to participate in the action, which is expected to focus
on first home buyers and lower-income households who received
loans since the onset of the global financial crisis.
The proposed lawsuit has drawn qualified support from law firm
Maurice Blackburn, which is already engaged in the country's
largest class action over alleged fee gouging by the big banks.
The potentially landmark case is being orchestrated by retired
British insurance broker Roger Brown, who will seek claimants
through the Web site takingonbanks.com in early April.
"The people we are talking about are experiencing severe financial
hardship through no fault of their own because they shouldn't have
been given a home loan in the first place or they have been lent
way too much money," Mr. Brown told The Sunday Age. "I think the
banks have a case to answer for the irresponsible way they have
been lending."
The case is expected to be argued under provisions of the
Competition & Consumer Act and the National Credit Code that
prohibit unfair contract terms and reckless lending.
Maurice Blackburn principal, major projects, Ben Slade said there
was a legal basis for challenging the lending practices of
Australian banks that had "unlawfully" and "wantonly" put
consumers in home loans they were unlikely to be able to repay.
"There are thousands of families out there who are over-committed
in circumstances where the institution knew or ought to have known
at the date of making the loan that they would not be able to
maintain the repayments over the life of that loan," he said.
"The only impact of making that loan would be to deprive them of
their deposit and extract repayments to a point where they could
no longer pay. The bank then moves in on its security -- being
the forced sale of the home -- leaving these families high and dry
and much worse off than they were when they got the loan in the
first place."
Mr. Slade believes the strongest claims will likely be from those
who have lost their homes through distressed sales or
foreclosures.
There were 1,877 foreclosure applications lodged by banks and
other lenders in the Victorian Supreme Court in the 11 months to
November, up 12 per cent on the same time in 2010. There were
nearly 2,500 applications in 2009.
Mr. Brown believes a more liberal interpretation of consumer law
could see up to 300,000 potential claims from struggling home
owners going back to 2008.
Of particular interest are bank lending practices around the
period of the global financial crisis, when record low interest
rates and the boosted first home owners grant saw hundreds of
thousands of buyers enter the market.
About 1.71 million new loans for owner occupiers have been made
nationwide since 2008, including 485,000 for first home buyers,
according to the Australian Bureau of Statistics. At the same
time, the size of the average bank-issued home loan has jumped by
$60,800 to $295,800.
But Maurice Blackburn has stressed the firm's official
participation in a class action or any other lawsuit will hinge on
the strength of the claims and securing independent funding to
cover the costs of running the case.
Mr. Brown told The Sunday Age that preliminary funding was being
underwritten by a London-based "international financial service
group", which refuses to be publicly named.
Banking industry spokespeople declined to comment on speculation
about a potential lawsuit.
Stephen Munchenberg, chief executive of the Australian Bankers'
Association, said that the Australian banking system was well
regulated and complied with "very high" lending standards.
"Foreclosures by Australian banks are very low," he said.
Delinquencies of 90 days or more -- which puts a home owner at
serious risk of foreclosure -- did increase over the last
financial year, although they are tipped to fall following the
recent interest rate cuts.
Mr. Slade can be reached at:
MAURICE BLACKBURN
The Office of Ben Slade
Assistant Suzi Jovanovski
Telephone: (02) 8267-0964
E-mail: sjovanovski@mauriceblackburn.com.au
CHASE HOME: Faces Class Action Over Bogus Late Fees
---------------------------------------------------
Courthouse News Service reports that Chase Home Finance makes
millions of illicit dollars a year by charging homebuyers bogus
late fees on their mortgage payments, a class action claims in
Federal Court.
A copy of the Complaint in Dragos v. Chase Home Finance LLC, Case
No. 12-cv-00155 (E.D. Pa.), is available at:
http://www.courthousenews.com/2012/01/16/ChaseHome.pdf
The Plaintiff is represented by:
Stuart A. Eisenberg, Esq.
Carol B. McCullough, Esq.
MCCULLOUGH EISENBERG, LLC
65 West Street Road, A-105
Warminster, PA 18974
Telephone: (215) 957-6411
E-mail: mlawoffice@aol.com
CITY OF FERNLEY, NV: Flood Victims Get Share of Settlement
----------------------------------------------------------
The Associated Press reports that about 600 victims of a flood
caused by the failure of a century-old irrigation canal in Fernley
in 2008 have received their share of a $10 million settlement.
The settlement funds distributed last month stemmed from class-
action lawsuits against the city of Fernley, Lyon County and the
Truckee-Carson Irrigation District board.
Under the settlement, Fernley paid $5 million and Lyon County $1.3
million, while insurance companies paid $3.8 million on behalf of
seven irrigation district board members, the Reno Gazette-Journal
reported.
The Jan. 5, 2008 breach of the earthen Truckee Canal sent a wall
of water into Fernley, located about 30 miles east of Reno, and
inundated homes. The plaintiffs allege the flood was caused by
inadequate maintenance and operation of the canal.
Attorney Robert Maddox, who represents the plaintiffs, said $6
million was divided among flood victims, an estimated $3.3 million
went to attorney's fees, and $700,000 covered expert witness fees
and other costs.
He said he "felt like Santa Claus" because checks were given to
the flood victims on Dec. 23.
"(They are) people who desperately needed the money," Mr. Maddox
said. "They waited for four years. Their lives were torn apart,
and it was nice to get them some of the money."
The settlement reached last year states that the city, the county
and the insurance companies denied any wrongdoing, but agreed to
the deal to avoid further litigation.
But Mr. Maddox said the plaintiffs also might receive settlement
money from other pending lawsuits that chiefly blame the Interior
Department's Bureau of Reclamation and the irrigation district for
failing to properly maintain the canal.
The suits contend the local governments shared responsibility
because they knew or should have known the canal was in disrepair
based on previous studies and warnings from the bureau.
Justice Department lawyers have said they have no interest in
negotiating a settlement because they believe whatever liability
might exist is the responsibility of the irrigation district in
its capacity as contractual operator of the irrigation system that
brings water from the Truckee River to more than 2,500 ranchers
and farmers in northern Nevada east of Reno.
At a hearing last July, U.S. Magistrate Robert McQuaid Jr.
acknowledged the deal had settled only a portion of the case.
Mr. Maddox can be reached at:
Robert Maddox, Esq.
ROBERT C. MADDOX & ASSOCIATES
10587 Double R Boulevard, Suite 100
Reno, NV 89521
Telephone: (775) 322-3666
DIOCESE OF ANTIGONISH: Class Action Settlement Amount Reduced
-------------------------------------------------------------
Aaron Beswick, writing for Herald News, reports that the
unpredicted extent of sexual abuse by priests has significantly
cut into the cash award that members of a class action are
receiving from the Diocese of Antigonish.
According to a letter sent to members of the lawsuit and recently
obtained by The Chronicle Herald, the victims are receiving only
62 per cent of the amount they had originally anticipated from the
settlement reached with the diocese.
That's because the $15-million settlement, reached in September
2009, was based on a prediction that 80 victims would join the
class action. But the extent of sexual abuse by priests has
resulted in about 140 participating in the lawsuit.
Enshrined in the settlement agreement signed by the participants
was a clause that resulted in the victims' individual settlements
being pro-rated to the number that joined the class action.
"In other words, every survivor's claim will be reduced by almost
40 per cent so that everyone shares the compensation fund equally
and proportionally," says a letter sent to victims by their
lawyer, John McKiggan, in November.
Awards in the suit were based on the suffering and damage to the
lives of individuals caused by clerical abuse in the diocese
between 1950 and 2009.
From the 62 per cent that claimants will now receive on their
settlement, the payment of legal fees and associated taxes means
the victims will actually receive cheques for about 43 per cent of
their initial expected settlement.
That's left at least one class action member feeling cold.
"I feel we are being deprived as victims," said the man, who
didn't want his identity revealed.
The victim, who grew up in a rural Cape Breton parish, said he was
abused from the time he was seven until his early teens. The
priest warned him not to tell his parents, he said.
"I never told my family because I was too embarrassed and thought
my family would not believe me, as the priest would sometimes come
to supper and other functions at our home," said the man. "The
pain was that bad that I got into drugs and alcohol to escape it
and the shame, and got into trouble with the law."
The cycle of substance abuse, prison and difficulties maintaining
healthy relationships has continued throughout his life. It's a
secret he kept until joining the class action in 2009. He said he
kept it secret all that time to avoid the shame it would place on
his family and children.
The priest he says abused him has since died.
The money was meant to be an admittance of guilt by the diocese
for the damage done to his life, he said.
The diocese, meanwhile, is struggling to come out from under the
long shadow cast by the abuse scandal and consequent legal
settlements.
The diocese is faced with declining church attendance caused by
parishioners' disgust at the abuse scandal and Bishop Raymond
Lahey's conviction on child pornography charges.
Bishop Lahey, the former head of the Antigonish diocese,
negotiated the class-action settlement on behalf of the diocese.
While offering spiritual guidance to its remaining parishioners,
the church is struggling to raise $18 million to cover abuse-
related lawsuits, $15 million for the class action and $3 million
for separate court challenges.
To meet these costs, the church is selling properties, many of
which were donated over past generations by the same parishioners
it struggles to keep and lead.
Of the $5 million the diocese is seeking to raise from property
sales, it has only raised about $2 million so far, said diocese
spokesman Rev. Paul Abbass.
The last of the three payments to class-action members is due in
November.
"It's a time of change, magnified by all the change and sacrifices
made with the legal settlement," Rev. Abbass said. "We're in the
early stages of rebuilding. We're trying to rebuild a sense of
hope within our people, a sense that things can be different and
that we will do things different."
To that end, the diocese is going through a pastoral planning
exercise with its parishes to determine how many churches it can
support with a declining population. As well, a responsible
ministry protocol has been enacted that regulates the interactions
of diocese staff with its vulnerable members to avoid a repeat of
previous abuses.
ENSCO PLC: Continues to Defend Class Suits Over Pride Merger
------------------------------------------------------------
Ensco plc continues to defend shareholder class action lawsuits
arising from its merger with Pride International, Inc., according
to the Company's January 13, 2012, Form 8-K filing with the U.S.
Securities and Exchange Commission.
On May 31, 2011, Ensco plc completed a merger transaction with
Pride International, Inc., a Delaware corporation, ENSCO
International Incorporated, a Delaware corporation and an
indirect, wholly-owned subsidiary and predecessor of Ensco plc
("Ensco Delaware"), and ENSCO Ventures LLC, a Delaware limited
liability company and an indirect, wholly-owned subsidiary of
Ensco plc ("Merger Sub"). Pursuant to the merger agreement,
Merger Sub merged with and into Pride, with Pride as the surviving
entity and an indirect, wholly-owned subsidiary of Ensco plc.
During the first quarter of 2011, six shareholder class action
lawsuits were brought on behalf of the holders of Pride common
stock against Pride, Pride's directors and Ensco challenging
Pride's proposed merger with Ensco. The plaintiffs in such
actions generally allege that each member of the Pride board of
directors breached his or her fiduciary duties to Pride and its
stockholders by authorizing the sale of Pride to Ensco for what
plaintiffs deem "inadequate" consideration, failure to disclose
material information concerning the proposed merger in the
registration statement on Form S-4, that Pride directly breached
and/or aided and abetted the other defendants' alleged breach of
fiduciary duties and/or that Ensco aided and abetted the alleged
breach of fiduciary duties by Pride and its directors. These
lawsuits generally seek, among other remedies, to enjoin the
defendants from consummating the merger on the agreed-upon terms.
Three of these actions recently were consolidated in Delaware and
the remaining three recently were consolidated in Texas.
The Company says it intends to vigorously defend against all of
these claims. At this time, the Company is unable to predict the
outcome of these matters or estimate the extent to which it may be
exposed to any resulting liability. Although the outcome cannot
be predicted, the Company does not expect these matters to have a
material adverse effect on its financial position, operating
results or cash flows.
IMMUCOR INC: Awaits Orders on Bids to Dismiss Merger-Related Suit
-----------------------------------------------------------------
Immucor, Inc. is awaiting court decisions on its and other
defendants' motions to dismiss a class action lawsuit commenced by
Babette C. Schorsch in Georgia, according to the Company's January
13, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended November 30, 2011.
The Company was acquired on August 19, 2011, through a merger
transaction with IVD Acquisition Corporation ("Merger Sub"), a
wholly owned subsidiary of IVD Intermediate Holdings B, Inc. (the
"Parent"). The Parent is a wholly owned indirect subsidiary of
IVD Holdings, Inc. which was formed by investment funds affiliated
with TPG Capital, L.P. ("TPG Capital"). The acquisition was
accomplished through a merger of the Merger Sub with and into the
Company, with the Company being the surviving company (the
"Acquisition"). As a result of the merger, the Company became a
wholly owned subsidiary of Parent.
In July 2011, in connection with the Acquisition, a series of six
class action lawsuits were filed in the Superior Courts of Fulton
County and Gwinnett County, Georgia, captioned as Hillary Kramer
v. Immucor, Inc., et al., Civil Action No. 2011CV203124 (Fulton
County), Babette C. Schorsch v. Immucor, Inc., et al., Civil
Action No. 11A0776-1 (Gwinnett County), Allan Pillay v. Immucor,
Inc., et al., Civil Action No. 2011CV203339 (Fulton County), Larry
Macintyre v. Immucor, Inc., et al., Civil Action No. 2011CV203397
(Fulton County), Irene Dixon v. Immucor, Inc., et al., Civil
Action No. 2011CV203567 (Fulton County), and Gilbert Rosenthal v.
Immucor, Inc., et al., Civil Action No. 11A079463 (Gwinnett
County). All of these actions were brought on behalf of the
Company's public shareholders against, in various combinations,
the Company, its individual directors, certain of its executive
officers, TPG Capital and certain of its affiliates. The actions
asserted claims for breaches of fiduciary duties against the
Company's board of directors in connection with the Acquisition,
and for aiding and abetting the purported breaches of fiduciary
duties by the TPG Capital defendants. Some of the actions also
included allegations that the Company's Schedule 14D-9 filed with
respect to the Acquisition failed to provide certain allegedly
material information. The plaintiffs sought, among other things,
preliminary and permanent relief, including injunctive relief
enjoining the consummation of the Acquisition, rescission of the
Acquisition to the extent it is consummated prior to the entry of
a final judgment, and costs, expenses and disbursements of the
action.
The Pillay case was dismissed without prejudice in August 2011;
the Kramer, Macintyre and Dixon cases were dismissed without
prejudice in September 2011; and the parties have agreed to stay
the Rosenthal case in favor of the Schorsch case which remains
pending in Gwinnett County. In the Schorsch case, which is the
only case currently active, in August 2011 the Court denied
plaintiff's motion for preliminary injunction; and in October 2011
the plaintiff filed a Second Amended Complaint, which remains
pending and which the defendants moved to dismiss in November
2011. The Court has not yet ruled on defendants' motions to
dismiss the Schorsch case.
The Company says it will defend this case vigorously if the case
is not dismissed. At this time, the Company cannot reasonably
assess the timing or outcome of this litigation or its effect, if
any, on its business.
IMMUCOR INC: Enters $22MM Sherman Act-Violation Suits Settlement
----------------------------------------------------------------
Immucor, Inc. entered into a $22 million settlement agreement to
resolve antitrust class action lawsuits that were consolidated in
Pennsylvania, according to the Company's January 13, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended November 30, 2011.
Beginning in May 2009, a series of class action lawsuits was filed
against the Company, Ortho-Clinical Diagnostics, Inc. and Johnson
& Johnson Health Care Systems, Inc. alleging that the defendants
conspired to fix prices at which blood reagents are sold,
asserting claims under Section 1 of the Sherman Act, and seeking
declaratory and injunctive relief, treble damages, costs, and
attorneys' fees. All of these complaints make substantially the
same allegations.
On January 11, 2012, Immucor entered into a settlement agreement
with the plaintiff class representatives in these consolidated
antitrust class actions, other than the dismissed cases:
* Warren General Hospital v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the District
of New Jersey, filed May 18, 2009;
* Bradford Hospital, d/b/a Bradford Regional Medical Center,
v. Immucor, Inc., Ortho-Clinical Diagnostics, Inc., and
Johnson & Johnson Health Care Systems, Inc., United States
District Court for the District of New Jersey, filed May 21,
2009, voluntarily dismissed without prejudice, March 26,
2010;
* Niagara Falls Memorial Medical Center v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc., and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the District of New Jersey, filed May 22, 2009, voluntarily
dismissed without prejudice pursuant to stipulation,
March 26, 2010;
* Professional Resources Management, Inc., d/b/a Bullock
County Hospital, v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the District
of New Jersey, filed May 27, 2009;
* Regional Medical Center Board, d/b/a Northeast Alabama
Regional Medical Center, v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the District
of New Jersey, filed May 27, 2009;
* KershawHealth v. Immucor, Inc., Ortho-Clinical Diagnostics,
Inc., and Johnson & Johnson Health Care Systems, Inc.,
United States District Court for the District of New Jersey,
filed May 26, 2009, voluntarily dismissed without prejudice,
March 26, 2010;
* Professional Resource Management of Crenshaw LLC, d/b/a
Crenshaw Community Hospital, v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc., and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the District of New Jersey, filed May 26, 2009;
* Mary Hitchcock Memorial Hospital v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc., United States District
Court for the Southern District of New York, filed May 28,
2009;
* Larkin Community Hospital v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the District
of New Jersey, filed May 28, 2009;
* Schuylkill Medical Center - East Norwegian Street and
Schuylkill Medical Center - South Jackson Street v. Immucor,
Inc., Ortho-Clinical Diagnostics, Inc., and Johnson &
Johnson Health Care Systems, Inc., United States District
Court for the Eastern District of Pennsylvania, filed
June 2, 2009;
* Seneca Medical Lab, Inc. v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed June 3, 2009, voluntarily
dismissed without prejudice, March 26, 2010;
* F. Baragano Pharmaceuticals v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed June 5, 2009;
* Health Network Laboratories, L.P. v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc., and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the District of New Jersey, filed June 11, 2009;
* Legacy Health System v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the District
of New Jersey, filed June 11, 2009;
* Titusville Area Hospital v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed June 16, 2009, voluntarily
dismissed without prejudice, March 26, 2010;
* St. Mary's Hospital, Decatur, of the Hospital Sisters of the
Third Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Texas, filed June 26, 2009;
* Highlands Hospital v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed June 26, 2009, voluntarily
dismissed without prejudice, March 26, 2010;
* St. Barnabas Hospital, Inc. a/k/a St. Barnabas Hospital v.
Immucor, Inc., Ortho-Clinical Diagnostics, Inc., and Johnson
& Johnson Health Care Systems, Inc., United States District
Court for the Eastern District of Pennsylvania, filed
July 2, 2009, voluntarily dismissed without prejudice,
March 26, 2010;
* St. Anthony's Memorial Hospital, of the Hospital Sisters of
the Third Order of St. Francis v. Immucor, Inc., Johnson &
Johnson Health Care Systems, Inc., and Ortho-Clinical
Diagnostics, Inc., United States District Court for the
Eastern District of Texas, filed July 6, 2009;
* St. Francis Hospital, of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
United States District Court for the Eastern District of
Texas, filed July 6, 2009;
* Sacred Heart Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the District of South
Carolina, filed July 6, 2009;
* St. John's Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Eastern District
of Texas, filed July 7, 2009;
* St. Mary's Hospital, Streator, of the Hospital Sisters of
the Third Order of St. Francis v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc. and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the Eastern District of Texas, filed July 7, 2009;
* St. Joseph's Hospital, Breese, of the Hospital Sisters of
the Third Order of St. Francis v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc. and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the Western District of Pennsylvania, filed July 7, 2009;
* St. Mary's Hospital Medical Center of Green Bay, Inc. v.
Immucor, Inc., Ortho-Clinical Diagnostics, Inc. and Johnson
& Johnson Health Care Systems, Inc., United States District
Court for the District of New Jersey, filed July 8, 2009;
* St. Nicholas Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Eastern District
of Pennsylvania, filed July 9, 2009;
* St. Vincent Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Eastern District
of Wisconsin, filed July 9, 2009;
* St. Joseph's Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Eastern District
of Tennessee, filed July 8, 2009;
* St. Elizabeth's Hospital of the Hospital Sisters of the
Third Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Southern District
of Illinois, filed July 9, 2009;
* St. Joseph's Hospital of the Hospital Sisters of the Third
Order of St. Francis v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc. and Johnson & Johnson Health Care Systems,
Inc., United States District Court for the Southern District
of California, filed July 16, 2009;
* Ivy Creek of Tallapoosa, LLC, d/b/a Lake Martin Community
Hospital v. Immucor, Inc., Ortho-Clinical Diagnostics, Inc.
and Johnson & Johnson Health Care Systems, Inc., filed
June 1, 2009 (filed but not formally docketed);
* Comprehensive Health Care of Ohio, Inc., d/b/a EMH Regional
Healthcare System v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed August 19, 2009, voluntarily
dismissed without prejudice, March 26, 2010;
* Douglas County Hospital v. Immucor, Inc., Ortho-Clinical
Diagnostics, Inc., and Johnson & Johnson Health Care
Systems, Inc., United States District Court for the Eastern
District of Pennsylvania, filed September 1, 2009; and
* Community Medical Center Healthcare System v. Immucor, Inc.,
Ortho-Clinical Diagnostics, Inc., and Johnson & Johnson
Health Care Systems, Inc., United States District Court for
the Eastern District of Pennsylvania, filed September 3,
2009.
The lawsuits were originally filed in the districts listed. All
of the cases filed outside of the Eastern District of
Pennsylvania, except that filed by Ivy Creek of Tallapoosa, LLC,
d/b/a Lake Martin Community Hospital, were subsequently
transferred to the United States District Court for the Eastern
District of Pennsylvania pursuant to orders entered by the United
States Judicial Panel on Multidistrict Litigation in In re: Blood
Reagents Antitrust Litigation. The complaint filed by Ivy Creek
was never formally docketed and it is not clear at this time
whether it constitutes a continuing lawsuit.
Under the terms of the settlement agreement, which is subject to
preliminary and final approval by the court following notice to
potential class members, the Company will pay $22 million into a
settlement fund in exchange for a release by all potential class
members of the direct purchaser claims related to the products and
acts enumerated in the Complaint, as well as a dismissal of the
case with prejudice. The release would not cover potential class
members that affirmatively opt out of the settlement. The
settlement is subject to preliminary and final approval by the
court following notice to potential class members.
NAT'L FOOTBALL LEAGUE: More Players Join Concussion Class Action
----------------------------------------------------------------
According to PlayerInjury.com, more and more former NFL players
are rapidly joining the class action lawsuit anticipated to be
filed on Jan. 17 in Philadelphia Federal Court. The concussion
lawsuit is necessary, because of the debilitating and permanent
effects of head injuries and concussions that have afflicted
present and former professional football players in the NFL. For
close to one hundred years, evidence has linked concussions to
long-term neurological problems. For decades, specialists in
brain trauma have warned about the risks of permanent brain damage
from repetitive concussions. Former players and their attorneys
are claiming that the NFL, as the organizer, marketer, and face of
the most popular sport in the United States, in which head trauma
is a regular occurrence, was aware of these risks but deliberately
ignored the risks associated with concussions and actively
concealed them.
Given the current concussion litigation that has begun between the
NFL and many of its former players, PlayerInjury.com has been set
up by the players, for the players, to provide one accurate
centralized source for lawsuit information.
Kevin Turner, a former New England Patriot and Philadelphia Eagle
who was diagnosed with ALS in May of 2010 said, "I knew that there
were risks involved with football. When I say that, I mean I knew
I had a risk of knee trouble, arthritis, and neck pain. No
trainer or doctor ever cautioned me about concussions and their
cumulative effects. I believe that I had well over 100
concussions and they kept me playing. We need to protect every
athlete - and that includes our children. Awareness is the first
step."
Former center, Steve Everitt, who played for the Cleveland Browns,
Philadelphia Eagles, and St. Louis Rams commented that "there must
be fundamental fairness with regard to medical monitoring and our
health. After being that physical for so long, who knows what the
future holds."
Former offensive lineman, Joe Panos, now an NFL agent, who
previously played for the Philadelphia Eagles and Buffalo Bills,
stated "that everyone involved needs to understand that we must
move on after our professional football careers and that our
health is vital to both our professional and personal lives."
Britt Hager, a former linebacker for the Philadelphia Eagles,
Denver Broncos and St Louis Rams said, "If the NFL had evidence
regarding our health and didn't tell us, shame on them. I thought
we were supposed to be in this thing together."
Several former NFL players and attorney, Craig R. Mitnick, Esq.
established PlayerInjury.com to provide information and increase
awareness. For a more in-depth description of the current NFL
litigation and related information, please visit PlayerInjury.com.
NETFLIX: Faces Class Action for Misleading Investors
----------------------------------------------------
Erik Gruenwedel, writing for HomeMedia Magazine, reports that a
San Diego law firm has filed a class-action lawsuit against
Netflix alleging that select officers and directors of the
streaming service enriched themselves while misleading investors
during a 10-month period last year.
The suit -- filed on behalf of an institutional investor Jan. 13
by Robbins Geller Rudman & Dowd LLP in United States District
Court for the Northern District of California -- alleges that
unnamed Netflix executives from Dec. 20, 2010, to Oct. 24, 2011,
issued "materially false and misleading statements" to investors
about the company's business practices and content license
agreements, in order to main an artificially high share price.
Indeed, Netflix shares reached an all-time high of nearly $300 a
share on July 13, 2011. Meanwhile, the aforementioned executives
and directors together sold more than 388,000 shares of common
stock for more than $90 million.
Specifically, the complaint alleges the Netflix defendants knew --
but hid from investors -- the fact its burgeoning subscription
video-on-demand service's short-term content license agreements
were coming up for renewal at higher-than-anticipated rates. The
increased renewals necessitating a price increase to subscribers,
thereby threatening Netflix's fiscal earnings forecasts.
Los Gatos, Calif.-based Netflix's implosion last October is well-
known. The company saw shares free-fall more 75% in October and
November, after implementing a price hike to its most popular
hybrid disc and streaming rental program. Netflix then aborted a
short-lived attempt to spin off its pioneering by-mail disc rental
service, dubbed Qwikster -- a PR fiasco further undermined by a
poorly received mea culpa from co-founder and CEO Reed Hastings.
The law firm seeks to recover unspecified damages on behalf of all
purchasers of Netflix common stock during the aforementioned
period.
Separately, two Dallas-based law firms have opened an inquiry into
the litigation to determine whether Netflix executives and board
members failed in their respective fiduciary duties.
"Because of the severity of the accusations lodged against certain
of Netflix's officers and directors, we are concerned about the
possible damage to the company and its shareholders, and the firms
have commenced an investigation to uncover possible breaches of
fiduciary duties and other violations of state law by the officers
and directors," Willie Briscoe, shareholder rights attorney with
one of the law firms, said in a Jan. 16 statement seeking
additional plaintiffs.
Netflix, as a rule, does not comment on pending litigation and/or
market speculation.
Mr. Briscoe can be reached at:
Willie Briscoe, Esq.
THE BRISCOE LAW FIRM, PLLC
The Preston Commons
8117 Preston Rd., Suite 300
Dallas, TX 75225
Telephone: (214) 706-9314
E-mail: wbriscoe@thebriscoelawfirm.com
NISSAN: Faces Class Action in Calif. Over Defective Radiators
-------------------------------------------------------------
Courthouse News Service reports that Nissan 2005-10 Pathfinders,
Xterras, Fronsiters and Infiniti FXs have defective radiators that
leak into the automatic transmission system, a class action claims
in Los Angeles Superior Court.
PROVINCE OF ONTARIO, CANADA: Algonquin Groups File Class Action
---------------------------------------------------------------
Mohammed Adam, writing for The Ottawa Citizen, reports that at
least 10 different Algonquin groups are now contesting ownership
of the 36,000 square kilometers of Eastern Ontario that's the
subject of a historic aboriginal land claim, further complicating
already complex negotiations with the government.
The latest twist in the long-running land claim saga is notice of
a class-action lawsuit against the Ontario government filed by
lawyers representing the off-reserve Ottawa Algonquin First
Nation, the Algonquins of Kinouchipirini (Pembroke) and Metis of
Ontario. These three groups and many others are challenging the
legality of the land claim by the Golden Lake Algonquin, known as
the Pikwakanagan, saying the provincial government is excluding
them from negotiations over land that also belongs to them. The
impending lawsuit also includes several individual aboriginals who
say Ontario is interfering with their hunting and fishing rights,
and want relief from the courts.
It is the latest blow to the negotiations that have been going on
for 20 years between federal, provincial and the Golden Lake
Algonquin over a vast swath of Eastern Ontario that includes the
nation's capital. Six Quebec Algonquin communities led by the
Kitigan Zibi of Maniwaki, who also claim the territory in question
as part of their ancestral land, recently threatened a court
challenge, saying they are being cut out of the negotiations. Two
separate Quebec Algonquin communities are also opposed to the
negotiations. Further muddying negotiations that the parties
involved believed would serve as a template for other settlements,
several non-status Algonquins and Metis, who also claim a stake in
the land, are opposed to the negotiations and considering their
options.
Ottawa lawyer Michael Swinwood, who filed notice of the lawsuit in
November, told the Citizen that the law requires Ontario to be
given a 60-day notice of any action, and proceedings will likely
begin in March.
"The land claim negotiation currently underway was thought up by
the government. They hand-picked certain people to be involved in
that undertaking and they ignored the traditional hereditary
people," Mr. Swinwood said.
"We are giving Ontario notice that we will not accept any
agreement-in-principle that they might make with Algonquin
negotiation representatives."
"We've been opposed to the negotiations from Day One. We are
challenging the whole land negotiations because people the
government is negotiating with are illegitimate," added Grant
Tysick, chief of the Kinouchipirini.
The nub of the lawsuit is that since Canada has acknowledged that
Algonquin territory, which cuts across Ontario and Quebec, was
never ceded or surrendered, there is no reason to limit
negotiations to a small group anointed by the government. The
Ottawa and Kinouchipirini Algonquins say the Golden Lake
Algonquin, the only recognized group that the federal and
provincial governments are negotiating with, at best owns a tiny
fraction of the land, and cannot act on behalf of the majority.
What's worse, they say, the government has allowed aboriginals who
are not even Algonquin to take part in the negotiations, even as
it cuts off true Algonquins from the talks. The negotiations are
indeed bringing to the boil long-simmering tensions between those
who live on the reserves and enjoy government support and funding,
and non-status aboriginals like the Kinouchipirini and the Ottawa
Algonquins, who often feel neglected.
"The land claim itself is not legal because we have several people
who are sitting at the table who aren't even Algonquin. The
majority of people who should be at the table are not at the
table," said Paul Lamothe, chief of the Ottawa Algonquin, who was
part of the negotiations until he left five years ago in
frustration.
"When I suggested that everybody should be included, they wanted
nothing to do with it. We are taking this action to bring
attention to what is going on."
Genevieve Guibert, a spokeswoman for Aboriginal Affairs and
Northern Development Canada, was unaware of any notice of legal
action, noting that "progress is being made in the overall land
claim negotiations."
Phyllis Bennett, a spokeswoman for the Ontario Ministry of
Aboriginal Affairs, would not comment, citing legal reasons.
"As the matter is before the courts, it will be inappropriate to
comment," she said.
The land negotiations have been controversial since they began in
1991. The federal government recognizes 10 communities as being
part of the Algonquin Nation. Of these, nine are in Quebec,
including the largest of them all -- the Kitigan Zibi. The only
recognized band or community in Ontario is the Pikwakanagan of
Golden Lake, with whom the land claim negotiations are being
conducted.
The seven-member band council and representatives from nine other
communities that the federal and provincial governments have
agreed to include in the negotiations make up the Algonquin
Negotiation Representatives (ANR).
A board decides who to accept as an Algonquin in order to
participate, infuriating those who have been left out.
Over the years there have been accusations and counter-accusations
of phoney Algonquins. In letters to the prime minister, Lamothe
has complained to no avail about a "flawed and corrupt" process.
He told the PMO 18 months ago, that when his group left the
negotiations in 2007 for lack of accountability and transparency,
it was replaced by a "fraudulent Ottawa community." He says 27
people were "parachuted" in from Greater Golden Lake to create the
new community.
"The process is very complicated and it is crooked," he said.
"It is corruption at the highest level."
Mr. Swinwood can be reached at:
Michael Swinwood, Esq.
46 Waverley St
Ottawa, ON K2P
Telephone: (613) 563-7474
STATE OF LOUISIANA: DHH Settles LT-PCS Medicaid Class Action
------------------------------------------------------------
KSLA reports that the Department of Health and Hospitals (DHH) has
reached a settlement in a class action brought by Medicaid
beneficiaries of the Long-Term Personal Care Services (LT-PCS)
Program.
"Long-Term Personal Care Services," part of Louisiana's Medicaid
program, provides personal care workers to help people in their
homes. Care provided includes help with bathing, toileting and
grooming activities; eating and food preparation; performance of
incidental household chores; assistance getting to medical
appointments; and grocery shopping.
Beginning in September of 2010, the Department reduced the maximum
hours of LT-PCS to 32 hours per week. The lawsuit claimed that
this put some people at risk of having to enter nursing homes for
care, and therefore violated the Americans with Disabilities Act.
While the lawsuit was pending, DHH created a process for LT-PCS
recipients receiving the maximum number of hours to request
expedited access to the Community Choice Waiver Program. The
Settlement Agreement extends that option to additional class
members, who are those LT-PCS recipients that were receiving more
than 32 hours when the new cap was adopted, but are currently
approved for less than 32 hours. Over the next three months, DHH
will mail written notices to all persons affected by the
settlement that will explain how to request assistance.
The Community Choice Waiver program provides personal care
services as well as a variety of other services that assist people
to remain in their homes and communities. DHH will offer waiver
slots to class members who apply, if they can show that without
the additional services, they will not be able to maintain their
health and are at serious risk of nursing facility placement.
DHH will ask the federal government for approval for an additional
200 Community Choice Waiver slots. If any of these slots are not
filled by class members, they will be added to the pool of slots
that are available to others who are waiting for waiver services.
"Our primary concern is promoting the health and wellbeing of the
people we serve in the most independent setting," said DHH
Secretary Bruce D. Greenstein. "This allows us to move forward
with our agenda to maximize those two priorities. We are
committed to right balancing our system of care to ensure people
have the best options to remain in their homes and avoid costly
nursing home placement."
The plaintiffs in this case were represented by the Advocacy
Center, co-counsel Steven F. Gold, and AARP Foundation Litigation.
"This agreement is a positive step. It will allow people whose
health would deteriorate because of service cuts to remain in
their homes instead of having to be institutionalized," said Nell
Hahn, one of the Advocacy Center lawyers who filed the suit.
The settlement "has to be considered a win-win," said Ken Zeller,
senior attorney with AARP Foundation Litigation, "It allows people
to age in the place they know and love and at the same time saves
the state money in more costly nursing home placements."
Preliminary approval of the Settlement Agreement has been granted
by Judge Brady of the U.S. District Court for the Middle District
of Louisiana; a final approval hearing has been set for
February 17, 2012.
A copy of the Settlement Agreement and the hearing notice can be
found at
http://www.advocacyla.org/tl_files/publications/Lawsuits-
Legal/PittsSettlementJan2012.pdf
-- or --
http://new.dhh.louisiana.gov/index.cfm/newsroom/detail/2381
Mr. Gold can be reached at:
Stephen F. Gold, Esq.
1709 Benjamin Franklin Parkway
Second Floor
Philadelphia, PA 19103
Telephone: (215) 627-7100, ext 227
E-mail: stevegoldada@cs.com
Mr. Zeller can be reached at:
Ken Zeller, Esq.
AARP FOUNDATION LITIGATION
601 E Street N.W.
Washington, DC 20049
Telephone: (202) 434-2138
E-mail: kzeller@aarp.org
UNITED STATES: Iraq Veterans to Get Benefits in PSTD Suit
---------------------------------------------------------
Michael Doyle, writing for McClatchy Newspapers, reports that
Chris Crotte left Sacramento, Calif., for the Army. Seven years
later, he left the Army in pain.
Now, the 31-year-old La Entrada High School graduate and Iraq War
veteran stands to benefit from a recently approved class-action
settlement. Mr. Crotte, along with other shell-shocked former
combatants, will be getting aid that once was out of reach.
"It can definitely be beneficial," said Mr. Crotte, who's now
studying auto mechanics and living in West Sacramento. "Getting
medical care would be good."
After three years of legal maneuvering, a federal judge in late
December quietly approved the settlement that covers Mr. Crotte
and about 2,100 other veterans who've been medically discharged
since 2002 with post-traumatic stress disorder.
Under the settlement, one of several similar efforts now under
way, affected veterans discharged with PTSD will get better
benefits, including lifetime health care and post-exchange
privileges. The affected veterans had been discharged with
disability ratings that were too low to receive such benefits.
Anthony Koller, for one, is an Army veteran who lives in Little
Elm, Texas, about 50 miles north of Fort Worth. He survived 14
months in Iraq before being discharged with PTSD. His initial low
disability rating, though, left the married father of three
adrift.
"We live on a month-to-month basis," Mr. Koller said in a court
declaration.
Under the recently approved class-action settlement, Mr. Koller's
family will receive health care under TriCare and he can apply for
special compensation payments, among other benefits.
Mr. Crotte was medically discharged with PTSD in April 2008 after
two tours in Iraq as a forward observer with the 17th Field
Artillery Brigade. His back, he said, was "messed up." He slept
poorly. His mind was jumpy. Officials marked him as only 10
percent disabled, and cut him loose.
"I got out, and hit the road," Mr. Crotte said. "I constantly
bounced around; I was moving from state to state for a while."
From December 2002 to October 2008, the military medically
discharged about 4,300 soldiers, sailors, airmen and Marines with
PTSD and disability ratings below 50 percent.
The military services, veterans advocates charged in court, were
"engaged in a transparent effort to purge their ranks" and cut
costs.
Under congressional pressure in 2008, the Defense Department
agreed to grant 50 percent disability ratings to those diagnosed
with PTSD in the future. That policy change, though, came too
late for some.
"The individual service branches have done nothing to address
their mistreatment of potentially thousands of veterans they
already have abandoned," Washington-based attorney Brad Fagg wrote
in the lawsuit, originally filed in December 2008.
Joining with the National Veterans Legal Services Program, the
attorneys wrangled several heart-rending plaintiffs for their
case.
Mr. Crotte opted in to the lawsuit later, though he said he
currently had no idea of what he could expect, and when. He's
been, like many, a relatively passive participant in the
complicated world of class-action law.
"They sent me a letter," Mr. Crotte said, "and I filled it out."
The settlement provides lifetime disability retirement benefits to
1,029 veterans with PTSD who'd been denied aid previously. An
additional 1,066 will have their disability benefits increased.
Another 2,200 potentially affected veterans didn't opt in to the
class-action lawsuit, though they might take individual legal
action.
"Nothing suggests that the settlement negotiations were anything
but cooperative, fair and transparent," U.S. Court of Federal
Claims Judge George W. Miller wrote.
Separately, the Defense Department has created the Physical
Disability Board of Review, which is empowered to revise the
status of veterans who were medically discharged with less than 30
percent disability ratings from Sept. 11, 2001, through Dec. 31,
2009. While the class-action lawsuit was limited to PTSD cases,
the special review board can examine any type of medical
discharge.
Potentially, 74,374 medically discharged veterans are eligible to
apply. So far, only about 3,200 have done so.
VALPEY-FISHER: Enters Settlement to Resolve Merger-Related Suit
---------------------------------------------------------------
Valpey-Fisher Corporation disclosed in its January 13, 2012, Form
8-K filing with the U.S. Securities and Exchange Commission that
it entered into a settlement to resolve a class action litigation
relating to a proposed merger.
In connection with the settlement, the Company filed with the SEC
a supplement to its definitive proxy materials relating to the
previously announced proposed merger of Valpey-Fisher with VF
Acquisition Corp., an indirect wholly-owned subsidiary of CTS
Corporation ("CTS"), pursuant to an Agreement and Plan of Merger,
dated as of November 17, 2011.
As previously reported, a putative class action lawsuit entitled
"Boon Ping Teoh v. Michael J. Ferrantino, Jr. et al. (Civil Action
No. V356627) (the "Action") has been filed in the Circuit Court
for Montgomery County, Maryland, against the Company, the
Company's directors, CTS and Merger Sub. The Action was filed on
December 13, 2011, and first served upon the Company on or about
December 26, 2011. The plaintiff in this Action generally alleges
that the directors breached their fiduciary duties to the Company
by (i) approving the merger for inadequate consideration and (ii)
disseminating a materially misleading proxy statement in
connection with the Special Meeting of Stockholders to be held on
January 24, 2012.
On January 12, 2012, counsel for all the parties entered into a
memorandum of understanding, in which they agreed on the terms of
a settlement of the stockholder litigation. The proposed
settlement is conditioned upon, among other things, consummation
of the merger and final approval of the proposed settlement by the
court. Pursuant to the terms of the memorandum of understanding,
Valpey-Fisher has agreed to make certain supplemental disclosures
related to the merger, which are contained in the Proxy
Supplement. The settlement will not affect the amount of the
merger consideration that Valpey-Fisher's stockholders are
entitled to receive in the merger.
The Company continues to believe that the disclosure contained in
the proxy statement is not materially misleading and that no
supplemental disclosure is required under applicable law.
VOLKSWAGEN AG: Recalls 500,000 Vehicles Due to Technical Problems
-----------------------------------------------------------------
Friedrich Geiger and Christoph Rauwald at The Wall Street Journal
report that German car makers Volkswagen AG and BMW AG are
recalling more than 500,000 vehicles due to possible technical
problems.
A spokesman for Volkswagen, Europe's largest auto maker by sales,
said the Company began a recall of 299,000 cars with diesel
engines in October last year due to possible problems caused by
cracks in the fuel-injection system.
VW has notified the car owners but didn't say how many vehicles
had been recalled so far.
The cracks can occur in VW's Golf, Passat, Jetta, Tiguan and other
models built since 2009. The Company's Audi, Skoda and Seat
brands are also affected, according to the VW spokesman.
BMW also said it is recalling 235,000 cars of its Mini brand
world-wide due to a possible malfunction of an electric water pump
that cools the turbo charger.
A spokesman for the world's largest luxury-car maker said there
haven't been any reported accidents related to the possible
malfunction.
The comments follow a filing by the National Highway Traffic
Safety Administration saying that BMW will recall 88,911 Mini and
Mini Cooper cars in the U.S.
According to the NHTSA filing, the auxiliary water pump that cools
the turbo charger has an electronic circuit board that can
malfunction and overheat. As a result, the circuit board may
smolder and possibly catch fire.
BMW will notify the car owners and dealers will replace the water
pump free of charge. The recall is expected to start next month.
WELK GROUP: Judge Denies Motion to Compel Time-Share Arbitration
----------------------------------------------------------------
Rebekah Kearn at Courthouse News Service reports that time-share
owners do not have to arbitrate claims over mold damage in the
resort originally opened by television's Lawrence Welk in 1964, a
federal judge ruled, noting that the Welk Group has actively
participated in the class action for over two years.
In 2009, Hermengildo "Jay" Martinez filed a class action on behalf
of consumers who owned timeshare interest in the luxury housing
development Welk Resort San Diego.
Mr. Martinez has filed four amended complaints in that time,
claiming the Welk Group and its three partners concealed water
leaks that led to a serious mold and fungus problem.
Now that the parties have finally achieved an operative complaint,
however, the defendants said the court must compel arbitration
because of agreements that time share owners sign.
Though the agreements do contain valid arbitration clauses that
are enforceable under the Federal Arbitration Act, U.S. District
Judge Anthony Battaglia ruled that the defendants have waived
their right to compel such action.
Since the Welk Group and its partners drafted the arbitration
clauses at issue, "it is indisputable that they knew of their
right to seek arbitration," Judge Battaglia wrote.
Yet, the class points out that they pursued this relief only after
receiving an "unwelcome" order from the court. It also claimed
that forced arbitration would be prejudicial since Mr. Martinez
has already spent two years for a class action.
Though the defendants said previous attempts at arbitration would
have been futile, Judge Battaglia did not agree. Even if Mr.
Martinez had proposed several classes that would not all have been
subject to arbitration, the defendants could have pursued those
parties to whom arbitration was applicable.
"By waiting two years to bring this motion, the prejudice caused
to Mr. Martinez and the putative class is enough to create
waiver," he wrote.
Judge Battaglia also refused to apply the Supreme Court's recent
holding in Concepcion v. AT&T Corp., a close opinion that defends
arbitration clauses against bans enacted by some states.
"Defendants make much of AT&T Mobility, decided in 2011, but that
case dealt with the enforceability of class action waivers, which
are not present in the arbitration clauses at issue," he wrote.
"The purpose of the FAA, and arbitration in general, is to promote
quick, informal, and streamlined resolution of issues between
parties," Judge Battaglia added, referring to the Federal
Arbitration Act. "It is not to be used as a back-up plan for
litigation strategies."
The court also rejected the defendants' bid to deny class
certification, a motion that Judge Battaglia criticized as neither
timely nor appropriate.
Mr. Martinez has not yet filed for class certification, and
discovery has not been conducted, but the Welk Group claimed that
class certification should be denied based on an alleged conflict
of interest among the counsel for the class and Wade Brent, a
former engineer whom the Welk Group is pursuing with
counterclaims.
Adequacy of representation is one of four factors in the class-
certification analysis, but Judge Battaglia said the defendants
did not address any of the other factors in their motion.
"To that end, defendants are encouraged to file a motion to
disqualify counsel as the proper means of resolving this issue,"
he concluded.
A copy of the Order Denying Defendants' Motion to Compel
Arbitration in Martinez v. The Welk Group, et al., Case No. 09-cv-
02883 (S.D. Calif.), is available at:
http://www.courthousenews.com/2012/01/16/3-09-cv-02883-AJB-WMC.pdf
WHIRLPOOL: Faces Class Action Over Front Load Washing Machines
--------------------------------------------------------------
Jay Scherder, writing for KY3, reports that enough complaints
across the nation has caused several class action lawsuits to
emerge. The issue at hand involves mold and mildew.
When it comes to front-end load washers, there are things you need
to know.
"If you use the wrong kind of soap you are going to have a
problem," said TallGuy Appliance Repair owner Jody Cottengim.
"I noticed there was an odor . . . sometimes the clothes that
came out of the washer smelled musty," said front-end load washer
owner Tona Rowett.
"Inside there there is a little rubber piece. You need to be able
to wipe those things down and keep them clean," Ms. Cottengim
said.
"When a load is finished the water doesn't drain completely," said
Ms. Rowett.
"The lack of air is a big issue," explained Ms. Cottengim.
Front load washing machines are often touted as highly efficient,
but they also come with a host of maintenance needs. They are now
in the cross-hairs of lawyers across the country.
"The nature of the construction of the machine," said Complex
Litigation Group Lawyer Richard Burke, "they breed significant
amounts of mold and mildew that's an intractable problem."
Class action lawsuits have popped up against Whirlpool, LG,
Kenmore, among others. "Those are all basically putting the fault
of the machine on the conduct of the consumer rather than on the
engineering of the machine," Mr. Burke said.
The issue, he says, is the design. "The machines cannot clean
themselves. They don't have enough water to clean themselves,"
Mr. Burke said.
He says consumers are not being properly informed about what they
are buying and the maintenance that comes along with them.
"It's dirty water. As that dirty water sits there for let's say
even 24 hours, if you're done with your laundry until tomorrow.
It's going to sit there," said Ms. Cottengim.
"You can do everything you possibly can to think that you are
doing things properly," Ms. Rowett said, "and still end up with a
musty smell sometimes."
Samsung and GE are under investigation at the law firm.
If you'd like more information about pending lawsuits or have an
issue with a front-end washer, contact the Complex Litigation
Group: 312-220-0000 or info@complexlitgroup.com
Mr. Burke can be reached at:
Richard Burke, Esq.
COMPLEX LITIGATION GROUP
St. Louis, MO
Telephone: (314) 880-7000
*********
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 L. Toledo, 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
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The CAR subscription rate is $575 for six months delivered via
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firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Peter Chapman
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