/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120131.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 31, 2012, Vol. 14, No. 21 Headlines AFFYMETRIX INC: Settles "Tang" Class Suit in California Court ALLY FINANCIAL: Sued for Secretly Recording Phone Calls in Calif. AMERICAN HONDA: Faces Class Action in Calif. Over Latent Defect APPLE INC: Consolidated Antitrust Suit Dismissed in December APPLE INC: iPod & iTunes Antitrust Suits Remain Pending in Calif. BJ'S WHOLESALE: Recalls 41,000 LED Flashlight and Battery Sets COLLECTIVE BRANDS: Sued in Kansas for Misleading Shareholders COLUMBIA PARCAR: Recalls 1,400 Golf, Service, Utility Vehicles COMMONWEALTH LIMOUSINE: Faces Wage and Hour Class Suit in Mass. EXOBOX TECHNOLOGIES: Investors Can Amend Fraud Class Action KYMCO USA: Recalls 1,876 Utility Vehicles Due to Fire Hazard NOVARTIS AG: Awaits Okay of Settlement in Wage and Hour Suit NOVARTIS AG: Dismissal of Texas Suits Finalized in March 2011 REALOGY CORP: In Discussions to Settle "Cooper" Litigation STATE OF OREGON: Faces Class Action Over "Sheltered Workshops" TIME WARNER: Sued for Failing to Deliver Promised Cable Services TRIBOROUGH BRIDGE: Judge Narrows Scope of Toll Class Action UNITED RENTALS: Faces RSC Acquisition-Related Suit in Arizona ********* AFFYMETRIX INC: Settles "Tang" Class Suit in California Court ------------------------------------------------------------- Affymetrix, Inc. settled a class action lawsuit commenced by holders of its 3.50% Senior Convertible Notes Due 2038, according to the Company's January 25, 2012, Form 8-K filing with the U.S. Securities and Exchange Commission. On January 21, 2012, Affymetrix, Inc. (the "Company) entered into an agreement to settle the purported class action litigation brought against the Company by holders of the Company's 3.50% Senior Convertible Notes Due 2038 in the Superior Court of California, County of Santa Clara. As part of the settlement, the Company has agreed that within two weeks it will commence a tender offer to repurchase the entire $95.5 million aggregate principal amount of Notes currently outstanding at par plus accrued interest. Tang Capital Partners, LP, which owns approximately $78.3 million principal amount of the Notes, has agreed to tender all of its Notes into the offer. The Notes are in any case redeemable at the option of the holders on January 15, 2013. In addition, based on discussions with the lenders who provided the financing commitments for the Company's proposed acquisition of eBioscience Holding Company, Inc. ("eBioscience"), the Company now expects that it would be required to restructure the financing arrangements in order to be able to complete the acquisition. The Company has not reached any agreements or understandings with its lenders or other financing sources. ALLY FINANCIAL: Sued for Secretly Recording Phone Calls in Calif. ----------------------------------------------------------------- John Trompeter, on behalf of himself and all others similarly situated v. Ally Financial, Inc., a Delaware corporation and Does 1 through 20, inclusive, Case No. CGC-11-513955 (Calif. Super. Ct., San Francisco Cty., December 7, 2011) arises out of the Defendants' policy and practice of secretly recording telephone calls with persons located in California without their consent. The Plaintiff argues that the Defendants' policy and practice of surreptitiously recording telephone calls violates the California Penal Code and the California's Invasion of Privacy Act. Hence, the Plaintiff brings the action to seek liquidated damages for himself and on behalf of the members of the proposed classes. Mr. Trompeter is a resident of San Francisco County, California. Ally Financial is a Delaware corporation that has "qualified" to do business in the state of California. The names and identities of the Doe Defendants are currently unknown to Mr. Trompeter. Ally Financial removed the lawsuit on January 27, 2012, from the Superior Court of the state of California, County of San Francisco, to the United States District Court for the Northern District of California. The Company argues that the removal is proper because the action involves more than 100 alleged class members in which at least one member is a citizen of a state different than Ally Financial. The District Court Clerk assigned Case No. 3:12-cv-00392 to the proceeding. The Plaintiff is represented by: Thomas A. Kearney, Esq. Paul Alvarez, Esq. Prescott Littlefield, Esq. KEARNEY ALVAREZ LLP 633 W. Fifth Street, 28th Floor Los Angeles, CA 90071 Telephone: (213) 473-1900 Facsimile: (213) 473-1919 E-mail: tkearney@kearneyalvarezllp.com palvarez@kearneyalvarezllp.com plittlefield@kearneyalvarezllp.com - and - Susan Yoon, Esq. Law Offices of Susan Yoon 2029 Century Park East, Suite 1400 Los Angeles, CA 90067 Telephone: (818) 554-7317 Facsimile: (818) 698-8214 The Defendants are represented by: John B. Sullivan, Esq. Rebecca S. Saelao, Esq. Erik Kemp, Esq. SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415)398-3344 Facsimile: (415)956-0439 E-mail: jbs@severson.com rss@severson.com ek@severson.com AMERICAN HONDA: Faces Class Action in Calif. Over Latent Defect --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims the paint delaminates on Honda 2003-07 vehicles. A copy of the Complaint in Matthews v. American Honda Motor Company, Inc., Case No. 12-cv-00661 (C.D. Calif.), is available at: http://www.courthousenews.com/2012/01/26/HondaCA.pdf The Plaintiff is represented by: Roy A. Katriel, Esq. THE KATRIEL LAW FIRM, PLLC 12707 High Bluff Drive, Suite 200 San Diego, CA 92130 Telephone: (858) 350-4342 E-mail: rak@katriellaw.com - and - Michael D. Braun, Esq. BRAUN LAW GROUP, P.C. 10680 W. Pico Blvd., Suite 280 Los Angeles, CA 90064 Telephone: (310) 836-6000 E-mail: service@braunlawgroup.com APPLE INC: Consolidated Antitrust Suit Dismissed in December ------------------------------------------------------------ The United States District Court for the Northern District of California dismissed in December 2011 a consolidated antitrust lawsuit against Apple Inc., according to the Company's January 25, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. In re Apple & ATTM Antitrust Litigation (brought on behalf of named plaintiffs Kliegerman, Holman, Rivello, Smith, Lee, Macasaddu, Morikawa, Scotti and Sesso) is a purported class action filed against the Company and AT&T Mobility in the United States District Court for the Northern District of California. The Consolidated Complaint alleges that the Company and AT&T Mobility violated the federal antitrust laws by monopolizing and/or attempting to monopolize the "aftermarket for voice and data services" for the iPhone and that the Company monopolized and/or attempted to monopolize the "aftermarket for software applications for iPhones." Plaintiffs are seeking unspecified compensatory and punitive damages for the class, treble damages, injunctive relief and attorneys fees. On July 8, 2010, the Court granted in part plaintiffs' motion for class certification. Following a favorable Supreme Court ruling for AT&T Mobility in its case against Concepcion, defendants have filed Motions to Compel Arbitration and to Decertify the Class. On December 1, 2011, the Court granted defendants' motion to dismiss the complaint and decertify the class, then it closed the case finding that plaintiffs would have to pursue any claim in an arbitration proceeding. APPLE INC: iPod & iTunes Antitrust Suits Remain Pending in Calif. ----------------------------------------------------------------- The related cases captioned The Apple iPod iTunes Antitrust Litigation (formerly Charoensak v. Apple Computer, Inc. and Tucker v. Apple Computer, Inc.); and Somers v. Apple Inc. have been filed on January 3, 2005, July 21, 2006, and December 31, 2007, in the United States District Court for the Northern District of California on behalf of a purported class of direct and indirect purchasers of iPods and iTunes Store content, alleging various claims including alleged unlawful tying of music and video purchased on the iTunes Store with the purchase of iPods and unlawful acquisition or maintenance of monopoly market power and unlawful acquisition or maintenance of monopoly market power under Sections 1 and 2 of the Sherman Act, the Cartwright Act, Section 17200 of the California Business & Professions Code (unfair competition), the California Consumer Legal Remedies Act and California monopolization law. Plaintiffs are seeking unspecified compensatory and punitive damages for the class, treble damages, injunctive relief, disgorgement of revenues and/or profits and attorneys fees. Plaintiffs are also seeking DRM free versions of any songs downloaded from iTunes or an order requiring the Company to license its DRM to all competing music players. The cases are currently pending. No further updates were reported in the Company's January 25, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. BJ'S WHOLESALE: Recalls 41,000 LED Flashlight and Battery Sets -------------------------------------------------------------- About 41,000 LED Flashlight and Battery Sets were voluntarily recalled by BJ's Wholesale Club Inc., of Westborough, Massachusetts, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The flashlights can heat up, smoke or melt when turned on, posing fire and burn hazards. BJ's has received two reports of incidents with the flashlights, including one unit overheating and one unit burning and making a loud noise. One minor injury to a consumer's hand has been reported. The recall involves Superex SAFETO GO LED flashlight and battery sets. The flashlight sets include one 9.5-inch flashlight with 10 LEDs, two 7.5-inch flashlights with seven LEDs and two 6-inch flashlights with five LEDs. The sets also include seven "D" size batteries and four "AA" size batteries. The flashlights in the sets are made of either red or black plastic with black or gray rubber around the handles and light bases. The words "Superex," "SAFETO GO Family Pack," and "Bright White LED Flashlights" appear on the front of the packaging. The UPC 0-56986-01008-3 is printed on the back of the packaging along with the SKU number 700935. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12714.html The recalled products were manufactured in China and sold at BJ's Wholesale Clubs from July 2011 through December 2011 for about $15. Consumers should immediately stop using all of the flashlights and return them to any BJ's Wholesale Club for a full refund. Consumers should properly dispose of the batteries before returning the flashlights to the store. For additional information, contact BJ's at 800-BJS-CLUB between 9:00 a.m. and 7:00 p.m. Eastern Time Monday through Friday or between 9:00 a.m. and 6:00 p.m. Eastern Time Saturday and Sunday, or visit the company's Web site at http://www.bjs.com/contact/. BJ's is contacting its customers directly. COLLECTIVE BRANDS: Sued in Kansas for Misleading Shareholders ------------------------------------------------------------- Courthouse News Service reports that Collective Brands, holding company for Payless ShoeSource, inflated its share price with false and misleading financial statements, and the price sank by 17% in a day when the truth came out, shareholders claim in a federal class action. A copy of the Complaint in Local 191 I.B.E.W. Joint Trust Funds v. Collective Brands, Inc., Case No. 12-cv-02046 (D. Kan.), is available at: http://www.courthousenews.com/2012/01/26/Payless.pdf The Plaintiff is represented by: Rachel E. Schwartz, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7125 E-mail: schwartz@stuevesiegel.com - and - Darren J. Robbins, Esq. David C. Walton, Esq. Catherine J. Kowalewski, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: darrenr@rgrdlaw.com davew@rgrdlaw.com katek@rgrdlaw.com COLUMBIA PARCAR: Recalls 1,400 Golf, Service, Utility Vehicles -------------------------------------------------------------- About 1,400 golf, service and utility vehicles were voluntarily recalled by Columbia ParCar Corporation, of Reedsburg, Wisconsin, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The lower steering yoke can loosen where it attaches to the steering rack and pinion, causing the driver to lose control of the vehicle and crash. No injuries have been reported. The recalled items are 2009, 2010 and 2011 Columbia ParCar golf carts, low-speed service and utility vehicles. They are 36- or 48-volt electric vehicles manufactured from July 1, 2008, through June 30, 2011. Vehicles can be identified by their Vehicle Identification Numbers (VINs) located either on the passenger's side left kick panel, in the driver's side storage compartment or on the steering wheel beneath the center cap. The following Columbia vehicles are being recalled: Eagle (P4E) Golf Vehicle: ------------------------- 2008 Models VIN Range: P4*** - **G0231 through G0562 2009 Models VIN Range: P4*** - **H0112 through H0302 2010 Models VIN Range: P4*** - **I0101 through I0105 2010 Models VIN Range: P4*** - **J0115 through J0420 2011 Models VIN Range: P4*** - **K0101 through K0343 Shuttle (C6E) Personnel Carrier: -------------------------------- 2008 Models VIN Range: TC6** - **G0143 through G0212 2009 Models VIN Range: TC6** - **H0102 through H0129 2010 Models VIN Range: TC6** - **I0101 through I0106 2010 Models VIN Range: TC6** - **J0107 through J0135 2011 Models VIN Range: TC6** - **K0101 through K0106 Tram (C10E) Personnel Carrier: ------------------------------ 2008 Models VIN Range: TC1E4 - *WG0142 through WG0206 2009 Models VIN Range: TC1E4 - *WH0101 through WH0132 2010 Models VIN Range: TC1E4 - *WJ0108 through WJ00112 2011 Models VIN Range: N/A Summit (SM/SUV) Utility Vehicle: -------------------------------- 2010 Models VIN Range: SU*F4 - 4*J0109 through J0116 2011 Models VIN Range: S**F4 - 4*K0101 through K0106 Utilitruck (EU4, EU24) Utility Vehicle: --------------------------------------- 2008 Models VIN Range: U#*** - **G0156 through G0253 2009 Models VIN Range: U#*** - **H0102 through H0175 2010 Models VIN Range: U#*** - **I0102 through I0102 2010 Models VIN Range: U#*** - **J0106 through J0154 2011 Models VIN Range: U#*** - **K0101 through K0124 (Note: # after U represents either a 2 or a 4.) Scout (S10E) Utility Vehicle: ----------------------------- 2008 Models VIN Range: US1E* - *ZG0157 through ZG0241 2009 Models VIN Range: US1E* - *ZH0117 through ZH0178 2010 Models VIN Range: US1E* - *ZI0101 through ZI0103 2010 Models VIN Range: US1E* - *ZJ0104 through ZJ0147 2011 Models VIN Range: US1E* - *ZK0102 through ZK0126 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12715.html The recalled products were manufactured in the United States of America and sold by ParCar dealers from July 1, 2008, to July 31, 2011, for between $5,000 and $12,000. Consumers should contact a local ParCar dealer for a free inspection and repair as required. For additional information, contact Columbia ParCar Corp. at (800) 222-4653 between 8:00 a.m. and 4:30 p.m. Central Time Monday through Friday or visit the firm's Web site at http://www.parcar.com/ COMMONWEALTH LIMOUSINE: Faces Wage and Hour Class Suit in Mass. --------------------------------------------------------------- Jaime Botero, on behalf of himself and all others similarly situated v. Commonwealth Limousine Service, Inc. d/b/a Commonwealth Worldwide Transportation and Dawson A. Rutter, Jr., as President of Commonwealth Limousine Service, Inc. and Individually, Case No. SUCV2012-00186 (Mass. Super. Ct., January 17, 2012) is a wage and hour class action in which the Plaintiff seeks an award of damages, injunctive relief, and attorneys' fees and costs arising out of the Defendants' violations of the Massachusetts Wage Act. The Plaintiff alleges that Commonwealth failed to pay the Plaintiff and other similarly situated chauffeurs for all the hours they worked. He asserts that Commonwealth required the chauffeurs to work a particular shift, yet only paid them for the time that they were actually transporting customers of Commonwealth or waiting on duty with customers of Commonwealth at their designated locations. Despite this fact, he adds, Commonwealth deducted 30 minutes from the chauffeurs' work time for lunch, even though the chauffeurs were not allowed to eat lunch when they were with customers. Mr. Botero is a resident of Cambridge, Massachusetts. Commonwealth is a Massachusetts corporation. Mr. Rutter is the president and treasurer of Commonwealth. The Plaintiff is represented by: Philip J. Gordon Kristen M. Hurley GORDON LAW GROUP LLP 585 Boylston Street Boston, Massachusetts 02116 Telephone: (617) 536-1800 E-mail: pgordon@gordonllp.com khurley@gordonllp.com EXOBOX TECHNOLOGIES: Investors Can Amend Fraud Class Action ---------------------------------------------------------- Bonnie Barron at Courthouse News Service reports that a group of investors can amend their class-action claims against the Texas attorney who allegedly defrauded them with a sham corporation, a federal judge ruled. Seventeen investors across the United States filed a class action for fraud against Exobox Technologies in Harris County, Texas. The 2010 complaint also named 18 alleged co-conspirators as defendants. "Exobox was created and operated by defendants as a sham corporation designed to provide benefit to the attorneys, officers, directors and brokers that participated in and orchestrated the reverse merger and 'operations' of the corporation," according to the complaint. "Defendants also controlled the float of Exobox stock in the marketplace, failed to make proper disclosures to the class, and engaged in insider transactions, among other things, all designed to provide financial benefit to defendants to the detriment of Exobox and the class members." With the case now underway in the Southern District of Texas, Exobox remains as a defendant alongside just seven individuals: attorney Robert Sonfield; Donald Bradley; Jeffrey Bradley; attorney Jason Landess; Marc Lane; Roger Brewer; and Alexanderia Blankenship. On Jan. 23, U.S. District Judge Keith Ellison dismissed the investors' state-law claims for fraud, misrepresentation and conspiracy. In addition to tossing claims of aiding and abetting, Ellison also dismissed the claim that Mr. Landess violated federal securities law. Mr. Sonfield must still face claims that he lied in public filings with the Securities and Exchange Commission and that he misrepresented Exobox tradability in an opinion letter to Pink Sheets. The investors can file an amended complaint, but Ellison limited their focus to bolstering claims about Mr. Sonfield's tradability letter and his alleged misstatements in Exobox's public filings. Judge Ellison said the allegations must conform with the Supreme Court's 2011 ruling in Janus Capital Group v. First Derivative Traders, which "held that 'the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.'" A 2008 SEC complaint that characterizes the Exobox scheme as a $3.91 million fraud also remains pending in the Southern District of Texas. So far, U.S. District Judge Lynn Hughes has only issued final judgment in the SEC action against Donald Bradley, and his son, Jeffrey Bradley, holding them jointly and severally liable for the disgorgement of $204,000 plus prejudgment interest. Noting evidence of the Bradleys' finances, however, Judge Hughes waived payment. The orders enjoin the Bradleys from violating Section 5 of the Securities Act of 1933 and permanently bar them from participating in stock offers with a share price under $5. A copy of the Memorandum and Order in Kerr, et al. v. Exobox Technologies Corporation, et al., Case No. 10-cv-04221 (S.D. Tex.), is available at: http://www.courthousenews.com/2012/01/26/Exobox%20Order.pdf KYMCO USA: Recalls 1,876 Utility Vehicles Due to Fire Hazard ------------------------------------------------------------ About 1,876 utility vehicles were voluntarily recalled by KYMCO USA, of Spartanburg, South Carolina, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. An exposed portion of the exhaust system can allow debris such as leaves, brush or other flammable materials to enter the opening and ignite, posing a fire hazard. KYMCO USA has received three reports of vehicles catching on fire and being damaged. No reports of injuries have been received. The recall involves 2009 through 2012 KYMCO utility task vehicles (UTVs). The vehicles are gasoline-powered, off-road vehicles with two side-by-side seats, a cargo bed and a steering wheel. The vehicles come in red, blue, black, gray, orange, silver and green and have the model and brand name "KYMCO" on both sides of the rear fender area and the front of the hood. The following UTVs are being recalled: Vehicle Identification Models Model Year Number (VIN) Range ------ ---------- ---------------------- UXV 500 2009 RFBUS37A UXV 500 LE 2010 09B100101 UXV 500 SE 2011 through 2012 9CB490364 UXV 500i RFBUS33A UXV 500i LE 2012 4CB100101 UXV 500i SE through 8CB230205 The VIN is located on the frame behind the right front wheel. The tenth alphanumeric character of the VIN is the model year of the vehicle (i.e. 9 = 2009, A = 2010, B = 2011, C = 2012). Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12713.html The recalled products were manufactured in Taiwan and sold by KYMCO dealers nationwide from June 2008 to October 2011 for between $7,600 and $10,100. Consumers should stop using these vehicles and return them to a KYMCO dealer for the free installation of a repair kit. For more information, contact KYMCO USA at (888) 235-3417 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, by e-mail at info@kymcousa.com, or visit the firm's Web site at http://www.kymcousa.com/ NOVARTIS AG: Awaits Okay of Settlement in Wage and Hour Suit ------------------------------------------------------------ Novartis AG is awaiting court approval of a settlement resolving a consolidated wage and hour class action lawsuit filed against its subsidiary, according to the Company's January 25, 2012, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. Certain pharmaceutical sales representatives filed a lawsuit in a state court in California and in the US District Court for the SDNY against the Company's U.S. affiliate, Novartis Pharmaceuticals Corporation (NPC) alleging that NPC violated wage and hour laws by misclassifying the pharmaceutical sales representatives as "exempt" employees, and by failing to pay overtime compensation. These actions are part of a number of lawsuits pending against pharmaceutical companies that challenge the industry's long-term practice of treating pharmaceutical sales representatives as salaried employees. After the California state court action had been removed to the US District Court for the Central District of California, these collective and class action lawsuits were consolidated in the US District Court for the SDNY for coordinated pre-trial proceedings. A class was certified. In January 2009, after the case had been bifurcated into a liability and a damages phase, the US District Court for the SDNY granted NPC's summary judgment motion holding that NPC's pharmaceutical sales representatives were not entitled to overtime pay under the federal Fair Labor Standards Act and corresponding state wage and hour laws. Plaintiffs appealed that judgment to the US Court of Appeals for the Second Circuit (Second Circuit). Amicus briefs supporting plaintiffs' position were filed by the National Employment Lawyers Association and by the US Department of Labor, and the US Chamber of Commerce filed a brief in support of NPC. On July 6, 2010, the Second Circuit vacated the judgment of the lower court. On October 4, 2010, NPC filed its petition for a writ of certiorari with the US Supreme Court. Amicus briefs in support of NPC's certiorari petition were filed on November 5, 2010, by the US Chamber of Commerce and Pharmaceutical Research and Manufacturers of America (PhRMA). On February 28, 2011, NPC was informed that the US Supreme Court decided not to take this case. The case has been remanded to the US District Court for the SDNY for pre-trial proceedings relating to damages. NPC has agreed with the plaintiffs to end the ongoing proceedings and provide a payment of up to $99 million for eligible class members. This settlement resolves the wage and hour claims brought in 2006, as well as additional wage and hour claims covering a more recent time period. The agreement is subject to certain conditions, including final court approval. NOVARTIS AG: Dismissal of Texas Suits Finalized in March 2011 ------------------------------------------------------------- Dismissal of shareholder lawsuits arising from Novartis AG's acquisition of Alcon Inc. became final in March 2011, according to the Company's January 25, 2012, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. Beginning on January 7, 2010, shareholder class action complaints relating to the Alcon Inc. acquisition transactions announced on January 4, 2010, were filed against Novartis AG and others by minority shareholders of Alcon, Inc. These actions were filed in the US Federal District Courts for the SDNY, Eastern District of New York (EDNY) and the Northern District of Texas (NDTX) and in several Texas state courts. The case in the EDNY was voluntarily dismissed without prejudice by the plaintiffs on March 18, 2010. The case in the NDTX was transferred to the SDNY and formally consolidated with the actions pending there on June 25, 2010. In the SDNY, Novartis AG's motion to dismiss all cases pending there based on the doctrine of forum non conveniens (FNC) was granted on May 24, 2010, and the case was formally dismissed on July 2, 2010. On July 14, 2010, plaintiffs appealed this decision to the Second Circuit. On January 5, 2011, plaintiffs moved to dismiss this appeal. On January 6, 2011, the Second Circuit granted plaintiffs' motion and dismissed this appeal. The actions pending in Texas state courts were consolidated for pre-trial proceedings in a Multi District Litigation on April 16, 2010. Novartis AG's motion to dismiss the consolidated Texas state court actions based on FNC was filed on June 30, 2010. On November 17, 2010, Novartis AG's motion was granted and all Texas state court class actions were dismissed. On December 17, 2010, plaintiffs appealed this decision to the Texas Fifth District Court of Appeals. On March 21, 2011, upon a motion made by plaintiffs, the Texas Fifth District Court of Appeals dismissed the appeal. The dismissals of both the federal and Texas state class actions based on FNC are final after plaintiffs dismissed their appeals. The case, therefore, is concluded. REALOGY CORP: In Discussions to Settle "Cooper" Litigation ---------------------------------------------------------- Realogy Corporation is currently engaged in mediated settlement discussions to avoid further expense in the litigation against Cendant Corporation, according to the Company's January 25, 2012, Form 8-K filing with the U.S. Securities and Exchange Commission. Realogy Corp. was incorporated on January 27, 2006, to facilitate a plan by Cendant to separate Cendant into four independent companies -- real estate services (Realogy), travel distribution services (Travelport), hospitality services (Wyndham Worldwide) and vehicle rental businesses (Avis Budget Group). In 2002, Frank K. Cooper Real Estate #1, Inc. filed a putative class action against Cendant Corporation ("Cendant") and Cendant's subsidiary, Century 21 Real Estate Corporation ("Century 21"). The complaint alleges breach of certain provisions of the Real Estate Franchise Agreement entered into between Century 21 and the plaintiffs, breach of the implied duty of good faith and fair dealing, violation of the New Jersey Consumer Fraud Act and breach of certain express and implied fiduciary duties. The complaint alleges, among other things, that Cendant diverted money and resources from Century 21 franchisees and allotted them to NRT owned brokerages and otherwise improperly charged expenses to advertising funds. The New Jersey Consumer Fraud Act, if applicable, provides for treble damages, attorney's fees and costs as remedies for violation of the Act. On August 17, 2010, the court granted plaintiffs' renewed motion to certify a class. The certified class includes Century 21 franchisees at any time between August 1, 1995, and April 17, 2002, whose franchise agreements contain New Jersey choice of law and venue provisions and who have not executed releases releasing the claim (unless the release was a provision of a franchise renewal agreement). A case management order entered on November 29, 2010, established, among other things, a trial date of April 16, 2012. All expert reports have been produced and expert depositions have commenced. Realogy currently is engaged in significant mediated settlement discussions to avoid further litigation expense. The structure of the proposal under discussion involves both monetary and non- monetary consideration and would involve contributions from insurance carriers. Realogy has reserved funding that would be required beyond carrier contributions and that amount is reflected in preliminary full year 2011 financial results set forth in the Form 10-K filing. If a memorandum of understanding is reached in recent discussions, the Company expects the court to stay further proceedings during the approval process. There can be no assurance, however, that these settlement discussions will reach a successful conclusion or that such a settlement, if reached, would receive all necessary approvals. This class action involves substantial, complex litigation. Class action litigation is inherently unpredictable and subject to significant uncertainties. The resolution of this litigation could result in substantial losses and there can be no assurance that such resolution will not have a material adverse effect on the Company's results of operations, financial condition or liquidity. STATE OF OREGON: Faces Class Action Over "Sheltered Workshops" -------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Oregon is unnecessarily, and illegally, segregating "thousands" of people with developmental disabilities in "sheltered workshops," and denying them "virtually all contact with nondisabled persons," in the state's employment service system. Lead plaintiff Paula Lane claims: "Thousands of other similarly situated individuals in the State of Oregon also are unnecessarily segregated because of DHS's [the Department of Human Services] over-reliance on sheltered workshops, and its failure to timely develop and adequately fund integrated employment services, including supported employment programs. "A sheltered workshop is a segregated employment setting that employs people with disabilities or where people with disabilities work separately from others. Sheltered workshops are usually located in a large, institutional facility. Workers with disabilities in these settings have virtually no contact with their non-disabled peers, other than agency staff, and are typically paid sub-minimum wage. "By contrast, integrated employment is a real job in a community- based business setting, where employees have an opportunity to work alongside non-disabled co-workers and earn at least minimum wage. Supported employment services are vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment. "The named plaintiffs and the class they seek to represent are harmed by their placement in segregated sheltered workshops. Without meaningful supported employment services, the named plaintiffs and the plaintiff class are stuck in long-term, dead- end, facility based sheltered workshops that offer virtually no interaction with non-disabled peers, that do not provide any real pathway to integrated employment, and that provide compensation that is well below minimum wage. "The needless segregation of the named plaintiffs and the plaintiff class is a violation of their rights under federal law. The defendants are violating the Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq. (ADA) and the Rehabilitation Act, 29 U.S.C. Sec. 794 (Sec. 504), by unnecessarily segregating the named plaintiffs and members of the plaintiff class in sheltered workshops. "Through this action, the named plaintiffs and the plaintiff class seek injunctive and declaratory relief for the defendants' ongoing violation of the ADA and the Rehabilitation Act. They seek an order from this Court directing the defendants to end their needless segregation in sheltered workshops and to provide them with supported employment services so they can participate in competitive employment in integrated settings." The eight named individuals are joined as plaintiffs by the United Cerebral Palsy Association of Oregon and Southwest Washington. Their lead counsel is Kathleen Wilde with Disability Rights Oregon. A copy of the Complaint in Lane, et al. v. Kitzhaber, et al., Case No. 12-cv-00138 (D. Or.), is available at: http://www.courthousenews.com/2012/01/26/Oregon.pdf The Plaintiffs are represented by: Kathleen L. Wilde, Esq. James A. Wrigley, Esq. Theodore E. Wenk, Esq. DISABILITY RIGHTS OREGON 620 S.W. Fifth Avenue, Suite 500 Portland, OR 97204 Telephone: (503) 243-2081 E-mail: kwilde@disabilityrightsoregon.org jwrigley@disabilityrightsoregon.org ted@disabilityrightsoregon.org - and - Bruce A. Rubin, Esq. Justin C. Sawyer, Esq. Jennifer J. Roof, Esq. MILLER NASH LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, OR 97204 Telephone: (503) 224-5858 E-mail: bruce.rubin@millernash.com justin.sawyer@millernash.com jennifer.roof@millernash.com - and - Stephen F. English, Esq. Lawrence H. Reichman, Esq. Nathan R. Christensen, Esq. PERKINS COIE LLP 1120 N.W. Couch Street, Tenth Floor Portland, OR 97209 Telephone: (503) 727-2000 E-mail: senglish@perkinscoie.com lreichman@perkinscoie.com nchristensen@perkinscoie.com - and - Steven J. Schwartz, Esq. Cathy E. Costanzo, Esq. Bettina Toner, Esq. CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 Telephone: (413)586-6024 E-mail: sschwartz@cpr-ma.org ccostanzo@cpr-ma.org btoner@cpr-ma.org TIME WARNER: Sued for Failing to Deliver Promised Cable Services ---------------------------------------------------------------- Courthouse News Service reports that a class action claims Time Warner Cable stopped delivering Knicks, Rangers, Islanders and N.J. Devils games on its MSG and MSG+ networks in December, in Bergen County Court. A copy of the Complaint in Hoffman v. Time Warner Cable Inc., Case No. BER-L-665-12 (N.J. Super. Ct., Bergen Cty.), is available at: http://www.courthousenews.com/2012/01/26/Cable.pdf The Plaintiff is represented by: Philip C. Chronakis, Esq. CHRONAKIS SIACHOS, LLC 50 Harrison Street, Suite 315 Hoboken, NJ 07030 Telephone: (201) 792-7777 E-mail: phil@cslawllc.com - and - Harold M. Hoffman, Esq. 240 Grand Avenue Englewood, NJ 07631 Telephone: (201) 569-0086 E-mail: hoffman.esq@verizon.net TRIBOROUGH BRIDGE: Judge Narrows Scope of Toll Class Action ----------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that a federal judge narrowed the scope of a class action against the Triborough Bridge and Tunnel Authority for selective discounts on New York City tolls for E-ZPass drivers. The class was previously so broad that it included dead people, the judge found. Four plaintiffs, led by Riva Janes, claimed the policy unconstitutionally withheld discounts from certain drivers, in violation of the Commerce Clause of the Constitution. They moved for class certification on Sept. 2, 2010, to include New York, New Jersey, Connecticut and Pennsylvania residents who paid regular rates while crossing the Verrazano-Narrows Bridge, the Cross Bay Veterans Memorial Bridge or the Marine Parkway Gil Hodges Memorial Bridge. U.S. District Judge Barbara Jones granted certification on Oct. 5, 2011. Days later, the case was reassigned to her colleague, Judge Paul Engelmayer, who agreed to revisit the ruling. In an 11-page order, Mr. Engelmayer said the terms of the previous class certification were so broad they included dead and unlicensed drivers. "(D)efendants argue, persons who are deceased, or who no longer have driver's licenses, lack a personal stake in forward-looking relief," the order summarized. "The Court agrees." The previous class also included drivers who had not crossed the bridges in question for years. "(D)efendants argue, persons who have not driven over any one of the three bridges during the two years prior to the Court's October 5, 2011 certification order lack standing to seek injunctive or declarative relief. The Court agrees," the order states. "Although an out-of-state resident who crossed one of the bridges years ago conceivably may do so again, where the resident has not done so in the past two years, it is not persuasive to classify such a person among those 'realistically threatened' with injury from the differential toll policy." Mr. Engelmayer revised the definition to encompass "all users of E-ZPass who, while residing in New York, Pennsylvania, New Jersey, or Connecticut, and who, since January 17, 2000, paid tolls at the Verrazano-Narrows Bridge, the Cross Bay Veterans Memorial Bridge, or the Marine Parkway Gil Hodges Memorial Bridge without the benefit of the resident discount that has been made available by defendants for residents of specific locations in New York State. Excluded from the class are: (1) current residents of Staten Island, the Rockaway Peninsula, and Broad Channel; (2) persons who no longer have a driver's license or who are no longer living; and (3) persons who have not crossed any of the bridges at issue within the two years preceding October 5, 2011. Also excluded from the class are defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees, or assignees." A copy of the Opinion & Order in Janes, et al. v. Triborough Bridge and Tunnel Authority, Case No. 06-cv-01427 (S.D.N.Y.), is available at: http://www.courthousenews.com/2012/01/26/EZPass.pdf UNITED RENTALS: Faces RSC Acquisition-Related Suit in Arizona ------------------------------------------------------------- United Rentals, Inc. is facing a class action lawsuit in Arizona arising from its proposed acquisition of RSC Holdings, Inc., according to the Company's January 25, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On December 15, 2011, the Company entered into a definitive merger agreement with RSC Holdings, Inc. ("RSC"), pursuant to which the Company has agreed to acquire RSC in a cash-and-stock transaction that ascribes a total enterprise value of $4.2 billion to RSC. RSC is one of the largest providers of rental equipment in North America, focusing on industrial, maintenance and non-residential construction markets, with approximately $2.7 billion of equipment at original cost as of September 30, 2011. On December 28, 2011, a complaint was filed in Arizona Superior Court, entitled Israni v. RSC Holdings Inc., CV2011-020579, on behalf of a putative class of RSC's stockholders against RSC, each member of the RSC board, certain of RSC's officers, and the Company challenging the Company's proposed merger with RSC. The complaint alleges, among other things, that the directors and officers of RSC breached their fiduciary duties by allegedly agreeing to sell RSC at an unfair and inadequate price and by allegedly failing to take steps to maximize the sale price of RSC. The complaint also alleges that RSC and the Company aided and abetted in RSC's directors' and officers' breach of their fiduciary duties. The complaint seeks injunctive relief and other equitable relief as well as money damages. The Company believes that this lawsuit lacks merit and intends to vigorously defend against these claims. ********* 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 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 * * *