/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120201.mbx C L A S S A C T I O N R E P O R T E R Wednesday, February 1, 2012, Vol. 14, No. 22 Headlines BANK OF THE WEST: Faces Suit in California Over Overdraft Fees CARNIVAL CORP: Cruise Ship Crew Member Files Class Action DISCOVER FINANCIAL: Awaits Final Approval of MDL Settlement DISCOVER FINANCIAL: Defends "Bradley" Class Suit in California FAMILY DOLLAR: Store Managers Mull Appeal of Class Action Ruling FIDELITY MANAGEMENT: April 27 Proof of Claim Deadline Set HILL-ROM HOLDINGS: Batesville Casket Suit Appeal Remains Pending IG INVESTMENT: Ont. Court of Appeal Confirms Class Certification MCGRAW-HILL: Faces Class Action Over Third-Party Sale Royalties NETFLIX INC: Pomerantz Haudek Files Class Action in California NEUTROGENA: Sued for Falsely Advertising Cleansers as "Natural" SHAPIRO & BURSON: Court Tosses "Robo-Signing" Class Action ST. JOSEPH'S HOSPITAL: Nears Class Action Settlement VALLEY HEALTH: Sued for Illegally Reducing Pension Benefits WACHOVIA CORP: Class Action Settlement Gets Preliminary Approval WALTER ENERGY: Robbins Geller Files Class Action in Alabama ZYNGA INC: Accused of Not Paying Overtime Fees in California ********* BANK OF THE WEST: Faces Suit in California Over Overdraft Fees -------------------------------------------------------------- John Fulkerson, individually and on behalf of all others similarly situated v. Bank of the West, Case No. 3:12-cv-00428 (N.D. Calif., January 26, 2012) seeks monetary damages, restitution, and declaratory relief from the Bank arising from its alleged unfair and unconscionable assessment and collection of excessive overdraft fees in violation of California common law and the Electronic Fund Transfer Act. During the proposed class period, the Bank improperly charged overdraft fees to customer accounts when a customer did not overdraw his checking account and when the Bank did not have to pay out more funds than were in the customer's checking account, Mr. Fulkerson alleges. He contends that the Bank also improperly reordered electronic debit transactions from the highest to lowest dollar amount and processed debits before credits to deplete the customer's available funds as quickly as possible while maximizing the amount of overdraft fees collected. He adds that the Bank did not adequately inform its customers that they had the option to "opt-out" of the Bank's overdraft services, and failed to obtain customers' affirmative consent to participate in the Bank's overdraft program. Mr. Fulkerson is a resident of Dominguez Hills, California, during the Class Period and, as of July 2011, currently resides in Bodfish, California. He has a checking account, loan account and savings account in the Bank. The Bank is a California corporation and a wholly-owned subsidiary of BancWest Corporation. The Bank is a full-service commercial bank with over $57 billion in total assets and $39.5 billion in deposits as of December 31, 2010. The Bank operates more than 700 ATMs and banking branch offices in 19 states. The Plaintiff is represented by: Stuart C. Talley, Esq. Ian J. Barlow, Esq. KERSHAW, CUTTER & RATINOFF, LLP 401 Watt Avenue Sacramento, CA 95864 Telephone: (916) 448-9800 Facsimile: (916) 669-4499 E-mail: stalley@kcrlegal.com ibarlow@kcrlegal.com - and - Stephen J. Fearon, Jr., Esq. Olga Anna Pettigrew, Esq. Joseph Goljan, Esq. SQUITIERI & FEARON, LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 421-6492 Facsimile: (212) 421-6553 E-mail: Stephen@sfclasslaw.com olga@sfclasslaw.com jgoljan@sfclasslaw.com CARNIVAL CORP: Cruise Ship Crew Member Files Class Action --------------------------------------------------------- Sakthi Prasad, writing for Reuters, reports that Carnival Corp., whose luxury cruise liner Costa Concordia capsized off the coast of Italy, was sued by a crew member in a first of what may be multiple U.S. lawsuits seeking class-action status over the disaster, court documents show. Lawyers for Gary Lobaton, who was a crew member on board the Costa Concordia, said in a court filing that he was not aware of the "dangerous conditions" of the cruise ship until it was too late to abandon the ship. The lawsuit sought to determine whether Carnival deviated from international safety standards when operating the cruise ship. "Costa Concordia's Captain, Francesco Schettino, delayed the order to abandon ship and deploy the lifeboats," Mr. Lobaton's lawyers said in the filing. Mr. Lobaton, who sued Carnival individually and on behalf of all others similarly affected by the cruise disaster, had sought damages from the company, according to the court filing. Mr. Lobaton had also requested the court to assign class-action status to the lawsuit. The 114,500-tonne ship capsized off the Tuscan coast, which left 11 people dead and 22 missing. According to a January 24 BBC report, the number of dead has risen to 16. Carnival could not immediately be reached for comment by Reuters outside regular U.S. business hours. The case is Gary Lobaton vs Carnival Corp, Case No. 1:12-cv-00598, U.S. District Court, Northern District of Illinois, Eastern Division. DISCOVER FINANCIAL: Awaits Final Approval of MDL Settlement ----------------------------------------------------------- Discover Financial Services is awaiting final approval of a settlement of a multidistrict litigation arising from the sale of its payment protection fee product, according to the Company's January 26, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended November 30, 2011. There are eight class action cases pending in relation to the sale of the Company's payment protection fee product. The cases were filed (all in United States District Courts) on: July 8, 2010, in the Northern District of California (Walker, et al. v. DFS, Inc. and Discover Bank; subsequently transferred to the Northern District of Illinois); July 16, 2010, in the Central District of California (Conroy v. Discover Financial Services and Discover Bank); October 22, 2010, in the District of South Carolina (Alexander v. Discover Financial Services, Inc.; DFS Services LLC; Discover Bank; and Morgan Stanley); November 5, 2010, in the Northern District of Illinois (Callahan v. Discover Financial Services, Inc. and Discover Bank); December 17, 2010, in the Western District of Tennessee (Sack v. DFS Services LLC; Discover Financial Services, Inc.; and Discover Bank); January 14, 2011, in the Eastern District of Pennsylvania (Boyce v. DFS Services LLC; Discover Financial Services Inc.; Discover Bank); February 15, 2011, in the Southern District of Florida (Triplett v. Discover Financial Services, Inc., DFS Financial Services LLC, Discover Bank and Morgan Stanley); and March 7, 2011, in the Eastern District of Pennsylvania (Carter v. Discover Financial Services, Inc., DFS Financial Services LLC, Discover Bank, Morgan Stanley et al.). All of the cases have been transferred to the U.S. District Court for the Northern District of Illinois pursuant to a multi-district litigation order issued by the Joint Panel on Multidistrict Litigation in February 2011. These class actions challenge the Company's marketing practices with respect to its payment protection fee product to cardmembers under various state laws and the Truth in Lending Act. The plaintiffs seek monetary remedies including unspecified damages and restitution, attorneys' fees and costs, and various forms of injunctive relief including an order rescinding the payment protection fee product enrollments of all class members. In June 2011, the Company and class counsel entered into a preliminary global settlement of all of the pending class actions. On November 9, 2011, the court granted preliminary approval of the settlement. The settlement encompasses Discover Bank's sale and administration of Discover Payment Protection, Identity Theft Protection, Wallet Protection and Credit Score Tracker. The settlement remains subject to final approval by the court following completion of notice to the settlement class. DISCOVER FINANCIAL: Defends "Bradley" Class Suit in California -------------------------------------------------------------- Discover Financial Services is defending a class action lawsuit commenced by a cardmember in California, according to the Company's January 26, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended November 30, 2011. On November 30, 2011, a class action lawsuit was filed against the Company by a cardmember in the U.S. District Court for the Northern District of California (Walter Bradley et al. v. Discover Financial Services). The plaintiff alleges that the Company contacted him, and members of the class he seeks to represent, on their cellular telephones without their express consent in violation of the Telephone Consumer Protection Act ("TCPA"). Plaintiff seeks statutory damages for alleged negligent and willful violations of the TCPA, attorneys' fees, costs and injunctive relief. The TCPA provides for statutory damages of $500 for each violation ($1,500 for willful violations). The Company says it is not in a position at this time to assess the likely outcome or its exposure, if any, with respect to this matter, but will seek to vigorously defend against all claims asserted by the plaintiff. FAMILY DOLLAR: Store Managers Mull Appeal of Class Action Ruling ---------------------------------------------------------------- Ely Portillo, writing for The Charlotte Observer, reports that Matthews-based Family Dollar recently won a round in a discrimination lawsuit brought by female store managers, but the plaintiffs are attempting to appeal a judge's recent ruling denying them class-action status. The federal lawsuit was filed in 2008 on behalf of 48 female Family Dollar store managers, who claim they were paid less than male managers performing the same jobs. On Jan. 13, U.S. District Court Judge Max Cogburn denied the managers' motion to grant the lawsuit class-action status, which would have opened the suit to hundreds if not thousands of female store managers. Judge Cogburn, in Charlotte, ruled that the case was substantially similar to a massive employment discrimination case last year against Wal-Mart, in which the plaintiffs sought class-action status for more than 1 million women working for Wal-Mart. In that case, the Supreme Court ruled that their employment situations were too different to combine all of them together as one class. "The plaintiffs in this case will have nothing in common but their gender and their participation in this lawsuit," said John Wester, an attorney with Robinson Bradshaw & Hinson who is representing Family Dollar. He argued that the managers were from different geographic regions, had different ages and work experience, and that they shouldn't be grouped as a class. The case is the first nationwide attempt at a class-action employment discrimination lawsuit ruled on since the Supreme Court's Wal-Mart decision, said Mr. Wester. The court stuck with the Supreme Court's reasoning in ruling on the Family Dollar case. "Here, the complaint alleges that plaintiffs were discriminated against based on their gender as a result of subjective decisions made at the local store level," wrote Judge Cogburn. "This court finds . . . plaintiffs also cannot satisfy the nearly identical commonality showing -- of similarly "situated persons" -- that is required to certify a collective action." The managers could have pursued their claims as separate cases, a far more difficult route. But on Jan. 26, lawyers for the plaintiffs filed a motion seeking permission to appeal Judge Cogburn's decision. They argue that decisions about pay for store managers are made at Family Dollar's corporate level, not at the separate stores, and that the female managers should qualify as a class for a single lawsuit. "There are specific, objective criteria applied "at the corporate level of . . . operations" that have disparate impact on women's salaries as Store Managers," wrote the lawyers. "Women are systematically paid less than their male peers in the same job." The Fourth Circuit Court of Appeals will now decide whether to hear the appeal. FIDELITY MANAGEMENT: April 27 Proof of Claim Deadline Set --------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Jan. 27 announced Notice of Pendency and Certification of Class Action, Proposed Settlement and Settlement Approval/Fairness Hearing against Fidelity Management & Research Company. UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ALAN ZAMETKIN, on Behalf of Himself and ) 1:08-CV-10960-MLW All Others Similarly Situated, ) ) CLASS ACTION ----------------- ) Plaintiff, ) SUMMARY NOTICE vs. ) FIDELITY MANAGEMENT & RESEARCH ) COMPANY, et al., ) ) ) Defendants. TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED FIDELITY ULTRA-SHORT BOND FUND SHARES BETWEEN JUNE 6, 2005 AND JUNE 5, 2008, INCLUSIVE YOU ARE HEREBY NOTIFIED that pursuant to an order of the United States District Court for the District of Massachusetts, a hearing will be held on May 11, 2012, at 3:00 p.m. EDT, before the Honorable Mark L. Wolf, at the John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, for the purpose of determining (1) whether the proposed settlement of the action for the sum of $7,500,000 in cash should be approved by the Court as fair, reasonable, and adequate; (2) whether, thereafter, this action should be dismissed with prejudice against the Defendants as set forth in the Stipulation of Settlement dated June 17, 2011; (3) whether the Plan of Allocation(1) of settlement proceeds is fair, reasonable, and adequate and therefore should be approved; (4) the reasonableness of the application of Lead Counsel for the payment of attorneys' fees and expenses incurred in connection with this action, together with interest thereon; and (5) the reasonableness of the request by Lead Plaintiff for reimbursement of his time and expenses incurred in pursuing the action on behalf of the Class. If you purchased or acquired Fidelity Ultra-Short Bond Fund shares between June 6, 2005 and June 5, 2008, inclusive, your rights may be affected by this action and the settlement thereof. If you have not received a detailed Notice of Pendency and Certification of Class Action, Proposed Settlement and Settlement Approval/Fairness Hearing and a copy of the Proof of Claim and Release, you may obtain copies by writing to Zametkin v. Fidelity Management & Research Company Securities Litigation, Claims Administrator, c/o A.B. Data, Ltd., PO Box 170500, Milwaukee, WI 53217-8042, or by downloading this information at http://www.FidelityBondFundSettlement.comor http://www.rgrdlaw.com If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than April 27, 2012, establishing that you are entitled to a recovery. You will be bound by any judgment rendered in the action unless you send a request to be excluded, in writing, to the above address, postmarked by April 27, 2012. Any objection to any aspect of the settlement must be filed with the Clerk of the Court no later than April 27, 2012, and received by the following no later than April 27, 2012: ROBBINS GELLER RUDMAN & DOWD LLP EVAN J. KAUFMAN 58 South Service Road, Suite 200 Melville, NY 11747 MILBANK, TWEED, HADLEY & MCCLOY LLP SEAN M. MURPHY One Chase Manhattan Plaza New York, NY 10005 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. DATED: JANUARY 27, 2012 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS HILL-ROM HOLDINGS: Batesville Casket Suit Appeal Remains Pending ---------------------------------------------------------------- In 2005, the Funeral Consumers Alliance, Inc. and a number of individual consumer casket purchasers filed a purported class action antitrust lawsuit on behalf of certain consumer purchasers of Batesville(R) caskets against Hill-Rom Holdings, Inc. and its former Batesville Casket Company, Inc. subsidiary (now wholly- owned by Hillenbrand, Inc.), and three national funeral home businesses. The district court has dismissed the claims and denied class certification, but in October 2010, the plaintiffs appealed these decisions to the United States Court of Appeals for the Fifth Circuit. If the plaintiffs were to succeed in reversing the district court's dismissal of the claims, but not the denial of class certification, then the plaintiffs would be able to pursue individual damages claims: the alleged overcharges on the plaintiffs' individual casket purchases, which would be trebled as a matter of law, plus reasonable attorneys' fees and costs. If the plaintiffs were to (1) succeed in reversing the district court's dismissal of the claims, (2) succeed in reversing the district court order denying class certification and certify a class, and (3) prevail at trial, then the damages awarded to the plaintiffs, which would be trebled as a matter of law, could have a significant material adverse effect on the Company's results of operations, financial condition and/or liquidity. The plaintiffs filed a report indicating that they are seeking damages ranging from approximately $947.0 million to approximately $1,460.0 million before trebling on behalf of the purported class of consumers they seek to represent. Hill-Rom and Hillenbrand, Inc. have entered into a judgment sharing agreement that apportions the costs and any potential liabilities associated with this litigation between them. The Company believes that it has committed no wrongdoing as alleged by the plaintiffs and that it has meritorious defenses to class certification and to plaintiffs' underlying allegations and damage theories. No further updates were reported in the Company's January 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. IG INVESTMENT: Ont. Court of Appeal Confirms Class Certification ---------------------------------------------------------------- Julius Melnitzer, writing for Financial Post, reports that the Ontario Court of Appeal has confirmed the certification of a class action against alleged wrongdoing by two fund managers in the mutual fund market timing debacle in 2004. The Court's decision in Fischer v. IG Investment Management Ltd. means that the case against CI Mutual Funds Inc. and AIC Limited can proceed to trial. The other defendants, IG Investment Management Ltd., Franklin Templeton Investments Corp., and AGF Funds Inc. were not involved in the appeal as they had settled their cases. Now, the Court of Appeal decision puts considerable pressure on the appealing defendants to settle to avoid the cost of a lengthy and complex trial. Private class actions and regulatory enforcement proceedings can both be powerful deterrents to unlawful behavior. But the case raised the important question of whether a successful Ontario Securities Commission (OSC) enforcement proceeding should trump the right of investors to sue the regulatory respondents for damages in a civil court. By ruling that the investors did not lose their right to sue in court, the decision goes a long way to consolidating the role of class actions as a meaningful form of protection for investors. It also has repercussions for virtually any class action that follows on a regulatory enforcement proceedings in which damages have been recovered for those who sustained losses. By way of example, the decision may impact on the various overtime class action appeals that are currently pending. Fischer arose in the wake of the market timing scandal, when the OSC commenced proceedings against the five defendant funds for failing to act in the public interest in relation to market timing activity in their funds. The regulatory proceedings ended when the funds agreed to pay $205 million to aggrieved investors. The OSC settlements specified that they were without prejudice to the rights of any person to bring civil or other proceedings against the mutual fund managers with respect to the same subject matter. Dennis Fischer and other representative plaintiffs initiated the class action after the OSC proceedings ended. The plaintiffs sought to recover the difference between the OSC settlement and the hundreds of millions of additional dollars they maintained were required to make full compensation to the investors. But in January 2010, Justice Paul Perell of the Ontario Superior Court of Justice refused to certify the case. Although the case otherwise met the requirements for certification, he reasoned, it was not the "preferable procedure" to resolve the plaintiffs' claims because the OSC proceedings had provided the plaintiffs with access to justice and the settlement had satisfied the goals of deterrence and behavior modification that underpinned Ontario's class action legislation. But the Divisional Court reversed Justice Perell, and the Court of Appeal sided with the Divisional Court, albeit on different reasoning. Benjamin Zarnett, Jessica Kimmel and Melanie Ouanounou of Goodmans represented CI Mutual; James Douglas, David Di Paolo and Heather Pessione of Borden Ladner Gervais represented AIC; and Joel Rochon and Sakie Tambakos of Rochon Genova were co-counsel for the plaintiffs with Davis' Peter Jervis. MCGRAW-HILL: Faces Class Action Over Third-Party Sale Royalties --------------------------------------------------------------- Iulia Filip at Courthouse News Service reports that in a federal class action, an author claims McGraw-Hill "systematically violates its contracts" by self-dealing transactions with its subsidiaries to cheat authors on royalties from foreign sales. Lead plaintiff Bob Cordell claims McGraw-Hill fails to properly report third-party sales of works outside the United States to short writers for royalties due them. Mr. Cordell, who wrote the textbook "Designing Audio Power Amplifiers," says he signed a standard publishing agreement with McGraw-Hill in February 2009, in which the publisher agreed to pay him 10 percent of net receipts for each copy sold to its international book division or to third parties for use outside the United States. Mr. Cordell says McGraw-Hill uses its subsidiaries to avoid paying royalties on the full market price and fails to report sales to final purchasers. The complaint states: "McGraw-Hill systematically violates its contracts with its authors by failing to remit royalties based upon the amounts received from third parties for sales of the works outside of the United States, when these third parties are the ultimate purchasers of works from McGraw-Hill. "Instead of carrying out its contractual obligations in good faith, McGraw-Hill sells works to third parties for use outside of the United States by purporting to first transfer those works to related 'divisions' of McGraw-Hill in self-dealing transactions at below market prices. Although these McGraw-Hill 'divisions' subsequently sell these works to independent third parties at arm's length at the full market price, the publisher credits authors only with royalties on the lesser value of the artificial amount of the purported transaction with its 'division.' "These purported 'sales' of works to its related 'divisions' are in actual fact little more than book-keeping entries -- and not genuine sales -- and McGraw-Hill actually sells the works on to third parties for use outside the United States at arm's length, at the proper market price upon which royalties should be calculated under the agreements. Although McGraw-Hill receives the full monetary benefit of third party sales, it never reports these third-party sales to the authors, or remits the full and correct royalties relating to such third-party sales. "As a result of the foregoing, McGraw-Hill has failed in its contractual obligations to properly report third-party sales of works for use outside the United States, and has further failed to properly compensate its authors for the sales of such works." Mr. Cordell seeks class certification, damages for breach of contract and wants McGraw-Hill ordered to stop its wrongful conduct. He is represented by: Robert Lax, Esq. ROBERT I. LAX & ASSOCIATES 535 Fifth Avenue 21st Floor New York, NY 10017 Telephone: (212) 818-9150 E-mail: rlax@lax-law.com "We received notice of the case [Thurs] day and are reviewing it," McGraw-Hill spokesman Jason Feuchtwanger told Courthouse News on Jan. 26. "We will defend ourselves vigorously." McGraw-Hill employs more than 21,000 people worldwide and has more than 280 offices in 40 countries. It reported $6.2 billion in sales in 2010. NETFLIX INC: Pomerantz Haudek Files Class Action in California -------------------------------------------------------------- Pomerantz Haudek Grossman & Gross LLP has filed a class action lawsuit against Netflix, Inc. and certain of its officers. The class action (CV12-0439), filed in the United States District Court, Northern District of California, is on behalf of a class consisting of all persons or entities who purchased Netflix securities between December 20, 2010 and October 24, 2011, inclusive. This class action is brought under Sections 10(b) and 20(a) of the Securities Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a); and SEC Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R. Section 240.10b-5. The Complaint alleges that throughout the Class Period, the Company issued materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Netflix made false and/or misleading statements and/or failed to disclose that: (1) the Company had short-term contracts with content providers and Netflix was aware that the Company faced a choice to renegotiate the contracts in 2011 at much higher rates or not renew them at all; (2) content providers were already demanding much higher license fees, which would dramatically effect Netflix's business; (3) the Company recognized that its pricing would have to significantly increase to maintain profit margins given the streaming content costs that it would soon incur; and (4) the Company was not on track to achieve the 2011 earnings forecasts. On September 1, 2011, after the market closed, Starz Entertainment, LLC announced that it had "ended contract renewal negotiations with Netflix." On this news, Netflix's shares declined $20.16 or more than 8%, to close at $213.11 on September 2, 2011. On September 15, 2011, Netflix issued a press release announcing an update to its third quarter 2011 guidance. Netflix revealed that it had lost a million subscribers upon its price increases becoming effective. On this news, Netflix's shares declined $53.52 per share or more than 25% in two trading sessions, to close at $155.19 per share on September 16, 2011. On September 18, 2011, Company CEO Reed Hastings announced the separation of its streaming and DVD by mail services whereby the DVD by mail service would be renamed Qwikster and the streaming service would retain the Netflix name. Also, subscribers would be charged separately for the two services. As a result of this news, Netflix's shares dropped $26.69 per share or 17% over three trading sessions, to close at $128.50 per share on September 21, 2011. On October 24, 2011, Netflix issued its financial results for the third quarter ended September 30, 2011 where it disclosed that it had a net loss of 810,000 U.S. subscribers, translating into a cumulative loss of 5.5 million subscribers. As a result of this news, Netflix's shares declined $41.47 per share or nearly 35%, to close at $77.37 per share on October 25, 2011. The Pomerantz Firm -- http://www.pomerantzlaw.com-- is a law firm that specializes in the areas of corporate, securities, and antitrust class litigation. It has offices in New York, Chicago and Washington, D.C. NEUTROGENA: Sued for Falsely Advertising Cleansers as "Natural" --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Neutrogena falsely advertises its cleansers as "natural," though they contain a slew of chemicals and artificial fragrances, including propylene glycol. A copy of the Complaint in Stephenson v. Neutrogena Corporation, Case No. 12-cv-00426 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/01/27/Neutrogena.pdf The Plaintiff is represented by: Mark N. Todzo, Esq. Victoria Hartanto, Esq. LEXINGTON LAW GROUP 503 Divisadero Street San Francisco, CA 94117-2212 Telephone: (415) 913-7800 E-mail: mtodzo@lexlawgroup.com - and - Christopher M. Burke, Esq. SCOTT+SCOTT LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: (619) 233-4565 E-mail: cburke@scott-scott.com - and - Joseph P. Guglielmo, Esq. SCOTT+SCOTT LLP 500 Fifth Avenue, 40th Floor New York, NY 10110 Telephone: (212) 223-6444 E-mail: jguglielmo@scott-scott.com SHAPIRO & BURSON: Court Tosses "Robo-Signing" Class Action ---------------------------------------------------------- Jamie Smith Hopkins, writing for The Baltimore Sun, reports that a class-action lawsuit over alleged foreclosure "robo-signing" was thrown out of federal court in Greenbelt when a judge ruled that the plaintiffs could have raised those complaints during their foreclosure cases. The robo-signing scandal -- when underlings or others forged the names of officials on foreclosure court documentation and later admitted they didn't verify the information -- shook the mortgage industry nationwide as courts put foreclosure actions on hold. The class-action suit was filed after a former paralegal at the defendant Shapiro & Burson, a law firm based in Virginia that has handled many Maryland foreclosure cases in recent years, complained to regulators and prosecutors, alleging that robo- signing there was routine. An attorney for Shapiro & Burson suggested that the ruling could be a blow for other suits seeking damages for alleged foreclosure misconduct. The decision by U.S. District Court Judge J. Frederick Motz said homeowners could have raised the issue during their foreclosure cases and thus are barred from bringing it up in a later suit. "There's been a lot of publicity about robo-signing, and I think that this decision makes clear that these kind of claims can't be brought in a subsequent lawsuit," said Robert A. Scott, a partner at the Ballard Spahr law firm, one of the attorneys representing Shapiro & Burson. "If you have a claim related to something that happened in the foreclosure, you have to bring it in the foreclosure case." An attorney for the plaintiffs, Charles Smalley and Pamela Ball, who each lost a home to foreclosure, declined to comment. But a consumer lawyer who wasn't involved with the suit thinks the ruling isn't a death knell for robo-signing cases. "The dilemma here is the federal courts are seeing a lot more of these lawsuits because homeowners are struggling," said Phillip Robinson, acting executive director of Civil Justice, a Baltimore nonprofit that specializes in foreclosure issues. "But I think case law is really uncertain there." Mr. Robinson, who has several pending lawsuits in state and federal court that touch on robo-signing, pointed to a recent federal appeals court decision that suggests Maryland homeowners aren't barred from suing after a foreclosure if they didn't raise the complaints during their foreclosure case. Homeowners aren't summoned to appear in foreclosure cases in Maryland, and many don't. And if the complaint is over debt collection practices, Robinson said, "it's well settled federal law that those claims will . . . survive a foreclosure case." The law firm of JR Howell & Associates, which represented the plaintiffs, alleged in the April suit that robo-signing at Shapiro & Burson meant the firm's legal fees and other charges were "fraudulently obtained" and improperly passed on to the homeowners. The homeowners argued that allegations of robo-signing at Shapiro & Burson weren't made until after their foreclosures were complete, so they couldn't have raised the issue earlier. But Mr. Motz dismissed that argument in his written decision on Jan. 26, pointing to the so-called "doctrine of claims preclusion" in Maryland law. "The fact that plaintiffs may not have been aware of the existence of their claims during the litigation of the previous action does not render the doctrine of claims preclusion from being applicable 'where the means of obtaining such knowledge existed and the knowledge could have been obtained with ordinary diligence,'" Mr. Motz wrote, citing a 1978 case. And Scott, the attorney representing Shapiro & Burson, said of the homeowners: "There's no dispute . . . that they hadn't paid their mortgages and that the lenders that were foreclosing had the right to foreclose." Allegations of widespread foreclosure robo-signing among mortgage servicers and their law firms in 2010 prompted calls for reform and inquiries. State attorneys general from across the country are pondering whether to agree to a proposed settlement with big banks. A spokesman for Maryland Attorney General Douglas F. Gansler said on Jan. 27 that he has not yet decided whether to participate. ST. JOSEPH'S HOSPITAL: Nears Class Action Settlement ---------------------------------------------------- Parkersburg News and Sentinel reports that a class-action lawsuit by former St. Joseph's Hospital employees against the hospital's former parent company is expected to be settled, according to the plaintiffs' attorneys. George Cosenza and Ginny Conley, representing the plaintiffs in the class action suit, announced on Jan. 28 a settlement has been reached with Signature Hospital Corporation on the issue of the loss of accrued benefits, with a hearing planned in late March to finalize the proposed settlement. Last April, Mr. Cosenza and Ms. Conley filed suit against Signature, the then parent company of St. Joseph's Hospital, alleging Signature, doing business as St. Joseph's Hospital, failed to compensate employees for their accrued sick leave following the hospital's purchase by West Virginia United Health Systems and merger into Camden Clark Medical Center. The plaintiffs allege 613 former employees were short-changed by Signature. Ms. Conley contended the accrued leave ranged from just a few hours to more than 900. She said at least one employee lost 980 hours of banked sick time. In a November filing, the attorneys stated they believe Signature owes their clients in excess of $10.8 million dollars. In 2010, officials with United Health, Camden-Clark, Signature and St. Joseph's announced a deal to merge the two hospitals into one facility. In January 2011, Signature Hospital Corp. announced its intent to sell its other two hospitals and wind down operations by the end of that year. On Jan. 28, Ms. Conley announced Signature has agreed to pay $4.7 million dollars to resolve the class action case involving the loss of sick leave benefits. The sick leave is valued at $3.6 million dollars, Ms. Conley said. The settlement proposal has been filed with Wood County Circuit Court and a hearing will be held March 29 to approve the settlement, Ms. Conley said. "The goal of this litigation from the beginning was to get these hardworking and dedicated hospital employees their sick leave pay that they earned during their years at St. Joseph's. We are thrilled the proposed settlement gets them what they deserve," Conley and Cosenza said in a press release Saturday. Vienna resident Earlene Workman, one of the plaintiffs in the suit, said the employees were happy with the proposed settlement and praised the work done by the attorneys. "I feel it was a fair settlement," Ms. Workman said. "We were reimbursed 100 percent of our sick pay, and that's all we asked for," she said. VALLEY HEALTH: Sued for Illegally Reducing Pension Benefits ----------------------------------------------------------- Courthouse News Service reports that a Superior Court class action claims the Valley Health System illegally reduced pension benefits for 1,614 employees. A copy of the Petition for Writ of Mandate Pursuant to Code of Civil Procedure Sec. 1085 RE: (1) Violation of the California Constitution) in Reichardt v. Valley Health System, et al., Case No. RIC1201152 (Calif. Super. Ct., Riverside Cty.), is available at: http://www.courthousenews.com/2012/01/27/Pensions.pdf The Petitioners are represented by: Gregory G. Petersen, Esq. John Darling, Esq. Alison Gibbs, Esq. HUNT ORTMANN PALFFY NIEVES LUBKA DARLING & MAH, INC. 18301 Von Karman Avenue, Suite 330 Irvine, CA 92612 Telephone: (949) 335-3500 E-mail: petersen@huntortmann.com darling@huntortmann.com gibbs@huntortmann.com WACHOVIA CORP: Class Action Settlement Gets Preliminary Approval ---------------------------------------------------------------- Don Jeffrey, writing for Bloomberg News, reports that a federal judge gave preliminary approval to a $75 million cash settlement of a class-action lawsuit against Wachovia Corp. over mortgage loans. U.S. District Judge Richard Sullivan approved the settlement on behalf of buyers of Wachovia stock from May 2006 to September 2008, according to a filing on Jan. 27 in Manhattan. A hearing on the settlement is scheduled for June 1. The plaintiffs, which include the pension funds of New York City public employees, sued in 2008, claiming that Wachovia, after acquiring mortgage lender Golden West Financial Corp. in 2006, began to focus on nontraditional mortgage loans, lowering standards for borrowing and marketing aggressively to build volume. The lawsuit claims the company made "false and misleading statements" to shareholders. Those who acquired Wachovia stock through its purchase of Golden West are also entitled to the settlement, according to the filing. Wachovia was acquired by Wells Fargo & Co. in 2009. Wells Fargo, based in San Francisco, rose 55 cents, or 1.9 percent, to $29.60 in New York Stock Exchange composite trading. The case is In re Wachovia Equity Securities Litigation, 08-06171, U.S. District Court, Southern District of New York (Manhattan). WALTER ENERGY: Robbins Geller Files Class Action in Alabama ----------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Jan. 26 disclosed that a class action has been commenced in the United States District Court for the Northern District of Alabama on behalf of purchasers of the common stock of Walter Energy, Inc. between April 20, 2011 and September 21, 2011, inclusive. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 26, 2012. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/walterenergy/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Walter and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Walter, through its consolidated subsidiaries, mines and exports hard coking coal for the global steel industry. The complaint alleges that, during the Class Period, defendants issued materially false and misleading statements regarding the Company's business and prospects. Specifically, defendants misrepresented and/or failed to disclose the following adverse facts: (i) that the Company was experiencing so-called "squeeze" events in Alabama and lower coal transportation rates in Canada that significantly reduced Walter's coal production; (ii) that the Company's commitment to ship more than 700,000 tons of coal in the second quarter at first quarter sales prices would result in a material adverse effect on Walter's average sales prices and operating results during the second quarter; (iii) that Walter was experiencing a significant decline in its margins and profitability; and (iv) that, based on the foregoing, defendants lacked a reasonable basis for their positive statements about the Company and its business prospects during the Class Period. On August 3, 2011, Walter issued a press release announcing its operating results for its 2011 fiscal second quarter, the period ended June 30, 2011. For the quarter, the Company announced net income of $107.4 million, or $1.71 per diluted common share, significantly less than Wall Street estimates. Then, on September 21, 2011, Walter issued a press release announcing its attempt to "enhance" its historical statistical disclosure and its revisions to its 2011 second half sales expectations. In response to this announcement, the price of Walter common stock declined from $75.00 per share on September 20, 2011 to $66.25 on September 21, 2011, on extremely heavy trading volume. Plaintiff seeks to recover damages on behalf of all purchasers of Walter common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a 180-lawyer firm with offices in San Diego, San Francisco, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta. It is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. ZYNGA INC: Accused of Not Paying Overtime Fees in California ------------------------------------------------------------ Christopher Lee, an individual California resident, on behalf of himself and all others similarly situated v. Zynga Inc., a Delaware corporation and Does 1 through 100, inclusive, Case No. 1-11-CV-217392 (Calif. Super. Ct., Santa Clara Cty., January 24, 2012) is brought on behalf of current and former employees of Zynga, who are or were employed in its California locations and held titles or positions in software engineering, primarily what is generally referred in the discipline of engineering to "test engineers," "software engineers," "computer programmers," "architects", "developers," and "quality assurance [QA] engineers." The matrix of titles implemented by Zynga were misnomers lacking the exercise of discretion and independent judgment in the performance of their primary duties and in performing such duties should have been classified as non-exempt and, therefore, paid overtime, the Plaintiff contends. He asserts that he and the class were given titles that were inconsistent and unrealistic with the job requirements and expectations, and that Zynga failed to engage in any meaningful activity to ensure its employees were properly classified under California law, whether as exempt employees or independent contractors. Mr. Lee is a resident of California. Zynga is a Delaware corporation with primary place of business in California. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Jose R. Garay, Esq. JOSE GARAY, APLC 9900 Irvine Center Drive Irvine, CA 92618 Telephone: (949) 208-3400 Facsimile: (949) 713-0432 E-mail: jgaray@computerovertime.com - and - Christopher J. Hamner, Esq. HAMNER LAW OFFICES, APC 2225 E. Bayshore Drive, Suite 200 Palo Alto, CA 94303 Telephone: (650) 320-1640 Facsimile: (650) 320-1645 E-mail: chamner@hamnerlaw.com ********* 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. 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