/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120220.mbx C L A S S A C T I O N R E P O R T E R Monday, February 20, 2012, Vol. 14, No. 35 Headlines 1-800-FLOWERS.COM: Continues to Defend New York Class Suit BANK OF HAWAII: Judge Approves $9-Mil. Class Action Settlement BOSCH SECURITY: Recalls 330 Fire Control Panels BP: Judge Dismisses Securities Class Action Claims CELANESE CORP: Settlement in Canadian Plumbing Suits Pending CHIPOTLE MEXICAN: Appeal in Employees' Suit Pending in Calif. CHIPOTLE MEXICAN: Continues to Defend ADA Violations Class Suit CROWNE PLAZA: Settles Class Action for $1.3 Million GOV'T OF CANADA: Farmer Group Seeks Class Action Status in Lawsuit ILLUMINA INC: Faces Suit Over Roche Buyout Rejection IMPROVEMENTS CATALOG: Recalls 800 Adjustable Ottoman Beds MERCK: Court Decertifies Class Action Over Vioxx Sales MORTGAGE ELECTRONIC: Counties to File Class Action NORTHROP GRUMMAN: Awaits Decision in Pension Plan Suit Appeal NORTHROP GRUMMAN: Consolidated ERISA Suit Still Pending in Calif. OCLARO INC: Hearing on Bid to Dismiss "Westley" Suit on March 23 OCLARO INC: Remaining Appeals in IPO Suit Dismissed or Withdrawn OPENWAVE SYSTEMS: Consolidated IPO Litigation Concluded PFIZER INC: Faces Class Action Over Zoloft Antidepressant PFIZER INC: Clears Remaining Securities Class Action STATER BROS: Awaits Approval of Deal in "Lunsford" Suit vs. Unit STATER BROS: Still Awaits Okay of "Martinez" Suit Settlement STERIS CORP: Gets Final Approval of "Winter Haven" Suit Deal TD AMERITRADE: Motions to Dismiss "Ross" Suit Remain Pending WASHINGTON, D.C.: Loses Bid to Dismiss Nursing Home Class Action ********* 1-800-FLOWERS.COM: Continues to Defend New York Class Suit ---------------------------------------------------------- On November 10, 2010, a purported class action complaint was filed in the United States District Court for the Eastern District of New York naming 1-800-FLOWERS.COM, Inc. (along with Trilegiant Corporation, Inc., Affinion, Inc. and Chase Bank USA, N.A.) as defendants in an action purporting to assert claims against the Company alleging violations arising under the Connecticut Unfair Trade Practices Act among other statutes, and for breach of contract and unjust enrichment in connection with certain post- transaction marketing practices in which certain of the Company's subsidiaries previously engaged in with certain third-party vendors. Plaintiffs seek to have this case certified as a class action and seek restitution and other damages, all in an amount in excess of $5 million. The Company says it intends to defend this action vigorously. No further updates were reported in the Company's February 10, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 1, 2012. BANK OF HAWAII: Judge Approves $9-Mil. Class Action Settlement -------------------------------------------------------------- The Associated Press reports that a state judge has approved a $9 million settlement between Bank of Hawaii and 160,000 customers in a class-action lawsuit over improper overdraft charges. A separate $1.2 million settlement between Central Pacific Bank and 10,000 class members was approved last month. Lawyers say customers who were charged at least two overdraft fees for ATM and debit card transactions on the same day will receive a portion of the settlements. The Honolulu Star-Advertiser reported on Feb. 15 that each Bank of Hawaii customer could receive about $42, while each Central Pacific Bank customer could get about $90. The amounts will vary depending on amounts of overdraft charges. The lawsuits stemmed from the method used to maximize debit and ATM overdraft fees by reordering transactions from the highest dollar amount to the lowest. BOSCH SECURITY: Recalls 330 Fire Control Panels ----------------------------------------------- About 330 units of Fire Alarm Control Panel were voluntarily recalled by Bosch Security Systems, Inc., of Fairport, New York, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. On all systems, when the alarm verification feature of the system is turned on, the control panel can fail to sound an alarm if a fire occurs. In addition, on systems with 50 or more reporting stations, a delay in sounding an alarm and reporting a fire may occur if the loop for the alarm system is broken. No incidents or injuries have been reported. The Bosch-branded fire alarm panel is a locking red wall box with dimensions 22.7" high by 14.5" wide by 4.3" deep. The status, date and time can be seen through a glass screen on the panel door. The word "BOSCH" is printed on the right corner of the panel and the model number "FPA-1000-UL" is printed on the bottom left below the glass screen. The alarm panels featured software versions 1.10, 1.11 and 1.12, which can be determined by installers. They were designed to be used in small to medium- sized facilities in both public and residential buildings. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12721.html The recalled products were manufactured in China and sold at authorized distributors and installers nationwide from May 2009 through October 2011 for about $1,200. All distributors and installers are being sent two technical bulletins. One provides instructions for how to implement a software change that will correct the verification feature. The second contains instructions for how to handle warnings from affected systems with 50 or more stations. Those who have not received the bulletins should contact Bosch. For more information, contact Bosch Security Systems at (800) 289-0096 between 8:00 a.m. and 8:00 p.m. Eastern Time or visit service/customer care on the firm's Web site at http://www.boschsecurity.us/en-us/for instructions on how to download software to update the control panels or otherwise address the problems. BP: Judge Dismisses Securities Class Action Claims -------------------------------------------------- The Am Law Litigation Daily reports that the Houston federal judge overseeing securities litigation related to the Deepwater Horizon disaster issued two rulings on Feb. 13 dismissing securities class action claims by BP ordinary shareholders on Morrison grounds and trimming claims by purchasers of BP American Depository Receipts. CELANESE CORP: Settlement in Canadian Plumbing Suits Pending ------------------------------------------------------------ The class action lawsuits in Canada involving Celanese Corporation are subject to a pending class settlement that would result in a dismissal of those cases, according to the Company's February 10, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. CNA Holdings LLC ("CNA Holdings"), a US subsidiary of the Company, which included the US business now conducted by the Ticona business that is included in the Advanced Engineered Materials segment, along with Shell Oil Company ("Shell"), E.I. DuPont de Nemours and Company ("DuPont") and others, has been a defendant in a series of lawsuits, including a number of class actions, alleging that plastic resins manufactured by these companies that were utilized by others in the production of plumbing systems for residential property were defective for this use and/or contributed to the failure of such plumbing. Based on, among other things, the findings of outside experts and the successful use of Ticona's acetal copolymer in similar applications, CNA Holdings does not believe Ticona's acetal copolymer was defective for this use or contributed to the failure of the plumbing. In addition, in many cases CNA Holdings' potential future exposure may be limited by, among other things, statutes of limitations and repose. In November 1995, CNA Holdings, DuPont and Shell entered into national class action settlements in the Cox, et al. v. Hoechst Celanese Corporation, et al., No. 94-0047 (Chancery Ct., Obion County, Tennessee) matter. The time to file claims against the class has expired and the entity established by the court to administer the claims was dissolved in September 2010. In addition between 1995 and 2001, CNA Holdings was named as a defendant in various putative class actions. The majority of these actions have now been dismissed. As a result, the Company recorded $59 million in reserve reductions and recoveries from associated insurance indemnifications during 2010. The reserve was further reduced by $4 million during the year ended December 31, 2011, following the dismissal of the remaining US case (St. Croix, Ltd., et al. v. Shell Oil Company d/b/a Shell Chemical Company, Case No. XC-97-CR-467, Virgin Islands Superior Court) which was appealed during the three months ended September 30, 2011. As of December 31, 2011, the class actions in Canada are subject to a pending class settlement that would result in a dismissal of those cases. The Company does not believe the Possible Loss associated with the remaining matters is material. CHIPOTLE MEXICAN: Appeal in Employees' Suit Pending in Calif. ------------------------------------------------------------- A lawsuit has been filed against Chipotle Mexican Grill, Inc. in California alleging violations of state laws regarding employee record-keeping, meal and rest breaks, payment of overtime and related practices with respect to the Company's employees. The case originally sought damages, penalties and attorney's fees on behalf of a purported class of the Company's present and former employees. The trial court denied the plaintiff's motion to certify the purported class and the California Court of Appeals affirmed that decision, and as a result the action can proceed, if at all, as an action by a single plaintiff. The plaintiff has appealed the court's denial of class certification, and the appeal remains pending. Although the limitation to a single-plaintiff action significantly minimizes the Company's current potential exposure from the case and the Company has various defenses, due to the possibility of further appeals and the uncertainties of litigation it is not possible at this time to reasonably estimate the outcome of, or any potential liability, from this case. No further updates were reported in the Company's February 10, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. CHIPOTLE MEXICAN: Continues to Defend ADA Violations Class Suit --------------------------------------------------------------- In 2006, Maurizio Antoninetti filed a lawsuit against Chipotle Mexican Grill, Inc. in the U.S. District Court for the Southern District of California, primarily claiming that the height of the serving line wall in the Company's restaurants violated the Americans with Disabilities Act, or ADA, as well as California disability laws. On December 6, 2006, Mr. Antoninetti filed an additional lawsuit in the same court making the same allegations on a class action basis, on behalf of himself and a purported class of disabled individuals, and a similar class action was filed by James Perkins in U.S. District Court for the Central District of California on May 7, 2008. In the individual Antoninetti action, the district court entered a ruling in which it found that although the Company's counter height violated the ADA, the Company provided the plaintiff with an equivalent facilitation, and awarded attorney's fees and minimal damages to the plaintiff which the Company has accrued. The Company and the plaintiff appealed the district court's ruling to the U.S. Court of Appeals for the Ninth Circuit, and on July 26, 2010, the appeals court entered a ruling finding that the Company violated the ADA and did not provide the plaintiff with an equivalent facilitation, and remanded the case to the district court. The district court will now determine the damages and injunctive relief and final award of attorneys fees to which Mr. Antoninetti is entitled based on the court of appeals ruling. The Company says it lowered the height of its serving line walls throughout California some time ago, which makes injunctive relief in both the individual and class actions moot, and have the lower serving line walls in a significant majority of its restaurants outside of California as well. The Company will vigorously defend the class action cases, including by contesting certification of a plaintiff class. It is not possible at this time to reasonably estimate the outcome of, or any additional potential liability from, these cases. No further updates were reported in the Company's February 10, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. CROWNE PLAZA: Settles Class Action for $1.3 Million --------------------------------------------------- Anneline Waldman, writing for Jobmouse, reports that the Crowne Plaza Hotel, owned by the Berkshire Common Corp., has agreed to settle a class-action lawsuit filed against the hotel on behalf of 150 current and former employees who served customers at the banquets between November 2006 and June 2010 at the city's largest hotel. The $1.3 million settlement, awaiting final approval at a fairness hearing in May 1, includes legal fees. Should the settlement be approved, workers will share about $850,000, depending upon the amount of time they were employed at the hotel during the period covered by the lawsuit. One-third of the 20 percent service charges billed to patrons at banquets was withheld, according to Anthony Chavarry, the whistleblower and leading plaintiff on behalf of the workers, reports the Berkshire Eagle. According to the class-action settlement documents, the hotel does not admit liability. "The defendants deny any liability or wrongdoing and assert they have strong defenses to the claims [of the plaintiffs] that are meritorious," according to the public court records. Although the proposed settlement requires final approval on May 1, Attorney Paul Holtzman told The Eagle "there's no reason to believe the settlement won't be approved." "The resolution of the case reflects the commitment of the Crowne Plaza that employees receive their full gratuities," said Mr. Holtzman, "and we commend them for reaching this settlement and ensuring that the full amount of money left by patrons goes to the staff." According to state law, only employees directly involved in service to customers are entitled to share tips -- waitpersons, bartenders and buspersons are included. However, food and beverage service managers, sales staff and others are not entitled to any portion of gratuities. GOV'T OF CANADA: Farmer Group Seeks Class Action Status in Lawsuit ------------------------------------------------------------------ Whitney McFerron, writing for Bloomberg News, reports that a farmer group calling itself Friends of the Canadian Wheat Board said on Feb. 15 it is filing a federal lawsuit seeking class- action status that aims to reinstate the Wheat Board's grain- marketing monopoly. The group said in an e-mailed statement that the lawsuit may seek $17 billion in damages incurred from the open-market system. Canada's Conservative government passed a law in December that will end the Wheat Board's control over marketing in Western Canada on Aug. 1. The monopoly has been in place since 1943. The filing couldn't be immediately confirmed in court records. ILLUMINA INC: Faces Suit Over Roche Buyout Rejection ---------------------------------------------------- Courthouse News Service reports that shareholders claims Illumina unreasonably rejected a $5.7 billion, $44.50 per share buyout offer from (nonparty) Roche Holding, in Chancery Court. A copy of the Complaint in Steven S Weinstein MD PC Profit Sharing Plan v. Illumina, Inc., et al., Case No. 7242 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2012/02/15/SCA.pdf The Plaintiff is represented by: Carmella P. Keener, Esq. P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT& GODDESS, P.A. 919 North Market Street, Suite 1401 Wilmington, DE 19801 Telephone: (302) 656-4433 E-mail: ckeener@rmgglaw.com bdeleeuw@rmgglaw.com - and - Marc I. Gross, Esq. Gustavo F. Bruckner, Esq. POMERANTZ HAUDEK GROSSMAN & GROSS LLP 100 Park Avenue, 26th Floor New York, NY 10017 Telephone: (212) 661-1100 E-mail: migross@pomlaw.com gfbruckner@pomlaw.com IMPROVEMENTS CATALOG: Recalls 800 Adjustable Ottoman Beds --------------------------------------------------------- About 800 Adjustable Ottoman Beds were voluntarily recalled by distributor, JN Bailey and Associates Inc., of Dayton, Ohio, and retailer, Improvements Catalog, of Maple Heights, Ohio, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. When the ottoman is converted into a bed and weight is put on it, it can collapse, posing a fall hazard to consumers. Improvements Catalog is aware of five reports of the bed collapsing, including two reports of minor injuries. The product is an ottoman on casters with a folding metal frame and a high-density polyfoam mattress. The ottoman can open out and be converted into a twin-sized bed. Fabric covers are sold separately. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12720.html The recalled products were manufactured in China and sold at Improvements and Skymall catalogs and online at Improvementscatalog.com and Skymall.com from May 2011 to August 2011 for between $150 and $190. Consumers should immediately stop using the product and contact Improvements to receive a store credit for the full amount of the purchase price. For more information, contact Improvements at (800) 985-6044, Monday through Friday from 9:00 a.m. to 5:00 p.m. Eastern Time or visit the firm's Web site at http://www.improvementscatalog.com/. Improvements is contacting all purchasers directly. MERCK: Court Decertifies Class Action Over Vioxx Sales ------------------------------------------------------ Law.com reports that a Kentucky state appeal court has decertified a consumer class action against Merck over its Vioxx sales. It's a big blow to the plaintiffs, who had been seeking up to $60 million, and welcome news for Merck as it awaits a ruling on whether a federal judge will certify a similar national class action. MORTGAGE ELECTRONIC: Counties to File Class Action -------------------------------------------------- Colleen M. Sullivan, writing for Banker & Tradesman, reports that Bristol, Plymouth and Norfolk Counties plan to file a class action suit against the Mortgage Electronic Registration System (MERS), aiming to recoup land recording fees they believe they are owed. The counties are being represented by Bernstein Liebhard LLP, a New York firm specializing in class actions which has already brought a similar suit on behalf of all the counties of Ohio. John Mitchell, a Bristol County commissioner, said the board considered pursuing a claim last year, but decided to hold off until the national mortgage settlement between the banks and the states' attorneys general was resolved. But as it became clear that the vast bulk of the funds in that settlement would go towards foreclosures and loan modifications, he said the county decided to pursue the matter. Bristol County officials estimate the county may have lost out on millions of dollars in fees over the past decade because of the alleged use of MERS as a kind of private registry among large banks. A rough calculation prepared by county officials last year came up with a figure of between $3.1 million and $6.5 million lost, using a conservative estimate of one or two additional non- recorded assignments per MERS-registered property. "Over the last month, we were approached by [Bernstein Liebhard] and other firms . . . . they already had Norfolk and Plymouth, and we thought it made sense to get as many counties together," Mr. Mitchell told Banker & Tradesman. Mr. Mitchell said he wasn't sure if the remaining Massachusetts counties with county-level governance would join the suit. The relatively small size of counties like Nantucket and Dukes would mean far smaller sums at stake. County-level governance was abolished in Massachusetts in eight of the state's 14 counties around the turn of the century. Only Barnstable, Bristol, Norfolk, Plymouth, and Dukes retain county boards; Nantucket has a combined city-county government. The remaining boards retain the right to bring independent actions in court. Calls to the Norfolk and Plymouth County Boards were not immediately returned. "We're familiar with their claims, and there's no merit to them," said Janis Smith, spokeswoman for MERS. Ms. Smith said that by registering under the MERS name, banks fulfill the purpose of having a registry, that is, alerting the public of any existing leins on a property. "MERS does not eliminate or replace county records, and the recording fees are paid," she said. "The MERS business model is legal in all 50 states and has been affirmed by Massachusetts courts." "I commend the counties," said John O'Brien, the registrar of deeds in Essex County, who has been an active critic of MERS for the past two years. Mr. O'Brien was the first public official in Massachusetts to calculate how much the MERS system may have cost the state in allegedly lost recording fees, coming up with a figure of $22 million for his county alone. "If I had the authority, I would have filed this suit two years ago." The other registries fall under Secretary of State William Galvin's jurisdiction. Mr. O'Brien said he plans to petition the legislature to recover his ability to bring suit on behalf of Essex County as one of its elected officials. NORTHROP GRUMMAN: Awaits Decision in Pension Plan Suit Appeal ------------------------------------------------------------- Northrop Grumman Corporation is awaiting a court decision in connection with an appeal from a summary judgment entered in favor of its pension plan, according to the Company's February 8, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On June 22, 2007, a putative class action was filed against the Northrop Grumman Pension Plan and the Northrop Grumman Retirement Plan B and their corresponding administrative committees, styled as Skinner et al. v. Northrop Grumman Pension Plan, etc., et al., in the U.S. District Court for the Central District of California. The putative class representatives alleged violations of the Employee Retirement Income Security Act (ERISA) and breaches of fiduciary duty concerning a 2003 modification to the Northrop Grumman Retirement Plan B. The modification relates to the employer-funded portion of the pension benefit available during a five-year transition period that ended on June 30, 2008. The plaintiffs dismissed the Northrop Grumman Pension Plan, and in 2008, the District Court granted summary judgment in favor of all remaining defendants on all claims. The plaintiffs appealed, and in May 2009, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of the District Court and remanded the matter back to the District Court for further proceedings, finding that there was ambiguity in a 1998 summary plan description related to the employer-funded component of the pension benefit. After the remand, the plaintiffs filed a motion to certify a class. The parties also filed cross-motions for summary judgment. On January 26, 2010, the District Court granted summary judgment in favor of the Plan and denied the plaintiffs' motion for summary judgment. The District Court also denied the plaintiffs' motion for class certification and struck the trial date of March 23, 2010, as unnecessary given the District Court's grant of summary judgment for the Plan. The plaintiffs appealed the District Court's order to the Ninth Circuit and the Company is awaiting a decision. Oral argument was set for February 9, 2012. NORTHROP GRUMMAN: Consolidated ERISA Suit Still Pending in Calif. ----------------------------------------------------------------- On March 27, 2007, the U.S. District Court for the Central District of California consolidated two Employee Retirement Income Security Act (ERISA) lawsuits that had been separately filed on September 28, 2006, and January 3, 2007, into In Re Northrop Grumman Corporation ERISA Litigation. The plaintiffs filed a consolidated Amended Complaint on September 15, 2010, alleging breaches of fiduciary duties by the Administrative Committees and the Investment Committees (as well as certain individuals who served on or supported those Committees) for two 401(k) Plans sponsored by Northrop Grumman Corporation. The company itself is not a defendant in the lawsuit. The plaintiffs claim that these alleged breaches of fiduciary duties caused the Plans to incur excessive administrative and investment fees and expenses to the detriment of the Plans' participants. On August 6, 2007, the District Court denied plaintiffs' motion for class certification, and the plaintiffs appealed the District Court's decision on class certification to the U.S. Court of Appeals for the Ninth Circuit. On September 8, 2009, the Ninth Circuit vacated the Order denying class certification and remanded the issue to the District Court for further consideration. As required by the Ninth Circuit's Order, the case was also reassigned to a different judge. By order dated March 29, 2011, the District Court granted the plaintiffs' motion for class certification. The District Court held a hearing on May 16, 2011, on various cross motions for summary judgment. The supplemental briefing requested by the District Court has been filed and the motions have been submitted. No trial date has been set. No further updates were reported in the Company's February 8, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. OCLARO INC: Hearing on Bid to Dismiss "Westley" Suit on March 23 ---------------------------------------------------------------- Oclaro, Inc.'s motion to dismiss a class action lawsuit commenced by Curtis and Charlotte Westley is scheduled to be heard on March 23, 2012, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On May 19, 2011, Curtis and Charlotte Westley filed a purported class action complaint in the United States District Court for the Northern District of California, against the Company and certain of its officers and directors. The Court subsequently appointed the Connecticut Laborers' Pension Fund (Pension Fund) as lead plaintiff for the putative class. On October 27, 2011, the Pension Fund filed an Amended Complaint, captioned as Westley v. Oclaro, Inc., No. 11 Civ. 2448 EMC, allegedly on behalf of persons who purchased the Company's common stock between May 6 and October 28, 2010, alleging that defendants issued materially false and misleading statements during this time period regarding the Company's current business and financial condition, including projections for demand for the Company's products, as well as its revenues, earnings, and gross margins, for the first quarter of fiscal year 2011 as well as the full fiscal year. The complaint alleges violations of section 10(b) of the Securities Exchange Act and Securities and Exchange Commission Rule 10b-5, as well as section 20(a) of the Securities Exchange Act. The complaint seeks damages and costs of an unspecified amount. On December 12, 2011, defendants filed a motion to dismiss the complaint. That motion is scheduled to be heard on March 23, 2012. Discovery has not commenced, and no trial has been scheduled in this action. The Company says it intends to defend this litigation vigorously. The Company, however, is unable at this time to estimate the effects of the lawsuit on its financial position, results of operations or cash flows. OCLARO INC: Remaining Appeals in IPO Suit Dismissed or Withdrawn ---------------------------------------------------------------- All remaining appeals contesting a global settlement of a consolidated class action lawsuit involving subsidiaries of Oclaro, Inc., were dismissed or withdrawn, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On June 26, 2001, the first of a number of securities class actions was filed in the United States District Court for the Southern District of New York against New Focus, Inc., now known as Oclaro Photonics, Inc. (New Focus), certain of its officers and directors, and certain underwriters for New Focus' initial and secondary public offerings. A consolidated amended class action complaint, captioned In re New Focus, Inc. Initial Public Offering Securities Litigation, No. 01 Civ. 5822, was filed on April 20, 2002. The complaint generally alleged that various underwriters engaged in improper and undisclosed activities related to the allocation of shares in New Focus' initial public offering and sought unspecified damages for claims under the Exchange Act on behalf of a purported class of purchasers of common stock from May 17, 2000, to December 6, 2000. The lawsuit against New Focus was coordinated for pretrial proceedings with a number of other pending litigations challenging underwriter practices in over 300 cases, as In re Initial Public Offering Securities Litigation, 21 MC 92 (SAS), including actions against Bookham Technology plc, now known as Oclaro Technology Ltd (Bookham Technology) and Avanex Corporation, now known as Oclaro (North America), Inc. (Avanex), and certain of each entity's respective officers and directors, and certain of the underwriters of their public offerings. In October 2002, the claims against the directors and officers of New Focus, Bookham Technology and Avanex were dismissed, without prejudice, subject to the directors' and officers' execution of tolling agreements. The parties reached a global settlement of the litigation under which the insurers are funding the full amount of the settlement share allocated to New Focus, Bookham Technology and Avanex, and New Focus, Bookham Technology and Avanex bear no financial liability. New Focus, Bookham Technology and Avanex, as well as the officer and director defendants who were previously dismissed from the action pursuant to tolling agreements, receive complete dismissals from the case. The settlement was approved by the Court in 2009 and during the second fiscal quarter of 2012 all remaining appeals contesting the settlement were dismissed or withdrawn. OPENWAVE SYSTEMS: Consolidated IPO Litigation Concluded ------------------------------------------------------- Openwave Systems Inc. says the litigation over initial public offerings has been concluded after a court dismissed the remaining appeal of that lawsuit's settlement, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On November 5, 2001, a securities fraud class action complaint was filed in the United States District Court for the Southern District of New York, In re Openwave Systems Inc. Initial Public Offering Securities Litigation, Civ. No. 01-9744 (SAS) (S.D.N.Y.), related to In re Initial Public Offering Securities Litigation, 21 MC 92 (SAS) (S.D.N.Y.). It is brought purportedly on behalf of all persons who purchased shares of the Company's common stock from June 11, 1999, through December 6, 2000. The defendants are the Company and five of its present or former officers (the "Openwave Defendants"), and several investment banking firms that served as underwriters of the Company's initial public offering and secondary public offering. Three of the individual defendants were dismissed without prejudice, subject to a tolling of the statute of limitations. The complaint alleges liability under Sections 11 and 15 of the Securities Act of 1933 (the "Securities Act") and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), on the grounds that the registration statements for the offerings did not disclose that: (1) the underwriters had agreed to allow certain customers to purchase shares in the offerings in exchange for excess commissions paid to the underwriters; and (2) the underwriters had arranged for certain customers to purchase additional shares in the aftermarket at predetermined prices. The amended complaint also alleges that false analyst reports were issued by Credit Suisse First Boston, Hambrecht & Quist, Robertson Stephens, and Piper Jaffray. No specific damages are claimed. Similar allegations were made in over 300 other lawsuits challenging public offerings conducted in 1999 and 2000, and the cases were consolidated for pretrial purposes. On April 2, 2009, the parties in all the lawsuits submitted a settlement for the Court's approval. Under the settlement, the Openwave Defendants would not be required to make any cash payment. On October 6, 2009, the Court approved the settlement, under which the Openwave Defendants are not required to contribute any cash. Subsequently, the Court entered a judgment on the settlement. Several notices of appeal were filed by putative class members, challenging the settlement and the judgment. Subsequently, the Court determined that none of the objectors had standing to appeal. One of the putative objectors has filed a notice of appeal of the determination as to him, which appeal has since been dismissed by the Court. As a result of this dismissal, the Company believes the litigation to be concluded. The Company believes a loss is not probable or reasonably estimable. Therefore, no amount has been accrued as of December 31, 2011. Headquartered in Redwood City, California, Openwave Systems Inc. (Nasdaq: OPWV) -- http://www.openwave.com/-- is a global software innovator delivering context-aware mediation and messaging solutions that enable communication service providers and the broader ecosystem to create and deliver smarter services. Building on its mobile data heritage, Openwave mobilizes the Internet with predictive solutions fueled by real-time analytics that mediate among different ecosystem elements, comprehensively permitting the enhancement of IP traffic. Openwave is a global company with a blue chip customer base spanning North America, Latin America, Australia and New Zealand, Asia, Africa, Europe, and the Middle East. PFIZER INC: Faces Class Action Over Zoloft Antidepressant --------------------------------------------------------- Andrea Dearden, writing for The Madison St. Clair Record, reports that a St. Louis woman and a group of mothers like her are suing a pharmaceutical company that manufacturers a drug that allegedly caused birth defects in their children. Shainyah Lancaster filed a class action lawsuit in St. Louis Circuit Court against Pfizer Inc. According to the complaint, all of the women were prescribed the antidepressant Zoloft during their pregnancy despite the alleged risks to their unborn children. The mothers claim their children were later born with severe medical defects, including damage to their hearts. The parents allege Pfizer knew the dangers of the drug Zoloft but hid information that showed all of the risks associated with taking the antidepressant during pregnancy. They claim the drug was defectively designed, inadequately tested and lacked the proper warnings about birth defects. The mothers accuse Pfizer of negligence, fraud, failing to warn the public and unjust enrichment. They are asking for more than $200,000 in actual damages, along with punitive damages and court costs. Attorneys Jeffrey I. Lowe, of St. Louis, David P. Matthews and Scott A. Love, of Houston, Tim K. Goss of Dallas and Richard A. Freese of Birmingham, Al., are representing the women. St. Louis Circuit Court Case No. 1222-CC00766 Mr. Goss can be reached at: Tim K. Goss, Esq. FREESE AND GOSS, PLLC 3031 Allen St., Suite 200 Dallas, TX 75204 Telephone: (214) 761-6610 E-mail: tim@freeseandgoss.com Mr. Freese can be reached at: Richard A. Freese, Esq. FREESE AND GOSS, PLLC 2031 2nd Ave. N Birmingham AL 35203 Telephone: (205) 871-4144 E-mail: rich@freeseandgoss.com PFIZER INC: Clears Remaining Securities Class Action ------------------------------------------------ David Bario, writing for The American Lawyer, reports that six months ago a federal judge in New York dismissed claims that a company that partnered with Pfizer's Wyeth unit duped investors about a potential blockbuster Alzheimer's drug. Now, Pfizer has cleared the decks of the last securities class action remaining over the drug. STATER BROS: Awaits Approval of Deal in "Lunsford" Suit vs. Unit ---------------------------------------------------------------- Stater Bros. Holdings Inc. is awaiting court approval of a settlement resolving a class action lawsuit filed against its subsidiary, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 25, 2011. In May of 2011, Stater Bros. Holdings Inc.'s wholly-owned subsidiary, Stater Bros. Markets, was served with an Action filed in the Superior Court of the State of California for the County of Riverside ("Harold F. Lunsford et al. v. Stater Bros. Markets") seeking individual and potential class action damages including associated penalties for Markets' alleged failure to provide meal periods, rest periods or compensation in lieu thereof and alleged failure to pay certain wages for terminated employees. On January 26, 2012, following a mediation, this case was settled subject to court approval of the settlement and the full settlement amount has been recorded in the Company's consolidated financial statements for the fiscal quarter ended December 25, 2011. Stater Bros. Holdings Inc. -- http://www.staterbros.com/-- through its wholly-owned subsidiary, Stater Bros. Markets, operates a supermarket chain of 167 stores located throughout Southern California. STATER BROS: Still Awaits Okay of "Martinez" Suit Settlement ------------------------------------------------------------ On November 5, 2010, an action by Diego De Jesus Martinez was filed in the Superior Court of the State of California for the County of Los Angeles against Markets ("Martinez Case") seeking individual and potential class action monetary damages for alleged discrepancies between the actual time worked by certain employees and the amounts recorded on time clock reports of Stater Bros. Holdings Inc.'s wholly-owned subsidiary, Stater Bros. Markets. On October 26, 2011, following a mediation, the Martinez Case was settled subject to court approval of the settlement and the full settlement amount was recorded in the Company's consolidated financial statements for the fiscal year ended September 25, 2011. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 25, 2011. Stater Bros. Holdings Inc. -- http://www.staterbros.com/-- through its wholly-owned subsidiary, Stater Bros. Markets, operates a supermarket chain of 167 stores located throughout Southern California. STERIS CORP: Gets Final Approval of "Winter Haven" Suit Deal ------------------------------------------------------------ STERIS Corporation's settlement of a class action lawsuit commenced by Physicians of Winter Haven LLC has been given final approval, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On February 5, 2010, a complaint was filed by a Customer that claimed to have purchased two SYSTEM 1 devices from STERIS, Physicians of Winter Haven LLC d/b/a Day Surgery Center v. STERIS Corp., Case No. 1:1-cv-00264-CAB (N.D. Ohio). The complaint alleged statutory violations, breaches of various warranties, negligence, failure to warn, and unjust enrichment and Plaintiff sought class certification, damages, and other legal and equitable relief including, without limitation, attorneys' fees and an order requiring STERIS to replace, recall or adequately repair the product and/or to take appropriate regulatory action. On February 7, 2011, the Company entered into a settlement agreement in which it agreed, among other things, to provide various categories of economic relief for members of the settlement class and not object to plaintiff's counsel's application to the court for attorneys' fees and expenses up to a specified amount. Certification of a settlement class was approved and final approval of the settlement was given by the court in the first quarter of fiscal 2012. During the third quarter of fiscal 2011, the Company recorded in operating expenses a pre-tax charge of approximately $19,796 related to the settlement of these proceedings. The assumptions regarding the amount of this charge included, among others, the portion of class members participating in the settlement and their choice of the categories of economic relief available for such members. These assumptions may be incorrect and the costs of the settlement may be higher or lower than the charge recorded. Estimates of the actual settlement range from as low as $7 million and as high as $22 million depending on the options selected by the class members. TD AMERITRADE: Motions to Dismiss "Ross" Suit Remain Pending ------------------------------------------------------------ Clients of TD Ameritrade Holding Corporation's primary introducing broker-dealer, TD Ameritrade, Inc., continue to hold shares in the Yield Plus Fund (now known as "Yield Plus Fund -- In Liquidation"), which is being liquidated. The Company estimates that TD Ameritrade, Inc. clients' current positions held in the Reserve Yield Plus Fund amount to approximately 79% of the fund. In November 2008, a purported class action lawsuit was filed with respect to the Yield Plus Fund. The lawsuit is captioned Ross v. Reserve Management Company, Inc. et al. and is pending in the U.S. District Court for the Southern District of New York. The Ross lawsuit is on behalf of persons who purchased shares of Reserve Yield Plus Fund. On November 20, 2009, the plaintiffs filed a first amended complaint naming as defendants the fund's advisor, certain of its affiliates and the Company and certain of its directors, officers and shareholders as alleged control persons. The complaint alleges claims of violations of the federal securities laws and other claims based on allegations that false and misleading statements and omissions were made in the Reserve Yield Plus Fund prospectuses and in other statements regarding the fund. The complaint seeks an unspecified amount of compensatory damages including interest, attorneys' fees, rescission, exemplary damages and equitable relief. On January 19, 2010, the defendants submitted motions to dismiss the complaint. The motions are pending. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. The Company estimates that its clients' current aggregate shortfall, based on the original par value of their holdings in the Yield Plus Fund, less the value of fund distributions to date and the value of payments under the Company's SEC settlement, is approximately $37 million. This amount does not take into account any assets remaining in the fund that may become available for future distributions. The Company says it is unable to predict the outcome or the timing of the ultimate resolution of the Ross lawsuit, or the potential loss, if any, that may result from this unresolved matter. However, management believes the outcome of the pending proceeding is not likely to have a material adverse effect on the financial condition, results of operations or cash flows of the Company. WASHINGTON, D.C.: Loses Bid to Dismiss Nursing Home Class Action ---------------------------------------------------------------- Annys Shin, writing for The Washington Post, reports that the District has lost an effort to have a federal judge throw out a class-action suit brought on behalf of nearly 3,000 nursing home residents. Judge Ellen Huvelle on Feb. 14 rejected the city's contention that it has complied with the American with Disabilities Act (ADA) by providing services to nursing home residents who want to live in the community. The ADA requires states and local governments to provide services to people with disabilities in the most integrated setting possible. Judge Huvelle ruled that the District's claims fell short of those requirements on several fronts, including that the city has no meaningful plan to integrate nursing-home residents into community settings. The case, Day v. the District of Columbia, was brought by University Legal Services, AARP Foundation Litigation and Arent Fox LLP. ********* 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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