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C L A S S A C T I O N R E P O R T E R
Thursday, February 23, 2012, Vol. 14, No. 38
Headlines
AMERICAN HONDA: Hybrid Class Action Settlement Deadline Extended
AT&T: California Consumers Get Class Action Compensation
BOEING CO: Two Class Action Suits Still Pending in Kansas
BOEING CO: Still Awaits Reconsideration Bid Ruling in Fraud Suit
BOEING CO: Still Awaits Ruling on Certification Bid in VIP Suit
BORDERS GROUP: Settlement of WARN Suit Approved on Final Basis
BP AMERICA: Expired Car Wash Access Code Prompts Class Action
CAPSTONE TURBINE: Appeals From Deal Approval Dismissed or Settled
CHICAGO TRIBUNE: Sued Over Failure to Pay Overtime Wages
CHINA VALVES: Bid to Dismiss Consolidated Securities Suit Pending
COLEMAN NATURAL: Sued for Making Employees to Work Off the Clock
DFC GLOBAL: Continues to Defend Canadian Consumer Suits vs. Units
EASTMAN KODAK: Faces Class Action Over Employee Retirement Plans
ENCORE CAPITAL: Appeals in "Brent" Suit Settlement Still Pending
ENCORE CAPITAL: Consolidated TCPA-Violations Suit Pending
EXELON CORP: 7th Circuit Affirmed Suit Dismissal in Sept. 2011
EXELON CORP: Awaits Approval of Merger-Related Suits Settlement
EXELON CORP: Still Awaits Ruling on Bid to Dismiss Illinois Suit
FRESH EXPRESS: Faces Suit for Violating Labor Code in California
GLADSTONE PORTS: March 22 Court Date Set for Class Action
HM DRYDOCKS: Heirs of Former Workers File Asbestos Class Action
K12 INC: Faces "Hoppaugh" Securities Class Suit in Virginia
KEYNOTE SYSTEMS: Consolidated IPO-Related Suit Now Concluded
KIRKPATRICK HARDWARE: Two Repairmen File Overtime Class Action
LAW SCHOOLS: More Class Actions Over Employment Stats Expected
MOTOROLA: Class Action Lawyers Defend Bluetooth Settlement
NAT'L FOOTBALL LEAGUE: More Ex-Players Join Concussion Suit
NEWS CORP: Bids to Dismiss Consolidated Suit Pending
NEWS CORP: Continues to Defend "Wilder" Class Suit in New York
NEWS CORP: Hearing on New Allocation Plan Objections on March 19
NEWS CORP: Response in eBook MDL vs. HarperCollins Due on March 2
PERFORMANCE FOOD: Wins Bid to Dismiss Meal-Break Class Action
PILGRIM'S PRIDE: May 1 Settlement Fairness Hearing Set
* Extra Pizza Delivery Charges May Prompt Class Action
*********
AMERICAN HONDA: Hybrid Class Action Settlement Deadline Extended
----------------------------------------------------------------
Danny King, writing for Autoblog, reports that the deadline for
five states to respond to a settlement stemming from a class-
action lawsuit from Honda Civic Hybrid owners was extended by a
San Diego County superior court judge, the Los Angeles Times
reported.
Judge Timothy Taylor extended the deadline for five state
attorneys general -- from California, Iowa, Massachusetts, Texas
and Washington -- to object to the settlement to March 9, the
newspaper said. According to the settlement, which stemmed from a
claim that the automaker overstated the model's fuel economy
figures, Civic owners would be paid up to $200 each or a bit more
in coupons that may be used towards buying another Honda, while
class-action attorneys are to receive $8.5 million. The court is
expected to decide whether the settlement will stand on March 16,
according to the Times.
Honda was the subject of a class-action claim relating to its
estimates that 2003-07 model-year Civic Hybrids got about 50 miles
per gallon which the automaker settled out of court in 2009.
Later, 26 state attorneys general said the settlement was unfair
because the claimants were paid less from the settlement than
their attorneys.
Earlier this month, a California woman was awarded almost $10,000
in damages after a California small claims court upheld her claim
that Honda misled her in regards to the Civic Hybrid's fuel
economy. The woman, Heather Peters, claimed that her 2006 Civic
Hybrid never achieved more than 42 miles per gallon, and that its
gas mileage plunged to less than 30 mpg after a software update
was performed on the car.
AT&T: California Consumers Get Class Action Compensation
--------------------------------------------------------
Kathleen Pender, writing for San Francisco Chronicle, reports that
almost 7,000 California consumers have just hit the class-action
jackpot.
All are getting a check for $1,000 or more to compensate them for
overcharges on their phone bills that in most cases amounted to a
fraction of that.
The money is going to folks who responded to an ad published
statewide around this time last year seeking people who were AT&T
residential landline customers in California between August 2001
and March 2003.
In late 2008, a federal jury found that AT&T had charged its
California long-distance customers more Universal Service Fund
fees than allowed during that 20-month period. It awarded $16.9
million in damages, which a district court later reduced to $10.9
million.
AT&T was ordered to set up a fund to repay victims. Instead of
using AT&T records to track down customers, they were sought
through newspaper and Web ads.
Anyone who responded with a valid claim before April 29, 2011, was
eligible to receive somewhere between $5 and $1,000 per phone
line, depending on how many people responded.
Although AT&T likely had millions of residential customers at that
time, only 6,961 people with 9,045 lines submitted valid claims.
As a result, starting this month each of them will get the maximum
allowed -- $1,000 per line.
That award far exceeds the actual damages most customers likely
suffered during the 20-month period.
It is as if "AT&T has run a lottery and people who bought a ticket
win," says Mark Cooper, director of research with the Consumer
Federation of America.
Class-action lawsuits often get a bad rap because individuals
recover such a small portion of their losses. Cases like this,
where consumers get a windfall, are uncommon, says Stuart Rossman,
director of litigation with the National Consumer Law Center. But
they also raise questions of fairness because the vast majority of
victims get nothing.
"The ultimate purpose of any class-action settlement is to find
the people who have been injured and make them as whole as
possible," Mr. Rossman says.
Facts of the Case
While most class-actions are settled out of court for a fraction
of actual damages, this one was decided by a federal jury in
Kansas. It involved the fee that phone companies must pay into a
federal fund to subsidize telephone service for rural and low-
income customers.
Phone companies must pay a portion of their interstate revenue
into the fund. During the relevant time period, the percentage
ranged from 6.8 to 7.2 percent, according to Joshua Anaya, an
attorney with the Utility Consumers' Action Network. (Today the
contribution is 17.29 percent.)
Phone companies are allowed to recoup these fees from customers
but cannot charge more than they actually paid.
Plaintiffs in this case alleged that AT&T overcharged California
customers and the jury agreed. AT&T was ordered to pay $10.9
million in damages plus about $6 million in interest. After
subtracting $6.2 million in attorney fees and expenses and
$500,000 for the fund administrator, that left about $10.2 million
for consumers.
Neither AT&T nor plaintiffs would say how many customers AT&T had
during this period or how much they were overcharged on average.
Damage Estimates
Mr. Cooper guesstimates that if there were 12 million households
in California and half used AT&T, the dominant provider, it might
have had 6 million customers. If AT&T overcharged them $10.9
million, that works out to about $2 per customer.
Even it had only 1 million customers, the average overcharge would
be only $11 per customer.
"I think it's possible there are a lot of claimants whose (actual)
damages are going to be in that range," says Warren Burns, a
partner with Susman Godfrey, one of the law firms representing the
plaintiffs.
The settlement administrator, Gilardi & Co., mailed checks for
$1,000 to 5,296 individual claimants with single phone lines in
early February. Additional checks will be mailed to claimants who
had multiple lines in the coming weeks, Mr. Burns says.
After these payments are made, there will still be money left in
the fund. "At that point, we will return to the court and ask the
judge to make a 'cy pres' award to one or more charities. Cy pres
is a judicial doctrine whereby undistributed funds may be
distributed to worthy parties," Mr. Burns says.
The distribution plan was approved by the court. The maximum was
set at $1,000 "to incentivize claims filings and get the maximum
number of dollars in claimants' hands," rather than having most of
the judgment distributed through cy pres, Mr. Burns says.
No attempt was made to contact customers by mail. "Due to the
poor condition of the data that AT&T produced, Gilardi determined
that the cost of providing individual notice might exceed $2
million" or 20 percent of the fund, Mr. Burns says.
Instead, Gilardi published ads in the biggest newspaper in each
California county (including The Chronicle), set up a Web site,
distributed a press release and developed a sponsored links
program on Google.
To get a payment, customers had to send in a claim form along with
an AT&T bill from the relevant time period or a statement, signed
under penalty of perjury, saying they were a customer.
Gilardi did not return calls seeking comment.
Wes Nutten, a partner with Desmond, Marcello & Amster, which
administers class-action settlements, says, "I have cases where
every single class member has filed a claim and cases where 2
percent files a claim and everything in the middle." He says the
response rate is always worse when you rely solely on advertising
than when you notify potential victims by direct mail.
Even if the AT&T case missed a lot of victims, "it's not all about
compensation of class members for the harm they suffered. It's
also about punishing the wrongdoer," Mr. Nutten says.
Maybe so, but Mr. Cooper wonders whether "it would have been
better to spend the $2 million" tracking down customers so the
remaining $8 million was delivered "to a much larger class."
Tax Impact
Mr. Burns says payments of $1,000 will not be reported to the IRS
but payments over that amount will be.
"Gilardi has advised us that the checks for $1,000 do not trigger
a reporting requirement under IRS rules and we have relied on
their advice. This is because the reportable portion of the
amount relating to prejudgment interest (roughly one-third of the
amount) does not meet IRS reporting requirements," Mr. Burns says.
"In contrast, for claimants with multiple lines, the prejudgment
interest portion exceeds the reporting threshold. Hence, we have
requested that those claimants fill out a W-9 form and return it
to us before we distribute their checks."
If Gilardi does not receive a form in time, it will withhold some
of the payment for taxes.
John Roth, a senior federal tax analyst with CCH, says that
whether or not the payment is reported to the IRS, part of it is
likely taxable. People who receive them should check with their
tax preparer. He warns that researching the settlement could cost
up to $250, which would eat into the windfall.
BOEING CO: Two Class Action Suits Still Pending in Kansas
---------------------------------------------------------
The Boeing Company continues to defend itself against two class
action lawsuits pending in Kansas court, according to the
Company's February 9, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
The Company has been named as a defendant in two pending class
action lawsuits filed in the U.S. District Court for the District
of Kansas, each related to the 2005 sale of the Company's former
Wichita facility to Spirit AeroSystems, Inc. (Spirit). The first
action involves allegations that Spirit's hiring decisions
following the sale were tainted by age discrimination, violated
the Employee Retirement Income Security Act of 1974 ("ERISA"),
violated the Company's collective bargaining agreements, and
constituted retaliation. The case was brought in 2006 as a class
action on behalf of individuals not hired by Spirit. During the
second quarter of 2010, the court granted summary judgment in
favor of Boeing and Spirit on all class action claims. Following
certain procedural motions, plaintiffs filed a notice of appeal to
the Tenth Circuit Court of Appeals on August 10, 2011, and are
seeking to stay all remaining individual claims in the district
court pending resolution of the appeal. Plaintiffs' appellate
brief was filed on November 14, 2011. Boeing's appellate brief
was filed on January 20, 2012.
The second action, initiated in 2007, alleges collective
bargaining agreement breaches and ERISA violations in connection
with alleged failures to provide benefits to certain former
employees of the Wichita facility. Written discovery closed by
joint stipulation of the parties on June 6, 2011. Depositions
concluded on August 18, 2011. Plaintiffs' partial motion for
summary judgment was filed on December 9, 2011. Boeing's
opposition and dispositive motions were due on February 10, 2012.
Spirit has agreed to indemnify Boeing for any and all losses in
the first action, with the exception of claims arising from
employment actions prior to January 1, 2005. While Spirit has
acknowledged a limited indemnification obligation in the second
action, the Company believes that Spirit is obligated to indemnify
Boeing for any and all losses in the second action.
BOEING CO: Still Awaits Reconsideration Bid Ruling in Fraud Suit
----------------------------------------------------------------
On November 13, 2009, plaintiff shareholders filed a putative
securities fraud class action against The Boeing Company and two
of its senior executives in federal district court in Chicago.
This lawsuit arose from the Company's June 2009 announcement that
the first flight of the 787 Dreamliner would be postponed due to a
need to reinforce an area within the side-of-body section of the
aircraft. Plaintiffs contended that the Company was aware before
June 2009 that the first flight could not take place as scheduled
due to issues with the side-of-body section of the aircraft, and
that the Company's determination not to announce this delay
earlier resulted in an artificial inflation of the Company's stock
price for a multi-week period in May and June 2009. On March 7,
2011, the Court dismissed the complaint with prejudice. On April
4, 2011, plaintiffs filed a motion for reconsideration.
In addition, plaintiff shareholders have filed three similar
shareholder derivative lawsuits concerning the flight schedule for
the 787 Dreamliner that closely track the allegations in the
putative class action lawsuit. Two of the lawsuits were filed in
Illinois state court and have been consolidated. The remaining
derivative lawsuit was filed in federal district court in Chicago.
No briefing or discovery has yet taken place in any of these
lawsuits.
No further updates were reported in the Company's February 9,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
The Company believes the allegations in all of these cases are
without merit, and it intends to contest the cases vigorously.
The Company cannot reasonably estimate the range of loss, if any,
that may result from this matter given the current procedural
status of the litigation.
BOEING CO: Still Awaits Ruling on Certification Bid in VIP Suit
---------------------------------------------------------------
The Boeing Company is still awaiting a court decision on
plaintiffs' amended motion for class certification in the lawsuit
filed on behalf of participants and beneficiaries of The Boeing
Company Voluntary Investment Plan, according to the Company's
February 9, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On October 13, 2006, the Company was named as a defendant in a
lawsuit filed in the U.S. District Court for the Southern District
of Illinois. Plaintiffs, seeking to represent a class of
similarly situated participants and beneficiaries in The Boeing
Company Voluntary Investment Plan (the VIP), alleged that fees and
expenses incurred by the VIP were and are unreasonable and
excessive, not incurred solely for the benefit of the VIP and its
participants, and were undisclosed to participants. The
plaintiffs further alleged that defendants breached their
fiduciary duties in violation of Section 502(a)(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA"), and sought
injunctive and equitable relief pursuant to Section 502(a)(3) of
the ERISA. During the first quarter of 2010, the Seventh Circuit
Court of Appeals granted a stay of trial proceedings in the
district court pending resolution of an appeal made by Boeing in
2008 to the case's class certification order.
On January 21, 2011, the Seventh Circuit reversed the district
court's class certification order and decertified the class. The
Seventh Circuit remanded the case to the district court for
further proceedings. On March 2, 2011, plaintiffs filed an
amended motion for class certification and a supplemental motion
on August 7, 2011. Boeing's opposition to class certification was
filed on September 6, 2011. Plaintiffs' reply brief in support of
class certification was filed on September 27, 2011. This issue
is fully briefed and awaits district court determination.
Boeing's motions for summary judgment based on ERISA's statute of
repose and for summary judgment on the merits were both filed on
December 21, 2011.
The Company says it cannot reasonably estimate the range of loss,
if any, that may result from this matter given the current
procedural status of the litigation.
BORDERS GROUP: Settlement of WARN Suit Approved on Final Basis
--------------------------------------------------------------
Bankruptcy Judge Martin Glenn approved, on a final basis, a
Settlement and Release Agreement of a WARN Act class action
adversary proceeding filed against Borders Group Inc. Jared
Pinsker, as Class Representative, initiated a putative class
action adversary proceeding on behalf of himself and other
similarly situated former Border employees. Pursuant to the
Settlement, the Debtors will pay $240,000: (1) $3,000 to Mr.
Pinsker as the class representative; (2) $158,000 to be divided
equally among the Class Members; and (3) $79,000 in attorneys'
fees to counsel for the Class. Each Class Member is slated
to receive $797. The Settlement Agreement further provides that
each Class Member that has not opted-out will release any and all
claims he or she may have against the Debtors. Moreover, if 5% or
more members of the Class decide to opt-out, the Debtors or the
Liquidating Trust, as applicable, have the right to declare the
Settlement null and void.
The case is JARED PINSKER, on behalf of himself and all others
similarly situated, Plaintiff, v. BORDERS, INC., Defendants, Adv.
Proc. No. 11-02586 (Bankr. S.D.N.Y.). A copy of the Feb. 17, 2012
Memorandum Opinion is available at http://is.gd/3BIufgfrom
Leagle.com.
About Borders Group
Borders Group operated book, music and movie superstores and mall
based bookstores under the Borders, Waldenbooks, Borders Express
and Borders Outlet names, as well as Borders-branded airport
stores in the United States. At Jan. 29, 2011, the Company
operated 639 stores in the United States and 3 in Puerto Rico.
The Company also operated a proprietary e-commerce Web site --
http://www.Borders.com/-- launched in May 2008, which included
both in-store and online e-commerce components. As of Feb. 11,
2011, Borders employed a total of 6,100 full-time employees,
11,400 part-time employees, and roughly 600 contingent employees.
Borders Group Inc. and its affiliates filed for Chapter 11
protection (Bankr. S.D.N.Y. Case No. Lead Case No. 11-10614) in
Manhattan on Feb. 16, 2011. David M. Friedman, Esq., David S.
Rosner, Esq., Andrew K. Glenn, Esq., and Jeffrey R. Gleit, Esq.,
at Kasowitz, Benson, Torres & Friedman LLP, in New York, served as
counsel to the Debtors. Jefferies & Company's Inc. served as the
financial advisor. DJM Property Management is the lease and real
estate services provider. AP Services LLC served as the interim
management and restructuring services provider. The Garden City
Group, Inc., acted as the claims and notice agent.
Attorneys at Morgan, Lewis & Bockius LLP, and Riemer & Braunstein
LLP, served as counsel to the DIP Agents. Lowenstein Sandler
represented the official unsecured creditors committee for Borders
Group.
The Debtor disclosed $1.28 billion in assets and $1.29 billion in
liabilities as of Dec. 25, 2010.
Borders selected proposals by Hilco and Gordon Brothers to conduct
going out of business sales for all stores after no going concern
offers of higher value were submitted by the deadline.
In January 2012, Borders' First Amended Joint Chapter 11 Plan of
Liquidation became effective, and the Company emerged from Chapter
11 protection. The Court confirmed the Plan filed by the Debtors
and the Official Committee of Unsecured Creditors at a Dec. 20,
2011 hearing.
The Debtors have been renamed BGI Inc.
BP AMERICA: Expired Car Wash Access Code Prompts Class Action
-------------------------------------------------------------
NACS Online reports that BP America Inc. is facing a class action
lawsuit in U.S. District Court, with the plaintiff claiming a
station had sold her a car wash access code with an illegally
short access code, CBS Minnesota reports.
The complaint sets forth that last November at an unspecified
station, the plaintiff purchased a car wash access code but was
unable to use the code immediately, either due to long lines at
the station or because it was too cold when she went to have her
car washed.
The customer returned to use her access code more than one month
after it was purchased, but her access code was rejected as having
expired the week prior, according to the complaint.
The plaintiff's attorney said Minnesota law prohibits any
expiration certificates redeemable for pre-paid goods and services
within five years of the purchase date.
CAPSTONE TURBINE: Appeals From Deal Approval Dismissed or Settled
-----------------------------------------------------------------
All appeals from the opinion granting final approval of a
settlement in a consolidated shareholder lawsuit have been
dismissed or settled, according to Capstone Turbine Corporation's
February 9, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended December 31, 2011.
In December 2001, a purported stockholder class action lawsuit was
filed in the United States District Court for the Southern
District of New York (the "District Court") against the Company,
two of its then officers, and the underwriters of the Company's
initial public offering. The lawsuit purports to be a class
action filed on behalf of purchasers of the Company's common stock
during the period from June 28, 2000, to December 6, 2000. An
amended complaint was filed on April 19, 2002. The plaintiffs
allege that the prospectuses for the Company's June 28, 2000
initial public offering and November 16, 2000 secondary offering
were false and misleading in violation of the applicable
securities laws because the prospectuses failed to disclose the
underwriter defendants' alleged agreement to allocate stock in
these offerings to certain investors in exchange for excessive and
undisclosed commissions and agreements to make additional
purchases of stock in the aftermarket at pre-determined prices.
Similar complaints have been filed against hundreds of other
issuers that have had initial public offerings since 1998; the
complaints have been consolidated into an action captioned In re
Initial Public Offering Securities Litigation, No. 21 MC 92. On
October 9, 2002, the plaintiffs dismissed, without prejudice, the
claims against the named officers and directors in the action
against the Company, pursuant to the terms of Reservation of
Rights and Tolling Agreements entered into with the plaintiffs
(the "Tolling Agreements"). Subsequent addenda to the Tolling
Agreements extended the tolling period through August 27, 2010.
The District Court directed that the litigation proceed within a
number of "focus cases" and on October 13, 2004, the District
Court certified the focus cases as class actions. The Company's
case is not one of these focus cases. The underwriter defendants
appealed that ruling, and on December 5, 2006, the Court of
Appeals for the Second Circuit reversed the District Court's class
certification decision.
On August 14, 2007, the plaintiffs filed their second consolidated
amended complaints against the six focus cases and on September
27, 2007, again moved for class certification. On November 12,
2007, certain of the defendants in the focus cases moved to
dismiss the second consolidated amended class action complaints.
On March 26, 2008, the District Court denied the motions to
dismiss except as to Section 11 claims raised by those plaintiffs
who sold their securities for a price in excess of the initial
offering price and those who purchased outside the previously
certified class period. The motion for class certification was
withdrawn without prejudice on October 10, 2008. On April 2,
2009, a stipulation and agreement of settlement between the
plaintiffs, issuer defendants and underwriter defendants was
submitted to the District Court for preliminary approval. The
District Court granted the plaintiffs' motion for preliminary
approval and preliminarily certified the settlement classes on
June 10, 2009. The settlement "fairness" hearing was held on
September 10, 2009. On October 6, 2009, the District Court
entered an opinion granting final approval to the settlement and
directing that the Clerk of the District Court close these
actions. On August 26, 2010, based on the expiration of the
tolling period stated in the Tolling Agreements, the plaintiffs
filed a Notice of Termination of Tolling Agreement and
Recommencement of Litigation against the named officers and
directors. The plaintiffs stated to the District Court that they
do not intend to take any further action against the named
officers and directors at this time.
Appeals of the opinion granting final approval were filed, all of
which have been dismissed or settled. Management believes that
the outcome of this litigation will not have a material impact on
the Company's business, operating results, cash flows, financial
position or results of operations.
CHICAGO TRIBUNE: Sued Over Failure to Pay Overtime Wages
--------------------------------------------------------
Maureen O'Donnell, writing for Chicago Sun-Times, reports that The
Chicago Tribune failed to pay overtime wages to its TribLocal
reporters, according to a class-action lawsuit filed in federal
court.
Carolyn Rusin, who covered news full time for the Tribune between
July 2010 and October 2011 in Barrington, Barrington Hills and
Palatine, worked more than 40 hours a week but the Chicago Tribune
did not pay her or other TribLocal reporters time-and-a-half for
all the overtime they did, the suit said.
The action, filed by attorney Douglas M. Werman, says the Tribune
"gave plaintiff Rusin a quota of new [sic] stories she was
required to write," yet had a "policy" of not paying her and other
TribLocal reporters overtime. In 2011, she was paid for five
hours of overtime, Mr. Werman said.
The lawsuit is being brought as a class action because the Tribune
employed more than 40 people as TribLocal reporters within the
last three years, according to the suit. Other reporters "have
the opportunity to affirmatively join the case," Mr. Werman said.
The suit claims the Tribune was "willful" in flouting the Illinois
Minimum Wage Law and the federal Fair Labor Standards Act.
Ms. Rusin, whom the lawsuit said covered local news including
government and school board meetings, is no longer employed by the
Tribune, Mr. Werman said. "Regardless of the circumstances with
which she separated employment, she's entitled to all of the wages
she should have been properly paid," he said.
A TribLocal biography said Ms. Rusin graduated from Barrington
High School and Roger Williams University in Rhode Island and
received a master's degree from Emerson College in Boston. Before
TribLocal, she spent several years covering crime in the northwest
suburbs for the Tribune, and, before that, she did free-lance work
for the paper, according to the biography.
The suit seeks to recoup unpaid overtime, interest on back wages,
punitive damages and attorneys' fees.
A Tribune official declined to comment on Feb. 18.
CHINA VALVES: Bid to Dismiss Consolidated Securities Suit Pending
-----------------------------------------------------------------
China Valves Technology, Inc.'s motion to dismiss a consolidated
securities class action lawsuit is pending in New York court,
according to the Company's February 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
December 31, 2011.
On February 4, 2011, a plaintiff filed a purported class action
naming the Company, its Chairman and certain present and former
senior executives as defendants, asserting claims for certain
violations of the securities laws and seeking unspecified damages.
The complaint, which was styled Donald Foster, et al. v. China
Valves Technology, Inc., et al., was filed in the U.S. District
Court for the Southern District of New York. Several
substantially identical complaints were subsequently filed in the
same court. On or about June 29, 2011, the Court consolidated the
three cases and appointed Bristol Investment Fund, LTD ("Bristol")
as lead plaintiff. In the consolidation order the Court renamed
the case In re China Valves Technology Securities Litigation. On
August 29, 2011, Bristol filed a consolidated class action
complaint, which named additional defendants including an
individual shareholder of the Company and the Company's auditor.
The Company and the individual defendants filed a motion to
dismiss the consolidated complaint in the class action on November
21, 2011. Plaintiffs' filed their opposition to defendants'
motion to dismiss. Defendants have 45 days from February 3, 2012,
to file a reply.
The consolidated complaint purports to assert claims on behalf of
a purported class of persons and entities who purchased shares of
the Company's common stock at allegedly artificially high prices
during the period between December 1, 2009, and January 13, 2011,
and who suffered damages as a result of such purchases. The
allegations in the consolidated complaint relate to the Company's
acquisitions of Able Delight and Hanwei Valves and include
allegations regarding the Company's financial statements and press
releases. The complaint alleges, among other things, that the
Company's statements about the nature and quality of the Company's
acquisition of Able Delight were materially false and misleading
and that the Company's statements failed to describe the role in
the transaction of an alleged related party. In addition, the
complaint alleges that the Company's statements about the Hanwei
Valves acquisition were materially false and misleading because
they failed to disclose the alleged involvement of certain related
parties and allegedly misdescribed the transaction as a purchase
of assets rather than as a purchase of an entity.
The Company says it intends to contest the allegations and to
defend itself vigorously.
COLEMAN NATURAL: Sued for Making Employees to Work Off the Clock
----------------------------------------------------------------
Rigoberto Cruz, on behalf of himself and on behalf of all other
similarly situated individuals v. Coleman Natural Products, LLC, a
Delaware Limited Liability Corporation; and Does 1-50, inclusive,
Case No. 4:12-cv-00774 (N.D. Calif., February 17, 2012) is brought
to challenge Coleman's policy and practice of requiring their non-
exempt employees to work substantial amounts of time "off-the-
clock" and without pay, and failing to provide their non-exempt
employees with the meal and rest periods to which they are
entitled by law. Plaintiff and the members of the class are non-
exempt production and support employees.
Under its wage compensation system, Coleman does not pay the
Plaintiff and class members for all required pre- and post-
production work activities that are necessary and integral to
their overall employment responsibilities, such as donning and
doffing sanitary equipment and gear, and cleaning and sanitizing
their persons, Mr. Cruz contends. He alleges that the time that
Coleman requires its employees to work without compensation on a
daily basis is substantial, and deprives him and the class of many
hours' worth of wages, both straight-time and overtime, per week.
Mr. Cruz is a resident of Sonoma, California. He was formerly
employed by Coleman at its Petaluma, Sonoma County poultry
slaughter and processing facilities.
Coleman is a Delaware Limited Liability Corporation. Coleman is a
processor and packer of various food products at its Petaluma food
production facilities. The true names and capacities of the Doe
Defendants are unknown to the Plaintiff at this time.
The Plaintiff is represented by:
Stuart Chandler, Esq.
STUART R. CHANDLER, a Professional Corporation
761 K. Locust, Suite 101
Fresno, CA 93720
Telephone: (559) 431-7770
Facsimile: (559) 431-7778
E-mail: stuart@chandlerlaw.com
- and -
Daniel P. Hunt, Esq.
THE DOWNEY LAW FIRM, LLC
P.O. Box 3040
South Pasadena, CA 91031
Telephone: (610) 324-2848
Facsimile: (610) 813-4579
DFC GLOBAL: Continues to Defend Canadian Consumer Suits vs. Units
-----------------------------------------------------------------
DFC Global Corp. continues to defend class action lawsuits
commenced against its subsidiaries in Canada, according to the
Company's February 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
December 31, 2011.
In 2003 and 2006, purported class actions were brought against
National Money Mart Company and Dollar Financial Group, Inc. in
the Court of Queen's Bench of Alberta, Canada on behalf of a class
of consumers who obtained short-term loans from NMM in Alberta,
alleging, among other things, that the charge to borrowers in
connection with such loans was usurious under Canadian federal law
(the "Alberta Litigation"). The actions seek restitution and
damages, including punitive damages. In April 2010, the
plaintiffs in both actions indicated that they would proceed with
their claims. Demands for arbitration were served on the
plaintiff in each of the actions, and NMM has filed motions to
enforce the arbitration clause and to stay the actions. To date,
neither case has been certified as a class action. The Company
says it intends to defend these actions vigorously.
In 2004, an action was filed against NMM in Manitoba on behalf of
a purported class of consumers who obtained short-term loans from
NMM. In early February 2012, a separate action was filed against
NMM and DFG in Manitoba on behalf of a purported class of
consumers which substantially overlaps with the purported class in
the 2004 action. The allegations in each of these actions are
substantially similar to those in the Alberta Litigation and, to
date, neither action has been certified as a class action. If
either or both of these actions proceed, the Company intends to
seek a stay on the grounds that the plaintiffs entered into
arbitration and mediation agreements with NMM with respect to the
matters which are the subject of the actions. The Company intends
to defend these actions vigorously.
As of December 31, 2011, an aggregate of approximately C$37.6
million is included in the Company's accrued liabilities relating
to the purported Canadian class action proceedings pending in
Alberta and Manitoba and for the settled class actions in Ontario,
British Columbia, New Brunswick, Nova Scotia and Newfoundland that
were settled by the Company in 2010. The settlements in those
class action proceedings consisted of a cash component and
vouchers to the class members for future services. The component
of the accrual that relates to vouchers is approximately C$22.6
million, the majority of which is expected to be non-cash.
Although the Company believes that it has meritorious defenses to
the claims in the purported class proceedings in Alberta and
Manitoba and intends vigorously to defend against such remaining
pending claims, the ultimate cost of resolution of such claims may
exceed the amount accrued at December 31, 2011, and additional
accruals may be required in the future.
EASTMAN KODAK: Faces Class Action Over Employee Retirement Plans
----------------------------------------------------------------
Matthew Daneman, writing for Democrat and Chronicle, reports that
Eastman Kodak Co., its board and some top executives are facing an
ever-increasing number of employee lawsuits regarding the stock's
collapse and its impact on employee retirement plans.
Andrew J. Maurer sued Kodak on Feb. 16 in U.S. District Court for
the Western District of New York, alleging that CEO Antonio Perez
and the board failed in their fiduciary duties regarding the Kodak
Employees' Savings and Investment and Kodak Employee Stock
Ownership plans.
Nearly identical cases, also going after Mr. Perez and board
members though not the company itself, were filed Jan. 27,
Jan. 31, Feb. 6 and Feb. 9 by current and former Kodakers.
In each case, the plaintiffs argue that Kodak should be held
liable for continuing to offer company stock as an investment
option even as the company was going through dire straits, thus
making its shares a bad investment.
In case after case, the lawsuits seek court orders forcing the top
executives and trustees to personally make good losses to the
retirement plans.
There also is a motion pending in federal court to consolidate all
the various suits, each of which seeks class-action status, into
one.
What's indisputable is that Kodak stock has been a pretty poor
investment vehicle in recent years. The shares were going for
roughly $25 in mid February 2007. By mid February 2010, they were
at $6, slumping further to $3.60 a year ago. On Feb. 16, 2012
Kodak shares are at 38 cents.
ENCORE CAPITAL: Appeals in "Brent" Suit Settlement Still Pending
----------------------------------------------------------------
On May 19, 2008, an action captioned Brent v. Midland Credit
Management, Inc et. al was filed in the United States District
Court for the Northern District of Ohio Western Division, in which
the plaintiff filed a class action counter-claim against two of
Encore Capital Group, Inc.'s subsidiaries (the "Midland
Defendants"). The complaint alleged that the Midland Defendants'
business practices violated consumers' rights under the FDCPA and
the Ohio Consumer Sales Practices Act. The plaintiff sought
actual and statutory damages for the class of Ohio residents, plus
attorney's fees and costs of class notice and class
administration. On August 12, 2011, the court issued an order
granting final approval to the parties agreed upon settlement of
this lawsuit, as well as two other pending lawsuits in the
Northern District of Ohio entitled Franklin v. Midland Funding LLC
and Vassalle v. Midland Funding LLC, on a national class basis,
and dismissed the cases against the Midland Defendants with
prejudice. That order has been appealed by certain objectors to
the settlement, which appeals remain pending.
No further updates were reported in the Company's February 9,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
ENCORE CAPITAL: Consolidated TCPA-Violations Suit Pending
---------------------------------------------------------
On November 2, 2010, and December 17, 2010, two national class
actions entitled Robinson v. Midland Funding LLC and Tovar v.
Midland Credit Management, respectively, were filed in the United
States District Court for the Southern District of California.
The complaints allege that Encore Capital Group, Inc.'s
subsidiaries violated the Telephone Consumer Protection Act
("TCPA") by calling consumers' cellular phones without their prior
express consent. The complaints seek monetary damages under the
TCPA, injunctive relief, and other relief, including attorney
fees. On May 10, 2011, and May 11, 2011, two class actions
entitled Scardina v. Midland Credit Management, Inc. Midland
Funding LLC and Encore Capital Group, Inc. and Martin v. Midland
Funding, LLC, respectively, were filed in the United States
District Court for the Northern District of Illinois. The
complaints allege on behalf of a putative class of Illinois
consumers that the Company's subsidiaries violated the TCPA by
calling consumers' cellular phones without their prior express
consent. The complaints seek monetary damages under the TCPA,
injunctive relief, and other relief, including attorney fees. On
July 28, 2011, the Company filed a motion to transfer the Scardina
and Martin cases to the United States District Court for the
Southern District of California to be consolidated with the Tovar
and Robinson cases. On October 11, 2011, the United States
Judicial Panel on Multidistrict Litigation granted the Company's
motion to transfer.
No further updates were reported in the Company's February 9,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
EXELON CORP: 7th Circuit Affirmed Suit Dismissal in Sept. 2011
--------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit affirmed in
September 2011 the dismissal of a class action lawsuit commenced
by participants of Exelon Corporation's employee savings plan,
according to the Company's February 9, 2012, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On September 11, 2006, five individuals claiming to be
participants in the Exelon Corporation Employee Savings Plan, Plan
#003 (Savings Plan), filed a putative class action lawsuit in the
U.S. District Court for the Northern District of Illinois. The
complaint names as defendants Exelon, its Director of Employee
Benefit Plans and Programs, the Employee Savings Plan Investment
Committee, the Compensation and the Risk Oversight Committees of
Exelon's Board of Directors and members of those committees. On
December 9, 2009, the District Court granted the defendants'
motion to dismiss the amended complaint and enter judgment in
favor of the defendants. The plaintiffs appealed the District
Court's dismissal of their claims to the U.S. Court of Appeals for
the Seventh Circuit who affirmed the dismissal of the class action
lawsuit on September 6, 2011.
EXELON CORP: Awaits Approval of Merger-Related Suits Settlement
---------------------------------------------------------------
Exelon Corporation is awaiting court approval of a settlement to
resolve merger-related lawsuits, according to the Company's
February 9, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On April 28, 2011, Exelon and Constellation Energy Group, Inc.
announced that they signed an agreement and plan of merger to
combine the two companies in a stock-for-stock transaction. Under
the merger agreement, Constellation's shareholders will receive
0.930 shares of Exelon common stock in exchange for each share of
Constellation common stock. Constellation is a leading
competitive supplier of power, natural gas and energy products and
services for homes and businesses across the continental United
States. It owns a diversified fleet of generating units, totaling
approximately 12,000 megawatts of generating capacity, and is a
leading advocate for clean, environmentally sustainable energy
sources, such as solar power and nuclear energy. Baltimore Gas
and Electric Company (BGE), Constellation's regulated utility,
delivers electricity and natural gas in central Maryland. The
resulting company will retain the Exelon name and be headquartered
in Chicago.
Twelve purported class action lawsuits were filed against
Constellation, each member of Constellation's board of directors,
Exelon and Bolt Acquisition Corporation, a Maryland corporation
and a wholly owned subsidiary of Exelon, in connection with the
merger. Among other things, the lawsuits sought injunctive relief
that would have prevented completion of the merger in accordance
with the terms of the merger agreement. The parties to the
litigation have reached a settlement that remains subject to court
approval.
If the settlement is not approved by the court, the Company says
these lawsuits could prevent or delay completion of the merger and
result in substantial costs to Exelon and Constellation, including
any costs associated with the indemnification of directors and
officers. Plaintiffs may file additional lawsuits against Exelon,
Constellation and/or the directors and officers of either company
in connection with the merger. The defense or settlement of any
lawsuit or claim that remains unresolved at the time the merger is
completed may adversely affect the combined company's business,
financial condition, results of operations and cash flows.
EXELON CORP: Still Awaits Ruling on Bid to Dismiss Illinois Suit
----------------------------------------------------------------
Exelon Corporation is still awaiting a court decision on a motion
to dismiss a class action lawsuit arising from the decommissioning
of Zion Station in Illinois, according to the Company's February
9, 2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended
December 31, 2011.
On September 1, 2010, Exelon Generation Company, LLC
("Generation") completed an Asset Sale Agreement (ASA) with
EnergySolutions Inc. and its wholly owned subsidiaries,
EnergySolutions, LLC. (EnergySolutions) and ZionSolutions under
which ZionSolutions has assumed responsibility for decommissioning
Zion Station, which is located in Zion, Illinois, and ceased
operation in 1998. Specifically, Generation transferred to
ZionSolutions substantially all of the assets (other than land)
associated with Zion Station, including assets held in related
Nuclear Decommissioning Trust ("NDT") funds. In consideration for
Generation's transfer of those assets, ZionSolutions assumed
decommissioning and other liabilities associated with Zion
Station. Pursuant to the ASA, ZionSolutions can periodically
request reimbursement from the Zion Station-related NDT funds for
costs incurred related to the decommissioning efforts at Zion
Station.
On July 14, 2011, three people filed a purported class action
lawsuit in the United States District Court for the Northern
District of Illinois naming ZionSolutions and Bank of New York
Mellon as defendants and seeking, among other things, an
accounting for use of NDT funds, an injunction against the use of
NDT funds, the appointment of a trustee for the NDT funds, and the
return of NDT funds to customers of the Company's subsidiary,
Commonwealth Edison Company ("ComEd"), to the extent legally
entitled thereto. ZionSolutions and Bank of New York Mellon filed
a motion to dismiss the complaint on September 13, 2011.
ZionSolutions is subject to certain restrictions on its ability to
request reimbursements from the Zion Station NDT funds as defined
within the ASA. Therefore, the transfer of the Zion Station
assets did not qualify for asset sale accounting treatment and, as
a result, the related NDT funds were reclassified to pledged
assets for Zion Station decommissioning within Generation and
Exelon's Consolidated Balance Sheets and will continue to be
measured in the same manner as prior to the completion of the
transaction. Additionally, the transferred asset retirement
obligation ("ARO") for decommissioning was replaced with a payable
to ZionSolutions in Generation and Exelon's Consolidated Balance
Sheets. Changes in the value of the Zion Station NDT assets, net
of applicable taxes, will be recorded as a change in the payable
to ZionSolutions. At no point will the payable to ZionSolutions
exceed the project budget of the costs remaining to decommission
Zion Station. Any Zion Station NDT funds remaining after the
completion of all decommissioning activities will be returned to
ComEd customers. Generation has retained its obligation to
transfer the spent nuclear fuel ("SNF") at Zion Station to the
United States Department of Energy ("DOE") for ultimate disposal
and has a liability of approximately $65 million and $34 million
at December 31, 2011, and 2010, respectively, which is included
within the nuclear decommissioning ARO. Generation also has
retained NDT assets to fund its obligation to maintain and
transfer the SNF at Zion Station.
As of December 31, 2011 and 2010, the carrying value of the Zion
Station pledged assets was approximately $734 million and $824
million, respectively, and the payable to Zion Solutions was
approximately $691 million and $786 million, respectively. The
payable excludes a liability recorded within Generation's
Consolidated Balance Sheets related to the tax obligation on the
unrealized activity associated with the Zion Station NDT funds.
The NDT funds will be utilized to satisfy the tax obligations as
gains and losses are realized. The current portion of the payable
to ZionSolutions, included in other current liabilities within
Generation's Consolidated Balance Sheets at December 31, 2011, and
2010 was $128 million and $127 million, respectively.
ZionSolutions withdrew approximately $143 million and $5 million
for Zion Station decommissioning costs during the years ended
December 31, 2011, and 2010, respectively.
ZionSolutions leased the land associated with Zion Station from
Generation pursuant to a Lease Agreement. Under the Lease
Agreement, ZionSolutions has committed to complete the required
decommissioning work according to an established schedule and will
construct a dry cask storage facility on the land for the SNF
currently held in SNF pools at Zion Station. Rent payable under
the Lease Agreement is $1.00 per year, although the Lease
Agreement requires ZionSolutions to pay property taxes associated
with Zion Station and penalty rents may accrue if there are
unexcused delays in the progress of decommissioning work at Zion
Station or the construction of the dry cask SNF storage facility.
To reduce the risk of default by EnergySolutions or ZionSolutions,
EnergySolutions provided a $200 million letter of credit to be
used to fund decommissioning costs in the event the NDT assets are
insufficient. EnergySolutions has also provided a performance
guarantee and entered into other agreements that will provide
rights and remedies for Generation and the NRC in the case of
other specified events of default, including a special purpose
easement for disposal capacity at the EnergySolutions site in
Clive, Utah, for all LLRW volume of Zion Station.
FRESH EXPRESS: Faces Suit for Violating Labor Code in California
----------------------------------------------------------------
Blanca Lidia Bonilla, on behalf of herself and on behalf of all
other similarly situated individuals v. Fresh Express
Incorporated, a Delaware corporation; and Does 1-50, inclusive,
Case No. 5:12-cv-00783 (N.D. Calif., February 17, 2012) challenges
Fresh Express' policy and practice of requiring their non-exempt
employees to work substantial amounts of time "off-the-clock" and
without pay, and failing to provide their non-exempt employees
with the meal and rest periods to which they are entitled by law.
As a result of all of its acts and omissions, Fresh Express is
liable for violations of the California Labor Code, California
Industrial Welfare Commission wage orders, and the California
Unfair Competition Law, Ms. Bonilla alleges.
Ms. Bonilla is a resident of Monterey County, California. She was
formerly employed by Fresh Express as a non-exempt hourly
employee, at its Monterey food production facilities.
Fresh Express, a Delaware corporation, is a processor, packager,
and packer of various food products. The true names and
capacities of the Doe Defendants are unknown to the Plaintiff at
this time.
The Plaintiff is represented by:
Stuart Chandler, Esq.
STUART R. CHANDLER, a Professional Corporation
761 K. Locust, Suite 101
Fresno, CA 93720
Telephone: (559) 431-7770
Facsimile: (559) 431-7778
E-mail: stuart@chandlerlaw.com
- and -
Daniel P. Hunt, Esq.
THE DOWNEY LAW FIRM, LLC
P.O. Box 3040
South Pasadena, CA 91031
Telephone: (610) 324-2848
Facsimile: (610) 813-4579
- and -
Philip A. Downey, Esq.
THE DOWNEY LAW FIRM, LLC
P.O. Box 1021
Unionville, PA 19375
Telephone: (610) 324-2848
Facsimile: (610) 813-4579
E-mail: downeyjustice@gmail.com
GLADSTONE PORTS: March 22 Court Date Set for Class Action
---------------------------------------------------------
Megan McEwan, writing for The Observer, reports that a court date
was set for the class action earlier launched by Gladstone
fishermen in the Environment and Planning Court in Rockhampton.
On Feb. 14, the class action against the State Government and
Gladstone Ports Corporation was set for March 22.
Commercial fisherman and primary applicant in the class action
Trevor Falzon said ever since the harbor was closed due to fish
disease in September he had been facing financial devastation.
"We're all going broke," Mr. Falzon said.
"I've lost that (fishing) ground for the rest of my life."
Mr. Falzon said local fishermen had begun collecting fish and crab
samples for their own investigation after losing faith in GPC and
government testing.
"Over 50% of these crabs are diseased," Mr. Falzon said.
"Nowhere up and down the coast is this happening. Why only
Gladstone?
"It's the dredging."
Timeline
* Shine Lawyers lodges legal proceedings against state
government and Gladstone Ports Corporation on January 30
* Mr. Falzon submits affidavit to the court on February 10
Court date set for March 22
HM DRYDOCKS: Heirs of Former Workers File Asbestos Class Action
---------------------------------------------------------------
Karl Stagno-Navarra, writing for Malta Today, reports that the
heirs of some 400 former dockyard workers have filed individual
and class action lawsuits in the United States, seeking their
right to compensation in damages for occupational exposures to
asbestos products while working -- among other places -- on US
warships.
Most of the workers have died of malignant mesothelioma caused by
the direct and proximate result of occupational exposures to
asbestos products while working on US warships while anchored at
the then HM Drydocks, which later became the Malta Drydocks.
The cases were filed at the US Bankruptcy Court of New York
against a number of companies which provided the asbestos
materials for the US warships while in dock. The companies, which
have since been declared bankrupt, are still liable for damages
under US law.
But the heirs are now challenging the US courts to order a trust
-- set up to compensate those who became ill from asbestos
exposure -- to include them after it wrongly concluded that their
exposure occurred off US soil.
Under the guidance of the General Workers' Union, families of
deceased Drydocks workers have over the past years been put in
contact with American lawyers who accepted the cases and are
filing their suits for compensation under US law.
On Feb. 14, another two cases were filed at the Manhattan district
court of New York by John Tanti of Siggiewi, a personal
representative of the estate of Nicholas Borg, and another was
filed by the heirs of the late Joseph Balzan of Sta Lucia.
Nicholas Borg passed away in November 2010. He died of
asbestosis; his disease and death each being caused as the direct
and proximate result of occupational exposures to asbestos
products while working in -- among other places -- US warships
docked at the then HM Dockyard in Malta.
Joseph Balzan died of malignant mesothelioma. His disease and
death each being caused as the direct and proximate result of
occupational exposures to asbestos products while working as a
pipefitter, steamfitter and plumber at, among other places, US
warships docked at the then HM Dockyard, Malta.
Their heirs have joined a case together with several other former
dockyard workers from Britain and Greece who are seeking
compensation for diseases and death due to asbestos exposure on US
naval ships. They are challenging the US courts to declare those
responsible for issuing payment are unfairly discriminating
against them because they aren't US citizens.
The allegations form the basis for a newly filed lawsuit related
to the 1982 bankruptcy of Johns Manville Corp., a manufacturer of
building products that used bankruptcy to resolve a wave of
litigation by people claiming to have become ill from the asbestos
in its products.
Each man (or his representative) filed a claim against a trust set
up to compensate those who became ill from Johns Manville's
products.
They say their illnesses resulted from their exposure to the
asbestos dust and fibres contained in Johns Manville products
found in the US naval ships' boiler rooms, engine rooms and other
confined areas. They say the trust has wrongly concluded that
their exposure occurred off US soil.
"In the face of both domestic and international law to the
contrary, let alone common sense, the trust and the [trust's
claims processing company] have each taken the position that
active naval warships of the United States Navy, while being
repaired, maintained, serviced, or refurbished at both civilian
and military shipyards of other nations and the United States,
somehow lost their sovereignty as territory of this country," the
plaintiffs wrote.
The plaintiffs say the trust's failure to designate their claims
as "standard" claims -- the designation given to US and Canadian
creditors, where the bulk of Johns Manville's operations were
located -- represents discrimination based on their nationality:
"namely, that they are not US citizens".
According to trust documents, holders of standard claims have to
prove their injuries meet certain criteria. If they can show
this, they're entitled to a pre-set dollar amount. But "non-
standard" creditors, as the plaintiffs are currently considered,
have to submit their claims for review and payment on an
individual basis. The lawsuit specifically asks the bankruptcy
court to declare the plaintiffs' claims standard instead of non-
standard.
Founded in 1858, the Denver-based Johns Manville emerged from
bankruptcy in 1988 and was acquired by Warren Buffett's Berkshire
Hathaway Inc. in 2001.
Court papers show that as of September 30, the Manville trust has
paid out more than US$4.2 billion to asbestos personal-injury
creditors.
In 2010, Malta Shipyards were ordered to pay over EUR103,000 in
damages to a family for failing to provide the required safety
measures against cancer-causing asbestos, which led to the death
of a 55-year-old worker.
A judgment handed by Chief Justice Silvio Camilleri, and judges
Albert Magri and Tonio Mallia, who presided the Court of Appeals,
upheld two judgments previously handed down by a civil court.
The shipyards were held responsible for the death of Joseph Fenech
after it was proven that the yards did not provide any protective
clothing or masks.
Mr. Fenech died in 1997 from a serious case of mesothelioma -- a
lung cancer caused by asbestos fibre, the Court of Appeals ruled.
K12 INC: Faces "Hoppaugh" Securities Class Suit in Virginia
-----------------------------------------------------------
K12 Inc. is facing a securities class action lawsuit in Virginia,
according to the Company's February 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
December 31, 2011.
On January 30, 2012, a securities class-action lawsuit captioned
Hoppaugh v. K12 Inc., was filed against the Company and two of its
officers in the United States District Court for the Eastern
District of Virginia, Hoppaugh v. K12, Inc., Case No. 1:12-CV-103-
CMH-IDD (the "Hoppaugh Complaint"). The plaintiff purports to
represent a class of persons who purchased or otherwise acquired
K12 common stock between September 9, 2009, and
December 16, 2011, inclusive, and alleges violations by the
defendants of Sections 10(b) and 20(a) of the Exchange Act, and
Rule 10b-5 promulgated thereunder. The Hoppaugh Complaint
alleges, among other things, that the defendants made false or
misleading statements of material fact, or failed to disclose
material facts, about (i) the Company's financial results during
the class period, (ii) the academic performance of the virtual
schools served by the Company, and (iii) certain school
administrative practices and sales strategies related to
enrollments. The plaintiff seeks unspecified monetary damages and
other relief. The Company says it intends to defend vigorously
against the claims asserted in the Hoppaugh Complaint.
KEYNOTE SYSTEMS: Consolidated IPO-Related Suit Now Concluded
------------------------------------------------------------
The order approving the settlement in a consolidated class action
lawsuit is now final and the matter is now concluded, according to
Keynote Systems Inc.'s February 9, 2012, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
December 31, 2011.
In August 2001, the Company and certain of its current and former
officers were named as defendants in two securities class-action
lawsuits based on alleged errors and omissions concerning
underwriting terms in the prospectus for the Company's initial
public offering. A Consolidated Amended Class Action Complaint
for Violation of the Federal Securities Laws ("Consolidated
Complaint") was filed on or about April 19, 2002, and alleged
claims against the Company, certain of its officers, and
underwriters of the Company's September 24, 1999 initial public
offering ("underwriter defendants"), under Sections 11 and 15 of
the Securities Act of 1933, as amended, and under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, as amended. The
lawsuit alleged that the defendants participated in a scheme to
inflate the price of the Company's stock in its initial public
offering and in the aftermarket through a series of misstatements
and omissions associated with the offering. The lawsuit is one of
several hundred similar cases pending in the Southern District of
New York that have been consolidated by the Court.
The Company was a party to a global settlement with the plaintiffs
that would have disposed of all claims against it with no
admission of wrongdoing by the Company or any of its present or
former officers or directors. The settlement agreement had been
preliminarily approved by the Court. However, while the
settlement was awaiting final approval by the District Court, in
December 2006 the Court of Appeals reversed the District Court's
determination that six focus cases could be certified as class
actions. In April 2007, the Court of Appeals denied plaintiffs'
petition for rehearing, but acknowledged that the District Court
might certify a more limited class. At a June 26, 2007 status
conference, the Court approved a stipulation withdrawing the
proposed settlement. On August 14, 2007, plaintiffs filed amended
complaints in the focus cases, and a motion for class
certification in the focus cases on September 27, 2007. On
November 13, 2007, defendants in the focus cases filed a motion to
dismiss the amended complaints for failure to state a claim, which
the District Court denied in March 2008. Plaintiffs, the issuer
defendants (including the Company), the underwriter defendants,
and the insurance carriers for the defendants, engaged in
mediation and settlement negotiations. The parties reached a
settlement agreement, which the District Court preliminarily
approved on June 10, 2009.
After a September 10, 2009 hearing, the District Court gave final
approval to the settlement on October 5, 2009. As part of this
settlement, the Company's insurance carrier has agreed to assume
the Company's entire payment obligation under the terms of the
settlement. Several objectors have filed notices of appeal to the
United States Court of Appeals for the Second Circuit. All but
two of the objectors withdrew their appeals, and Plaintiff moved
to dismiss the remaining appeals, one for violation of the Second
Circuit's rules and one for lack of standing. On May 17, 2011,
the Second Circuit granted the motion to dismiss one objector's
appeal for violations of the Court's rules and remanded the other
appeal to the District Court to determine whether objector Hayes
was a class member. On August 25, 2011, the District Court issued
its decision determining that Hayes was not a class member. On
September 30, 2011, objector Hayes filed a notice of appeal from
the District Court's decision. On
January 9, 2012, objector Hayes dismissed his appeal with
prejudice. No other appeals are pending, the order approving the
settlement is final, and the matter is now concluded.
KIRKPATRICK HARDWARE: Two Repairmen File Overtime Class Action
--------------------------------------------------------------
Michelle Keahey, writing for The Southeast Texas Record, reports
that two repairmen for a Texas municipality have filed a potential
class action claiming they were not paid overtime wages but were
instead given "comp time" in violation of federal regulations.
Claiming violations of the Fair Labor Standards Act, Kevin Hopkins
and Gordon Weisbach, individually and on behalf of all those
similarly situated, filed suit against Kirkpatrick Hardware Inc.
on Feb. 14 in the Eastern District of Texas, Marshall Division.
Messrs. Hopkins and Weisbach were employed by Kirkpatrick Hardware
as service/repairmen, working for the company for a number of
years. The repairmen state that they were not paid overtime wages
at one and one-half times their regular hourly rate for all hours
worked in excess of 40 hours in a work week.
The defendant is accused of using a "compensation time" scheme
instead of paying its hourly employees overtime wages.
Mr. Hopkins complained about the non-payment of overtime and was
terminated in retaliation for it, the lawsuit states.
The former employees are asking for an award damages for unpaid
wages, liquidated damages, court costs and attorney's fees.
The plaintiffs are represented by Tyler attorney William S. Hommel
Jr.
A jury trial is requested.
U.S. District Judge Rodney Gilstrap is assigned to the case.
Case No. 2:12-cv-00075
LAW SCHOOLS: More Class Actions Over Employment Stats Expected
--------------------------------------------------------------
Jon Christian, writing for Campus Progress, reports that a team of
lawyers representing law school graduates has followed through on
plans to file suit against a dozen additional schools, bringing
the total of former students to 73 who are suing 15 law schools
they claim misled them.
The litigators, headed by Jesse Strauss and David Anziska, charge
that the schools named in the complaint fudged data on post-
graduate employment rates by including jobs in non-legal fields
and that pay too little to make a dent in average law school
loans.
"We believe that some in the legal academy have done a disservice
to the profession and the nation by saddling tens of thousands of
young lawyers with massive debt for a degree worth far less than
advertised," Mr. Azinska said in a press release. "Now that 51
additional recent law school graduates, represented by some of the
most accomplished consumer protection lawyers in the country, have
sued their law schools, it is time for the schools to take
responsibility, provide compensation and commit to transparency.
These lawsuits are only the beginning."
The new targets include Albany Law School, Florida Coastal School
of Law, and the Chicago-based John Marshall School of Law. Six
additional law firms have signed up to provide primary council for
the graduates.
Mr. Anziska frames the lawsuits as a consumer protection effort--
acauseheseemstotakeseriously. He told AboveTheLaw, a prominent
legal blog, that "these lawsuits will define a generation."
Without oversight, there is tremendous incentive for less
competitive schools to bend the truth during recruitment in order
to attract better applicants or just save face. According to
USNews&WorldReport, among the estimated third of University of
Texas-Austin's School of Law graduates who are now working in non-
law fields are "cartoonists, service dog trainers, and wind farm
employees."
"There can be no more self-reporting of unaudited employment data
released to the public," Mr. Anziska told AboveTheLaw in a
separate interview. "Over my dead body, this has to happen,
because the incentive to cheat is too great. All law schools must
be forced to have their employment data independently verified. I
will not sign off on an agreement that does not have that in it.
Period. It will not happen."
According to Mr. Anziska's Web site, the team is still seeking law
school graduates to join the class action suit.
MOTOROLA: Class Action Lawyers Defend Bluetooth Settlement
----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that lawyers on both sides of a settlement over hearing loss
claims involving Motorola's Bluetooth headsets are insisting
attorney fees were not inflated, despite concerns voiced by the
United States Court of Appeals for the Ninth Circuit, which last
year tossed a deal providing $800,000 to plaintiffs lawyers and no
money to potential class members, except $12,000 for nine named
representatives.
NAT'L FOOTBALL LEAGUE: More Ex-Players Join Concussion Suit
-----------------------------------------------------------
The Associated Press reports that nearly a dozen former NFL
players living in Louisiana have sued the NFL, the latest players
to accuse the league of failing to protect players from the risks
associated with concussions.
Several former New Orleans Saints players, including John
Fourcade, are among the 11 ex-players named as plaintiffs in the
class-action lawsuit filed on Feb. 17 in federal court in New
Orleans. The lawsuit says each of them has developed mental or
physical problems from concussions or concussion-like symptoms.
Concussions in Sports
Several similar suits blaming the NFL for concussion-related
dementia and brain disease already have been consolidated in
Philadelphia. James Dugan, a lawyer for the former players from
Louisiana, said he expects the case to be transferred to
Philadelphia within a month.
The NFL has vowed to vigorously defend itself against the suits.
Football helmet manufacturer Riddell Inc. also is named as a
defendant in the lawsuit filed in New Orleans.
The lawsuit, which seeks unspecified damages, accuses the NFL of
ignoring players' concussion risks for years "despite overwhelming
medical evidence that on-field concussions led directly to brain
injuries and frequently had tragic repercussions for retired
players."
"Wanting their players on the field instead of training tables,
and in an attempt to protect a multibillion dollar business, the
NFL has purposefully attempted to obfuscate the issue and has
repeatedly refuted the connection between concussions and brain
injury to the disgust of Congress, which has blasted the NFL's
handling of the issue on multiple occasions," the lawsuit says.
A 2000 survey of more than 1,000 former NFL players found that
more than 60 percent had suffered at least one concussion, while
26 percent had suffered three or more during their careers,
according to the lawsuit.
"Those who had sustained concussions reported more problems with
memory, concentration, speech impediments, headaches and other
neurological problems than those who had not been concussed," the
suit says.
The lawsuit claims the league has only recently taken action to
address the problem.
The other plaintiffs are: Tyrone Hughes, Eric Hill, Curtis Baham,
Raion Hill, Maurice Hurst, Treverance Faulk, Keaton Cromartie,
Vince Buck, Charles Commiskey and Tyrone Legette. Wives of the
players also are named as plaintiffs in the suit.
Mr. Fourcade, 51, was a quarterback for the Saints from 1987 to
1990 and played at Mississippi.
Mr. Dugan said he represents a total of roughly 30 former NFL
players and plans to soon file other lawsuits on their behalf. He
declined to name his other clients.
"All of these players are seeking protections for themselves and
their families," he said.
NEWS CORP: Bids to Dismiss Consolidated Suit Pending
----------------------------------------------------
Motions to dismiss a second amended consolidated shareholder
derivative and class action complaint is pending, according to
News Corporation's February 9, 2012, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
December 31, 2011.
On March 16, 2011, a complaint seeking to compel the inspection of
the Company's books and records pursuant to 8 Del. C. Section 220,
captioned Central Laborers Pension Fund v. News Corporation, was
filed in the Delaware Court of Chancery. The plaintiff requested
the Company's books and records to investigate alleged possible
breaches of fiduciary duty by the directors of the Company in
connection with the Company's purchase of Shine Limited (the
"Shine Transaction"). The Company moved to dismiss the action.
On November 30, 2011, the court issued an order granting the
Company's motion and dismissing the complaint. The plaintiff
filed a notice of appeal on December 13, 2011.
Also on March 16, 2011, two purported shareholders of the Company,
one of which was Central Laborers Pension Fund, filed a derivative
action in the Delaware Court of Chancery, captioned The
Amalgamated Bank v. Murdoch, et al. (the "Amalgamated Bank
Litigation"). The plaintiffs alleged that both the directors of
the Company and Rupert Murdoch as a "controlling shareholder"
breached their fiduciary duties in connection with the Shine
Transaction. The lawsuit named as defendants all directors of the
Company, and named the Company as a nominal defendant. Similar
claims against the same group of defendants were filed in the
Delaware Court of Chancery by a purported shareholder of the
Company, New Orleans Employees' Retirement System, on March 25,
2011 (the "New Orleans Employees' Retirement Litigation"). Both
the Amalgamated Bank Litigation and the New Orleans Employees'
Retirement Litigation were consolidated on April 6, 2011 (the
"Consolidated Action"), with The Amalgamated Bank's complaint
serving as the operative complaint. The Consolidated Action was
captioned In re News Corp. Shareholder Derivative Litigation. On
April 9, 2011, the court entered a scheduling order governing the
filing of an amended complaint and briefing on potential motions
to dismiss.
Thereafter, the plaintiffs in the Consolidated Action filed a
Verified Consolidated Shareholder Derivative and Class Action
Complaint (the "Consolidated Complaint") on May 13, 2011, seeking
declaratory relief and damages. The Consolidated Complaint
largely restated the claims in The Amalgamated Bank's initial
complaint and also raised a direct claim on behalf of a purported
class of Company shareholders relating to the possible addition of
Elisabeth Murdoch to the Company's Board. The defendants filed
opening briefs in support of motions to dismiss the Consolidated
Complaint on June 10, 2011, as contemplated by the court's
scheduling order. On July 8, 2011, the plaintiffs filed a
Verified Amended Consolidated Shareholder Derivative and Class
Action Complaint (the "Amended Complaint"). In addition to the
claims that were previously raised in the Consolidated Complaint,
the Amended Complaint brought claims relating to the alleged acts
of voicemail interception at The News of the World (the "NoW
Matter"). Specifically, the plaintiffs claimed in the Amended
Complaint that the directors of the Company failed in their duty
of oversight regarding the NoW Matter.
On September 29, 2011, the plaintiffs filed a Verified Second
Amended Consolidated Shareholder Derivative and Class Action
Complaint ("Second Amended Complaint"). In the Second Amended
Complaint, the plaintiffs removed their claims involving the
possible addition of Elisabeth Murdoch to the Company's Board,
added some factual allegations to support their remaining claims
and added a claim seeking to enjoin a buyback of Common B shares
to the extent it would result in a change of control. The Second
Amended Complaint seeks declaratory relief, an injunction
preventing the buyback of Class B shares, damages, pre- and post-
judgment interest, fees and costs.
The court has entered a renewed scheduling order whereby the
defendants are scheduled to move to dismiss the Second Amended
Complaint. The defendants filed opening briefs in support of such
motions on November 14, 2011. Plaintiffs filed their answering
briefs on December 23, 2011. Reply briefs in support of the
motions to dismiss were filed on January 31, 2012. There is no
hearing date set.
NEWS CORP: Continues to Defend "Wilder" Class Suit in New York
--------------------------------------------------------------
News Corporation continues to defend a shareholder class action
lawsuit in New York, according to the Company's February 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended December 31, 2011.
On July 19, 2011, a purported class action lawsuit captioned
Wilder v. News Corp., et al. ("Wilder Litigation"), was filed on
behalf of all purchasers of the Company's common stock between
March 3, 2011, and July 11, 2011, in the United States District
Court for the Southern District of New York. The plaintiff
brought claims under Section 10(b) and Section 20(a) of the
Securities Exchange Act, alleging that false and misleading
statements were issued regarding the alleged acts of voicemail
interception at The News of the World (the "NoW Matter"). The
lawsuit names as defendants the Company, Rupert Murdoch, James
Murdoch and Rebekah Brooks, and seeks compensatory damages,
rescission for damages sustained, and costs.
NEWS CORP: Hearing on New Allocation Plan Objections on March 19
----------------------------------------------------------------
Any objections to competing revised plans of allocation in the
settlement of a consolidated lawsuit involving a subsidiary of
News Corporation are set to be heard on March 19, 2012, according
to the Company's February 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended December
31, 2011.
On August 26, 2005, and August 30, 2005, two purported class
action lawsuits captioned, respectively, Ron Sheppard v. Richard
Rosenblatt et. al., and John Friedmann v. Intermix Media, Inc. et
al., were filed in the California Superior Court, County of Los
Angeles. Both lawsuits named as defendants all of the then
incumbent members of the board of directors of Intermix Media,
Inc. ("Intermix"), including Mr. Rosenblatt, Intermix's former
Chief Executive Officer, and certain entities affiliated with
VantagePoint Venture Partners ("VantagePoint"), a former major
Intermix stockholder. The complaints alleged that, in pursuing
the transaction whereby Intermix was to be acquired by Fox
Interactive Media, a subsidiary of the Company (the "FIM
Transaction"), and approving the related merger agreement, the
director defendants breached their fiduciary duties to Intermix
stockholders by, among other things, engaging in self-dealing and
failing to obtain the highest price reasonably available for
Intermix and its stockholders. The complaints further alleged
that the merger agreement resulted from a flawed process and that
the defendants tailored the terms of the merger to advance their
own interests. The FIM Transaction was consummated on
September 30, 2005. The Friedmann and Sheppard lawsuits were
subsequently consolidated and, on January 17, 2006, a consolidated
amended complaint was filed (the "Intermix Media Shareholder
Litigation"). The plaintiffs in the consolidated action sought
various forms of declaratory relief, damages, disgorgement and
fees and costs.
On March 20, 2006, the court ordered that substantially identical
claims asserted in a separate state action filed by Brad
Greenspan, captioned Greenspan v. Intermix Media, Inc., et al., be
severed and related to the Intermix Media Shareholder Litigation.
The defendants filed demurrers seeking dismissal of all claims in
the Intermix Media Shareholder Litigation and the severed
Greenspan claims. On October 6, 2006, the court sustained the
demurrers without leave to amend. On December 13, 2006, the court
dismissed the complaints and entered judgment for the defendants.
Greenspan and plaintiffs in the Intermix Media Shareholder
Litigation filed notices of appeal. The Court of Appeal heard
arguments on the fully briefed appeal on October 23, 2008. On
November 11, 2008, the Court of Appeal issued an unpublished
opinion affirming the lower court's dismissal on all counts. On
December 19, 2008, stockholder appellants filed a Petition for
Review with the California Supreme Court. The California Supreme
Court denied review on February 18, 2009, and the judgment is now
final.
In November 2005, plaintiff in a derivative action captioned
LeBoyer v. Greenspan et al. pending against various former
Intermix directors and officers in the United States District
Court for the Central District of California filed a First Amended
Class and Derivative Complaint (the "Amended Complaint"). The
original derivative action was filed in May 2003 and arose out of
Intermix's restatement of quarterly financial results for its
fiscal year ended March 31, 2003. A substantially similar
derivative action filed in Los Angeles Superior Court was
dismissed based on the inability of the plaintiffs to plead
adequately demand futility. The Amended Complaint added various
allegations and purported class claims arising out of the FIM
Transaction that are substantially similar to those asserted in
the Intermix Media Shareholder Litigation. The Amended Complaint
also added as defendants the individuals and entities named in the
Intermix Media Shareholder Litigation that were not already
defendants in the matter. On October 16, 2006, the court
dismissed the fourth through seventh claims for relief, which
related to the 2003 restatement, finding that the plaintiff is
precluded from relitigating demand futility. At the same time,
the court asked for further briefing regarding plaintiffs'
standing to assert derivative claims based on the FIM Transaction,
including for alleged violation of Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the effect
of the state judge's dismissal of the claims in the Greenspan case
and the Intermix Media Shareholder Litigation on the remaining
direct class action claims alleging breaches of fiduciary duty and
other common law claims leading up to the FIM Transaction. The
parties filed the requested additional briefing in which the
defendants requested that the court stay the direct LeBoyer claims
pending the resolution of any appeal in the Greenspan case and the
Intermix Media Shareholder Litigation. By order dated May 22,
2007, the court granted defendants' motion to dismiss the
derivative claims arising out of the FIM Transaction, and denied
the defendants' request to stay the two remaining direct claims.
The court subsequently consolidated this case with the Brown v.
Brewer action also pending before the court. On July 11, 2007,
plaintiffs filed the consolidated first amended complaint under
the Brown case title.
Consolidated Brown Matter
On June 14, 2006, a purported class action lawsuit, captioned Jim
Brown v. Brett C. Brewer, et al., was filed against certain former
Intermix directors and officers in the United States District
Court for the Central District of California. The plaintiff
asserted claims for alleged violations of Section 14(a) of the
Exchange Act and SEC Rule 14a-9, as well as control person
liability under Section 20(a) of the Exchange Act. The plaintiff
alleged that certain defendants disseminated false and misleading
definitive proxy statements on two occasions: one on December 30,
2003 in connection with the stockholder vote on January 29, 2004,
on the election of directors and ratification of financing
transactions with certain entities of VantagePoint; and another on
August 25, 2005, in connection with the stockholder vote on the
FIM Transaction. The complaint named as defendants certain
VantagePoint related entities, the former general counsel and the
members of the Intermix Board who were incumbent on the dates of
the respective proxy statements. Intermix was not named as a
defendant, but has certain indemnity obligations to the former
officer and director defendants in connection with these claims
and allegations.
On August 25, 2006, plaintiff amended his complaint to add certain
investment banks (the "Investment Banks") as defendants. Intermix
has certain indemnity obligations to the Investment Banks as well.
Plaintiff amended his complaint again on
September 27, 2006, which defendants moved to dismiss. On
February 9, 2007, the case was transferred to Judge George H.
King, the judge assigned to the LeBoyer action, on the grounds
that it raises substantially related questions of law and fact as
LeBoyer, and would entail substantial duplication of labor if
heard by different judges. On June 11, 2007, Judge King ordered
the Brown case be consolidated with the LeBoyer action, ordered
plaintiffs' counsel to file a consolidated first amended
complaint, and further ordered the parties to file a joint brief
on defendants' contemplated motion to dismiss the consolidated
first amended complaint. On July 11, 2007, plaintiffs filed the
consolidated first amended complaint, which defendants moved to
dismiss. By order dated January 17, 2008, Judge King granted
defendants' motion to dismiss the 2003 proxy claims (concerning
VantagePoint transactions) and the 2005 proxy claims (concerning
the FIM Transaction), as well as a claim against the VantagePoint
entities alleging unjust enrichment. The court found it
unnecessary to rule on dismissal of the remaining claims, which
are related to the 2005 FIM Transaction, because the dismissal
disposed of those claims.
On February 8, 2008, plaintiffs filed a consolidated second
amended complaint, which defendants moved to dismiss on
February 28, 2008. By order dated July 15, 2008, the court
granted in part and denied in part defendants' motion to dismiss.
The 2003 claims and the claims against the Investment Banks were
dismissed with prejudice. The Section 14(a), Section 20(a) and
the breach of fiduciary duty claims related to the FIM Transaction
remain against the officer and director defendants and the
VantagePoint defendants. On November 14, 2008, plaintiff filed a
motion for class certification to which defendants filed their
opposition on January 14, 2009. On June 22, 2009, the court
granted plaintiff's motion for class certification, certifying a
class of all holders of Intermix common stock from July 18, 2005,
through consummation of the FIM Transaction, who were allegedly
harmed by defendants' improper conduct as set forth in the
complaint. The parties have completed fact and expert discovery.
On June 17, 2010, the court granted in part and denied in part
defendants' summary judgment motion filed on October 19, 2009.
Specifically, the court denied plaintiff's motion for summary
adjudication of a factual issue and denied defendants' motion to
exclude plaintiff's damages expert, which was filed on November
30, 2009. In the court's June 17, 2010 order, the court found
that plaintiff could not proceed on any fiduciary duty claim based
upon alleged violations of the duty of care, but found material
issues of fact prohibiting summary judgment on alleged violations
of fiduciary duty of loyalty. On plaintiff's Section 14(a) claim,
the court found material issues of fact that prohibited summary
judgment on the entire claim, but granted defendants' motion as to
certain purported omissions, finding the allegedly omitted
information immaterial. Further, the court granted defendants'
motion as to two damage theories for the Section 14(a) claim,
finding benefit of the bargain damages not viable and lost
opportunity damages too speculative, and permitting plaintiff to
proceed only based upon a theory of out-of-pocket damages. No
trial date was set.
On October 21, 2010, the parties agreed to a settlement of the
action, which is subject to approval by the court. A formal
stipulation of settlement was submitted to the court for its
approval on December 28, 2010, and the Company recognized the
terms of this settlement in its results of operations. The terms
of this settlement were not material to the Company. On
February 18, 2011, the court granted preliminary approval of the
settlement. Plaintiff's counsel supervised notice of the
settlement to the class. The notice provided class members with
an opportunity to object. Two shareholders filed objections to
the settlement with the court in April 2011. Both objectors had
counsel appear on their behalf at a hearing on May 16, 2011, where
the court considered plaintiff's motion for final approval of the
settlement and plaintiff's counsel's motion for attorneys' fees,
which will come out of the settlement funds. At the hearing, the
court did not rule on the motions and instead ordered that
plaintiff, objector Trafelet & Co., and defendants submit joint
briefing with respect to certain of Trafelet's objections. The
joint brief was filed on June 10, 2011. The joint brief narrowed
the objections to allocation of the settlement amount and
sufficiency of the notice as it pertains to how the settlement
funds will be allocated. The joint brief contained no objection
to the settlement itself. On
September 29, 2011, the court entered an order rejecting the
settlement in so far as the court found that the proposed plan of
allocation was not fair, adequate and reasonable because certain
members of the certified class are releasing their claims under
the settlement, but under the proposed plan, they will not be
receiving any of the settlement proceeds. The court ordered the
parties to submit a new plan of allocation within 30 days and
stated that it will issue appropriate orders after reviewing the
new plan. The court order had no effect on the settlement amount.
Plaintiff and Trafelet submitted competing revised plans of
allocation of the settlement proceeds. On December 19, 2011, the
court set a hearing for January 12, 2012 to consider these plans
and whether further notice should be provided to the class if the
court were to approve a revised plan of allocation. The court
heard argument on the issues of allocation and notice on January
12, 2012. The court has not issued its formal order setting forth
the revised plan of allocation yet. Any objections to the revised
plan are set to be heard by the court on March 19, 2012.
NEWS CORP: Response in eBook MDL vs. HarperCollins Due on March 2
-----------------------------------------------------------------
Defendants' response to an amended complaint in an antitrust
multidistrict litigation involving a subsidiary of News
Corporation is due on March 2, 2012, according to the Company's
February 9, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended December 31, 2011.
Commencing on August 9, 2011, twenty-nine purported consumer class
actions have been filed in the U.S. District Courts for the
Southern District of New York and for the Northern District of
California, which relate to the decisions by certain publishers,
including HarperCollins Publishers L.L.C. ("HarperCollins"), to
begin selling their eBooks pursuant to an agency relationship.
While the complaints contain some substantive differences, the
cases are similar and all involve allegations that certain named
defendants in the book publishing and distribution industry,
including HarperCollins, violated the antitrust and unfair
competition laws by virtue of the switch to the agency model for
eBooks. The actions seek as relief treble damages, injunctive
relief and attorneys' fees. The defendants filed a motion with
the Judicial Panel on Multidistrict Litigation ("JPML") to
transfer and consolidate these various class actions in the
Southern District of New York. That motion to transfer and
consolidate was heard by the JPML on December 1, 2011. Shortly
thereafter, the JPML transferred twenty-seven of the cases to the
Honorable Denise L. Cote in the Southern District of New York. It
is anticipated that the remaining two cases will be similarly
transferred. On December 20, 2011, Judge Cote held a status
conference and set a schedule for the multi-district litigation.
On January 20, 2012, plaintiffs filed a consolidated amended
complaint, again alleging that certain named defendants, including
HarperCollins, violated the antitrust and unfair competition laws
by virtue of the switch to the agency model for eBooks.
Defendants' response is due on March 2, 2012. On
January 26, 2012, one of the class plaintiffs voluntarily
dismissed his complaint without prejudice.
In addition, certain federal and state agencies in the United
States and governmental competition agencies in the European Union
are conducting investigations into the same alleged conduct by
certain publishers, including HarperCollins. Following
discussions with the European Commission, the Office of Fair
Trading closed its investigation in favor of the European
Commission's investigation on December 6, 2011. HarperCollins
currently is cooperating with these investigations.
While it is not possible to predict with any degree of certainty
the ultimate outcome of the class actions and investigations,
especially given their early stages, HarperCollins believes it was
compliant with applicable antitrust and competition laws and
intends to defend itself vigorously.
PERFORMANCE FOOD: Wins Bid to Dismiss Meal-Break Class Action
-------------------------------------------------------------
McGuire Woods reports that Los Angeles labor and employment
attorneys Matthew Kane, Michael Mandel, Sabrina Beldner and Sylvia
Kim have won the dismissal of a California meal-break violations
class action brought against the Vistar and Roma Food divisions of
client Performance Food Group (PFG). On Feb. 8, 2012, the U.S.
District Court for the Central District of California granted
PFG's motion to dismiss the plaintiffs' second amended complaint
on the grounds that California's meal-break laws and all of the
plaintiff's claims based on alleged violations of those laws are
preempted by the Federal Aviation Administration Authorization Act
(FAAAA), which expressly preempts state laws that have a
significant impact on the routes, services or prices of federally-
regulated motor carriers.
The plaintiffs, who are former PFG truck drivers in California,
alleged that PFG built its delivery routes to ensure timely
delivery and customer service, but did so by imposing delivery
windows and other delivery policies that caused "time pressure"
which prevented them and other drivers from being able to take
meal breaks as ostensibly required under California law. In its
motion to dismiss, PFG successfully argued that no factual
analysis was necessary to decide the preemption issue because
California's meal break laws facially impose substantive standards
regarding the timing, frequency and duration of such breaks on
PFG's operations as a motor carrier, and that those meal break
requirements have a significant and prohibited impact on its
operations triggering preemption under the FAAAA.
This ruling is one of only two decisions to hold that California's
meal-break laws, as applied to a motor carrier's truck drivers,
are preempted by the FAAAA. In so holding, the court expressly
rejected the application of several earlier state and federal
trial court decisions which held that the effect of California's
break laws on a carrier's routes, service and prices is too remote
or tenuous for FAAAA preemption to apply. Instead, the district
judge relied on and applied a recent September 2011 9th U.S.
Circuit Court of Appeals decision holding that the "proper
inquiry" for determining if a state law has a "significant" effect
for purposes of FAAAA preemption is to consider if it "directly or
indirectly, 'binds the . . . carrier to a particular price, route
or service and thereby interferes with competitive market forces
within the industry." In applying that "proper inquiry," the
district judge adopted PFG's arguments and authorities to conclude
that California's break laws require breaks for employees at
certain times and of certain lengths, which substantively impact
and bind PFG to routes and service it would not otherwise use
and/or provide, and are therefore preempted by the FAAAA.
Accordingly, the court dismissed the plaintiffs' action in its
entirety with prejudice. In achieving this result, the Los
Angeles team had invaluable support from paralegal Rachel Evey.
PILGRIM'S PRIDE: May 1 Settlement Fairness Hearing Set
------------------------------------------------------
The Law Firm of Kessler Topaz Meltzer & Check, LLP announced a
Proposed Class Action Settlement with Pilgrim's Pride Corporation.
Summary Notice of Pendency and Proposed Settlement of Class Action
and Settlement Fairness Hearing
To: All persons and entities who purchased or otherwise acquired
the common stock of Pilgrim's Pride Corporation from May 5, 2008
to October 28, 2008, inclusive, including all those who purchased
the common stock of Pilgrim's Pride Corporation pursuant and/or
traceable to any registration statement, prospectus, prospectus
supplement or any documents therein incorporated by reference
filed with the U.S. Securities and Exchange Commission in
connection with the Company's May 14, 2008 Secondary Offering, and
who were damaged thereby.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and Order of the Court, that the above-
captioned action has been certified as a class action for purposes
of settlement only and that a settlement for One Million Five
Hundred Thousand Dollars ($1,500,000) has been proposed. A
hearing will be held before the Honorable Rodney Gilstrap in the
United States District Court for the Eastern District of Texas,
Sam B. Hall, Jr. Federal Building and United States Courthouse,
100 East Houston Street, Marshall, Texas 75670, Courtroom 106, at
9:00 a.m., on May 1, 2012 to determine: (1) whether the proposed
Settlement should be approved as fair, reasonable and adequate;
(2) whether the Action should be dismissed with prejudice against
Defendants; (3) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (4) whether Lead Counsel's
application for an award of attorneys' fees and reimbursement of
expenses should be approved.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL
BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT
FUND. If you have not yet received the full printed Notice of
Pendency of Class Action and Proposed Settlement, Motion for
Attorneys' Fees and Expenses and Settlement Fairness Hearing and
Proof of Claim and Release form, you may obtain copies of these
documents by contacting:
Pilgrim's Pride Corporation Securities Litigation
c/o Rust Consulting, Inc.
P.O. Box 2619
Faribault, MN 55021-9619
Telephone: (866) 430-8117
Web site: http://www.PilgrimsPrideSecuritiesSettlement.com
Inquiries, other than requests for the forms of the Notice and
Proof of Claim, may be made to Lead Counsel:
Gregory M. Castaldo, Esq.
Christopher L. Nelson, Esq.
Jennifer L. Enck, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
E-mail: gcastaldo@ktmc.com
mmustokoff@ktmc.com
jenck@ktmc.com
To participate in the Settlement, you must submit a Proof of Claim
postmarked not later than June 9, 2012. If you are a member of
the Class and do not submit a valid Proof of Claim, you will not
share in the Settlement but you nevertheless will be bound by the
Judgment entered by the Court in this litigation. As more fully
described in the Notice, the deadline for submitting objections
and requests for exclusion is April 17, 2012.
Further information may also be obtained by directing your inquiry
in writing to the Claims Administrator, Rust Consulting, Inc., at
the address listed above.
DATED: January 23, 2012
BY ORDER OF THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF
TEXASMARSHALL DIVISION
* Extra Pizza Delivery Charges May Prompt Class Action
------------------------------------------------------
The HR Specialist reports that there may be a class-action lawsuit
lurking in your delivery charges if you automatically tack on
extra fees for delivering pizza or other food directly to homes or
businesses and that money doesn't go straight to the delivery
drivers.
That's because Minnesota's Fair Labor Standards Act has a
provision that says such charges are tips -- unless you clearly
state that they are not.
Here's what the law says: A gratuity is a "monetary contribution
received directly or indirectly by an employee from a guest,
patron or customer for services rendered and includes an
obligatory charge assessed customers, guest or patron which might
reasonably be construed by the customer, guest or patron as being
payment for personal services rendered by an employee and for
which no clear and conspicuous notice is given by the employer to
the customer, guest or patron that the charge is not the property
of the employee."
The regulation implementing the section specifies that service
charges listed on a bill that might be construed as payment to the
employee rendering a service is a gratuity. Here's what happened
in a recent case.
Recent case: Matt Luiken worked for Domino's Pizza, delivering
pizzas. He sued on behalf of himself and other similarly situated
delivery drivers in Minnesota, claiming that Domino's charged
customers a $1.50 delivery charge, but did not give any of that to
the drivers.
Domino's had, over the years, made some attempt to explain the
service charge.
For example, it placed a note on pizza boxes stating that "Any
delivery charge is not a tip paid to your driver. Please reward
your driver for awesomeness." Later, the language was placed on
all delivery boxes, on the company Web site and in all
advertisements.
When Mr. Luiken sued, Domino's argued that customers understood
that the charge was not a gratuity. It also argued that the case
wasn't a legitimate collective action. Instead, the restaurant
chain claimed, each driver should have to prove that each customer
was confused and thought the service charge was a tip in order to
win.
The court rejected the pizza chain's argument.
All the drivers have to show is that a hypothetical reasonable
customer would think the charge was a gratuity. There was no need
to find actual customers.
The court's ruling also meant that the case could proceed as a
class-action suit, instead of several individual cases. (Luiken,
et al., v. Domino's Pizza, No. 09-516, DC MN, 2011)
Final note: This case illustrates how easily a dispute over just a
few dollars can escalate into a huge lawsuit.
Assuming that the charge belongs to the driver, his total damages
would amount to $1.50 times the number of deliveries he made
perhaps a few thousand dollars. But multiply that over all
delivery drivers in Minnesota, and soon you're talking big bucks.
If you use a delivery charge and have any questions about whether
the gratuity rule applies to you, consult your attorney right
away. He or she can help you design a way to include the charge
and not have it counted as a gratuity.
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