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C L A S S A C T I O N R E P O R T E R
Thursday, March 22, 2012, Vol. 14, No. 58
Headlines
AFFINION GROUP: Awaits Decision on Co. Dismissal Bid in N.Y. Suit
AFFINION GROUP: Awaits Ruling on Bid to Dismiss Arizona Suit
AFFINION GROUP: Class Cert. Briefing to Be Completed on May 18
AFFINION GROUP: New York Court Closed Class Suit in Dec. 2011
AFFINION GROUP: Ohio Court Dismissed Class Suit Last Month
AFFINION GROUP: Oregon Court Terminated Class Suit in January
AFFINION GROUP: Plaintiff Filed Dismissal Notice in Calif. Suit
AFFINION GROUP: Webloyalty Still Defends EFTA-Violations Suits
AMERICAN EQUITY: Consolidated Suit Over Sales Practices Pending
AMERICAN HONDA: Judge Approves Mileage Class Action Settlement
ASCENA RETAIL: Settlement Funds Disbursed to Class Members
AUTOBYTEL INC: Consolidated IPO Litigation vs. Unit Concluded
AUTOBYTEL INC: Consolidated IPO-Related Class Suit Concluded
BAYER AG: Averts Third Class Action in Yaz MDL
CARMAX INC: Lieff Cabraser Files Suit Over Unpaid Overtime Pay
CHEVRON CORP: Judge Tosses Class Action Over Customer ZIP Codes
CITIZENS BANK: Customers to Engage in Private Mediation
DAVID STERN: Former Employees Settle Class Action
FIRST SOLAR: Pomerantz Law Firm Files Securities Class Action
GOV'T OF QUEENSLAND: Lawyers Gear Up for Flood Class Action
HERTZ GLOBAL: Awaits Ruling on Certification Bid in "Sobel" Suit
HERTZ GLOBAL: LDW-Related Suit Remains in Discovery Stages
HERTZ GLOBAL: Assessment Fee Suit Parties in Settlement Talks
HERTZ GLOBAL: Unit to Remove "Fun Services" Suit to District Ct.
IMPERIAL TOBACCO: Dozens of Lawyers Attend Class Action Hearing
JOS A BANK: Violates California Wage and Hour Laws, Suit Claims
KKR & CO: Briefing on Bid to Dismiss Merger-Related Suit Ongoing
KKR & CO: Continues to Defend Antitrust Suit in Massachusetts
KKR & CO: Del Monte-Related Antitrust Suit Dismissed in December
KOPPERS HOLDINGS: Plaintiffs Seek to Amend Gainesville Plant Suit
POLY IMPLANT: 540 Women Join Breast Implant Class Action
RAJGOPAL MENON: Three Patients to Appeal Class Action Dismissal
SIOUX HONEY: Faces Class Suit in Calif. Over Sue Bee Product
SPECTRA ENERGY: Unit Continues to Defend Royalty Dispute Suits
TFT-LCD MANUFACTURERS: Settle Class Action for $405 Million
THOMAS JEFFERSON: Files Motion to Dismiss Class Action
TIME WARNER: Faces Class Action for Withholding Programming
TOWN SPORTS: Awaits Ruling on Bids to Dismiss Two Suits vs. Unit
TRANSOCEAN LTD: Awaits Orders on Bids to Dismiss Securities Suits
TRANSOCEAN LTD: Faces 184 Class Suits Over Macondo Well Incident
UNIVERSITY OF MIAMI: May Face Class Action Over Placement Rates
WALTER ENERGY: Investors File Class Action in Alabama
WESTPARK CAPITAL: Court Dismisses Shareholder Class Action
*********
AFFINION GROUP: Awaits Decision on Co. Dismissal Bid in N.Y. Suit
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Affinion Group, Inc. is awaiting a court decision on plaintiff's
motion to dismiss the Company from a class action lawsuit pending
in New York, according to the Company's March 1, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On November 10, 2010, a class action complaint was filed against
the Company, Trilegiant Corporation, 1-800-Flowers.com, and Chase
Bank USA, N.A. in the United States District Court for the Eastern
District of New York. The complaint asserts various causes of
action on behalf of several putative nationwide classes that
largely overlap with one another. The claims asserted are in
connection with the sale by Trilegiant of its membership programs,
including claims under the Electronic Communications Privacy Act,
Connecticut Unfair Trade Practices Act, and New York's General
Business Law. On April 6, 2011, the Company and Trilegiant filed
a motion to compel individual (non-class) arbitration of the
plaintiff's claims. The Company's co-defendant, 1-800-
Flowers.com, joined in the motion to compel arbitration, and co-
defendant Chase Bank filed a motion to stay the case against it
pending arbitration, or alternatively to dismiss. The Company
says it does not know when the court will issue a ruling on these
motions.
As part of the plaintiff's stated effort to dismiss this lawsuit
and refile it in federal court in Connecticut, on December 23,
2011, the plaintiff sought to dismiss the Company, Trilegiant, and
1-800-Flower without prejudice. On January 4, 2012, the Company
and Trilegiant objected to that dismissal (and 1-800-Flowers
joined in that objection), seeking among other things dismissal
with prejudice. Plaintiff responded to that objection on January
13, 2012, and the Company says it does not know when the court
will enter a decision.
Also, on January 13, 2012, the plaintiff sought to dismiss Chase
without prejudice. On January 17, 2012, Chase filed an objection
to the plaintiff's dismissal request. The Company does not know
when the court will rule on that issue.
AFFINION GROUP: Awaits Ruling on Bid to Dismiss Arizona Suit
------------------------------------------------------------
Affinion Group, Inc. is awaiting a court decision on its request
to dismiss, with prejudice, a class action lawsuit pending in
Arizona, according to the Company's March 1, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On July 13, 2011, a class action lawsuit was filed against
Affinion Group, LLC ("AGLLC"), Trilegiant Corporation, Apollo
Global Management LLC, and Chase Bank USA, N.A., in the United
States District Court for the District of Arizona. The complaint
asserts various causes of action on behalf of putative nationwide
classes in connection with the sale by Trilegiant of its
membership programs, including claims under the Electronic
Communications Privacy Act, the Connecticut Unfair Trade Practices
Act, and state common law. On October 18, 2011, Trilegiant,
AGLLC, and Apollo filed a motion to stay, to which the plaintiff
never responded. On November 1, 2011, Trilegiant and AGLLC filed
a motion to compel arbitration, and Apollo joined in that motion
and also sought dismissal. The plaintiff never responded to those
motions. On December 14, 2011, the court issued a rule to show
cause order directed to the plaintiff for the plaintiff's failure
to respond to the various motions. The plaintiff responded to
that rule to show cause order on
December 21, 2011. Previously, on December 15, 2011, the
plaintiff sought to dismiss the action without prejudice, and
December 21, 2011, Trilegiant, Affinion, and Apollo filed a brief
urging the court to dismiss the action with prejudice.
On January 17, 2012, Chase filed a motion to transfer this case to
the Eastern District of New York ("EDNY") so that it can be
consolidated with a pending lawsuit in the EDNY.
AFFINION GROUP: Class Cert. Briefing to Be Completed on May 18
--------------------------------------------------------------
Completion of a class certification briefing in the class action
lawsuit pending in Connecticut will be on May 18, 2012, according
to Affinion Group, Inc.'s March 1, 2012, Form 10-K filing with the
U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On June 17, 2010, a class action complaint was filed against the
Company and Trilegiant Corporation ("Trilegiant") in the United
States District Court for the District of Connecticut. The
complaint asserts various causes of action on behalf of a putative
nationwide class and a California-only subclass in connection with
the sale by Trilegiant of its membership programs, including
claims under the Electronic Communications Privacy Act,
Connecticut Unfair Trade Practices Act, California Consumers Legal
Remedies Act, and California False Advertising Law. On September
29, 2010, the Company filed a motion to compel arbitration of all
of the claims asserted in this lawsuit. On February 24, 2011, the
court denied the Company's motion. On March 28, 2011, the Company
and Trilegiant filed a notice of appeal in the United States Court
of Appeals for the Second Circuit, appealing the district court's
denial of their motion to compel arbitration.
The Company says it does not know when the appeal will be decided.
Notwithstanding the appeal, the case is currently proceeding in
the district court. There has been written discovery and
depositions, and the court has set a briefing schedule on class
certification that calls for the completion of class certification
briefing on May 18, 2012.
AFFINION GROUP: New York Court Closed Class Suit in Dec. 2011
-------------------------------------------------------------
The United States District Court for the Southern District of New
York closed on December 14, 2011, a class action lawsuit involving
Affinion Group, Inc., according to the Company's
March 1, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On August 8, 2011, a class action lawsuit was filed against
Affinion Group, LLC ("AGLLC"), Trilegiant Corporation, Apollo
Global Management, LLC, and American Express Company in the United
States District Court for the Southern District of New York. The
complaint, which is substantially similar to the class action
complaints pending in Arizona, Oregon and Ohio, asserts various
causes of action on behalf of putative nationwide classes in
connection with the sale by Trilegiant of its membership programs,
including claims under the Electronic Communications Privacy Act,
the Connecticut Unfair Trade Practices Act, and state common law.
On December 5, 2011, the court granted American Express's motion
to compel arbitration.
On December 14, 2011, the plaintiff filed a notice of voluntary
dismissal as to Trilegiant, AGLLC, and Apollo, and the case was
closed by the court on the same day.
On October 6, 2011, the plaintiffs in this class action, as well
as the plaintiffs in similar class action cases, filed a motion
under 28 U.S.C. Section 1407 with the Judicial Panel on
Multidistrict Litigation ("JPML") seeking coordinated pretrial
proceedings of the class action cases. Plaintiffs argue that the
factual allegations in the cases raise common issues that make
pretrial transfer appropriate; they seek transfer and
consolidation of the cases to the United States District Court for
the District of Connecticut. All of the defendants opposed that
motion. On December 9, 2011, the JPML entered an order denying
consolidation and transfer of these cases.
AFFINION GROUP: Ohio Court Dismissed Class Suit Last Month
----------------------------------------------------------
The United States District Court for the Southern District of Ohio
dismissed a class action lawsuit against Affinion Group, Inc. last
month, according to the Company's March 1, 2012, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
On August 4, 2011, a class action lawsuit was filed against
Affinion Group, LLC ("AGLLC"), Trilegiant Corporation, Apollo
Global Management, LLC, and Chase Bank USA, N.A., in the United
States District Court for the Southern District of Ohio. The
complaint, which is substantially similar to the class action
complaints pending in Arizona and Oregon, asserts various causes
of action on behalf of putative nationwide classes in connection
with the sale by Trilegiant of its membership programs, including
claims under the Electronic Communications Privacy Act, the
Connecticut Unfair Trade Practices Act, and state common law. On
December 23, 2011, the plaintiff filed a notice of voluntary
dismissal without prejudice as to Trilegiant, AGLLC, and Apollo.
On February 10, 2012, the court entered an order dismissing the
lawsuit in its entirety without prejudice.
AFFINION GROUP: Oregon Court Terminated Class Suit in January
-------------------------------------------------------------
The United States District Court for the District of Oregon
terminated a class action lawsuit against Affinion Group, Inc., in
January 2012, according to the Company's March 1, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On July 14, 2011, a class action lawsuit was filed against
Affinion Group, LLC ("AGLLC"), Trilegiant Corporation, Apollo
Global Management, LLC, Avis Rent A Car System, LLC, Avis Budget
Car Rental LLC, Avis Budget Group, Inc., and Bank of America, N.A.
in the United States District Court for the District of Oregon,
Portland Division. The complaint, which is substantially similar
to a class action complaint pending in Arizona, asserts various
causes of action on behalf of putative nationwide classes in
connection with the sale by Trilegiant of its membership programs,
including claims under the Electronic Communications Privacy Act,
the Connecticut Unfair Trade Practices Act, and state common law.
On December 27, 2011, Plaintiff filed a notice of voluntary
dismissal without prejudice, and the case was terminated by the
court on January 6, 2012.
AFFINION GROUP: Plaintiff Filed Dismissal Notice in Calif. Suit
---------------------------------------------------------------
The plaintiff in a class action lawsuit commenced in California
filed a notice of voluntary dismissal in December 2011 as to all
defendants except Chase Bank USA, N.A., according to the Company's
March 1, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended
December 31, 2011.
On October 25, 2011, a class action lawsuit was filed against
Affinion Group, LLC ("AGLLC"), Trilegiant Corporation, Apollo
Global Management, LLC, IAC/InterActiveCorp., Shoebuy.com, and
Chase Bank USA, N.A. in the United States District Court for the
Central District of California. The complaint, which is
substantially similar to the class action complaints filed in July
2011 and August 2011 in various states, asserts various causes of
action on behalf of putative nationwide classes in connection with
the sale by Trilegiant of its membership programs, including
claims under the Electronic Communications Privacy Act, the
Connecticut Unfair Trade Practices Act, and state common law. On
December 14, 2011, the plaintiff filed a notice of voluntary
dismissal as to all of the defendants except Chase.
AFFINION GROUP: Webloyalty Still Defends EFTA-Violations Suits
--------------------------------------------------------------
A subsidiary of Affinion Group, Inc., continues to defend class
action lawsuits alleging violations of the Electronic Fund
Transfer Act, according to the Company's March 1, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On June 25, 2010, a class action lawsuit was filed against the
Company's subsidiary, Webloyalty Holdings Inc., and one of its
clients in the United States District Court for the Southern
District of California alleging, among other things, violations of
the Electronic Fund Transfer Act and Electronic Communications
Privacy Act, unjust enrichment, fraud, civil theft, negligent
misrepresentation, fraud, California Consumers Legal Remedies Act
violations, false advertising and California Consumer Business
Practice violations. This lawsuit relates to Webloyalty's alleged
conduct occurring on and after October 1, 2008. On February 17,
2011, Webloyalty filed a motion to dismiss the amended complaint
in this lawsuit. On April 12, 2011, the Court granted
Webloyalty's motion and dismissed all claims against the
defendants. On May 10, 2011, plaintiff filed a notice appealing
the dismissal to the United States Court of Appeals for the Ninth
Circuit. Plaintiff filed his opening appeals brief with the Ninth
Circuit on October 17, 2011, and defendants filed their respective
answering briefs on December 23, 2011. Plaintiff filed its reply
brief on January 23, 2012. No date for oral argument on
plaintiff's appeal has been set.
On August 27, 2010, another substantially similar class action
lawsuit was filed against Webloyalty, one of its former clients
and one of the credit card associations in the United States
District Court for the District of Connecticut alleging, among
other things, violations of the Electronic Fund Transfer Act,
Electronic Communications Privacy Act, unjust enrichment, civil
theft, negligent misrepresentation, fraud and Connecticut Unfair
Trade Practices Act violations. This lawsuit relates to
Webloyalty's alleged conduct occurring on and after October 1,
2008. On December 23, 2010, Webloyalty filed a motion to dismiss
this lawsuit, which had since been amended in its entirety. The
court has not yet scheduled a hearing or ruled on Webloyalty's
motion.
On February 18, 2011, a class action complaint was filed against
Webloyalty and one of its clients in the District Court for the
Western District of Virginia. The complaint asserted various
causes of action on behalf of a putative nationwide class,
including unfair and deceptive acts and practices, unjust
enrichment, invasion of privacy, money had and received, larceny,
obtaining money by false pretense, trover, conversion, detinue,
trespass, fraud, misrepresentation and computer fraud and
violations under the Electronic Communications Privacy Act in
connection with the sale by Webloyalty of its membership programs.
The complaint was served on the Company on March 3, 2011.
Following the April 12, 2011 decision dismissing the substantially
similar class action lawsuit commenced in the United States
District Court for the Southern District of California, plaintiff
in the Virginia class action lawsuit agreed to settle her case on
an individual basis for a nominal amount. The parties filed a
stipulation of dismissal with prejudice with the court on April
21, 2011.
AMERICAN EQUITY: Consolidated Suit Over Sales Practices Pending
---------------------------------------------------------------
American Equity Investment Life Holding Company continues to
defend a consolidated class action lawsuit alleging improper sales
practices, according to the Company's March 1, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
In recent years, companies in the life insurance and annuity
business have faced litigation, including class action lawsuits,
alleging improper product design, improper sales practices and
similar claims. The Company is currently a defendant in a
purported class action, McCormack, et al. v. American Equity
Investment Life Insurance Company, et al., in the United States
District Court for the Central District of California, Western
Division and Anagnostis v. American Equity, et al., coordinated in
the Central District, entitled, In Re: American Equity Annuity
Practices and Sales Litigation, in the United States District
Court for the Central District of California, Western Division
(complaint filed September 7, 2005) (the "Los Angeles Case"),
involving allegations of improper sales practices and similar
claims.
The Los Angeles Case is a consolidated action involving several
lawsuits filed by individuals, and the individuals are seeking
class action status for a national class of purchasers of
annuities issued by the Company; however, no class has yet been
certified. The named plaintiffs in this consolidated case are
Bernard McCormack, Gust Anagnostis by and through Gary S.
Anagnostis and Robert C. Anagnostis, Regina Bush by and through
Sharon Schipiour, Lenice Mathews by and through Mary Ann Maclean
and George Miller. The allegations generally attack the
suitability of sales of deferred annuity products to persons over
the age of 65. The plaintiffs seek rescission and injunctive
relief including restitution and disgorgement of profits on behalf
of all class members under California Business & Professions Code
Section 17200 et seq. and Racketeer Influenced and Corrupt
Organizations Act; compensatory damages for breach of fiduciary
duty and aiding and abetting of breach of fiduciary duty; unjust
enrichment and constructive trust; and other pecuniary damages
under California Civil Code Section 1750 and California Welfare &
Institutions Codes Section 15600 et seq.
The Company revealed that it participated in mediation sessions
with plaintiffs' counsel during the second and third quarters of
2011 and potential settlement terms are being discussed. However,
due to (i) the fact no class has been certified (ii) the lack of
specificity as to legal theories put forth by the plaintiffs,
(iii) the lack of specificity of the remedies sought, and (iv) the
lack of any basis on which to compute estimated compensatory
and/or punitive damages, the Company says it generally cannot
predict what the outcome of the pending purported class action
lawsuit will be, what the timing of the ultimate resolution of
this lawsuit will be, or an estimate and/or range of possible loss
related to the pending purported class action lawsuit. In light
of the inherent uncertainties involved in the pending purported
class action lawsuit, there can be no assurance that such
litigation, or any other pending or future litigation, will not
have a material adverse effect on the Company's business,
financial condition, or results of operations.
No further updates were reported in the Company's latest SEC
filing.
AMERICAN HONDA: Judge Approves Mileage Class Action Settlement
--------------------------------------------------------------
Elliot Spagat, writing for The Associated Press, reports that a
judge approved a settlement on March 16 to give owners of Honda
Civic hybrids up to $200 each over claims that the fuel economy of
the cars was inflated, casting aside arguments that a motorist's
victory in small claims court entitled other owners to a larger
award.
Superior Court Judge Timothy Taylor said the essence of a
settlement is compromise.
"No doubt plaintiffs would have loved to have gotten more.
Certainly their counsel had every incentive to get as much as
possible," he said. "Honda undoubtedly has many arrows left in
its quiver, and certainly would have preferred to pay nothing."
Judge Taylor listened to nearly two hours of arguments before
ruling.
The case gained widespread attention after a Los Angeles woman won
a $9,867 judgment last month against Honda in small claims court
-- a ruling that is under appeal by the carmaker. Plaintiff
Heather Peters opted out of the class action so she could try to
claim a larger damage award for the failure of her 2006 Civic to
deliver the 50 mpg (21.26 kpl) that was promised.
The judge said Ms. Peters' legal victory carried little weight.
Ms. Peters, who recently reinstated her law license, said on
March 16 that she was disappointed but not surprised at Judge
Taylor's ruling.
The judge got testy with her last month when she tried to address
him at a hearing, saying he had not yet received confirmation that
her license was renewed. His patience also wore thin when
California and four other states briefly considered objecting to
the settlement after Ms. Peters' victory.
The judge was visibly irritated with Ms. Peters again on March 16
when she complained about difficulty reviewing documents under the
court's outdated paper filing system.
"Do you really want me to get into that, Ms. Peters?" the judge
asked.
The judge went on to say Ms. Peters recently "disrupted" his
courtroom to gain access to the docket. To accommodate her, he
said he ordered that a copy of the voluminous documents be made
available for public viewing.
Ms. Peters told reporters after the hearing that she was focused
on arguing Honda's appeal of her small-claims award on April 13.
"I'm certainly disappointed, but we're proud to have stood up,"
she said.
The settlement pays owners of about 200,000 Honda Civics from
model years 2003 to 2009 between $100 and $200, plus a rebate
toward the purchase of a new Honda. Owners of models from 2006 to
2008 get the larger amount due to additional claims over battery
defects.
The judge has valued the settlement at $170 million. Attorneys
for the plaintiffs have pegged the value between $87.5 million and
$461.3 million, depending largely on how many people accept
rebates of up to $1,500.
The judge approved more than $8 million in plaintiff attorneys
fees in his 43-page ruling.
Ms. Peters' win in small claims court was a unique end run around
the class action process, which typically give small payments to
consumers. In small claims court, there are no attorneys' fees,
cases are decided quickly, and individual payments are far
greater.
Nicholas Chimicles, one of the plaintiff attorneys, expressed
concern that consumers were being falsely led to believe the small
claims court was "nirvana." Honda said it has won five of the six
small claims over the hybrids since January, with Ms. Peters
dealing its only defeat.
Mr. Chimicles, who billed $675 to $750 an hour for his work on the
case, told the judge that the new converts to the small claims
venue were "akin to following the Pied Piper over the precipice."
More than 1,700 Honda owners opted out of the settlement. Some
believed consumers should be paid more. Others complained the
attorney fees were too high.
Still, the judge noted, many objectors were sympathetic to the
automaker and satisfied with the car's performance. Clancy
Hughes, a physician in Homer, Alaska, said the complaints "seem
spurious."
American Honda Motor Co., the Japanese automaker's U.S.
subsidiary, could have backed out because more than 1,500 owners
opted out, but it embraced the agreement.
"Honda is pleased with the court's approval of this settlement as
a fair resolution for our customers that demonstrates our desire
to preserve our good relationship with Civic Hybrid owners who
chose to participate in this class action," a company statement
read.
ASCENA RETAIL: Settlement Funds Disbursed to Class Members
----------------------------------------------------------
On January 21, 2010, Ascena Retail Group, Inc.'s subsidiary, Tween
Brands Inc., was sued in the U.S. District Court for the Eastern
District of California. This purported class action alleged,
among other things, that Tween Brands violated the Fair Labor
Standards Act by not properly paying its employees for overtime
and missed rest breaks. The parties agreed to a settlement of
this wage and hour lawsuit. The court granted final approval of
the settlement on August 10, 2011. The Company had previously
established a reserve for this settlement.
During the first quarter of Fiscal 2012, the settlement funds were
disbursed to Class Members, and the excess reserve was reversed
into income, according to the Company's March 1, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended January 28, 2012.
The Company says the effect of the settlement and the reversal of
excess reserve was not material to the consolidated financial
statements.
AUTOBYTEL INC: Consolidated IPO Litigation vs. Unit Concluded
-------------------------------------------------------------
A consolidated class action lawsuit against a unit of Autobytel
Inc. has been concluded, according to the Company's March 1, 2012,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2011.
Between April and September 2001, eight separate purported class
actions virtually identical to the one filed against Autobytel
were filed against Autoweb.com, Inc. ("Autoweb"), certain of
Autoweb's former directors and officers ("Autoweb Individual
Defendants") and underwriters involved in Autoweb's initial public
offering. A Consolidated Amended Complaint, which is now the
operative complaint, was filed on April 19, 2002. It purports to
allege violations of the Securities Act and the Exchange Act.
Plaintiffs allege that the underwriter defendants agreed to
allocate stock in Autoweb's initial public offering to certain
investors in exchange for excessive and undisclosed commissions
and agreements by those investors to make additional purchases of
stock in the aftermarket at predetermined prices. Plaintiffs also
allege that the prospectus for Autoweb's initial public offering
was false and misleading in violation of the securities laws
because it did not disclose these arrangements. The action seeks
damages in an unspecified amount. The action is being coordinated
with approximately 300 other nearly identical actions filed
against other companies. The parties in the approximately 300
coordinated cases, including Autoweb's case, reached a settlement.
The insurers for the issuer defendants in the coordinated cases
will make the settlement payment on behalf of the issuers,
including Autoweb. On October 6, 2009, the Court granted final
approval of the settlement. The settlement approval was appealed
to the United States Court of Appeals for the Second Circuit. One
appeal was dismissed and the second appeal was remanded to the
District Court to determine if the appellant is a class member
with standing to appeal. The District Court ruled that the
appellant lacked standing. The appellant appealed the District
Court's decision to the Second Circuit. Subsequently, appellant
entered into a settlement agreement with counsel for the plaintiff
class pursuant to which he dismissed his appeal with prejudice.
As a result, the settlement among the parties in the IPO
Litigation is final and the case against Autoweb and the Autoweb
Individual Defendants is concluded.
AUTOBYTEL INC: Consolidated IPO-Related Class Suit Concluded
------------------------------------------------------------
A consolidated securities class action lawsuit against Autobytel
Inc. and its directors and officers has been concluded, the
Company disclosed in its March 1, 2012, Form 10-K filing with the
U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
In August 2001, a purported class action lawsuit was filed in the
United States District Court for the Southern District of New York
against Autobytel, certain of the Company's current and former
directors and officers ("Autobytel Individual Defendants") and
underwriters involved in the Company's initial public offering. A
Consolidated Amended Complaint, which is now the operative
complaint, was filed on April 19, 2002. This action purports to
allege violations of the Securities Act of 1933 ("Securities Act")
and the Securities Exchange Act of 1934 ("Exchange Act").
Plaintiffs allege that the underwriter defendants agreed to
allocate stock in the Company's initial public offering to certain
investors in exchange for excessive and undisclosed commissions
and agreements by those investors to make additional purchases of
stock in the aftermarket at predetermined prices. Plaintiffs
allege that the prospectus for the Company's initial public
offering was false and misleading in violation of the securities
laws because it did not disclose these arrangements. The action
seeks damages in an unspecified amount. The action is being
coordinated with approximately 300 other nearly identical actions
filed against other companies. The parties in the approximately
300 coordinated cases, including the parties in the Autobytel
case, reached a settlement. The insurers for the issuer
defendants in the coordinated cases will make the settlement
payment on behalf of the issuers, including Autobytel. On October
6, 2009, the Court granted final approval of the settlement. The
settlement approval was appealed to the United States Court of
Appeals for the Second Circuit. One appeal was dismissed and the
second appeal was remanded to the District Court to determine if
the appellant is a class member with standing to appeal. The
District Court ruled that the appellant lacked standing. The
appellant appealed the District Court's decision to the Second
Circuit. Subsequently, appellant entered into a settlement
agreement with counsel for the plaintiff class pursuant to which
he dismissed his appeal with prejudice.
As a result, the settlement among the parties in the IPO
Litigation is final and the case against Autobytel and the
Autobytel Individual Defendants is concluded.
BAYER AG: Averts Third Class Action in Yaz MDL
----------------------------------------------
The American Lawyer reports that Bayer AG still faces more than
11,000 individual suits by women who claim they suffered blood
clots and other injuries from the oral contraceptive Yaz, but
thanks to a ruling last week by the judge overseeing the federal
multidistrict litigation, it appears to have escaped the last of
three proposed class actions.
CARMAX INC: Lieff Cabraser Files Suit Over Unpaid Overtime Pay
--------------------------------------------------------------
Attorney Kelly M. Dermody of the national plaintiffs' law firm
Lieff Cabraser Heimann & Bernstein, LLP, announced the filing on
March 21 of a class action lawsuit charging that CarMax, Inc. and
certain subsidiaries (collectively "CarMax"), have a common,
uniform practice of misclassifying its buyers as exempt and
failing to pay them for all overtime hours worked, in violation of
federal and California overtime pay laws.
"CarMax's great success in the used vehicle sales market rests in
part on the hard work and long hours of its dedicated buyers,"
stated plaintiff Mike Luchini. "We work through early mornings,
meal times, and late evenings for the company. We just ask to be
paid for the hours we have worked, according to what the law
requires."
Plaintiff's counsel Kelly M. Dermody stated, "This lawsuit seeks
fair compensation for CarMax's roughly 1,500 buyers nationwide.
Their valuable overtime work, which we allege has been unpaid, has
been fundamental to CarMax's success in the marketplace."
CarMax employs buyers, including senior buyers and buyers-in-
training, nationwide to collect information on used vehicles for
entry in its computer systems so that an appraisal price can be
calculated. CarMax car buyers must carefully adhere to CarMax's
detailed policies and practices, follow step-by-step procedures,
and use CarMax's comprehensive systems. Due to their large
workload, including regularly traveling to and attending auctions,
the complaint alleges that buyers work a significant amount of
weekly overtime. The lawsuit seeks to recover overtime pay for the
hours those employees have worked in recent years.
Lieff Cabraser serves as counsel for the plaintiff and proposed
nationwide class. The proposed class includes current and former
buyers-in-training, buyers, and senior buyers who have worked
anywhere in the United States in the past three years.
The lawsuit, entitled Luchini v. CarMax, Inc., was submitted to
the United States District Court in Fresno, California on March
21, 2012.
Legal Resources for CarMax Buyers
Current and former CarMax car buyers, senior car buyers, and
buyers-in-training who wish to better understand their legal
rights or discuss their work experiences to plaintiffs' counsel
should visit http://www.buyerot.com/ or
http://www.lieffcabraser.com/carmaxlawsuit
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP is a sixty-plus attorney
law firm that has represented plaintiffs nationwide since 1972.
We have offices in San Francisco, New York, and Nashville. Lieff
Cabraser has a comprehensive and diverse practice which includes
representing employees in wage and hour class action lawsuits
seeking overtime pay. Since 2003, The National Law Journal has
selected Lieff Cabraser as one of the top plaintiffs' law firms in
the nation.
CHEVRON CORP: Judge Tosses Class Action Over Customer ZIP Codes
---------------------------------------------------------------
Zach Winnick, writing for Law360, reports that a California judge
on March 14 threw out class action claims that Chevron Corp.
violated a Golden State consumer protection law by collecting ZIP
codes from customers who paid for gas by credit card, saying the
fraud-prevention measure was allowed under the law.
"Chevron uses this ZIP code information only to prevent fraud. It
does not use the ZIP codes for any marketing purpose or anything
like that," Los Angeles Superior Court Judge John Shepard Wiley
wrote in a tentative ruling he adopted on March 14.
CITIZENS BANK: Customers to Engage in Private Mediation
-------------------------------------------------------
David Beasley, writing for Bloomberg News, reports that Citizens
Bank of Pennsylvania and plaintiffs in a lawsuit challenging
overdraft fees asked for a delay in proceedings while they pursue
private mediation, according to a court filing.
"The parties have agreed to engage in private mediation in an
effort to resolve this case without further litigation," the
Pittsburgh-based bank and the customers said on March 12 in a
filing in federal court in Miami. They agreed to suspend court
filings on whether to certify the case as a class-action, or
group, lawsuit. A mediation session is scheduled for April 17,
according to the filing.
At least 30 banks have cases before U.S. District Judge James
Lawrence King in Miami. The customers say the banks reorder
debit-card transactions in their computers to maximize overdraft
fees.
JPMorgan Chase & Co., the biggest U.S. bank by assets, has reached
a preliminary agreement to pay $110 million to settle litigation.
Bank of America Corp., the second-biggest U.S. bank by assets,
agreed last year to pay $410 million without admitting liability.
Union Bank NA agreed to a $35 million settlement with customers in
November. An Associated Banc-Corp. (ASBC) unit, Associated Bank,
agreed in November to pay $13 million.
The case is In re Checking Account Overdraft Litigation, 09-md-
02036, U.S. District Court, Southern District of Florida (Miami).
DAVID STERN: Former Employees Settle Class Action
-------------------------------------------------
Daily Business Review reports that about 800 former employees of
one-time foreclosure titan David Stern who claimed they were not
given proper notice before being laid off have settled a class
action lawsuit against their former boss for $500,000 -- far less
than the $5 million the employees sought.
FIRST SOLAR: Pomerantz Law Firm Files Securities Class Action
-------------------------------------------------------------
Pomerantz Haudek Grossman & Gross LLP has filed a class action
lawsuit against First Solar Inc. and certain of its officers. The
class action, (2:12-cv-00555), filed in the United States District
Court, District of Arizona, is on behalf of a class consisting of
all persons or entities who purchased First Solar securities
between April 30, 2008 and February 28, 2012, inclusive. This
class action is brought under Sections 10(b) and 20(a) of the
Securities Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a); and
SEC Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R.
Section 240.10b-5.
If you are a shareholder who purchased First Solar securities
during the Class Period, you have until May 14, 2012 to ask the
Court to appoint you as Lead Plaintiff for the class. A copy of
the complaint can be obtained at http://www.pomerantzlaw.com
To discuss this action, contact Rachelle R. Boyle at
rrboyle@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free,
x237. Those who inquire by e-mail are encouraged to include their
mailing address and telephone number.
First Solar designs and manufactures solar modules. The Company
uses a thin film semiconductor technology to manufacture
electricity-producing solar modules.
The Complaint alleges that, throughout the Class Period,
Defendants made false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, and prospects. Specifically, Defendants
made false and/or misleading statements and/or failed to disclose:
(1) the full impact of certain manufacturing flaws on the
Company's earnings; (2) the Company was improperly recognizing
revenue concerning certain products in its systems business; (3)
the Company lacked adequate internal and financial controls; and
(4) as a result of the foregoing, the Company's statements were
materially false and misleading at all relevant times.
On February 29, 2012, the Company announced its financial results
for the fourth quarter and year ended December 31, 2011.
Specifically, First Solar reported a decrease of $345 million in
net sales for the fourth quarter, as compared to the previous
quarter, "primarily due to the timing of revenue recognition in
our systems business and lower for module-only sales." In
addition, the Company disclosed various charges to earnings,
including a charge of $164 million for warranty payments to
replace equipment that caused premature power loss in certain
panels. The Company spent $125.8 million in the fourth quarter on
warranty claims and has put aside $37.5 million to cover future
claims.
On these revelations, First Solar shares declined $4.10 per share
or 11%, to close at $32.30 per share, on February 29, 2012.
The Pomerantz Firm -- http://www.pomerantzlaw.com-- is a law firm
that specializes in the areas of corporate, securities, and
antitrust class litigation. It has offices in New York, Chicago,
and Washington, D.C.
GOV'T OF QUEENSLAND: Lawyers Gear Up for Flood Class Action
-----------------------------------------------------------
Jared Owens, writing for The Australian, reports that lawyers
representing flooded Queenslanders are gearing up for a potential
class action, ordering independent modelling to back the inquiry's
suggestion Brisbane's flood peak could have been reduced.
Commissioner Cate Holmes' final report found Wivenhoe Dam's
operators breached their manual by failing to understand which of
its flood mitigation strategies were being used at different
points during the crisis.
But she said, regardless of their mindsets, the engineers released
amounts of water consistent with the manual's strategies and it
was unclear whether they would have operated the dam any
differently had they followed the rulebook.
"There is, it is obvious, plenty of scope for argument about
whether adherence to the manual strategies would have made a
difference to the way in which the flood engineers actually
operated the dam; but the possibility certainly exists that they
would have responded more quickly to the developing conditions of
January 9 had their mindset been one of applying strategy W3,"
Justice Holmes wrote, referring to the emergency release strategy
that prioritizes protecting Brisbane from inundation.
"Ascertaining the practical result of acting more quickly also is
subject to the uncertainties inherent in the modelling; but again,
the possibility exists of at least some improvement in the
flooding outcome for Brisbane and Ipswich."
Rod Hodgson, a partner at Maurice Blackburn, which represents
about 1500 flood-affected Queenslanders, said he would commission
independent modelling of the flood to demonstrate the likely
effect of the engineers' errors.
The modelling would have "greater accuracy and more reliability"
than any conducted under the inquiry's terms of reference and any
litigation would flow from whatever the science revealed, he said.
"The findings as to the breach of the operations manual . . .
together with the suggestions -- loose as they are -- that it made
a difference to flood levels downstream of Wivenhoe, support a
class action being more likely than not.
"Our view is the report, as a whole, demonstrates that it (the
breaches of the manual) must have made a difference."
Slater & Gordon commercial and project litigation general manager
James Higgins flagged his firm's potential class action could be
"complicated" by the referral of three dam engineers -- Robert
Ayre, Terrence Malone and John Tibaldi -- to the Crime and
Misconduct Commission over their allegedly fictitious report of
the flood event.
"This referral has the potential to prevent any civil proceedings
progressing until the conclusion of a potential criminal trial,"
Mr. Higgins said. "Given the length and complexity of the report,
and the substantial work conducted by the commission in preparing
it, it is only appropriate to consider the report fully before
forming any conclusions about potential legal action."
Mr. Hodgson said the CMC referral presented no complications for
his firm.
Separately, the Australian Associated Press reports that
Queensland Premier Anna Bligh has acknowledged there could be long
legal disputes ahead for the state government after the findings
of an inquiry into last summer's floods.
The Queensland Floods Commission of Inquiry's final report opened
the door to legal action between flood victims and the state
government-owned dam operator, Seqwater, Ms. Bligh said.
"If they want to settle the matter in court they are entitled to
do that and I would never seek to deny someone their right to do
so," she told reporters in Brisbane on March 16.
Ms. Bligh expects Seqwater to act as a model litigant.
"What that means is that you are required to fairly assess the
claims, and that you are required to mediate the claims wherever
possible rather than drag people through the courts," she said.
While the inquiry found that the dam's manual was breached, that
did not, in itself, establish liability, Ms. Bligh said.
"That is something that will have to be tested with claims being
brought forward," she said.
In her report, Commissioner Justice Catherine Holmes said
engineers were non-compliant with the manual.
"But . . . the manual itself was ambiguous, unclear and difficult
to use," Justice Holmes wrote.
Ms. Bligh said Seqwater had commercial insurance to protect
against these sort of events.
"It will be through their insurance that they work through any
claims made against them," she said.
A restructure of Seqwater, as proposed by the Liberal National
Party (LNP), was not necessary, she said.
"There is certainly nothing in this report that indicates that the
structure of Seqwater is a problem," the premier said.
"But what we do have is some recommendations in relation to some
individuals who work within that organization."
Ms. Bligh confirmed the three engineers she referred to the Crime
and Misconduct Commission (CMC), at the recommendation of Justice
Holmes, were still on paid leave.
She said she would seek advice about whether the state government
would be paying the engineers' legal costs.
The commission found that the state government had acted properly
and appropriately, the premier said.
"The government took every possible and reasonable action," she
said.
Marissa Calligeros, writing for Brisbane Times, reports that
lawyers will commission an independent hydrodynamic report before
deciding whether to proceed with a class action on behalf of
thousands of Brisbane and Ipswich flood victims.
If the class action does go ahead it will potentially be the
largest of its kind in Australia, Mr. Hodgson said on March 16.
Mr. Hodgson said further modelling and investigation into the
effects of the dam's mismanagement was required, which would
likely take several months.
"We believe more likely than not the class action will proceed,
but we don't go off half-cocked," he told journalists on March 16.
"We make sure that our evidence is strong enough to be able to say
to our clients, 'we believe that you have reasonable prospects of
winning this action'."
Mr. Hodgson said the firm would search across the country and
abroad for a team of hydrology experts to conduct an independent
report in a bid to identify which properties may not have flooded
with the proper management of Wivenhoe Dam.
"We're looking in a number of places [for hydrologists] and we're
advanced in those investigations," he said.
"It's likely to be some months before we're in a position to have
a clear idea of what the hydrodynamic modelling shows."
Mr. Hodgson said the findings confirmed what many people
suspected: "that too much water was allowed to accumulate in
Wivenhoe, and the strategy for water releases was botched.
"The dam operators did not release enough water early enough and
that meant far too much was released later on.
"It's clear that at least some of this disaster was man made."
The class action would be conducted on a no win, no charge basis.
"If we win we are paid, if we don't we are not paid," Mr. Hodgson
said.
Ipswich Councillor Paul Tully said the report was not the
whitewash he'd expected.
"It is quite explicit. It really opens the doors for a class
action," he said.
"It is an opportunity for people who were not insured and lost
everything to be able to recover something."
Mr. Hodgson said it could possible take four years to reach a
resolution should a class action proceed, although he would
welcome an out-of-court settlement.
"The process of a model litigant is where no silly games are
played. And there is a joint commitment by the parties to an
early, sensible, compromised resolution, rather than it dragging
out for years," he said.
Fernvale and Surrounding Communities Action Group spokesman Dennis
Ward said flood victims were "pleasantly surprised" with the
outcome of the inquiry, but were not only seeking compensation.
"It would be great to see an apology for what happened," he said.
"We also need to see some justice to be done."
Goodna flood victim Dave Carney, 70, said he was waiting for the
operators of Wivenhoe Dam to admit their wrongdoing.
"What I suspected all along and what a lot of other residents
suspected -- that [dam operators] did the wrong thing in the first
place -- was right," he said.
"They decided they better not let us know that.
"I'm not vindictive. Everybody makes mistakes and they've
obviously made mistakes. But the only thing they've done wrong is
try to cover it up."
Maurice Blackburn is working with litigation funder IMF to
investigate the class action.
So far, 2000 Brisbane, Ipswich and Brisbane Valley flood victims
have expressed interest.
HERTZ GLOBAL: Awaits Ruling on Certification Bid in "Sobel" Suit
----------------------------------------------------------------
Hertz Global Holdings, Inc. is awaiting a court decision on Sobel,
et al.'s motion for class certification in the class action
lawsuit against a Company subsidiary, according to the Company's
February 27, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended
December 31, 2011.
On October 13, 2006, Janet Sobel, Daniel Dugan, PhD. and Lydia
Lee, individually and on behalf of all others similarly situated
v. The Hertz Corporation and Enterprise Rent-A-Car Company, or
"Enterprise," was filed in the United States District Court for
the District of Nevada. The plaintiffs agreed to not pursue
claims against Enterprise initially and the case only proceeded
against Hertz. The Sobel case purports to be a nationwide class
action on behalf of all persons who rented cars from Hertz at
airports in Nevada and were separately charged airport concession
recovery fees by Hertz as part of their rental charges. The
plaintiffs seek an unspecified amount of compensatory damages,
restitution of any charges found to be improper and an injunction
prohibiting Hertz from quoting or charging those airport fees that
are alleged not to be allowed by Nevada law. The complaint also
seeks attorneys' fees and costs. Relevant documents were
produced, depositions were taken and pre-trial motions were filed.
After the court rendered a mixed ruling on the parties' cross-
motions for summary judgment and after the Lydia Lee case was
refiled against Enterprise, the parties engaged in mediation which
resulted in a proposed settlement. Although the court tentatively
approved the settlement in November 2010, the court denied the
plaintiffs' motion for final approval of the proposed settlement
in May 2011. Since that time, the plaintiffs filed a motion for
class certification -- which the Company opposed -- and discovery
has commenced again. A separate action is proceeding against
Enterprise and its National Car Rental and Alamo brands.
Hertz Global Holdings, Inc., is the world's largest general use
car rental brand, operating from approximately 8,300 locations in
146 countries worldwide. Hertz is the number one airport car
rental brand in the U.S. and at 81 major airports in Europe,
operating both corporate and licensee locations in cities and
airports in North America, Europe, Latin America, Asia, Australia
and New Zealand.
HERTZ GLOBAL: LDW-Related Suit Remains in Discovery Stages
----------------------------------------------------------
On August 15, 2006, Davis Landscape, Ltd., individually and on
behalf of all others similarly situated, filed a complaint against
Hertz Equipment Rental Corporation, or "HERC," in the United
States District Court for the District of New Jersey. HERC is The
Hertz Corporation's wholly-owned equipment rental subsidiary.
Hertz is Hertz Global Holdings, Inc.'s primary operating company.
In November 2006, the complaint was amended to add another
plaintiff, Miguel V. Pro, and more claims. The Davis Landscape
matter purports to be a nationwide class action on behalf of all
persons and business entities who rented equipment from HERC and
who paid a Loss Damage Waiver, or "LDW," or an Environmental
Recovery Fee, or "ERF." The plaintiffs seek a declaratory
judgment and injunction prohibiting HERC from engaging in acts
with respect to the LDW and ERF charges that violate the New
Jersey Consumer Fraud Act and claim that the charges violate the
Uniform Commercial Code. The plaintiffs also seek an unspecified
amount of compensatory damages with the return of all LDW and ERF
charges paid, attorneys' fees and costs as well as other damages.
The court has granted class certification, denied the Company's
motion for summary judgment and the case is in the discovery
stages.
No further updates were reported in the Company's February 27,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
Hertz Global Holdings, Inc., is the world's largest general use
car rental brand, operating from approximately 8,300 locations in
146 countries worldwide. Hertz is the number one airport car
rental brand in the U.S. and at 81 major airports in Europe,
operating both corporate and licensee locations in cities and
airports in North America, Europe, Latin America, Asia, Australia
and New Zealand.
HERTZ GLOBAL: Assessment Fee Suit Parties in Settlement Talks
-------------------------------------------------------------
Parties in a class action lawsuit over tourism assessment fees are
currently engaged in settlement discussions, according to Hertz
Global Holdings, Inc.'s February 27, 2012, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
The Company is currently a defendant in a proceeding that purports
to be a class action brought by Michael Shames and Gary Gramkow
against The Hertz Corporation, Dollar Thrifty Automotive Group,
Inc., Avis Budget Group, Inc., Vanguard Car Rental USA, Inc.,
Enterprise Rent-A-Car Company, Fox Rent A Car, Inc., Coast Leasing
Corp., The California Travel and Tourism Commission, and Caroline
Beteta.
Originally filed in November of 2007, the action is pending in the
United States District Court for the Southern District of
California, and plaintiffs claim to represent a class of
individuals or entities that purchased rental car services from a
defendant at airports located in California after January 1, 2007.
Plaintiffs allege that the defendants agreed to charge consumers a
2.5% tourism assessment and not to compete with respect to this
assessment, while misrepresenting that this assessment is owed by
consumers, rather than the rental car defendants, to the
California Travel and Tourism Commission, or the "CTTC."
Plaintiffs also allege that defendants agreed to pass through to
consumers a fee known as the Airport Concession Fee, which fee had
previously been required to be included in the rental car
defendants' individual base rates, without reducing their base
rates. Based on these allegations, the amended complaint seeks
treble damages, disgorgement, injunctive relief, interest,
attorneys' fees and costs. Plaintiffs dropped their claims
against Caroline Beteta. Plaintiffs' claims against the rental
car defendants have been dismissed, except for the federal
antitrust claim. In June 2010, the United States Court of Appeals
for the Ninth Circuit affirmed the dismissal of the plaintiffs'
antitrust case against the CTTC as a state agency immune from
antitrust complaint because the California Legislature foresaw the
alleged price-fixing conspiracy that was the subject of the
complaint. The plaintiffs subsequently filed a petition with the
Ninth Circuit seeking a rehearing and that petition was granted.
In November 2010, the Ninth Circuit withdrew its June opinion and
instead held that state action immunity was improperly invoked.
The Ninth Circuit reinstated the plaintiffs' antitrust claims and
remanded the case to the district court for further proceedings.
All proceedings in the case are currently stayed while the parties
engage in settlement discussions.
Hertz Global Holdings, Inc., is the world's largest general use
car rental brand, operating from approximately 8,300 locations in
146 countries worldwide. Hertz is the number one airport car
rental brand in the U.S. and at 81 major airports in Europe,
operating both corporate and licensee locations in cities and
airports in North America, Europe, Latin America, Asia, Australia
and New Zealand.
HERTZ GLOBAL: Unit to Remove "Fun Services" Suit to District Ct.
----------------------------------------------------------------
Hertz Global Holdings, Inc.'s subsidiary is seeking to remove a
class action lawsuit commenced by Fun Services of Kansas City,
Inc., to the U.S. District Court for the District of Kansas,
according to the Company's February 27, 2012, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
On May 3, 2007, Fun Services of Kansas City, Inc., individually
and as the representative of a class of similarly-situated
persons, v. Hertz Equipment Rental Corporation was commenced in
the District Court of Wyandotte County, Kansas. The case was
subsequently transferred to the District Court of Johnson County,
Kansas. The Fun Services matter purports to be a class action on
behalf of all persons in Kansas and throughout the United States
who, on or after four years prior to the filing of the action,
were sent facsimile messages of advertising materials relating to
the availability of property, goods or services by HERC and who
did not provide express permission for sending such faxes. The
plaintiffs seek an unspecified amount of compensatory damages,
attorney's fees and costs. In August 2009, the court issued an
order that stayed all activity in this litigation pending a
decision by the Kansas Supreme Court in Critchfield Physical
Therapy, Inc. v. Taranto Group, Inc., another Telephone Consumer
Protection Act case. The Kansas Supreme Court issued its decision
in September 2011. Thereafter, the District Court of Johnson
County lifted the stay in the Fun Services case and issued a
scheduling order that addresses class certification discovery.
In February 2012, HERC filed a Notice of Removal with the U.S.
District Court for the District of Kansas seeking to remove the
case to federal court based on federal question jurisdiction.
Hertz Global Holdings, Inc., is the world's largest general use
car rental brand, operating from approximately 8,300 locations in
146 countries worldwide. Hertz is the number one airport car
rental brand in the U.S. and at 81 major airports in Europe,
operating both corporate and licensee locations in cities and
airports in North America, Europe, Latin America, Asia, Australia
and New Zealand.
IMPERIAL TOBACCO: Dozens of Lawyers Attend Class Action Hearing
---------------------------------------------------------------
Kathryn Leger, writing for The Montreal Gazette, reports that it
was standing room only as dozens of lawyers crammed into a
Montreal courtroom on March 12 for the start of the $27-billion
class-action lawsuit on behalf of an estimated 1.8 million Quebec
smokers against Canada's three largest tobacco companies.
Legal work on the Quebec class action -- the first civil suit in
Canada against the cigarette makers and the largest claim for
damages in Canadian history -- has been keeping scores of lawyers
from at least nine law firms busy and will continue to do so for
at least two more years as the historic case unfolds before Quebec
Superior Court Justice Brian Riordan.
In a major logistical challenge for both the judge and lawyers, at
least 1 million documents to further the plaintiffs' case will be
part of the court record for the litigation, which will run four
days each week, three weeks out of four (with a summer break) this
year and next.
Heading up the charge against the tobacco companies are lawyers
from four Montreal firms. They include Bruce Johnston --
bwjohnston@trudeljohnston.com -- and Philippe H. Trudel --
phtrudel@trudeljohnston.com -- of Trudel & Johnston, the boutique
firm that was founded after the 1998 filing of a class action on
behalf of Cecilia Letourneau (representing addicted smokers), one
of the two now being heard simultaneously before the court and
Pierre Boivin -- pboivin@kugler-kandestin.com -- of Kugler
Kandestin LLP. Michel Belanger -- mbelanger@lblavocats.ca -- and
Andre Lesperance -- alesperance@lblavocats.ca -- of Lauzon
Belanger Lesperance Inc. are the leads behind the other class
action on behalf of Jean-Yves Blais (representing those suffering
from smoking-related illnesses), while Marc Beauchemin --
alesperance@lblavocats.ca -- of De Grandpre Chait LLP is acting
for the Conseil quebecois sur le tabac et la sante.
They are joined by Maurice Regnier -- mregnier@gstlex.com -- of
Montreal law firm Gilbert Simard Tremblay LLP, who is the lead
lawyer acting as an agent for the attorney-general of Canada.
The tobacco companies have hired on some heavyhitting litigators
to defend themselves against claims that they should be held
liable for cigarette addiction and smoking-related diseases.
Guy Pratte -- gpratte@blg.com -- of Borden Ladner Gervais LLP is
the lead litigator for JTI-Macdonald Corp. and has brought on Doug
Mitchell -- dmitchell@imk.ca -- and Catherine McKenzie --
cmckenzie@imk.ca -- of Montreal litigation boutique Irving
Mitchell Kalichman LLP to help.
The lead lawyer acting for Rothmans, Benson & Hedges Inc. is
McCarthy Tetrault LLP's Simon Potter -- spotter@mccarthy.ca
Mr. Potter was the long-time outside legal counsel to Montreal-
based Imperial Tobacco Ltd. in another legal life at Ogilvy
Renault LLP (now Norton Rose Canada LLP), the law firm that was
providing litigation services for it in court hearings that led to
certification for the case to go ahead by Quebec Superior Court
Justice Pierre Jasmin in early 2005. Lawyers for the plaintiff
plan to call Mr. Potter to the stand to testify.
Osler, Hoskin & Harcourt LLP was hired to pick up the litigation
mandate for Imperial and leading its team of some 23 lawyers
working the case is Toronto-based Deborah A. Glendinning --
dglendinning@osler.com -- chair of the firm's national litigation
department. She is working in close concert with Suzanne Cote,
Osler's Montreal litigation head, and John Kiser, who was at the
courthouse on March 12 and is responsible for advising on all
major litigation for the company in Canada and the United States.
The international parent companies of the tobacco companies,
including British American Tobacco (BAT), Imperial's parent
company, are monitoring the Quebec suits, not with direct
representation before the court, but through local counsel and in
part through an international coordinating committee of lawyers
representing all members of the tobacco industry. A recent
article in Canadian Lawyer In House magazine profiling how Kiser
and Glendinning are approaching the Canadian litigation --
including other pending suits across Canada -- noted that the
Osler litigation head has to be available almost 24/7 to that
international committee and said that the team roster undergoes
constant revision and that anyone who is considered
underperforming is taken off.
The Supreme Court of Canada on March 15 denied leave of appeal to
the Barreau du Quebec in the controversial case of once disbarred
celebrity divorce attorney Micheline Parizeau.
The Quebec professional order for lawyers had been seeking to
overturn a Quebec Court of Appeal ruling that upheld a decision by
the Tribunal des professions, the administrative body that
oversees the decisions made by the disciplinary committees of the
provinces' professional orders.
The Tribunal had been highly critical of the Bar's refusal to
formally readmit Ms. Parizeau to the profession after a seven-year
disbarment (reduced to five years in a separate hearing before it)
and ordered her reinstated.
The Bar -- supported by the Chambre des notaires du Quebec, the
professional order for Quebec notaries that was unsuccessful in
its attempt to join the SCC leave for appeal in the Parizeau case
-- was defending its right to decide whether or not a disbarred
lawyer is fit to practice law again and disagreed that the
Tribunal did not, in accordance with jurisprudence, defer to its
judgment, overstepped its jurisdiction, and could not act similar
to a court of appeal in cases involving disciplinary committee
decisions on re-entry to the profession.
JOS A BANK: Violates California Wage and Hour Laws, Suit Claims
---------------------------------------------------------------
Neil Holmes, individually, and on behalf of all others similarly
situated v. Jos. A. Bank Clothiers, Inc., and DOES 1 through 100,
inclusive, Case No. 1-12-CV-220780 (Calif. Super. Ct., Santa Clara
Cty., March 16, 2012) seeks unpaid regular and overtime wages,
including unpaid compensation for interrupted and missed meal and
rest periods, interest, liquidated damages and other penalties,
injunctive and other equitable relief, and reasonable attorneys'
fees and costs.
The Plaintiff alleges that Jos. A. Bank has had a consistent
policy of permitting, encouraging and requiring its non-exempt
managers in "key holder" positions, including the Plaintiff and
Class Members, to work in excess of eight hours per day and in
excess of forty hours per week without paying them overtime
compensation as required by California's wage and hour laws. He
adds that the Company willfully failed to provide him and Class
Members with statutorily-mandated meal and rest periods.
Mr. Holmes was employed by Jos. A. Bank as a non-exempt manager in
a position of "key holder" during the Class Period.
Jos. A. Bank is a business entity, duly licensed, located and
doing business in the County of Santa Clara in the state of
California. The Doe Defendants are and were officers, directors,
partners, and managing agents of some or each of the remaining
defendants.
The Plaintiff is represented by:
Matthew R. Bainer, Esq.
Jessica L. Campbell, Esq.
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Oakland, CA 94612
Telephone: (510) 891-9800
Facsimile: (510) 891-7030
E-mail: mbainer@scalaw.com
KKR & CO: Briefing on Bid to Dismiss Merger-Related Suit Ongoing
----------------------------------------------------------------
Briefing on a motion to dismiss an amended complaint in a
consolidated merger-related class action lawsuit is ongoing,
according to KKR & Co. L.P.'s February 27, 2012, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
On May 23, 2011, KKR, certain KKR affiliates and the board of
directors of Primedia Inc. (a former KKR portfolio company whose
directors at that time included certain KKR personnel) were named
as defendants, along with others, in two shareholder class action
complaints filed in the Court of Chancery of the State of Delaware
challenging the sale of Primedia in a merger transaction that was
completed on July 13, 2011. These actions allege, among other
things, that Primedia board members, KKR, and certain KKR
affiliates, breached their fiduciary duties by entering into the
merger agreement at an unfair price and failing to disclose all
material information about the merger. Plaintiffs also allege
that the merger price was unfair in light of the value of certain
shareholder derivative claims, which were dismissed on August 8,
2011, based on a stipulation by the parties that the derivative
plaintiffs and any other former Primedia shareholders lost
standing to prosecute the derivative claims on behalf of Primedia
when the Primedia merger was completed. The dismissed shareholder
derivative claims included allegations concerning open market
purchases of certain shares of Primedia's preferred stock by KKR
affiliates in 2002 and allegations concerning Primedia's
redemption of certain shares of Primedia's preferred stock in 2004
and 2005, some of which were owned by KKR affiliates. With
respect to the pending shareholder class actions challenging the
Primedia merger, on June 7, 2011, the Court of Chancery denied a
motion to preliminarily enjoin the merger. On July 18, 2011, the
Court of Chancery consolidated the two pending shareholder class
actions and appointed lead counsel for plaintiffs. On October 7,
2011, defendants moved to dismiss the operative complaint in the
consolidated shareholder class action. The operative complaint
seeks, in relevant part, unspecified monetary damages and
rescission of the merger. On December 2, 2011, plaintiffs filed a
consolidated amended complaint, which similarly alleges that the
Primedia board members, KKR, and certain KKR affiliates breached
their respective fiduciary duties by entering into the merger
agreement at an unfair price in light of the value of the
dismissed shareholder derivative claims. That amended complaint
seeks an unspecified amount of monetary damages.
On January 31, 2012, defendants moved to dismiss the amended
complaint. Briefing on the motion to dismiss the amended
complaint is ongoing.
Additionally, in May 2011, two shareholder class actions
challenging the Primedia merger were filed in Georgia state
courts, asserting similar allegations and seeking similar relief
as initially sought by the Delaware shareholder class actions.
Both Georgia actions have been stayed in favor of the Delaware
action.
Led by Henry Kravis and George Roberts, KKR & Co. L.P. --
http://kkr.com/-- is global investment firm with $59 billion in
AUM as of December 31, 2011. The Company offers a broad range of
investment management services to its investors and provides
capital markets services to its firm, its portfolio companies and
its clients.
KKR & CO: Continues to Defend Antitrust Suit in Massachusetts
-------------------------------------------------------------
KKR & Co. L.P. continues to defend a class action lawsuit alleging
violations of antitrust laws, according to the Company's February
27, 2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
In December 2007, KKR, along with 15 other private equity firms
and investment banks, were named as defendants in a purported
class action complaint filed in the United States District Court
for the District of Massachusetts by shareholders in certain
public companies acquired by private equity firms since 2003. In
August 2008, KKR, along with 16 other private equity firms and
investment banks, were named as defendants in a purported
consolidated amended class action complaint. The lawsuit alleges
that from mid-2003 defendants have violated antitrust laws by
allegedly conspiring to rig bids, restrict the supply of private
equity financing, fix the prices for target companies at
artificially low levels, and divide up an alleged market for
private equity services for leveraged buyouts. The amended
complaint seeks injunctive relief on behalf of all persons who
sold securities to any of the defendants in leveraged buyout
transactions and specifically challenges nine transactions. The
first stage of discovery concluded on or about April 15, 2010. On
August 18, 2010, the court granted plaintiffs' motion to proceed
to a second stage of discovery in part and denied it in part.
Specifically, the court granted a second stage of discovery as to
eight additional transactions but denied a second stage of
discovery as to any transactions beyond the additional eight
specified transactions. On October 7, 2010, the plaintiffs filed
under seal a fourth amended complaint that includes new factual
allegations concerning the additional eight transactions and the
original nine transactions. The fourth amended complaint also
includes eight purported sub-classes of plaintiffs seeking
unspecified monetary damages and/or restitution with respect to
eight of the original nine challenged transactions and new
separate claims against two of the original nine challenged
transactions.
On January 13, 2011, the court granted a motion filed by KKR and
certain other defendants to dismiss all claims alleged by a
putative damages sub-class in connection with the acquisition of
PanAmSat Corp. and separate claims for relief related to the
PanAmSat transaction. The second phase of discovery permitted by
the court is completed. On July 11, 2011, plaintiffs filed a
motion seeking leave to file a proposed fifth amended complaint
that seeks to challenge ten additional transactions in addition to
the transactions identified in the previous complaints.
Defendants opposed plaintiffs' motion. On September 7, 2011, the
court granted plaintiffs' motion in part and denied it in part.
Specifically, the court granted a third stage of limited discovery
as to the ten additional transactions identified in plaintiffs'
proposed fifth amended complaint but denied plaintiffs' motion
seeking leave to file a proposed fifth amended complaint. The
court stated that it will entertain a renewed motion by plaintiffs
to file a proposed fifth amended complaint at the close of the
third phase of discovery. The third phase of discovery permitted
by the court is ongoing and currently scheduled to conclude on
April 17, 2012.
No further updates were reported in the Company's latest SEC
filing.
Led by Henry Kravis and George Roberts, KKR & Co. L.P. --
http://kkr.com/-- is global investment firm with $59 billion in
AUM as of December 31, 2011. The Company offers a broad range of
investment management services to its investors and provides
capital markets services to its firm, its portfolio companies and
its clients.
KKR & CO: Del Monte-Related Antitrust Suit Dismissed in December
----------------------------------------------------------------
An antitrust class action lawsuit commenced by Pipe Fitters Local
Union No. 120 Pension Fund over the acquisition of Del Monte Foods
Company was dismissed in December 2011, according to KKR & Co.
L.P.'s February 27, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
KKR, along with two other private equity firms (collectively the
"Sponsors"), was named as a defendant in purported shareholder
class actions filed in the Court of Chancery of the State of
Delaware arising out of the acquisition of Del Monte Foods Company
("Del Monte") by Blue Acquisition Group, Inc. and Blue Merger Sub
Inc., entities controlled by private equity funds affiliated with
the Sponsors (the "Acquisition Entities"). This transaction was
announced on November 25, 2010, and was completed on March 8, 2011
(the "Del Monte Transaction"). All of the shareholder actions
that were filed in the Court of Chancery following the
announcement of the Del Monte Transaction were consolidated on
December 31, 2010, (the "Delaware Del Monte Action"). In a
consolidated complaint filed on January 10, 2011, the plaintiff in
the Delaware Del Monte Action alleged, among other things, that
the Del Monte board of directors breached its fiduciary duties by
agreeing to sell Del Monte at an unfair price and through an
unfair process and by filing a materially misleading and
incomplete proxy statement and that the Sponsors and the
Acquisition Entities aided and abetted these fiduciary breaches.
On February 14, 2011, the Court of Chancery issued a ruling which,
among other things, found on the preliminary record before the
court that the plaintiff had demonstrated a reasonable likelihood
of success on the merits of its aiding and abetting claim against
the Sponsors, including KKR. The ruling enjoined Del Monte from
proceeding with its stockholder vote, previously scheduled for
February 15, 2011, for twenty days and preliminarily enjoined
certain deal protection provisions of the merger agreement pending
the stockholder vote. On February 18, 2011, an amended
consolidated complaint was filed in the Delaware Del Monte Action
asserting claims for: (i) breach of fiduciary duty against the Del
Monte directors, (ii) aiding and abetting the directors' breaches
of fiduciary duty against the Sponsors, the Acquisition Entities,
and Barclays Capital, Inc. ("Barclays"), which served as a
financial advisor to Del Monte in connection with the Del Monte
Transaction, (iii) breach of contract against the Sponsors arising
from confidentiality agreements between the Sponsors and Del
Monte, and (iv) tortious interference with contract against
Barclays arising from the aforementioned confidentiality
agreements between the Sponsors and Del Monte. The amended
consolidated complaint sought, among other things, injunctive
relief, rescission of the merger agreement, damages and attorneys'
fees. On March 29, 2011, all of the defendants in the Delaware
Del Monte Action, including KKR, answered the amended consolidated
complaint. On July 27, 2011, Del Monte Corporation, as successor-
in-interest to Del Monte, was joined as a party and defendant in
the Delaware Del Monte Action.
On October 6, 2011, the parties filed a Stipulation and Agreement
of Compromise and Settlement in the Delaware Del Monte Action. On
December 1, 2011, the Court of Chancery approved the proposed
settlement. Under the terms of the settlement, the Delaware Del
Monte Action was dismissed and all Del Monte shareholder claims
that were asserted or could have been asserted (including claims
asserted in the California federal and state court actions and the
Pipe Fitters Action) against KKR and the other defendants were
released in exchange for, among other things, a payment by Del
Monte and Barclays but not by KKR. The time to appeal the Court
of Chancery's order and judgment approving the settlement has run.
Similar shareholder actions were filed against Del Monte, the Del
Monte directors, the Sponsors and/or the Acquisition Entities in
California Superior Court and the United States District Court for
the Northern District of California. The federal cases pending in
the Northern District of California were consolidated and
subsequently voluntarily dismissed without prejudice. Plaintiffs
in all but one of the California state court actions have moved
for voluntary dismissal without prejudice. The remaining
California state court action has been stayed pursuant to court
order. On March 7, 2011, a purported antitrust class action
captioned Pipe Fitters Local Union No. 120 Pension Fund v.
Barclays Capital Inc. et al. (Case No. 3:10-cv-01064-EDL) was
filed in the United States District Court for the Northern
District of California (the "Pipe Fitters Action"). On May 4,
2011, plaintiff filed an amended complaint which named as
defendants the Sponsors, Barclays, a managing director at
Barclays, and Goldman Sachs Group, Inc. (which provided a portion
of the financing in connection with the Del Monte Transaction) and
alleged that the defendants violated federal antitrust laws by,
among other things, allegedly conspiring to suppress the
transaction price. The amended complaint in the Pipe Fitters
Action sought, among other things, injunctive relief, damages and
attorneys' fees. On June 10, 2011, defendants moved to dismiss
the amended complaint. On August 30, 2011, following briefing and
argument on defendants' motion to dismiss the amended complaint in
the Pipe Fitters Action, the court dismissed the amended complaint
without prejudice and with leave to file another amended
complaint. On December 8, 2011, plaintiff filed a notice of
dismissal without prejudice, which the Court entered on December
12, 2011.
Led by Henry Kravis and George Roberts, KKR & Co. L.P. --
http://kkr.com/-- is global investment firm with $59 billion in
AUM as of December 31, 2011. The Company offers a broad range of
investment management services to its investors and provides
capital markets services to its firm, its portfolio companies and
its clients.
KOPPERS HOLDINGS: Plaintiffs Seek to Amend Gainesville Plant Suit
-----------------------------------------------------------------
Plaintiffs are seeking leave to amend their complaint against
Koppers Holdings Inc. and its subsidiary relating to a former
plant in Gainesville, Florida, according to the Company's February
27, 2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
Koppers Inc. operated a utility pole treatment plant in
Gainesville, Florida, from December 29, 1988, until its closure
late in 2009. The property upon which the utility pole treatment
plant was located was sold by Koppers Inc. to Beazer East, Inc. in
the first quarter of 2010.
In November 2010, a class action complaint was filed in the
Circuit Court of the Eighth Judicial Circuit located in Alachua
County, Florida, by residential real property owners located in a
neighborhood west of and immediately adjacent to the former
utility pole treatment plant in Gainesville. The complaint named
Koppers Holdings Inc., Koppers Inc., Beazer East and several other
parties as defendants. The complaint alleges that chemicals and
dust from the plant have contaminated and impacted plaintiffs'
properties by reducing the fair market value. The complaint seeks
injunctive relief and compensatory damages for diminution in
property values and for plaintiffs' loss of use and enjoyment of
the properties. The case was removed to the United States
District Court for the Northern District of Florida in December
2010. Koppers Holdings Inc. filed a motion to dismiss alleging
that the Court lacks personal jurisdiction over it. The Court has
not yet ruled on the Koppers Holdings Inc.'s motion to dismiss.
Koppers Inc. also filed a motion to dismiss which was denied by
the Court in February 2012.
On February 16, 2012, plaintiffs filed a motion for leave to amend
the complaint to, among other things, add three new plaintiffs,
add twenty-six new defendants, and amend the definition of the
putative class to include residential real properties in a larger
geographic area surrounding the former Gainesville plant. The
Court has not yet scheduled a class certification hearing or
trial.
The Company says it has not provided a reserve for this matter
because, at this time, it cannot reasonably determine the
probability of a loss, and the amount of loss, if any, cannot be
reasonably estimated. The timing of resolution of this case
cannot be reasonably determined. Although the Company is
vigorously defending this case, an unfavorable resolution of this
matter may have a material adverse effect on the Company's
business, financial condition, cash flows and results of
operations.
POLY IMPLANT: 540 Women Join Breast Implant Class Action
--------------------------------------------------------
Jordanna Schriever, writing for The Advertiser, reports that all
women with French-made PIP breast implants are now at risk of
potential health complications.
European authorities on March 15 issued a warning that the now-
insolvent manufacturer Poly Implant Prosthese had used industrial-
grade silicone instead of safer medical-grade silicone earlier
than 2001.
A spokeswoman for the Therapeutic Goods Administration on March 15
said all women who had had breast implants since 1998 should seek
a check-up.
"This . . . follows updated advice received by TGA [Fri]day from
European regulators that they are unable to ascertain whether or
not PIP implants have ever contained the silicone gel approved by
regulators, and that the French manufacturer may have fraudulently
used an unauthorized gel in all batches manufactured since 1999,"
she said.
The warning came as Adelaide law firm Tindall Gask Bentley
confirmed more than 540 women had registered for a class action,
about 130 of whom had come forward in the past week.
About 13,200 PIP breast implants were supplied to the Australian
market.
About the same time as the French Government ordered every woman
with PIP implants to have them removed because of fears they could
cause cancer, the Adelaide-based sole distributor of PIP implants
in Australia since 2004 has restructured its business, potentially
limiting its liability in the event of any compensation claim.
The company, Medical Vision Australia, split into two subsidiaries
-- Medical Vision Australia Plastic and Cosmetic Pty Ltd, and
Medical Vision Cardiology and Thoracic Pty Ltd.
Tindall Gask Bentley managing partner Morry Bailes said the
company's restructure was "suspicious". "Their timing seems to be
more than a coincidence," he said.
Mr. Bailes said if the company restructure was done in
anticipation of litigation, it could potentially be undone by the
courts.
Benson Radiology partner Dr. Jill Robinson said the company had
been inundated with requests from women seeking MRIs to determine
if their implants were sound.
Medical Vision Australia did not return calls.
RAJGOPAL MENON: Three Patients to Appeal Class Action Dismissal
---------------------------------------------------------------
The Canadian Press reports that three patients of a former New
Brunswick pathologist are appealing a decision to dismiss a class-
action lawsuit against the doctor and the Miramichi Hospital Corp.
Judge Jean-Paul Ouellette of the Court of Queen's Bench recently
dismissed the class-action suit, concluding that the plaintiffs
failed to establish an identifiable class.
Dr. Rajgopal Menon worked as a pathologist at the Miramichi
Regional Hospital between 1995 and 2007 until an audit of his work
found 18 per cent of 227 breast and prostate cancer reports were
incomplete and three per cent were incorrect.
A later independent review of 23,000 tests done by Dr. Menon found
a complete or partial change in the results of about a quarter of
the cases.
Lawyer Ches Crosbie says his clients have the right to make a
claim for mental distress and the case should be argued in court.
However, Judge Ouellette says in his ruling that two of
Mr. Crosbie's three clients did not have a change of diagnosis
following a review of their pathology slides.
He says they suffered no physical harm and no recognizable
psychiatric harm.
Judge Ouellette says the third patient might have a case because
of an alleged misdiagnosis of prostate cancer.
Mr. Crosbie says he filed notice with the New Brunswick Court of
Appeal on March 14, and hopes the case could be heard this fall.
Dr. Menon has described a public inquiry into his work as
"unjustified and unfair" and portrayed himself as someone who was
being singled out by the hospital administration. He has also
maintained that his work was not as flawed as the public inquiry
heard.
SIOUX HONEY: Faces Class Suit in Calif. Over Sue Bee Product
------------------------------------------------------------
Gregory Brod, individually and on behalf of all others similarly
situated v. Sioux Honey Association Cooperative, an Iowa entity,
Case No. CIV-12-00291 (Calif. Super. Ct., Marin Cty., January 19,
2012) is brought on behalf of a class of all persons, who
purchased the Company's Sue Bee Clover Honey from any store
located in California at any time from January 1, 2010, through
the present.
In California, for a product to be sold as "honey" it must contain
pollen unless the removal of such pollen was "unavoidable in the
removal of foreign inorganic or organic matter," Mr. Brod relates,
citing Section 29413(e) of the California Food & Agriculture Code.
He contends that the Company's Sue Bee Honey cannot be sold in
California as "honey" because it is devoid of pollen, and the
pollen was not "unavoidably" removed "in the removal of foreign
inorganic or organic matter." Accordingly, he alleges, by
advertising and selling the Sue Bee Honey as "honey," the
Defendant violated California's Consumers Legal Remedies Act,
Unfair Competition Law, and False Advertising Law.
Mr. Brod is a resident of San Rafael, California. He purchased a
bottle of the Sue Bee Honey at a store located in California and
relied upon the representation that it was "honey" and could be
sold as such to California consumers.
Sioux Honey is a cooperative association organized under the laws
of the state of Iowa. The Defendant advertises, distributes,
markets and sells the Sue Bee Honey to thousands of consumers
throughout California in contravention of California's laws.
The Defendant removed the lawsuit on March 16, 2012, from the
Superior Court of the state of California, County of Marin, to the
United States District Court for the Northern District of
California. The Defendant argues that the removal is proper
because it is evident that the class action involves an amount in
controversy that far exceeds $5 million. The District Court Clerk
assigned Case No. 3:12-cv-01322 to the proceeding.
The Plaintiff is represented by:
Paul R. Kiesel, Esq.
Jeffrey A. Koncius, Esq.
KIESEL BOUCHER LARSON LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211-2910
Telephone: (310) 854-4444
Facsimile: (310) 854-0812
E-mail: kiesel@kbla.com
koncius@kbla.com
- and -
Paul O. Paradis, Esq.
Gina M. Tufaro, Esq.
Mark A. Butler, Esq.
HORWITZ, HORWITZ & PARADIS, Attorneys at Law
570 7th Avenue, 20th Floor
New York, NY 10018
Telephone: (212) 986-4500
Facsimile: (212) 986-4501
E-mail: pparadis@hhplawny.com
gtufaro@hhplawny.com
MButler@hhplawny.com
- and -
Robert I. Lax, Esq.
LAX LLP
380 Lexington Avenue, 31st Floor
New York, NY 10168
Telephone: (212) 818-9150
Facsimile: (212) 818-1266
E-mail: rlax@lax-law.com
The Defendant is represented by:
David I. Dalby, Esq.
HINSHAW & CULBERTSON LLP
One California Street, 18th Floor
San Francisco, CA 94111
Telephone: (415) 362-6000
Facsimile: (415) 834-9070
E-mail: ddalby@hinshawlaw.com
SPECTRA ENERGY: Unit Continues to Defend Royalty Dispute Suits
--------------------------------------------------------------
Spectra Energy Corp.'s subsidiary, DCP Midstream, LLC, continues
to defend class action lawsuits over royalty disputes, according
to the Company's February 27, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
The midstream industry has seen a number of class action lawsuits
involving royalty disputes, mismeasurement and mispayment
allegations. DCP Midstream, LLC is currently named as defendants
in some of these cases and customers have asserted individual
audit claims related to mismeasurement and mispayment. Management
believes DCP Midstream has meritorious defenses to these cases
and, therefore, will continue to defend them vigorously. These
claims, however, can be costly and time consuming to defend.
Management currently believes that these matters, taken as a
whole, and after consideration of amounts accrued, insurance
coverage and other indemnification arrangements, will not have a
material adverse effect upon DCP Midstream's consolidated results
of operations, financial position or cash flows.
TFT-LCD MANUFACTURERS: Settle Class Action for $405 Million
-----------------------------------------------------------
Electronic Products and Technology reports that companies that
directly purchased TFT-LCD products in Canada and the US between
January 1, 1999 and December 31, 2006 may be eligible for a
payment from a $405 million settlement fund.
A "direct purchaser" is any business which bought TFT-LCD panels,
computer monitors, or other product containing those panels. The
deadline is April 5, 2012 to file for a refund in the Class Action
Antitrust Settlement. This is a voluntary settlement, not a
lawsuit.
A total of $405 million is available to repay eligible companies
who overpaid for TFT-LCD flat panel products from any of these
companies: Epson Electronics America Inc. and Epson Imaging
Devices Corp.; Chimei Innolux Corp., Chi Mei Corp., Chi Mei
Optoelectronics Corp., CMO Japan Co., Ltd., Chi Mei
Optoelectronics USA Inc.; Nexgen Mediatech Inc. and Nexgen
Mediatech USA Inc.; HannStar Display Corp.; Hitachi Ltd., Hitachi
Displays Ltd., and Hitachi Electronic Devices (USA) Inc.; LG
Display Co. Ltd. and LG Display America Inc.; Mitsui & Co.
(Taiwan) Ltd.; Samsung Electronics Co. Ltd., Samsung Electronics
America Inc. and Samsung Semiconductor Inc.; Sanyo Consumer
Electronics Co. Ltd.; and Sharp Corp.
"This only represents a settlement. We only get involved in a
class action settlement once there is money in the settlement
fund. There is nothing confrontational or adversarial about
filing a claim. After all, you are only trying to recover the
money you overpaid," explains Mark Elis, manager of claims
recovery services with Computershare in New York City.
Computershare is a claims recovery services group that helps
companies receive their share of settlement money from class
action lawsuits once a settlement has been reached.
According to Mr. Elis, there is close to $1-billion in combined
settlement funds, representing plenty of money to be distributed.
The expectation is that many eligible companies will not file, and
many companies who file will not be eligible.
"We cannot guarantee that a claim will be approved. However, we
help present a claim in the best manner, and there is no downside
if a company's claim is denied," Mr. Elis says. "The size of a
company's refund depends on two factors. First is the dollar
amount of their purchases during the settlement period, and second
is the number of other companies filing claims. It is impossible
to give an estimate of a refund, but most companies have a general
idea of their expenditures. In previous cases we have seen a wide
range of refunds."
The Recorder reports that lawyers in the class actions over price-
fixing in the LCD flat-panel market are embroiled in high-stakes
fights that are sure to shape whether anyone walks away with the
billions of dollars that plaintiffs are after. The biggest
question: whether to hold a joint civil trial for direct and
indirect purchasers.
THOMAS JEFFERSON: Files Motion to Dismiss Class Action
------------------------------------------------------
JD Journal reports that a motion for dismissal was filed by the
Thomas Jefferson School of Law in an effort to have the class
action lawsuit against it dismissed. The lawsuit was filed in
relation to employment statistics released by the school regarding
its graduates. That motion for dismissal was not denied but
instead a judge told Thomas Jefferson that it was not well-
received. New York Law School, Florida Coastal and Cooley Law
have also filed motions for dismissal of the class action lawsuits
against them.
It was announced last week that 20 more law schools will soon be
sued in class action lawsuits because of deceptive employment data
for graduates. The next round of law schools facing possible
class action lawsuits includes the following schools:
American University Washington College of Law
Benjamin N. Cardozo School of Law
Chapman University School of Law
Columbus School of Law, The Catholic University of America
Loyola Marymount University Law School
Loyola University Chicago School of Law
New England School of Law
Pace University School of Law
Pepperdine University School of Law
Roger Williams University School of Law
Seattle University School of Law
St. John's University School of Law
St. Louis University School of Law
Stetson University College of Law
Syracuse University College of Law
University of Miami School of Law
University of St. Thomas School of Law
Valparaiso University School of Law
Western New England University School of Law
Whittier Law School
David Anziska, a solo practitioner from New York, has filed some
of these lawsuits on behalf of the plaintiffs. He explained the
reason behind the deceptive employment stats issued by law
schools, according to Above the Law:
"At the height of the recession, most schools reported placement
rates of well above 90%. Now, all of a sudden in 2010-2011, after
we've weathered the worst of the worst, schools are starting to
report employment data that paints a much more realistic picture
-- a dim picture of employment prospects for graduates. Why, at
the height of the recession, did they report sterling placement
rates? It was simply impossible to have these high employment
placement rates in 2009."
With all of these lawsuits being filed, people are wondering if
the American Bar Association is going to do anything about it.
The ABA did change some of its annual employment questionnaire but
that does not seem like enough. The ABA has yet to even issue a
statement on these lawsuits or comment extensively on them. The
ABA might not make a move regarding these comments until almost
each law school in the country has been sued.
TIME WARNER: Faces Class Action for Withholding Programming
-----------------------------------------------------------
Eriq Gardner, writing for The Hollywood Reporter, reports that in
an amended class action, a group of plaintiffs demand that the
Time Warner Cable reimburse them for more than $5 million in
service fees and charges for withholding programming.
The named plaintiff in this lawsuit is Harold Hoffman, who says he
was induced on the phone by a TWC representative to sign up in
2008 for service with the promise he would receive programming on
the MSG and MSG+ networks.
Mr. Hoffman says he had little choice if he wanted to see
televised games featuring the Knicks, Rangers, Islanders and
Devils. No other cable service was available for his Englewood,
New Jersey residence, and because he didn't own his property, he
wasn't empowered to consent to the placement of a DirecTV
satellite antenna on the property.
So he signed up for TWC, and when the games were taken off the air
for 49 days beginning at the beginning of this year, he couldn't
deduct from his billing statement the component of charges
allowable to MSG and MSG+.
He's filed a lawsuit on behalf of all similarly situated
individuals for redress. The games are now back on, but his
lawsuit continues.
There have been other lawsuits like this over the years, such as a
class action filed by Cablevision customers when Fox went off the
dial, and none has been successful. But usually, it's because
customers forgive and forget rather quickly after the cable
company and broadcaster decide to kiss-and-makeup.
TOWN SPORTS: Awaits Ruling on Bids to Dismiss Two Suits vs. Unit
----------------------------------------------------------------
A decision is still pending in connection with motions to dismiss
two class action lawsuits against a subsidiary of Town Sports
International Holdings, Inc., according to the Company's
February 27, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On or about March 1, 2005, in an action styled Sarah Cruz, et al
v. Town Sports International, d/b/a New York Sports Club,
plaintiffs commenced a purported class action against the
Company's wholly-owned operating subsidiary, Town Sports
International, LLC ("TSI, LLC") in the Supreme Court, New York
County, seeking unpaid wages and alleging that TSI, LLC violated
various overtime provisions of the New York State Labor Law with
respect to the payment of wages to certain trainers and assistant
fitness managers. On or about June 18, 2007, the same plaintiffs
commenced a second purported class action against TSI, LLC in the
Supreme Court of the State of New York, New York County, seeking
unpaid wages and alleging that TSI, LLC violated various wage
payment and overtime provisions of the New York State Labor Law
with respect to the payment of wages to all New York purported
hourly employees. On September 17, 2010, TSI, LLC made motions to
dismiss the class action allegations of both lawsuits for
plaintiffs' failure to timely file motions to certify the class
actions. Oral argument on the motions occurred on November 10,
2010. A decision is still pending.
While it is not possible to estimate the likelihood of an
unfavorable outcome or a range of loss in the case of an
unfavorable outcome to TSI, LLC at this time, the Company intends
to contest these cases vigorously. Depending upon the ultimate
outcome, these matters may have a material adverse effect on TSI,
LLC's and the Company's consolidated results of operations,
financial condition or cash flows.
TRANSOCEAN LTD: Awaits Orders on Bids to Dismiss Securities Suits
-----------------------------------------------------------------
Transocean Ltd. is awaiting rulings on motions to dismiss two
securities class action lawsuits pending in New York, according to
the Company's February 27, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On April 22, 2010, the Ultra-Deepwater Floater Deepwater Horizon
sank after a blowout of the Macondo well caused a fire and
explosion on the rig. Eleven persons were declared dead and
others were injured as a result of the incident. At the time of
the explosion, Deepwater Horizon was located approximately 41
miles off the coast of Louisiana in Mississippi Canyon Block 252
and was contracted to BP America Production Co.
Two federal securities law class actions are currently pending in
the U.S. District Court, Southern District of New York, naming the
Company and certain of its officers and directors as defendants.
One of these actions generally allege violations of Section 10(b)
of the Securities Exchange Act of 1934 (the "Exchange Act"), Rule
10b-5 promulgated under the Exchange Act and Section 20(a) of the
Exchange Act in connection with the Macondo well incident. The
plaintiffs are generally seeking awards of unspecified economic
damages, including damages resulting from the decline in the
Company's stock price after the Macondo well incident. The other
action was filed by a former GlobalSantaFe shareholder, alleging
that the proxy statement related to the Company's shareholder
meeting in connection with its merger with GlobalSantaFe violated
Section 14(a) of the Exchange Act, Rule 14a-9 promulgated
thereunder and Section 20(a) of the Exchange Act. The plaintiff
claims that GlobalSantaFe shareholders received inadequate
consideration for their shares as a result of the alleged
violations and seeks rescission and compensatory damages. The
defendants have filed motions to dismiss each of these claims, and
the plaintiffs have responded. The motions have been fully
briefed and are pending rulings by the courts.
Headquartered in Vernier, Switzerland, Transocean Ltd. provides
offshore contract drilling services for oil and gas wells.
Specializing in technically demanding sectors of the offshore
drilling business with a particular focus on deepwater and harsh
environment drilling services, the Company contracts its drilling
rigs, related equipment and work crews predominantly on a dayrate
basis to drill oil and gas wells.
TRANSOCEAN LTD: Faces 184 Class Suits Over Macondo Well Incident
----------------------------------------------------------------
Transocean Ltd. is defending 184 putative class action lawsuits
arising from the April 2010 Macondo well incident, according to
the Company's February 27, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
On April 22, 2010, the Ultra-Deepwater Floater Deepwater Horizon
sank after a blowout of the Macondo well caused a fire and
explosion on the rig. Eleven persons were declared dead and
others were injured as a result of the incident. At the time of
the explosion, Deepwater Horizon was located approximately 41
miles off the coast of Louisiana in Mississippi Canyon Block 252
and was contracted to BP America Production Co.
As of December 31, 2011, the Company and one or more of its
subsidiaries were named, along with other unaffiliated defendants,
in 114 individual complaints as well as 184 putative class-action
complaints that were pending in the federal and state courts in
Louisiana, Texas, Mississippi, Alabama, Georgia, Kentucky, South
Carolina, Tennessee, Florida and possibly other courts. The
complaints generally allege, among other things, economic losses
as a result of environmental pollution arising out of the Macondo
well incident and are based primarily on OPA and state OPA
analogues. Certain claims were dismissed in a court ruling on
August 26, 2011. The plaintiffs are generally seeking awards of
unspecified economic, compensatory and punitive damages, as well
as injunctive relief.
Headquartered in Vernier, Switzerland, Transocean Ltd. provides
offshore contract drilling services for oil and gas wells.
Specializing in technically demanding sectors of the offshore
drilling business with a particular focus on deepwater and harsh
environment drilling services, the Company contracts its drilling
rigs, related equipment and work crews predominantly on a dayrate
basis to drill oil and gas wells.
UNIVERSITY OF MIAMI: May Face Class Action Over Placement Rates
---------------------------------------------------------------
Kevin Gale, writing for South Florida Business Journal, reports
that class action attorneys are trolling for graduates from the
University of Miami to continue a series of lawsuits that seek
class action status.
UM is on a list of 20 that attorney David Anziska lists on his
Web site, seeking graduates to contact him.
UM law school Dean Patricia White, who was hired in July 2009,
told the Daily Business Review that she wrote a letter warning
students that the job market "was very bad" and that they could
defer admission.
Mr. Anziska's Web site says he "concentrates primarily on
prosecuting consumer-fraud actions, including, chiefly, filing
groundbreaking lawsuits against law schools for inflating their
post-graduate placement rates. David further intends to expand
his practice to holding other graduate and trade schools
accountable for inflating their placement rates."
Placement rates at law schools have received scrutiny in recent
months with accusations that some graduates aren't practicing law
or just holding part-time or temporary jobs. A major issue is
that the recession has hurt prospects for law school graduates,
just like the prospects for college students in general.
The issue, however, is especially acute for law school graduates
because they often have substantial debt after graduation.
JD Journal reports that Thomas Jefferson School of Law filed a
motion for dismissal in its case, but it was denied.
WALTER ENERGY: Investors File Class Action in Alabama
-----------------------------------------------------
Russell Hubbard, writing for The Birmingham News, reports that
investors of Walter Energy have filed a purported class-action
lawsuit in U.S. District Court in Birmingham, alleging executives
made misleading statements that artificially inflated shares.
The suit was filed on March 15, and says executives of the
Birmingham-based coal producer made public statements last year
that indicated sales, profits and selling prices were looking up.
Walter Energy said the claims are baseless and will be defended,
according to spokesman Paul Blalock.
The suit says the company ran into big trouble after the first
quarter of 2011, with subsequent earnings below expectations. In
the second quarter of 2011, the suit says, Walter had adjusted
earnings per share of $2.36, against average Wall Street estimates
of $3.98. Revenue was $773 million, or 16 percent short of the
$914 million average estimate, the suit says.
Shares immediately fell 30 percent after the August 2011 earnings
release, the suit says, "as a portion of the artificial inflation
came out of the company's stock price."
In the preceding months, the suit says, two top Walter executives
sold company shares, netting proceeds of $2.5 million.
"We believe that any claim that the company issued materially
false and misleading statements is wholly without merit," said
Walter spokesman Mr. Blalock said. "We intend to defend this
matter vigorously."
Walter is one of Alabama's largest companies, employing 2,000 coal
miners at underground and surface mines. The company also
operates mines in British Columbia.
WESTPARK CAPITAL: Court Dismisses Shareholder Class Action
----------------------------------------------------------
WestPark Capital, Inc. on March 15 disclosed that a Los Angeles
Federal Court has dismissed a shareholder class action against the
company in the case against China Intelligent Lighting and
Electronics, Inc., a company that is principally engaged in the
design, manufacture, sales and marketing of high-end quality LED
and other lighting products for the household and commercial
indoor and outdoor lighting industries in China.
In a ruling from the U.S. District Court or the Central District
of California dated February 15, 2012 the action was dismissed as
to defendant, WestPark Capital, Inc. because the Court concluded
that the plaintiffs failed to state a claim for which relief could
be granted. CIL was listed on the NYSE Amex exchange in
connection with an IPO in June of 2010.
About WestPark Capital
WestPark Capital, Inc. -- http://www.wpcapital.com--is a full-
service national and international investment bank focused on
emerging growth sectors such as healthcare, software, technology,
biotechnology, financial services, manufacturing, consumer
products, media and telecom industries, among other categories.
WestPark provides a comprehensive range of corporate finance
services, including initial public offerings, follow-on offerings,
private placements and corporate finance advisory services.
WestPark is committed to forging lasting partnerships with
emerging growth companies and the investors who back them. Member:
FINRA/SIPC.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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