/raid1/www/Hosts/bankrupt/CAR_Public/120405.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 5, 2012, Vol. 14, No. 68
Headlines
ABOVENET INC: Being Sold to Zayo for Too Little, Suit Claims
AUSTRALIA: IMF to Get 30% Share From Flood Compensation
AVON PRODUCTS: Former Director Denies Claims in Shareholder Suit
BP: Asian-American Boat Owners Sue Over Discrimination
BP: Dolphins Near Deepwater Horizon Rig Suffer Health Problems
BRINKER RESTAURANT: Court to Rule on Meal Break Suit in April
CALUMET, IL: Sued for Employees' Unlawful Termination and Demotion
CENTURYLINK INC: Embarq Still Defends "Fulghum" Suit in Kansas
CENTURYLINK INC: Qwest Negotiates Deals in Rights-of-Way Suits
COCA-COLA CO: Sued for Misrepresenting Orange Juice Brand
DELOITTE & TOUCHE: Auditors' Suit Can't Proceed as Class Action
E*TRADE SECURITIES: Class Action Over Inactivity Fees Tossed
ECOLAB INC: Nalco Continues to Defends Suits Over COREXIT
ELECTRONIC ARTS: Motion to Dismiss NFL Players' Suit Denied
EMI GROUP: Faces Class Action Over Digital Download Royalties
ENTERGY CORP: Hazardous Waste Suits vs. Unit Remain Pending
ENTERGY CORP: Still Awaits Approval of Louisiana Suit Settlement
ENTERGY CORP: Still Awaits Ruling on Class Certification Motion
EQT PRODUCTION: Landowners Retain Natural Gas Claim, Judge Rules
FIRST MIDWEST: Awaits Order on Bid to Dismiss Overdraft Fees Suit
FRITO-LAY: Faces Class Action Over Misbranded Food Products
HUFFINGTON POST: N.Y. Judge Dismisses Bloggers' Class Action
IBM CORP: Consolidated "Health Net" Suit Dismissed in February
JEROME'S FURNITURE: Blumenthal Files Wage & Hour Class Action
KIRBY CORP: Faces "Rescue Mission" Class Suit in New Jersey
MEDTRONIC INC: Settles Securities Class Action for $85 Million
MERCK & CO: Appeals in K-DUR Antitrust Litigation Pending
MERCK & CO: Continues to Defend Pending Vioxx Liability Suits
MERCK & CO: Class Cert. Bid in Securities Suit Due April 10
MERCK & CO: Continues to Defend Vioxx Suits in Foreign Countries
MERCK & CO: Continues to Defend Vytorin ERISA Class Suits
MERCK & CO: Discovery Ongoing in Suits Over Fosamax Product
MERCK & CO: N.J. Court Dismissed Vioxx ERISA Lawsuits in November
MERCK & CO: Class Cert. Bid Pending in Vytorin Securities Suit
METRO TRANSIT: Judge OKs Discrimination Class Action Settlement
MONSANTO: Judge Grants Motion to Get Settlement Documents
NEWGARD PARTNERS: Sued Over Unpaid Interest of Tenants' Deposit
PATH INC: Accused of Obtaining User Information Without Consent
RON WILSON: Met with Investors Month Prior to Investigation
TENET HEALTHCARE: Continues to Defend Wage and Hour Suits
TENET HEALTHCARE: To File "Dunn" Suit Settlement
TORCHMARK CORP: Appeal From "Fitzhugh" Suit Dismissal Pending
TORCHMARK CORP: Awaits Ruling on Bid to Dismiss "Kennedy" Suit
TORCHMARK CORP: Trial in "Smith" Suit Continued Due to Settlement
UNITED STATES: Army Corps Seek Farmers' Class Action Dismissal
WILMINGTON TRUST: Judge Dismisses Securities Fraud Class Action
WPX ENERGY: Continues to Defend Suits Over Gas Price Indices
WPX ENERGY: Faces Royalty Interest Owners' Suit in N.M. & Colo.
WPX ENERGY: To Litigate Royalty Interest Suit's 2nd Claim in 2012
*********
ABOVENET INC: Being Sold to Zayo for Too Little, Suit Claims
------------------------------------------------------------
Courthouse News Service reports that shareholders claim AboveNet,
a tech company, is selling itself too cheaply to the Zayo Group,
for $2.2 billion, or $84 a share, in Chancery Court.
A copy of the Complaint in Miramar Firefighters Pension Fund v.
AboveNet, Inc., et al., Case No. 7376 (Del. Ch. Ct.), is available
at:
http://www.courthousenews.com/2012/04/02/SCA.pdf
The Plaintiff is represented by:
James P. McEvilly, III, Esq.
FARUQI & FARUQI, LLP
20 Montchanin Road, Suite 145
Wilmington, DE 19807
Telephone: (302) 482-3182
E-mail: jmcevilly@faruqilaw.com
- and -
Juan E. Monteverde, Esq.
FARUQI & FARUQI, LLP
369 Lexington Avenue, 10th Fl.
New York, NY 10017
Telephone: (212) 983-9330
E-mail: jmonteverde@faruqilaw.com
AUSTRALIA: IMF to Get 30% Share From Flood Compensation
-------------------------------------------------------
Chris Merritt, writing for The Australian, reports that thousands
of victims of the Brisbane floods could be obliged to give a
litigation financier up to 30 per cent of any compensation they
receive -- even if that comes from a no-fault compensation scheme
instead of a court case.
This risk has emerged from analysis of the funding agreements
being used by litigation funder IMF (Australia) for its proposed
class action over the flooding of Brisbane.
That analysis, conducted for The Australian by Freehills
litigation partner Michael Mills, reveals that 2000 flood victims
who signed up with IMF are only entitled to keep 100 per cent of
any ex gratia payments in limited circumstances. Ex gratia
payments received after January 1 next year, or after IMF begins
proceedings, must be shared with that company, Mr. Mills' analysis
shows.
This means any statutory compensation scheme would need to be
created by the newly elected state government within months in
order to eliminate the prospect that up to 30 per cent of payments
to some flood victims would finish up with IMF.
Before the state election, Campbell Newman had hinted he favored a
non-litigious method of compensating flood victims. After being
informed of Mr. Mills' analysis of the funding agreements, the new
Premier issued a statement saying he strongly urged anyone
contemplating signing any agreement to carefully read the fine
print and seek independent advice.
IMF executive director John Walker said his company planned to
begin proceedings in "four to five months". "We don't want a
percentage of something that we are not involved in getting for
clients," Mr. Walker said. "The way this is dealt with in the
funding agreements is that we don't get a percentage of it if it
comes before proceedings are commenced, or before January of next
year."
The funding agreements entitle IMF to 20-30 per cent of any
damages or settlement from court proceedings, within the normal
range charged by litigation funders.
IMF and law firm Maurice Blackburn, which will be running the case
for IMF, have both said the massive scale of the proposed class
action meant it would not be possible without the backing of a
litigation funder.
IMF has said there are a number of options to overcome the fact
there was no provision for class actions in the law of Queensland.
Mr. Mills said litigation funding could serve a useful public
purpose in providing access to justice, provided the return was
equitable and fitted the scale of investment and risk. After
analyzing the funding agreement, Mr. Mills expressed concern as to
whether IMF's share of flood victims' compensation would be fair,
especially if the state of Queensland sought to proactively
establish what he described as a sensible no fault compensation
scheme, such as had been established in the U.S. after the
September 11 terrorist attacks.
He said one focus for flood victims should be on the viability of
an administrative compensation scheme, as has been done for
September 11 victims and other disasters. Such schemes seek to
make the best use of the funds available "rather than waste the
available funds on legal costs and disputes over liability", he
said.
"The IMF agreement is a barrier to such a sensible outcome."
He said it was arguable that IMF's entitlement to share in any no-
fault compensation payments made by the state of Queensland might
be even broader than might first appear.
"It is not clear that any payment made by the state of Queensland
to an applicant who had signed a funding agreement would not be
characterized by IMF, perhaps correctly, as the settlement of a
claim rather than an ex gratia payment," Mr. Mills said.
"In this case, IMF would be entitled to a percentage of any
settlement payments made by the state of Queensland to applicants
after they had signed a funding agreement.
"So, in effect, IMF will take their percentage from any settlement
payments made by the state of Queensland and on any view are
entitled to them after they commence legal proceedings or after
January 1, 2013."
He said funding agreements could be a barrier to an administrative
compensation scheme because "the Queensland government and flood
victims risk losing a percentage of any compensation generated by
such an administrative scheme even if it is set up or paid without
any legal proceedings having been necessary or instituted".
Mr. Mills said the funding agreement indicated IMF would be
entitled to take a percentage from flood victims "even if they
have not funded any legal action against the state of Queensland".
"There is, however, an even larger public policy concern,"
Mr. Mills said.
"Absent a statutory compensation scheme, flood victims are likely
to become a legal football as all parties look to assign or deny
blame in court."
AVON PRODUCTS: Former Director Denies Claims in Shareholder Suit
----------------------------------------------------------------
C.M. Matthews, writing for The Wall Street Journal, reports that
the former director of global internal audit at Avon Products Inc.
says that allegations he threatened to release a report detailing
corruption at the company in order to extract a larger severance
package are false.
The allegations were leveled against the former Avon auditor,
Fabian LaPresa, in a securities class action suit filed earlier
this month. The suit claims that Avon and two senior executives
lied to investors about the company's compliance with the Foreign
Corrupt Practices Act, and seeks compensatory damages on behalf of
Avon shareholders.
A lawyer for Mr. LaPresa, Robert Heim, told Corruption Currents
that the allegations are "absurd and untrue."
The suit, filed in federal court in Manhattan, is the latest
chapter in the company's troubles that first came to light in 2008
when it disclosed it had launched an internal investigation into
potentially improper payments. Avon is currently under
investigation by U.S. authorities.
One of the suit's primary accusations is that Avon and its senior
management knew about or disregarded what the suit called "the
pervasive bribery activities" at Avon China as early as 2005. In
particular, it alleges that former Avon Vice Chairman Charles
Cramb approved additional severance benefits for Mr. LaPresa after
Mr. LaPresa threatened to give the Securities and Exchange
Commission an internal audit report reflecting bribes Avon
executives made to Chinese government officials.
"Thus, Cramb's agreement to buy LaPresa's silence with a larger
termination package plainly reflected his awareness of Avon's FCPA
violations no later than LaPresa's last day at Avon in June 2006,"
the suit said.
Mr. Heim said Mr. LaPresa was laid off as a result of
restructuring at Avon, and that the company gave Mr. LaPresa a
standard severance package. He said that Mr. LaPresa never
offered to withhold information about company conduct in exchange
for a higher severance package.
"The complaint that contains these allegations relies on unnamed
sources that are clearly uninformed about the circumstances under
which Mr. Lapresa left Avon," Mr. Heim said.
The suit said the allegations related to Mr. LaPresa were based on
interviews with a witness identified as a "former Avon Senior
Manager, Internal Audit, Latin and North America" who worked under
Mr. LaPresa. A lawyer for the plaintiffs, Gregg S. Levin, didn't
immediately return a request for comment.
Mr. Heim also said that Avon's business activities in the Asia
Pacific and China regions were outside the scope of Mr. LaPresa's
responsibilities.
The U.S. Justice Department and the SEC are currently
investigating the door-to-door cosmetics giant for possible
violations of the FCPA, which bars bribes to foreign officials. A
separate SEC probe is looking into whether or not the company
improperly disclosed information to Wall Street analysts. No
charges have been filed and the company has said it is cooperating
with the investigations.
Mr. Heim declined to say whether or not Mr. LaPresa had been
approached by prosecutors. Spokeswomen for the Justice Department
and the SEC declined to comment.
Avon said Mr. Cramb was fired in January in connection with the
FCPA investigation. In December, Avon said it would replace chief
executive Andrea Jung. Neither could be reached for comment.
The shareholder suit was filed by the court-appointed lead
plaintiffs, LBBW Asset Management Investmentgesellschaft mbH and
SGSS Deutschland Kapitalanlagegesellschaft mbH, on behalf of
purchasers of Avon stock between July 2006 and October 2011. It
seeks compensatory damages on the grounds that investors bought
Avon's stock at artificially inflated prices during that period.
Avon previously declined to comment on the suit.
BP: Asian-American Boat Owners Sue Over Discrimination
------------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that BP
"specifically demanded" that the companies overseeing its Vessels
of Opportunity oil spill clean-up program not hire Vietnamese- and
Cambodian-Americans, a class estimated at 4,000 professional
fishermen claims in Federal Court.
The fishermen say in their complaint that BP's co-defendants "DRC
Emergency Services LLC and Danos and Curole Marine Contractors LLC
colluded in this despicable order by limiting the number of
Vietnamese and Cambodian Americans that they hired."
In a separate lawsuit, in Pinellas County, Fla., a retired
engineer says BP needed his help to cap its broken wellhead, but
never paid him the $2 million it promised.
Forty-one named Vietnamese- and Cambodian-American plaintiffs
filed the class action in New Orleans.
They claim that before the April 20, 2010 explosion of the
Deepwater Horizon oil rig, which killed 11 and set off the worst
environmental disaster in U.S. history, "the Gulf Coast seafood
industry was a vibrant and lucrative business employing more than
213,000 people and producing more than $10.5 billion to the local
economy. The force behind this vibrant industry was the more than
13,000 commercial fishing vessels in the Gulf."
The class claims that "according to a study performed by Dr. David
D. Burrage, Extension Professor of Marine Resources at Mississippi
State University, one-third of the boats with Gulf of Mexico
federal shrimp permits, and over one-half of the boats actually
fishing, belonged to Vietnamese-Americans. Vietnamese-Americans
operated 62 percent of all Mississippi licenses for vessels over
45 feet, 75 percent of all Louisiana licenses for vessels over 50
feet, and 65 percent of Alabama licenses for vessels over 45 feet.
This number does not include a smaller, but significant percentage
belonging to Cambodian-Americans."
The class claims that "the oil spill devastated the commercial
fishing industry in the Gulf of Mexico, causing suffering and
financial burdens to hundreds of thousands of people, especially
to commercial fishermen. Over half of all active commercial
fishermen affected by the BP oil spill were Asians of the
Vietnamese and Cambodian origin."
BP set up a Vessels of Opportunity (V.o.O) program, through which
it hired the fishermen to use their boats in the clean-up. Boat-
owners who signed up have filed numerous lawsuits against BP,
claiming it did not live up to its promises, including paying them
at all after putting them on call, or decontaminating their boats.
BP hired DRC Emergency Services and Danos and Curole Marine
Contractors to manage the Vessels of Opportunity program,
according to the class action.
The complaint states that "even though over half of all active
commercial fishermen affected by the BP Oil Spill were Vietnamese
and Cambodian Americans, less than 10 percent of all the vessels
hired for the V.o.O program were owned by Vietnamese and Cambodian
Americans. It is estimated that of the 5,000 marine vessels
hired, only around 350 vessels belonged to Vietnamese and
Cambodian Americans."
The class claims this was directly attributable to BP's
discrimination.
"During the implementation of the V.o.O. program, BP sent out
e-mail messages to DRC Emergency Services LLC and Danos and Curole
Marine Contractors LLC that specifically demanded that they not
hire vessels owned by Vietnamese and Cambodian Americans," the
complaint states.
"Based on information and belief, DRC Emergency Services LLC and
Danos and Curole Marine Contractors colluded in this despicable
order by limiting the number of Vietnamese and Cambodian Americans
that they hired."
The class claims that about 4,000 Vietnamese- and Cambodian-
Americans were affected by the discrimination.
They seek damages for civil rights violations and racial
discrimination in employment. They are represented by Ryan Beasley
of Harvey, La.
In Pinellas County Court, Florida, retired engineer Joseph
Kaminski claims BP needed his help to cap its broken wellhead but
never paid him for it.
Mr. Kaminski's attorney, Brian Donovan, issued a press statement
announcing the lawsuit. In it, he says that Mr. Kaminski is the
former technical director for the Honeywell Space Systems Division
in Clearwater, Fla., where the complaint was filed.
From 1990 to 1999, "Kaminski was responsible for the design and
system integration of the Honeywell space computer into NASA's EOS
(TERRA) satellite, the design of the Honeywell A2100 spacecraft
computer product line, the design of the NASA Near Earth Asteroid
Rendezvous ('NEAR') mission computers, and the design of the NASA
FORTE mission computer. Suffice it to say, Mr. Kaminski is not
'Joe the Plumber,'" Mr. Donovan said in the statement.
According to the complaint, Mr. Kaminski called BP 21 days into
the oil spill, and "offer(ed) to assist BP to control the source
of the oil spill resulting from the blowout."
The complaint continues: "During this initial telephone
conversation, plaintiff Kaminski briefly explains to BP technical
support team representatives how his insertion pipe design can be
used to collect the oil flowing from the well. Plaintiff
Kaminski's idea is to insert a smaller pipe into the broken pipe
past the break and inflate sealing rings. A technical support
team representative is so impressed with the solution that he
requests plaintiff Kaminski's email address in order to forward
him a form to fill out and return to the Horizon Support Team
('HST')."
The next day, May 12, 2010, Mr. Kaminski "emails the solution to
HST using the insertion pipe to collect oil," as he had explained
on the telephone the day before, according to the complaint.
He sent another e-mail on May 13: "In this email, plaintiff
Kaminski tells HST that he wants at least $2 million for his
assistance, ideas and/or designs if they use them. Plaintiff
Kaminski also explains to HST why the BP-designed 'Top Hat' will
not work," the complaint states.
Mr. Kaminski claims that all correspondence from May 13 onward
made it clear that he expected to be paid $2 million, and that BP
was prepared to pay $2 million for his assistance. He says this
was made clear in communications with attorney Elizabeth Hittos,
legislative counsel for U.S. Congressman Gus Bilirakis, R-Fla., in
Washington, D.C.
"Plaintiff Kaminski conceived, invented, and designed the novel,
unique, and concrete Insertion pipe idea," the complaint states.
"Defendants, both directly and indirectly via Attorney Elizabeth
Hittos, requested the use of plaintiff Kaminski's insertion pipe
invention, idea, and design, and the ongoing engineering services
of plaintiff Kaminski, and have knowingly and voluntarily accepted
their substantial benefits. The insertion pipe idea was submitted
by plaintiff Kaminski to defendants with the understanding and
expectation, fully and clearly understood by defendants and
attorney Hittos, that plaintiff Kaminski would be reasonably
compensated in the amount of 'at least two million U.S. dollars'
for its use by defendants. Defendants did in fact use plaintiff
Kaminski's precise insertion pipe idea and design. Defendants have
failed to pay plaintiff Kaminski any part of the reasonable value
of his insertion pipe invention, idea, and design, and ongoing
engineering services."
Mr. Kaminski claims he also "conceived, invented and designed the
novel, unique, and concrete 'Top Hat' with thermal lifting action
idea."
Mr. Kaminski claims BP could not have capped the will without
using his novel ideas.
BP faces fines under the Clean Water Act for every barrel of oil
spilled. Mr. Kaminski claims that had it not been for his help,
BP would face even greater fines.
If BP is found guilty of gross negligence in the spill and is
assessed the maximum fine per barrel spilled ($4,300 times 4.9
million barrels), it will face $21 billion in penalties.
Mr. Kaminski seeks damages for unjust enrichment.
He is represented by Brian Donovan of Tampa.
The only defendants in his complaint are BP Exploration &
Production and BP America Production Co.
A copy of the Complaint in Duong, et al. v. BP America Production
Company, et al., Case No. 12-cv-00814 (E.D. La.), is available at:
http://www.courthousenews.com/2012/04/02/Viet.pdf
The Plaintiffs are represented by:
Ryan Beasley, Esq.
2439 Manhattan Blvd, Suite 302
Harvey, LA 70058
Telephone: (504) 367-5001
E-mail: acao@loyno.edu
BP: Dolphins Near Deepwater Horizon Rig Suffer Health Problems
--------------------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that a study
of dolphins living near the site of the Deepwater Horizon rig
shows that marine mammals have serious health problems from the
oil spill, and a second study links the disaster to the death of
once-vibrant Gulf coral reefs.
In a report last week that calls dolphin strandings in the
Northern Gulf "unprecedented," the National Oceanic and
Atmospheric Administration said many dolphins who live near the
site of the Deepwater Horizon are underweight, anemic and suffer
from liver and kidney disease. Nearly half also have abnormally
low levels of hormones that help with stress response, metabolism
and immune function, the study found.
The NOAA began the study in 2011 to chart the effects of the BP
oil spill.
According to NOAA data, 675 dolphins have been stranded since
February 2010 -- two months before the oil spill.
The report calls the strandings "significantly higher than
normal," and says that under normal circumstances roughly 74
dolphins strand a year in the Northern Gulf.
In Louisiana alone, the average annual number of dolphin
strandings from 2002-2009 was just 20.
Yet "2011 had 159 strandings in Louisiana, almost 8 times the
2002-2009 historical average," according to the report.
"These increased strandings are part of an Unusual Mortality Event
for the entire northern Gulf which includes all dolphin and whale
strandings between the Panhandle of Florida and the
Louisiana/Texas border," the NOAA report states. "Alabama,
Mississippi and Louisiana stranding rates have been higher than
historic levels since the spill occurred and continue to be high
in 2012."
While most stranded dolphins have been found dead, scientists have
found and studied 32 live dolphins living in Barataria Bay, which
is a few miles from the site where the Deepwater Horizon exploded
and sank on April 20, 2010, killing 11 and sending nearly 5
million barrels of oil gushing into the Gulf of Mexico.
The report states that the "dolphins' symptoms are consistent with
those seen in other mammals exposed to oil, but the study is not
yet complete. Assessment efforts continue in Barataria Bay and in
other coastal areas of Louisiana and Mississippi. A final report
of study results for the Barataria Bay dolphins is expected in the
next six months. Final results for other areas will take longer,
because new samples are still being collected."
And though BP and the Coast Guard declared Barataria Bay cleaned
of oil, photos taken in March and published in the Times-Picayune
show new sheens of Macondo well oil in the wetlands.
"'These are places where we absolutely need long-term
monitoring,'" Olivia Watkins, a spokeswoman for the Louisiana
Coastal Protection and Restoration Authority, told the Times-
Picayune in an e-mail describing the Barataria Bay photos.
Ms. Watkins told the paper that warm weather is causing oil to
bubble up in the areas that had been deemed cleaned.
When cleanup efforts stopped last fall, the Coast Guard promised
to act promptly to any new oil sightings. So far neither the
Coast Guard nor BP has responded to the new oil.
A second study charting the "unprecedented" effects of the oil
spill focused on coral colonies. The study was funded by the
Bureau of Ocean Energy Management and the National Oceanic and
Atmospheric Administration and was published last week in the
Proceedings of the National Academy of Sciences.
The study focuses on coral colonies less than a mile southwest of
the Macondo well.
Scientists found the "colonies presented widespread signs of
stress, including varying degrees of tissue loss, sclerite
enlargement, excess mucous production, bleached commensal
ophiuroids, and covering by brown flocculent material (floc)."
The report states that "analysis of hopanoid petroleum biomarkers
isolated from the floc provides strong evidence that this material
contained oil from the Macondo well. The presence of recently
damaged and deceased corals beneath the path of a previously
documented plume emanating from the Macondo well provides
compelling evidence that the oil impacted deep-water ecosystems.
Our findings underscore the unprecedented nature of the spill in
terms of its magnitude, release at depth, and impact to deep-water
ecosystems."
The report states that while this particular coral colony appears
to be the only one of its kind affected by the spill so far, sea
life is slow-moving and effects of the oil on other colonies may
still be unseen.
"Life in deep-water coral ecosystems is known to operate at a slow
pace," the report states. "Consequently it is too early to fully
evaluate the footprint and long-term effects of acute and subacute
exposure to potential waterborne contaminants resulting from the
Deepwater Horizon oil spill."
Also last week, a resident of Waveland, Miss., a coastal community
not far from the Deepwater Horizon site, told Courthouse News he's
fed up with media denial of the continuing damage from the oil
spill.
Charles Taylor said he's sent photos of beached, oily sea turtles
to local TV but the station is "reporting hardly anything about
what is really going on" along the Gulf beaches, and denied
receiving his photos.
Charles Taylor, who told Courthouse News a year ago that oily sea
turtles washing ashore were rotting on the beach, said last week
that he sent a local news station an e-mail with photos of four
sea turtles he found in a single day. Mr. Taylor said the station
claimed not to have received them, or misplaced them, Mr. Taylor
said, so he sent them a letter.
"I am resending you these pictures again of the dead turtles in
Waveland that you still claim to know nothing about," the letter
states.
"The first was found in Waveland, just west of the Veterans
Memorial Pier. It is the one that is upside down and shows
visible signs of internal bleeding and hemorrhaging, which is
consistent with the turtle deaths immediately following the BP oil
spill.
"The second, third and fourth turtles were all found within 100
yards of each other just west of the Clermont Harbor Pier near the
Silver Slipper Casino.
"I have no way of proving that these turtles were killed by BP's
oil or dispersant mixtures, but it seems funny that any news we
see and try to report that might cast a bad light on BP simply
does not get reported. It has gone on for a long time. About as
long as those BP propaganda commercials you run on your station
trying to tell us that everything is OK on the Coast, when in
fact, the opposite is true. You must remember that in the near
future, that BP money will run out and you will be left with
nothing but your viewing audience to support you."
Mr. Taylor told Courthouse News a year ago that he had to quit his
job because he was sick with symptoms he attributed to the oil
spill.
Congress last week passed a stopgap 3-month transportation bill
that does not include a provision to send 80 percent of Clean
Water Act fines from the 2010 Gulf of Mexico oil spill to Gulf
States.
The provision, packaged as the Restore Act, would have directed
money recovered in fines to help restore the Gulf Coast. Without
the provision, the money will go into the federal oil spill trust
fund, to be used on anything oil spill-related, but not
necessarily connected with the Gulf Coast.
The basic fine BP will face under the Clean Water Act is $1,100
per barrel of oil. If the court finds gross negligence, however,
that penalty could be as high as $4,300 per barrel of oil, or $21
billion, using the government's estimate of 4.9 million spilled
barrels.
BRINKER RESTAURANT: Court to Rule on Meal Break Suit in April
-------------------------------------------------------------
Lisa Jennings, writing for Nation's Restaurant News, reports that
the California Supreme Court is expected to rule in mid April on a
landmark case about meal and rest breaks that could have a
significant impact on all employers in the state.
Restaurant operators across the country who operate in California
hope the long-awaited ruling, which is expected by April 12, will
clarify what many see as ambiguous state laws regarding meal and
rest breaks.
"For more than a decade, California employers have been left to
guess what their legal obligation is," under the state's meal- and
rest-break regulations, said attorney Julie Dunne --
jdunne@littler.com -- of Littler Mendelson in San Diego.
Restaurant companies have been sued often, spending millions on
legal battles and settlements, she noted. "This case is
anticipated to finally offer some clarity . . . and it should
bring a significant reduction in the lawsuits."
A key question before the state Supreme Court is whether employers
must ensure meal breaks for employees, or simply make them
available. The court is also expected to determine whether such
cases can be filed as class actions.
The case, Brinker v. Superior Court, stems from a lawsuit filed in
2004 against Chili's parent Brinker International. The original
lawsuit, Hohnbaum v. Brinker Restaurant Corp., was filed by five
employees who claimed the company illegally denied them meal
breaks for every five hours worked, as required by California law.
The complaint was later certified as a class-action lawsuit that
was estimated to include potentially up to 63,000 current and
former employees.
Brinker officials have declined to comment on the pending case,
but attorneys for Dallas-based Brinker have argued that meal
periods need only be provided, allowing workers the right to pass
on their breaks if they choose.
How a manager handled a break period should also be decided on an
individual basis, the company's attorneys argued, not as a class
action.
Timing of the break period is of particular interest to
restaurants, as servers may not want to take a mandated 30-minute
meal break if it means missing out on a tip.
Awaiting the state Supreme Court ruling are several pending meal-
and rest-break lawsuits involving restaurant companies, including
one filed in 2010 against Chipotle Mexican Grill.
Ms. Dunne said the Supreme Court could issue a decision on a
prospective basis, which essentially would hold employers harmless
for actions in the past, when the regulations were considered
unclear.
For example, if the court decides that employers must ensure that
meal and rest periods are taken at a certain time within the work
day, the decision could apply from this point forward. Current
cases in trial court would essentially be nullified because
actions occurred before the law had been clarified.
CALUMET, IL: Sued for Employees' Unlawful Termination and Demotion
------------------------------------------------------------------
Jay Embry and all similarly situated employees of the City of
Calumet City, v. The City of Calumet City, Illinois, a unit of
local Government, and Michelle Qualkinbush, in her individual
capacity, George Vallis, in his individual capacity, Nick
Manousopoulos, in his individual capacity, and Roger Munda, in his
individual capacity, Brian Wilson, in his individual capacity,
Edward Gonzalez, in his individual capacity, Case No. 2012-CH-
10023 (Ill. Cir. Ct., Cook Cty., March 20, 2012) alleges that the
Plaintiff and other similarly situated employees were damaged as a
result of being reassigned, demoted or terminated without cause,
in violation of the Illinois Constitution and laws.
The Plaintiff seeks redress for actions taken against him by the
Defendants related to his exercise of his rights under the
Illinois Constitution with respect to speech and association, for
declaratory relief and a permanent injunction. Mr. Embrey alleges
that the Individual Defendants, except for City Mayor Ms.
Qualkinbush, terminated, demoted and transferred employees,
including the Plaintiff and Class Members, based on the employees'
political allegiance to Ms. Qualkinbush and not on the basis of
merit, budget or performance.
Mr. Embrey is the former Commissioner of Public Works of Calumet
City and a resident of Cook County, Illinois. He was hired as a
foreman for the Public Works Department of the City beginning in
June 1998, and in June 2007, he was promoted to the head
management position of Commissioner of Public Works. Prior to
being promoted the Plaintiff was a union member.
Calumet City, Illinois, is a municipal corporation incorporated
under the laws of the State of Illinois pursuant to the Illinois
Municipal Code. Ms. Qualkinbush is the Mayor of Calumet City.
Mr. Vallis is the Director of Personnel and Human Resources for
the City, a resident of Cook County, Illinois, and is a final
policy maker. Mr. Gonzalez is the Alderman of the 1st Ward of the
City, while Mr. Wilson was the Alderman of the 4th Ward of the
City. Mr. Munda was the Alderman of the 5th Ward of the City,
while Mr. Manousopoulos was the Alderman of the 6th Ward of City.
The Plaintiff is represented by:
Luke A. Casson, Esq.
ANDREOU & CASSON, LTD.
661 West Lake Street, Suite 2N
Chicago, IL 60661
Telephone: (312) 935-2000
Facsimile: (312) 935-2001
CENTURYLINK INC: Embarq Still Defends "Fulghum" Suit in Kansas
--------------------------------------------------------------
A subsidiary of CenturyLink, Inc. continues to defend a class
action lawsuit pending in Kansas, according to the Company's
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
In William Douglas Fulghum, et al. v. Embarq Corporation, et al.,
filed on December 28, 2007, in the United States District Court
for the District of Kansas, a group of retirees filed a putative
class action lawsuit challenging the decision to make certain
modifications in retiree benefits programs relating to life
insurance, medical insurance and prescription drug benefits,
generally effective January 1, 2006, and January 1, 2008 (which,
at the time of the modifications, was expected to reduce estimated
future expenses for the subject benefits by more than $300
million). Defendants include the Company's subsidiary, Embarq
Corporation, certain of its benefit plans, its Employee Benefits
Committee and the individual plan administrator of certain of its
benefits plans. Additional defendants include Sprint Nextel and
certain of its benefit plans. The Court certified a class on
certain of plaintiffs' claims, but rejected class certification as
to other claims. Embarq and other defendants continue to
vigorously contest these claims and charges.
On October 14, 2011, the Fulghum lawyers filed a new, related
lawsuit, Abbott et al. v. Sprint Nextel et al. CenturyLink/Embarq
is not named a defendant in the lawsuit. In Abbott, approximately
1,800 plaintiffs allege breach of fiduciary duty in connection
with the changes in retiree benefits that also are at issue in the
Fulghum case. The Abbott plaintiffs are all members of the class
that was certified in Fulghum on claims for allegedly vested
benefits (Counts I and III), and the Abbott claims are similar to
the Fulghum breach of fiduciary duty claim (Count II), on which
the Fulghum court denied class certification.
The Company says it has not accrued a liability for these matters
as it is premature to determine whether an accrual is warranted
and, if so, a reasonable estimate of probable liability.
Headquartered in Monroe, Louisiana, CenturyLink --
http://www.centurylink.com/-- is the third largest
telecommunications company in the United States. The company
provides broadband, voice, wireless and managed services to
consumers and businesses across the country. It also offers
advanced entertainment services under the CenturyLink(TM)
Prism(TM) TV and DIRECTV brands. In addition, the company
provides data, voice and managed services to enterprise,
government and wholesale customers in local, national and select
international markets through its high-quality advanced fiber
optic network and multiple data centers.
CENTURYLINK INC: Qwest Negotiates Deals in Rights-of-Way Suits
--------------------------------------------------------------
Parties in class action lawsuits involving a CenturyLink, Inc.
subsidiary are now engaged in negotiating and finalizing
settlements on a state-by-state basis for unresolved claims
relating to the installation of fiber-optic cable in certain
rights-of-way, according to the Company's February 28, 2012, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2011.
Several putative class actions relating to the installation of
fiber-optic cable in certain rights-of-way were filed against the
Company's subsidiary, Qwest Communications International Inc., on
behalf of landowners on various dates and in various courts in
Alabama, Arizona, California, Colorado, Delaware, Florida,
Georgia, Illinois (where there is a federal and a state court
case), Indiana, Iowa, Kansas, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey,
New Mexico, New York, North Carolina, Oklahoma, Oregon, South
Carolina, Tennessee, Texas, Utah, Virginia, and Washington. For
the most part, the complaints challenge the Company's right to
install its fiber-optic cable in railroad rights-of-way. The
complaints allege that the railroads own the right-of-way as an
easement that did not include the right to permit the Company to
install its fiber-optic cable in the right-of-way without the
Plaintiffs' consent. Most of the actions purport to be brought on
behalf of state-wide classes in the named Plaintiffs' respective
states, although two of the currently pending actions purport to
be brought on behalf of multi-state classes. Specifically, the
Illinois state court action purports to be on behalf of landowners
in Illinois, Iowa, Kentucky, Michigan, Minnesota, Nebraska, Ohio
and Wisconsin, and the Indiana state court action purports to be
on behalf of a national class of landowners. In general, the
complaints seek damages on theories of trespass and unjust
enrichment, as well as punitive damages.
On July 18, 2008, a federal district court in Massachusetts
entered an order preliminarily approving a settlement of all of
the actions, except the action pending in Tennessee. On
September 10, 2009, the court denied final approval of the
settlement on grounds that it lacked subject matter jurisdiction.
On December 9, 2009, the court issued a revised ruling that, among
other things, denied a motion for approval as moot and dismissed
the matter for lack of subject matter jurisdiction. The parties
are now engaged in negotiating and finalizing settlements on a
state-by-state basis, and have filed and received final approval
of settlements in Alabama and Illinois federal court, and in
Tennessee state court. Final approval also has been granted in
federal court actions in Idaho and North Dakota, to which Qwest is
not a party.
The Company says it has accrued an amount that it believes is
probable for these matters; however, the amount is not material to
its financial statements.
Headquartered in Monroe, Louisiana, CenturyLink --
http://www.centurylink.com/-- is the third largest
telecommunications company in the United States. The company
provides broadband, voice, wireless and managed services to
consumers and businesses across the country. It also offers
advanced entertainment services under the CenturyLink(TM)
Prism(TM) TV and DIRECTV brands. In addition, the company
provides data, voice and managed services to enterprise,
government and wholesale customers in local, national and select
international markets through its high-quality advanced fiber
optic network and multiple data centers.
COCA-COLA CO: Sued for Misrepresenting Orange Juice Brand
---------------------------------------------------------
Dan Levine, writing for Reuters, reports that Coca-Cola Co.'s
Simply Orange juice brand isn't simply orange juice, according to
a lawsuit filed against the beverage company on March 30.
Instead, the lawsuit in an Illinois federal court claims that the
product undergoes extensive processing, and is dependent upon
added aroma and flavoring in a way not found in nature. The
plaintiff, a consumer, accuses Coca-Cola of fraud, and seeks class
action status.
The consumer, Randall Davis, had bought the product -- whose label
says "100% Pure Squeezed Orange Juice" -- at stores "for personal,
family, or household purposes," the lawsuit said.
Coca-Cola spokeswoman Susan Stribling said the company's Simply
and Minute Maid juices are properly labeled in full accordance
with FDA regulations.
"This lawsuit has nothing to do with misleading consumers and
everything to do with lining class action lawyers' pockets,"
Ms. Stribling said. "It is a meritless case against which we will
vigorously defend ourselves."
Lawsuits against food and beverage companies over alleged
misleading marketing have drawn more attention, with sometimes
dubious results for the plaintiffs.
A suit accusing Taco Bell of misrepresenting the amount of beef in
its products received national headlines last year. But Taco Bell
vehemently disputed the claims, which were soon voluntarily
withdrawn by the plaintiff.
The latest lawsuit said that chemically engineered "flavor packs"
are added to Simply Orange, in order to mimic the flavor of
natural orange juice. Consumers are willing to pay a premium
price for Simply Orange, due in part to their false belief in the
freshness of the product, the lawsuit said.
"Coca-Cola misrepresented that Simply Orange was 100% pure and
natural orange juice when in fact it was not," the lawsuit said.
The case in U.S. District Court, Northern District of Illinois is
Randall Davis, on behalf of himself and all others similarly
situated, v. The Coca-Cola Company, 12-cv-02391.
DELOITTE & TOUCHE: Auditors' Suit Can't Proceed as Class Action
---------------------------------------------------------------
Philip A. Janquart at Courthouse News Service reports that a
federal judge decided to decertify a class of auditors suing their
former employers at Deloitte & Touche, finding the overtime claims
too individual in nature.
James Brady represents a class of unlicensed accountants seeking
overtime from Deloitte. Companies in California must pay overtime
to employees who work more than 40 hours a week, unless those
workers meet exemptions for professionals, executives or
administrators.
Though the Northern District of California previously certified
the class, the 9th Circuit stayed the ruling while it considered a
similar overtime case against PricewaterhouseCoopers.
In Campbell v. Pricewaterhouse Coopers, the federal appeals court
said unlicensed accountants were ineligible for the professional
exemption.
After the 9th Circuit lifted its stay against the Deloitte
auditors, Deloitte moved to decertify.
U.S. District Judge Susan Illston granted the motion last week,
finding that the auditors cannot exhibit a common thread among
class members.
"The court finds that plaintiffs have not demonstrated that common
issues predominate," Judge Illston wrote. "The voluminous and
conflicting evidence in the form of class member declarations and
deposition testimony shows wide variation in the job duties and
work experiences of class member, and plaintiffs have not shown
that this inquiry is amenable to common proof."
Judge Illston disagreed that unlicensed accountants do not fulfill
the requirements of exemption under California certification laws.
"The court concludes that plaintiffs have not shown that the
requirements of Rule23(b)(3) are met," she wrote. "Although there
may be some common questions of law or fact, plaintiffs have not
demonstrated that common questions of law or fact predominate and
that a class action is a superior method of adjudication."
The court would hold a case management conference April 20, 2012.
A copy of the Order Granting Defendant's Motion for
Decertification and Setting Further Case Management Conference for
April 20, 2012 at 3:00 p.m. in Brady, et al. v. Deloitte & Touche
LLP, Case No. 08-cv-00177 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/04/02/308-cv-00177.pdf
E*TRADE SECURITIES: Class Action Over Inactivity Fees Tossed
------------------------------------------------------------
Jonny Bonner at Courthouse News Service reports that E*Trade
Securities is not liable for charging inactivity fees, a federal
judge ruled, rejecting the claims of a class action.
Lead plaintiffs Joseph Roling and Alexander Landvater had claimed
that the online stock brokerage charged and collected surprise
quarterly fees, also called account-maintenance or account-service
fees. The investors apparently did not meet the exemption
criteria for customers who maintained a "certain minimum balance"
or "executed a certain number of trades."
E*Trade discontinued the fees, which ranged from $25 to $40, in
2010.
Mr. Roling was charged inactivity fees beginning in 2004,
Landvater incurred the charges in 2006. Both men argued, however,
that E*Trade could not charge such fees because they were not
properly laid out in their "brokerage customer agreements."
"Even if the BCAs allowed E*Trade to charge an inactivity fee, a
document available on E*Trade's Web site -- known in this
litigation as the Brown Co. Addendum -- actually stated that no
inactivity fees would be charged," according to the San Francisco
court's summary of the claims.
E*Trade countered that the brokerage customer agreements did
include reference to the fees, "stating that, if the account is
inactive, then E*Trade 'may charge additional fees' and that
'[a]ccount maintenance fees are described in the schedule of fees
on the E*Trade Securities website," the 19-page ruling states.
In a motion for summary judgment, the company said Messrs. Roling
and Landvater had waived their right to challenge the fees by
continuing to perform under the brokerage customer agreements.
U.S. District Judge Edward Chen sided with E*Trade on Tuesday.
"There seems to be no dispute that waiver is an affirmative
defense," he wrote.
"Because the court has granted summary judgment to E*Trade based
on waiver, plaintiffs' individual claims have been disposed of in
their entirety," he added. "There are no other individual
plaintiffs in this case; thus, there is no one who can proceed
with the class claim."
The parties must still attend a status conference on April 13 to
discuss future litigation, however, because E*Trade may have
charged inactivity fees without first posting a schedule on its
Web site in 2005, the court found.
A copy of the Order Granting Defendant's Renewed Motion for
Summary Judgment in Roling, et al. v. E*Trade Securities LLC, Case
No. 10-cv-00488 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/03/30/Class_eTrade_19.pdf
ECOLAB INC: Nalco Continues to Defends Suits Over COREXIT
---------------------------------------------------------
An Ecolab Inc. subsidiary continues to defend itself from class
action lawsuits over the COREXIT dispersant, which was supplied
for use in the Deepwater Horizon oil spill, according to the
Company's February 28, 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 deepwater drilling platform, the Deepwater
Horizon, operated by a subsidiary of BP plc, sank in the Gulf of
Mexico after a catastrophic explosion and fire that began on April
20, 2010. A massive oil spill resulted. Approximately one week
following the incident, subsidiaries of BP plc, under the
authorization of the responding federal agencies, formally
requested the Company's indirect subsidiary, Nalco Company, to
supply large quantities of COREXIT 9500, a Nalco oil dispersant
product listed on the U.S. EPA National Contingency Plan Product
Schedule. Nalco Company responded immediately by providing
available COREXIT and increasing production to supply the product
to BP's subsidiaries for use, as authorized and directed by
agencies of the federal government. Prior to the incident, Nalco
and its subsidiaries had not provided products or services or
otherwise had any involvement with the Deepwater Horizon platform.
On July 15, 2010, BP announced that it had capped the leaking
well, and the application of dispersants by the responding parties
ceased shortly thereafter.
Nalco Company, is a defendant in five putative class action
lawsuits relating to the use of its COREXIT dispersant in the Gulf
of Mexico in response to the Deepwater Horizon oil spill. The
actions, as currently pleaded, allege several causes of action,
including negligence and gross negligence. The plaintiffs in
these actions seek, among other things, compensatory and punitive
damages, medical monitoring and attorneys' fees and costs. In
addition, Nalco Company is a defendant in fifteen civil actions
brought by individual plaintiffs that contains factual allegations
substantially similar to the putative class action lawsuits
against Nalco Company, with the addition of claims of nuisance,
trespass, battery, and strict liability for the physical injuries
and property damage allegedly sustained by the plaintiffs. The
plaintiffs in those actions seek, among other things, compensatory
and punitive damages, and attorneys' fees and costs.
All but two of these cases have been administratively transferred
for pre-trial purposes to a judge in the United States District
Court for the Eastern District of Louisiana with other related
cases under In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in
the Gulf of Mexico, on April 20, 2010, Case No. 10-md-02179 (E.D.
La.) (the "MDL"). Pursuant to orders issued in the MDL, the
claims have been consolidated in several master complaints,
including one naming Nalco and others who responded to the Gulf
Oil Spill (known as the "B3 Bundle").
At this time, the Company says it does not know how many cases
will be in the B3 Bundle. A tentative list of cases includes
fifteen cases (including some putative class actions) in the B3
Bundle. Six cases previously filed against Nalco are not included
in the B3 Bundle. The two cases that have not been consolidated
in the MDL are pending in state court in Mississippi and
Louisiana.
ELECTRONIC ARTS: Motion to Dismiss NFL Players' Suit Denied
-----------------------------------------------------------
The Los Angeles Times reports that a federal judge on March 30
denied a motion from Electronic Arts Inc. to dismiss a lawsuit
filed by former National Football League players alleging that the
video game company misappropriated their likenesses in its Madden
NFL titles.
The ruling, by Judge Richard Seeborg of the U.S. District Court
for the Northern District of California, means that the case will
proceed with its quest to obtain class-action status in
representing more than 6,000 former NFL players.
The named plaintiffs include Tony Davis, former running back for
the Tampa Bay Buccaneers; Vince Ferragamo, former quarterback for
the Los Angeles Rams (pictured above); and Billy Joe DuPree,
former tight end for the Dallas Cowboys.
Mr. Davis and others allege that EA, based in Redwood City,
Calif., used their likenesses in Madden games without compensating
them. EA in the past has argued that it has the right to do so
under the 1st Amendment.
An EA spokesman said the company "respectfully disagrees" with the
ruling and is "confident we will prevail."
EMI GROUP: Faces Class Action Over Digital Download Royalties
-------------------------------------------------------------
Courthouse News Service reports that EMI Group fka Capitol Records
owes artists royalties on ringtones and digital downloads, Martha
Davis as assignee for The Motels et al. claims in a federal class
action.
A copy of the Complaint in Davis v. EMI Group Limited, Case No.
12-cv-01602 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/04/02/Music.pdf
The Plaintiff is represented by:
Raymond P. Boucher, Esq.
Jeffrey A. Koncius, Esq.
KIESEL BOUCHER LARSON LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211
Telephone: (310) 854-4444
E-mail: boucher@kbla.com
koncius@kbla.com
- and -
Neville L. Johnson, Esq.
Douglas L. Johnson, Esq.
James T. Ryan, Esq.
JOHNSON & JOHNSON LLP
439 N. Canon Drive, Suite 200
Beverly Hills, CA 90210
Telephone: (310) 975-1080
E-mail: njohnson@jjllplaw.com
djohnson@jllplaw.com
jryan@jllplaw.com
- and -
Clifford H. Pearson, Esq.
Daniel L. Warshaw, Esq.
PEARSON, SIMON, WARSHAW & PENNY, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
E-mail: cpearson@pswplaw.com
dwarshaw@pswplaw.com
- and -
Bruce L. Simon, Esq.
Robert G. Retana, Esq.
Aaron M. Sheanin, Esq.
William J. Newsom, Esq.
PEARSON, SIMON, WARSHAW & PENNY, LLP
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
E-mail: bsimon@pswplaw.com
rretana@pswplaw.com
asheanin@pswplaw.com
wnewsom@pswplaw.com
- and -
Michael D. Hausfeld, Esq.
James J. Pizzirusso, Esq.
HAUSFELD LLP
1700 K Street, NW Suite 650
Washington, D.C. 20006
Telephone: (202) 540-7200
E-mail: mhausfeld@hausfeldllp.com
jpizzirusso@hausfeldllp.com
- and -
Michael P. Lehmann, Esq.
Bruce J. Wecker, Esq.
Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Telephone: (415) 633-1908
E-mail: mlehmann@hausfeldllp.com
bwecker@hausfeldllp.com
abailey@hausfeldllp.com
ENTERGY CORP: Hazardous Waste Suits vs. Unit Remain Pending
-----------------------------------------------------------
Several class action and other lawsuits have been filed in state
and federal courts seeking relief from Entergy Corporation's
subsidiary, Entergy Gulf States, Inc., and others for damages
caused by the disposal of hazardous waste and for asbestos-related
disease allegedly resulting from exposure on Entergy Gulf States,
Inc.'s premises.
No further updates were reported in the Company's February 28,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
Entergy Corporation -- http://www.entergy.com/-- is an integrated
energy company engaged primarily in electric power production and
retail distribution operations. Entergy owns and operates power
plants with approximately 30,000 megawatts of electric generating
capacity. Entergy delivers electricity to 2.7 million utility
customers in Arkansas, Louisiana, Mississippi and Texas. Entergy
has annual revenues of more than $11 billion and approximately
15,000 employees.
ENTERGY CORP: Still Awaits Approval of Louisiana Suit Settlement
----------------------------------------------------------------
Several property owners have filed a class action lawsuit against
Entergy Corporation's subsidiaries, Entergy Louisiana LLC, Entergy
Services Inc., Entergy Technology Holding Company (ETHC), and
Entergy Technology Company, in state court in St. James Parish,
Louisiana, purportedly on behalf of all property owners in
Louisiana who have conveyed easements to the defendants. The
lawsuit alleges that Entergy installed fiber optic cable across
the plaintiffs' property without obtaining appropriate easements.
The plaintiffs seek damages equal to the fair market value of the
surplus fiber optic cable capacity, including a share of the
profits made through use of the fiber optic cables, and punitive
damages. Entergy removed the case to federal court in New
Orleans; however, the district court remanded the case back to
state court. In February 2004, the state court entered an order
certifying this matter as a class action. Entergy's appeals of
this ruling were denied. The parties have entered into a term
sheet establishing basic terms for a settlement that must be
approved by the court.
No further updates were reported in the Company's February 28,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
Entergy Corporation -- http://www.entergy.com/-- is an integrated
energy company engaged primarily in electric power production and
retail distribution operations. Entergy owns and operates power
plants with approximately 30,000 megawatts of electric generating
capacity. Entergy delivers electricity to 2.7 million utility
customers in Arkansas, Louisiana, Mississippi and Texas. Entergy
has annual revenues of more than $11 billion and approximately
15,000 employees.
ENTERGY CORP: Still Awaits Ruling on Class Certification Motion
---------------------------------------------------------------
Entergy Corporation is still awaiting a court decision on
plaintiffs' motion for class certification in a class action
lawsuit pending in Texas, according to the Company's February 28,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
In August 2003, a lawsuit was filed in the district court of
Chambers County, Texas, by Texas residents on behalf of a
purported class apparently of the Texas retail customers of
Entergy Gulf States, Inc. who were billed and paid for electric
power from January 1, 1994, to the present. The named defendants
include Entergy Corporation, Entergy Services Inc., Entergy Power
Inc., Entergy Power Marketing Corp., and Entergy Arkansas Inc.
Entergy Gulf States, Inc. was not a named defendant, but is
alleged to be a co-conspirator. The court granted the request of
Entergy Gulf States, Inc. to intervene in the lawsuit to protect
its interests.
Plaintiffs allege that the defendants implemented a "price gouging
accounting scheme" to sell to plaintiffs and similarly situated
utility customers higher priced power generated by the defendants
while rejecting and/or reselling to off-system utilities less
expensive power offered and/or purchased from off-system suppliers
and/or generated by the Entergy system. In particular, plaintiffs
allege that the defendants manipulated and continue to manipulate
the dispatch of generation so that power is purchased from
affiliated expensive resources instead of buying cheaper off-
system power.
Plaintiffs stated in their pleadings that customers in Texas were
charged at least $57 million above prevailing market prices for
power. Plaintiffs seek actual, consequential and exemplary
damages, costs and attorneys' fees, and disgorgement of profits.
The plaintiffs' experts have tendered a report calculating damages
in a large range, from $153 million to $972 million in present
value, under various scenarios. The Entergy defendants have
tendered expert reports challenging the assumptions,
methodologies, and conclusions of the plaintiffs' expert reports.
The case is pending in state district court, and a class
certification hearing was held in August 2011. The decision of
the court on class certification is pending.
No further updates were reported in the Company's latest SEC
filing.
Entergy Corporation -- http://www.entergy.com/-- is an integrated
energy company engaged primarily in electric power production and
retail distribution operations. Entergy owns and operates power
plants with approximately 30,000 megawatts of electric generating
capacity. Entergy delivers electricity to 2.7 million utility
customers in Arkansas, Louisiana, Mississippi and Texas. Entergy
has annual revenues of more than $11 billion and approximately
15,000 employees.
EQT PRODUCTION: Landowners Retain Natural Gas Claim, Judge Rules
----------------------------------------------------------------
Michael Owens, writing for Bristol Herald Courier, reports that a
federal judge's ruling that distinguishes coalbed methane as
separate from the coal it's found in could hurry along four gas
royalty cases in six Southwest Virginia counties.
In a ruling issued on March 28 as part of a pair of class-action
lawsuits, U.S. Magistrate Judge Pamela Meade Sargeant said
landowners retain their claim to the natural gas siphoned from
coal seams if they've sold only the rights for that coal.
"Any party to the drilling units who owns the coal estate only,
has no interest in the CBM (coalbed methane) or the revenues
generated by the production of the CBM," Judge Sargent wrote in
the ruling released on March 28.
The decision might allow landowners to bypass hauling every coal
owner into court to determine gas ownership and instead go
straight to arguing for royalties they say are owed to them by EQT
Production Co., the defendant in both cases.
"This decision opens the way for over a thousand royalty owners in
Southwest Virginia to finally see justice done," said Don Barrett,
one of several attorneys representing the landowners.
Spokesmen for the Pittsburgh, Penn.-based EQT could not be reached
on March 30.
Mr. Barrett's group, the Virginia Gas Owners Litigation Group, has
two similar ongoing cases against CNX Gas Co., of Canonsburg,
Penn.
At the heart of the lawsuits are royalty payments that state law
has allowed to be withheld from landowners when energy companies
siphon coalbed methane and argue that ownership is in dispute. It
also applies to royalties put into escrow accounts in cases of
forced pooling, where gas is pulled from underground despite a
lack of contract with the landowner.
The practices are allowed under the 1990 Virginia Gas Act, created
to allow business to drill first and determine ownership later, in
the courts. Ownership of coalbed methane first came into question
in the 1980s. Until then, the gas was deemed a deadly and
explosive nuisance, but new technology has allowed the gas to be
withdrawn from coal seams, and then processed for use.
With that new technology emerged the question of whether the gas
was part of the coal or a separate substance.
Judge Sargent's ruling relied on a 2004 Virginia Supreme Court
opinion concerning the Gas Act and a similar question on the
ownership of coalbed methane.
In that case, Harrison-Wyatt v. Ratliff, the state Supreme Court
also distinguished the gas as separate from the coal it's found
in. The royalties fell to the landowner as long as they sold the
coal rights but not the gas or all mineral rights.
Still, energy companies and the Virginia Gas and Oil Board, which
issues drilling permits, argued that the ruling applied only to
the plaintiff in that particular case.
Judge Sargent noted in her ruling that the Supreme Court of Kansas
in 2006 cited the Harrison-Wyatt case when deciding that the
ownership of coal does not include the ownership of CBM.
EQT had argued that every coal owner needed to be located and
brought to court for the case to continue.
But Mr. Barrett pointed out that EQT already submitted the
documentation citing the coal, gas and landowners when the company
initially applied for a drilling permit years ago.
Under Mr. Barrett's argument, there is no need to have the coal
owners in court if they have no claim to the gas. Only the gas
owners need to be present, he argued.
Judge Sargent agreed.
FIRST MIDWEST: Awaits Order on Bid to Dismiss Overdraft Fees Suit
-----------------------------------------------------------------
First Midwest Bancorp, Inc. is awaiting a court decision on its
subsidiary's motion to dismiss a class action lawsuit relating to
overdraft fees, according to the Company's February 28, 2012, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2011.
In August 2011, the Company principal subsidiary, First Midwest
Bank (the "Bank"), was named in a purported class action lawsuit
filed in the Circuit Court of Cook County, Illinois, on behalf of
certain of the Bank's customers who incurred overdraft fees. The
lawsuit is based on the Bank's practices pursuant to debit card
transactions, and alleges, among other things, that these
practices have resulted in customers being unfairly assessed
overdraft fees. The lawsuit seeks an unspecified amount of
damages and other relief, including restitution.
The Company believes that the complaint contains significant
inaccuracies and factual misstatements and that the Bank has
meritorious defenses. As a result, the Bank intends to vigorously
defend itself against the allegations in the lawsuit.
The Bank filed a motion to dismiss this claim in November 2011,
and the plaintiff filed an amended complaint in February 2012.
FRITO-LAY: Faces Class Action Over Misbranded Food Products
-----------------------------------------------------------
Courthouse News Service reports that a federal class action claims
that Frito-Lay/Pepsico "misbrand" their potato chips by
advertising them as containing "0 grams Trans Fat" but neglecting
to point out that they contain more than 13 grams of fat for every
50 grams of chips.
A copy of the Complaint in Wilson v. Frito-Lay North America,
Inc., et al., Case No. 12-cv-01586 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/04/02/Chips.pdf
The Plaintiff is represented by:
Pierce Gore, Esq.
PRATT & ASSOCIATES
1901 S. Bascom Avenue, Suite 350
Campbell, CA 95008
Telephone: (408) 429-6506
E-mail: pgore@prattattorneys.com
- and -
Jay Nelkin, Esq.
Carol Nelkin, Esq.
Stuart Nelkin, Esq.
NELKIN & NELKIN, P.C.
5417 Chaucer
P.O. Box 25303
Telephone: (713) 526-4500
E-mail: jnelkin@nelkinpc.com
cnelkin@nelkinpc.com
snelkin@nelkinpc.com
- and -
Don Barrett, Esq.
David McMullan, Jr., Esq.
Brian Herrington, Esq.
Katherine B. Riley, Esq.
BARRETT LAW GROUP, P.A.
P.O. Box 927
404 Court Square North
Lexington, MS 39095
Telephone: (662) 834-2488
E-mail: dbarrett@barrettlawgroup.com
donbarrettpa@yahoo.com
bherrington@barrettlawgroup.com
kbriley@barrettlawgroup.com
kbriphone@yahoo.com
dmcmullan@barrettlawgroup.com
- and -
Charles Barrett, Esq.
CHARLES BARRETT, P.C.
6518 Hwy. 100, Suite 210
Nashville, TN 37205
Telephone: (615) 515-3393
E-mail: charles@cfbfirm.com
- and -
Richard Barrett, Esq.
LAW OFFICES OF RICHARD R.BARRETT, PLLC
2086 Old Taylor Road, Suite 1011
Oxford, MS 38655
Telephone: (662) 380-5018
E-mail: rrb@rrblawfirm.net
- and -
J. Price Coleman, Esq.
COLEMAN LAW FIRM
1100 Tyler Avenue, Suite 102
Oxford, MS 38655
Telephone: (662) 236-0047
E-mail: colemanlawfirmpa@bellsouth.net
- and -
Dewitt M. Lovelace, Esq.
Alex Peet, Esq.
LOVELACE LAW FIRM, P.A.
12870 U.S. Hwy 98 West, Suite 200
Miramar Beach, FL 32550
Telephone: (850) 837-6020
E-mail: dml@lovelacelaw.com
HUFFINGTON POST: N.Y. Judge Dismisses Bloggers' Class Action
------------------------------------------------------------
BusinessWeek reports that a federal judge in New York says that
the Huffington Post and its parent company, AOL, don't have to pay
bloggers who provide content for the Web site.
U.S. District Judge John Koeltl dismissed a lawsuit that bloggers
filed last year, saying they were unjustly denied compensation for
their work.
The bloggers were seeking class-action status for the lawsuit.
The lawsuit was prompted by AOL Inc.'s $315 million purchase of
the Huffington Post last year. The bloggers claimed that the
Web site unjustly profited from their work, promising only
exposure.
In dismissing the suit, the judge says the bloggers knew from the
start that they wouldn't be paid and could have taken their work
elsewhere.
IBM CORP: Consolidated "Health Net" Suit Dismissed in February
--------------------------------------------------------------
A consolidated class action lawsuit over International Business
Machines Corporation's agreement with Health Net, Inc., was
dismissed in February 2012, according to the Company's
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
The Company was named as a co-defendant in numerous purported
class actions filed on and after March 18, 2011, in federal and
state courts in California in connection with an information
technology outsourcing agreement between Health Net, Inc. and IBM.
The matters were consolidated in the United States District Court
for the Eastern District of California, and plaintiffs filed a
consolidated complaint on July 15, 2011. The consolidated
complaint alleges that the company violated the California
Confidentiality of Medical Information Act in connection with hard
drives that are unaccounted for at one of Health Net's data
centers in California; plaintiffs have been notified by Health Net
that certain of their personal information is believed to be
contained on those hard drives. Plaintiffs seek damages, as well
as injunctive and declaratory relief. IBM has also received a
request for information regarding this matter from the California
Attorney General.
On January 12, 2012, the court granted IBM's motion to dismiss the
complaint for lack of standing, and on February 22, the case
against IBM was dismissed.
JEROME'S FURNITURE: Blumenthal Files Wage & Hour Class Action
-------------------------------------------------------------
On March 21, 2012, the employment attorneys at Blumenthal,
Nordrehaug & Bhowmik filed a class action complaint against
Jerome's Furniture for alleged wage and hour violations. Wheat
vs. Jerome's Furniture, Case No. 37-2012-00094419 is currently
pending in San Diego Superior Court.
According to the class action complaint filed against Jerome's
Furniture, the furniture store "did not have in place an immutable
timekeeping system to accurately record and pay PLAINTIFF and
other CALIFORNIA CLASS Members for the actual number of hours
these employees worked each day, including overtime hours." The
complaint also alleges that Jerome's "systematically, unlawfully,
and unilaterally altered the hours recorded in timekeeping system
by the PLAINTIFF and the members of the CALIFORNIA CLASS in order
to avoid paying these employees" the amount of overtime pay due
under the California Labor Code. Specifically, the lawsuit claims
that even though the employees "clocked out for a thirty (30)
minute meal break . . . the employees were not at all times
provided an off-duty meal break."
Moreover, the class action complaint filed against Jerome's
Furniture alleges that the employees receive non-discretionary
bonuses which Jerome's failed to include in the regular rate of
pay for purposes of calculating overtime pay. The failure to
include the bonus in the regular rate of pay for overtime
purposes, according to the complaint, "has resulted in a
systematic underpayment of overtime compensation" to the
employees.
Blumenthal, Nordrehaug & Bhowmik is a California employment law
firm that dedicates its practice to helping employees, investors
and consumers fight back against unfair business practices,
including violations of the California Labor Code and Fair Labor
Standards Act.
KIRBY CORP: Faces "Rescue Mission" Class Suit in New Jersey
-----------------------------------------------------------
Kirby Corporation is facing a class action lawsuit in New Jersey
commenced by Rescue Mission of El Paso., Inc., et al., according
to the Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On January 30, 2012, in the U.S. District Court for the District
of New Jersey and styled Rescue Mission of El Paso., Inc., et al.
v. John J. Nicola, et al., the Company, its subsidiary, K-Sea
Transportation Partners L.P. and current and former officers and
directors of K-Sea were named defendants in a putative class
action complaint asserting that during the period of January 30,
2009, to January 27, 2010, K-Sea allegedly failed to disclose
certain facts regarding K-Sea's operations and financial
conditions, and asserting violations of Sections 10(b)(5) and
20(a) of the Securities and Exchange Act of 1934 and Rule 10b-5
thereunder. Plaintiff seeks class certification, compensatory
damages, attorneys fees and costs.
The Company believes that this lawsuit is without merit and
intends to vigorously defend itself in this matter based on the
information available to the Company at this time. The Company
does not expect the outcome of this matter to have a material
adverse effect on its consolidated financial statements; however,
there can be no assurance as to the ultimate outcome of this
matter.
MEDTRONIC INC: Settles Securities Class Action for $85 Million
--------------------------------------------------------------
Medtronic, Inc. on March 30 announced that the company has reached
an agreement in principle to settle a previously disclosed federal
securities class action. Under the settlement, the company will
make a payment of $85 million to resolve all of the class claims.
The action, initially filed in December, 2008 against the company
and certain current and former officers by the Minneapolis
Firefighters Relief Association, had sought damages for alleged
misrepresentations and omissions by the Company during a period
prior to November, 2008. Under the settlement, Medtronic
explicitly denies that it made any misrepresentations or omissions
or that it otherwise engaged in any wrongdoing.
The proposed settlement is subject to completion of final
documentation and preliminary and final court approval. Medtronic
expects to record the settlement as a one-time charge in its
fourth fiscal quarter ending April 27, 2012.
MERCK & CO: Appeals in K-DUR Antitrust Litigation Pending
---------------------------------------------------------
Appeals in K-DUR antitrust class action litigation remain pending,
according to Merck & Co., Inc.'s February 28, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
In July 2011, the Company announced the latest phase of its global
restructuring program (the "Merger Restructuring Program") that
was initiated in conjunction with the integration of the legacy
Merck and legacy Schering-Plough Corporation businesses. This
Merger Restructuring Program is intended to optimize the cost
structure of the combined company. As part of this latest phase,
the Company expects to reduce its workforce measured at the time
of the Merger by an additional 12% to 13% across the Company
worldwide.
In June 1997 and January 1998, Schering-Plough settled patent
litigation with Upsher-Smith, Inc. ("Upsher-Smith") and ESI
Lederle, Inc. ("Lederle"), respectively, relating to generic
versions of K-DUR, Schering-Plough's long-acting potassium
chloride product supplement used by cardiac patients, for which
Lederle and Upsher-Smith had filed Abbreviated New Drug
Applications ("ANDAs"). Following the commencement of an
administrative proceeding by the United States Federal Trade
Commission (the "FTC") in 2001 alleging anti-competitive effects
from those settlements (which has been resolved in Schering-
Plough's favor), putative class and non-class action lawsuits were
filed on behalf of direct and indirect purchasers of K-DUR against
Schering-Plough, Upsher-Smith and Lederle and were consolidated in
a multi-district litigation in the U.S. District Court for the
District of New Jersey. These lawsuits claimed violations of
federal and state antitrust laws, as well as other state statutory
and common law causes of action, and sought unspecified damages.
In April 2008, the indirect purchasers voluntarily dismissed their
case. In February 2009, a Special Master recommended that the
District Court dismiss the remaining lawsuits on summary judgment
and, in March 2010, the District Court adopted the recommendation,
granted summary judgment to the defendants, and dismissed the
matter in its entirety. Plaintiffs have appealed this decision to
the Third Circuit Court of Appeals. Defendants are simultaneously
appealing a December 2008 decision by the District Court to
certify certain direct purchaser plaintiffs' claims as a class
action.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Continues to Defend Pending Vioxx Liability Suits
-------------------------------------------------------------
Merck & Co., Inc. continues to defend remaining lawsuits arising
from the use or purchase of its Vioxx product, which was withdrawn
from the market in 2004, according to the Company's February 28,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
On September 30, 2004, Merck voluntarily withdrew Vioxx, its
arthritis and acute pain medication, from the market worldwide.
Although Merck has settled the major portion of the U.S. Product
Liability litigation, the Company still faces material litigation
arising from the voluntary withdrawal of Vioxx.
There are pending in various U.S. courts putative class actions
purportedly brought on behalf of individual purchasers or users of
Vioxx seeking reimbursement for alleged economic loss. In the
Vioxx MDL proceeding, approximately 30 such class actions remain.
In June 2010, Merck moved to strike the class claims or for
judgment on the pleadings regarding the master complaint, which
includes the class action cases, and briefing on that motion was
completed in September 2010. The Vioxx MDL court heard oral
argument on Merck's motion in October 2010 and took it under
advisement.
In 2008, a Missouri state court certified a class of Missouri
plaintiffs seeking reimbursement for out-of-pocket costs relating
to Vioxx. Trial is scheduled to begin on May 21, 2012. In
addition, in Indiana, plaintiffs filed a motion to certify a class
of Indiana Vioxx purchasers in a case pending before the Circuit
Court of Marion County, Indiana. In April 2010, a Kentucky state
court denied Merck's motion for summary judgment and certified a
class of Kentucky plaintiffs seeking reimbursement for out-of-
pocket costs relating to Vioxx. The trial court subsequently
entered an amended class certification order on January 27, 2011.
Merck appealed that order to the Kentucky Court of Appeals and on
February 10, 2012, the Kentucky Court of Appeals reversed the
trial court's amended class certification order and denied
certification of a class of Kentucky plaintiffs.
Merck has also been named as a defendant in several lawsuits
brought by, or on behalf of, government entities. Eleven of these
lawsuits are being brought by state Attorneys General and one has
been brought on behalf of a county. All of these actions are in
the Vioxx MDL proceeding. These actions allege that Merck
misrepresented the safety of Vioxx. All but one of these lawsuits
seek recovery for expenditures on Vioxx by government-funded
health care programs, such as Medicaid, along with other relief,
such as penalties and attorneys' fees. An action brought by the
Attorney General of Kentucky seeks only penalties for alleged
Consumer Fraud Act violations. Judge Fallon remanded the Kentucky
case to state court on January 3, 2012. Merck is appealing that
decision. The lawsuit brought by the county is a putative class
action filed by Santa Clara County, California on behalf of all
similarly situated California counties. Merck moved for judgment
on the pleadings in the case brought by Santa Clara County in
September 2011, and the court heard oral argument on the motion on
January 18, 2012. In addition, Merck moved to dismiss the case
brought by the Attorney General of Oklahoma in December 2010.
In March 2010, Judge Fallon partially granted and partially denied
Merck's motion for summary judgment in the Louisiana Attorney
General case. A trial on the remaining claims before Judge Fallon
was completed in April 2010 and Judge Fallon found in favor of
Merck in June 2010 dismissing the Louisiana Attorney General's
remaining claims with prejudice. The Louisiana Attorney General
filed a notice of appeal, and the Fifth Circuit dismissed the
appeal without prejudice pursuant to its scheduling rules in
October 2011 after the Louisiana Attorney General requested a stay
of the appeal.
The Company believes that it has meritorious defenses to the Vioxx
Product Liability Lawsuits, Vioxx Securities Lawsuits and Vioxx
Foreign Lawsuits (collectively, the "Vioxx Lawsuits") and will
vigorously defend against them. In view of the inherent
difficulty of predicting the outcome of litigation, particularly
where there are many claimants and the claimants seek
indeterminate damages, the Company is unable to predict the
outcome of these matters and, at this time, cannot reasonably
estimate the possible loss or range of loss with respect to the
remaining Vioxx Lawsuits. The Company says it has established the
Vioxx Liability Reserve and a reserve with respect to a settlement
agreement of lawsuits in Canada. The Company has established no
other liability reserves with respect to the Vioxx Litigation.
Unfavorable outcomes in the Vioxx Litigation could have a material
adverse effect on the Company's financial position, liquidity and
results of operations.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Class Cert. Bid in Securities Suit Due April 10
-----------------------------------------------------------
Plaintiff's class certification motion in the fifth amended
consolidated securities class action complaint in New Jersey must
be filed by April 10, 2012, according to Merck & Co., Inc.'s
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended
December 31, 2011.
In addition to the product liability lawsuits over the Company's
Vioxx product, various putative class actions and individual
lawsuits under federal securities laws and state laws have been
filed against Merck and various current and former officers and
directors (the "Vioxx Securities Lawsuits"). The Vioxx Securities
Lawsuits are coordinated in a multidistrict litigation in the U.S.
District Court for the District of New Jersey before Judge Stanley
R. Chesler, and have been consolidated for all purposes. On
August 8, 2011, Judge Chesler granted in part and denied in part
Merck's motion to dismiss the Fifth Amended Class Action Complaint
in the consolidated securities action. Among other things, the
claims based on statements made on or after the voluntary
withdrawal of Vioxx on September 30, 2004, have been dismissed.
On October 7, 2011, defendants answered the Fifth Amended Class
Action Complaint. Discovery is currently proceeding in accordance
with the court's scheduling order. Under the scheduling order,
plaintiff's class certification motion must be filed by April 10,
2012, and fact discovery must be completed by March 13, 2013.
Several individual securities lawsuits filed by foreign
institutional investors also are consolidated with the Vioxx
Securities Lawsuits. In October 2011, plaintiff's filed amended
complaints in each of the pending individual securities lawsuits.
Also in October 2011, a new individual securities lawsuit was
filed in the District of New Jersey by several foreign
institutional investors; that case is also consolidated with the
Vioxx Securities Lawsuits. On January 20, 2012, defendants filed
motions to dismiss in one of the individual lawsuits (the "ABP
Lawsuit"). By stipulation and order, defendants are not required
to respond to the complaints in the remaining individual
securities lawsuits until the resolution of any motions to dismiss
in the ABP Lawsuit.
The Company revealed that it has Directors and Officers insurance
coverage applicable to the Vioxx Securities Lawsuits with
remaining stated upper limits of approximately $175 million. As a
result of the previously disclosed insurance arbitration,
additional insurance coverage for these claims should also be
available, if needed, under upper-level excess policies that
provide coverage for a variety of risks. There are disputes with
the insurers about the availability of some or all of the
Company's insurance coverage for these claims and there are likely
to be additional disputes. The Company says the amounts actually
recovered under the policies may be less than the stated upper
limits.
The Company believes that it has meritorious defenses to the Vioxx
Lawsuits and will vigorously defend against them. In view of the
inherent difficulty of predicting the outcome of litigation,
particularly where there are many claimants and the claimants seek
indeterminate damages, the Company is unable to predict the
outcome of these matters and, at this time, cannot reasonably
estimate the possible loss or range of loss with respect to the
remaining Vioxx Lawsuits. The Company says it has established the
Vioxx Liability Reserve and a reserve with respect to a settlement
agreement of lawsuits in Canada. The Company has established no
other liability reserves with respect to the Vioxx Litigation.
Unfavorable outcomes in the Vioxx Litigation could have a material
adverse effect on the Company's financial position, liquidity and
results of operations.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Continues to Defend Vioxx Suits in Foreign Countries
----------------------------------------------------------------
Merck & Co., Inc. continues to defend itself from class action
lawsuits in foreign countries over Vioxx, according to the
Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
Vioxx Foreign Lawsuits
Merck has been named as a defendant in litigation relating to
Vioxx in Australia, Brazil, Canada, Europe and Israel
(collectively, the "Vioxx Foreign Lawsuits").
Following trial of a representative action in 2009, a first
instance judge of the Federal Court in Australia entered orders in
2010 that dismissed all claims against Merck. With regard to
Merck's Australian subsidiary, Merck Sharp & Dohme (Australia) Pty
Ltd ("MSD Australia"), the court dismissed certain claims but
awarded the applicant, whom the court found suffered a myocardial
infarction ("MI") after ingesting Vioxx for approximately 33
months, AUD330,465 based on statutory claims that Vioxx was not
fit for purpose or of merchantable quality, even though the court
rejected the applicant's claim that Merck and MSD Australia knew
or ought to have known prior to the voluntary withdrawal of Vioxx
in September 2004 that Vioxx materially increased the risk of MI.
The court also determined which of its findings of fact and law
were common to the claims of other group members whose individual
claims would proceed with reference to those findings. MSD
Australia appealed the adverse findings and the Full Federal Court
(the "Full Court") heard the appeal and a cross-appeal in August
2011.
In October 2011, the Full Court allowed MSD Australia's appeal and
set aside the judgment in favor of the applicant and dismissed his
action. The Full Court held that Vioxx was not proven to be the
cause of the applicant's MI and that MSD Australia is not liable
to the applicant for damages in negligence or under the former
Trade Practices Act. The Full Court also affirmed the first
instance decision in favor of MSD Australia on the applicant's
statutory defect claim, holding that MSD Australia's state of the
art defense was proven based on the development of scientific
knowledge over time. The effect of this decision upon the claims
of the remaining group members remains to be determined. The
applicant is seeking leave to appeal the Full Court's judgment to
the High Court of Australia.
Canadian Class Action
On January 19, 2012, Merck announced that it had entered into an
agreement (the "Canada Settlement Agreement") to resolve all
claims (including certain class actions and putative class
actions) related to Vioxx in Canada. The agreement is pending
approval by courts in Canada's provinces.
If the Canada Settlement Agreement is approved and specified
conditions (including among others a right of Merck to terminate
if there are opt-outs) are met, which conditions are set forth in
certain Merck termination rights and accordingly may be waived by
Merck, Merck would make payments aggregating from a minimum of
C$21,806,250 (approximately $21.5 million U.S. dollars at December
31, 2011) up to a maximum of C$36,881,250 (approximately $36.3
million U.S. dollars at December 31, 2011) (the "Canada Settlement
Amount"). The exact Canada Settlement Amount will depend on the
number of individuals who submit documented claims and are
determined to meet certain threshold "Gates" relating to the
alleged injury event and alleged usage of Vioxx. In addition to
payments to eligible claimants who experienced a diagnosed MI,
sudden cardiac death or diagnosed ischemic stroke, the settlement
also includes fixed payments of C$3,500,000 to provinces and
territories, C$6,000,000 towards class counsel fees and
C$1,000,000 for administrative expenses involved in the
implementation of the Canada Settlement Agreement; should approved
legal fees or administrative expenses exceed the specified
amounts, any excess would be paid from the amount to be funded for
eligible claimants and derivative claimants. The Company recorded
a reserve in the fourth quarter of 2011 for this settlement.
The Canada Settlement Agreement provides that Merck denies all
allegations, denies that any damages are payable and does not
concede or admit any liability. Merck will not make any payment,
other than to pay notice dissemination costs and certain other
administrative costs, unless and until approvals by courts in all
Canada's provinces have been secured and all termination rights
have expired without Merck having terminated the Canada Settlement
Agreement in its entirety. Merck also has certain rights to
terminate the Canada Settlement Agreement in part, in relation to
provinces or territories other than Ontario or Quebec.
The Company believes that it has meritorious defenses to the Vioxx
Product Liability Lawsuits, Vioxx Securities Lawsuits and Vioxx
Foreign Lawsuits (collectively, the "Vioxx Lawsuits") and will
vigorously defend against them. In view of the inherent
difficulty of predicting the outcome of litigation, particularly
where there are many claimants and the claimants seek
indeterminate damages, the Company is unable to predict the
outcome of these matters and, at this time, cannot reasonably
estimate the possible loss or range of loss with respect to the
remaining Vioxx Lawsuits. The Company says it has established the
Vioxx Liability Reserve and a reserve with respect to the Canada
Settlement Agreement. The Company has established no other
liability reserves with respect to the Vioxx Litigation.
Unfavorable outcomes in the Vioxx Litigation could have a material
adverse effect on the Company's financial position, liquidity and
results of operations.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Continues to Defend Vytorin ERISA Class Suits
---------------------------------------------------------
Merck & Co., Inc. continues to defend class action lawsuits
brought under the Employee Retirement Income Security Act of 1974
over Merck's Vytorin product, according to the Company's
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
In July 2011, the Company announced the latest phase of its global
restructuring program (the "Merger Restructuring Program") that
was initiated in conjunction with the integration of the legacy
Merck and legacy Schering-Plough Corporation businesses. This
Merger Restructuring Program is intended to optimize the cost
structure of the combined company. As part of this latest phase,
the Company expects to reduce its workforce measured at the time
of the Merger by an additional 12% to 13% across the Company
worldwide.
In April 2008, a member of a Merck ERISA plan filed a putative
class action lawsuit against Merck and certain of the Company's
current and former officers and directors alleging they breached
their fiduciary duties under ERISA. Since that time, there have
been other similar ERISA lawsuits filed against Merck in the
District of New Jersey, and all of those lawsuits have been
consolidated under the caption In re Merck & Co., Inc. Vytorin
ERISA Litigation. A consolidated amended complaint was filed in
February 2009, and names as defendants Merck and various current
and former members of the Company's Board of Directors. The
plaintiffs allege that the ERISA plans' investment in Merck stock
was imprudent because Merck's earnings were dependent on the
commercial success of its cholesterol drug Vytorin and that
defendants knew or should have known that the results of a
scientific study would cause the medical community to turn to less
expensive drugs for cholesterol management. In April 2009, Merck
and the other defendants moved to dismiss this lawsuit on the
grounds that the plaintiffs failed to state a claim for which
relief can be granted. In September 2009, the court denied
defendants' motion to dismiss.
There is a similar consolidated, putative class action ERISA
lawsuit currently pending in the District of New Jersey, filed by
a member of a Schering-Plough ERISA plan against Schering-Plough
and certain of its current and former officers and directors,
alleging they breached their fiduciary duties under ERISA, and
under the caption In re Schering-Plough Corp. ENHANCE ERISA
Litigation. The consolidated amended complaint was filed in
October 2009 and names as defendants Schering-Plough, various
then-current and former members of Schering-Plough's Board of
Directors and then-current and former members of committees of
Schering-Plough's Board of Directors. In November 2009, the
Company and the other defendants filed a motion to dismiss this
lawsuit on the grounds that the plaintiffs failed to state a claim
for which relief can be granted. That motion was denied in June
2010. On November 4, 2011, the parties reached an agreement in
principle to settle the matter. On November 7, 2011, the parties
informed the court that they would submit a motion for preliminary
approval of the settlement on a class-wide basis. On November 14,
2011, the court ordered the case dismissed without costs and
without prejudice to the right, upon good cause shown within 60
days, to seek to reopen the action if the settlement is not
consummated. On January 9, 2012, the court extended that 60-day
period by an additional 60 days.
The Company disclosed that it has Directors and Officers insurance
coverage applicable to the Vytorin shareholder lawsuits brought by
legacy Schering-Plough shareholders with stated upper limits of
approximately $250 million. The Company has Fiduciary and other
insurance for the Vytorin ERISA lawsuits with stated upper limits
of approximately $265 million. There are disputes with the
insurers about the availability of some or all of the Company's
insurance coverage for these claims and there are likely to be
additional disputes. The Company says the amounts actually
recovered under the policies may be less than the stated limits.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Discovery Ongoing in Suits Over Fosamax Product
-----------------------------------------------------------
Discovery is ongoing in product liability lawsuits arising from
Merck & Co., Inc.'s Fosamax product, according to the Company's
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
Merck is a defendant in product liability lawsuits in the United
States involving Fosamax (the "Fosamax Litigation"). Fosamax
(alendronate sodium) is used for the treatment and prevention of
osteoporosis. As of December 31, 2011, approximately 2,345 cases,
which include approximately 2,800 plaintiff groups, had been filed
and were pending against Merck in either federal or state court,
including one case which seeks class action certification, as well
as damages and/or medical monitoring. In approximately 1,180 of
these actions, plaintiffs allege, among other things, that they
have suffered osteonecrosis of the jaw ("ONJ"), generally
subsequent to invasive dental procedures, such as tooth extraction
or dental implants and/or delayed healing, in association with the
use of Fosamax. In addition, plaintiffs in approximately 1,165 of
these actions generally allege that they sustained femur fractures
and/or other bone injuries in association with the use of Fosamax.
In August 2006, the Judicial Panel on Multidistrict Litigation
(the "JPML") ordered that certain Fosamax product liability cases
pending in federal courts nationwide should be transferred and
consolidated into one multidistrict litigation (the "Fosamax MDL")
for coordinated pre-trial proceedings. The Fosamax MDL has been
transferred to Judge John Keenan in the U.S. District Court for
the Southern District of New York. As a result of the JPML order,
approximately 945 of the cases are before Judge Keenan. Judge
Keenan issued a Case Management Order (and various amendments
thereto) which set forth a schedule governing the proceedings
focused primarily upon resolving the class action certification
motions in 2007 and completing fact discovery in an initial group
of 25 cases by October 1, 2008. In the first Fosamax MDL trial,
Boles v. Merck, the Fosamax MDL court declared a mistrial because
the eight person jury could not reach a unanimous verdict. The
Boles case was retried in June 2010 and resulted in a verdict in
favor of the plaintiff in the amount of $8 million. Merck filed
post-trial motions seeking judgment as a matter of law or, in the
alternative, a new trial. In October 2010, the court denied
Merck's post-trial motions but sua sponte ordered a remittitur
reducing the verdict to $1.5 million. Plaintiff rejected the
remittitur ordered by the court and requested a new trial on
damages, which is scheduled to take place on September 10, 2012.
Merck intends to appeal the verdict in Boles after the new trial
on damages has concluded.
In the next Fosamax MDL trial, Maley v. Merck, the jury in May
2010 returned a unanimous verdict in Merck's favor. In February
2010, Judge Keenan selected a new bellwether case, Judith Graves
v. Merck, to replace the Flemings v. Merck bellwether case, which
the Fosamax MDL court dismissed when it granted summary judgment
in favor of Merck. In November 2010, the Second Circuit affirmed
the court's granting of summary judgment in favor of Merck in the
Flemings case. In Graves, the jury returned a unanimous verdict
in favor of Merck in November 2010. The jury in Secrest v. Merck
returned a unanimous verdict in favor of Merck in October 2011.
The next trial scheduled in the Fosamax MDL was Raber v. Merck,
which was subsequently dismissed. In addition, in February 2011,
Judge Keenan ordered that there will be two further bellwether
trials conducted in the Fosamax MDL: Spano v. Merck is scheduled
to be tried on May 7, 2012; Jellema v. Merck was scheduled to be
tried on May 7, 2012, but was dismissed by the plaintiff. A
replacement case will be selected in the first quarter of 2012 and
that case will be tried beginning on November 13, 2012.
Outside the Fosamax MDL, a trial in Florida, Anderson v. Merck,
was scheduled to begin in June 2010 but the Florida state court
postponed the trial date and a new date has been set for
January 14, 2013. The trial ready date in Carballo v. Merck has
been continued from August 22, 2011, until April 30, 2012. The
Ward v. Merck case is scheduled to be tried on June 11, 2012.
In addition, in July 2008, an application was made by the Atlantic
County Superior Court of New Jersey requesting that all of the
Fosamax cases pending in New Jersey be considered for mass tort
designation and centralized management before one judge in New
Jersey. In October 2008, the New Jersey Supreme Court ordered
that all pending and future actions filed in New Jersey arising
out of the use of Fosamax and seeking damages for existing dental
and jaw-related injuries, including ONJ, but not solely seeking
medical monitoring, be designated as a mass tort for centralized
management purposes before Judge Carol E. Higbee in Atlantic
County Superior Court. As of December 31, 2011, approximately 225
ONJ cases were pending against Merck in Atlantic County, New
Jersey.
In July 2009, Judge Higbee entered a Case Management Order (and
various amendments thereto) setting forth a schedule that
contemplates completing fact and expert discovery in an initial
group of cases to be reviewed for trial. In February 2011, the
jury in Rosenberg v. Merck, the first trial in the New Jersey
coordinated proceeding, returned a verdict in Merck's favor. A
trial in the Sessner v. Merck case commenced on February 27, 2012.
The Flores v. Merck case was scheduled to be tried jointly with
Sessner v. Merck, but on February 27, 2012, Judge Higbee severed
the Flores case from the Sessner trial. The Flores trial will be
rescheduled.
In California, the parties are reviewing the claims of three
plaintiffs in the Carrie Smith, et al. v. Merck case and the
claims in Pedrojetti v. Merck. The cases of one or more of these
plaintiffs are expected to be tried in mid-2012.
Discovery is ongoing in the Fosamax MDL litigation, the New Jersey
coordinated proceeding, and the remaining jurisdictions where
Fosamax cases are pending.
The Company says it intends to defend against these lawsuits.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: N.J. Court Dismissed Vioxx ERISA Lawsuits in November
-----------------------------------------------------------------
Class action lawsuits filed under the Employee Retirement Income
Security Act were dismissed in November 2011, according to Merck &
Co., Inc.'s February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
Various putative class actions had been filed in federal court
under the Employee Retirement Income Security Act ("ERISA")
against Merck and certain current and former officers and
directors (the "Vioxx ERISA Lawsuits"). Those cases were
consolidated in the U.S. District Court for the District of New
Jersey before Judge Stanley R. Chesler. On August 16, 2011, the
parties reached an agreement in principle in which Merck would pay
$49.5 million to settle the Vioxx ERISA Lawsuits. On November 29,
2011, Judge Chesler granted final approval of the settlement and
dismissed the Vioxx ERISA Lawsuits with prejudice.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
MERCK & CO: Class Cert. Bid Pending in Vytorin Securities Suit
--------------------------------------------------------------
Parties in a consolidated securities class action lawsuit over
Merck & Co., Inc.'s Vytorin product are currently briefing lead
plaintiffs' motion for class certification, according to the
Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
In July 2011, the Company announced the latest phase of its global
restructuring program (the "Merger Restructuring Program") that
was initiated in conjunction with the integration of the legacy
Merck and legacy Schering-Plough Corporation businesses. This
Merger Restructuring Program is intended to optimize the cost
structure of the combined company. As part of this latest phase,
the Company expects to reduce its workforce measured at the time
of the Merger by an additional 12% to 13% across the Company
worldwide.
In April 2008, a Merck shareholder filed a putative class action
lawsuit in federal court which has been consolidated in the
District of New Jersey with another federal securities lawsuit
under the caption In re Merck & Co., Inc. Vytorin Securities
Litigation. An amended consolidated complaint was filed in
October 2008 and named as defendants Merck; Merck/Schering-Plough
Pharmaceuticals, LLC; and certain of the Company's current and
former officers and directors. The complaint alleges that Merck
delayed releasing unfavorable results of the ENHANCE clinical
trial regarding the efficacy of Vytorin and that Merck made false
and misleading statements about expected earnings, knowing that
once the results of the ENHANCE study were released, sales of
Vytorin would decline and Merck's earnings would suffer. In
December 2008, Merck and the other defendants moved to dismiss
this lawsuit on the grounds that the plaintiffs failed to state a
claim for which relief can be granted. In September 2009, the
court denied defendants' motion to dismiss. In June 2011, lead
plaintiffs filed a motion for leave to further amend the
consolidated complaint, which was granted on February 7, 2012.
The parties are currently briefing lead plaintiffs' motion for
class certification.
There is a similar consolidated, putative class action securities
lawsuit pending in the District of New Jersey, filed by a
Schering-Plough shareholder against Schering-Plough and its former
Chairman, President and Chief Executive Officer, Fred Hassan,
under the caption In re Schering-Plough Corporation/ENHANCE
Securities Litigation. The amended consolidated complaint was
filed in September 2008 and names as defendants Schering-Plough;
Merck/Schering-Plough Pharmaceuticals; certain of the Company's
current and former officers and directors; and underwriters who
participated in an August 2007 public offering of Schering-
Plough's common and preferred stock. In December 2008, Schering-
Plough and the other defendants filed motions to dismiss this
lawsuit on the grounds that the plaintiffs failed to state a claim
for which relief can be granted. In September 2009, the court
denied defendants' motion to dismiss. The parties are currently
briefing lead plaintiffs' motion for class certification.
The Company disclosed that it has Directors and Officers insurance
coverage applicable to the Vytorin shareholder lawsuits brought by
legacy Schering-Plough shareholders with stated upper limits of
approximately $250 million. There are disputes with the insurers
about the availability of some or all of the Company's insurance
coverage for these claims and there are likely to be additional
disputes. The Company says the amounts actually recovered under
the policies may be less than the stated limits.
Based in Whitehouse Station, New Jersey, Merck & Co. Inc. --
http://www.merck.com/-- is a global health care company that
delivers innovative health solutions through its prescription
medicines, vaccines, biologic therapies, animal health, and
consumer care products, which it markets directly and through its
joint ventures. The Company's operations are principally managed
on a products basis and are comprised of four operating segments,
which are the Pharmaceutical, Animal Health, Consumer Care and
Alliances segments, and one reportable segment, which is the
Pharmaceutical segment.
METRO TRANSIT: Judge OKs Discrimination Class Action Settlement
---------------------------------------------------------------
Pat Doyle, writing for Star Tribune, reports that black bus
drivers for Metro Transit say their bosses have been manipulating
passenger complaints for years to target them for discipline or
dismissal.
Now a federal court has ordered the Metropolitan Council, which
runs the bus system, to overhaul its workplace procedures to avoid
discrimination.
"If this doesn't substantially change the workplace, then justice
hasn't been served," said U.S. District Judge Donovan Frank. He
approved a settlement last week of a class action suit
representing 500 black drivers who alleged they were victims of a
longstanding and deliberate pattern of discrimination. The judge
said the deal avoided a lengthy and costly court battle over the
merits of the claims with an uncertain outcome.
"We vigorously deny ever having tolerated discrimination," Metro
Transit general manager Brian Lamb said on March 30.
The Met Council and its bus agency agreed to pay three of the
drivers and their lawyer $485,000 as well as change Metro Transit
workplace procedures.
Mr. Lamb said the bus system changed "our customer complaint
handling process by implementing additional checks and balances.
We believe these changes will ensure consistency to . . . all of
our employees, as well as our customers."
The changes include blocking supervisors from viewing records of
old customer complaints and tracking the resolution of new
complaints by the race of the bus drivers for court monitoring.
In addition, the agreement calls for new guidelines for verifying
customer complaints and requires the agency to give drivers
written notice that they have a right to contact civil rights
officers if they believe discipline is discriminatory.
The court has authority to monitor the deal for the next five
years.
The lawsuit was filed late last year along with the proposed
settlement, which the two sides negotiated for more than a year.
It alleged that an overwhelmingly white management treated black
drivers unfairly in promotions, working conditions and discipline.
They "pursued trumped-up accusations" from passengers to deny
promotions and retaliate against drivers who complained, the
lawsuit said.
"My overall record . . . includes past complaints from unruly
transit customers," said driver Steven Duncan, who said he was
wrongly fired earlier this year. "I believe the decision that led
to my discharge was not fair under the circumstances."
Mr. Lamb, in a message to employees, said, "It is at the heart of
our operation never to discriminate against those who board our
buses and trains and this principle applies equally to working
here."
"We should always be willing to hold a mirror up to ourselves and
our practices and also invite scrutiny from those outside of our
agency," he said.
The payments of $20,000 to each of the three drivers and $425,000
to their attorney, Kent Williams of Long Lake, cover their time
and expenses on the case and monitoring the settlement for the
next five years.
Whatever the merits of the allegations, Judge Frank said in court
that "there is a shared perception that this has happened over
time to African-American drivers."
In agreeing to the changes, Met Council lawyer Susan Ellingstad
told the judge, "The Met Council is extremely concerned about
perception."
But drivers told the judge the problem was more than perception
and that they risked retaliation for filing the suit.
"We stuck our necks out," said Dujuan Williams, one of three
drivers named in the suit. He said some unnamed drivers said:
"You guys are crazy. You're going to get fired."
The three drivers, employed for more than 30 years combined at
Metro Transit, said they were held to a different standard than
white drivers.
Driver Sammie Lee Austin alleged in the suit that he told
supervisors that he was threatened by a white person (not employed
by Metro Transit) and asked to be switched to another route.
He said it was the kind of request approved for white drivers, but
Metro Transit said no. Austin took days off at his expense "to
allow the situation to cool down so that he could drive his route
without fearing for his physical safety," the suit said.
Discipline was a major concern.
Former driver Terrance Williams said he suffered retaliation after
he complained that management didn't preserve evidence favorable
to him in a grievance proceeding.
Management filed "virtually every customer complaint they received
about Mr. Williams, regardless of whether it was . . . supported
by evidence," the suit said.
In 2008, he was accused of striking a woman's walker with his bus.
A supervisor's report written moments after the alleged incident
"indicated there was no physical evidence of any contact," but
Metro Transit fired him.
He was reinstated and learned that two white drivers who struck
pedestrians in 2009 avoided any serious discipline, the suit said.
He was later fired again.
Some black bus drivers balked at the settlement, telling Judge
Frank that the agency was getting off easy.
MONSANTO: Judge Grants Motion to Get Settlement Documents
---------------------------------------------------------
Kate White, writing for The Charleston Gazette, reports that
lawyers representing some Nitro residents and the Monsanto
chemical company now find their interests aligned as they try to
convince the judge that a settlement reached in a huge class-
action dioxin lawsuit is fair.
Some class members represented by Arlington, Va., lawyer Thomas
Urban II have challenged the preliminary settlement, which was
reached in February after nearly 10 years of litigation. They say
the settlement isn't fair and reasonable and is a result of
"collusion between the defendants and class counsel."
Circuit Judge Derek Swope entered a court order that directs
attorneys for the class of plaintiffs and Monsanto to provide an
expansive list of information and a wide range of documents
explaining how the settlement was reached.
Before Judge Swope's order, lead plaintiffs' attorney Stuart
Calwell and Monsanto lawyer Charles Love filed responses objecting
to Mr. Urban's motion to get the documents. Those responses were
sealed.
Chemical giant Monsanto has agreed to pay up to $84 million for
medical monitoring and $9 million to clean up 4,500 homes. Word
of the settlement emerged on the eve of an expected six-month
trial in a case in which Nitro-area residents sought medical
monitoring for dioxin-related illnesses and a cleanup of what they
argued was a contaminated community.
For more than 50 years, the Monsanto plant in Nitro churned out
herbicides, rubber products and other chemicals. The plant's
production of the defoliant Agent Orange created dioxin as a toxic
chemical byproduct.
Judge Swope's ruling granted Mr. Urban's motion to permit
discovery on whether the proposed settlement is fair and adequate.
Mr. Urban's group of plaintiffs, although class members, have
objected to the settlement. They asked Judge Swope to allow them
to obtain information about the settlement to bolster their claims
that it should not be approved.
While Judge Swope granted the motion, he was careful to point out
that the information to be disclosed is to assist him in his
assessment of whether the settlement is fair and reasonable and
whether he should approve it.
A hearing on whether the settlement will be approved has been
scheduled for 9:00 a.m. June 18. Meanwhile, the information must
be disclosed to Judge Swope no later than May 4.
"The Court does not mean to suggest that by granting this
discovery it has prejudged the fairness, adequacy and
reasonableness of the proposed settlement. It is axiomatic to say
that the dynamics of compromise and settlement are giving up
certain rights to obtain other rights," Judge Swope wrote. "Just
because certain rights are given up does not mean that the
proposed settlement is automatically unfair, inadequate and
unreasonable."
Also in the order, Judge Swope recognized that the challenge to
the settlement puts attorneys for the class and Monsanto in the
awkward position of advocating the settlement terms when, by their
nature, they are different from the positions taken in the
litigation.
For example, while Mr. Calwell, lead attorney for the class,
planned to ask the jury to approve medical monitoring for as many
as 80,000 present and former Nitro residents, the proposed
settlement agreement apparently estimates between 3,000 and 5,000
people will qualify for the medical tests.
Mr. Calwell is faced with the task of convincing the judge that
the drastic change in his clients' position for purposes of the
settlement is justified.
NEWGARD PARTNERS: Sued Over Unpaid Interest of Tenants' Deposit
---------------------------------------------------------------
Kenneth Hull, On behalf of himself and all those similarly
situated v. Henry Woo and Newgard Partners, Case No. 2012-CH-07207
(Ill. Cir. Ct., Cook Cty., February 28, 2012) asserts that the
property at 6649 N. Newgard, in Chicago, a multi-unit residential
apartment building, is a non-owner-occupied property, and
therefore, subject to the terms and conditions of the Chicago
Residential Landlord Tenant Ordinance.
The Defendants had a policy and practice of not paying annual
interest on tenants' security deposits by cash or by credit on
rent, in violation of the CRLTO, Mr. Hull alleges. Instead, he
contends, the Defendants carried over the interest on the deposit
from year to year as an accounting credit "on paper". He adds
that in cases where there was a written lease, an increased amount
of security deposit was indicated on each successive lease.
Mr. Hull began a written lease of the #3E premises of the Property
on March 1, 2007, on a one-year basis for residential purposes
from the Defendants. The terms of the Plaintiff's lease included
a monthly rent of $655, and a security deposit of $625 was paid by
him and forwarded to the Defendants by the previous landlord on
March 1, 2007.
Henry Woo is the owner of the Property. Newgard is a management
company owned by Mr. Woo and which managed the property.
The Plaintiff is represented by:
Alexander S. Michalakos, Esq.
LAW OFFICES OF ALEXANDER S. MICHALAKOS, P.C.
1410 W. Higgins Avenue, Suite 204
Park Ridge, Illinois 60068
Telephone: (847) 292-9990
Facsimile: (847) 292-1054
E-mail: alex@parkridgelawyer.net
PATH INC: Accused of Obtaining User Information Without Consent
---------------------------------------------------------------
Oscar Hernandez, individually and on behalf of a class of
similarly situated individuals v. Path, Inc., a Delaware
Corporation, Case No. 4:12-cv-01515 (N.D. Calif., March 26, 2012)
is brought on behalf of those who were victims of unfair,
deceptive, and unlawful business practices, wherein their
property, privacy, and security rights were violated by Path Inc.
The nature of this action includes a sequence of events wherein
Path gained access to, and use of, Plaintiffs and Class Members'
mobile devices, without authorization and consent, to obtain and
store contact address data, including personally identifiable
information of minor children, that was within the contact address
book, and bypassing the technical and code-based barriers intended
to limit access, Mr. Hernandez asserts. He contends that the
Defendant perpetuated this fraudulent activity knowingly, and with
the intent to obtain data, including the mobile browsing
activities of its users.
Mr. Hernandez is a resident of Dallas County, Texas.
Path is a privately held Delaware corporation headquartered in San
Francisco, California. Path hat operates an online business as a
smartphone-based social network utilizing an application software
that performs specific functions for a web-based platform on
mobile devices.
The Plaintiff is represented by:
Brian R. Strange, Esq.
STRANGE & CARPENTER
12100 Wilshire Boulevard, Suite 1900
Los Angeles, CA 90025
Telephone: (310) 207-5055
Facsimile: (310) 826-3210
E-mail: LACounsel@earthlink.net
- and -
Joseph H. Malley, Esq.
LAW OFFICE OF JOSEPH H. MALLEY
1045 North Zang Boulevard
Dallas, TX 75208
Telephone: (214) 943-6100
Facsimile: (214) 943-6170
E-mail: malleylaw@gmail.com
RON WILSON: Met with Investors Month Prior to Investigation
-----------------------------------------------------------
Mike Ellis, writing for Independent Mail, reports that Ron Wilson
met with several Easley investors as recently as March 5 and took
$277,819 from them to invest in silver, according to a lawsuit
filed last week.
Mr. Wilson is the subject of two lawsuits that ask for class-
action status. He is also the subject of criminal investigations
from state and federal officials.
The state attorney general's office has accused Mr. Wilson, a
former Anderson County Council member, of running money from
investors in 25 states through a Ponzi scheme. The attorney
general's office says Mr. Wilson's business has taken in $71
million in investments since 2009.
The money likely went out as fast as it came in, said Assistant
Senior Attorney General Tracy Meyers. Mr. Wilson had to pay
investors who wanted to cash out, and had to give them the high
rates of return he had promised or they would turn him in, Mr.
Meyers told a room full of investors on March 26.
One of the potential class-action lawsuits, filed late on March 26
by Greenville attorney Bill Jordan on behalf of two Easley
investors and Foothills Custom Masonry in Liberty, names Wilson
and his Atlantic Bullion & Coin business along with AB&C Vice
President Jena Eison.
The lawsuit, like a similar one filed on March 26, asks that a
judge certify it as a class action.
The first class-action request, filed in the same Pickens County
courthouse an hour earlier by Greenville law firm Covington
Patrick, says hundreds and possibly more than a thousand investors
could have claims against Mr. Wilson and his business. The
Covington Patrick lawsuit names Mr. Wilson, his business,
Tracy Atwell, Ed Atwell and Easley-based Professional Planning
Inc. as defendants.
TENET HEALTHCARE: Continues to Defend Wage and Hour Suits
---------------------------------------------------------
Tenet Healthcare Corporation continues to defend wage and hour
class action lawsuits pending in California, according to the
Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
The Company is a defendant in two coordinated lawsuits in Los
Angeles Superior Court alleging that its hospitals violated
certain provisions of California's labor laws and applicable wage
and hour regulations. The cases are: McDonough, et al. v. Tenet
Healthcare Corporation (which was filed June 2003) and Tien, et
al. v. Tenet Healthcare Corporation (which was filed in May 2004).
The plaintiffs seek back pay, statutory penalties, interest and
attorneys' fees. The plaintiffs' requests for class certification
were denied in the lower court, and the appellate court affirmed
the lower court's ruling. The California Supreme Court granted
the plaintiffs' petition for review of the lower court's ruling,
but has deferred further action in the matter pending its decision
in a similar case, which is expected in April 2012.
Based on available information, the Company believes at this time
that the ultimate resolution of the coordinated lawsuits will not
have a material adverse effect on its business, financial
condition, results of operations or cash flows.
About Tenet Healthcare
Dallas, Texas-based Tenet Healthcare Corporation (NYSE: THC) --
http://www.tenethealth.com/-- is a health care services company
whose subsidiaries and affiliates own and operate acute care
hospitals, ambulatory surgery centers and diagnostic imaging
centers.
TENET HEALTHCARE: To File "Dunn" Suit Settlement
------------------------------------------------
Tenet Healthcare Corporation disclosed in its February 28, 2012,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2011, that a final settlement
agreement in the class action lawsuit captioned Dunn, et al. v.
Tenet Mid-City Medical, L.L.C., will be filed soon.
As previously reported, in March 2011, the Company agreed to
settle two previously reported class action lawsuits relating to
alleged injuries suffered by persons at Memorial Medical Center,
one of the Company's former New Orleans area hospitals, following
Hurricane Katrina for a $25 million cash payment, which was fully
reserved at March 31, 2011. The court approved the final
settlement agreement at a fairness hearing held in October 2011.
In January 2012, the Company reached an agreement in principle to
settle for approximately $12 million a similar purported class
action lawsuit filed on behalf of persons allegedly injured
following Hurricane Katrina at Lindy Boggs Medical Center (another
one of the Company's former New Orleans area hospitals). The
settlement, which will be covered in full by the Company's excess
insurance carrier, will be apportioned among the eligible class
members who file a proof of claim once the Civil District Court
for the Parish of Orleans certifies the class in that case --
which is captioned Dunn, et al. v. Tenet Mid-City Medical, L.L.C.
(formerly d/b/a Lindy Boggs Medical Center), et al.
The Company anticipated the parties to execute a final settlement
agreement by March 2012 and will submit it to the court for
preliminary approval shortly thereafter. Following the court's
preliminary approval, the settlement will be subject to a fairness
hearing with class members and final review by the court.
About Tenet Healthcare
Dallas, Texas-based Tenet Healthcare Corporation (NYSE: THC) --
http://www.tenethealth.com/-- is a health care services company
whose subsidiaries and affiliates own and operate acute care
hospitals, ambulatory surgery centers and diagnostic imaging
centers.
TORCHMARK CORP: Appeal From "Fitzhugh" Suit Dismissal Pending
-------------------------------------------------------------
An appeal from the dismissal of a purported class action lawsuit
in Ohio remains pending, Torchmark Corporation disclosed in its
February 28, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On March 15, 2011, purported class action litigation was filed
against Torchmark and its subsidiary, American Income Life
Insurance Company, in the District Court for the Northern District
of Ohio (Fitzhugh v. American Income Life Insurance Company and
Torchmark Corporation, Case No. 1:11-cv-00533). The plaintiff, a
formerly independently contracted American Income agent, alleges
that American Income intentionally misclassified its agents as
independent contractors rather than as employees in order to
escape minimum wage and overtime requirements of the Fair Labor
Standards Act, as well as to avoid payroll taxes, workers
compensation premiums and other benefits required to be provided
by employers. Monetary damages in the amount of unpaid
compensation plus liquidated damages and/or prejudgment interest
as well as injunctive and/or declaratory relief is sought by the
plaintiff on behalf of the purported class. On November 3, 2011,
the Court granted American Income's motion to compel arbitration
and dismissed the case. Plaintiffs have appealed this decision.
Torchmark Corp. -- http://www.torchmarkcorp.com/-- is an
insurance holding company, which through its subsidiaries, markets
primarily individual life and supplemental health insurance and
annuities, to middle income households throughout the U.S. The
company operates in two segments: insurance, which includes the
insurance product lines of life, health and annuities, and
investments, which supports the product lines.
TORCHMARK CORP: Awaits Ruling on Bid to Dismiss "Kennedy" Suit
--------------------------------------------------------------
Torchmark Corporation is awaiting a court decision on its
subsidiary's motion to dismiss a class action lawsuit pending in
Arkansas, according to the Company's February 28, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
Torchmark Corporation's subsidiary, United American Insurance
Company, was named as defendant in purported class action
litigation filed on May 31, 2011, in Cross County Arkansas Circuit
Court (Kennedy v. United American Insurance Company (Case # CV-
2011-84-5). In the litigation, filed on behalf of a proposed
nationwide class of owners of certain limited hospital and
surgical expense benefit policies from United American, the
plaintiff alleged that United American breached the policy by
failing and/or refusing to pay benefits for the total number of
days an insured is confined to a hospital and by limiting payment
to the number of days for which there are incurred hospital room
charges rather than also including benefits for services and
supplies. Claims for unjust enrichment, breach of contract, bad
faith refusal to pay first party benefits, breach of the implied
duty of good faith and fair dealing, bad faith, and violation of
the Arkansas Deceptive Trade Practices Act were initially
asserted. The plaintiff sought declaratory relief, restitution
and/or monetary damages, punitive damages, costs and attorneys
fees. In September 2011, the plaintiff dismissed all causes of
action, except for the breach of contract claim.
On November 14, 2011, plaintiff filed an amended complaint based
upon the same facts asserting only breach of contract claims on
behalf of a purported nationwide restitution/monetary relief class
or, in the first alternative, a purported multiple-state
restitution/monetary relief class or, in the second alternative, a
purported Arkansas statewide restitution/monetary relief class.
Restitution and/or monetary relief for United American's alleged
breaches of contract, costs, attorney's fees and expenses, expert
fees, prejudgment interest and other relief are sought on behalf
of the plaintiff and members of the class. On December 7, 2011,
United American filed a Motion to Dismiss the plaintiff's amended
complaint and on January 11, 2012, plaintiff filed a response
thereto. Discovery has commenced and is ongoing.
Torchmark Corp. -- http://www.torchmarkcorp.com/-- is an
insurance holding company, which through its subsidiaries, markets
primarily individual life and supplemental health insurance and
annuities, to middle income households throughout the U.S. The
company operates in two segments: insurance, which includes the
insurance product lines of life, health and annuities, and
investments, which supports the product lines.
TORCHMARK CORP: Trial in "Smith" Suit Continued Due to Settlement
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Trial in the class action lawsuit captioned Smith and Ivie v.
Collingsworth, et al., was continued at a later date in
consideration of the parties' agreement to settle the case,
according to Torchmark Corporation's February 28, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
The Company's subsidiary, United American Insurance Company, was
named as a defendant in purported class action litigation
originally filed on September 16, 2004, in the Circuit Court of
Saline County, Arkansas, on behalf of the Arkansas purchasers of
association group health insurance policies or certificates issued
by United American through Heartland Alliance of America
Association and Farm & Ranch Healthcare, Inc. (Smith and Ivie v.
Collingsworth, et al., CV2004-742-2). The plaintiffs asserted
claims for fraudulent concealment, breach of contract, common law
liability for non-disclosure, breach of fiduciary duties, civil
conspiracy, unjust enrichment, violation of the Arkansas Deceptive
Trade Practices Act, and violation of Arkansas law and the rules
and regulations of the Arkansas Insurance Department. Declaratory,
injunctive and equitable relief, as well as actual and punitive
damages were sought by the plaintiffs. On
September 7, 2005, the plaintiffs amended their complaint to
assert a nation-wide class, defined as all United American
insureds who simultaneously purchased both an individual Hospital
and Surgical Expense health insurance policy (Form HSXC) and an
individual supplemental term life insurance policy (Form RT85)
from Farm & Ranch through Heartland.
Defendants removed this litigation to the United States District
Court for the Western District of Arkansas (No. 4:05-cv-1382) but
that Court remanded the litigation back to the state court on
plaintiffs' motion. On July 22, 2008, the plaintiffs filed a
second amended complaint, asserting a class defined as "all
persons who, between January 1998 and the present, were residents
of Arkansas, California, Georgia, Louisiana or Texas, and
purchased through Farm & Ranch: (1) a health insurance policy
issued by United American known as Flexguard Plan, CS-1 Common
Sense Plan, GSP Good Sense Plan, SHXC Surgical & Hospital Expense
Policy, HSXC 7500 Hospital/Surgical Plan, MMXC Hospital/Surgical
Plan, SMXC Surgical/Medical Expense Plan and/or SSXC Surgical
Safeguard Expense Plan, and (ii) a membership in Heartland."
Plaintiffs assert claims for breach of contract, violation of
Arkansas Deceptive Trade Practices Act and/or applicable consumer
protection laws in other states, unjust enrichment, and common law
fraud. Plaintiffs seek actual, compensatory, statutory and
punitive damages, equitable and declaratory relief. On
September 8, 2009, the Saline County Circuit Court granted the
plaintiff's motion certifying the class. On October 7, 2009,
United American filed its notice of appeal of the class
certification and subsequently filed its appellate brief on
April 8, 2010. On December 2, 2010, the Arkansas Supreme Court
affirmed the lower court's decision to certify the class.
On January 6, 2012, the parties agreed in principal to settle the
case. On January 11, 2012, the Court ordered the continuation of
the trial, previously set to commence on January 17, 2012, pending
notice to the class and the Court's consideration of the agreed-
upon settlement.
Torchmark Corp. -- http://www.torchmarkcorp.com/-- is an
insurance holding company, which through its subsidiaries, markets
primarily individual life and supplemental health insurance and
annuities, to middle income households throughout the U.S. The
company operates in two segments: insurance, which includes the
insurance product lines of life, health and annuities, and
investments, which supports the product lines.
UNITED STATES: Army Corps Seek Farmers' Class Action Dismissal
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Scott Moyers, writing for Daily Dunklin Democrat, reports that the
U.S. Army Corps of Engineers is seeking to quash a class-action
lawsuit brought by more than 140 Southeast Missouri farmers who
are seeking millions in damages caused by last May's intentional
breaching of the levee protecting the Birds Point-New Madrid
Floodway.
The U.S. attorney's office in Washington, D.C., acting on behalf
of the government and the corps, has filed a motion to dismiss the
lawsuit in the U.S. Court of Federal Claims. Oral arguments are
scheduled for April 10 in the nation's capital in front of federal
Judge Nancy B. Firestone.
In its motion, the corps claims that the lawsuit fails to state a
legitimate claim for which relief can be granted. Primarily, the
motion asserts that because the floodway isn't intentionally
breached often, it doesn't constitute a government "taking" of
land.
Cape Girardeau lawyer J. Michael Ponder, who is representing the
farmers, called the motion nonsense.
"It doesn't matter if it's one time or five times, if you
intentionally damage someone's property -- which is what the corps
did here -- it's a taking," Mr. Ponder said on March 29. "The
case law bears that out."
In May, the corps used explosives to breach the levee in three
spots to allow the swelling Mississippi River to inundate large
tracts of floodway property in Mississippi and New Madrid
counties. The corps said at the time, and the courts agreed, that
it was its right to intentionally activate the floodway to
alleviate flooding in other areas.
The actions of the corps, by its own estimate, created more than
$300 million in damage to private property, including $80 million
in crop losses. More than 90 homes suffered substantial damages,
according to the lawsuit, along with destroyed farm operations and
equipment. The intentional breach and subsequent flooding also
destroyed property and devalued ground. The lawsuit by the
farmers says that constitutes a "taking" by the corps under the
U.S. Constitution's Fifth Amendment, which is a part of the Bill
of Rights and protects against abuse of government authority in a
legal procedure.
The U.S. Department of Justice declined to comment, citing ongoing
litigation.
In its rebuttal, the corps says the land was not permanently
flooded as a result of the floodway's operation. As a matter of
law, the motion says, one flood does not constitute a taking and
that "inevitable recurring flooding must be based on actual
flooding events, not speculative future floods." In fact, the
motion to dismiss says, the floodway would flood more frequently
if the levees were not in place.
Mr. Ponder and his clients disagree.
"We believe the corps' motion is not well founded," Mr. Ponder
said. "We believe the taking claims will go forward and that, in
the end, the court will allow the case to proceed to trial."
The lawsuit does not put an exact price on what the farmers hope
to receive in monetary damages. Mr. Ponder said the lawsuit is
asking the court to make a "fair determination" of what the
damages are.
John Moreton of Cape Girardeau, who farms 1,600 acres in the
floodway, is one of the plaintiffs. His family has not been
reimbursed for property damage or loss of wheat that he couldn't
plant because his land was underwater. While Mr. Moreton would
not give an exact estimate of what his actual losses are, he
agreed that "tens of thousands" is not inaccurate.
"We didn't get any reimbursement for any damages to the land,"
Mr. Moreton said. "This court case is trying to get some of those
damages."
If the judge sides with the farmers, the next step will be to set
a schedule for discovery -- the pretrial phase in a lawsuit in
which each party can obtain evidence from the opposing side
through request for documents and taking depositions, etc.
If it reaches the trial level, courts of claims decisions are
decided by a judge, not a jury. Mr. Ponder said he hopes the
matter goes before a trial judge by the end of the year, though he
expects however the judge rules next month will be appealed.
WILMINGTON TRUST: Judge Dismisses Securities Fraud Class Action
---------------------------------------------------------------
Randall Chase, writing for The Associated Press, reports that a
federal judge in Delaware has dismissed a securities fraud lawsuit
against several former officers and directors of Wilmington Trust.
The class action lawsuit was led by institutional investors who
claimed that Wilmington Trust officials made several false and
misleading statements about the bank's financial condition before
its imploding loan portfolio resulted in a hasty acquisition by
M&T Bank in 2010.
But the judge ruled last week that the plaintiffs failed to
identify the alleged false and misleading statements on which they
base their claims with the required specificity.
While dismissing the lawsuit, the judge gave the plaintiffs until
April 30 to file an amended complaint.
Buffalo N.Y.-based M&T paid about $351 million for Wilmington
Trust, which had been reeling from a deteriorating portfolio of
commercial real estate construction loans.
WPX ENERGY: Continues to Defend Suits Over Gas Price Indices
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WPX Energy, Inc. continues to defend lawsuits alleging
manipulation of published gas price indices, according to the
Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
Civil lawsuits based on allegations of manipulating published gas
price indices have been brought against the Company and others,
seeking unspecified amounts of damages. The Company is currently
a defendant in class action litigation and other litigation
originally filed in state court in Colorado, Kansas, Missouri and
Wisconsin brought on behalf of direct and indirect purchasers of
natural gas in those states. These cases were transferred to the
federal court in Nevada. In 2008, the court granted summary
judgment in the Colorado case in favor of the Company and most of
the other defendants based on plaintiffs' lack of standing. On
January 8, 2009, the court denied the plaintiffs' request for
reconsideration of the Colorado dismissal and entered judgment in
the Company's favor. When a final order is entered against the
one remaining defendant, the Colorado plaintiffs may appeal the
order.
In the other cases, on July 18, 2011, the Nevada district court
granted the Company's joint motions for summary judgment to
preclude the plaintiffs' state law claims because the federal
Natural Gas Act gives the Federal Energy Regulatory Commission
(FERC) exclusive jurisdiction to resolve those issues. The court
also denied the plaintiffs' class certification motion as moot.
The plaintiffs have appealed to the United States Court of Appeals
for the Ninth Circuit.
Because of the uncertainty around pending unresolved issues,
including an insufficient description of the purported classes and
other related matters, the Company says it cannot reasonably
estimate a range of potential exposures at this time. However, it
is reasonably possible that the ultimate resolution of these items
could result in future charges that may be material to the
Company's results of operations.
WPX ENERGY: Faces Royalty Interest Owners' Suit in N.M. & Colo.
---------------------------------------------------------------
WPX Energy, Inc. is facing a lawsuit in New Mexico brought by a
potential class of royalty interest owners, according to the
Company's February 28, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
In October 2011, a potential class of royalty interest owners in
New Mexico and Colorado filed a complaint against the Company in
the County of Rio Arriba, New Mexico. The complaint alleges
failure to pay royalty on hydrocarbons including drip condensate,
fraud and misstatement of value of gas and affiliated sales,
breach of duty to market hydrocarbons, violation of the New Mexico
Oil and Gas Proceeds Payment Act, bad faith breach of contract and
unjust enrichment. Plaintiffs seek monetary damages and a
declaratory judgment enjoining activities relating to production
and payments and future reporting. This matter has been removed
to the United States District Court for New Mexico. At this time,
the Company believes that its royalty calculations have been
properly determined in accordance with the appropriate contractual
arrangements and applicable laws. The Company does not have
sufficient information to calculate an estimated range of exposure
related to these claims.
WPX ENERGY: To Litigate Royalty Interest Suit's 2nd Claim in 2012
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WPX Energy, Inc. said in its February 28, 2012, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011, that a second reserved claim in the class
action lawsuit pending in Colorado will be litigated this year.
In September 2006, royalty interest owners in Garfield County,
Colorado, filed a class action lawsuit in District Court, Garfield
County, Colorado, alleging the Company improperly calculated oil
and gas royalty payments, failed to account for proceeds received
from the sale of natural gas and extracted products, improperly
charged certain expenses and failed to refund amounts withheld in
excess of ad valorem tax obligations. Plaintiffs sought to
certify a class of royalty interest owners, recover underpayment
of royalties and obtain corrected payments resulting from
calculation errors. The Company entered into a final partial
settlement agreement. The partial settlement agreement defined
the class for certification resolved claims relating to past
calculation of royalty and overriding royalty payments,
established certain rules to govern future royalty and overriding
royalty payments, resolved claims related to past withholding for
ad valorem tax payments, established a procedure for refunds of
any such excess withholding in the future, and reserved two claims
for court resolution. The Company has prevailed at the trial
court and all levels of appeal on the first reserved claim
regarding whether the Company is allowed to deduct mainline
pipeline transportation costs pursuant to certain lease
agreements. The remaining claim is whether the Company is
required to have proportionately increased the value of natural
gas by transporting that gas on mainline transmission lines and,
if required, whether the Company did so and are entitled to deduct
a proportionate share of transportation costs in calculating
royalty payments. The Company anticipates litigating the second
reserved claim in 2012.
The Company believes its royalty calculations have been properly
determined in accordance with the appropriate contractual
arrangements and Colorado law. At this time, the plaintiffs have
not provided the Company a sufficient framework to calculate an
estimated range of exposure related to their claims.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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Information contained herein is obtained from sources believed to
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