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/raid1/www/Hosts/bankrupt/CAR_Public/120508.mbx C L A S S A C T I O N R E P O R T E R Tuesday, May 8, 2012, Vol. 14, No. 90 Headlines 24 HOUR: NLRB Files Complaint Over No-Class-Action Policy AB RESOURCES: Faces Class Action Over Royalty Payments ADVOCAT INC: Continues to Defend Arkansas Class Suit ALLSCRIPTS HEALTHCARE: Labaton Sucharow Files Class Action AOL INC: Rosenfarb Law Firm Files Class Action ASCOM TRANSPORT: 6th Circuit Upholds Dismissal of Class Action BARNES & NOBLE: Awaits Final Approval of "Minor" Suit Settlement BARNES & NOBLE: "Lina" Suit Remains Pending in Calif. Court BARNES & NOBLE: Continues to Defend "Burstein" Class Suit BP: Oil Spill Class Action Settlement Gets Preliminary Approval CANADA: Has Until June 1 to Appeal Class Action Ruling CAPITAL GRILLE: Workers Drop Racial Discrimination Class Action CARRIAGE SERVICES: Continues to Defend "Leathermon" Suit CELL THERAPEUTICS: Awaits Approval of Securities Suit Settlement CIENNA CORPORATION: Appeal in ONI-related Suit Withdrawn ENERGY PLUS: Sanford Wittels Files Consumer Fraud Class Action FACEBOOK: Pay-Per-Click Marketers to Appeal Class Action Ruling FACEBOOK: Kerr & Wagstaffe Says Class Action Attracts Interest FERRELLGAS PARTNERS: Unit Continues to Defend Class Suit in Kansas FIRST MID-ILLINOIS: "Williamson" Class Suit Dismissed FREDDIE MAC: Continues to Defend "OPERS" Suit in Ohio FREDDIE MAC: Continues to Defend "Kuriakose" Suit in New York FREDDIE MAC: Class Suit v. Execs Remains Dormant FREDDIE MAC: Class Cert. Bid in N.Y. Consolidated Suit Pending GOOGLE INC: Judge Allows Text-Spam Class Action to Proceed GOOGLE INC: Faces Class Action Over Stock Reclassification IDEAL RV: Accused of Not Paying Employees' Overtime Compensation MELA SCIENCES: Securities Suit Remains Pending in New York NEW JERSEY: Faces Suit for Delayed Medicaid Benefits to Elderly NOKIA CORPORATION: Retirees' Bid to Amend Class Suit Pending PARKVALE FINANCIAL: Judge Rejects Class Action Settlement REPUBLIC BANCORP: Unit Continues to Defend Suit in Kentucky SAN DIEGO: Class Action Over Sept. 8 Blackout to Move Forward SEARS ROEBUCK: Dryer Suit Can't Proceed as Class Action SEQUENOM INC: IPO-related Suit Finally Dismissed in January TRUSTMARK NATIONAL: Watson Burns Files Overdraft Class Action ********* 24 HOUR: NLRB Files Complaint Over No-Class-Action Policy --------------------------------------------------------- Judy Greenwald, writing for Business Insurance, reports that the National Labor Relations Board is charging 24 Hour Fitness USA Inc. with violating federal law by insisting all employment- related disputes be resolved by individual arbitration, the agency said. In a statement issued April 30, the NLRB said the San Ramon, Calif.-based company, which operates fitness centers across the country, requires employees to agree in writing as a condition of employment to forego any rights to collective or class action lawsuits or arbitrations. This violates the National Labor Relations Act, according to the complaint issued by the agency's San Francisco regional office, the NLRB said in a statement. The NRLB said an investigation was prompted by a charge filed by an employee at the 24 Hour Fitness Center in San Ramon. It said since at least summer 2010, the company has enforced its no-class- action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. The NLRB said in each case employees, who are not represented by a union, sought to bring workplace-related claims such as wage-and- hour violations on a class-wide basis, and in response, 24 Hour Fitness has sought to compel the employees to submit their common claims to individual arbitrations, citing the policy in its handbook. Hearing Requested The complaint calls for a hearing before an administrative law judge on June 11, and seeks an order that requires the company's fitness centers nationwide to stop maintaining and enforcing the portion of its policy that prohibits collective and class action, and to notify all judicial and arbitral forums in which it has opposed such action. A 24 Hour Fitness spokesman could not be immediately reached for comment. AB RESOURCES: Faces Class Action Over Royalty Payments ------------------------------------------------------ Kyla Asbury, writing for The West Virginia Record, reports that a class action lawsuit has been filed against AB Resources LLC after seven people claim the company has cheated them out of more than $1 million in royalty payments. The seven plaintiffs named in the suit are Patricia S. Hoskins, Mary Jako, Clarence Rulong, William R. and Linda L. Standiford and Lewis A. and Cathy Aston. The plaintiffs claim AB Resources made improper deductions in calculating royalty payments and used "fraud, deception, concealment, suppression and omission of material facts to deprive plaintiffs of the royalties to which they were entitled." AB Resources' bad faith is evidenced by the fact that its successor-in-interest, Chevron USA, Inc., which obtained the rights to the defendant's oil and gas leases, does not make the same cost deductions when calculating royalty payments for the identical oil and gas leases, according to the suit. Daniel J. Guida, one of the attorneys for the plaintiffs said AB Resources' improper deduction costs were realized when its successor did not make the same deductions. "When the successor didn't make the same deductions it was realized that AB Resources had been improperly deducting costs and had acted in bad faith regarding the royalty payments" Mr. Guida said. The plaintiffs claim AB Resources intentionally failed and refused to pay the royalties to them as required by the leases with no deduction of any costs incurred by it or its affiliates to "gather, transport, compress dehydrate or otherwise treat such gas prior to the point of custody transfer into pipelines or other facilities owned by a regulated utility or pipeline company or a non-affiliated third party." AB Resources entered into a scheme and design to intentionally mislead the plaintiffs into believing they were being paid all the royalties due to them, according to the suit. The plaintiffs also claim as part of the defendant's legal responsibilities, it agreed to and/or had the duty to account for all the sales of gas from the gas wells and to accurately account for the wells and to act as a fiduciary for their moneys due to them as a result of any owed royalties. The defendant breached its fiduciary duties and with its actions, fraudulently concealed information from the plaintiffs that deprived them of the rents and royalties to which they are entitled, according to the suit. The plaintiffs claim AB Resources actions and conduct was "so outrageous as to shock the conscious . . ." AB Resources' actions were also in bad faith and were intentional, outrageous and reprehensible, according to the suit. The plaintiffs are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Mr. Guida, Jonathan E. Turak and Eric Gordon. ADVOCAT INC: Continues to Defend Arkansas Class Suit ---------------------------------------------------- Advocat Inc. continues to defend a purported class action lawsuit pending in an Arkansas state court, according to the Company's March 7, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. In January 2009, a purported class action complaint was filed in the Circuit Court of Garland County, Arkansas against the Company and certain of the Company's subsidiaries and Garland Nursing & Rehabilitation Center (the "Center"). The complaint alleges that the defendants breached their statutory and contractual obligations to the patients of the Center over the past five years. The lawsuit has not been certified as a class action, and no motion to certify the class has been filed by Plaintiffs' counsel to date. The Company intends to defend the lawsuit vigorously. ALLSCRIPTS HEALTHCARE: Labaton Sucharow Files Class Action ---------------------------------------------------------- Labaton Sucharow LLP filed a class action lawsuit on May 2, 2012 in the U.S. District Court for the Northern District of Illinois. The lawsuit was filed on behalf of purchasers of Allscripts Healthcare Solutions, Inc. common stock between November 9, 2010, and April 26, 2012, inclusive. The action charges Allscripts and certain of its officers with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. The Complaint alleges that, throughout the Class Period, the Company, which was formed from the merger of Allscripts-Misys Healthcare Solutions, Inc. and Eclypsis Corporation in August 2010, misrepresented its progress in integrating Allscripts' and Eclypsis' disparate systems and the Company's ability to translate its fragmented product lines into revenues. Allscripts is a provider of healthcare-related information technology services, including systems that manage electronic health records, financial and administrative performance, revenue cycle, and care and discharge operations. The Complaint alleges that Allscripts concealed that: (a) the process of developing a unified product offering after the Merger had suffered debilitating setbacks, including major undisclosed schisms among the most senior levels of the Company, which ultimately resulted in the loss of key personnel and harmful upheaval in Company leadership; (b) a material portion of Allscripts' revenue and net income was predicated on the successful integration of these systems, and substantial business relationships had been destroyed by the Company's inability to make material progress in this area; and (c) as a result of the foregoing, Allscripts lacked a reasonable basis for its claims of progress in post-Merger integration, sound operations, profitable results, and continued growth. The truth about Allscripts' condition was revealed on April 26, 2012, following the close of the markets, when the Company announced its operating results for the first quarter of 2012. Allscripts shocked the market by reporting earnings sharply below guidance and expectations, as well as: (a) the termination of the Chairman of its Board of Directors; (b) the resignation of three Company directors; and (c) the resignation the Company's Chief Financial Officer. In reaction to these revelations, Allscripts' stock price fell $5.72 per share, or 35.7 percent, to close at $10.30 per share on April 27, 2012, on extraordinary trading volume. If you are a member of this Class you can view a copy of the complaint and join this class action online at http://www.labaton.com/en/cases/Newly-Filed-Cases.cfm If you purchased Allscripts common stock during the Class Period, you may be able to seek appointment as Lead Plaintiff. Lead Plaintiff motion papers must be filed with the U.S. District Court for the Northern District of Illinois no later than July 2, 2012. A lead plaintiff is a court-appointed representative for absent Class members. You do not need to seek appointment as lead plaintiff to share in any Class recovery in this action. If you are a Class member and there is a recovery for the Class, you can share in that recovery as an absent Class member. You may retain counsel of your choice to represent you in this action. If you would like to consider serving as lead plaintiff or have any questions about the lawsuit, you may contact one of our representatives, Rachel A. Avan, Esq. of Labaton Sucharow LLP, at (888) 753-2796 or (212) 907-0709, or via e-mail at ravan@labaton.com Labaton Sucharow LLP -- http://www.labaton.com-- represents institutional investors in class action and complex securities litigation, as well as consumers and businesses in class actions seeking to recover damages for anticompetitive practices. AOL INC: Rosenfarb Law Firm Files Class Action ---------------------------------------------- The Rosenfarb Law Firm has filed a class action lawsuit against AOL, which claims that AOL misled investors about its financial condition. The lawsuit is intended to benefit everyone who sold shares of AOL, Inc. stock between August 11, 2011, and April 9, 2012. On April 9, 2012 when AOL, Inc. announced the sale of a portion of its patent portfolio for more than $1 billion, the price of AOL common stock subsequently soared from approximately $18 to $26 per share. The lawsuit alleges that AOL, Inc. bought several million shares of common stock for itself while misleading investors about its financial condition, thereby artificially reducing the price that AOL paid. The Rosenfarb Law Firm was assisted in its evaluation of AOL by Rosenfarb LLC, a leading forensic accounting and valuation firm. The Rosenfarb Law Firm seeks to recover damages on behalf of class members. Anyone who sold shares of AOL, Inc. stock between August 11, 2011, and April 9, 2012, may join the lawsuit by submitting information online at http://www.rosenfarblawfirm.com Prospective participants may also call Ronald Rosenfarb at 855-415-5455 to learn how Rosenfarb Law Firm can protect their rights. If you would like more information about this topic or our firm, please contact Ronald Rosenfarb via phone at 855-415-5455 or e- mail at ronald.rosenfarb@rosenfarblawfirm.com ASCOM TRANSPORT: 6th Circuit Upholds Dismissal of Class Action -------------------------------------------------------------- Jessica M. Karmasek, writing for Legal Newsline, reports that a federal appeals court last week upheld the dismissal of a proposed class action lawsuit over the distribution of personal information from a state's motor vehicle records. Plaintiffs Norma Wiles, Thomas Wiles, Theresa Gibson and Wanta Evitt, all Kentucky residents, filed the proposed class action against defendants Ascom Transport System Inc., Downtown Owensboro Inc., Jones and Wenner Insurance, Nationwide Debt Recovery Service Inc., Tennessee Valley Authority and Xerox Corporation in January 2010. However, Ascom is the only defendant named in the appeal to the U.S. Court of Appeals for the Sixth Circuit. It was Ascom's motion to dismiss that the U.S. District Court for the Western District of Kentucky decided and, as a result, dismissed the lawsuit in its entirety. The Kentucky plaintiffs claimed that Ascom violated the federal Driver's Privacy Protection Act, or DPPA, and their common law right to privacy when the company obtained in bulk and then used, resold and disclosed their personal information contained in the state's motor vehicle records without a "permissible purpose" under the act. The district court ruled in December 2010 that the bulk purchase of such motor vehicle records without a "specific need for every record" does not violate the DPPA, and ultimately granted Ascom's motion to dismiss the plaintiffs' third amended complaint. At that time, the district court also instructed the parties that it would consider dismissing specific elements of the third amended complaint. In February 2011, the court then granted Ascom's motion to dismiss and entered judgment in favor of the company and the other named defendants. The Kentucky plaintiffs appealed. In a 19-page decision filed on April 30, the Sixth Circuit affirmed the lower court's ruling. Lawrence P. Zatkoff, U.S. district judge for the Eastern District of Michigan, who sat by designation, authored the Sixth Circuit's opinion. The Sixth Circuit explained that the bulk obtainment of personal information for a permissible purpose does not violate the DPPA. Also, as Ascom obtained the information under one or more of the permissible purposes set forth in the act, the Kentucky plaintiffs cannot establish a violation of the DPPA if the only alleged wrongdoing the company has committed was obtaining the information in bulk for use or potential use, the court said. "Plaintiffs have not cited any case law, legislative history or other 'any authority or persuasive argument for concluding that (the DPPA) clearly and unambiguously limits disclosure of personal information to one individual at a time,'" Judge Zatkoff wrote. "In contrast, as noted in several of the cases discussed above, the legislative history clearly establishes that Congress did not intend to alter the traditional method of bulk disclosures by states, subject to the express limitations set forth in the DPPA." The plaintiffs, the court noted, also failed to identify any language in the statute that requires "immediate use." "They cannot do so because there is no such language in the DPPA," Judge Zatkoff wrote. In addition, the Sixth Circuit held that obtaining personal information solely for the purpose of reselling such information is allowed under the DPPA -- so long as the information will be used only for purposes permitted. "In this case, Plaintiffs have not alleged that the ultimate 'use' of the information is for an impermissible purpose. Rather, Plaintiffs' allegations pertaining to the resale/disclosure of the personal information are based on Defendant allegedly obtaining the personal information for the sole purpose of reselling it to third parties, without use of such information by Defendant," Judge Zatkoff wrote. As for the plaintiffs' claim of common law right to privacy, the Sixth Circuit said it fails as a matter of law. The plaintiffs had no reasonable expectation of privacy in the personal information. Also, they did not allege that Ascom disclosed, or caused to be disclosed, their personal information to the public at large, the court explained. In all, the Kentucky plaintiffs failed to establish any violation of a federal right. Therefore, the district court "properly dismissed" their third amended complaint, the Sixth Circuit concluded. BARNES & NOBLE: Awaits Final Approval of "Minor" Suit Settlement ---------------------------------------------------------------- Barnes & Noble, Inc., is awaiting final court approval of a settlement resolving a purported class action lawsuit captioned Minor v. Barnes & Noble Booksellers, Inc. et al., according to the Company's March 8, 2012 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 28, 2012. On May 1, 2009, a purported class action complaint was filed against B&N Booksellers, Inc. (B&N Booksellers) in the Superior Court for the State of California alleging wage payments by instruments in a form that did not comply with the requirements of the California Labor Code, allegedly resulting in impermissible wage payment reductions and calling for imposition of statutory penalties. The complaint also alleges a violation of the California Labor Code's Private Attorneys General Act and seeks restitution of such allegedly unpaid wages under California's unfair competition law, and an injunction compelling compliance with the California Labor Code. The complaint alleges two subclasses of 500 and 200 employees, respectively (there may be overlap among the subclasses), but contains no allegations concerning the number of alleged violations or the amount of recovery sought on behalf of the purported class. On June 3, 2009, B&N Booksellers filed an answer denying all claims. Discovery concerning purported class member payroll checks and related information is ongoing. On August 19, 2010, B&N Booksellers filed a motion to dismiss the case for lack of a class representative when the named plaintiff advised she did not wish to continue to serve in that role. On October 15, 2010, the Court issued an order denying B&N Bookseller's motion to dismiss. The Court further ruled that Ms. Minor could not serve as a class representative. The Court also granted Plaintiff's Motion to Compel Further Responses to previously-served discovery seeking contact information for the putative class. B&N Booksellers provided that information on October 15, 2010. The previously scheduled Case Management Conference was continued to January 27, 2011. Plaintiff's counsel filed an amended complaint on January 26, 2011, adding two new named Plaintiffs, Jacob Allum and Cesar Caminiero. At the Case Management Conference held on January 27, 2011, the Court ordered the parties to complete mediation by May 6, 2011. The parties held a mediation on April 11, 2011 and reached a tentative settlement. On August 29, 2011, the Court continued a hearing to consider granting preliminary approval of the settlement. On November 10, 2011, the parties appeared before the Court for the hearing on preliminary approval. At the Court's request, the parties subsequently submitted supplemental papers to address outstanding issues raised by the Court at the hearing. The Court granted preliminary approval of the settlement on November 22, 2011 and had set March 26, 2012 for the final approval hearing. BARNES & NOBLE: "Lina" Suit Remains Pending in Calif. Court ----------------------------------------------------------- A purported class action lawsuit captioned Lina v. Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc. et al., remains pending in a California state court, according to Barnes & Noble, Inc.'s March 8, 2012 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 28, 2012. On August 5, 2011, a purported class action complaint was filed against Barnes & Noble, Inc. and Barnes & Noble Booksellers, Inc. in the Superior Court for the State of California making the following allegations against defendants with respect to salaried Store Managers at Barnes & Noble stores located in the State of California from the period of August 5, 2007 to present: (1) failure to pay wages and overtime; (2) failure to pay for missed meal and/or rest breaks; (3) waiting time penalties; (4) failure to pay minimum wage; (5) failure to provide reimbursement for business expenses; and (6) failure to provide itemized wage statements. The claims are generally derivative of the allegation that these salaried managers were improperly classified as exempt from California's wage and hour laws. The complaint contains no allegations concerning the number of any such alleged violations or the amount of recovery sought on behalf the purported class. The Company was served with the complaint on August 11, 2011. On August 30, 2011, the Company filed an answer in state court, and on August 31, 2011 it removed the action to federal court pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. Sec. 1332(d). On October 28, 2011, the district court granted plaintiff's motion to remand the action back to state court, over the Company's opposition. The Company believes that the district court remanded the action in error. On November 7, 2011, Barnes & Noble petitioned the Ninth Circuit for an appeal of the district court's remand order. The case is currently in state court, pending the Ninth Circuit's decision regarding the Company's petition for permission to review the remand order. BARNES & NOBLE: Continues to Defend "Burstein" Class Suit --------------------------------------------------------- Barnes & Noble, Inc., continues to defend itself from a purported class action lawsuit filed by Rhonda Burstein, according to the Company's March 8, 2012 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 28, 2012. On August 12, 2011, a purported class action complaint was filed against Hachette Book Group, Inc., Harper Collins Publishers, Inc., Macmillan Publishers, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., Random House, Inc., (collectively, the Publisher Defendants) and Apple, Inc., Amazon.Com, Inc., and Barnes & Noble, Inc. (collectively with the Publisher Defendants, the Defendants) in the United States District Court for the Southern District of New York on behalf of purchasers of eBooks of Publisher Defendants through Apple, Amazon, Barnes & Noble and other eBook retailers. The complaint generally alleges a horizontal price fixing and a vertical conspiracy among the Defendants to restrain trade in the consumer retail market of eBooks in the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1 and Section 2 of the Sherman Act, 15 U.S.C. Section 2. The complaint generally seeks treble damages in an undetermined amount sustained pursuant to Section 4 of the Clayton Act 15 U.S.C. Section 15, costs and fees, and injunctive relief. Other complaints have been filed against the Publisher Defendants, Apple and/or Amazon that do not name the Company as a defendant resulting in a petition to the U.S. Judicial Panel on Multidistrict Litigation (MDL Panel) to coordinate these cases, including the Burstein action, and consolidate them for pretrial purposes in the Southern District of New York or the Northern District of California. The MDL Panel held a hearing on December 1, 2011. The Company's date to file a motion to dismiss the Complaint has been extended until after a consolidated amended complaint is filed in the jurisdiction chosen by the MDL Panel. The Company denies liability and intends to vigorously defend its interests. BP: Oil Spill Class Action Settlement Gets Preliminary Approval --------------------------------------------------------------- Michael Kunzelman, writing for The Associated Press, reports that a federal judge on May 2 preliminarily approved a proposed class- action settlement that would resolve billions of dollars in claims against BP over the 2010 oil spill in the Gulf of Mexico. U.S. District Judge Carl Barbier's ruling allows the settlement process to proceed, but he will hold a "fairness hearing" on Nov. 8 before deciding whether to give his final approval to the deal between London-based BP PLC and a team of plaintiffs' attorneys. The proposed settlement doesn't have a cap, but BP estimates it will pay about $7.8 billion to resolve more than 100,000 claims by people and businesses who blame the spill for economic losses. The deal announced March 2 was spelled out in hundreds of pages of documents filed last month. Judge Barbier also heard an outline of the proposal during an April 25 hearing. "At this stage, the Settlement Agreement appears fair, has no obvious deficiencies, does not improperly grant preferential treatment to the Class Representatives or to segments of the Class, and does not grant excessive compensation to attorneys. It falls within the range of possible judicial approval," Judge Barbier wrote on May 2 in a 43-page order. BP has agreed to pay $2.3 billion for seafood-related claims by commercial fishing vessel owners, captains and deckhands. The settlement also would compensate other categories of losses, including lost business, wages, property damage and damage to vessels that worked on the spill cleanup. The agreement calls for paying medical claims by cleanup workers and others who say they suffered illnesses from exposure to the oil or chemicals used to disperse it. In addition, BP has agreed to spend $105 million over five years to set up a Gulf Coast health outreach program and pay for medical examinations. The settlement doesn't resolve separate claims brought by the federal government and Gulf states against BP and its partners on the Deepwater Horizon drilling rig over environmental damage from the nation's worst offshore oil spill. It also doesn't resolve private plaintiffs' claims against Switzerland-based rig owner Transocean Ltd. and Houston-based cement contractor Halliburton. The judge said he would have months to consider any objections to the settlement, but some groups of plaintiffs and elected officials haven't waited to air their concerns. In a recent court filing, a group of commercial fishermen and industry groups said they see "significant flaws" and claimed it wouldn't protect most fishermen against future risks to fisheries. Mississippi Attorney General Jim Hood said he objects to the settlement's use of liability releases that the former administrator of a victims' compensation fund had people sign if they were seeking a final payment from the fund. Florida Attorney General Pamela Jo Bondi had urged Judge Barbier to hold off on giving his preliminary approval so that "other interested stakeholders" could have more time to review and comment on the proposed settlement's terms. Halliburton said the settlement improperly seeks to assign certain claims that BP has made against Halliburton to the Plaintiffs' Steering Committee, the team of attorneys who brokered the deal. The April 20, 2010, blowout of BP's Macondo well triggered an explosion that killed 11 rig workers and spilled more than 200 million gallons of oil into the Gulf. In the aftermath, BP created a $20 billion fund to compensate commercial fishermen, property owners, hotels and other tourism- driven businesses that claimed they suffered economic damages. The Gulf Coast Claims Facility processed more than 221,000 claims and paid out more than $6 billion from the fund before a court- supervised administrator took over March 8. During the transition period, claimants have received more than $134 million. Trial Date Michael Kunzelman, writing for The Associated Press, reports that the Justice Department is urging a federal judge to set a new trial date for no later than this summer for government claims against BP over the 2010 oil spill in the Gulf of Mexico. In a court filing on May 1, government lawyers say a class-action settlement agreement between the oil giant and a team of plaintiffs' attorneys shouldn't delay a trial for claims that aren't covered by the proposed deal. London-based BP PLC has asked Judge Barbier to set a January 2013 trial date for remaining claims. "BP's proposed delay would render these substantial public interests subservient to BP's corporate interest in resolving its litigation exposure to private party litigants," Justice Department attorneys wrote. "This private party settlement process, however, need not preclude trial of the broader government claims, as the processes can and should proceed in tandem." The state of Alabama also asked Judge Barbier to set a new trial for this summer. The judge scheduled a meeting on May 3 behind closed doors to discuss a new trial date. CANADA: Has Until June 1 to Appeal Class Action Ruling ------------------------------------------------------- Clare Mellor, writing Herald News, reports that disabled veterans in Canada are "cautiously optimistic" they will see the money the federal government owes them, says Dennis Manuge. "Everybody is pretty excited that we have this kind of pressure now to bring to bear on the government," Mr. Manuge said on May 2. He was the lead plaintiff in a class action that was brought against the federal government on behalf of disabled veterans. On May 1, the Federal Court ruled that Ottawa has been illegally clawing back veterans' disability benefits and ordered the practice stopped. It is not yet known if the decision will be appealed. The federal government has until June 1 to file an appeal with the Federal Court of Appeal. "The government is studying (the) decision and considering (its) next steps," Capt. Alexandre Munoz, a Defence Department spokesman, said in an e-mail. The strength of the federal court decision should work in veterans' favor, said Peter Driscoll, the veterans' lawyer. "We're really of the view that the decision is so strong, the judge simply rejected everything the government argued," he said. "It is a very well-reasoned, very well-written decision that I think is going to be difficult for the Crown to overcome." If the Crown decides not to appeal, Mr. Driscoll said he can start working with the court and the Crown on the reimbursement process. "The administrator of the plan knows who all these people are, presumably knows where they all are, so it would be a matter of months rather than years that they get their money once we got the green light," he said. However, Mr. Manuge said he wouldn't be surprised if the federal government decides to appeal. "That has been their history to date throughout the process," he said. There are as many as 6,000 veterans who could be affected by the court ruling. It is estimated that it will cost between C$270 million and C$295 million to pay veterans what they are owed, Mr. Driscoll said. In its decision on May 1, the court ruled that long-term disability benefits paid to veterans under a military insurance plan, which all Armed Forces personnel are required to pay into, should not be reduced by the amount the veterans receive from their monthly Veterans Affairs Canada Disability pension. "The point that the judge (made is that) these are two different types of benefits. We are not stacking one similar benefit on top of another," Mr. Driscoll said. "One compensates for injury and the other is an income replacement scheme where if you can't work, you get paid a portion of your salary." The class action has been before the courts since 2007. The Federal Court certified the case but that certification was rejected by the Federal Court of Appeal. In December 2010, the Supreme Court of Canada reinstated the Federal Court decision paving the way for the class action. CAPITAL GRILLE: Workers Drop Racial Discrimination Class Action --------------------------------------------------------------- Lisa Fickenscher, writing for Crain's New York Business, reports that instead of one class-action employee lawsuit against restaurant chain Capital Grill, there will be five in as many states, according to recent court documents associated with the complaint, which was originally filed four months ago in Illinois. "This is an indication that the case is growing," said the plaintiffs' lawyer, Christopher Williams of Workers Law Office, in Chicago. There are currently 52 named plaintiffs in the lawsuit. The charges against the pricey chop house include alleged wage and hour violations and racial discrimination. But Orlando, Fla.-based Darden Restaurants, which owns Capital Grille, is claiming a legal victory as well. According to court documents, the workers are dropping their claim of race discrimination because they "cannot satisfy the requirements for certifying a class." "We're very pleased with this development. As we've said from the beginning, we believe these allegations were baseless, and we think the fact that they dropped their claims of discrimination speaks for itself," said Darden spokesman Rich Jeffers. However, Mr. Williams said Darden is "misrepresenting the facts" and that the workers plan to re-file the discrimination charges along with the 26 other complaints. He described the action as a "procedural move" and said the discrimination charges will be added to each of the new complaints, which are to be filed by June 1 in New York, Florida, Maryland, California and Illinois. "It doesn't change the fact of what happened," Mr. Jeffers said. "I'm pointing out the facts of the case as it progresses." There are three Capital Grille eateries in New York City, but the workers have for months targeted their protests at the location near Grand Central Terminal on East 42nd Street. They have been assisted by Restaurant Opportunity Center United -- a worker advocacy group -- which kicked off a campaign called "Dignity at Darden." Capital Grille is accused of favoring white workers over people of color for lucrative tipped jobs as well as requiring tipped workers to share their earnings with non-tipped workers. CARRIAGE SERVICES: Continues to Defend "Leathermon" Suit -------------------------------------------------------- Carriage Services, Inc., continues to defend itself from a putative class action lawsuit captioned Leathermon, et al. v. Grandview Memorial Gardens, Inc., et al., United States District Court, Southern District of Indiana, Case No. 4:07-cv-137, according to the Company's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On August 17, 2007, five plaintiffs filed a putative class action against the current and past owners of Grandview Cemetery in Madison, Indiana, including the Carriage subsidiaries that owned the cemetery from January 1997 until February 2001, on behalf of all individuals who purchased cemetery and burial goods and services at Grandview Cemetery. Plaintiffs claim that the cemetery owners performed burials negligently, breached Plaintiffs' contracts, and made misrepresentations regarding the cemetery. The Plaintiffs also allege that the claims occurred prior, during and after the Company owned the cemetery. On October 15, 2007, the case was removed from Jefferson County Circuit Court, Indiana to the Southern District of Indiana. On April 24, 2009, shortly before Defendants had been scheduled to file their briefs, in opposition to Plaintiffs' motion for class certification, Plaintiffs moved to amend their complaint to add new class representatives and claims, while also seeking to abandon other claims. The Company, as well as several other Defendants, opposed Plaintiffs' motion to amend their complaint and add parties. In April 2009, two Defendants moved to disqualify Plaintiffs' counsel from further representing Plaintiffs in this action. On March 31, 2010, the Court granted the Defendants' motion to disqualify Plaintiffs' counsel. In that order, the Court gave Plaintiffs 60 days within which to retain new counsel. On May 6, 2010, Plaintiffs filed a petition for writ of mandamus with the Seventh Circuit Court of Appeals seeking relief from the trial court's order of disqualification of counsel. On May 19, 2010, the Defendants responded to the petition of mandamus. On July 8, 2010, the Seventh Circuit denied Plaintiffs' petition for writ of mandamus. Thus, pursuant to the trial court's order, Plaintiffs were given 60 days from July 8, 2010 in which to retain new counsel to prosecute this action on their behalf. Plaintiffs retained new counsel and the trial court granted the newly retained Plaintiffs' counsel 90 days to review the case and advise the Court whether or not Plaintiffs would seek leave to amend their complaint to add and/or change the allegations as are currently stated therein and whether or not they would seek leave to amend the proposed class representatives for class certification. Plaintiffs moved for leave to amend both the class representatives and the allegations stated within the complaint. Defendants filed oppositions to such amendments. The Court issued an order permitting the Plaintiffs to proceed with amending the class representatives and a portion of their claims; however, certain of Plaintiffs' claims have been dismissed. Discovery in this matter will now proceed. Carriage intends to defend this action vigorously. Because the lawsuit is in its preliminary stages, the Company is unable to evaluate the likelihood of an unfavorable outcome to the Company or to estimate the amount or range of any potential loss, if any, at this time. CELL THERAPEUTICS: Awaits Approval of Securities Suit Settlement ---------------------------------------------------------------- Cell Therapeutics, Inc., is awaiting a court approval of a settlement entered in a consolidated securities class action lawsuit, according to the Company's March 8, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. In March 2010, three purported securities class action complaints were filed against the Company and certain of its officers and directors in the United States District Court for the Western District of Washington. On August 2, 2010, Judge Marsha Pechman consolidated the actions, appointed lead plaintiffs, and approved lead plaintiffs' counsel. On September 27, 2010, lead plaintiff filed an amended consolidated complaint, captioned Sabbagh v. Cell Therapeutics, Inc. (Case No. 2:10-cv-00414-MJP), naming the Company, Dr. James A. Bianco, Louis A. Bianco, and Craig W. Philips as defendants. The amended consolidated complaint alleges that defendants violated the federal securities laws by making certain alleged false and misleading statements related to the FDA approval process for pixantrone. The action seeks damages on behalf of purchasers of the Company's stock during a purported class period of March 25, 2008 through March 22, 2010. On October 27, 2010, defendants moved to dismiss the amended consolidated complaint. On February 4, 2011, the Court denied in large part the defendants' motion. Defendants answered the amended consolidated complaint on March 28, 2011, and discovery commenced, with trial set for June 25, 2012. On December 14, 2011, the parties filed a letter with the Court indicating they had agreed to the general terms of a settlement, and asking the Court to remove the case deadlines from the Court calendar. On February 14, 2012, the parties filed a Motion for Preliminary Approval of the Stipulation of Settlement and related documents with the Court. The negotiated terms of the settlement include a $19 million payment to plaintiffs. CIENNA CORPORATION: Appeal in ONI-related Suit Withdrawn -------------------------------------------------------- An appeal in a securities class action lawsuit filed in New York was withdrawn and dismissed in January, according to Cienna Corporation's March 8, 2012 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2012. As a result of its June 2002 acquisition of ONI Systems Corp., Ciena became a defendant in a securities class action lawsuit filed in the United States District Court for the Southern District of New York in August 2001. On January 9, 2012, the final appellant in this securities class action lawsuit withdrew and dismissed his appeal with prejudice in accordance with the terms of a settlement agreement. Ciena was not required to pay any amount toward the settlement or to make any other payments to plaintiffs in connection with the resolution of this matter. ENERGY PLUS: Sanford Wittels Files Consumer Fraud Class Action -------------------------------------------------------------- Sanford Wittels & Heisler LLP on May 2 filed a class action complaint in the U.S. District Court in New Jersey against Energy Plus Holdings LLC and Energy Plus Natural Gas LP (Energy Plus) for perpetrating an illegal bait-and-switch scheme that has deceived and defrauded thousands of New Jersey consumers of millions of dollars. "Energy Plus promises customers competitive market-based rates and savings on their energy bills if they switch their accounts from other energy suppliers," said Steven Wittels -- swittels@swhlegal.com -- a founding partner in the firm. "In fact, any savings that occur are short-lived and effectively wiped out within one or two billing cycles as Energy Plus jacks up its promised rate, often by as much as 150%. Customers can end up paying two or three times more for electricity or natural gas than they did before switching their accounts to Energy Plus. Instead of getting the promised benefit, these customers incur a tremendous loss, to the tune of hundreds or thousands of dollars every year. Such business practices are not only illegal, they are unconscionable." Sanford Wittels & Heisler represents Kearny, NJ resident Yue Yu and a class of similarly situated New Jersey Energy Plus customers. The class consists of thousands of New Jersey residents and businesses whom the Pennsylvania-based company deceives in New Jersey. Mr. Wittels added that Energy Plus is believed to engage in the same tactics in the other states where the company does business, including Connecticut, Illinois, Maryland, Massachusetts, New York, Ohio, Pennsylvania, and Texas. Ms. Yu was enticed by Energy Plus' deceptive claims to switch her electricity and natural gas service to the company in September. Between November and April, she incurred more than $200 in overcharges for her energy supplies, billed at a rate about 70% above the market rates over the 6-month period. When she discovered the magnitude of the difference between the rates promised by Energy Plus and the rates she was actually billed, Ms. Yu switched her service back to PSE&G. According to the complaint, Energy Plus takes advantage of the deregulation of energy in New Jersey by adopting fraudulent and deceptive business tactics. "The company misleads customers to believe that by switching to Energy Plus they will save money compared to receiving energy services from their local public utilities," said co-lead counsel Jeremy Heisler -- jheisler@swhlegal.com "The company also represents that its rates are tied to market factors and are competitive, when in fact, they are not. It's a classic consumer fraud and scam." The complaint asserts that Energy Plus' rates are "completely divorced from prevailing market conditions" and usually "skyrocket" within 60 days of customers' switching their accounts. Ms. Yu says these corporations exploit customers by making ambiguous representations and agreements that create an expectation of savings that never materialize. "The company never discloses that its regular rates are nearly always substantially higher than its competitors and exorbitant when compared to the energy supply market," said co-counsel Grant Morris -- grantemorris@gmail.com The complaint describes in detail how Ms. Yu and all members of the class suffered economic injury because they routinely paid substantially more for Energy Plus services compared to the cost of energy from their previous supplies. The proposed class has two subclasses. The first subclass comprises New Jersey customers of Energy Plus Holdings LLC who switched to the company for electricity services; the second comprises New Jersey customers who used Energy Plus Natural Gas LP as their natural gas supplier. Ms. Yu's claims are typical of the claims of the class. "All class members have been injured by Energy Plus' imposition of unreasonably high, undisclosed energy supply rates that were not commensurate with the New Jersey market," said Andrew Melzer -- amelzer@swhlegal.com -- a senior litigation counsel at the firm. "The harm suffered by class members is identical to the harm suffered by Ms. Yu as a result its unfair and unlawful practices." The complaint alleges that both Energy Plus companies violated the New Jersey Consumer Fraud Act, breached the covenant of good faith and fair dealing integral to all contractual agreements, and received unjust enrichment by taking money that belongs to Ms. Yu and the class members. The complaint asks for a class action declaration; an award of compensatory damages to Ms. Yue and class members; treble damages, as allowable under state law; an order enjoining Energy Plus from continuing to implement its deceptive, illegal and unlawful trade practices and schemes; pre- and post-judgment interest on damages awarded. A jury trial is demanded. Sanford Wittels & Heisler LLP, a law firm with offices in Washington, D.C., New York, and San Francisco, specializes in employment discrimination, wage and hour, qui tam and consumer actions and complex corporate class action litigation. In addition, the firm also represents individual clients in employment, employment discrimination, sexual harassment, whistleblower, public accommodations, commercial, medical malpractice, and personal injury matters. FACEBOOK: Pay-Per-Click Marketers to Appeal Class Action Ruling --------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that two pay-per-click marketers who sued Facebook for allegedly charging them for invalid clicks are seeking permission to appeal a recent decision denying them class-action status. The marketers -- Fox Test Prep and Steven Price, who operates the car site DriveDownPrices.com -- argue that U.S. District Court Judge Phyllis Hamilton was wrong to conclude that the marketers must pursue their claims as individuals. Judge Hamilton, a judge in the Northern District of California, ruled last month that the marketers had not shown that "common questions predominate" -- a necessary condition for class-action lawsuits. The litigation dates to 2009, when Price, Fox Test and other pay- per-click marketers sued Facebook for allegedly charging them for invalid clicks. Two years ago, U.S. District Court Judge Jeremy Fogel in San Jose, Calif. ruled that Facebook's contract with marketers disclaimed liability for clicks that were "fraudulent" in the sense that the clicker had dubious intentions. But Judge Fogel ruled that the disclaimer didn't apply to clicks that were "invalid" -- such as when technical problems prevented users from reaching a landing page. Judge Hamilton said that one reason why the marketers shouldn't proceed as a class-action was that they had not shown "any uniform method for distinguishing, on a classwide basis, between 'invalid' clicks and 'fraudulent' clicks." In their latest papers, filed on April 27 with the 9th Circuit Court of Appeals, the marketers dispute that conclusion. They argue that one of their experts had offered to "construct algorithms that would reflect the rules that Facebook should have employed." Fox Test Prep and Price also argue that they presented evidence showing that Facebook "abused" advertisers' trust by developing standards that were "designed to enhance revenue rather than protect advertisers from paying for invalid clicks." They are asking the appellate court to grant them permission to appeal Judge Hamilton's order. FACEBOOK: Kerr & Wagstaffe Says Class Action Attracts Interest -------------------------------------------------------------- Kerr & Wagstaffe Firm on May 2 said that Facebook is a social network built on the concept of connecting with friends. For a network so large and so influential, however, it should come as no great surprise that Facebook has developed a few enemies, as well. This was made evident in a recent attempt to take the social networking company to court in a class action lawsuit. A large group of Facebook advertisers recently sought to sue Facebook, as a group, for overcharging them, but their attempts to stage a lawsuit were ultimately not admitted into court. Though their future actions remain uncertain, the incident has nevertheless attracted the attention of many legal professionals, including the firm Kerr & Wagstaffe, which works on many class action suits, as well as intellectual property cases. The large group of Facebook advertisers claimed that Facebook was overcharging them on advertising rates, and even alleged that the social network was guilty of a breach in contract. An Oakland judge, however, determined that these advertisers simply did not have enough in common to achieve class action status. Phyllis Hamilton, the judge who heard the case, wrote that Facebook's attorneys simply made a more convincing case. "The court is persuaded by Facebook's argument that plaintiffs have not shown that they have a viable method for proving each class member's recovery," wrote Judge Hamilton. Other legal professionals have also responded to the results of the bid for class action case, including lawyers from the San Francisco firm Kerr & Wagstaffe. "The Court's order shows the increasing hostility to class action claims in federal court following the U.S. Supreme Court's decision in Dukes v. Wal-Mart. Now, more than ever, plaintiffs seeking to pursue a class action in federal court need the help of experienced trial attorneys with a strong background in federal class action practice," says Kerr & Wagstaffe's Ivo Labar -- labar@kerrwagstaffe.com Mr. Labar is also known as the co-author of the leading treatise on federal procedure, Federal Civil Procedure Before Trial. Judge Hamilton, meanwhile, wrote that there was simply no way to prove a "systematic" breach of contract on the part of Facebook. The judge further explained her decision to reject the class action bid by saying that there was "no way to conduct this type of highly specialized and individualized analysis for each of the thousands of advertisers in the proposed class." The judge has scheduled a conference for May 17, where further options for proceeding with this case will be discussed. Kerr & Wagstaffe LLP is a law firm based in the San Francisco area. The firm concentrates its practice in the areas of First Amendment issues, employment law, intellectual property rights, and class action litigation. FERRELLGAS PARTNERS: Unit Continues to Defend Class Suit in Kansas ------------------------------------------------------------------ A unit of Ferrellgas Partners Finance Corp. continues to defend itself from a putative class action lawsuit pending in a Kansas federal court, according to the Company's March 9, 2012 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2012. Ferrellgas, L.P., has been named as a defendant in a class action lawsuit filed in the United States District Court in Kansas. The complaint alleges that Ferrellgas violates consumer protection laws in the manner Ferrellgas sets prices and fees for its customers. Based on Ferrellgas' business practices, Ferrellgas believes that the claims are without merit and intends to defend the claims vigorously. The court has stayed discovery on this matter pending Ferrellgas' motion to compel arbitration, and the case has not been certified for class treatment. Ferrellgas does not believe loss is probable or reasonably estimable at this time related to this class action lawsuit. FIRST MID-ILLINOIS: "Williamson" Class Suit Dismissed ----------------------------------------------------- A class action lawsuit captioned Deanna Williamson, on behalf of herself and all others similarly situated v. First Mid-Illinois Bancshares, Inc. and First Mid Bank & Trust, N.A. (Circuit Court, Third Judicial Circuit, Madison County, Illinois, No. 11-L-1079), was dismissed in February, according to First Mid-Illinois Bancshares, Inc.'s March 7, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On October 20, 2011, a lawsuit was filed against the Company and First Mid Bank in the Circuit Court of Madison County, Illinois. The lawsuit is styled as a class action lawsuit. The suit alleges that the Company and First Mid Bank unfairly assessed and collected overdraft fees and sought restitution of the overdraft fees, an unspecified amount of compensatory and punitive damages, prejudgment interest and additional relief. This case was dismissed by agreement of the parties on February 17, 2012. FREDDIE MAC: Continues to Defend "OPERS" Suit in Ohio ----------------------------------------------------- Federal Home Loan Mortgage Corporation continues to defend itself from a securities class action lawsuit filed in an Ohio federal court by the Ohio Public Employees Retirement System, according to the Company's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. This putative securities class action lawsuit was filed against Freddie Mac and certain former officers on January 18, 2008 in the U.S. District Court for the Northern District of Ohio purportedly on behalf of a class of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007. The plaintiff alleges that the defendants violated federal securities laws by making false and misleading statements concerning our business, risk management and the procedures we put into place to protect the company from problems in the mortgage industry. On April 10, 2008, the Court appointed OPERS as lead plaintiff and approved its choice of counsel. On September 2, 2008, defendants filed motions to dismiss plaintiff's amended complaint. On November 7, 2008, the plaintiff filed a second amended complaint, which removed certain allegations against Richard Syron, Anthony Piszel, and Eugene McQuade, thereby leaving insider-trading allegations against only Patricia Cook. The second amended complaint also extends the damages period, but not the class period. The plaintiff seeks unspecified damages and interest, and reasonable costs and expenses, including attorney and expert fees. On November 19, 2008, the Court granted FHFA's motion to intervene in its capacity as Conservator. On April 6, 2009, defendants filed motions to dismiss the second amended complaint. On December 21, 2011, the plaintiff filed a notice advising the Court of a non- prosecution agreement entered into between Freddie Mac and the SEC on December 15, 2011, and stating its intention to file a motion for leave to amend its complaint. On January 23, 2012, the Court denied defendants' motions to dismiss and set a briefing schedule for plaintiff's motion for leave to amend its complaint. On February 13, 2012, plaintiff filed motion for leave to amend, which seeks leave to file a third amended complaint. At present, it is not possible for the Company to predict the probable outcome of this lawsuit or any potential impact on its business, financial condition, or results of operations. In addition, the Company is unable to reasonably estimate the possible loss or range of possible loss in the event of an adverse judgment in the foregoing matter due to the following factors, among others: the inherent uncertainty of pre-trial litigation; and the fact that the parties have not yet briefed and the Court has not yet ruled upon motions for class certification or summary judgment. In particular, absent the certification of a class, the identification of a class period, and the identification of the alleged statement or statements that survive dispositive motions, the Company cannot reasonably estimate any possible loss or range of possible loss. FREDDIE MAC: Continues to Defend "Kuriakose" Suit in New York ------------------------------------------------------------- Federal Home Loan Mortgage Corporation continues to defend itself from a putative class action lawsuit filed in a New York federal court captioned Kuriakose vs. Freddie Mac, Syron, Piszel and Cook, according to the Company's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. A putative class action lawsuit was filed against Freddie Mac and certain former officers on August 15, 2008 in the U.S. District Court for the Southern District of New York for alleged violations of federal securities laws purportedly on behalf of a class of purchasers of Freddie Mac stock from November 21, 2007 through August 5, 2008. The plaintiffs claim that defendants made false and misleading statements about Freddie Mac's business that artificially inflated the price of Freddie Mac's common stock, and seek unspecified damages, costs, and attorneys' fees. On February 6, 2009, the Court granted FHFA's motion to intervene in its capacity as Conservator. On May 19, 2009, plaintiffs filed an amended consolidated complaint, purportedly on behalf of a class of purchasers of Freddie Mac stock from November 20, 2007 through September 7, 2008. Freddie Mac filed a motion to dismiss the complaint on February 24, 2010. On March 30, 2011, the Court granted without prejudice Freddie Mac's motion to dismiss all claims, and allowed the plaintiffs the option to file a new complaint, which they did on July 15, 2011. The defendants have filed motions to dismiss the second amended consolidated complaint. On February 17, 2012, plaintiff served a motion seeking leave to file a third amended consolidated complaint based on the non-prosecution agreement entered into between Freddie Mac and the SEC on December 15, 2011. At present, it is not possible for the Company to predict the probable outcome of this lawsuit or any potential impact on its business, financial condition, or results of operations. In addition, the Company is unable to reasonably estimate the possible loss or range of possible loss in the event of an adverse judgment in the foregoing matter due to the following factors, among others: the inherent uncertainty of pre-trial litigation; the fact that the Court has not yet ruled upon the defendants' motions to dismiss the second amended complaint or plaintiffs' motion seeking leave to file a third amended complaint; and the fact that the parties have not yet briefed and the Court has not yet ruled upon motions for class certification or summary judgment. In particular, absent the certification of a class, the identification of a class period, and the identification of the alleged statement or statements that survive dispositive motions, the Company cannot reasonably estimate any possible loss or range of possible loss. FREDDIE MAC: Class Suit v. Execs Remains Dormant ------------------------------------------------ A putative class action lawsuit filed against Federal Home Loan Mortgage Corporation CEO Richard F. Syron and other executives remains dormant, according to the Company's March 9, 2012 Form 10- K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On December 15, 2008, a plaintiff filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York against certain former Freddie Mac officers and others styled Jacoby vs. Syron, Cook, Piszel, Banc of America Securities LLC, JP Morgan Chase & Co., and FTN Financial Markets. The complaint, as amended on December 17, 2008, contends that the defendants made material false and misleading statements in connection with Freddie Mac's September 2007 offering of non- cumulative, non-convertible, perpetual fixed-rate preferred stock, and that such statements "grossly overstated Freddie Mac's capitalization" and "failed to disclose Freddie Mac's exposure to mortgage-related losses, poor underwriting standards and risk management procedures." The complaint further alleges that Syron, Cook, and Piszel made additional false statements following the offering. Freddie Mac is not named as a defendant in this lawsuit, but the underwriters previously gave notice to Freddie Mac of their intention to seek full indemnity and contribution under the Underwriting Agreement in this case, including reimbursement of fees and disbursements of their legal counsel. The case is currently dormant and the Company believes plaintiff may have abandoned it. FREDDIE MAC: Class Cert. Bid in N.Y. Consolidated Suit Pending -------------------------------------------------------------- A motion for class certification in a putative consolidated class action lawsuit filed in New York remains pending, according to Federal Home Loan Mortgage Corporation 's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. By letter dated October 17, 2008, Freddie Mac received formal notification of a putative class action securities lawsuit, Mark vs. Goldman, Sachs & Co., J.P. Morgan Chase & Co., and Citigroup Global Markets Inc., filed on September 23, 2008, in the U.S. District Court for the Southern District of New York, regarding the company's November 29, 2007 public offering of $6 billion of 8.375% Fixed to Floating Rate Non-Cumulative Perpetual Preferred Stock. On January 29, 2009, a plaintiff filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York styled Kreysar vs. Syron, et al. On April 30, 2009, the Court consolidated the Mark case with the Kreysar case, and the plaintiffs filed a consolidated class action complaint on July 2, 2009. The consolidated complaint alleged that three former Freddie Mac officers, certain underwriters and Freddie Mac's auditor violated federal securities laws by making material false and misleading statements in connection with the company's November 29, 2007 public offering of $6 billion of 8.375% Fixed to Floating Rate Non-Cumulative Perpetual Preferred Stock. The complaint further alleged that certain defendants and others made additional false statements following the offering. The complaint named as defendants Syron, Piszel, Cook, Goldman, Sachs & Co., JPMorgan Securities Inc., Banc of America Securities LLC, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Morgan Stanley & Co. Incorporated, UBS Securities LLC and PricewaterhouseCoopers LLP. After the Court dismissed, without prejudice, the plaintiffs' consolidated complaint, amended consolidated complaint, and second consolidated complaint, the plaintiffs filed a third amended consolidated complaint against PricewaterhouseCoopers LLP, Syron and Piszel, omitting Cook and the underwriter defendants, on November 14, 2010. On January 11, 2011, the Court granted the remaining defendants' motion to dismiss the complaint with respect to PricewaterhouseCoopers LLP, but denied the motion with respect to Syron and Piszel. On April 4, 2011, Piszel filed a motion for partial judgment on the pleadings. The Court granted that motion on April 28, 2011. The plaintiffs moved for class certification on June 30, 2011, but withdrew this motion on July 5, 2011. The plaintiffs again moved for class certification on August 30, 2011, which motion remains pending. GOOGLE INC: Judge Allows Text-Spam Class Action to Proceed ----------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that a federal judge has rejected a request by Google to delay a potential class-action lawsuit alleging that its social apps company Slide violated a consumer protection law by sending SMS messages without the recipients' consent. Google had asked U.S. District Court Judge Yvonne Gonzalez Rogers in Oakland, Calif. to stay the lawsuit pending a decision by the Federal Communications Commission about how to interpret the Telephone Consumer Protection Act. Judge Rogers said in a written opinion that delaying the lawsuit against Google was not appropriate. "The court is not convinced that the FCC has agreed to issue a ruling, let alone issue a ruling on an expedited basis." The lawsuit -- brought by Nicole Pimental and Jessica Franklin -- alleges that Disco (Slide's group messaging app) violates the Telephone Consumer Protection Act by using an automated dialing service to send SMS messages to people without first obtaining their consent. Disco allows individuals to send group texts to up to 99 people at one time. Recipients can opt out, but can't prevent the initial message from arriving. The service also allegedly sends recipients an introductory ad informing them that they can avoid text-message charges by downloading an app. Google earlier asked for the lawsuit to be dismissed because Slide's app was not covered by the statute on the grounds that the app doesn't fit within the definition of an "automated dialing service." Google also argued that the messages were protected free speech. Judge Rogers rejected both of those arguments in March. Several weeks after that ruling, Google asked to delay the case pending an FCC review of how to apply the TCPA to text messaging. That review came about after Skype's GroupMe sought a ruling from regulators that its texting app shouldn't be considered an automated dialing service. GroupMe also argues that intermediaries such as itself should be able to rely on users' statements that the people they text have consented to receiving messages. But Ms. Pimental and Ms. Franklin successfully opposed that request, arguing that a delay would only provide Google with "a means of prolonging this litigation endlessly." GOOGLE INC: Faces Class Action Over Stock Reclassification ---------------------------------------------------------- Sean Kelly at Courthouse News Service reports that Google founders Larry Page and Sergey Brin are cementing their hold on the company through a 2-for-1 stock split that creates a nonvoting class of stock that will "preserve their voting power into perpetuity," a shareholder says in a class action in Chancery Court. Google's stock reclassification proposal gives public shareholders a dividend of non-voting Class C stock for every share of Class A stock they own. Messrs. Page and Brin, who founded Google in 1998, control the company through ownership of most of Google's Class B stock, which has 10 times the voting power of the public shares. They also will receive the 2-for-1 stock split, according to the complaint. Eight other Google directors and the company itself are named as defendants, along with Messrs. Page and Brin. Because the voting proportions will remain unchanged, the issuance of the non-voting shares will let the founders retain their "ironclad grip over company management and operations," and allow them to use the new shares to buy other companies or issue stock to employees, the complaint states. Reclassification of Google's stock "will have the same effect as a gift to the founders of billions of dollars in equity, for which they will pay nothing," the complaint states. To approve the sweetheart deal, Messrs. Page and Brin formed a "Special Committee" of Google directors, who, according to the lawsuit, "did not bargain hard with the founders to obtain anything of meaningful value in exchange for the extraordinarily valuable benefit that is being bestowed upon them." Defendant Paul Otellini, CEO of Intel, was chosen as a "disinterested" member of the Special Committee, "despite the close business ties between Intel and Google," lead plaintiff Philip Skidmore claims. In fact, Mr. Skidmore says, Google and Intel collaborated extensively on Google's Android Operating System, through the "use of the Intel Atom processor" to "re-engineer the Android Operating System up from the kernel level of coding." Mr. Skidmore claims that the "relationship goes even deeper than collaboration at the symbiotic level of microchip and operating system," in that an antitrust complaint was filed recently in California that alleges "an illegal conspiracy" between Google and Intel, "conspiring not to solicit workers employed by the other." And, "that pending litigation mirrors a previous Department of Justice investigation, which found that by no later than September 2007, Google and Intel executives agreed not to solicit each other's employees." The conflicts of interest do not stop there, according to the complaint. Perella Weinberg Partners was appointed the Special Committee's financial adviser, and, although "terms of this engagement are undisclosed, Perrella's compensation may have been contingent on the deal being reached." In short, Mr. Skidmore says, the "Special Committee's 'negotiations' were tepid, and did not approximate arm's length bargaining," receiving so-called "concessions" from the founders "that are essentially meaningless" and "no different from the status quo." A so-called Stapling Provision was "bargained for" in the negotiations between the Special Committee and Messrs. Page and Brin, which prevents them from selling their shares of Class C stock without selling voting shares as well. But this "provision is seen by analysts as nothing more than a temporary restriction almost certain to be later revised to the benefit of the Founders and leading to their further entrenchment," the complaint states. Google filed its preliminary Proxy Statement with the SEC on the reclassification of its stock in April. The complaint claims that the Proxy Statement breached the defendants' fiduciary duty of good faith and candor to Google shareholders because it is "incomplete and misleading," including the omission of details regarding compensation of the Special Committee and the financial adviser. Industry analysts and investors reacted negatively to the reclassification announcement, precipitating a more than $44 drop in the price of Google shares. Google shares were selling for around $607 on May 2. Google created its controversial dual class of stock in 2004 when the company went public and raised $1.67 billion through its IPO. The initial reason for the formation of Google's Class B stock, the founders said at the time, was to give the company "time, stability and independence," enabling it "to become an important and significant institution in the transition to public ownership." But this reclassification has no "legitimate business purpose," the complaint states, and is only a "thinly veiled effort to further entrench the Founders' voting power and control over the company." A copy of the Complaint in Brockton Retirement Board v. Page, et al., Case No. 7469 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2012/05/03/GoogleCA.pdf The Plaintiff is represented by: Robert D. Goldberg, Esq. BIGGS AND BATTAGLIA 921 N. Orange Street Wilmington, DE 19801 Telephone: (302)655-9677 E-mail: goldberg@batlaw.com - and - Jeffrey C. Block, Esq. Jason M. Leviton, Esq. Mark A. Delaney, Esq. BLOCK & LEVITON LLP 155 Federal Street Boston, MA 02110 Telephone: (617) 398-5600 E-mail: Jeff@blockesq.com Jason@blockesq.com Mark@blockesq.com IDEAL RV: Accused of Not Paying Employees' Overtime Compensation ---------------------------------------------------------------- Philip E. Poor, on behalf of himself and others similarly situated v. Mario Bana dba Ideal RV & Trailer Supply, & Nacy Bana dba Ideal RV & Trailer Supply, Doe 1 to 10, Case No. 3:12-cv-02206 (N.D. Cal.) (May 2, 2012) accuses the Defendants of unlawful payroll practice that denies Plaintiff overtime wages, in violation of the Fair Labor Standards Act. According to the lawsuit, the Plaintiff and other similarly situated employees performed services within the Defendants' usual course of business as a maintenance worker, and did not perform any work that that would exempt them from the right to be paid overtime. Mr. Poor alleges that he and members of the Class were required to work more than eight hours a day and 40 hours a week on a regular basis but were not paid the required one and one-half of their regular rates for all their overtime hours worked. Mr. Poor is a resident of San Mateo, California. He performed work as a maintenance worker for the Defendants in Redwood City, California. Ideal RV, which operates in Redwood City, provides parts and supplies and maintenance services for recreational vehicles. The Banas are the sole proprietor of Ideal RV. The Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Adam Wang, Esq. LAW OFFICES OF ADAM WANG 12 S. First Street, Suite 708 San Jose, CA 95113 Telephone: (408) 292-1040 Facsimile: (408) 416-0248 E-mail: adamqwang@gmail.com MELA SCIENCES: Securities Suit Remains Pending in New York ---------------------------------------------------------- A consolidated securities class action lawsuit against Mela Sciences, Inc., remains pending in a New York federal court, according to the Company's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On November 19, 2010, a purported securities class action complaint was filed in the U.S. District Court for the Southern District of New York, naming as defendants the Company and certain of its officers and directors, entitled Randall J. Pederson, Individually and on Behalf of All Others Similarly Situated v. MELA Sciences, Inc., Joseph V. Gulfo, Richard I. Steinhart, and Breaux Castleman, No. 7:10-cv-08774-JFM. Two similar complaints were also filed, one on December 2, 2010 and the other on January 20, 2011, in the same District Court, entitled Amy Steigman, Individually and on Behalf of All Others Similarly Situated v. MELA Sciences, Inc., Joseph V. Gulfo, Richard I. Steinhart, and Breaux Castleman, No. 7:10-cv-09024-JFM; and Martin Slove and Linda Slove, Individually and on Behalf of All Others Similarly Situated v. MELA Sciences, Inc., Joseph V. Gulfo, Richard I. Steinhart, and Breaux Castleman, No. 1:11-cv-00429-JFM. These three securities class actions were consolidated into one action on February 15, 2011, entitled In re MELA Sciences, Inc. Securities Litigation, No. 10-Civ-8774-JFM ("securities class action"). The securities class action plaintiffs assert violations of the Securities Exchange Act of 1934, alleging, among other things, that defendants made misstatements and omissions regarding the Company's product, MelaFind(R), and its prospects for FDA approval, on behalf of stockholders who purchased the Company's common stock during the period from February 13, 2009 through November 16, 2010, and seek unspecified damages. On May 2, 2011, the securities class action plaintiffs filed their amended consolidated complaint, alleging similar claims to their prior complaints. On July 29, 2011, defendants filed a motion to dismiss the consolidated amended complaint in its entirety. Plaintiff's opposition to the motion to dismiss was filed on September 23, 2011. In light of the Company's receipt of the Approvable Letter from the FDA for the MelaFind(R) PMA Application on September 22, 2011, the parties filed a stipulation on October 19, 2011 in which Plaintiff stated its intention to file a motion seeking leave to amend its complaint. Defendants withdrew the outstanding motion to dismiss the current Amended Complaint without prejudice to renew it at a later date. On November 18, 2011, Plaintiffs filed their motion for leave to amend the consolidated amended complaint. On December 18, 2011, defendants filed an opposition to Plaintiff's motion for leave to amend the consolidated amended complaint. On February 8, 2012, Plaintiffs filed their reply to defendants' opposition to the motion. The Company believes that it has meritorious defenses and intends to vigorously defend against the securities class action; however, as with any litigation, the Company cannot predict with certainty the eventual outcome of this litigation. An adverse outcome could have a material adverse effect on the Company's business and its business could be materially harmed. NEW JERSEY: Faces Suit for Delayed Medicaid Benefits to Elderly ---------------------------------------------------------------- Courthouse News Service reports that New Jersey illegally denies and delays Medicaid benefits to the elderly poor who live in nursing homes, a class action claims in Federal Court. A copy of the Complaint in LeFevere, et al. v. Velez, et al., Case No. 12-cv-_____, docketed as Doc. 14803 in Case No. 33-av-00001 on May 1, 2012 (D. N.J.), is available at: http://www.courthousenews.com/2012/05/03/NJHealth.pdf The Plaintiffs are represented by: Donald M. McHugh, Esq. MCHUGH & MACRI 49 Ridgedale Ave. East Hanover, NJ 07936 Telephone: (973) 887-4254 E-mail: donmchugh@optonline.net - and - John W. Callinan, Esq. Suite 103, 2052 Hwy 35 Wall, NJ 07719 Telephone: (732) 974-8898 E-mail: johncalinan@optonline.net - and - Rene H. Reixach, Esq. WOODS OVIATT GILMAN LLP 700 Crossroad Bldg., 2 State St. Rochester, NY 14614 Telephone: (585) 987-2858 E-mail: rreixach@woodsoviatt.com NOKIA CORPORATION: Retirees' Bid to Amend Class Suit Pending ------------------------------------------------------------ A motion for leave to further amend a complaint in a putative class action lawsuit filed on behalf of participants in the Nokia Retirement Savings and Investment Plan is pending, according to Nokia Corporation 's March 8, 2012 Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On April 19, 2010 and April 21, 2010, two individuals filed separate putative class action lawsuits against Nokia Inc. and the directors and officers of Nokia Inc., and certain other employees and representatives of the company, claiming to represent all persons who were participants in or beneficiaries of the Nokia Retirement Savings and Investment Plan (the "Plan") who participated in the Plan between January 1, 2008 and the present and whose accounts included investments in Nokia stock. The plaintiffs allege that the defendants failed to comply with their statutory and fiduciary duties when they failed to remove Nokia stock as a plan investment option. The cases were consolidated and an amended consolidated complaint was filed on September 15, 2010. The amended complaint alleges that the named individuals knew of the matters alleged in the securities case, that the matters significantly increased the risk of Nokia stock ownership, and as a result of that knowledge, the named defendants should have removed Nokia stock as a Plan investment option. The plaintiff's claims were dismissed in their entirety on September 5, 2011. The plaintiffs' motion for leave to amend their complaint a second time is pending before the Court. PARKVALE FINANCIAL: Judge Rejects Class Action Settlement --------------------------------------------------------- Patricia Sabatini, writing for Pittsburgh Post-Gazette, reports that Allegheny County Common Pleas Court Judge R. Stanton Wettick Jr. has refused to approve a settlement in a shareholder lawsuit against Parkvale Financial Corp., saying the agreement would only benefit Parkvale's directors and the plaintiff's attorneys. The proposed settlement stems from Monroeville-based Parkvale's takeover by FNB Corp. of Hermitage. The acquisition was announced in June and completed Jan. 1. The proposed class action, filed in October by Parkvale shareholders William and Jane Curnow, alleged the purchase price was too low and contained provisions that prevented better offers from other potential suitors. The suit also claimed Parkvale shareholders were given inadequate and misleading information about the merger in filings with the U.S. Securities and Exchange Commission, preventing them from casting an informed vote. In November, a tentative settlement was reached under which Parkvale made supplemental disclosures to shareholders regarding the transaction and agreed to pay plaintiff's attorney fees. The deal also barred class members from making any future claims. In his April 18 ruling, Judge Wettick said the settlement was unfair and "not within the range of possible approval" because it did not provide any benefit to shareholders nor allow each member of the class to opt out of the settlement. The agreement "is very unattractive" to Parkvale shareholders, the judge wrote. He also said it raised "serious constitutional concerns" because it did not allow an opportunity to opt out. Besides rejecting the settlement, Judge Wettick declined to certify the class action. The October complaint named Parkvale and seven directors as defendants, including former CEO Robert McCarthy, accusing them of breach of fiduciary duty and gross mismanagement by "acting to better their own personal interests" at the expense of shareholders. Plantiff attorney Jacob Goldberg -- jgoldberg@faruqilaw.com -- of Faruqi & Faruqi in Jenkintown, Pa., on May 2 declined comment on the judge's ruling. "We are discussing with our client how we are going to proceed," he said. REPUBLIC BANCORP: Unit Continues to Defend Suit in Kentucky ----------------------------------------------------------- A unit of Republic Bancorp, Inc., continues to defend a putative class action lawsuit pending in a Kentucky federal court, according to the Company's March 7, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. On August 1, 2011, a lawsuit was filed in the United States District Court for the Western District of Kentucky styled Brenda Webb vs. Republic Bank & Trust Company d/b/a Republic Bank, Civil Action No. 3:11-CV-00423-TBR. The Complaint was brought as a putative class action and seeks monetary damages, restitution and declaratory relief allegedly arising from the manner in which RB&T assessed overdraft fees. In the Complaint, the Plaintiff pleads six claims against RB&T alleging: breach of contract and breach of the covenant of good faith and fair dealing (Count I), unconscionability (Count II), conversion (Count III), unjust enrichment (Count IV), violation of the Electronic Funds Transfer Act and Regulation E (Count V), and violations of the Kentucky Consumer Protection Act, KRS Section 367, et seq. (Count VI). RB&T filed a Motion to Dismiss the case on January 12, 2012. In response, Plaintiff filed its Motion to Amend the Complaint on February 23, 2012. In Plaintiff's proposed Amended Complaint, Plaintiff acknowledges disclosure of the Overdraft Honor Policy and does not seek to add any claims to the Amended Complaint. However, Plaintiff divided the breach of contract and breach of the covenant of good faith and fair dealing claims into two counts (Counts One and Two). In the original Complaint, those claims were combined in Count One. RB&T's response to the Motion to Amend was due March 15, 2012. Management is evaluating the claims of this lawsuit and is unable to estimate the possible loss or range of possible loss, if any, that may result from this lawsuit. RB&T intends to vigorously defend this case. SAN DIEGO: Class Action Over Sept. 8 Blackout to Move Forward ------------------------------------------------------------- Morgan Lee, writing for The San Diego Union-Tribune, reports that liability issues related to the Sept. 8 blackout are back in the spotlight with the May 1 release of a federal inquiry into the cascading power failure that stretched across southernmost California and parts of Arizona and Baja California. A stalled class-action lawsuit in U.S. District Court will now move forward, with the intent of recouping money for food-spoilage losses at San Diego-area homes, restaurants and other businesses, an attorney for plaintiffs said on May 2. Separately, San Diego Gas & Electric is weighing how to proceed with thousands of outage-related claims -- totaling about $7 million -- that were filed directly with the utility. And any insurance companies that made significant payments as a result of the outage may be looking into recovering funds through negotiations, arbitration or litigation. The 151-page inquiry report, compiled by regulators of the nation's electricity grid, uncovered inadequate planning, poor monitoring and a lack of awareness about real-time conditions by various utilities and electricity-grid operators. Better procedures and communication might have prevented or minimized the September outage, the federal investigators said. Attorney Michael Rott said he will file an amended pleading in U.S. District Court within a month on behalf of people within the SDG&E service territory who lost money as a result of food spoilage during the blackout, which lasted about 12 hours for most of the region. The complaint names SDG&E, the utility for San Diego and southern Orange counties, and the Arizona Public Service Co., the utility and grid operator for the area where the outage began. Mr. Rott said he believes the claim is supported by the inquiry, which was led by the Federal Energy Regulatory Commission and the North American Electric Reliability Corp., also known as FERC and NERC. "It appears to me that everybody's got culpability -- all of the defendants, both SDG&E and APS," Mr. Rott said. "Obviously, SDG&E would like to interpret that report in a different way." On May 1, SDG&E said it was mulling its next steps after federal officials announced their findings on the blackout. The company did not provide an update as of press time on May 2. SDG&E, a Sempra Energy subsidiary, may be sheltered somewhat from liability issues. The utility delegates part of its responsibilities as a transmission system operator to the state's main grid-balancing authority, the California Independent System Operator. Arizona Public Service is its own transmission operator and grid- balancing authority. The company was cited in last week's report for inadequate planning on Sept. 8. On the insurance front, standard homeowner and business policies are unlikely to cover most losses from the outage, said Pete Moraga of the Insurance Information Network of California, a non- lobbying industry group. Homeowner policies typically cover damage from power surges but not outages, while standard business-interruption policies typically don't cover outages shorter than one or two days. The origins of the blackout began at 3:27 p.m. Sept. 8, when an APS maintenance worker at a switch yard near Yuma, Ariz., inadvertently knocked out a major transmission line feeding the San Diego region. With proper oversight, the grid should stand up to any one such failure. Instead, 7 million people were left without power. SEARS ROEBUCK: Dryer Suit Can't Proceed as Class Action ------------------------------------------------------ Terry Barnes, writing for Reuters, reports that Sears, Roebuck and Co lost a game of whack-a-mole litigation on May 1. A federal appeals court ruled that the giant retailer cannot use its win in a class action in Illinois federal court to defeat a copycat suit that later popped up in California. The case involves Sears' clothes dryers, which were advertised as "all stainless steel." Consumer Steven Thorogood, a self- described "highly educated metallurgic engineer," sued when he discovered that part of the dryer tub contained a piece of ceramic-coated steel. The steel in the drum had rusted, staining his clothes, his suit claimed. The case followed a convoluted path, making its way before the Chicago-based U.S. Court of Appeals for the 7th Circuit numerous times. The first time, the appeals court found that the suit could not be brought as a class action because few consumers were likely to have similar complaints. "One would have to have a neurotic obsession with rust stains (or be a highly imaginative class action lawyer) to worry about Sears' drum," Judge Richard Posner wrote for the three-judge panel. In response to that setback, Mr. Thorogood's lawyer Clinton Krislov -- clint@krislovlaw.com -- filed a virtually identical suit on behalf of Martin Murray, a member of the original class, and other consumers in California. On appeal in 2010, the 7th Circuit blocked that suit and others like it "so that additional Murrays wouldn't start popping up, class action complaint in hand, all over the country," Judge Posner wrote. Mr. Thorogood appealed to the Supreme Court, which in the meantime issued its 2011 ruling in Smith v. Bayer Corp, preventing federal courts from blocking state court proceedings. After accepting Mr. Thorogood's case for review, the high court removed the injunction against Mr. Murray's suit and instructed the 7th Circuit to reconsider its ruling in light of Smith v. Bayer. In its latest decision on May 1, the 7th Circuit panel found that Mr. Murray's suit must be allowed to proceed in California federal court. In Smith v. Bayer, the Supreme Court emphasized that people who were not party to a suit cannot be bound by the outcome. Mr. Murray had never heard of Mr. Thorogood's suit and never had an opportunity to opt out of it, the 7th Circuit found. Still, the panel did not back down from its criticism of the "near frivolous suit." Sears will have to turn to other arguments, such as the weight of precedent and respect that courts owe each other, the panel said. "Sears will have to tread one or more of these paths if it wants relief from this copycat class action and perhaps more such actions to come; we can't save it," Judge Posner wrote. Philip Oliss -- philip.oliss@squiresanders.com -- a Squire Sanders lawyer for Sears, said he was disappointed with the 7th Circuit's decision. He said the Smith v. Bayer ruling should not have applied because it dealt with federal courts blocking state court actions, not injunctions between federal courts. The plaintiffs' lawyer Krislov said he was pleased the litigation could now move forward in California federal court. "Customers who were told they had a stainless steel drum dryer should have received that because they paid a premium for it," he said. The case is Thorogood v. Sears, U.S. Court of Appeals for the 7th Circuit, Nos. 10-2407, 11-2133. For Thorogood: Clinton Krislov of Krislov & Associates. For Sears: Philip Oliss of Squire Sanders. SEQUENOM INC: IPO-related Suit Finally Dismissed in January ----------------------------------------------------------- A consolidated class action lawsuit challenging Sequenom, Inc.'s initial public offering was dismissed in January, according to the Company's March 9, 2012 Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. In November 2001, the Company and certain of its current or former officers and directors were named as defendants in a class action shareholder complaint filed by Collegeware USA in the U.S. District Court for the Southern District of New York (now captioned In re Sequenom, Inc. IPO Securities Litigation) Case No. 01-CV-10831. In the complaint, the plaintiffs allege that the Company's underwriters, certain of its officers and directors and the Company violated the federal securities laws because the Company's registration statement and prospectus contained untrue statements of material fact or omitted material facts regarding the compensation to be received by and the stock allocation practices of the underwriters. The plaintiffs seek unspecified monetary damages and other relief. Similar complaints were filed in the same District Court against hundreds of other public companies that conducted initial public offerings of their common stock in the late 1990s and 2000 (the IPO Cases). In October 2002, the Company's officers and directors were dismissed without prejudice pursuant to a stipulated dismissal and tolling agreement with the plaintiffs. In February 2003, the District Court dismissed the claim against the Company brought under Section 10(b) of the Exchange Act, without giving the plaintiffs leave to amend the complaint with respect to that claim. The District Court declined to dismiss the claim against the Company brought under Section 11 of the Securities Act of 1933, as amended (the Securities Act). In September 2003, pursuant to the authorization of a special litigation committee of the Company's board of directors, the Company approved in principle a settlement offer by the plaintiffs. In September 2004, the Company entered into a settlement agreement with the plaintiffs. In February 2005, the District Court issued a decision certifying a class action for settlement purposes and granting preliminary approval of the settlement subject to modification of certain bar orders contemplated by the settlement. In August 2005, the District Court reaffirmed class certification and preliminary approval of the modified settlement. In December 2006, the U.S. Court of Appeals for the Second Circuit vacated the District Court's decision certifying as class actions the six lawsuits designated as "focus cases." Thereafter the District Court ordered a stay of all proceedings in all of the lawsuits pending the outcome of plaintiffs' petition to the Second Circuit for rehearing en banc. In April 2007, the Second Circuit denied plaintiffs' rehearing petition, but clarified that the plaintiffs may seek to certify a more limited class in the District Court. Accordingly, the settlement as originally negotiated was terminated pursuant to stipulation. In February 2009, liaison counsel for plaintiffs informed the District Court that a new settlement of all IPO Cases had been agreed to in principle, subject to formal approval by the parties and preliminary and final approval by the District Court. In April 2009, the parties submitted a tentative settlement agreement to the District Court and moved for preliminary approval thereof. In June 2009, the District Court granted preliminary approval of the tentative settlement and ordered that notice of the settlement be published and mailed to class members. In October 2009, the District Court certified the settlement class in each IPO Case and granted final approval to the settlement. Thereafter, a number of shareholders filed appeals to the Second Circuit, objecting to the settlement. On January 10, 2012, the last of these shareholder appeals was dismissed with prejudice. Accordingly, the settlement is now final, all claims against the Company and its officers and directors in the IPO Cases will be dismissed with prejudice, and the Company's pro rata share of the settlement fund will be fully funded by insurance. TRUSTMARK NATIONAL: Watson Burns Files Overdraft Class Action ------------------------------------------------------------- Memphis law firm Watson Burns, PLLC and Atlanta law firm Webb, Klase & Lemond, LLC have filed a class action lawsuit against Trustmark National Bank in Shelby County, Tennessee. The suit alleges that the bank engages in improper practices in its assessment of overdraft fees on consumer checking accounts. The suit claims that Trustmark, which is headquartered in Jackson, Mississippi, has engaged in these unfair practices in order to increase the number overdraft fees imposed on consumers. The case, styled White v. Trustmark National Bank, was filed in the Thirtieth Judicial District at Memphis, Shelby County, Tennessee on April 30, 2012 and has been assigned Case No. CT-001921-12. Even though the case is filed in Tennessee it proposes a class action on behalf of Trustmark customers in Tennessee, Mississippi, Florida, and Texas. Trustmark has 186 branch offices in those four states with total assets of $9.7 billion. Trustmark has over a dozen locations in metropolitan Memphis where the case has been filed. According to the suit, Trustmark routinely enforces a policy whereby debit transactions are posted to consumer accounts in order of largest to smallest by dollar amount, even when larger charges occur days after smaller charges. This maximizes the number and amount of overdraft fees. According to the complaint, Trustmark also deducts certain transactions before debit card items, even though there is no proper reason for doing so. The complaint also addresses other practices of the bank that generate excessive overdraft fees. The complaint alleges that Trustmark could easily program its software systems to minimize insufficient funds fees without any increased cost or risk to the bank. Instead, according to the complaint, Trustmark has programmed its systems to manipulate transactions to maximize overdraft fee income. Plaintiff claims that these practices constitute breach of contract, breach of Trustmark's obligation to act in good faith and to deal fairly with customers, conversion, and unjust enrichment. The suit also claims certain practices are unconscionable. If you are a Trustmark customer, or were in the past, in Tennessee, Mississippi, Florida, or Texas and you wish to discuss this action or have any questions concerning this press release, please contact Webb, Klase & Lemond by e-mail at contact@WebbLLC.com or by calling (770) 444-9325. Webb, Klase & Lemond, LLC is a law firm that practices complex litigation with a focus on litigation arising from wrongful deprivations by corporate and government entities. Watson Burns, PLLC is a Memphis litigation firm that focuses on corporate malfeasance and personal injury law. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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