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/raid1/www/Hosts/bankrupt/CAR_Public/120809.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 9, 2012, Vol. 14, No. 157 Headlines AIR CARGO SHIPPING: Judge Awards $54.4MM to Plaintiffs' Counsel ALEXIS WHOLESALE: Recalls 6,210 Pounds of Chorizo Sausage AQUATECH LOGISTICS: Faces Class Action Over Noxious Chemical Cloud BEEBE MEDICAL: Settles Bradley Class Action for $100 Million CAREER EDUCATION: "Amador" Suit Settlement Got Final OK in April CAREER EDUCATION: Appeal in "Lilley" Class Suit Remains Pending CAREER EDUCATION: Awaits Filing of 3rd Amended "Houck" Complaint CAREER EDUCATION: Final Hearing on TPCA Suit Deal on Oct. 23 CAREER EDUCATION: Arbitration Bid in "Vasquez" Suit Pending CAREER EDUCATION: Reply Brief in "Ross" Suit Due on August 13 CAREER EDUCATION: Trial in "Surrett" Suit Set for January 2013 CAREER EDUCATION: "Wilson" Plaintiff Appeals Suit Dismissal CLECO CORP: Oral Arguments on Customer Suit Appeals on Sept. 7 EATON CORP: Scott+Scott LLP Files Shareholder Class Action EME HOMER: Appeal From Hurricane Katrina Suit Dismissal Pending FACEBOOK INC: Judge Concerned Over Sponsored Stories Suit Deal FRESH DEL MONTE: Appeal From Dismissal of Suit in Hawaii Pending FRESH DEL MONTE: Class Cert. Denial in Calif. Suit Upheld in Mar. FRESH DEL MONTE: Suit Over Extra Sweet Pineapples Remains Pending GARDEN FRESH: FSIS Lists Stores That Received Recalled Products GOLD'S GYM: Trainers File Overtime Class Action in Texas GOOGLE INC: Gets Favorable Ruling in Nexus One Class Action HUFFINGTON POST: Sued in Illinois Over Unsolicited Text Messages KAISER FOUNDATION: Workers File Overtime Class Action in Calif. NEWARK, NJ: Law Firm Mulls Suit Over Red-Light Cameras PELLA CORP: Lexington Denies Liability in C$285MM Class Action PLAYTEX PRODUCTS: Faces Class Action Over Diaper Genie Ads RADIOSHACK CORP: Faces Shareholder Class Action in New York REICHEL FOODS: Recalls 15,880 Lbs. of Ready-To-Eat Meat Products REICHEL FOODS: Recalls Dippin' Stix and Cheese Pizza Lunch Kits STRAYER EDUCATION: Appeal From "Kinnett" Suit Dismissal Pending TENAHA COUNTY, TX: Settles Class Action Over Racial Profiling TOSHIBA: Can't Sideline Retailers' LCD Price-Fixing Claims UNILEVER PLC: Faces Class Action Over Suave Hair Care Product UNITED STATES: Drought Hastens Keepseagle Settlement Payments VISA INC: NCGA Opposes Class Action Settlement Over Card Fees WEATHER CHANNEL: Faces Class Action Over Spam Text Messages WELLMARK INC: Gets Favorable Ruling in Chiropractors' Class Action XEROX CORP: Awaits Ruling in Consolidated Securities Litigation ********* AIR CARGO SHIPPING: Judge Awards $54.4MM to Plaintiffs' Counsel --------------------------------------------------------------- Jessica Dye, writing for Reuters, reports that a Brooklyn federal judge has awarded $54.4 million to plaintiffs' counsel in a class action over air cargo shipping rates, bringing the fees awarded in the antitrust case to $92.9 million. The award, the third to date in the ongoing case, was approved by U.S. District Judge John Gleeson on Aug. 2. The money will be paid to 73 firms involved in the litigation and allocated by four lead plaintiff firms -- Kaplan Fox & Kilsheimer, Labaton Sucharow, Hausfeld and Levin Fishbein Sedran & Berman. Between December 2006 and December 2011, the 73 firms spent 199,510 hours litigating the antitrust action, according to court filings. The class action was brought in 2006 on behalf of companies that purchased air cargo freight shipping services from dozens of airlines. The plaintiffs accused the airlines of participating in a global conspiracy to artificially inflate shipping prices. On Aug. 2 Judge Gleeson approved $224.4 million in new settlement payments, which included the $54.4 million fee award. That brings the total to be paid by 17 airlines to $485 million. Unlike some class actions, in which plaintiffs' counsel submit fee applications when the case is nearing a final resolution, the air cargo case has been proceeding in a piecemeal manner. The case remains ongoing against 11 other airlines. Depending on the outcome, plaintiffs and their lawyers could see the settlement funds and accompanying fee awards increase. Judge Gleeson cautioned plaintiffs' firms that if the settlement fund balloons, they may need to revisit their method for computing fees in relation to the size of the settlement fund. "In megafund cases such as this one, courts typically decrease the percentage of the fee as the size of the fund increases to avoid an unjust windfall," Judge Gleeson wrote in the Aug. 2order. Hollis Salzman, co-lead class counsel from Labaton Sucharow, called Judge Gleeson's comments "fair and sound" and based on the law and jurisdiction. Judge Gleeson is presiding over another closely watched antitrust class action -- Visa Inc and Mastercard Inc's proposed $7.2 billion settlement with retailers. The proposed settlement has already drawn objections, but, if approved, could potentially result in a fee award to plaintiffs' counsel worth hundreds of millions of dollars. The case is In re Air Cargo Shipping Services Antitrust Litigation, U.S. District Court for the Eastern District of New York, No. 06-1775. For the plaintiffs: Robert Kaplan, Gary Specks and Gregory Arenson of Kaplan Fox & Kilsheimer; Hollis Salzman, Jay Himes and Gregory Asciolla of Labaton Sucharow; Michael Hausfeld, William Butterfield and Brent Landau of Hausfeld; and Howard Sedran, Austin Cohen and Keith Verrier of Levin Fishbein Sedran & Berman. ALEXIS WHOLESALE: Recalls 6,210 Pounds of Chorizo Sausage --------------------------------------------------------- Alexis Wholesale, Inc., a Gardena, California establishment, is recalling approximately 6,210 pounds of chorizo sausage because it is misbranded in that it contains monosodium glutamate (MSG), which is not declared on the label, the U.S. Department of Agriculture's Food Safety and Inspection Service announced. The following product is subject to recall: * 10-lb. boxes of "Salvadorian Brand Chorizo" The product subject to recall bears the establishment number "EST. 44823" inside the USDA mark of inspection. This product was produced July 2-27, 2012, and was sold to a distributor in Los Angeles. The problem was discovered by FSIS personnel during a routine label review. MSG is a sub-ingredient in the chorizo spice blend and was not listed on the final product label. FSIS and the Company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks (including at restaurants) to verify recalling firms notify their customers of the recall and to ensure that steps are taken to make certain that the product is no longer available to consumers. Consumers and media with questions about the recall should contact the company's owner, Yesenia Lopez, at (310) 538-5020. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0:00 a.m. to 4:00 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. AQUATECH LOGISTICS: Faces Class Action Over Noxious Chemical Cloud ------------------------------------------------------------------ CityNews.ca reports that a $10 million class-action lawsuit has been filed on behalf of people at or near Lion Dunc Schooley Pool in St. Catharines on July 12, 2012, between 1- 8 p.m., after a chemical mix released a noxious cloud of chlorine gas. The lawsuit was filed on Aug. 2 in the Ontario Superior Court of Justice. The representative plaintiffs are 7-year-old Vanessa MacLennan and her uncle Donald MacLennan, of St. Catharines. Both were swimming at the pool when the chemical cloud was released. Doug Elliot from the Toronto law firm Roy Elliott O'Connor is representing the plaintiffs. "The people of St. Catharines should not have to wait years for this case to make its way through the courts, they should get compensation now," Mr. Elliot said. "Since liability is fairly straightforward, we hope to settle this case quickly." The lawsuit names the City of St. Catharines and Aquatech Logistics Inc., the company that allegedly improperly mixed the chemicals. It is estimated that 200 people were in the area at the time. "The gas hit me like a ton of bricks. I couldn't breathe," said representative plaintiff Donald MacLenna. "My lungs felt like they were burning. I was so sacred for my life and the lives of the children. I am haunted by the look of sheer panic on the face of one of the little girls." "I'm mostly concerned about Vanessa and the other children. The gas may affect them for the rest of their lives. It just isn't right. I had to do something about it." BEEBE MEDICAL: Settles Bradley Class Action for $100 Million ------------------------------------------------------------ Cris Barrish, writing for The News Journal, reports that Beebe Medical Center, which once employed pedophile pediatrician Earl B. Bradley, has quietly reached a massive monetary settlement in a class action lawsuit brought by his former patients against the hospital and others accused of failing to report the doctor's atrocities. Financial details of the agreement are currently confidential, but sources familiar with the negotiations told The News Journal that Beebe, mostly through its insurers, has agreed to pay more than $100 million to settle claims against the Lewes hospital. It could be more than a year, however, before trusts are established and paid to Mr. Bradley's victims, sources said. The deal will allow Beebe to avoid bankruptcy, its lead attorney said. The Medical Society of Delaware and a handful of Delaware doctors are also defendants in the lawsuits, but have not settled with the patients. Once an agreement is reached with all defendants, monetary terms will be disclosed publicly, said Bruce L. Hudson, a lawyer for the child victims. While plaintiffs' attorneys say the deal is done and was announced in open court three weeks ago, Beebe's lead attorney, Michael M. Mustokoff of Philadelphia, said non-financial matters he would not discuss still need to be resolved. "We are close but not over the goal line," Mr. Mustokoff said on Aug. 3. "Agreement has not been reached on essential terms." Mr. Mustokoff said the financial deal was not in dispute. "There is an agreement as to monetary terms but not a final settlement." Mr. Hudson, who represents dozens of Mr. Bradley's victims and said the number of patients seeking to join the class-action suit is in the hundreds, said the deal was announced during a July 13 status conference presided over by Superior Court Judge Joseph R. Slights III. Besides about two dozen attorneys representing the various parties, Beebe President Jeffrey Fried and board chairman William S. Lee, a former Superior Court judge and Republican gubernatorial candidate, were also in attendance, Mr. Hudson said. "There is a settlement and we have notified our clients," Mr. Hudson said. CAREER EDUCATION: "Amador" Suit Settlement Got Final OK in April ---------------------------------------------------------------- The California Superior Court in San Francisco entered a final judgment in April 2012 approving a settlement resolving the class action lawsuit styled Amador, et al. v. California Culinary Academy and Career Education Corporation, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On September 27, 2007, Allison Amador and 36 other current and former students of the California Culinary Academy ("CCA") filed a complaint in the California Superior Court in San Francisco. Plaintiffs plead their original complaint as a putative class action and allege four causes of action: fraud; constructive fraud; violation of the California Unfair Competition Law; and violation of the California Consumer Legal Remedies Act. Plaintiffs contend that CCA made a variety of misrepresentations to them, primarily oral, during the admissions process. The alleged misrepresentations relate generally to the school's reputation, the value of the education, the competitiveness of the admissions process, and the students' employment prospects upon graduation, including the accuracy of statistics published by CCA. On April 3, 2008, the same counsel representing plaintiffs in the Amador action filed the Adams action, captioned Adams, et al. v. California Culinary Academy and Career Education Corporation, on behalf of Jennifer Adams and several other unnamed members of the Amador putative class. The Adams action also was styled as a class action and was based on the same allegations underlying the Amador action and attempted to plead the same four causes of action pled in the Amador action. The Adams action was deemed related to the Amador action and was being handled by the same judge. The parties executed a formal settlement agreement as of November 1, 2010. On April 18, 2012, the Court issued an order granting final approval of the settlement and on April 19, 2012, the Court entered a final judgment on the settlement. On June 3, 2011, the same attorneys representing the class in the Amador action filed a separate complaint in the San Francisco County Superior Court entitled Abarca v. California Culinary Academy, Inc., et al, on behalf of 115 individuals who are opt outs in the Amador action and/or non-class members, and therefore not subject to the Amador settlement. On June 15, 2011, the same attorneys filed another action in the San Francisco County Superior Court entitled Andrade, et al. v. California Culinary Academy, Inc., et al., on behalf of another 31 individuals who are opt outs in the Amador action and/or non-class members, and therefore not subject to the Amador settlement. On August 12, 2011, plaintiffs' counsel filed a third action on behalf of five individuals who opted out of or were not parties to the Amador settlement entitled Aprieto, et al. v. California Culinary Academy. None of these three lawsuits are being prosecuted as a class action. They each allege the same claims as were previously alleged in the Amador action, plus claims for breach of contract and violations of the repealed California Education Code. The plaintiffs in these cases seek damages, including consequential damages, punitive damages and attorneys' fees. The Company has not responded to these three complaints, which have been deemed related and transferred to the same judge who has been handling the Amador case, because they have been stayed pending a ruling on the class settlement in the Amador action. Certain of the plaintiffs in these cases filed claims or received notice of the settlement and did not file claims, and therefore their individual claims will be barred. The Court held a status conference on these cases on July 17, 2012, and ordered that the cases continue to be stayed until a further status conference scheduled for September 18, 2012. Because of the many questions of fact and law that may arise as discovery and pre-trial proceedings progress, the outcome of the Abarca, Andrade and Aprieto legal proceedings is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for these actions because these matters are in their early stages and involve many unresolved issues of fact and law. Accordingly, the Company has not recognized any liability associated with these actions. CAREER EDUCATION: Appeal in "Lilley" Class Suit Remains Pending --------------------------------------------------------------- On February 11, 2008, a class action complaint, captioned Lilley, et al. v. Career Education Corporation, et al., was filed in the Circuit Court of Madison County, Illinois, naming as defendants Career Education Corporation and Sanford-Brown College, Inc. Plaintiffs filed amended complaints on September 5, 2008, and September 24, 2010. The five plaintiffs named in the amended complaint are former students who attended a medical assistant program at Sanford-Brown College located in Collinsville, Illinois. The amended class action complaint asserts claims for alleged violations of the Illinois Private Business and Vocational Schools Act, for alleged unfair conduct and deceptive conduct under the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as common law claims of fraudulent misrepresentation and fraudulent omission. In the amended complaint filed on September 24, 2010, the plaintiffs allege that the school's enrollment agreements contained false and misleading information regarding placement statistics, job opportunities and salaries and that Admissions, Financial Aid and Career Services personnel used standardized materials that allegedly contained false and/or deceptive information. Plaintiffs also allege that the school misused a standardized admissions test to determine program placement when the test was not intended for that purpose; failed to provide allegedly statutorily required loan repayment information; and misrepresented the transferability of credits. Plaintiffs seek compensatory, treble and punitive damages, disgorgement and restitution of all tuition monies received from medical assistant students, attorneys' fees, costs and injunctive relief. Defendants filed a motion to dismiss the amended complaint on October 20, 2010. On October 27, 2010, the Court granted defendants' motion with respect to plaintiffs' fraudulent omission claims. The Court denied the motion with respect to the statutory claims under the Private Schools Act and the Illinois Consumer Fraud Act and the common law fraudulent misrepresentation claim. By Order dated December 3, 2010, the Court certified a class consisting of all persons who attended Sanford-Brown College in Collinsville, Illinois, and enrolled in the Medical Assisting Program during the period from July 1, 2003, through November 29, 2010. This class consists of approximately 2,300 members. Defendants filed a petition for leave to appeal the trial court's class certification order to the Fifth District Court of Appeals. On February 10, 2011, the Fifth District Court of Appeals granted defendants' petition for leave to appeal. Oral argument was heard on the appeal on October 4, 2011. While that appeal is pending, all proceedings in the Circuit Court are stayed. No further updates were reported in the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for this action because of the inherent difficulty in assessing the appropriate measure of damages and the number of potential class members who might be entitled to recover damages, if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with this action. CAREER EDUCATION: Awaits Filing of 3rd Amended "Houck" Complaint ---------------------------------------------------------------- Career Education Corporation is awaiting the filing of a third amended complaint in the class action lawsuit captioned Kishia Houck, et al v. Career Education Corporation and International Academy of Merchandising & Design, Inc., according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On May 23, 2012, a putative class action was filed in the Circuit Court of the Thirteenth Judicial Circuit for Hillsborough County, Florida, captioned Kishia Houck, et al v. Career Education Corporation and International Academy of Merchandising & Design, Inc. Plaintiffs allege causes of action under Florida's Deceptive and Unfair Trade Practices Act and for breach of the implied covenant of good faith and fair dealing, unjust enrichment, and breach of fiduciary duty. Plaintiffs allege that defendants made a variety of misrepresentations to them, relating generally to salary and employment prospects, instructor qualifications, transferability of credits, career placement services, the reputation of the International Academy of Merchandising & Design, Inc., the value and quality of the education, the overall cost to attend the school and relevant student loan information. The putative class is defined as including all students who are or have enrolled in defendants' degree programs at its Tampa and Orlando, Florida campuses during an undetermined time period. Plaintiffs seek to recover damages and also seek declaratory and injunctive relief. On July 5, 2012, the action was removed to the U.S. District Court for the Middle District of Florida. A third amended complaint was scheduled to be filed by August 3, 2012, as stipulated by the parties. Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for this action because, among other things, the Company's potential liability depends on whether a class is certified and, if so, the composition and size of any such class as well as on an assessment of the appropriate measure of damages, if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with this action. CAREER EDUCATION: Final Hearing on TPCA Suit Deal on Oct. 23 ------------------------------------------------------------ A hearing on final approval of a settlement resolving two class action lawsuits -- Fahey, et al. v. Career Education Corporation, and Rojas, et al. v. Career Education Corporation -- is scheduled for October 23, 2012, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On August 4, 2010, a putative class action lawsuit was filed in the Circuit Court of Cook County, Illinois, by Sheila Fahey alleging that she had received an unauthorized text message advertisement in violation of the Telephone Consumer Protection Act (the "TCPA"). On September 3, 2010, the Company removed this case to the U.S. District Court for the Northern District of Illinois. On November 22, 2010, the Company filed a motion to dismiss the Fahey case. That motion is still pending. The Court has stayed any further activity on the Fahey case until resolution of an appeal in the Seventh Circuit of a case involving issues similar to those raised in the Company's motion to dismiss. The appeal has been resolved but the proceedings in Fahey remain stayed and are subject to a settlement. On August 18, 2010, the same counsel representing plaintiffs in the Fahey action filed a similar lawsuit in the U.S. District Court for the Northern District of Illinois on behalf of Sergio Rojas alleging similar violations of the TCPA based on the same text messages. Rojas, like Fahey, sought class certification of his claims. The alleged classes are defined to include all persons who received unauthorized text message advertisements from the Company as part of the International Academy of Design & Technology ("IADT") test marketing campaign. Rojas and Fahey each sought an award trebling the statutory damages to the class members, together with costs and reasonable attorneys' fees. On March 14, 2012, the Company entered into a settlement agreement with plaintiffs' counsel resolving the claims asserted in both cases. Plaintiffs' uncontested motion for preliminary approval of this settlement was granted on June 26, 2012. The Court's orders also schedule October 23, 2012, as the date for final approval of this settlement. Under the terms of the settlement agreement, the Company has agreed to pay $200 to each person who received the subject text message who can be identified and returns a valid claim form. The parties did not reach an agreement regarding the appropriate amount of legal fees to be paid to class counsel. If the parties are unable to reach an agreement on the amount of these fees, this issue will be presented separately to the Court for hearing and resolution in advance of the final approval of the settlement. Based upon the information available to the Company, it recorded a charge of $6.0 million in the fourth quarter of 2011 which represents the Company's best estimate of the loss related to these matters. CAREER EDUCATION: Arbitration Bid in "Vasquez" Suit Pending ------------------------------------------------------------ Motions to compel arbitration of plaintiffs' claims in the consolidated fraud class action lawsuit captioned Daniel Vasquez and Cherish Herndon v. California School of Culinary Arts, Inc. and Career Education Corporation are scheduled to be heard on August 10, 2012, according to Career Education Corporation's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On June 23, 2008, a putative class action lawsuit was filed in the Los Angeles County Superior Court entitled Daniel Vasquez and Cherish Herndon v. California School of Culinary Arts, Inc. and Career Education Corporation. The plaintiffs allege causes of action for fraud, constructive fraud, violation of the California Unfair Competition Law and violation of the California Consumer Legal Remedies Act. The plaintiffs allege improper conduct in connection with the admissions process during the alleged class period. The alleged class is defined as including "all persons who purchased educational services from California School of Culinary Arts, Inc. ("CSCA"), or graduated from CSCA, within the limitations periods applicable to the alleged causes of action (including, without limitation, the period following the filing of the action)." Defendants successfully demurred to the constructive fraud claim and the Court has dismissed it. Defendants also successfully demurred to plaintiffs' claims based on alleged violations of California's former Educational Reform Act. Plaintiffs' motion for class certification was denied by the Court on March 6, 2012. Plaintiffs' counsel have filed eight separate but related "multiple plaintiff actions" entitled Banks, et al. v. California School of Culinary Arts, Los Angeles County Superior Court (by 316 individuals); Abrica v. California School of Culinary Arts, Los Angeles County Superior Court (by 373 individuals); Aguilar, et al. v. California School of Culinary Arts, Los Angeles County Superior Court (by 88 individuals); Alday v. California School of Culinary Arts, Los Angeles Superior Court (by 73 individuals); Ackerman, et al. v. California School of Culinary Arts, Los Angeles County Superior Court (by 27 individuals); Arechiga, et al. v. California School of Culinary Arts, Los Angeles County Superior Court (by 60 individuals); Anderson, et al., v. California School of Culinary Arts, Los Angeles County Superior Court (by 58 individuals); and Allen v. California School of Culinary Arts, Los Angeles Superior Court (by 12 individuals). All eight cases are being prosecuted on behalf of over one thousand former students. The allegations are the same as those asserted in the Vasquez class action case. The individual plaintiffs in these cases seek compensatory and punitive damages, disgorgement and restitution of tuition monies received, attorneys' fees, costs and injunctive relief. All of these cases have been deemed related to the Vasquez class action and therefore are pending before the same judge who is presiding over the Vasquez case. Another case that has been deemed related is Choueiri, et al. v. Wells Fargo Bank, N.A., et al. Choueiri is unique among these cases as it involves a complaint by Wells Fargo Bank, N.A. against a former CSCA student and a co-signor, as well as a cross-complaint by those defendants and another cross- complainant against Wells Fargo Bank, N.A., that also names the school defendants as cross-defendants. On June 15, 2012, pursuant to a stipulation by the parties, the plaintiffs filed a consolidated amended complaint in the Vasquez action consolidating all nine of the separate actions. Defendants' response to the consolidated complaint was filed on July 13, 2012. The Court has lifted the stay on actions that were consolidated and the parties are now engaged in discovery. Defendants have also filed motions to compel arbitration of plaintiffs' claims. Those motions are scheduled to be heard on August 10, 2012. Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of these legal proceedings is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for these actions because the Company's possible liability depends on an assessment of the appropriate measure of damages, if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with these actions. CAREER EDUCATION: Reply Brief in "Ross" Suit Due on August 13 ------------------------------------------------------------- Career Education Corporation and other defendants' reply brief with respect to their motion to dismiss a securities class action lawsuit captioned Ross, et al. v. Career Education Corporation, et al., is due August 13, 2012, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On January 13, 2012, a class action complaint captioned Ross, et al. v. Career Education Corporation, et al., was filed in the United States District Court for the Northern District of Illinois, naming the Company and various individuals as defendants and claiming that the defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") by making material misstatements in and omitting material information from the Company's public disclosures concerning its schools' job placement rates and its compliance with accreditation policies. The complaint further claimed that the individual defendants violated Section 20(a) of the Exchange Act by virtue of their positions as control persons of the Company. Plaintiff asks for unspecified amounts in damages, interest, and costs, as well as ancillary relief. On March 23, 2012, the Court appointed KBC Asset Management NV, the Oklahoma Police Pension & Retirement Systems, and the Oklahoma Law Enforcement Retirement System, as lead plaintiffs in the action. On May 3, 2012, lead plaintiffs filed a consolidated amended complaint, asserting the same claims alleged in the initial complaint, and naming the Company and one current and one former executive officer as defendants. Lead plaintiffs seek damages on behalf of all persons who purchased the Company's common stock between February 19, 2009, and November 21, 2011. Defendants filed their motion to dismiss on June 4, 2012, and plaintiffs' filed their opposition to the motion to dismiss on July 23, 2012. Defendants' reply brief is due on August 13, 2012. Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for this action because of the inherent difficulty in assessing the appropriate measure of damages and the number of potential class members who might be entitled to recover damages, if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with this action. CAREER EDUCATION: Trial in "Surrett" Suit Set for January 2013 -------------------------------------------------------------- Trial in the class action lawsuit titled Surrett, et al. v. Western Culinary Institute, Ltd. and Career Education Corporation is scheduled for January 14, 2013, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On March 5, 2008, a complaint was filed in Portland, Oregon, in the Circuit Court of the State of Oregon in and for Multnomah County naming defendants Western Culinary Institute, Ltd. and Career Education Corporation. Plaintiffs filed the complaint individually and as a putative class action and alleged two claims for equitable relief: violation of Oregon's Unlawful Trade Practices Act ("UTPA") and unjust enrichment. Plaintiffs filed an amended complaint on April 10, 2008, which added two claims for money damages: fraud and breach of contract. Plaintiffs allege that Western Culinary Institute, Ltd. ("WCI") made a variety of misrepresentations to them, relating generally to WCI's placement statistics, students' employment prospects upon graduation from WCI, the value and quality of an education at WCI, and the amount of tuition students could expect to pay as compared to salaries they may earn after graduation. WCI subsequently moved to dismiss certain of plaintiffs' claims under Oregon's UTPA; that motion was granted on September 12, 2008. On February 5, 2010, the Court entered a formal Order granting class certification on part of plaintiff's UTPA and fraud claims purportedly based on omissions, denying certification of the rest of those claims and denying certification of the breach of contract and unjust enrichment claims. The class consists of students who enrolled at WCI between March 5, 2006, and March 1, 2010, excluding those who dropped out or were dismissed from the school for academic reasons. Plaintiffs filed a Fifth Amended Complaint on December 7, 2010, which included individual and class allegations by Mr. Surrett. Class notice was sent on April 22, 2011, and the opt-out period expired on June 20, 2011. The class consists of approximately 2,330 members. They are seeking tuition refunds, interest and certain fees paid in connection with their enrollment at WCI. Defendants have filed a motion asking the Court to enforce its prior order certifying a class that excludes individuals who were academically ineligible to graduate from WCI, and which includes approximately 300 additional individuals who do not belong in the class because they were dismissed for violating WCI's attendance policies. Hearing on that motion was scheduled for August 3, 2012. The parties are currently engaged in merits discovery. WCI's motion to compel arbitration of Surrett's claims, for summary judgment and to decertify the class was denied by the Court. WCI also recently filed a motion to compel arbitration of claims by class members who signed enrollment agreements containing express class action waiver provisions, and that motion is currently under submission. Trial is scheduled for January 14, 2013. Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for this action because of the inherent difficulty in assessing the appropriate measure of damages and the number of class members who might be entitled to recover damages, if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with this action. CAREER EDUCATION: "Wilson" Plaintiff Appeals Suit Dismissal ----------------------------------------------------------- The plaintiff in the class action lawsuit captioned Wilson, et al. v. Career Education Corporation has appealed the dismissal of his case to the United States Court of Appeals for the Seventh Circuit, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On August 11, 2011, Riley Wilson, a former Admissions Representative based in Minnesota, filed a complaint in the United States District Court for the Northern District of Illinois. The two-count complaint asserts claims of breach of contract and unjust enrichment arising from the Company's decision to terminate its Admissions Representative Supplemental Compensation Plan. In addition to his individual claims, Wilson also seeks to represent a nationwide class of similarly situated Admissions Representatives who also were affected by termination of the plan. On October 6, 2011, the Company filed a motion to dismiss the complaint. On November 25, 2011, Wilson moved for class certification and appointment of class counsel, but briefing on that issue and all discovery were stayed pending a decision on the motion to dismiss. On April 13, 2012, the Court granted the Company's motion to dismiss in its entirety and dismissed plaintiff's complaint for failure to state a claim. The Court dismissed this action with prejudice on May 14, 2012. On June 11, 2012, plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Seventh Circuit appealing the final judgment of the trial court. Plaintiffs' appellate brief is due on August 30, 2012, the Company's response is due on October 12, 2012, and plaintiffs' reply is due on October 30, 2012. No hearing date for the appeal has been set. Because plaintiff has filed a notice of appeal, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of potential loss, if any, for this action. Accordingly, the Company has not recognized any liability associated with this action. CLECO CORP: Oral Arguments on Customer Suit Appeals on Sept. 7 -------------------------------------------------------------- The Louisiana Supreme Court has scheduled oral arguments for September 7, 2012, in connection with appeals in class action lawsuits filed by customers against a subsidiary of Cleco Corporation, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On March 9, 2010, a complaint was filed in the 27th Judicial District Court of St. Landry Parish, State of Louisiana, on behalf of three Cleco Power customers in Opelousas, Louisiana. The complaint alleges that the Company's subsidiary, Cleco Power LLC, overcharged the plaintiffs by applying to customers in Opelousas the same retail rates as Cleco Power applies to all of its retail customers. The plaintiffs claim that Cleco Power owes customers in Opelousas more than $30.0 million as a result of the alleged overcharges. The plaintiffs allege that Cleco Power should have established, solely for customers in Opelousas, retail rates that are separate and distinct from the retail rates that apply to other customers of Cleco Power and that Cleco Power should not collect from customers in Opelousas the storm surcharge approved by the Louisiana Public Service Commission ("LPSC") following hurricanes Katrina and Rita. Cleco Power currently operates in Opelousas pursuant to a franchise granted to Cleco Power by the City of Opelousas in 1986 and an operating and franchise agreement dated May 14, 1991, pursuant to which Cleco Power operates its own electric facilities and leases and operates electric facilities owned by the City of Opelousas. In April 2010, Cleco Power filed a petition with the LPSC appealing to its expertise in declaring that the ratepayers of Opelousas have been properly charged the rates that are applicable to Cleco Power's retail customers and that no overcharges have been collected. In addition, Cleco Power removed the purported class action lawsuit filed on behalf of Opelousas electric customers from the state court to the U.S. District Court for the Western District of Louisiana in April 2010, so that it could be properly addressed under the terms of the Class Action Fairness Act. On May 11, 2010, a second class action lawsuit was filed in the 27th Judicial District Court for St. Landry Parish, State of Louisiana, repeating the allegations of the first complaint, which was submitted on behalf of 249 Opelousas residents. Cleco Power has responded in the same manner as with the first class action lawsuit. In September 2010, the federal court remanded both cases to the state court in which they were originally filed for further proceedings. In January 2011, the presiding judge in the state court proceeding ruled that the jurisdiction to hear the two class actions resides in the state court and not with the LPSC as argued by both Cleco and the LPSC Staff. Both Cleco and the LPSC Staff appealed this ruling to the Third Circuit Court of Appeals for the State of Louisiana (Third Circuit). In September 2011, the Third Circuit denied both appeals. In October 2011, both Cleco and the LPSC appealed the Third Circuit's ruling to the Louisiana Supreme Court. In November 2011, the Louisiana Supreme Court granted the appeals and remanded the case to the Third Circuit for further briefing, argument, and opinion. In February 2011, the administrative law judge (ALJ) in the LPSC proceeding ruled that the LPSC has jurisdiction to decide the claims raised by the class action plaintiffs. At its December 2011 Business and Executive Session, the LPSC adopted the ALJ's recommendation that Cleco be granted summary judgment in its declaratory action finding that Cleco's ratepayers in the City of Opelousas have been served under applicable rates and policies approved by the LPSC and Cleco's Opelousas ratepayers have not been overcharged in connection with LPSC rates or ratemaking. On January 30, 2012, the class action plaintiffs filed their appeal of such LPSC decision to the 19th Judicial District Court for Baton Rouge Parish, State of Louisiana. On February 15, 2012, the Third Circuit ruled that the State Court, and not the LPSC, has jurisdiction to hear the case. On March 15, 2012, Cleco Power appealed the Third Circuit's ruling to the Louisiana Supreme Court asking that it overturn the Third Circuit decision and confirm the LPSC's exclusive jurisdiction over this matter. The LPSC also appealed the Third Circuit's ruling to the Louisiana Supreme Court in March 2012. On May 18, 2012, the Louisiana Supreme Court granted the writ application of Cleco Power and the LPSC and set the matter for further briefing on the merits of the jurisdiction question raised in the writ application. Cleco Power expects such briefing to be completed during the third quarter of 2012 and the Louisiana Supreme Court has scheduled oral arguments for September 7, 2012. In view of the uncertainty of the claims, management is not able to predict or give a reasonable estimate of the possible range of liability, if any, of these claims. However, if it is found that Cleco Power overcharged customers resulting in a refund, any such refund could have a material adverse effect on the Company's results of operations, financial condition, and cash flows. EATON CORP: Scott+Scott LLP Files Shareholder Class Action ---------------------------------------------------------- On August 3, 2012, Scott+Scott LLP filed a securities class action complaint against Eaton Corporation, the Company's President and Chief Executive Officer, and certain of its executives in the United States District Court for the Northern District of Ohio. The lawsuit alleges violations of the Securities Exchange Act of 1934 and was filed on behalf of all purchasers of common stock of Eaton between August 9, 2009 and June 4, 2012, inclusive. In general, the complaint alleges that Eaton issued false and misleading statements concerning its executives' involvement in a scheme to improperly influence a Mississippi state court judge in litigation the Company had initiated against rival manufacturer Frisby Aerospace, Inc. (the "Eaton-Frisby Litigation"). More specifically, the complaint alleges that Eaton managers knew, but repeatedly caused Eaton to deny, that Eaton had engaged Mississippi attorney Ed Peters, a politically connected go- between, to improperly influence Bobby DeLaughter, the presiding judge in the Eaton-Frisby Litigation. Judge DeLaughter later recused himself from the Eaton case when he became embroiled in an unrelated lawsuit involving high-powered Mississippi attorney Richard Scruggs. Judge DeLaughter was sentenced to 18 months in prison after admitting he lied to FBI agents about conversations he had with Peters in the Scruggs case. Judge Swan Yerger, who replaced Judge DeLaughter, subsequently dismissed Eaton's lawsuit against Frisby after deciding there was "clear and convincing" evidence that Eaton had hired Peters to secretly influence Judge DeLaughter. On May 31, 2012, Eaton's CEO and senior executives filed affidavits with the court, which admitted that Eaton had failed to turn over records showing that Eaton had improperly, and possibly illegally, attempted to influence Judge DeLaughter. On this news, Eaton shares declined $3.10, or 7.2%, to close at $40.24 on June 1, 2012. If you purchased or otherwise acquired the common stock of Eaton during the Class Period, you may move the Court no later than October 2, 2012 to serve as lead plaintiff. Any member of the investor class may move the Court to serve as lead plaintiff through counsel of its choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action or have questions concerning this notice or your rights, please contact: Michael Burnett, Esq. Scott+Scott LLP E-mail: mburnett@scott-scott.com Telephone: (800) 404-7770 (860) 537-5537 Web site: http://www.scott-scott.com for more information. There is no cost or fee to you. Scott+Scott is a class action law firm in the United States, with offices in New York, Connecticut, Ohio and California. The firm prosecutes major securities, antitrust and employee retirement plan class action lawsuits. The firm represents pension funds, foundations, individuals and other entities worldwide. EME HOMER: Appeal From Hurricane Katrina Suit Dismissal Pending --------------------------------------------------------------- An appeal from the dismissal of a class action lawsuit related to Hurricane Katrina and involving the parent of EME Homer City Generation L.P. remains pending, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. In March 2012, the federal district court in Mississippi dismissed, in its entirety, the purported class action complaint filed by private citizens in May 2011, naming a large number of defendants, including Homer City's parent company Edison Mission Energy ("EME"), for damages allegedly arising from Hurricane Katrina. In April 2012, the plaintiffs filed an appeal with the Fifth Circuit Court of Appeals. Plaintiffs allege that the defendants' activities resulted in emissions of substantial quantities of greenhouse gases that have contributed to climate change and sea level rise, which in turn are alleged to have increased the destructive force of Hurricane Katrina. The lawsuit alleges causes of action for negligence, public and private nuisance, and trespass, and seeks unspecified compensatory and punitive damages. The claims in this lawsuit are nearly identical to a subset of the claims that were raised against many of the same defendants in a previous lawsuit that was filed in, and dismissed by, the same federal district court where the current case has been filed. FACEBOOK INC: Judge Concerned Over Sponsored Stories Suit Deal -------------------------------------------------------------- Krystal Peak, writing for VatorNews, reports that a U.S. District Court judge still holds concerns regarding the settlement Facebook created over privacy concerns with its "Sponsored Stories" feature. Judge Richard Seeborg on Aug. 2 listened to the details of a settlement Facebook had penned with plaintiffs in a suit dealing with the company's popular Sponsored Stories and how they are displayed in a user's feed. The five plaintiffs, which are trying to represent more than 100 million members in a class-action suit, believe that by displaying their likeness and pages they had liked for the purpose of Sponsored Stories advertisements, Facebook was violating their privacy. Sponsored Stories seemed to be the silver-lining in the dismal Facebook Q2 earnings report last week, earning $1 million a day and with great potential for growth. Sponosored Stories essentially look at what you and your friends are doing online (reading, posting, liking, checking into) and uses those actions to offer very related and tailored ads. One example would be if 3 of your friends checked into a Starbucks and that was in your news feed, an advertiser might take that feed notification and package it as an ad so that it looked like a friend update but also had verbiage or a coupon like an ad. Back in May, when this case was last discussed the parties agreed to a $20 million deal that would see Facebook give $10 million to charity and pay $10 million for legal fees. "That doesn't make any sense to me," Judge Seeborg said on Aug. 2 after hearing the details of the settlement, according to Reuters. Judge Seeborg was unsure why Facebook was paying $20 million for $123 million in value, and asked the parties why the social network isn't providing the plaintiffs in the case with any monetary damages. Usually, plaintiffs would get a bulk of the settlement, and the settlement would be far closer to the true value than this is. With Judge Seeborg still expressing concern on the settlement, it looks like a final decision won't occur for more months. Under the deal, which settles a year-old lawsuit, Facebook is agreeing to give its adult users the right to limit how the social-networking site uses their faces in ads for its Sponsored Stories product and minors can completely opt-out. Michael Rhodes, Facebook's attorney, said it was a valuable settlement to Facebook users. He said Facebook doesn't have to make any concession, but is settling after factoring in the additional risks of litigation. FRESH DEL MONTE: Appeal From Dismissal of Suit in Hawaii Pending ---------------------------------------------------------------- In 1997, plaintiffs from Costa Rica and Guatemala named certain of Fresh Del Monte Produce Inc.'s U.S. subsidiaries in a purported class action in Hawaii. On June 28, 2007, plaintiffs voluntarily dismissed the Company's U.S. subsidiaries named in the action without ties to Hawaii. At a hearing held on June 9, 2009, the court granted summary judgment in favor of the Company's remaining U.S. subsidiaries with ties to Hawaii, holding that the claims of the remaining plaintiffs are time-barred. A final judgment dismissing all remaining claims and terminating the action was entered on July 28, 2010. On August 24, 2010, plaintiffs filed a notice of appeal. The appeal is fully briefed and remains pending. No further updates were reported in the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2012. FRESH DEL MONTE: Class Cert. Denial in Calif. Suit Upheld in Mar. ----------------------------------------------------------------- Denial of class certification in a consolidated class action lawsuit commenced in California was upheld in March 2012, Fresh Del Monte Produce Inc. disclosed in its July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2012. On March 5, 2004, an alleged individual consumer filed a putative class action complaint against certain of the Company's subsidiaries in the state court of Tennessee on behalf of consumers who purchased (other than for resale) Del Monte Gold(R) Extra Sweet pineapples in Tennessee from March 1, 1996 to May 6, 2003. The complaint alleges violations of the Tennessee Trade Practices Act and the Tennessee Consumer Protection Act. On February 18, 2005, the Company's subsidiaries filed a motion to dismiss the complaint. On May 15, 2006, the court granted the motion in part, dismissing plaintiffs' claim under the Tennessee Consumer Protection Act. Between March 17, 2004, and March 18, 2004, three alleged individual consumers separately filed putative class action complaints against the Company and certain of its subsidiaries in the state court of California on behalf of residents of California who purchased (other than for re-sale) Del Monte Gold(R) Extra Sweet pineapples between March 1, 1996, and May 6, 2003. On November 9, 2005, the three actions were consolidated under one amended complaint with a single claim for unfair competition in violation of the California Business and Professional Code. On September 26, 2008, plaintiffs filed a motion to certify a class action. On August 20, 2009, the court denied class certification. On October 19, 2009, plaintiffs filed a notice of appeal of the court's order denying class certification. On February 29, 2012, the oral argument hearing on the appeal was held. On March 7, 2012, the appeal was rejected and the denial of class certification was upheld. FRESH DEL MONTE: Suit Over Extra Sweet Pineapples Remains Pending ----------------------------------------------------------------- On April 19, 2004, an alleged individual consumer filed a putative class action complaint against Fresh Del Monte Produce Inc.'s subsidiaries in the state court of Florida on behalf of Florida residents who purchased (other than for re-sale) Del Monte Gold(R) Extra Sweet pineapples between March 1, 1996, and May 6, 2003. The only surviving claim under the amended complaint alleges violations of the Florida Deceptive and Unfair Trade Practices Act relating only to pineapples purchased since April 19, 2000. The Company's subsidiaries filed an answer to the surviving claim on October 12, 2006. On August 5, 2008, plaintiffs filed a motion to certify a class action. The Company's subsidiaries filed an opposition on January 22, 2009, to which plaintiffs filed a reply on May 11, 2009. On November 29, 2011, the court denied the motion to certify a class action. No further updates were reported in the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2012. GARDEN FRESH: FSIS Lists Stores That Received Recalled Products --------------------------------------------------------------- The U.S. Department of Agriculture's Food Safety and Inspection Service disclosed that certain stores in various states received meat and poultry salad products that have been recalled by Garden Fresh Foods. The FSIS says the list of store locations may not include all retail locations that have received the recalled product or may include retail locations that did not actually receive the recalled product. Therefore, the FSIS says, it is important that consumers use the product-specific identification information available at http://is.gd/KCamZO,in addition to the list of retail stores, to check meat and poultry salad products in the consumers' possession to see if they have been recalled. Nationwide, State-Wide, or Area-Wide Distribution ------------------------------------------------- Retailer Name Location ------------- -------- Cermak Fresh Market Stores in greater Chicago, IL area and Cermak Produce Coborn's Stores throughout MN, ND, and SD Festival Foods Stores throughout WI Jewel Foods Stores throughout IL, IN, IA Marsh Supermarket Stores throughout IN and OH Sentry Stores throughout WI Super 1 Stores throughout MI, MN, ND, and WI SuperValu Stores throughout MI, WI Target All stores nationwide Weis Stores throughout MD, NJ, NY, PA & WV Specific Store-Wide Distribution (Stores and Location) ------------------------------------------------------ Retailer Name City and State ------------- -------------- Valli Produce Arlington Heights, Illinois Edmar Foods Grocery Store Bensenville, Illinois A & G Chicago, Illinois Family Fruit Market Chicago, Illinois Pete's Produce W 87th St., Chicago, Illinois Pete's Produce E 87th Stt., Chicago, Illinois Crete County Market Crete, Illinois Joseph's Marketplace Crystal Lake, Illinois Dixmoor Fruit & Meat Market Dixmoor, Illinois Elgin Fresh Market Mcclean Blvd., Elgin, Illinois Elgin Fresh Market Summit St., Elgin, Illinois Cub Foods Freeport, Illinois Valli Produce Glendale Heights, Illinois Valli Produce Hoffman Estates, Illinois Valli Produce Loves Park, Illinois Produce World Morton Grove, Illinois H Mart Naperville, Illinois Fresh Farms Int'l Market Niles, Illinois H Mart Niles, Illinois Produce World Norridge, Illinois Main Street Meat Company Roscoe, Illinois Village Market Place Skokie, Illinois Westbrook Grocery Store Westmont, Illinois Wisted's Supermarket Woodstock, Illinois Pat's Foods Calumet, Michigan Jubilee IGA Foods Crystal Falls, Michigan Elmer's County Market Escanaba, Michigan Pat's Foods Hancock, Michigan Festival Foods Houghton, Michigan Angeli's Central Market Iron River, Michigan Jubilee IGA Foods 2nd St., Ishpeming, Michigan Jubilee IGA Foods Hwy. 41, Ishpeming, Michigan Pat's Foods L'Anse, Michigan Angeli's County Market Menominee, Michigan Bob's IGA Munising, Michigan Mac's Red Owl Newberry, Michigan Pat's Foods Ontonagon, Michigan U Save Ontonagon, Michigan Fazer Foods Spalding, Michigan Cub Foods Brooklyn Center, Minnesota Jerry's Foods Eden Prairie, Minnesota Woodland Marketplace Foods International Falls, MN Teal's Market Milaca, Minnesota Village Market Deli Prior Lake, Minnesota Cub Foods Rogers, Minnesota Schutz Family Foods Deli Sleepy Eye, Minnesota Cub Foods St. Louis Park, Minnesota Dehmer's Meat Market St. Michael, Minnesota Cashwise Bismarck, North Dakota Cashwise Fargo, North Dakota Marketplace Foods Minot, North Dakota Kramers County Market Abbotsford, Wisconsin A-F County Market Adams, Wisconsin Niemuth's Southside Market Appleton, Wisconsin Athens IGA Athens, Wisconsin Viking Express Market Baraboo, Wisconsin Church Street Market Berlin, Wisconsin Burnstad's BI River Falls, Wisconsin Murf's Frozen Custard Brookfield, Wisconsin Sendiks Market West Capital, Brookfield, WI Sendiks Market North 124th, Brookfield, WI Grasch Foods Inc-Deli Dept. Brookfield, Wisconsin Marchant's Foods Inc. Brussels, Wisconsin Gooseberries Fresh Market Burlington, Wisconsin Main Street Market Denmark, Wisconsin Trigs Eagle River, Wisconsin Edgar IGA Edgar, Wisconsin Frank's County Market Elkhorn, Wisconsin Fish Creek General Store Fish Creek, Wisconsin Austin's Original Green Bay, Wisconsin Mason's Red Owl Green Bay, Wisconsin Webster Avenue Market Green Bay, Wisconsin Rueben's County Market Hartford, Wisconsin Hillsboro County Market Hillsboro, Wisconsin Gilbert's Foods Hortonville, Wisconsin Iola IGA Iola, Wisconsin Piggly Wiggly Jackson, Wisconsin Frank's County Market Jefferson, Wisconsin Haen Meat Packing Inc Kaukauna, Wisconsin Ojibwe Market Lac Du Flambeau, Wisconsin Stodolas IGA Luxemburg, Wisconsin Cub Foods Nakoosa Trail, Madison, WI Cub Foods Mineral Point, Madison, WI La Portes Food Market Manitowish Waters, Wisconsin Piggly Wiggly Manitowoc, Wisconsin Angeli's County Market Marinette, Wisconsin Curry's IGA Marinette, Wisconsin Medford County Market Medford, Wisconsin Snows Family Market IGA Mercer, Wisconsin Dave's County Market Merrill, Wisconsin Mancl's IGA Milladore, Wisconsin Sendiks Market North Downer, Milwaukee, WI Sendiks Market W Brown Deer, Milwaukee, WI Kaul's Mini Store Milwaukee, Wisconsin Save More IGA Foods Minocqua, Wisconsin Trigs Minocqua, Wisconsin Hansen's IGA Neillsville, Wisconsin Wheatland Convenience Center New Munster, Wisconsin Thompson County Market Oconto, Wisconsin Lee's Family Foods Peshtigo, Wisconsin Prentice IGA Prentice, Wisconsin Viking Village Reedsburg, Wisconsin Trigs Rhinelander, Wisconsin Ed's IGA Rib Lake, Wisconsin Burnstad's Richland Center, Wisconsin Quality Foods IGA Schofield, Wisconsin Sharon Supermart Sharon, Wisconsin Shawano Country Store Shawano, Wisconsin Piggly Wiggly Slinger, Wisconsin Trigs Stevens Point, Wisconsin Foodland Sturgeon Bay, Wisconsin Burnstad's Tomah, Wisconsin Nelsons County Market Tomahawk, Wisconsin Stoneridge Mart Waukesha, Wisconsin Crossroads County Market Wausau, Wisconsin Quality Foods IGA Wausau, Wisconsin Quality Foods IGA Wausau, Wisconsin Trigs Wausau, Wisconsin Kd's IGA Weyawega, Wisconsin Zinke Village Market Wisconsin Dells, Wisconsin Quality Foods IGA Grand, Wisconsin Rapids, WI Quality Foods IGA Baker, Wisconsin Rapids, WI Dick's Family Foods Wrightstown, Wisconsin GOLD'S GYM: Trainers File Overtime Class Action in Texas -------------------------------------------------------- Courthouse News Service reports that Gold's Gym International stiffed trainers ("membership consultants") for overtime after buying Spectrum Clubs, according to a federal class action. A copy of the Complaint in Lay, et al. v. Spectrum Clubs, Inc., et al., Case No. 12-cv-00754 (W.D. Tex.), is available at: http://www.courthousenews.com/2012/08/06/Golds.pdf The Plaintiffs are represented by: Lawrence Morales II, Esq. THE MORALES FIRM, P.C. 115 E. Travis, Suite 1530 San Antonio, TX 78205 Telephone: (210) 225-0811 E-mail: lawrence@themoralesfirm.com GOOGLE INC: Gets Favorable Ruling in Nexus One Class Action ----------------------------------------------------------- Gavin Broady, writing for Law360, reports that Google Inc. and HTC Corp. on Aug. 2 once again escaped a pair of California- consolidated breach of warranty class actions accusing the companies of making promises about the Nexus One phone's high- speed Internet capabilities that the phone could not deliver. Judge Edward J. Davila granted Google and HTC's motion to dismiss the suit -- which was previously tossed in August 2011. HUFFINGTON POST: Sued in Illinois Over Unsolicited Text Messages ---------------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that in a federal class action, a woman claims the Huffington Post bombards people with text-message news alerts at all hours, despite their repeated requests to stop it. Lead plaintiff Alicia St. Leger sued TheHuffingtonPost.com. Ms. St. Leger says she signed up for the Huffington Post's "Daily Brief," expecting to receive one text message a day, with a summary of breaking news. Instead, she got multiple text messages a day, which were charged to her wireless text plan. She says Huffington Post ignored her repeated requests to unsubscribe. "In an effort to increase viewership and revenue, Huffington Post, the proprietor of the well-known news Web site www.huffingtonpost.com, encourages visitors to its Web site to subscribe to receive 'daily' news alerts in the form of 'text message' calls to their cellular phones. Once subscribed, defendant floods consumers' cellular phones with multiple text message calls every day, frequently transmitting unwanted text messages at all hours of the day and night," the complaint states. "Frustrated with defendant's delivery of excessive automated text message calls (hereinafter, 'wireless spam'), plaintiff and members of the putative class opted out of receiving further wireless spam from Huffington Post. Despite this, defendant has continued to transmit wireless spam to plaintiff and other consumers throughout the nation long after they have opted out from receiving any text message calls from Huffington Post." She adds: "Unlike more conventional communications, unsolicited telephone calls to cellular telephones frequently cost recipients money because cell phone users like plaintiff must pay their respective wireless service providers either for each text message call they receive or else incur a usage allocation deduction to their text plan for each call they receive, regardless of whether or not the call is authorized." Ms. St. Leger claims she made numerous efforts to remove herself from the Daily Brief subscription list. "Plaintiff repeatedly replied 'Stop' to the sender of the text messages, to no avail. Unable to discontinue the messages by replying to the message, plaintiff resorted to attempting to contact defendant through other channels to unsubscribe from receiving the text messages," the complaint states. She says she e-mailed several addresses listed on the Huffington Post's Web site, and contacted AOL, the Huffington Post's parent company. "Despite having expressly informed defendant (and defendant's parent company) on multiple occasions to discontinue the transmission of text messages to her cellular phone, defendant continues to send plaintiff multiple unsolicited text messages to her phone at virtually all hours of the day," Ms. St. Leger says. Ms. St. Leger seeks an injunction, costs and class damages for violations of the Telephone Consumer Protection Act. A copy of the Complaint in St. Leger v. TheHuffingtonPost.com, Inc., Case No. 12-cv-06138 (N.D. Ill.), is available at: http://www.courthousenews.com/2012/08/06/Huff%20Post.pdf The Plaintiff is represented by: Bradley M. Baglien, Esq. Evan M. Meyers, Esq. Bradley M. Baglien, Esq. EDELSON MCGUIRE, LLC 350 North LaSalle Street 13th Floor Chicago, IL 60654 E-mail: emeyers@edelson.com bbaglien@edelson.com Telephone: (312) 589-6370 KAISER FOUNDATION: Workers File Overtime Class Action in Calif. --------------------------------------------------------------- Courthouse News Service reports that Kaiser Foundation Hospitals stiff hourly workers for overtime and make them work off the clock, a class action claims in Los Angeles Superior Court. NEWARK, NJ: Law Firm Mulls Suit Over Red-Light Cameras ------------------------------------------------------ Paul Milo, writing for NewarkPatch, reports that a Roseland law firm is planning to file a class-action lawsuit on behalf of those who have received tickets for running red lights at most of the intersections in the state where there are red light cameras, one of the firm's lawyers said last week. "The statute that was promulgated requires that the cameras be inspected and certified. The state Department of Transportation suspended intersections in 21 towns because they weren't doing this," said David Paris of Paris, Ackerman and Schmierer. "Here we have the state basically saying these towns were not in compliance." In June, the state Department of Transportation ordered that the issuance of tickets at 63 of the 85 intersections with red light cameras be suspended because questions arose over whether the timing of the lights had been properly calibrated and the results properly certified. The legislation governing red light cameras requires municipalities to test the duration of yellow lights every six months based on a formula incorporating the average speed motorists travel when approaching a particular intersection. In late July, the state deemed all cameras in compliance, including all 19 in Newark, where the red light camera program began in 2009. Altogether, 21 of 25 communities with red light cameras had been affected by the suspension. The cameras have led to other lawsuits in New Jersey and elsewhere in the country, often on constitutional grounds, Mr. Paris said. His firm, however, plans to take a different tack, arguing that since there had been doubt over whether violations had actually occurred at the time tickets were being issued, those tickets should never have been issued in the first place. "If they want to right the ship now, more power to them," Mr. Paris said. "But you can't apply this retroactively." The firm has already filed on behalf of individuals ticketed in Newark, Edison and several other communities, and is seeking plaintiffs in Roselle Park, Wayne, Jersey City and Springfield, Paris said late last week. The firm aims to have clients in every town where cameras were suspended within the next few weeks, then plans on asking a judge to certify a class. "Our class is based on unjust enrichment. The state and the communities have unlawfully benefitted," Mr. Paris said, adding that the firm will seek financial relief as well as remedies to ensure that testing and certification be conducted appropriately. The potential size of the class is huge: in Newark alone in 2010, the city collected $3 million in fines, $85 at a time. City officials did not respond to questions e-mailed last week, but earlier this summer, when the suspensions were first announced, traffic engineer Jack Nata told The Star Ledger that Newark's cameras and intersections had been properly tested. After getting certifications from Newark since 2008, the state had only this year notified the city about problems in the way the certifications had been worded, Mr. Nata also said. PELLA CORP: Lexington Denies Liability in C$285MM Class Action -------------------------------------------------------------- Juan Carlos Rodriguez, writing for Law360, reports that the Lexington Insurance Co. on Aug. 2 said it has no responsibility to defend or indemnify window and door maker Pella Corp. in the company's fight against a C$285 million Canadian class action alleging its products are susceptible to condensation, wood rot and leaks. According to its complaint, filed in Iowa federal district court, Lexington said the types of violations alleged in the Canadian lawsuit do not meet the definition of an "occurrence" under the umbrella, excess and commercial general liability policies Pella has with the insurer. PLAYTEX PRODUCTS: Faces Class Action Over Diaper Genie Ads ---------------------------------------------------------- Linda Chiem, writing for Law360, reports that Playtex Products LLC was hit with a proposed class action on July 31 in California federal court alleging it deceived consumers by falsely claiming its Diaper Genie disposal products were proven to be the best at controlling odor, in violation of unfair competition laws. The suit follows rival diaper pail maker Munchkin Inc.'s win against Playtex last month in a federal jury trial over the same alleged false claims and deceptive advertising of Playtex's Diaper Genie II and Diaper Genie II Elite products. RADIOSHACK CORP: Faces Shareholder Class Action in New York ----------------------------------------------------------- Max Stendahl, writing for Law360, reports that RadioShack Corp. was hit with a putative class action in New York federal court alleging it lied to shareholders about the prospects for a new smartphone-focused business model that sacrificed more profitable consumer electronics sales. The company and CEO James Gooch made a series of false statements between July 2011 and July 2012 lauding the new strategy, which focused on reselling Verizon Wireless phones at kiosks in Target stores, according to the July 30 suit by shareholder David Fidel. REICHEL FOODS: Recalls 15,880 Lbs. of Ready-To-Eat Meat Products ---------------------------------------------------------------- Reichel Foods, a Rochester, Minnesota establishment, is recalling approximately 15,880 pounds of ready-to-eat meat and poultry products due to possible contamination with Listeria monocytogenes, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products subject to recall include: * 5.6 oz. packages of "Armour Active Packs Turkey & Cheese Wrap" Package Code 1026090112 or Case Code 27815-17994 * 5.6 oz. packages of "Armour Active Packs Ham & Cheese Wrap" Package Code 1026090112 or Case Code 27815-17995 All the products were produced between July 23, 2012, and July 26, 2012, and have a "sell by" date of September 1, 2012. The packages bear the establishment number "P-19941" or "Est. 19941" inside the USDA mark of inspection. The products were shipped to distribution centers in Indiana, Minnesota, Pennsylvania, and Texas. When available, the retail distribution list will be posted on FSIS' Web site at: http://www.fsis.usda.gov/FSIS_Recalls/Open_Federal_Cases/index.asp The problem was discovered by the establishment, through microbiological testing by a third party. FSIS and the Company have not received reports of illnesses due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. Consumers and media with questions about the recall should contact Karin Grzanek of Reichel Foods at (866) 372-2609. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0:00 a.m. to 4:00 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. REICHEL FOODS: Recalls Dippin' Stix and Cheese Pizza Lunch Kits --------------------------------------------------------------- Reichel Foods, Inc. of Rochester, Minnesota, is voluntarily recalling a limited amount of Dippin' Stix Sliced Apples & Caramel with Peanuts and Armour Active Packs Cheese Pizza Lunch Kits because they have the potential to be contaminated with Listeria monocytogenes, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. No illnesses have been reported to date. Product was distributed to retail and convenience stores throughout the United States. The products subject to recall are: * 2.75 oz. single serve trays of Dippin' Stix Apples & Caramel with Peanuts. The affected case code dates are 09/01/12, 09/02/12, and 09/03/12. The affected single serve tray code dates are USE BY 01SEP2012, USE BY 02SEP2012, and USE BY 03SEP2012. * 5.6 oz. packages of "Armour Active Packs Cheese Pizza" Package Code 1026090112 or Case Code 27815-17996. The problem was discovered through microbiological testing by Reichel Foods. The company has not received reports of illnesses due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. Consumers who have purchased any products with the code dates listed above should dispose of this product immediately or return it to the place of purchase for a full refund. Consumers with questions may contact Reichel Foods at (866) 372-2609 (7:00 a.m. to 4:30 p.m. Central Standard Time) or visit the Company Web site at http://www.reichelfoods.com/ STRAYER EDUCATION: Appeal From "Kinnett" Suit Dismissal Pending --------------------------------------------------------------- An appeal from the dismissal of the class action lawsuit styled Kinnett v. Strayer Education, Inc., et al., remains pending, according to the Company's July 31, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. On October 15, 2010, a putative securities class action was filed in the United States District Court for the Middle District of Florida. On March 20, 2012, the Court granted the Company's motion to dismiss the complaint for failure to state a claim, and an appeal of that decision is pending in the Eleventh Circuit Court of Appeals. A shareholder derivative action alleging similar facts was filed in the Circuit Court of Fairfax County, Virginia, which action was voluntarily dismissed by nonsuit on June 12, 2012. The Company believes these lawsuits are without merit and will contest them vigorously. While the outcome of any legal proceeding cannot be predicted with certainty, the Company does not expect these matters will have a material effect on its financial condition or results of operations. TENAHA COUNTY, TX: Settles Class Action Over Racial Profiling ------------------------------------------------------------- Danny Robbins, writing for The Associated Press, reports that a small East Texas town and the county where it's situated will implement procedures aimed at stopping racial profiling to settle a class action lawsuit that accuses former officials of shaking down innocent motorists for cash, according to documents filed in federal court late on Aug. 3. Tenaha and Shelby County have agreed to an "impartial policing policy" that will better document and monitor traffic stops to settle the suit, which brought national attention to the town of 1,160 near the Louisiana border when it was filed four years ago. The suit accuses former District Attorney Lynda Kaye Russell and four other ex-law enforcement officials of forcing motorists, most of them black, to forfeit their cash or face criminal charges. The filings on Aug. 3 show that the defendants, including the city and the county as well as the named individuals, also have agreed to pay the plaintiffs' legal fees of $520,000. The 2011 ruling by U.S. District Judge T. John Ward granting class certification limited the case to injunctive and declaratory relief. The plaintiffs' attorneys said they were pleased by the far- reaching nature of the proposed settlement. "I'm not aware of any law enforcement agencies that operate with these types of safeguards," said Tim Garrigan, a Nacogdoches attorney who worked on the case with the American Civil Liberties Union. The attorney representing Ms. Russell in the lawsuit didn't immediately respond to messages from AP on Aug. 3. The suit contends that a drug enforcement program established in Tenaha in 2006 was actually a scheme to threaten innocent motorists with money laundering charges if they didn't agree to sign over their cash under civil asset forfeiture proceedings. The traffic stops occurred on U.S. Highway 59, which runs from the U.S.-Mexico border to Canada and is known as a major drug trafficking route. The AP reported last October that more than $800,000 was collected from the stops in less than a year and that, in some instances, motorists who fit the profile of drug traffickers received leniency in exchange for agreeing to forfeit their cash. The Aug. 3 filings state that the defendants deny violating the plaintiffs' constitutional rights but agree to dozens of procedures directed at making sure future traffic stops and searches aren't impacted by racial profiling and other violations or motorists' rights. The documents detail a number of preventive measures, including audio and video recordings of all traffic stops. In addition, any money collected through future asset forfeitures can only be used for audio and video equipment, law enforcement training or donations to nonprofits dedicated to mental health, rehabilitation services or victims' rights, according to the filings. The measures would apply to all law enforcement in Tenaha and Shelby County except the sheriff's office, which isn't part of the suit or the settlement, plaintiff attorneys said. Shelby County Judge Rick Campbell said Friday that approving the settlement was a "business decision" for the county, which is bound by the agreement even though it wasn't named in the original complaint. "The county is between a rock and a hard place," he said. "If you fight this, it could cost $1 million. It was in our best interest, because of the dollars, to settle the case." The traffic stops remain under investigation by the Department of Justice's civil rights division. They are also part of an ongoing probe in which federal authorities in Texas are investigating a Tenaha constable who is alleged to have secretly bugged the offices of other officials involved in the scheme. TOSHIBA: Can't Sideline Retailers' LCD Price-Fixing Claims ---------------------------------------------------------- Lorraine Bailey at Courthouse News Service reports that Toshiba, LG and other electronic giants cannot sideline a retailer's claims over their admitted LCD price-fixing conspiracy, a federal judge ruled, showing little sympathy for the companies that recently settled a related consumer class action for a record $1.1 billion. Toshiba, LG, AU Optronics and seven other manufacturers of liquid crystal display screens settled the largest antitrust class action in history for $1.1 billion last month. Those settlement funds will be distributed among consumers who bought laptops and flat screen televisions between January 1999 and December 2006. But the deal does not cover electronics retailers that have also accused the same defendants of a long- running price-fixing conspiracy. In refusing to decertify the class of electronics retailers, U.S. District Judge Susan Illston in San Francisco said that the admitted conspiracy directly affected the U.S. economy. The manufacturers tried to sideline claims from Massachusetts- based Tweeter Home Entertainment Group, but Judge Illston upheld most of its claims last week. Though Massachusetts has a four-year statute of limitations for antitrust claims, and Tweeter undisputedly filed its complaint after that clock ran out, Judge Illston noted that Tweet had first participated in the direct-purchaser class action before opting out in January 2011. Tweeter then pursued its claims through the indirect-purchaser class action until the amended complaint excluded resellers like Tweeter in 2008, the judge found. These actions tolled the statute of limitations, according to the court. "Even assuming the IPPs intended to represent a class of only end- users, this intention was not readily apparent to any other party who may have relied upon the suit because the plain language of the class definition clearly included 'all persons and entities' who were indirect purchasers," Judge Illston wrote, abbreviating indirect purchaser plaintiffs. Since NEC Corp. and its subsidiaries were not defendants in the indirect-purchaser class action, however, Tweeter cannot sue those entities now, the judge found. A copy of the Order Denying Defendants' Joint Motion to Dismiss; Granting NEC's Motion to Dismiss in In re: TFT-LCD (Flat Panel) Antitrust Litigation, Case No. 07-md-01827 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/08/06/optronics.pdf UNILEVER PLC: Faces Class Action Over Suave Hair Care Product ------------------------------------------------------------- Sean McLernon, writing for Law360, reports that a pair of disgruntled consumers lodged a putative class action in Illinois federal court on Aug. 1 against Unilever PLC over one of its Suave brand hair care products, claiming the company misled consumers regarding a treatment that they say causes unwanted significant hair loss upon use. Lead plaintiffs Sidney Reid and Angel Lake said they purchased Unilever's Suave Professionals Keratin Infusion 30 Day Smoothing Kit to help control the curl and frizz in their hair. UNITED STATES: Drought Hastens Keepseagle Settlement Payments ------------------------------------------------------------- Indian Country reports that payments made under the Keepseagle settlement will be sped up because of the drought gripping much of the U.S., attorneys for the Keepseagle claimants announced on Aug. 1. The Keepseagle v. Vilsack class action lawsuit, brought by American Indian farmers and ranchers against the U.S. Department of Agriculture for discrimination in loan-program administration, was settled in 2010 for $680 million in cash awards, plus an additional $80 million in debt relief, for a total monetary relief of $760 million. The acceleration applies to the category of settlement payments with a cap of $50,000, known as Track A, the attorneys' media release stated. Track B's limit was $250,000 per award but required more documentation and processing time. Now the Track A payments will be expedited instead of having to wait for the Track B claims to be processed, the release said. Track A claim determinations will now be mailed out by August 29, Keepseagle Settlement lead counsel Joseph Sellers, of Cohen Milstein Sellers & Toll PLLC, said in the attorneys' statement. In addition, successful claimants who owe outstanding debt to the USDA farm loan program will also be entitled to debt relief, the release said. The Track B claim determinations and the debt- relief details for Track A will be mailed out by October 2012. "The U.S. District Court for the District of Columbia approved a modification to the schedule for distributing relief after hearing from the claimants in the $680 million Keepseagle Settlement and the USDA," the media release stated. "Both parties cited the ongoing drought impacting many farmers and ranchers as cause for expediting claims relief." Two thirds of the U.S. is under drought, the worst and most extreme since the 1950s, according to the USDA's Drought Monitor. Ranchers and farmers alike are affected. "We want to applaud the USDA for joining the plaintiffs in asking the court to allow the early release of funds to many of the Native American farmers and ranchers eligible to receive settlement payments. Given the hardship many face from the severe and ongoing drought, earlier distribution of these funds is particularly important," Mr. Sellers said in the statement. VISA INC: NCGA Opposes Class Action Settlement Over Card Fees ------------------------------------------------------------- National Cooperative Grocers Association on Aug. 3 disclosed it will reject the recently proposed $7.25 billion class action settlement with Visa Inc., MasterCard Inc., and several major banks. The settlement was offered in response to antitrust litigation alleging unfair practices by credit card and debit card issuers, including charging billions in noncompetitive "swipe" or "interchange" fees to retailers across the country. NCGA is named as one of the plaintiffs in the lawsuit. "When NCGA signed onto this action, we did so in the interest of consumer fairness and in support of industry transparency," said Robynn Shrader, chief executive officer of NCGA. "This settlement falls short of providing true reform in the system by continuing to allow credit card issuers and credit card networks to exploit retailers and consumers without risk of repercussion." For years, retailers have been forced to pay non-competitive fees, which average about 2 percent of the price of a purchase. Over the last seven years, credit card issuers have charged retailers $350 billion in fees. The proposed settlement includes a $6.05 billion payment for alleged past damages as well as a temporary reduction in swipe fees for 8 months that is valued at 1.2 billion. The proposed settlement would allow for individual retailers to charge fees directly to consumers who wish to use credit cards or debit cards, a scenario NCGA rejects as a way to pass the burden to retailers of collecting non-competitive fees from consumers. The practice of surcharging is an inadequate solution to the broader problem of swipe fees. The settlement also does not limit credit card issuers and credit card networks from hiking related fees in the future, and if accepted, would protect credit issuers from future lawsuits. NCGA urges other retailers to reject the proposed settlement and push for a revised settlement that holds credit card issuers accountable, ensures competition in the market and encourages innovation in payment systems. National Cooperative Grocers Association (NCGA), founded in 1999, is a business services cooperative for retail food co-ops located throughout the United States. WEATHER CHANNEL: Faces Class Action Over Spam Text Messages ----------------------------------------------------------- Courthouse News Service reports that The Weather Channel bombards people with spam text messages even after being asked to stop, a class action claims in Federal Court. A copy of the Complaint in Rossell v. The Weather Channel, LLC, Case No. 12-cv-04098 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/08/06/WeatherChannel.pdf The Plaintiff is represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 E-mail: dcparisi@parisihavens.com shavens@parisihavens.com WELLMARK INC: Gets Favorable Ruling in Chiropractors' Class Action ------------------------------------------------------------------ Jessica M. Karmasek, writing for Legal Newsline, reports that the Iowa Supreme Court mostly upheld a lower court's ruling in favor of the state's largest health insurer. The plaintiffs in the lawsuit, a group of chiropractors, alleged that defendant Wellmark Inc. employed preferred provider arrangements in an "unlawfully discriminatory and anticompetitive manner" in violation of statutory insurance provisions and state antitrust laws. In its July 27 opinion, the state's high court affirmed in part, reversed in part and remanded the decision of the Polk County District Court. In their putative class action, the chiropractors alleged they have been "victimized" by Wellmark's "discriminatory practices." In particular, they claimed Wellmark wrongfully imposes restrictions and pays lower rates for chiropractic services than for equivalent services offered by medical doctors or osteopathic physicians. They alleged that the insurer not only has violated various insurance regulatory statutes, but also has engaged in unlawful conspiracy and monopolization in violation of the Iowa Competition Law. Wellmark's business consists of selling health insurance plans to employer groups and providing administrative services to assist others who provide health insurance coverage, such as self-funded governmental entity plans. It is one of a dozen health insurers in the state, but retains the largest market share. In this case, the district court granted Wellmark's motion to dismiss claims brought under Iowa's insurance regulatory statutes because no private cause of action is provided therein. In its ruling, the state Supreme Court affirmed that ruling. "The proper forum for raising alleged violations of those regulatory statutes is through administrative proceedings in the Iowa Division of Insurance," Justice Thomas D. Waterman wrote in the Court's 38-page opinion. Second, the district court granted Wellmark's motion for summary judgment on plaintiffs' antitrust claims based on the "state action" exemption found in state code. The Court reversed in part, saying the summary judgment record fails to establish the challenged conduct falls within the exception. Third, the lower court granted summary judgment on claims alleging Wellmark breached its obligations under a judicially approved national class action settlement in Love v. Blue Cross Blue Shield Association. The settlement is the only alleged anticompetitive conduct not approved by the state insurance commissioner. The Court affirmed that decision, concluding the record "contains no evidence" that the insurer's implementation of the Love settlement violated the state's Competition Law. The Court also affirmed summary judgment on several specific antitrust claims, and remanded the remaining claims and defenses for "further proceedings." "Plaintiffs' resistance challenged only the admissibility and competency of Wellmark's affidavits. Plaintiffs conceded Wellmark uses the statutory definition of 'chiropractic' in its provider forms," Justice Waterman noted. "Plaintiffs identified no evidence to avoid summary judgment on these claims." XEROX CORP: Awaits Ruling in Consolidated Securities Litigation --------------------------------------------------------------- Xerox Corporation is still awaiting a ruling on its motion for summary judgment in a consolidated securities law action pending in Connecticut, according to the Company's July 31, 2012, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. A consolidated securities law action (consisting of 17 cases) is pending in the United States District Court for the District of Connecticut. The matter is captioned In re Xerox Corporation Securities Litigation. Defendants are the Company, Barry Romeril, Paul Allaire and G. Richard Thoman. The consolidated action is a class action on behalf of all persons and entities who purchased Xerox Corporation common stock during the period October 22, 1998, through October 7, 1999, inclusive ("Class Period") and who suffered a loss as a result of misrepresentations or omissions by Defendants as alleged by Plaintiffs (the "Class"). The Class alleges that in violation of Section 10(b) and/or 20(a) of the Securities Exchange Act of 1934, as amended ("1934 Act"), and SEC Rule 10b-5 thereunder, each of the defendants is liable as a participant in a fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of the Company's common stock during the Class Period by disseminating materially false and misleading statements and/or concealing material facts relating to the defendants' alleged failure to disclose the material negative impact that the April 1998 restructuring had on the Company's operations and revenues. The complaint further alleges that the alleged scheme: (i) deceived the investing public regarding the economic capabilities, sales proficiencies, growth, operations and the intrinsic value of the Company's common stock; (ii) allowed several corporate insiders, such as the named individual defendants, to sell shares of privately held common stock of the Company while in possession of materially adverse, non-public information; and (iii) caused the individual plaintiffs and the other members of the purported class to purchase common stock of the Company at inflated prices. The complaint seeks unspecified compensatory damages in favor of the plaintiffs and the other members of the purported class against all defendants, jointly and severally, for all damages sustained as a result of defendants' alleged wrongdoing, including interest thereon, together with reasonable costs and expenses incurred in the action, including counsel fees and expert fees. In 2001, the Court denied the defendants' motion for dismissal of the complaint. The plaintiffs' motion for class certification was denied by the Court in 2006, without prejudice to refiling. In February 2007, the Court granted the motion of the International Brotherhood of Electrical Workers Welfare Fund of Local Union No. 164, Robert W. Roten, Robert Agius ("Agius") and Georgia Stanley to appoint them as additional lead plaintiffs. In July 2007, the Court denied plaintiffs' renewed motion for class certification, without prejudice to renewal after the Court holds a pre-filing conference to identify factual disputes the Court will be required to resolve in ruling on the motion. After that conference and Agius' withdrawal as lead plaintiff and proposed class representative, in February 2008 plaintiffs filed a second renewed motion for class certification. In April 2008, defendants filed their response and motion to disqualify Milberg LLP as a lead counsel. On September 30, 2008, the Court entered an order certifying the class and denying the appointment of Milberg LLP as class counsel. Subsequently, on April 9, 2009, the Court denied defendants' motion to disqualify Milberg LLP. On November 6, 2008, the defendants filed a motion for summary judgment. Briefing with respect to the motion is complete. The Court has not yet rendered a decision. The parties also filed motions to exclude the testimony of certain expert witnesses. On April 22, 2009, the Court denied plaintiffs' motions to exclude the testimony of two of defendants' expert witnesses. On September 30, 2010, the Court denied plaintiffs' motion to exclude the testimony of another of defendants' expert witnesses. The Court also granted defendants' motion to exclude the testimony of one of plaintiffs' expert witnesses, and granted in part and denied in part defendants' motion to exclude the testimony of plaintiffs' two remaining expert witnesses. The Company and the individual defendants deny any wrongdoing and are vigorously defending the action. At this time, the Company does not believe it is reasonably possible that it will incur additional material losses in excess of the amount it has already accrued for this matter. In the course of litigation, the Company periodically engages in discussions with plaintiffs' counsel for possible resolution of this matter. Should developments cause a change in the Company's determination as to an unfavorable outcome, or result in a final adverse judgment or a settlement for a significant amount, there could be a material adverse effect on the Company's results of operations, cash flows and financial position in the period in which such change in determination, judgment or settlement occurs. ********* 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter Chapman at 240/629-3300. * * * End of Transmission * * *