/raid1/www/Hosts/bankrupt/CAR_Public/120822.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, August 22, 2012, Vol. 14, No. 166
Headlines
ALPHA NATURAL: Faces Class Action Over Massey Energy Merger
ALTERNATE ENERGY: Oct. 31 Class Settlement Fairness Hearing Set
AMERICAN CLEANERS: Sued Over Undisclosed Environmental Surcharge
APPLE INC: IBM's Bid to Quash Subpoena in Class Action Granted
ARCAPITA BANK: Customers to File Class Action Over Bankruptcy
BI-LO: Recalls Cranberry Nut Antioxidant Blend Trail Mix
BMO: Defrauded Investors Launch Class Action
CHEMED CORP: Amended Securities Class Suit Pending in Ohio
CHEMED CORP: Appeal in "Santos" Suit vs. VITAS Remains Pending
CHEMED CORP: "Morangelli" Unpaid Wages Suit Remains Pending
CHEVRON CORP: May Face Class Action Over Refinery Fire
CIOLINO PRODUCE: Alerts White Mushroom Consumers of Listeria Risk
DALE T. SMITH: FSIS Lists Stores That Received Recalled Products
DELL INC: Woman Files Class Action Over Alleged TCPA Violation
DIEBOLD INC: Still Defends "LMPERS" Shareholder Suit in Ohio
DREYER'S GRAND ICE: Loses Bid to Nix Mislabeling Class Action
ECOLAB INC: Continues to Defend Wage and Hour Class Suits
ECOLAB INC: COREXIT(R)-Related Suits vs. Nalco Still Pending
ECOLAB INC: Hearing on Deepwater Horizon Suit Deals on Nov. 8
ECOLAB INC: Merger-Related Suit Settlement Approved in June
FELTEX: Tony Gavigan Essential to Class Action, Lawyer Says
FIFTH-THIRD BANK: Faces Class Action Over Payday Loans
IMPERIAL HOLDINGS: Investors Want Class Action Dismissed
JMP GROUP: Continues to Defend Securities Class Action Suit
JOHNSON & JOHNSON: 2nd Amended Suit vs. McNeil Dismissed in July
JOHNSON & JOHNSON: Awaits Class Cert. Bid Hearing in "Field" Suit
JOHNSON & JOHNSON: Reconsideration Bid in "Monk" Suit Denied
JOHNSON & JOHNSON: Continues to Defend Suits Related to AWP
JOHNSON & JOHNSON: Defends Consumer Suits Over Pelvic Mesh Device
JOHNSON & JOHNSON: Nursing Home Residents Suit Dismissed in March
JOHNSON & JOHNSON: OCD Awaits Ruling on Plaintiffs' Cert. Bid
LAKESIDE BANK: Sued Over Collection of Excessive Overdraft Fees
LIME ENERGY: Wolf Haldenstein Commences Class Action in Illinois
MINNESOTA: Creation of Sex Offender Task Force Ordered
PURE HOTHOUSE: Recalls 11,402 Cases of Fresh Cut Grilling Trays
REAL MEX: FSIS Lists Stores That Received Recalled Products
ROCK-TENN CO: Smurfit-Stone Acquisition Litigation Now Concluded
SEI INVESTMENTS: Awaits Order on Bid to Dismiss ETF-Related Suit
SMITH BARNEY: Judges Tosses Most of Fund Fee Class Action Claims
STONE MOUNTAIN, GA: Sued Over Speed Detection Devices
TIME WARNER: Appeal From Dismissal of "Fink" Suit Still Pending
TIME WARNER: Appeal From Set-Top Cable MDL Dismissal Pending
TIME WARNER: Reached Agreement to Settle "Swinegar" Suit in May
TIME WARNER: Still Defends "Downs" Suit vs. Insight in Kentucky
TIME WARNER: Time to Appeal in "Brantley" Suit Not Expired Yet
UNIVERSITY MEDICAL CENTER: Faces Overtime Class Action
ZYNGA INC: Faces More Securities Class Action Suit in California
*********
ALPHA NATURAL: Faces Class Action Over Massey Energy Merger
-----------------------------------------------------------
Megan Stride, writing for Law360, reports that Alpha Natural
Resources Inc. on Aug. 16 removed to West Virginia federal court a
putative securities class action brought by Massey Energy Co.
shareholders who allege Alpha misrepresented production problems
at a coal mine to artificially prop up its stock price before its
$7.1 billion purchase of Massey.
Lead plaintiff Olivia Niitsoo lodged the suit in state court on
July 13.
ALTERNATE ENERGY: Oct. 31 Class Settlement Fairness Hearing Set
---------------------------------------------------------------
The Rosen Law Firm, P.A. on Aug. 17 disclosed that the United
States District Court for the District of Idaho has approved the
following announcement of a proposed class action settlement that
would benefit purchasers of common stock of Alternate Energy
Holdings, Inc.:
SUMMARY NOTICE OF CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED THE PUBLICLY-TRADED COMMON STOCK OF
ALTERNATE ENERGY HOLDINGS, INC. DURING THE PERIOD FROM OCTOBER 23,
2006 THROUGH DECEMBER 14, 2010, INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the District of Idaho, that a hearing will be
held on October 31, 2012 at 3:00 p.m. before the Honorable B. Lynn
Winmill, United States District Judge of the District of Idaho,
550 W Fort St., Boise, ID 83724 for the purpose of determining:
(1) whether the proposed Settlement consisting of the sum of
$450,000 should be approved by the Court as fair, reasonable, and
adequate; (2) whether the proposed plan to distribute the
settlement proceeds is fair, reasonable, and adequate; (3) whether
the application for an award of attorneys' fees of one-third of
the Settlement amount and reimbursement of expenses of not more
than $15,000 should be approved; and (4) whether the Litigation
should be dismissed with prejudice.
If you purchased common stock of Alternate Energy Holdings, Inc.
during the class period from October 23, 2006 through December 14,
2010, inclusive, your rights may be affected by the Settlement of
this action. If you have not received a detailed Notice of
Pendency and Settlement of Class Action and a copy of the Proof of
Claim and Release, you may obtain copies by writing to Alternate
Energy Securities Litigation, c/o Strategic Claims Services,
Claims Administrator, P.O. Box 230, 600 North Jackson Street,
Suite 3, Media, PA 19063, or going to the Web site,
http://www.strategicclaims.net
If you are a member of the Class, in order to share in the
distribution of the Net Settlement Fund, you must submit a Proof
of Claim and Release no later than September 24, 2012,
establishing that you are entitled to recovery. Unless you submit
a written exclusion request, you will be bound by any judgment
rendered in the Litigation whether or not you make a claim. To
exclude yourself from the Class, you must submit a Request for
Exclusion to the Claims Administrator in the manner detailed in
the Notice, and postmarked no later than September 24, 2012.
Any objection to the Settlement, Plan of Allocation, or the Class
Counsel's request for an award of attorneys' fees and
reimbursement of expenses must be submitted in the manner detailed
in the Notice and mailed or delivered such that it is received by
each of the following no later than October 17, 2012:
Clerk of the Court
United States District Court
District of Idaho
550 W. Fort St.
Boise, ID 83724
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue
34th Floor
New York, NY 10016
Class Counsel
Richard A. Roth, Esq.
THE ROTH LAW FIRM, P.L.L.C.
295 Madison Avenue
22nd Floor
New York, NY 10017
Counsel for Defendant Donald L. Gillispie
If you have any questions about the Settlement, you may call or
write to Class Counsel:
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
Timothy W. Brown, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue
34th Floor
New York, NY 10116
Telephone: (212) 686-1060
Fax: (212) 202-3827
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: JULY 20, 2012
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF IDAHO
AMERICAN CLEANERS: Sued Over Undisclosed Environmental Surcharge
----------------------------------------------------------------
Joe Harris at Courthouse News Service reports that a dry-cleaning
chain conceals that it charges customers an environmental
surcharge that the law does not require, a class claims in court.
Shatonya Green says American Cleaners and Laundry, which operates
26 dry cleaners in Missouri, does not disclose the surcharge on
its coupons.
The surcharge is not imposed for any service other than dry
cleaning, according to the complaint in St. Louis County Circuit.
Ms. Green claims tiny signs in the laundries disclose the 25-cent
charge per garment, but even that is misleading for customers who
bring in two- or three-piece suits. Though these customers pay
one dry cleaning charge for the suit as a whole, they must pay the
environmental surcharge for each garment, according to the
complaint.
"By using the term 'Environmental Surcharge,' defendant intends to
convey the false and misleading impression that the 'Surcharge' is
required by law or is otherwise an official charge for the
protection of the environment," the complaint states. "However,
there is no requirement imposed by law that compels a customer of
a dry cleaner to pay an 'Environmental Surcharge,' nominal or
otherwise."
Ms. Green says the environmental surcharge represents profit for
American Cleaners.
The class consists of all customers who, within the statute of
limitations, incurred an environmental surcharge while purchasing
dry-cleaning services at American Cleaners stores in Missouri.
They want American Cleaners to end the surcharge, and pay punitive
damages for violations of the Missouri Merchandising Practices Act
and unjust enrichment.
A copy of the Complaint in Green v. American Cleaners and Laundry
Co., Inc., Case No. _____ (Mo. Cir. Ct., St. Louis Cty.), is
available at:
http://www.courthousenews.com/2012/08/17/green.pdf
The Plaintiff is represented by:
Richard S. Cornfeld, Esq.
LAW OFFICE OF RICHARD S. CORNFELD
1010 Market Street, Suite 1605
St. Louis, MO 63101
Telephone: (314) 241-5799
E-mail: rcornfeld@cornfeldlegal.com
APPLE INC: IBM's Bid to Quash Subpoena in Class Action Granted
--------------------------------------------------------------
Stewart Bishop, writing for Law360, reports that a federal judge
on Aug. 13 granted IBM Corp.'s bid to quash a subpoena in a
proposed class action alleging Apple Inc., Pixar Animation Studios
Inc., Google Inc. and others inked anti-competitive agreements not
to poach one another's engineers, ruling that information sought
by the subpoena was irrelevant.
ARCAPITA BANK: Customers to File Class Action Over Bankruptcy
-------------------------------------------------------------
Mandeep Singh, writing for Gulf Daily News, reports that scores of
people could be set to take legal action against Bahrain-based
Arcapita Bank after it filed for Chapter 11 bankruptcy in the US.
They are seeking a class action against the institution to get
their deposited funds back, which have been frozen since it filed
for bankruptcy on March 19 this year.
Around 25 customers, including private investors and businesses,
have already submitted power of attorneys (POA) to Bahraini law
firm Almoayed Chambers to file a suit in the US.
Arcapita's move to file for bankruptcy comes after it failed to
restructure a $1.1 billion (BD415 million) debt that was due for
repayment on March 28.
"We are expecting several more people, possibly as many as 200, to
come forward and issue their POAs," said Almoayed Chambers
chairman Aymen Almoayed.
"Actions are being started in four jurisdictions and are due to
include the bank, its board members, its management and possibly
the regulators.
"So far, Arcapita has at least $3,001,070,457 (more than $3bn) in
claims against it based on the publicly available bankruptcy
docket.
"This includes a $255,194,405.33 (more than $255m) claimed by the
Central Bank of Bahrain (CBB)."
Of the 25 claimants from Bahrain, 10 to 15 are businesses and the
remainder are private investors.
However, according to an Arcapita Bank claims form obtained by the
GDN, major companies, water factories, government ministries,
supermarkets, schools and contracting firms have also been
affected.
Dated August 9, the document showed the potential claims in
Bahrain ranged from $1,544 (BD583) to $661,315 (BD249,977).
The money deposited is believed to include personal savings and
inheritances.
Mr. Almoayed, a lawyer, explained Arcapita depositors in Bahrain
were stunned to receive letters from a US court last week,
requesting them to submit applications to the states to make their
claims.
"Their claims are said to be unsecured which effectively means
there is a possibility that they will not get their money back,"
he said.
"The customers say Arcapita had not been transparent with them and
failed to keep them informed of the bank's problems leading up to
the bankruptcy.
"Our forensic auditors are looking to check the records and see
who took what in the six months leading up to the bankruptcy."
Mr. Almoayed said Arcapita should pay its creditors, but at the
cost of its owners and not its depositors.
"What's more, it should be at the cost of the key management
personnel's bonuses -- past and present," he suggested.
When contacted, Arcapita requested to be sent a list of questions
by e-mail. However, an official later declined to comment, saying
they did not wish to answer the questions "in their present form".
The CBB declined to comment, but earlier said it had received a
number of inquiries about the case and was "closely monitoring
developments".
BI-LO: Recalls Cranberry Nut Antioxidant Blend Trail Mix
--------------------------------------------------------
BI-LO announced an immediate voluntary recall on Southern Home(R)
Cranberry Nut Antioxidant Blend Trail Mix sold in the 16 oz. bag
with a universal bar code (UPC) of 0788003039 and a best-by date
of March 12, 2013. The product is being recalled in the states of
Georgia, North Carolina, South Carolina and Tennessee due to a
potential, undeclared presence of soy lecithin, which is a
processed soy product. The processing reduces the content of
allergenic proteins; however, persons with a severe soy allergy
may still have serious reactions to the reduced protein found in
the soy lecithin.
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm316049.htm
The recall is being initiated out of an abundance of caution for
customer safety, though the Company has received no reports of
illness associated with product consumption. The issue was
reported to BI-LO by a customer.
"We encourage consumers in possession of the recalled item to
immediately discard the product or bring it back to their local
BI-LO," said Allen Reavis, BI-LO's vice president of grocery. "As
part of the company's Satisfaction Guarantee, customers who have
purchased the product may visit their neighborhood store to
request a full refund."
To receive the refund, individuals must present proof of purchase
through a receipt or the product packaging label.
Customers with questions about the recalled product may contact
BI-LO's consumer relations department at 1-800-862-9293. Hours of
operation are Monday-Friday from 8:00 a.m. - 6:00 p.m., and
Saturday from 8:00 a.m. - 5:00 p.m. Eastern Time.
BMO: Defrauded Investors Launch Class Action
--------------------------------------------
Katie Keir, writing for Advisor.ca, reports that from 1999 to
April 2002, Salim Damji -- who claimed to have invented a new
teeth-whitening product for Colgate -- defrauded investors out of
approximately $77 million.
And he used BMO accounts to deposit and transfer the stolen funds.
It's alleged the bank knowingly assisted Mr. Damji; according to
the Ontario Superior Court's decision documents, it was aware the
funds were fraudulent and/or failed to investigate them upon
receipt. These accusations are unproven.
In 2002, Mr. Damji was arrested and sentenced to seven-and-a-half
years in prison. But, a court appointed receiver hasn't been able
to recover the stolen money over the past decade.
As a result, the fraudster's victims are launching a class-action
suit against BMO for assisting his breach of trust. Court
officials declined to certify the proposed class action this past
April, but revised their decision yesterday after receiving a
revamped litigation plan and proof the plaintiff will be able to
withstand trial.
They say the case meets all conditions and granted its approval.
BMO claims the case was filed too late and is an abuse of process
-- since another similar case was brought against it in 2008 --
were dismissed.
Alnassir Pardhan, the plaintiff, is pursuing three causes of
action: knowing assistance, receipt and negligence. He's asking
for $50 million in damages and $5 million for punitive damages.
CHEMED CORP: Amended Securities Class Suit Pending in Ohio
----------------------------------------------------------
Plaintiffs' amended securities class action complaint against
Chemed Corporation is pending in Ohio court, according to the
Company's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On January 12, 2012, the Greater Pennsylvania Carpenters Pension
Fund filed a putative class action lawsuit in the United States
District Court for the Southern District of Ohio against the
Company, Kevin McNamara, David Williams, and Timothy O'Toole. On
April 9, 2012, the Court issued orders (a) renaming the lawsuit as
In re Chemed Corp. Securities Litigation, Civil Action No. 1:12-
cv-28 (S.D. Ohio), (b) appointing the Greater Pennsylvania
Carpenters Pension Fund and the Electrical Workers Pension Fund,
Local 103, I.B.E.W. as Lead Plaintiffs; and (c) approving Lead
Plaintiffs' selection of Labaton Sucharow LLP and Robbins Geller
Rudman & Dowd LLP as Co-Lead Counsel. On June 18, 2012, Lead
Plaintiffs filed an amended complaint alleging violation of
Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-
5 against all Defendants, and violation of Section 20(a) of the
Securities Exchange Act of 1934 against Messrs. McNamara, Williams
and O'Toole. The lawsuit's allegations concern the VITAS hospice
segment of the Company's business. Lead Plaintiffs seek, on
behalf of a putative class of purchasers of Chemed Capital Stock
between February 15, 2010, and November 16, 2011, compensatory
damages in an unspecified amount and attorneys' fees and expenses,
arising from Defendants' failure to disclose an alleged fraudulent
scheme to enroll ineligible hospice patients and to fraudulently
obtain payments from the federal government. Defendants were
required to move or otherwise respond to the amended complaint on
August 17, 2012. Defendants believe the claims are without merit,
and intend to defend vigorously against them.
Regardless of outcome, the Company says defense of litigation
adversely affects it through defense costs, diversion of its time
and related publicity.
CHEMED CORP: Appeal in "Santos" Suit vs. VITAS Remains Pending
--------------------------------------------------------------
Chemed Corporation's subsidiary, VITAS Healthcare Corporation, is
party to a class action lawsuit filed in the Superior Court of
California, Los Angeles County, in September 2006 by Bernadette
Santos, Keith Knoche and Joyce White. This case alleges failure
to pay overtime and failure to provide meal and rest periods to a
purported class of California admissions nurses, chaplains and
sales representatives. The case seeks payment of penalties,
interest and Plaintiffs' attorney fees. The Company contests
these allegations. In December 2009, the trial court denied
Plaintiffs' motion for class certification. In July 2011, the
Court of Appeals affirmed denial of class certification on the
travel time, meal and rest period claims, and reversed the trial
court's denial on the off-the-clock and sales representation
exemption claims. Plaintiffs have filed an appeal of this
decision.
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
The Company says it is unable to estimate its potential liability
or potential range of loss, if any, with respect to this case.
CHEMED CORP: "Morangelli" Unpaid Wages Suit Remains Pending
-----------------------------------------------------------
On March 1, 2010, Anthony Morangelli and Frank Ercole filed a
class action lawsuit in federal district court for the Eastern
District of New York seeking unpaid minimum wages and overtime
service technician compensation from Chemed Corporation and its
wholly-owned subsidiary, Roto-Rooter Group, Inc. They also seek
payment of penalties, interest and plaintiffs' attorney fees. The
Company contests these allegations. In September 2010, the Court
conditionally certified a nationwide class of service technicians,
excluding those who signed dispute resolution agreements in which
they agreed to arbitrate claims arising out of their employment.
The Company says it is unable to estimate its potential liability,
if any, with respect to this case.
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
CHEVRON CORP: May Face Class Action Over Refinery Fire
-------------------------------------------------------
The Associated Press reports that nine people have sued Chevron
Corp. over a California refinery fire that sent thousands to
hospitals with respiratory issues and contributed to higher
gasoline prices on the West Coast.
The lawsuit filed on Aug. 15 in Contra Costa County Superior Court
claims Chevron was grossly negligent in its handling of refinery
maintenance as well as emergency response to the blaze in
Richmond.
The suit was filed by attorney John Burris and two colleagues on
behalf of the nine people, including three children. The
attorneys expect more plaintiffs to join the case and said a
class-action suit is likely against Chevron.
"They had information at the very outset that the pipes that were
in that area were old, subject to leaks and failed to take any
action accordingly," Mr. Burris has said. "That was last year,
2011."
San Ramon-based Chevron said it will review the lawsuit.
The area around the refinery was engulfed by a towering vapor
cloud before a volatile blaze ignited on Aug. 6.
The lawsuit says some of the plaintiffs showed symptoms such as
wheezing, dry heaving, seizure and difficulty breathing.
The suit also asks the court to require Chevron to establish a
more effective early warning system, create protocols to shut down
equipment, and appoint a monitor to oversee the new protocols and
equipment.
The refinery produces 16 percent of the daily gasoline supply for
California. The fire knocked out a unit that makes a specialized
blend of cleaner burning gasoline that satisfies air quality laws
in California, Oregon and Washington.
Since the fire, the refinery's reduced output has helped send gas
prices rising in the region, with the average price of a gallon of
regular climbing above $4 in California.
On Aug. 17, U. S. Sen. Ron Wyden, D-Ore., sent letters to the
Federal Trade Commission and the Energy Information Administration
asking officials to make sure oil companies "are not taking unfair
advantage of the situation to jack up prices."
CIOLINO PRODUCE: Alerts White Mushroom Consumers of Listeria Risk
-----------------------------------------------------------------
Ciolino Produce disclosed that it was notified its Highline 8 oz.
packaged Sliced White Mushrooms may 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 also cause miscarriages and still births among
pregnant women.
The grower/processor, Highline Mushrooms, Leamington, ON, is
voluntarily recalling the affected products from all marketplaces.
The following Sliced White Mushrooms, sold in 227 g (8 oz)
containers bearing lot code L410805 followed by a 4-digit time
code (e.g., L4108051420) and a Best Before Date of 12AU15, are
affected by this alert.
Brand UPC
------------------ --------------
Highline Mushrooms 7 71163 00005 2
A picture of the label of the recalled products is available at:
http://www.fda.gov/Safety/Recalls/ucm316053.htm
The product was held for sale at Ciolino Produce, Temperance,
Michigan/ Monroe, Michigan, on August 10, 2012 - August 12, 2012.
Highline Mushrooms contacted Ciolinos Produce on August 14, 2012,
to notify the Company about the recalled Mushrooms.
The Canadian Food Inspection Agency (CFIA) and Highline Mushrooms
are WARNING the public not to consume the Sliced White Mushrooms
that have been recalled because they may be contaminated with
Listeria Monocytogenes.
There have been no reported illnesses associated with the
consumption of these products.
Please discard all 8 oz. Sliced White Mushrooms and bring in
receipt for complete refund.
For more information consumers can call Ciolinos at 1-734-847-4140
between the hours of 9:00 a.m. to 7:00 p.m. Monday through
Saturday Eastern time.
DALE T. SMITH: 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
beef products that have been recalled by Dale T. Smith and Sons
Meat Packing.
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/jXmO3W,in addition to the list of
retail stores, to check meat or poultry products in the consumers'
possession to see if they have been recalled.
Retailer Name City and State
------------- --------------
Kozanian Market Glendale, California
Dale T. Smith's Retail Store Draper, Utah
Carnecia Ogden, Utah
Don's Meats Sunset, Utah
Don's Meats Syracuse, Utah
DELL INC: Woman Files Class Action Over Alleged TCPA Violation
--------------------------------------------------------------
Christopher Calnan, writing for Austin Business Journal, reports
that a California woman has filed a petition to launch a class-
action lawsuit against Dell Inc. for allegedly violating the
Telephone Consumer Protection Act.
Dell began placing calls to Rose Magyar's cellphone in October
2011 using an automated dialing system seeking an account payment.
She received more than 100 calls during a six-week period,
according to the Aug. 1 petition filed in the U.S. District Court
for the Southern District of Columbia.
DIEBOLD INC: Still Defends "LMPERS" Shareholder Suit in Ohio
------------------------------------------------------------
On June 30, 2010, a shareholder filed a putative class action
complaint in the United States District Court for the Northern
District of Ohio alleging violations of the federal securities
laws against Diebold, Incorporated, certain current and former
officers, and the Company's independent auditors (Louisiana
Municipal Police Employees Retirement System v. KPMG et al., No.
10-CV-1461). The complaint seeks unspecified compensatory damages
on behalf of a class of persons who purchased the Company's stock
between June 30, 2005, and January 15, 2008, and fees and expenses
related to the lawsuit. The complaint generally relates to the
matters set forth in the court documents filed by the SEC in June
2010 finalizing the settlement of civil charges stemming from the
investigation of the Company conducted by the Division of
Enforcement of the SEC (SEC Settlement).
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
Management believes any possible loss or range of loss associated
with the putative federal securities class action cannot be
estimated.
DREYER'S GRAND ICE: Loses Bid to Nix Mislabeling Class Action
-------------------------------------------------------------
Matt O'Donnell, writing for Top Class Actions, reports that a
class action lawsuit against Dreyer's Grand Ice Cream has survived
a motion to dismiss, allowing the Plaintiffs to pursue claims the
products are mislabeled as "All Natural."
The Plaintiffs allege in the Dreyer's ice cream class action
lawsuit that the company violated both federal and state law by
misrepresenting that its ice cream (sold under the brand names
Dreyer's, Edy's and Haagen-Dazs) contained all-natural ingredients
when they did not. Some Dreyer's and Edy's products are blazoned
with the term "All Natural Flavors," while some Haagen-Dazs
products are labeled "All Natural Ice Cream." These terms are
false and misleading, the class action lawsuit says, because the
ice cream products actually contain between one and five
artificial and/or synthetic ingredients.
Had the Plaintiffs known the truth about the product's
ingredients, they would not have purchased Dreyer's Grand Ice
Cream and would have purchased instead ice cream that was truly
all natural, or at least a non-natural ice cream that was cheaper,
the Dreyer's class action lawsuit states.
Dreyer's tried to dismiss the class action lawsuit based on
several arguments, including that the Plaintiffs should not be
able to pursue a federal claim that the ice cream was defective.
Dreyer's argued that just because a food contains artificial
and/or synthetic ingredients, does not make it defective. U.S.
District Judge Edward M. Chen agreed, dismissing the federal
claim. He also dismissed several state law claims for false
advertising except for violation of the Federal Food, Drug, and
Cosmetic Act and California Health & Safety Code. Dreyer's had
argued that one of the synthetic ingredients -- potassium-
alkalized cocoa -- was common in ice cream, something the FDA-
mandated label confirmed and disclosed. Judge Chen disagreed with
Dreyer's, finding it unreasonable to expect consumers to know that
an alkalizing process was common, and that the food label can't
legally correct "misleading" package statements.
A copy of Judge Chen's ruling in the Dreyer's Ice Cream False
Advertising Class Action Lawsuit can be accessed at
http://www.hpm.com/pdf/blog/8785694-0--13103.pdf
The consolidated cases are Astiana, et al. v. Dreyer's Grand Ice
Cream, Inc., Case No. 11-c-2910 EMC and Rutledge-Muhs, et al v.
Dreyer's Grand Ice Cream, Inc., Case No. 11-c-3164 EMC, in the
U.S. District Court, Northern District of California.
ECOLAB INC: Continues to Defend Wage and Hour Class Suits
---------------------------------------------------------
Ecolab Inc. continues to defend itself against class action
lawsuits alleging violations of wage and hour laws, according to
the Company's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
The Company is a defendant in six wage hour lawsuits claiming
violations of the Fair Labor Standards Act or a similar state law.
Five of the lawsuits seek certification of a state class of
certain Institutional, Pest Elimination or Ecolab Equipment Care
(formerly GCS) division associates. One of these actions, a
federal action alleging various California state law claims, has
been certified for class treatment of California Pest Elimination
employees on certain of the claims and another, a California state
action, has been certified for class treatment of California
Institutional employees. None of the other lawsuits based on
state law causes of action have been certified for class-action
status. The sixth lawsuit, in which a settlement has been
approved by the federal court, sought certification of a national
class of certain independent contractors in the company's U.S.
Other Services segment, as well as the granting of certain
employment benefits. The settlement amount is not material.
Headquartered in St. Paul, Minnesota, Ecolab Inc. --
http://www.ecolab.com/-- develops and markets programs, products,
and services for the hospitality, foodservice, healthcare,
industrial, and energy markets. The company offers specialized
cleaners and sanitizers for washing dishes, glassware, flatware,
foodservice utensils, and kitchen equipment, as well as for
laundries and general housekeeping functions; food safety products
and equipment, water filters, dishwasher racks, and related
kitchen sundries; pool and spa treatment programs; janitorial
cleaning and floor care products; chemical dispensing device
systems; and dishwashing machines, detergents, and rinse
additives.
ECOLAB INC: COREXIT(R)-Related Suits vs. Nalco Still Pending
------------------------------------------------------------
A unit of Ecolab Inc. continues to defend lawsuits arising from
the use of its COREXIT(R) 9500 oil dispersant product in
connection with the Deepwater Horizon incident, according to the
Company's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On April 22, 2010, the deepwater drilling platform, the Deepwater
Horizon, operated by a subsidiary of BP plc, sank in the Gulf of
Mexico after a catastrophic explosion and fire that began on April
20, 2010. A massive oil spill resulted. Approximately one week
following the incident, subsidiaries of BP plc, under the
authorization of the responding federal agencies, formally
requested Nalco Company, now an indirect subsidiary of Ecolab, to
supply large quantities of COREXIT(R) 9500, a Nalco oil dispersant
product listed on the U.S. EPA National Contingency Plan Product
Schedule. Nalco Company responded immediately by providing
available COREXIT and increasing production to supply the product
to BP's subsidiaries for use, as authorized and directed by
agencies of the federal government throughout the incident. Prior
to the incident, Nalco and its subsidiaries had not provided
products or services or otherwise had any involvement with the
Deepwater Horizon platform. On July 15, 2010, BP announced that
it had capped the leaking well, and the application of dispersants
by the responding parties ceased shortly thereafter.
In June, July and August 2010, in April 2011 and in April 2012,
Nalco Company was named, along with other unaffiliated defendants,
in nine putative class action complaints filed in either the
United States District Court for the Eastern District of Louisiana
(Parker, et al. v. Nalco Company, et al., Civil Action No. 2:10-
cv-01749-CJB-SS; Harris, et al. v. BP, plc, et al., Civil Action
No. 2:10-cv-02078-CJB-SS; Irelan v. BP Products, Inc., et al.,
Civil Action No. 11-cv-00881; Adams v. Louisiana, et al., Civil
Action No. 11-cv-01051; Elrod, et al. v. BP Exploration &
Production Inc., et al., 12-cv-00981), the United States District
Court for the Southern District of Alabama, Southern Division
(Lavigne, et al. v. BP PLC, et al., Civil Action No. 1:10-cv-
00222-KD-C; Wright, et al. v. BP, plc, et al., Civil Action No.
1:10-cv-00397-B) or the United States District Court for the
Northern District of Florida, Pensacola Division (Walsh, et al. v.
BP, PLC, et al., Civil Action No. 3:10-cv-00143-RV-MD; Petitjean,
et al. v. BP, plc, et al., Case No. 3:10-cv-00316-RS-EMT) on
behalf of various potential classes of persons who live and work
in or derive income from the Coastal Zone. The Parker, Lavigne
and Walsh cases have since been voluntarily dismissed. Each of
the remaining actions contains substantially similar allegations,
generally alleging, among other things, negligence relating to the
use of the Company's COREXIT dispersant in connection with the
Deepwater Horizon oil spill. The plaintiffs in each of these
putative class action lawsuits are generally seeking awards of
unspecified compensatory and punitive damages, and attorneys' fees
and costs.
Headquartered in St. Paul, Minnesota, Ecolab Inc. --
http://www.ecolab.com/-- develops and markets programs, products,
and services for the hospitality, foodservice, healthcare,
industrial, and energy markets. The company offers specialized
cleaners and sanitizers for washing dishes, glassware, flatware,
foodservice utensils, and kitchen equipment, as well as for
laundries and general housekeeping functions; food safety products
and equipment, water filters, dishwasher racks, and related
kitchen sundries; pool and spa treatment programs; janitorial
cleaning and floor care products; chemical dispensing device
systems; and dishwashing machines, detergents, and rinse
additives.
ECOLAB INC: Hearing on Deepwater Horizon Suit Deals on Nov. 8
-------------------------------------------------------------
A hearing to consider the fairness, reasonableness and adequacy of
two proposed settlements resolving lawsuits involving subsidiaries
of Ecolab Inc. arising from the Deepwater Horizon incident is
scheduled for November 8, 2012, according to the Company's August
2, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
On April 22, 2010, the deepwater drilling platform, the Deepwater
Horizon, operated by a subsidiary of BP plc, sank in the Gulf of
Mexico after a catastrophic explosion and fire that began on April
20, 2010. A massive oil spill resulted. Approximately one week
following the incident, subsidiaries of BP plc, under the
authorization of the responding federal agencies, formally
requested Nalco Company, now an indirect subsidiary of Ecolab, to
supply large quantities of COREXIT(R) 9500, a Nalco oil dispersant
product listed on the U.S. EPA National Contingency Plan Product
Schedule. Nalco Company responded immediately by providing
available COREXIT and increasing production to supply the product
to BP's subsidiaries for use, as authorized and directed by
agencies of the federal government throughout the incident. Prior
to the incident, Nalco and its subsidiaries had not provided
products or services or otherwise had any involvement with the
Deepwater Horizon platform. On July 15, 2010, BP announced that
it had capped the leaking well, and the application of dispersants
by the responding parties ceased shortly thereafter.
In July, August, September, October and December 2010, Nalco
Company was also named, along with other unaffiliated defendants,
in eight complaints filed by individuals in either the United
States District Court for the Eastern District of Louisiana (Ezell
v. BP, plc, et al., Case No. 2:10-cv-01920-KDE-JCW), the United
States District Court for the Southern District of Alabama,
Southern Division (Monroe v. BP, plc, et al., Case No. 1:10-cv-
00472-M; Hill v. BP, plc, et al., Civil Action No. 1:10-cv-00471-
CG-N; Hudley v. BP, plc, et al., Civil Action No. 10-cv-00532-N),
the United States District Court for the Northern District of
Florida, Tallahassee Division (Capt Ander, Inc. v. BP, plc, et
al., Case No. 4:10-cv-00364-RH-WCS), the United States District
Court for the Southern District of Mississippi, Southern Division
(Trehern v. BP, plc, et al., Case No. 1:10-cv-00432-HSO-JMR) or
the United States District Court for the Southern District of
Texas (Chatman v. BP Exploration & Production, Civil Action No.
10-cv-04329; Brooks v. Tidewater Marine LLC, et al., Civil Action
No. 11-cv-00049).
In April 2011, Nalco Company was also named in Best v. British
Petroleum plc, et al., Civil Action No. 11-cv-00772 (E.D. La.);
Black v. BP Exploration & Production, Inc., et al. Civil Action
No. 2:11-cv-867, (E.D. La.); Pearson v. BP Exploration &
Production, Inc., Civil Action No. 2:11-cv-863, (E.D. La.);
Alexander, et al. v. BP Exploration & Production, et al., Civil
Action No. 11-cv-00951 (E.D. La.); and Coco v. BP Products North
America, Inc., et al. (E.D. La.).
In October 2011, Nalco Company was also named in Toups, et al. v
Nalco Company, et al., No. 59-121 (25th Judicial District Court,
Parish of Plaquemines, Louisiana). In November 2011, Toups was
removed to the United States District Court for the Eastern
District of Louisiana. In April 2012, Nalco Company was named in
Esponge v. BP, P.L.C., et al., Case No. 0166367 (32nd Judicial
District Court, Parish of Terrebonne, Louisiana); and Hogan v.
British Petroleum Exploration & Production, Inc., et al., Case No.
2012-22995 (District Court, Harris County, Texas). In April 2012,
Esponge was removed to the United States District Court for the
Eastern District of Louisiana. In May 2012, Hogan was removed to
the United States District Court for the Southern District of
Texas. In June 2012, the Judicial Panel for Multidistrict
Litigation transferred Hogan to the United States District Court
for the Eastern District of Louisiana.
The complaint in Esponge generally alleges, among other things,
that oil and dispersants have caused and will continue to cause
plaintiffs to lose revenue and/or earning capacity. The remaining
complaints generally allege, among other things, negligence and
injury resulting from the use of COREXIT dispersant in connection
with the Deepwater Horizon oil spill. The complaints seek
unspecified compensatory and punitive damages, and attorneys' fees
and costs. The Chatman case was voluntarily dismissed.
In January 2012, Nalco Company was named, along with other
unaffiliated defendants, in Top Water Charters, LLC v. BP, P.L.C.,
et al., No. 0165708 (32nd Judicial District Court, Parish of
Terrebonne, Louisiana). The complaint generally alleges, among
other things, negligence and gross negligence relating to the
Deepwater Horizon oil spill and use of chemical dispersants. The
plaintiffs allege that the oil and dispersants have harmed their
fishing charter businesses and seek unspecified compensatory
damages, punitive damages and attorneys' fees and costs. In
February 2012, Top Water Charters was removed to the United States
District Court for the Eastern District of Louisiana.
All of the cases pending against Nalco Company have been
administratively transferred for pre-trial purposes to a judge in
the United States District Court for the Eastern District of
Louisiana with other related cases under In Re: Oil Spill by the
Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20,
2010, Civil Action No. 10-md-02179 (E.D. La.) ("MDL 2179").
Pursuant to orders issued by Judge Barbier in MDL 2179, the claims
have been consolidated in several master complaints, including one
naming Nalco Company and others who responded to the Gulf Oil
Spill (known as the "B3 Bundle"). Plaintiffs are required by
Judge Barbier to prepare a list designating previously-filed
lawsuits that assert claims within the B3 Bundle regardless of
whether the lawsuit named each defendant named in the B3 Bundle
master complaint. Nalco Company has received a draft list from
the plaintiffs' steering committee. The draft list identifies
fifteen cases in the B3 Bundle, some of which are putative class
actions. Six cases previously filed against Nalco Company are not
included in the B3 Bundle.
Pursuant to orders issued by Judge Barbier in MDL 2179, claimants
wishing to assert causes of action subject to one or more of the
master complaints were permitted to do so by filing a short-form
joinder. A short-form joinder is deemed to be an intervention
into one or more of the master complaints in MDL 2179. The
deadline for filing short form joinders was April 20, 2011. Of
the individuals who have filed short form joinders that intervene
in the B3 Bundle, Nalco Company has no reason to believe that
these individuals are different from those covered by the putative
class actions. These plaintiffs who have intervened in the B3
Bundle seek to recover damages for alleged personal injuries,
medical monitoring and/or property damage related to the oil spill
clean-up efforts.
On April 18, 2012, BP and the Plaintiffs' Steering Committee
("PSC") for MDL 2179 filed motions for preliminary approval of two
proposed class action settlements: (1) a proposed Medical Benefits
Class Action Settlement; and (2) a proposed Economic and Property
Damages Class Action Settlement. Pursuant to the proposed
settlements, class members agree to release claims against BP and
other released parties, including Nalco Energy Services, LP, Nalco
Holding Company, Nalco Finance Holdings LLC, Nalco Finance
Holdings Inc., Nalco Holdings LLC and Nalco Company. Potential
class members will be permitted to opt-out of the settlements. BP
and the PSC have requested that the opt-out period close by
October 1, 2012.
On May 2, 2012, the Court preliminarily approved the Medical
Benefits Class Action Settlement and Economic and Property Damages
Class Action Settlement. A hearing to consider the fairness,
reasonableness and adequacy of the proposed settlements is
scheduled for November 8, 2012.
Headquartered in St. Paul, Minnesota, Ecolab Inc. --
http://www.ecolab.com/-- develops and markets programs, products,
and services for the hospitality, foodservice, healthcare,
industrial, and energy markets. The company offers specialized
cleaners and sanitizers for washing dishes, glassware, flatware,
foodservice utensils, and kitchen equipment, as well as for
laundries and general housekeeping functions; food safety products
and equipment, water filters, dishwasher racks, and related
kitchen sundries; pool and spa treatment programs; janitorial
cleaning and floor care products; chemical dispensing device
systems; and dishwashing machines, detergents, and rinse
additives.
ECOLAB INC: Merger-Related Suit Settlement Approved in June
-----------------------------------------------------------
Ecolab Inc. disclosed in its August 2, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012, that its settlement of a consolidated merger-
related lawsuit was approved in June 2012.
On December 1, 2011, Ecolab completed its merger with Nalco
Holding Company, a leading water treatment and process improvement
company.
Following the announcement of the Nalco merger, four purported
stockholders of Nalco filed putative class action lawsuits against
the members of Nalco's board of directors and Ecolab, among other
defendants, in the Circuit Court of the Eighteenth Judicial
Circuit, DuPage County, State of Illinois. The court consolidated
the four putative class action lawsuits into one action. The
plaintiffs in the consolidated action filed a consolidated amended
complaint. The consolidated amended complaint alleges, among
other things, that the merger transaction was the result of an
unfair and inadequate process, that the consideration to be
received by Nalco stockholders in the merger was inadequate, that
the preliminary joint proxy statement/prospectus (filed with the
Securities and Exchange Commission in connection with the merger)
contained misstatements and omissions and that the members of
Nalco's board of directors breached their fiduciary duties to
Nalco stockholders. The consolidated amended complaint
additionally alleges that Nalco and Ecolab aided and abetted the
Nalco board of directors in their alleged breach of fiduciary
duties. The consolidated action sought, among other things,
injunctive relief enjoining Ecolab and Nalco from proceeding with
the merger.
On June 20, 2012, the court approved settlement of the
consolidated action. Under the settlement, the consolidated
action was dismissed with prejudice on the merits and all
defendants were released from any and all claims relating to,
among other things, the merger and any related disclosures. In
exchange for the releases provided in the settlement, Ecolab and
Nalco provided additional disclosure in the joint proxy
statement/prospectus requested by plaintiffs in the consolidated
action. The parties also agreed that the lead plaintiff could
apply to the court for an award of attorneys' fees and
reimbursement of expenses from Nalco. The court award for fees
and expenses was immaterial.
Headquartered in St. Paul, Minnesota, Ecolab Inc. --
http://www.ecolab.com/-- develops and markets programs, products,
and services for the hospitality, foodservice, healthcare,
industrial, and energy markets. The company offers specialized
cleaners and sanitizers for washing dishes, glassware, flatware,
foodservice utensils, and kitchen equipment, as well as for
laundries and general housekeeping functions; food safety products
and equipment, water filters, dishwasher racks, and related
kitchen sundries; pool and spa treatment programs; janitorial
cleaning and floor care products; chemical dispensing device
systems; and dishwashing machines, detergents, and rinse
additives.
FELTEX: Tony Gavigan Essential to Class Action, Lawyer Says
-----------------------------------------------------------
Paul McBeth, writing for BusinessDesk, reports that Tony Gavigan,
the former Fay Richwhite investment banker who secured foreign
backing for the class suit against the directors of failed carpet
maker Feltex, is essential to the lawsuit and shouldn't be removed
as the funder, the Court of Appeal heard on Aug. 16.
The former directors of Feltex and the brokerages that promoted
the company's shares made the appeal against Mr. Gavigan and his
Joint Action Funding Limited being the court-approved funder of
the action and sought to have him removed over statements he has
made and his ability to meet costs if they successfully defend the
High Court class action.
Mr. Gavigan is bankrolling the suit through an investment
agreement with London-based Harbour Litigation Funding, and has
organized the action since Feltex collapsed in 2006, owing
creditors between $30 million and $40 million, and destroying some
$254 million in shareholder value.
"Without him involved we wouldn't have this claim," senior counsel
for the class action Austin Forbes told the court on the second
day of a two-day hearing in Wellington on Aug. 16.
The claim's lead plaintiff is Eric Houghton, who invested in
Feltex when it was floated, and has been joined by some 3,000
other former shareholders.
Forbes said British backer Harbour Funding Litigation doesn't
invest in New Zealand and entered into an investment agreement via
a limited partnership with JAFL on the basis that the Gavigan-
controlled entity would be Harbour's point of contact.
General details of the funding agreement between JAFL and Harbour
would be shared with the defendants' counsel, who sought
assurances there would be enough cash to cover their costs if the
class suit wasn't successful, Forbes said. He would also likely
be able to get similar terms for the insurance cover obtained by
the plaintiffs.
"In both cases I have gained instruction that evidence to support
the funder's ability to meet its obligation under its agreement
with JAFL" has been authorized, he said.
Justices Mark O'Regan, Anthony Randerson and Rhys Harrison
reserved their decision, and will release a minute once counsel
have looked at the Harbour agreement.
David Cooper, counsel for the directors, told the court the
details of that arrangement may satisfy his appeal over the
confidentiality of the funding but wouldn't necessarily allay
their concerns as to JAFL's suitability as the court-approved
funder.
Feltex's directors at the time of the offer were Tim Saunders, Sam
Magill, John Feeney, Craig Horrocks, Peter Hunter, Peter David and
Joan Withers. The other parties to the class suit include broking
firms Credit Suisse, First NZ Capital, and Forsyth Barr, who sold
and promoted the offer.
Counsel for Credit Suisse, Adrian Olney, sought to have most of
the claims thrown out on the basis that they hadn't been filed in
time, but accepted that if the court decided to implement a cut-
off time for shareholders to opt in, then "that would be better
than nothing."
When it finally gets to court, the Feltex action will be divided
into two stages. The first will hear Mr. Houghton's entire case,
with the second using the first for binding rulings on common
claims.
FIFTH-THIRD BANK: Faces Class Action Over Payday Loans
------------------------------------------------------
Sheryl Harris, writing for The Plain Dealer, reports that a
lawsuit accuses Fifth-Third Bank of misleading customers about the
true cost of the payday loans it issued.
The annual percentage rate on Early Access loans can be 15 times
as high as Fifth Third claims, according to a suit filed by two
Fifth Third borrowers.
The suit seeks class-action status and could affect thousands of
consumers in Ohio and seven other states where Fifth Third offers
the loans.
Early Access loans, like traditional payday loans, are made
against a consumer's next paycheck. Fifth Third charges customers
with direct deposit accounts $10 in fees per $100 borrowed, an
annual percentage rate the bank advertises as 120 percent.
The rate assumes the consumer has 30 days to pay back the loan.
But the actual APR can be as high as 1,825 percent, according to
the suit, because Fifth Third repays itself from the customer's
next direct deposit, even if the deposit arrives just a few days
after the loan was made.
Liz Wetter, a spokesman for the Cincinnati-based bank, said Fifth
Third doesn't comment on pending litigation.
As states like Ohio try to rid themselves of payday loan stores
and their triple-digit loan interest rates, some banks have
plunged into the business of high-cost, short-term loans.
A 2011 policy brief by the National Consumer Law Center called out
a number of banks, including Fifth Third, for offering payday
clones, short-term loans with triple-digit interest rates
"disguised with fee-based pricing," that are repaid from a
consumer's next paycheck or Social Security deposit.
The high cost, coupled with the short repayment time, makes it
tough for consumers to pay off the loans without borrowing again,
and numerous studies show that an average payday customer takes
out about eight loans in a year.
Cleveland attorney Stuart Scott filed the lawsuit in federal court
in Cleveland on behalf of Fifth Third customers. He contends that
while payday lenders justify the high cost based on the risk of
the loans, banks can't make the same argument because they require
borrowers to have direct-deposited checks.
"These are much lower risk loans [for banks] because the money is
just sitting in the bank," Mr. Scott said.
One of the plaintiffs, William Klopfenstein of Royal Oak, Mich.,
took out a series of payday loans in 2011, ranging from $150 to
$400. Fifth-Third debited the loans and fees from his account
when his next check was direct-deposited, often in a matter of
days.
Mr. Klopfenstein's bank statements showed that all of the loans
were 120 percent APR, according to the suit. But the actual APRs
ranged from 913 percent to 1,825 percent, the suit says.
Another plaintiff, Adam McKinney of Lanesville, Ind., encountered
similar costs, according to the suit.
APRs include interest and fees calculated out over a year and are
meant to allow consumers to compare the cost of loans, regardless
of how they are packaged.
The suit contends that the bank is deceiving consumers by
presenting them with an unrealistically low APR.
Mr. Scott contends that although the costs for the loans are
presented as fees, they are in reality interest disguised to get
around usury caps.
The suit accuses the bank of fraud against its customers; breach
of contract; violations of state interest-rate caps, conversion;
and unjust enrichment.
It asks the court to declare the loans unconscionable, repay
consumers and award punitive damages.
Fifth Third Bank is a state-chartered bank, but its consumer
products are supervised and regulated by the Consumer Financial
Protection Bureau.
The bureau recently launched an investigation into bank and non-
bank payday loan practices.
The law prohibits the bureau from setting interest caps on payday
loans. But consumer groups like the Center for Responsible
Lending have encouraged the bureau to exercise its authority in
other ways -- for example, by requiring payday lenders and the few
big banks that offer payday loans to give consumers more time for
repayment, according to CRL spokeswoman Ginna Green.
"The bottom line," Ms. Green said, "is a payday loan is a payday
loan. It doesn't matter if you get it at Fifth Third Bank or
[payday store] Advance America."
IMPERIAL HOLDINGS: Investors Want Class Action Dismissed
--------------------------------------------------------
Brian Bandell, writing for South Florida Business Journal, reports
that Antony Mitchell resigned as chairman of Imperial Holdings and
was replaced by activist shareholder Phillip Goldstein, the
company announced late on Aug. 16.
Mr. Mitchell will remain CEO and a director of the Boca Raton-
based finance and insurance company.
Mr. Goldstein was one of three appointees to Imperial Holdings'
board by Brooklyn, N.Y.-based Bulldog Investments, which pressed
the company through public filings, legal action and letters to
shareholders to revamp its board. Mr. Goldstein controls 2.4
million shares of Imperial Holdings, which has 21.2 million shares
outstanding.
The investors want the company to be more aggressive in attempting
to dismiss a shareholder class action securities fraud lawsuit
filed against it.
In September 2011, the FBI and other federal authorities raided
the Boca Raton offices of Imperial Holdings as part of an
investigation into its life insurance finance business. That was
soon followed by a shareholder class action lawsuit over the sharp
drop in its stock price and an SEC investigation.
In April, Imperial Holdings entered into a non-prosecution
agreement with the U.S. Department of Justice that included an $8
million penalty. The company acknowledged that, from December
2006 to January 2009, in connection with a portion of its retail
operation, certain employees who were also licensed life insurance
agents made misrepresentations regarding premium financing on life
insurance applications for elderly individuals and failed to take
appropriate precautions to prevent other misrepresentations.
Imperial Holdings also disclosed last week that it's unable to
file its financial reports for the second quarter -- the third
consecutive period that the company hasn't reported for. It is
still in the process of establishing the fair value of premium
finance loans on its balance sheet. Imperial Holdings said it is
unable to predict when it will file its next financial report.
JMP GROUP: Continues to Defend Securities Class Action Suit
-----------------------------------------------------------
JMP Group Inc. was named as a defendant in a purported securities
class action complaint with respect to a company for which JMP
Securities LLC served as an underwriter in a public offering, and
recorded an accrual based on its portion of the estimated legal
expenses. A loss contingency has not been booked as a range of
loss cannot be reasonably estimated at this time. Generally,
given the inherent difficulty of predicting the outcome of matters
the Company is involved in, particularly cases in which claimants
seek substantial or indeterminate damages, it is not possible to
determine whether a liability has been incurred or to reasonably
estimate the ultimate or minimum amount of that liability until
the case is close to resolution. For these matters, no reserve is
established until such time, other than for reasonably estimable
legal fees and expenses. Management, after consultation with
legal counsel, believes that the currently known actions or
threats will not result in any material adverse effect on the
Company's financial condition, results of operations or cash
flows.
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
JOHNSON & JOHNSON: 2nd Amended Suit vs. McNeil Dismissed in July
----------------------------------------------------------------
The second amended complaint in a consolidated class action
lawsuit involving a subsidiary of Johnson & Johnson was dismissed
in July 2012, according to the Company's August 2, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 1, 2012.
Starting in May 2010, multiple complaints seeking class action
certification related to the McNeil recalls have been filed
against McNeil Consumer Healthcare and certain affiliates,
including Johnson & Johnson, in the United States District Court
for the Eastern District of Pennsylvania, the Northern District of
Illinois, the Central District of California, the Southern
District of Ohio and the Eastern District of Missouri. These
consumer complaints allege generally that purchasers of various
McNeil medicines are owed monetary damages and penalties because
they paid premium prices for defective medications rather than
less expensive alternative medications. All but one complaint
seeks certification of a nation-wide class of purchasers of these
medicines, whereas one complaint, the Harvey case, seeks
certification of a class of MOTRIN(R) IB purchasers in Missouri.
In October 2010, the Judicial Panel on Multidistrict Litigation
consolidated all of the consumer complaints, except for the Harvey
case, which was consolidated in March 2011, into one lawsuit: In
re: McNeil Consumer Healthcare, et al., Marketing and Sales
Practices Litigation, for pretrial proceedings in the United
States District Court for the Eastern District of Pennsylvania.
In January 2011, the plaintiffs in all of the cases except the
Harvey case filed a Consolidated Amended Civil Consumer Class
Action Complaint (CAC) naming additional parties and claims. In
July 2011, the Court granted Johnson & Johnson's motion to dismiss
the CAC without prejudice, but permitted the plaintiffs to file an
amended complaint within thirty days of the dismissal order. In
August 2011, the plaintiffs filed a Second Amended Civil Consumer
Class Action Complaint (SAC).
In July 2012, the Court granted Johnson & Johnson's motion to
dismiss the SAC with prejudice.
JOHNSON & JOHNSON: Awaits Class Cert. Bid Hearing in "Field" Suit
-----------------------------------------------------------------
Johnson & Johnson is waiting for a Canadian court to schedule a
hearing on a certification application filed by Nick Field,
according to the Company's August 2, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 1, 2012.
In September 2011, Johnson & Johnson, Johnson & Johnson Inc. and
McNeil Consumer Healthcare Division of Johnson & Johnson Inc.
received a Notice of Civil Claim filed by Nick Field in the
Supreme Court of British Columbia, Canada (the BC Civil Claim).
The BC Civil Claim is a putative class action brought on behalf of
persons who reside in British Columbia and who purchased during
the period between September 20, 2001, and the present one or more
various McNeil infants' or children's over-the-counter medicines
that were manufactured at the Fort Washington, Pennsylvania
facility. The BC Civil Claim alleges that the defendants violated
the BC Business Practices and Consumer Protection Act, and other
Canadian statutes and common laws, by selling medicines that were
allegedly not safe and/or effective or did not comply with
Canadian Good Manufacturing Practices. The BC plaintiff served
their affidavits in support of class certification in April 2012.
The defendants responding affidavits were served in June 2012.
The date for hearing of the certification application has not yet
been scheduled.
JOHNSON & JOHNSON: Reconsideration Bid in "Monk" Suit Denied
------------------------------------------------------------
Ronald Monk's motion for a New Jersey court to reconsider a
December 2011 ruling partially dismissing his lawsuit was denied
in May 2012, according to Johnson & Johnson's August 2, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 1, 2012.
In September 2010, a shareholder, Ronald Monk, filed a lawsuit in
the United States District Court for the District of New Jersey
seeking class certification and alleging that Johnson & Johnson
and certain individuals, including executive officers and
employees of Johnson & Johnson, failed to disclose that a number
of manufacturing facilities were failing to maintain current good
manufacturing practices, and that as a result, the price of
Johnson & Johnson's stock declined significantly. Plaintiff seeks
to pursue remedies under the Securities Exchange Act of 1934 to
recover his alleged economic losses. In December 2011, Johnson &
Johnson's motion to dismiss was granted in part and denied in
part. Plaintiff moved the Court to reconsider part of the
December 2011 ruling. Defendants filed answers to the remaining
claims of the Amended Complaint in February 2012 and the case is
proceeding to discovery. In May 2012, the Court denied
Plaintiff's motion for reconsideration.
JOHNSON & JOHNSON: Continues to Defend Suits Related to AWP
-----------------------------------------------------------
Johnson & Johnson continues to defend lawsuits relating to
inflated average wholesale price for certain pharmaceutical
products, according to the Company's August 2, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 1, 2012.
Johnson & Johnson and several of its pharmaceutical subsidiaries
(the J&J AWP Defendants), along with numerous other pharmaceutical
companies, are defendants in a series of lawsuits in state and
federal courts involving allegations that the pricing and
marketing of certain pharmaceutical products amounted to
fraudulent and otherwise actionable conduct because, among other
things, the companies allegedly reported an inflated Average
Wholesale Price (AWP) for the drugs at issue. Payors alleged that
they used those AWPs in calculating provider reimbursement levels.
Many of these cases, both federal actions and state actions
removed to federal court, were consolidated for pre-trial purposes
in a Multi-District Litigation (MDL) in the United States District
Court for the District of Massachusetts.
The plaintiffs in these cases included three classes of private
persons or entities that paid for any portion of the purchase of
the drugs at issue based on AWP, and state government entities
that made Medicaid payments for the drugs at issue based on AWP.
In June 2007, after a trial on the merits, the MDL Court dismissed
the claims of two of the plaintiff classes against the J&J AWP
Defendants. In March 2011, the Court dismissed the claims of the
third class against the J&J AWP Defendants without prejudice.
AWP cases brought by various Attorneys General have proceeded to
trial against other manufacturers. Several state cases against
certain of Johnson & Johnson's subsidiaries have been settled,
including Kentucky, which had been set for trial in January 2012.
Kansas is set for trial in March 2013, Louisiana is set for trial
in June 2013, Illinois is set for trial in May 2014, and it is
anticipated that Mississippi will be set for trial in October
2013. Other state cases are likely to be set for trial in due
course. In addition, an AWP case against the J&J AWP Defendants
brought by the Commonwealth of Pennsylvania was tried in
Commonwealth Court in October and November 2010. The Court found
in the Commonwealth's favor with regard to certain of its claims
under the Pennsylvania Unfair Trade Practices and Consumer
Protection Law ("UTPL"), entered an injunction, and awarded $45
million in restitution and $6.5 million in civil penalties. The
Court found in the J&J AWP Defendants' favor on the Commonwealth's
claims of unjust enrichment, misrepresentation/ fraud, civil
conspiracy, and on certain of the Commonwealth's claims under the
UTPL. The J&J AWP Defendants have appealed the Commonwealth
Court's UTPL ruling to the Pennsylvania Supreme Court. The
Company believes that the J&J AWP Defendants have strong arguments
supporting their appeal. Because the Company believes that the
potential for an unfavorable outcome is not probable, it has not
established an accrual with respect to the verdict.
JOHNSON & JOHNSON: Defends Consumer Suits Over Pelvic Mesh Device
-----------------------------------------------------------------
Johnson & Johnson and a subsidiary continues to defend themselves
from lawsuits relating to their pelvic mesh devices, according to
the Company's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 1,
2012.
Claims for personal injury have been made against Ethicon, Inc.
(Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic
mesh devices used to treat stress urinary incontinence and pelvic
organ prolapse. The number of pending product liability lawsuits
continues to increase, and the Company continues to receive
information with respect to potential costs and the anticipated
number of cases. In addition, a class action and several
individual personal injury cases have been commenced in Canada
seeking damages for alleged injury resulting from Ethicon's pelvic
mesh devices. The Company has established a product liability
accrual in anticipation of product liability litigation associated
with Ethicon's pelvic mesh products. Changes to these accruals
may be required in the future as additional information becomes
available.
The Company believes that the ultimate resolution of these matters
based on historical and reasonably likely future trends is not
expected to have a material adverse effect on the Company's
financial position, annual results of operations and cash flows.
The resolution in any interim reporting period could have a
material impact on the Company's results of operations and cash
flows for that period.
JOHNSON & JOHNSON: Nursing Home Residents Suit Dismissed in March
-----------------------------------------------------------------
A putative class action lawsuit filed by representatives of
nursing home residents was dismissed in March 2012, according to
Johnson & Johnson's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 1,
2012.
In April 2010, a putative class action lawsuit was filed in the
United States District Court for the Northern District of
California by representatives of nursing home residents or their
estates against Johnson & Johnson, Omnicare, Inc. (Omnicare), and
other unidentified companies or individuals. In February 2011,
Plaintiffs filed a second amended complaint asserting that certain
rebate agreements between Johnson & Johnson and Omnicare increased
the amount of money spent on pharmaceuticals by the nursing home
residents and violated the Sherman Act and the California Business
& Professions Code. The second amended complaint also asserted a
claim of unjust enrichment. Plaintiffs sought multiple forms of
monetary and injunctive relief. Johnson & Johnson moved to
dismiss the second amended complaint in March 2011. The Court
granted the motion in its entirety in August 2011, dismissing all
claims asserted by Plaintiffs. In October 2011, the Court
dismissed the action with prejudice. The plaintiffs filed a
notice of appeal to the United States Court of Appeals for the
Ninth Circuit in November 2011. In February 2012, Plaintiffs
stipulated to a voluntary dismissal of the matter, with prejudice.
Pursuant to the terms of the stipulation, the Ninth Circuit
dismissed the case in its entirety in March 2012.
JOHNSON & JOHNSON: OCD Awaits Ruling on Plaintiffs' Cert. Bid
-------------------------------------------------------------
Johnson & Johnson's subsidiary is awaiting a court decision on
plaintiffs' motion to certify a class in their antitrust class
action lawsuit, according to the Company's August 2, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 1, 2012.
In April 2009, Ortho-Clinical Diagnostics, Inc. (OCD) received a
grand jury subpoena from the United States Department of Justice,
Antitrust Division, requesting documents and information for the
period beginning September 1, 2000, through the present,
pertaining to an investigation of alleged violations of the
antitrust laws in the blood reagents industry. OCD complied with
the subpoena. In February 2011, OCD received a letter from the
Antitrust Division indicating that it had closed its investigation
in November 2010. In June 2009, following the public announcement
that OCD had received a grand jury subpoena, multiple class action
complaints seeking damages for alleged price fixing were filed
against OCD. The various cases were consolidated for pre-trial
purposes in the United States District Court for the Eastern
District of Pennsylvania. Discovery is ongoing. Plaintiffs filed
a motion for class certification and OCD filed an opposition to
that motion. The Court heard argument on the motion for class
certification in July 2012, and the parties are awaiting a
decision.
LAKESIDE BANK: Sued Over Collection of Excessive Overdraft Fees
---------------------------------------------------------------
Sharyon Cosey, on behalf of herself and all others similarly
situated v. Lakeside Bank, an Illinois banking corporation, Case
No. 2012-CH-31074 (Ill. Cir. Ct., Cook Cty., August 14, 2012)
seeks monetary damages, restitution and injunctive relief from
Lakeside arising from its alleged unfair and unconscionable
assessment and collection of excessive overdraft fees.
Ms. Cosey asserts that Lakeside employs sophisticated software to
automate its overdraft. This program, she alleges, maximizes the
number of overdrafts via manipulation and reorganization of a
customer's debits, and thus, the amount of overdraft fees charged
per customer.
Ms. Cosey is a resident of Chicago, Illinois. She held an account
at Lakeside during the relevant period.
Lakeside, a subsidiary of Lakeside Bancorp, Inc., provides retail
banking services to tens of thousands of consumers, including the
Plaintiff and members of the Class.
The Plaintiff is represented by:
Edward A. Wallace, Esq.
Amy E. Keller, Esq.
WEXLER WALLACE LLP
55 W. Monroe St., Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
E-mail: kaw@wexlerwallace.com
aek@wexlerwallace.com
- and -
Stephen J. Fearon, Jr., Esq.
SQUITIERI & FEARON, LLP
32 East 57th Street - 12th Floor
New York, NY 10022
Telephone: (212) 421-6492
Facsimile: (212) 421-6553
E-mail: stephen@sfclasslaw.com
LIME ENERGY: Wolf Haldenstein Commences Class Action in Illinois
----------------------------------------------------------------
On August 15, 2012, Wolf Haldenstein Adler Freeman & Herz LLP
filed a class action lawsuit in the United States District Court,
Northern District of Illinois, on behalf of all persons who
purchased Lime Energy Co., Inc. common stock between May 14, 2010
and July 17, 2012, inclusive, against the Company and certain of
the Company's officers and directors, alleging securities fraud
pursuant to Sections 10(b) and 20(a) of the Exchange Act [15
U.S.C. Secs. 78j(b) and 78t(a)] and Rule 10b-5 promulgated
thereunder by the SEC [17 C.F.R. Sec. 240.10b-5].
The case name is Galbraith v. Lime Energy Co., Inc., et al., Civil
Action No. 12-cv-6465. A copy of the complaint filed in this
action is available from the Court, or can be viewed on the Wolf
Haldenstein Adler Freeman & Herz LLP Web site at
http://www.whafh.com
During the Class Period, Lime Energy issued materially false and
misleading statements and omitted to state material facts that
rendered their affirmative statements misleading as they related
to the Company's financial performance, business prospects, and
financial condition. As a result of these materially false and
misleading statements, the price of the Company's securities was
artificially inflated during the Class Period. As the truth of
the Company's materially false and misleading statements entered
the market, the Company's stock plummeted.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements and/or material
omissions, that were in effect throughout the Class Period,
regarding the Company's business, operational and accounting
practices, by failing to disclose, among other things, that: (i)
the Company's financial statements during the Class Period did not
accurately state the Company's financial condition and operations,
including that they did not accurately state the Company's revenue
and earnings; (ii) as a result, the Company's financial results
were not prepared in accordance with Generally Accepted Accounting
Principles ("GAAP"); and (iii) the Company lacked adequate
internal and financial controls.
On July 17, 2012, the Company made an SEC filing on Form 8-K that
made several stunning admissions. The Company's SEC filing
admitted, based upon the results of a partial internal review,
that: (i) a portion of the Company's revenue was improperly
recorded -- as a result of recording non-existent revenue and/or
recording revenue earlier than it should have been recorded; and
(ii) the Company's previously issued financial statements on Form
10-K for the fiscal years ended December 31, 2010 and December 31,
2011, and its quarterly report on Form 10-Q for the period ended
March 31, 2012, "may no longer be relied upon" and the
misreporting may "require restatement of all of the affected
financial statements."
The fact that Lime announced that it will restate its financial
statements in effect during the Class Period, and informed
investors that these financial statements should not be relied
upon is an admission that they were materially false and
misleading when originally issued.
When the truth began to emerge with Lime's July 17, 2012 Form 8-K
disclosure, the Company's stock price plummeted $0.91 from its
prior trading day close of $2.03 to close on July 17, 2012 at
$1.12 -- a stunning decline of over 44% on unusually heavy trading
volume.
If you purchased Lime Energy common stock during the Class Period,
you may request that the Court appoint you as lead plaintiff by
September 18, 2012. A lead plaintiff is a representative party
that acts on behalf of other class members in directing the
litigation. In order to be appointed lead plaintiff, the Court
must determine that the class member's claim is typical of the
claims of other class members, and that the class member will
adequately represent the class. Under certain circumstances, one
or more class members may together serve as "lead plaintiff."
Your ability to share in any recovery is not, however, affected by
the decision whether or not to serve as a lead plaintiff. You may
retain Wolf Haldenstein, or other counsel of your choice, to serve
as your counsel in this action.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm
has approximately 70 attorneys in various practice areas; and
offices in Chicago, New York City, and San Diego. The reputation
and expertise of this firm in shareholder and other class
litigation has been repeatedly recognized by the courts, which
have appointed it to major positions in complex securities multi-
district and consolidated litigation.
If you wish to discuss this action or have any questions, please
contact:
Gregory M. Nespole, Esq.
Robert B. Weintraub, Esq.
Derek Behnke
Wolf Haldenstein Adler Freeman & Herz LLP
270 Madison Avenue
New York, NY 10016
Telephone: (800) 575-0735
E-mail: classmember@whafh.com
Web site: http://www.whafh.com
All e-mail correspondence should make reference to Lime Energy.
MINNESOTA: Creation of Sex Offender Task Force Ordered
------------------------------------------------------
PostBulletin.com reports that a federal magistrate has ordered the
creation of a task force to come up with less restrictive ways for
Minnesota to handle convicted sex offenders.
Chief Magistrate Arthur Boylan's order came on Aug. 15 in a class-
action lawsuit by sex offenders in the state's civil commitment
program. The program allows the state to continue holding people
beyond their prison sentences if they're regarded as dangerous.
The lawsuit challenges the constitutionality of the program
because releases have been rare.
Mr. Boylan's order directs the state's Human Services commissioner
to appoint the task force to come up with legislative proposals by
Dec. 3 to revamp the program.
PURE HOTHOUSE: Recalls 11,402 Cases of Fresh Cut Grilling Trays
---------------------------------------------------------------
Pure Hothouse Foods Inc. is voluntarily recalling a total of 1,402
cases and 8,412 individually distributed units of fresh cut
grilling trays, as listed below, with the Sell by dates of August
11th, 2012 through August 26, 2012 because they contain whole or
sliced mushrooms which may be contaminated with Listeria
monocytogenes. Listeria monocytogenes is an organism that can
cause serious or life-threatening food borne illness in a person
who eats a food item contaminated with it. Symptoms of infection
may include fever, muscle aches, gastro intestinal symptoms such
as nausea or diarrhea. The illness primarily impacts pregnant
women and adults with weakened immune systems. Most healthy
adults and children rarely become seriously ill.
The voluntary recalled products were produced and distributed from
Pure Hothouse Foods Inc. in Leamington, Ontario, Canada to
retailers in the following states: Michigan, Ohio, Indiana,
Illinois, and Kentucky.
This voluntary recall notification is being issued due to finding
Listeria monocytogenes in finished product that contained
mushrooms. Pure Hothouse Foods Inc. is coordinating closely with
regulatory officials.
No illnesses have been reported in association with this voluntary
recall.
Pure Hothouse Foods Inc. customer service representatives have
already contacted all customers impacted and are in the process of
confirming that the recalled products are not in the stream of
commerce. Consumers with questions may contact Pure Hothouse
Foods Inc. directly at 1-866-326-8444 Monday - Friday, 8:00 a.m.
- 5:00 p.m. (Eastern Standard Time).
Product Description Use by Date UPC Code
------------------- ----------- --------
Meijer Brand "Grillers August 11th - 7-08820-85464-2
Mushroom with Rosemary" August 26th 2012
Meijer Brand "Grillers August 11th - 7-08820-85468-0
Steak Topper" August 26th 2012
Meijer Brand "Grillers August 11th - 7-08820-85353-9
Asparagus Blend" August 26th 2012
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm316023.htm
Only the specific products identified in the list are included in
this precautionary voluntary recall. Retailers should check their
inventories and store shelves to confirm that none of the product
is present or available for purchase by consumers or in warehouse
inventories.
Consumers who may have purchased any of the above item(s) are
asked to record the Sell by date and/or UPC code number,
immediately dispose of the product in its entirety, and contact
Pure Hothouse Foods Inc. toll-free at 1-866-326-8444, Monday -
Friday, 8:00 a.m. to 5:00 p.m. (Eastern Time) to obtain a full
refund. Please visit the Company's Web site at http://www.pure-
flavor.com/ for a copy of the release.
REAL MEX: FSIS Lists Stores That Received Recalled Products
-----------------------------------------------------------
The U.S. Department of Agriculture's Food Safety and Inspection
Service disclosed that Costco stores in California, and Reno,
Nevada, area received Grilled Chicken Caesar Salad Kits products
that have been recalled by Real Mex 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/MVdsGL,in addition to the list of
retail stores, to check meat or poultry products in the consumers'
possession to see if they have been recalled.
ROCK-TENN CO: Smurfit-Stone Acquisition Litigation Now Concluded
----------------------------------------------------------------
All class litigation regarding Rock-Tenn Company's acquisition of
Smurfit-Stone Container Corporation is now concluded, according to
the Company's August 2, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Three complaints on behalf of the same putative class of Smurfit-
Stone stockholders were filed in the Delaware Court of Chancery
challenging the Company's acquisition of Smurfit-Stone: Marks v.
Smurfit-Stone Container Corp., et al., Case No. 6164 (filed
February 2, 2011); Spencer v. Moore, et al., Case No. 6299 (filed
March 21, 2011); and Gould v. Smurfit-Stone Container Corp., et
al., Case No. 6291 (filed March 17, 2011). On March 24, 2011,
these cases were consolidated. In the operative complaint,
plaintiffs named as defendants RockTenn, the former members of the
Smurfit-Stone board of directors and Sam Acquisition, LLC (now
known as RockTenn CP, LLC, the Company's wholly-owned subsidiary
that is the successor to Smurfit-Stone). The plaintiffs alleged,
among other things, that the consideration the Company paid to
acquire Smurfit-Stone was inadequate and unfair to Smurfit-Stone
stockholders, that the February 24, 2011 preliminary joint proxy
statement/prospectus contained misleading or inadequate
disclosures regarding the Company's acquisition of Smurfit-Stone,
that the individual defendants breached their fiduciary duties in
approving the acquisition of Smurfit-Stone and that those breaches
were aided and abetted by the Company. On May 2, 2011, the court
granted class certification, appointing the lead plaintiffs and
their counsel to represent a class of all record and beneficial
holders of Smurfit-Stone common stock as of January 23, 2011, or
their successors in interest, but excluding the named defendants
and any person, firm, trust, corporation or other entity related
to or affiliated with any of the defendants. On May 20, 2011, the
court denied the plaintiffs' request for a preliminary injunction
preventing the completion of the acquisition, finding that the
plaintiffs had failed to demonstrate a likelihood of success with
respect to the merits of their claims, that the requisite showing
of irreparable harm had not been made and that the balance of the
equities counseled against granting the injunction. On July 7,
2011, the Company filed a counterclaim in this case seeking a
declaration that the plaintiffs are not entitled to damages or the
imposition of any other remedy with respect to an error in
Smurfit-Stone's proxy statement relating to appraisal rights.
On October 5, 2011, the Company reached an agreement to settle the
class action with the plaintiffs. Under the terms of the proposed
settlement, the class released all claims against the Company and
the former directors of Smurfit-Stone that arise out of the class
members' ownership of Smurfit-Stone shares between the dates on
which the merger was agreed and consummated and that are based on
the merger agreement or the acquisition, disclosures or statements
concerning the merger agreement or the acquisition, or any of the
matters alleged in the lawsuit. In exchange for these releases,
the Company granted the former Smurfit-Stone shareholders (other
than those who have already asserted their appraisal rights) the
right to bring and participate in a future "quasi-appraisal"
proceeding in which the court would assess the value of a share of
Smurfit-Stone common stock on a stand-alone basis as of the
closing of the transaction. The ability of former Smurfit-Stone
shareholders to bring and participate in the future quasi-
appraisal proceeding was subject to a number of conditions,
including returning to the Company an amount of cash equal to
$41.26 per Smurfit-Stone share if the former shareholder voted in
favor of the merger (representing approximately 73% of Smurfit-
Stone shares outstanding as of the record date) or $6.26 per
Smurfit-Stone share if the former shareholder either voted against
the merger (representing approximately 7% of the Smurfit-Stone
shares outstanding as of the record date) or abstained or did not
vote with respect to the merger. The proposed settlement was
subject to a number of conditions, including final court approval.
A settlement approval hearing was held on December 9, 2011, and
the court entered a final order and judgment approving the
settlement on February 2, 2012. No appeal was filed, and the
settlement is therefore final.
The deadline for class members to participate in any quasi-
appraisal proceeding was April 9, 2012. As of the participation
deadline, the Company had received approximately $265,000 from
holders seeking quasi-appraisal with respect to approximately
12,200 shares of Smurfit-Stone common stock. The deadline for
class members to file quasi-appraisal petitions was May 9, 2012.
No such petition was filed as of the deadline. Accordingly, there
will not be any quasi-appraisal proceeding, and the Company has
returned the money it received from claimants.
On February 17, 2011, a putative class action complaint asserting
similar claims against RockTenn regarding the Smurfit-Stone
acquisition was filed in the United States District Court for the
Northern District of Illinois under the caption of Dabrowski v.
Smurfit-Stone Container Corp., et al., C.A. No. 1:11-cv-01136. On
August 4, 2011, the plaintiff voluntarily dismissed this matter
without prejudice. Four complaints on behalf of the same putative
class of Smurfit-Stone stockholders were filed in the Circuit
Court for Cook County, Illinois challenging RockTenn's acquisition
of Smurfit-Stone: Gold v. Smurfit-Stone Container Corp., et al.,
No. 11-CH-3371 (filed January 26, 2011); Roseman v. Smurfit-Stone
Container Corp., et al., No. 11-CH-3519 (filed January 27, 2011);
Findley v. Smurfit-Stone Container Corp., et al., No. 11-CH-3726
(filed January 28, 2011); and Czech v. Smurfit-Stone Container
Corp., et al., No. 11-CH-4282 (filed February 4, 2011). On
February 10, 2011, these cases were consolidated together. On
July 20, 2011, this consolidated matter was dismissed without
prejudice by agreement with plaintiffs.
All class litigation regarding the acquisition of Smurfit-Stone is
now concluded.
SEI INVESTMENTS: Awaits Order on Bid to Dismiss ETF-Related Suit
----------------------------------------------------------------
SEI Investments Company is awaiting a court decision on a motion
to dismiss a consolidated class action lawsuit against a
subsidiary, according to the Company's August 2, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
One of SEI's principal subsidiaries, SEI Investments Distribution
Co. (SIDCO), has been named as a defendant in certain putative
class action complaints (the Complaints) related to leveraged
exchange traded funds (ETFs) advised by ProShares Advisors, LLC.
The first complaint was filed on August 5, 2009. To date, the
Complaints have been filed in the United States District Court for
the Southern District of New York and in the United States
District Court for the District of Maryland. The three complaints
filed in the District of Maryland have been voluntarily dismissed
by the plaintiffs. Two of them were subsequently re-filed in the
Southern District of New York. Two of the complaints filed in the
Southern District of New York have also been voluntarily dismissed
by plaintiffs. The Complaints are purportedly made on behalf of
all persons that purchased or otherwise acquired shares in various
ProShares leveraged ETFs pursuant or traceable to allegedly false
and misleading registration statements, prospectuses and
statements of additional information. The Complaints name as
defendants ProShares Advisors, LLC; ProShares Trust; ProShares
Trust II, SIDCO, and various officers and trustees to ProShares
Advisors, LLC; ProShares Trust and ProShares Trust II. The
Complaints allege that SIDCO was the distributor and principal
underwriter for the various ProShares leveraged ETFs that were
distributed to authorized participants and ultimately
shareholders. The complaints allege that the registration
statements for the ProShares ETFs were materially false and
misleading because they failed adequately to describe the nature
and risks of the investments. The Complaints allege that SIDCO is
liable for these purportedly material misstatements and omissions
under Section 11 of the Securities Act of 1933. The Complaints
seek unspecified compensatory and other damages, reasonable costs
and other relief. Defendants have moved to consolidate the
complaints, which motion has been granted. The Court appointed
lead plaintiff on July 13, 2010, and an amended consolidated class
action complaint was filed on September 25, 2010, asserting
substantially the same claims. Defendants moved to dismiss on
November 15, 2010. On December 16, 2010, lead plaintiff informed
the Court and Defendants that lead plaintiff elected to file a
second amended consolidated complaint, which was filed on
January 31, 2011. Defendants filed a motion to dismiss the second
complaint on March 17, 2011. Oral argument on this motion was
held on February 2, 2012. While the outcome of this litigation is
uncertain given its early phase, SEI believes that it has valid
defenses to plaintiffs' claims and intends to defend the lawsuits
vigorously.
Based in Oaks, Pennsylvania and founded in 1968, SEI Investments
Co. -- http://www.seic.com/-- is a publicly owned investment
manager. The firm provides wealth management and investment
advisory services to its clients through its subsidiaries.
SMITH BARNEY: Judges Tosses Most of Fund Fee Class Action Claims
----------------------------------------------------------------
Adam Klasfeld at Courthouse News Service reports that nearly all
class-action claims against Citigroup, Smith Barney and their
officials have been scuttled by two interim Supreme Court rulings,
a federal judge ruled, quoting Virgil's "time bears away all
things."
"Virgil's maxim applies to legal theories as well," U.S. District
Judge William Pauley III wrote in his 23-page order.
"As the parties sparred over seven years before this Court and the
Court of Appeals, the law underlying plaintiffs' claims changed
considerably," he wrote.
A class of investors who bought shares in Smith Barney mutual
funds accused the investment adviser of negotiating a contract for
transfer agent services that "saddled the funds with excessive,
misleadingly disclosed fees," a recent 2nd Circuit ruling
summarized.
The fees were then steered to a Smith Barney affiliate, according
to investors.
The mutual funds were sponsored and managed by Citigroup Asset
Management, which contracted with First Data Investor Services
Group to perform transfer agent services for the funds. Transfer
agents process transactions, calculate daily net asset values,
distribute proxy materials and operate customer service centers,
among other things.
Citigroup publicly disclosed this arrangement, investors claimed,
but then created a subsidiary called Citicorp Trust Banks and
started farming out some of the transfer agent services to the new
subsidiary. Citigroup allegedly paid Citicorp a portion of the
fees collected from investors without telling the funds' board.
Investors said Citigroup began paying First Data less for its
services and then pocketed the difference between what it charged
the funds and what it paid First Data.
The United States Court of Appeals for the Second Circuit revived
claims against Smith Barney in February 2010.
On remand, Judge Pauley tossed all claims against Citigroup, Smith
Barney and investment manager Thomas Jones. He indicated that
those claims may once have been viable before two Supreme Court
decisions limited the liabilities of mutual funds, lawyers and
accountants accused of securities fraud.
"When this action began, the Supreme Court had not decided
Stoneridge or Janus," Judge Pauley wrote. "And plaintiffs are
largely unable to surmount the new hurdles erected by those
decisions."
Both rulings limited the reach of securities fraud statutes, and
scraped by on 5-4 and 5-3 margins.
But Judge Pauley said investors still have a claim against
Citigroup investment adviser Lewis Daidone, whose signature
appears on allegedly misleading statements.
"[T]he Citi Defendants' and Jones's motions to dismiss are granted
in their entirety," Judge Pauley concluded. "Daidone's motion to
dismiss is denied with respect to misleading statements in
documents on which his signature appears."
A copy of the Memorandum & Order in In re: Smith Barney Transfer
Agent Litigation, Case No. 05-cv-07583 (S.D.N.Y.), is available at
http://is.gd/5HbRAJ
STONE MOUNTAIN, GA: Sued Over Speed Detection Devices
-----------------------------------------------------
Leslie Johnson, writing for Stone Mountain-Redan Patch, reports
that an attorney in Decatur has filed a $50 million class action
civil lawsuit against the City of Stone Mountain, mayor Patricia
Wheeler, city manager Barry Amos, and police chief Chancey
Troutman, claiming illegal use of the police department's speed
detection devices, or laser.
According to the lawsuit, filed by attorney Jennifer Watts on
Aug. 9 in the U.S. District Court for the Northern District of
Georgia, for a period of three months the city failed to comply
with the following statute (O.C.G.A. 40-14-4): No law enforcement
agency may use speed detection devices, unless the agency
possesses a license in compliance with Federal Communications
Commission rules, and unless each device, before being placed in
service and annually after being placed in service, is certified
for compliance by a technician possessing a certification as
required by the Department of Public Safety.
"The City of Stone Mountain Police Department failed to comply
with this law beginning December 29, 2011, when their
certification expired; the certification was not renewed until
March 27, 2012," Ms. Watts' press release about the lawsuit says.
"During this three month time period, the City of Stone Mountain's
certification was expired."
According to Ms. Watts, "After acquiring knowledge of the expired
speed detection devices, the City of Stone Mountain knowingly and
intentionally continued to prosecute citizens of the State of
Georgia, collecting fines and fees of over $100,000. As a result
of these egregious acts, one of the Plaintiffs served sixty-seven
(67) days in the DeKalb County Jail, lost his job, vehicle,
apartment and all of his earthly possessions."
Ms. Watts claims that as of the filing date, there were more than
200 citations prosecuted with more pending.
City attorney Joe Fowler told Patch on Aug. 10 that he had not
seen the complaint and that it had been turned over to the
municipality's insurance carrier.
TIME WARNER: Appeal From Dismissal of "Fink" Suit Still Pending
---------------------------------------------------------------
On August 7, 2009, the plaintiffs in Jessica Fink and Brett Noia,
et al. v. Time Warner Cable Inc., filed an amended complaint in a
purported class action in the U.S. District Court for the Southern
District of New York alleging that the Company uses a throttling
technique which intentionally delays and/or blocks a user's high-
speed data service. The plaintiffs are seeking unspecified
monetary damages, injunctive relief and attorneys' fees. On
December 23, 2011, the district court granted with prejudice the
Company's motion to dismiss the plaintiffs' second amended
complaint, terminating the action. On January 23, 2012, the
plaintiffs appealed this decision to the U.S. Court of Appeals for
the Second Circuit.
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
The Company says it intends to defend against this lawsuit
vigorously, but is unable to predict the outcome of this lawsuit
or reasonably estimate a range of possible loss.
TIME WARNER: Appeal From Set-Top Cable MDL Dismissal Pending
------------------------------------------------------------
Time Warner Cable Inc. is the defendant in In re: Set-Top Cable
Television Box Antitrust Litigation, ten purported class actions
filed in federal district courts throughout the U.S. These actions
are subject to a Multidistrict Litigation ("MDL") Order
transferring the cases for pretrial proceedings to the U.S.
District Court for the Southern District of New York. On July 26,
2010, the plaintiffs filed a third amended consolidated class
action complaint (the "Third Amended Complaint"), alleging that
the Company violated Section 1 of the Sherman Antitrust Act,
various state antitrust laws and state unfair/deceptive trade
practices statutes by tying the sales of premium cable television
services to the leasing of set-top converter boxes. The
plaintiffs are seeking, among other things, unspecified treble
monetary damages and an injunction to cease such alleged
practices. On September 30, 2010, the Company filed a motion to
dismiss the Third Amended Complaint, which the court granted on
April 8, 2011. On June 17, 2011, the plaintiffs appealed this
decision to the U.S. Court of Appeals for the Second Circuit.
No further updates were reported in the Company's August 2, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
The Company says it intends to defend against this lawsuit
vigorously, but is unable to predict the outcome of this lawsuit
or reasonably estimate a range of possible loss.
TIME WARNER: Reached Agreement to Settle "Swinegar" Suit in May
---------------------------------------------------------------
Time Warner Cable Inc. disclosed in its August 2, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012, that it reached in May 2012 a
settlement to resolve the action filed by Mark Swinegar, et al. on
terms that are not material to it.
On November 14, 2008, the plaintiffs in Mark Swinegar, et al. v.
Time Warner Cable Inc., filed a second amended complaint in the
Los Angeles County Superior Court, as a purported class action,
alleging that the Company provided to and charged the plaintiffs
for equipment that they had not affirmatively requested in
violation of the proscription in the Cable Consumer Protection and
Competition Act of 1992 (the "Cable Act") against "negative option
billing" and that such violation was an unlawful act or practice
under California's Unfair Competition Law (the "UCL"). The
plaintiffs were seeking restitution under the UCL and attorneys'
fees. On October 7, 2010, the Company filed a petition for a
declaratory ruling with the Federal Communications Commission (the
"FCC") requesting that the FCC determine whether the Company's
general ordering process complies with the Cable Act's "negative
option billing" restriction. On March 1, 2011, the FCC issued a
declaratory ruling finding that informed consent is adequate to
satisfy the requirements under the Cable Act. On May 12, 2011,
the Los Angeles County Superior Court granted the Company's motion
for summary judgment. On June 13, 2011, the plaintiffs filed a
motion for reconsideration of the decision, which the court denied
on July 28, 2011. On September 26, 2011, the plaintiffs filed a
notice of appeal to the California Court of Appeals for the Second
District.
On May 1, 2012, the parties reached a settlement to resolve the
action on terms that are not material to the Company.
TIME WARNER: Still Defends "Downs" Suit vs. Insight in Kentucky
---------------------------------------------------------------
Time Warner Cable Inc. continues to defend its subsidiary from a
class action lawsuit commenced by Michelle Downs and Laurie
Jarrett, et al., according to the Company's August 2, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2012.
On August 9, 2010, the plaintiffs in Michelle Downs and Laurie
Jarrett, et al. v. Insight Communications Company, L.P. filed a
second amended complaint in the U.S. District Court for the
Western District of Kentucky, as a purported class action,
alleging that Insight Communications Company, L.P. violated
Section 1 of the Sherman Antitrust Act by tying the sales of
premium cable television services to the leasing of set-top
converter boxes, which is similar to the federal claim against the
Company in In re: Set-Top Cable Television Box Antitrust
Litigation. The plaintiffs are seeking, among other things,
unspecified treble monetary damages and an injunction to cease
such alleged practices.
No further updates were reported in the Company's latest SEC
filing.
The Company says it intends to defend against this lawsuit
vigorously, but is unable to predict the outcome of this lawsuit
or reasonably estimate a range of possible loss.
TIME WARNER: Time to Appeal in "Brantley" Suit Not Expired Yet
--------------------------------------------------------------
Time Warner Cable Inc. said in its August 2, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012, that the time to appeal the denial of
"Brantley" plaintiffs' petition for en banc rehearing has not yet
expired.
On September 20, 2007, Brantley, et al. v. NBC Universal, Inc., et
al. was filed in the U.S. District Court for the Central District
of California against the Company. The complaint, which also
named as defendants several other cable and satellite providers
(collectively, the "distributor defendants") as well as
programming content providers (collectively, the "programmer
defendants"), alleged violations of Sections 1 and 2 of the
Sherman Antitrust Act. Among other things, the complaint alleged
coordination between and among the programmer defendants to sell
and/or license programming on a "bundled" basis to the distributor
defendants, who in turn purportedly offer that programming to
subscribers in packaged tiers, rather than on a per channel (or "a
la carte") basis. The plaintiffs, who seek to represent a
purported nationwide class of cable and satellite subscribers, are
seeking, among other things, unspecified treble monetary damages
and an injunction to compel the offering of channels to
subscribers on an "a la carte" basis. On October 15, 2009, the
district court granted with prejudice a motion by the distributor
defendants and the programmer defendants to dismiss the
plaintiffs' third amended complaint, terminating the action.
On March 30, 2012, the U.S. Court of Appeals for the Ninth Circuit
affirmed the district court's dismissal of the plaintiffs' lawsuit
and, on April 10, 2012, the plaintiffs filed a petition for en
banc rehearing. On May 4, 2012, the U.S. Court of Appeals for the
Ninth Circuit denied the petition. The time to appeal this
decision has not yet expired.
The Company says it intends to defend against this lawsuit
vigorously, but is unable to predict the outcome of this lawsuit
or reasonably estimate a range of possible loss.
UNIVERSITY MEDICAL CENTER: Faces Overtime Class Action
------------------------------------------------------
Dave Toplikar, writing for Las Vegas Sun, reports that a class
action lawsuit has been filed in federal court against University
Medical Center by three respiratory therapists who claim the
hospital owes them compensation for the last three years for
regularly deducting 30 minutes each day for meal breaks -- even
though they couldn't take meal breaks.
The lawsuit, seeking unspecified damages, was filed by Daniel
Small, Carolyn Small and William Curtin for themselves and "at
least 50" other hourly respiratory therapists.
Danita Cohen, UMC's public relations director, said that because
the case is pending, the hospital is unable to comment. UMC has
not responded to the complaint.
The attorneys who filed the suit have not responded to inquiries
about the case, saying they would release a statement soon.
The lawsuit alleges that during the last three years, the UMC
employees were required to be on call during their 30-minute lunch
periods.
They say UMC violated federal and state wage laws by
"automatically deducting 30 minutes each day for meal break times
regardless of whether a bona fide 30-minute meal break was
actually taken."
The lawsuit says the respiratory therapists "couldn't take
uninterrupted bona fide 30-minute breaks because they were on-call
and were required to carry a pager and required to immediately
respond to requests made by doctors and nurses to assist patients
with respiratory issues."
The suit says they seek to represent a class of persons who were
are or will be employed by UMC as hourly employees "who are
required, suffered or permitted to work more than 40 hours per
week without the proper overtime compensation."
They said each employee, according to the Fair Labor Standards
Act, must be paid overtime equal to at least 1.5 times the
employee's regular rate of pay for all hours worked in excess of
40 hours per week.
ZYNGA INC: Faces More Securities Class Action Suit in California
----------------------------------------------------------------
Hooman Moayyed, Individually and on Behalf of All Others Similarly
Situated v. Zynga, Inc., Mark Pincus, David M. Wehner and John
Schappert, Case No. 3:12-cv-04250 (N.D. Calif., August 13, 2012)
is brought on behalf of all purchasers of Zynga common stock
between December 16, 2011, and July 25, 2012, inclusive.
The Plaintiff alleges that the Defendants violate the anti-fraud
provisions of the federal securities laws. The Plaintiff contends
that the representations made by the Defendants during the Class
Period were each materially false and misleading because the
Defendants failed to disclose the true facts which were known or
recklessly disregarded by them.
Hooman Moayyed acquired Zynga common stock during the Class
Period.
Zynga, a Delaware corporation headquartered in San Francisco,
California, is a provider of online networking games. The
Individual Defendants are directors and officers of the Company.
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
E-mail: shawnw@rgrdlaw.com
- and -
Darren J. Robbins, Esq.
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
- and -
Alfred G. Yates, Jr., Esq.
LAW OFFICE OF ALFRED G. YATES, JR., P.C.
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Telephone: (412) 391-5164
Facsimile: (412) 471-1033
E-mail: yateslaw@aol.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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