/raid1/www/Hosts/bankrupt/CAR_Public/120924.mbx
C L A S S A C T I O N R E P O R T E R
Monday, September 24, 2012, Vol. 14, No. 189
Headlines
ADVANTA CORP: Judge Affirms Decision to Revive Securities Suit
ALLERGAN INC: Sued for Recording Telephone Calls Without Consent
ALPHATEC HOLDINGS: Awaits Order on Bid to Dismiss Securities Suit
AMERICAN REPROGRAPHICS: Ex-Employee's Class Suit Remains Pending
ARCTIC ZERO: Sued Over False Advertising on Frozen Desserts
ASPENBIO PHARMA: Colorado Court Dismisses Class Action
ASSISTED LIVING: D&Os Face Shareholder Class Action in Wisconsin
AUDIENCE INC: Faces IPO-Related Securities Suit in California
AUTHENTEC INC: Defends Suits Over Apple's Proposed Acquisition
BANK OF THE OZARKS: Defends Suit Over Overdraft Fee in Arkansas
BEHRINGER HARVARD: Glancy Binkow & Goldberg Files Class Action
BP: Two Lawyers to Urge Clients to Drop Out of Settlement
BROADWIND ENERGY: Continues to Defend Shareholder Suit in Ill.
CHULA VISTA, CA: Judge Certifies Tax Refund Class Action
CLUB CAR: Recalls 4,000 Golf Cars and Utility Vehicles
CONWAY, AR: Faces Class Action for Breach of Contract
COOPER INDUSTRIES: Faces Shareholder Suit Over Eaton Merger
DISH NETWORK: Plaintiffs Seek Review of Antitrust Suit Dismissal
DORCHESTER MINERALS: Awaits OK of Royalty Underpayment Suit Deal
ENERGY TRANSFER: Faces Suits Over Proposed Sunoco Acquisition
ENTERPRISE FINANCIAL: Defends "Scott" Class Suit in Missouri
EXPEDIA INC: Sued for Restraining Room Reservation Competition
FIDELITY NATIONAL: Settles J. Alexander Merger Class Action
FREDDIE MAC: Seneca, Martin and Faribault Counties Join Class Suit
GENTIVA HEALTH: Acquisition-Related Suits Settlement OK'd in May
GENTIVA HEALTH: Awaits Approval of "Wilkie" Suit Settlement
GENTIVA HEALTH: Summary Judg. Bids Pending in "Rindfleisch" Suit
GENTIVA HEALTH: Awaits Ruling on Bid to Dismiss Securities Suit
GUAM: Depositions in Political Status Referendum Suit Begin
HILLENBRAND INC: 5th Cir. Affirms Class Cert. Denial in FCA Suit
JUNIPER NETWORKS: Securities Class Suit Dismissed in July
KINDRED HEALTHCARE: Subject to Suits Over Employee-Related Claims
KINDRED HEALTHCARE: Facilities Subject to "Staffing" Class Suits
KROGER CO: Recalls Fresh Selections Tender Spinach
LEXMARK INT'L: Appeal From Court Ruling in "Molina" Suit Pending
NESTLE PURINA: Sued Over Contaminated Chicken Jerky Pet Food
NRG ENERGY: Faces Eight Suits Over Proposed GenOn Acquisition
NRG ENERGY: Units Face Class Suits in New York and New Jersey
OPTION ONE: African-American Borrowers Lose Certification Bid
QUANTA SERVICES: Tentative Deal Reached in Suits Over Wildfires
ST. LOUIS COUNTY, MO: Bank Sues Over New Foreclosure Law
SUPPORT.COM INC: Awaits OK of Software-Related Suit Settlement
VIASYSTEMS GROUP: Awaits Approval of DDi Acquisition Suits Deal
ZIONS BANCORPORATION: Defends Suits Pending in Various States
ZYNGA INC: Law Offices of Curtis V. Trinko Files Class Action
*********
ADVANTA CORP: Judge Affirms Decision to Revive Securities Suit
--------------------------------------------------------------
Linda Chiem, writing for Law360, reports that a Pennsylvania
federal judge on Sept. 18 affirmed her decision to revive an
amended securities class action alleging directors of defunct
credit card company Advanta Corp. and its auditor KPMG LLP
concealed Advanta's bleak finances from investors, saying the
plaintiffs' allegations were sufficiently pled.
U.S. District Judge Cynthia Rufe denied KPMG's motion for
reconsideration of her July 16 decision refusing the auditor's
attempt to have the suit tossed.
ALLERGAN INC: Sued for Recording Telephone Calls Without Consent
----------------------------------------------------------------
Courthouse News Service reports that Allergan surreptitiously
records calls to its 800 number about its lap band product, during
which people discuss private medical information, and uses it "for
various business purposes," a class action claims in Superior
Court.
A copy of the Complaint in Toczynski v. Allergan, Inc., et al.,
Case No. 56-2012-00424170 (Calif. Super. Ct., Ventura Cty.), is
available at:
http://www.courthousenews.com/2012/09/19/Multitude.pdf
The Plaintiff is represented by:
Zev B. Zysman, Esq.
LAW OFFICES OF ZEV B. ZYSMAN
15760 Ventura Boulevard, Suite 1915
Encino, CA 91436
Telephone: (818) 783-8836
E-mail: zev@zysmanlawca.com
ALPHATEC HOLDINGS: Awaits Order on Bid to Dismiss Securities Suit
-----------------------------------------------------------------
Alphatec Holdings, Inc. is awaiting a court decision on its motion
to dismiss an amended securities class action lawsuit pending in
California, according to the Company's August 8, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On August 10, 2010, a purported securities class action complaint
was filed in the United States District Court for the Southern
District of California on behalf of all persons who purchased the
Company's common stock between December 19, 2009, and August 5,
2010, against the Company and certain of its directors and
executives alleging violations of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 thereunder. On February 17,
2011, an amended complaint was filed against the Company and
certain of its directors and officers adding alleged violations of
the Securities Act of 1933. HealthpointCapital, Jefferies &
Company, Inc., Canaccord Adams, Inc., Cowen and Company, Inc., and
Lazard Capital Markets LLC are also defendants in this action.
The complaint alleges that the defendants made false or misleading
statements, as well as failed to disclose material facts, about
the Company's business, financial condition, operations and
prospects, particularly relating to the Scient'x transaction and
the Company's financial guidance following the closing of the
acquisition. The complaint seeks unspecified monetary damages,
attorneys' fees, and other unspecified relief.
On March 21, 2012, the Court granted the defendants' motions to
dismiss the plaintiff's complaint against all defendants and gave
the plaintiff leave to file an amended complaint. On April 19,
2012, the plaintiff filed an amended complaint and the defendants
have answered this amended complaint with a motion to dismiss the
amended complaint.
The Company believes the claims are without merit and intends to
vigorously defend itself against this complaint; however no
assurances can be given as to the timing or outcome of this
lawsuit.
Alphatec Holdings, Inc. -- http://www.alphatecspine.com/-- a
medical technology company, designs, develops, manufactures, and
markets products for the surgical treatment of spine disorders,
primarily focusing on the aging spine in the United States and
internationally. The Company was incorporated in 2005 and is
headquartered in Carlsbad, California.
AMERICAN REPROGRAPHICS: Ex-Employee's Class Suit Remains Pending
----------------------------------------------------------------
On October 21, 2010, a former employee, individually and on behalf
of a purported class consisting of all non-exempt employees who
work or worked for American Reprographics Company, L.L.C. and
American Reprographics Company in the State of California at any
time from October 21, 2006, through October 21, 2010, filed an
action against the Company in the Superior Court of California for
the County of Orange. The complaint alleges, among other things,
that the Company violated the California Labor Code by failing to
(i) provide meal and rest periods, or compensation in lieu
thereof, (ii) timely pay wages due at termination, and (iii) that
those practices also violate the California Business and
Professions Code. The relief sought includes damages,
restitution, penalties, interest, costs, and attorneys' fees and
such other relief as the court deems proper. The Company has not
included any liability in its Consolidated Financial Statements in
connection with this matter. The Company cannot reasonably
estimate the amount or range of possible loss, if any, at this
time.
No further updates were reported in the Company's August 8, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
American Reprographics Company -- http://www.e-arc.com/-- a
reprographics company, provides specialized document solutions to
various businesses. The Company provides reprographics services,
which include operational activities, such as document management
services, document logistics, large- and small-format print-on-
demand services, and digital document management services. It
operates 220 reprographics service centers, including 199 in the
United States, 7 in Canada, 11 in China, 2 in India, and 1 in
London, the United Kingdom. The Company was founded in 1960 and
is headquartered in Walnut Creek, California.
ARCTIC ZERO: Sued Over False Advertising on Frozen Desserts
-----------------------------------------------------------
Courthouse News Service reports that Arctic Zero claims its frozen
desserts have 150 calories per pint, though they have 46 percent
to 68 percent more calories than that, a class action claims in
Federal Court.
A copy of the Complaint in Freeman v. Arctic Zero, Inc., Case No.
12-cv-02279 (S.D. Calif.), is available at:
http://www.courthousenews.com/2012/09/19/TooFat.pdf
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
E-mail: ltfisher@bursor.com
swestcot@bursor.com
ASPENBIO PHARMA: Colorado Court Dismisses Class Action
------------------------------------------------------
AspenBio Pharma, Inc. on Sept. 18 disclosed that the United States
District Court for Colorado has dismissed and entered judgment
without prejudice in both the class action lawsuit (Case No. 11-
cv-00165-REB-KMT) against the company and certain of its former or
current officers and directors, and the Mark Chipman lawsuit (Case
No. 11-cv-00163-REB-KMT) against the company.
"We are very pleased with the court's decisions," stated Steve
Lundy, President and CEO of AspenBio. "We continue to execute on
our priority of advancing AppyScore(TM) toward commercialization."
About AspenBio Pharma
AspenBio Pharma, Inc. -- http://www.aspenbiopharma.com-- is an in
vitro diagnostic company focused on the clinical development and
commercialization of its lead product, AppyScore.
ASSISTED LIVING: D&Os Face Shareholder Class Action in Wisconsin
----------------------------------------------------------------
Lisa Buchmeier at Courthouse News Service reports that Assisted
Living Concepts cost shareholders $100 million by "consistently
and systematically violating the laws in numerous states" in its
assisted living centers, a shareholder claims in a derivative
complaint.
Named plaintiff George Passaro sued 11 executives, directors and
former directors of the company, in Milwaukee County Court. The
company and its subsidiaries operate assisted living centers in 20
states.
This is the third lawsuit, and the second class action, involving
Assisted Living Concepts since June.
Mr. Passaro claims the directors "failed to take action to correct
widespread deficiencies" despite "repeated violations, fines and
warnings from regulators throughout the entire period of time that
Assisted Living Concepts has been a publicly traded company."
A landlord for eight of the company's homes sued it in April this
year, "alleging that the company breached its lease by failing to
comply with regulatory requirements," the complaint states. "As a
result, the company was forced to spend $97 million to purchase
the properties, plus an additional $3 million 'litigation
settlement fee,' in order to resolve the action with its
landlord."
According to the complaint: "Contrary to the company's statement,
for the entire period of time that ALC has been a publicly traded
company it has operated its facilities in violation of numerous
state regulations, resulting in a multitude of fines and other
penalties. ALC's facilities are consistently understaffed, fail
to maintain adequate records, and failed to properly provide
medication, putting residents' health and safety at risk. ALC's
facilities' violations range from refusing to supply toilet paper
and soap to its resident, to being so understaffed that a resident
was left behind when evacuating a building during a fire, to
falsifying documents in order to conceal regulatory violations.
Despite the repeated violations and fines, and in a number of
instances, license revocation proceedings, the individual
defendants . . . failed to take appropriate action to correct the
misconduct or prevent its recurrence."
To top it off, Mr. Passaro says, the company disclosed in August
"that it is being investigated by the Securities and Exchange
Commission," which has subpoenaed it for documents.
In what Mr. Passaro calls "only a sampling of egregious
violations," he alleges more than 20 examples of legal and
regulatory noncompliance in 16 states, including providing
services without a license, decertification for uncorrected
violations, repeated violations despite a resident's death,
repeated failure to protect residents from financial exploitation,
failure to provide medications and finding "imminent harm" to
residents.
He claims the defendant officers and directors "willfully approved
the company's illegal and improper conduct and ignored the obvious
and pervasive problems with the company's legal and regulatory
compliance, and failed to make a good faith effort to correct the
problems or prevent their recurrence."
Lead defendant is Laurie A. Bebo, who was Assisted Living's
president and CEO from 2006-2012.
Assisted Living and Ms. Bebo were sued in August in a federal
class action alleging securities violations.
And Ms. Bebo sued Assisted Living in June, in Waukesha County
Court, claiming it failed to provide records she requested to
"ascertain her risk and exposure" from an internal investigation
by the company's audit committee.
Mr. Passaro seeks costs and damages for breach of fiduciary duty.
A copy of the Complaint in Passaro v. Bebo, et al., Case No.
12CV010106 (Wis. Cir. Ct., Milwaukee Cty.), is available at:
http://www.courthousenews.com/2012/09/18/AssistedLiving.pdf
The Plaintiff is represented by:
Guri Ademi, Esq.
Shpetim Ademi, Esq.
David J. Syrios, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
- and -
Eric L. Zagar, Esq.
Robin Winchester, Esq.
Kristen L. Ross, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
E-mail: ezagar@ktmc.com
rwinchester@ktmc.com
kross@ktmc.com
AUDIENCE INC: Faces IPO-Related Securities Suit in California
-------------------------------------------------------------
Brent T. Robinson, Individually and on Behalf of All Others
Similarly Situated v. Audience, Inc., Peter B. Santos, Mohan S.
Gyani, Kevin S. Palatnik, Forest Baskett, Marvin D. Burkett, Barry
L. Cox, Rich Geruson, George A. Pavlov, J.P. Morgan Securities
LLC, Credit Suisse Securities (USA) LLC, Deutsche Bank Securities
Inc., Pacific Crest Securities LLC and Does 1 through 25,
inclusive, Case No. 1-12-CV-232227 (Calif. Super. Ct., Santa Clara
Cty., September 13, 2012) is a securities class action brought on
behalf of all persons, who purchased or otherwise acquired the
common stock of Audience pursuant or traceable to the Company's
alleged false and misleading Registration Statement and Prospectus
issued in connection with its May 9, 2012 initial public offering.
The Plaintiff alleges that the true facts, which were known by the
Defendants but were not disclosed to the investing public in the
Registration Statement and Prospectus, were:
(a) Audience's contract with Apple Inc. for its earSmart
technology was in jeopardy. For the iPhone 5, Apple would
be handling the function in-house, integrating its own
voice isolation/noise cancellation technology into its
mobile devices;
(b) Audience's competitive edge and leadership position in the
noise cancellation market had eroded; and
(c) Audience lacked a reasonable basis for its statements
about its lucrative prospects in the noise-cancelling
market.
The Plaintiff acquired the common stock of Audience pursuant or
traceable to the IPO and has been damaged thereby.
Audience is a provider of voice and audio solutions that improve
voice quality and the user experience in mobile devices. The
Individual Defendants are directors and officers of the Company.
JP Morgan is the U.S. investment banking arm of financial services
giant JPMorgan Chase & Co. and provides debt and equity
underwriting, M&A and corporate restructuring advisory, securities
dealing and brokerage, and trade execution services for large-
market companies and institutional investors. Credit Suisse
operates as an investment bank in the United States and its
businesses include securities underwriting, sales and trading,
investment banking, private equity, alternative assets, financial
advisory services, investment research, and asset management.
Deutsche Bank is the U.S. investment banking and securities arm of
Deutsche Bank AG. Deutsche Bank provides investment banking
products and services. Pacific Crest provides investment banking
products and services. JP Morgan, Credit Suisse, Deutsche Bank
and Pacific Crest acted as underwriters for Audience's IPO,
helping to draft and disseminate the offering documents. The true
names and capacities of the Doe Defendants are presently not known
to the Plaintiff.
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.
Catherine J. Kowalewski, 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
katek@rgrdlaw.com
AUTHENTEC INC: Defends Suits Over Apple's Proposed Acquisition
--------------------------------------------------------------
AuthenTec, Inc. is defending nine shareholder class action
lawsuits arising from its proposed acquisition by Apple Inc.,
according to the Company's August 8, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 29, 2012.
On July 26, 2012, the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Apple Inc., and Bryce
Acquisition Corporation, a wholly owned subsidiary of Apple
("Merger Sub"), providing for the merger of Merger Sub into
AuthenTec (the "Merger"), with AuthenTec surviving the Merger as a
wholly owned subsidiary of Apple. The Merger Agreement was
unanimously approved by AuthenTec's Board of Directors.
Between July 30, 2012, and August 7, 2012, nine putative class
action complaints were filed on behalf of alleged public
stockholders of AuthenTec. Seven of the lawsuits, Lee v.
AuthenTec, Inc., et al., Case No. 7735, Perez, v. AuthenTec, Inc.,
et al., Case No. 7739, Safdeye v. AuthenTec, Inc., et al., Case
No. 7741, Hooten v. AuthenTec, Inc., et al., Case No. 7748,
Cambareri v. AuthenTec, Inc., et al., Case No. 7751, Dolan v.
Ciaccia, et al., Case No. 7754, and Sullivan v. AuthenTec, Inc.,
et al., Case No. 7756, were filed in the Court of Chancery for the
State of Delaware. Two of the lawsuits, Brown v. AuthenTec, Inc.,
et al., Case No. 05-2012-CA57589, and Hogan v. AuthenTec, Inc., et
al., 05-2012-CA-046127, were filed in the Circuit Court of the
Eighteenth Judicial Circuit for Brevard County, Florida. The
defendants include AuthenTec, members of AuthenTec's board of
directors, Apple Inc. ("Apple"), and Apple's wholly owned
subsidiary, Bryce Acquisition Corporation. The lawsuits allege,
among other things, that AuthenTec's directors breached their
fiduciary duties in connection with the proposed merger of Bryce
Acquisition Corporation into AuthenTec, with AuthenTec surviving
the merger as a wholly subsidiary of Apple, by failing to maximize
stockholder value and that Apple and Bryce Acquisition Corporation
aided and abetted the various breaches of fiduciary duty. Among
other things, the lawsuits seek to enjoin AuthenTec and its
directors from consummating the proposed merger.
BANK OF THE OZARKS: Defends Suit Over Overdraft Fee in Arkansas
---------------------------------------------------------------
Bank of the Ozarks, Inc. is defending a class action lawsuit over
overdraft fees in Arkansas, according to the Company's August 8,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
On January 5, 2012, the Company and its Arkansas state chartered
subsidiary bank, Bank of the Ozarks (the "Bank") were served with
a summons and complaint filed on December 19, 2011, in the Circuit
Court of Lonoke County, Arkansas, Division III, styled Robert
Walker, Ann B. Hines and Judith Belk vs. Bank of the Ozarks, Inc.
and Bank of the Ozarks, No. CV-2011-777. The complaint alleges
that the defendants have harmed the plaintiffs, former customers
of the Bank, by improper, unfair and unconscionable assessment and
collection of excessive overdraft fees from the plaintiffs.
According to the complaint, plaintiffs claim that the Bank employs
sophisticated software to automate its overdraft system, and that
this system unfairly and inequitably manipulates and alters
customers' transaction records in order to maximize overdraft
penalties, particularly utilizing a practice of posting of items
in "high-to-low" order, despite the actual sequence in which such
items are presented for payment. Plaintiffs claim that the Bank's
deposit agreements with customers do not adequately disclose the
Bank's overdraft assessment policies and are ambiguous, deceptive,
unfair and misleading. Plaintiffs' complaint also alleges that
these actions and omissions constitute breach of contract, breach
of the implied covenant of good faith and fair dealing,
unconscionable conduct, conversion, unjust enrichment and
violation of the Arkansas Deceptive Trade Practices Act. The
plaintiffs seek to have the case certified by the court as a class
action for all Bank account holders similarly situated, and seek a
declaratory judgment as to the wrongful nature of the Bank's
overdraft fee policies, restitution of overdraft fees paid by the
plaintiffs and the putative class as a result of the actions cited
in the complaint, disgorgement of profits as a result of the
alleged wrongful actions and unspecified compensatory and punitive
damages, together with pre-judgment interest, costs and
plaintiffs' attorneys' fees. The Company believes the plaintiffs'
claims are unfounded and intends to defend against these claims.
BEHRINGER HARVARD: Glancy Binkow & Goldberg Files Class Action
--------------------------------------------------------------
Glancy Binkow & Goldberg LLP, representing investors of Behringer
Harvard REIT I, Inc., on Sept. 18 disclosed that it has filed a
class action lawsuit in the United States District Court for the
Northern District of Texas on behalf of all persons who were
shareholders of record of BH REIT common stock as of April 1, 2011
and were entitled to vote on the Schedule 14 that BH REIT filed
with the SEC on that date as well as all persons who were entitled
to tender their BH REIT shares pursuant to the Tender Offer
Statements on Schedule TO under Section 14(d)(1) or 13(e)(1) of
the Exchange Act, filed with the SEC by CMG Legal Income Funds on
August 23, 2011 and February 23, 2012. Additionally, the
complaint seeks recovery for shareholders who purchased or
otherwise acquired shares in BH REIT from February 19, 2003 to the
present for breach of fiduciary duty by the Company and its
directors and officers.
A copy of the Complaint is available from the court or from Glancy
Binkow & Goldberg LLP. Please contact us by phone to discuss this
action or to obtain a copy of the Complaint at (310) 201-9150 or
Toll Free at (888) 773-9224, or by e-mail at
shareholders@glancylaw.com
BH REIT, together with its wholly owned subsidiaries, is a real
estate investment trust that owns 57 properties located in 21
states and the District of Columbia. The Complaint alleges that
the defendants made false and/or misleading statements and/or
failed to disclose material information to the Proxy Class in a
Schedule 14(a) filed on April 1, 2011 that sought to amend the
Company's charter to require any person making a tender offer to
comply with the provision of Regulation 14D of the Securities and
Exchange Act of 1934. The Complaint alleges that the Schedule
14(a) misrepresented Defendants' motive for seeking to amend the
Company's charter. Additionally, the Complaint alleges that
Defendants made false and/or misleading statements and/or failed
to disclose material information to the Tender Class in Schedule
14D-9(s) filed on September 7, 2011 and February 23, 2012 in
response to Tender Offers the Company's shareholders had received.
The Complaint alleges that the 14D-9(s) misrepresented the value
of the Company and information regarding past distributions that
the Company had made to its shareholders. Further, the Complaint
alleges that Defendants have breached their fiduciary to duties to
all BH REIT shareholders.
If you are a member of the Tender or Proxy classes described
above, you may move the Court, no later than 60 days from the date
of publication of this notice to serve as lead plaintiff; however,
you must meet certain legal requirements. If you would like to
learn more about these claims, or have any questions concerning
this Notice or your rights or interests with respect to these
matters, please contact Louis Boyarsky, Esquire, of Glancy Binkow
& Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles,
California 90067, by telephone at (310) 201-9150 or Toll Free at
(888) 773-9224, by e-mail to shareholders@glancylaw.com or visit
our Web site at http://www.glancylaw.com
BP: Two Lawyers to Urge Clients to Drop Out of Settlement
---------------------------------------------------------
Chron reports that two leading attorneys for plaintiffs in the BP
oil-spill case plan to recommend to their thousands of clients to
drop out of the class-action settlement and try their luck in
court.
Tony Buzbee, a Houston-based attorney representing more than
12,000 individual plaintiffs, said he plans to advise his clients
they can get a better deal than the proposed settlement negotiated
by BP and the Plaintiffs' Steering Committee, a group of attorneys
appointed by the federal court to represent individual plaintiffs.
The settlement was negotiated for an estimated $7.8 billion to
cover claims of individuals and businesses in the Gulf Coast
region in the wake of the 2010 disaster. It still must be
approved by a federal court after a fairness hearing scheduled for
Nov. 8.
Plaintiffs who want to opt out must inform the court by Nov. 1
that they don't want to be included in the class-action
settlement.
"In light of the results seen so far, we would be crazy to
recommend to our clients to participate in a settlement that will
force clients to agree to a process that may pay them nothing, and
preclude their court rights," Mr. Buzbee wrote in an e-mail to the
Houston Chronicle.
The settlement would resolve damages to individuals from the
Deepwater Horizon explosion, which killed 11 rig workers and led
to a spill of millions of barrels of oil.
New Orleans attorney Stuart Smith, who represents several thousand
clients, said he is also considering recommending his clients
decline the settlement.
"As things now stand, we are going to recommend that our clients
opt out unless they receive an acceptable offer before the
deadline," Mr. Smith said. "This settlement in my opinion is
lawyer-driven and completely inadequate."
BP spokesman Scott Dean said that the company had no comment.
Legal experts said some plaintiff attorneys may be using the
threat to pressure the Deepwater Horizon Claims Facility to
provide more offers prior to the deadline.
"To me it sounds like they are trying to get some movement on the
settlement by threatening to drop out," said Blaine LeCesne, a
torts law professor at Loyola University. "It is an effort to get
some sort resolution of enough of the claims so they can make an
informed decision on whether they should opt out."
Brent Coon, a Beaumont-based attorney representing about 15,000
clients, has expressed frustration over slow settlement offers.
He said he will advise his clients individually on the merits of
their claims and believes many will take the settlement offer.
"We are not going to implement a mass exodus of our clients,"
Mr. Coon said. " . . . Some of our clients are going to be
beneficiaries of this class, and we are going to recommend that
they take it."
Legal expert David Uhlmann, a former head of the Justice
Department's environmental-crimes section who now teaches law at
the University of Michigan, does not believe the potential opt-
outs will derail the settlement.
"The settlement is favorable for many victims of the spill and is
likely to be approved" by U.S. District Judge Carl Barbier,
Mr. Uhlmann said. "Those who opt out may wait a long time for
their day in court if the judge feels they rejected a reasonable
settlement."
BROADWIND ENERGY: Continues to Defend Shareholder Suit in Ill.
--------------------------------------------------------------
Broadwind Energy, Inc. continues to defend itself against
remaining claims in a shareholder class action lawsuit pending in
Illinois, according to the Company's August 8, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On February 11, 2011, a putative class action was filed in the
United States District Court for the Northern District of
Illinois, Eastern Division, against the Company and certain of its
current or former officers and directors. The lawsuit is
purportedly brought on behalf of purchasers of the Company's
common stock between March 17, 2009, and August 9, 2010. A lead
plaintiff has been appointed and an amended complaint was filed on
September 13, 2011. The amended complaint names as additional
defendants certain of the Company's current and former directors,
certain Tontine entities, and Jeffrey Gendell, a principal of
Tontine. The complaint seeks to allege that the defendants
violated Section 10(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 10b-5 promulgated
thereunder, and/or Section 20(a) of the Exchange Act by issuing or
causing to be issued a series of allegedly false and/or misleading
statements concerning the Company's financial results, operations,
and prospects, including with respect to the January 2010
secondary public offering of the Company's common stock. The
plaintiffs allege that the Company's statements were false and
misleading because, among other things, the Company's reported
financial results during the class period allegedly violated
generally accepted accounting principles because they failed to
reflect the impairment of goodwill and other intangible assets,
and the Company allegedly failed to disclose known trends and
other information regarding certain customer relationships at Brad
Foote. In support of their claims, the plaintiffs rely in part
upon six alleged confidential informants, all of whom are alleged
to be former employees of the Company.
On November 18, 2011, the Company filed a motion to dismiss. On
April 19, 2012, the Court granted in part and denied in part the
Company's motion. The Court dismissed all claims with prejudice
against each of the named current and former officers except for
J. Cameron Drecoll and held that the plaintiffs had failed to
state a claim for any alleged misstatements made after March 19,
2010. In addition, the Court dismissed all claims with prejudice
against the named Tontine entities and Mr. Gendell. The Court
denied the motion with respect to certain of the claims asserted
against the Company and Mr. Drecoll.
The Company filed its answer and affirmative defenses on May 21,
2012, and intends to vigorously defend the remaining claims
asserted against it.
Because of the preliminary nature of these lawsuits, the Company
says it is not able to estimate a loss or range of loss, if any,
that may be incurred in connection with this matter at this time.
Broadwind Energy, Inc. provides technologically advanced high-
value products and services to customers in the energy, mining and
infrastructure sectors, primarily in the United States. Its most
significant presence is within the U.S. wind industry, where its
product and service portfolio provides its customers, including
wind turbine manufacturers, wind farm developers and wind farm
operators, with access to a broad array of component and service
offerings. The Company is based in Naperville, Illinois.
CHULA VISTA, CA: Judge Certifies Tax Refund Class Action
--------------------------------------------------------
Doug Sherwin, writing for The San Diego Source Daily Transcript,
reports that San Diego Superior Court Judge Richard E.L. Strauss
has certified as a class action a tax refund case brought against
the city of Chula Vista. The case is now set to go to trial
Jan. 18, 2013.
Last year, San Diego-based Casey Gerry Schenk Francavilla Blatt &
Penfield and Newport Beach-based Capretz & Associates filed the
lawsuit, claiming Chula Vista was charging more than 100,000 of
its residents an unlawful telephone users' tax on their mobile
phone service.
CLUB CAR: Recalls 4,000 Golf Cars and Utility Vehicles
------------------------------------------------------
About 4,000 golf cars and utility vehicles were voluntarily
recalled by Club Car LLC, of Augusta, Georgia, in cooperation with
the CPSC. Consumers should stop using the product immediately
unless otherwise instructed. It is illegal to resell or attempt
to resell a recalled consumer product.
The fuel tank filler neck can crack and allow fuel to leak, posing
a fire hazard.
Club Car has received 10 reports of incidents involving fuel tank
filler necks cracking. No injuries or fires have been reported.
This recall involves the following 2012 Club Car gasoline and
diesel golf cars and utility vehicles. The model and serial
numbers are located on a decal above the passenger's side floor
board. "Club Car" is printed on the front of the vehicles.
Model Number Serial Numbers
------------ --------------
Cafe Express AF 1239-316392 to 1246-332503
Carryall/Turf 1 FG, HG 1239-316644 to 1246-332427
Carryall/Turf 2 EG, PG, RG 1239-316132 to 1246-332511
Carryall/Turf 6 JU, JV, NG 1239-316388 to 1245-332426
Carryall 232 Gas XL 1240-318876 to 1246-332164
Carryall/Turf 252 XG, ZG 1239-316002 to 1245-333097
Carryall 295/XRT 1550 CL, 1240-318918 to 1246-332838
CM, RF, RJ, RY, TR, TT
Carryall 295 SE/XRT 1550 1244-328456 to 1246-33429
SE CC
DS Gas Golf Car AG 1239-316192 to 1246-333221
Precedent Gas CR, PR, PT, 1239-316628 to 1247-334839
PY, 1E, 1G, 1X
Precedent 4 Pass Gas PF, PW 1239-316811 to 1246-333096
Transporter 4 JT 1240-319376 to 1245-331978
Transporter 6 JQ 1240-321030 to 1243-326719
Villager 4 Gas TG 1242-325492 to 1246-333015
Villager 6 KG 1235-305704 to 1246-332456
Villager 8 MG 1239-318011 to 1246-332616
XRT 800 Gas HJ, XJ 1239-318111 to 1246-333316
XRT 900 AE 1243-326280 to 1245-331977
XRT 950 CT, CU, CV, KR, 1244-330247 to 1246-332929
KS, KT, KY
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12748.html
The recalled products were manufactured in the United States of
America and sold at authorized Club Car dealers nationwide from
April 2012 through June 2012 for between $5,500 and $17,700.
Consumers should stop using the recalled vehicles immediately and
contact Club Car for a free replacement fuel tank. The firm is
directly contacting consumers who purchased the vehicles. For
more information, contact Club Car at (800) 227-0739 ext. 3831
between 8:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday
or visit the recall page on the firm's Web site at
http://www.clubcar.com/and click on Safety Info.
CONWAY, AR: Faces Class Action for Breach of Contract
-----------------------------------------------------
Richard Duke, writing for thecabin.net, reports that a Conway
police officer and a Conway firefighter, citing breach of
contract, filed a lawsuit against the city of Conway in Faulkner
County Circuit Court on Sept. 18.
Richard Shumate, Jr., a police officer, and Damon Reed, a
firefighter, sued "on behalf of themselves and on behalf of all
other similarly situated persons and entities." The lawsuit was
filed by Wood Law Firm in Russellville.
The lawsuit alleges that the city had "unlawful use and allocation
of money derived from a voluntary salary improvement tax for
purposes other than for which it was collected." It also contains
a class action complaint for breach of contract "for hundreds of
general and street fund employees."
Both plaintiffs and class members are seeking restitution for what
they call "unlawful use and misappropriation of the salary
improvement tax monies." They are also seeking damages for what
they consider "future unlawful use or allocation of tax monies."
"The resolution signed [in 2001] is very specific when it comes
what the city can use the quarter-cent sales tax for," said
Russell Wood of Wood Law Firm. "What they cannot use it for is
other items such as equipment or to cover up financial debacles
the city has made."
Resolution R-01-18 was signed July 24, 2001 by current Conway
Mayor Tab Townsell, which stated that a quarter-cent sales tax to
be voted on the following month "shall be expended exclusively to
improve the salaries of those employees of the city whose current
salaries are determined by the city council to be under the proper
'market pay scales' for similar positions in similar cities in
Arkansas."
Mr. Wood said the city instituted a "step program" to entice
better applicants for city jobs. The program showed each employee
what they would make after a certain amount of time with each
department.
"[Conway] attracted quality applicants but did not pay them in the
way that they had promised," Mr. Wood said. "There are some
officers in Step 2 that should be in Step 6."
Mr. Wood said the purpose of the lawsuit is to "find out what
happened to the money from a voluntary tax that was supposed to go
to salary increases" and to establish a class action complaint on
behalf of all general and street fund employees.
Calls to city offices and to Shumate and Reed were not returned.
COOPER INDUSTRIES: Faces Shareholder Suit Over Eaton Merger
-----------------------------------------------------------
Cooper Industries plc is facing a shareholder class action lawsuit
over its proposed merger with Eaton Corporation, according to the
Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On May 21, 2012, Cooper entered into a Transaction Agreement (as
amended, the "Transaction Agreement") with Eaton Corporation
("Eaton"), Eaton Corporation Limited ("New Eaton") and certain
other entities. Under the terms of the Transaction Agreement, New
Eaton will acquire Cooper with each Cooper shareholder entitled to
receive $39.15 in cash and .77479 of a newly issued New Eaton
ordinary share in exchange for each outstanding Cooper ordinary
share (the "Acquisition"). In connection with the Acquisition,
Eaton will merge with a wholly owned subsidiary of New Eaton, a
newly formed Irish company (the "Merger"). As a result of the
Acquisition and Merger, both Eaton and Cooper will become wholly
owned subsidiaries of New Eaton (the "Transactions"). The
Transactions have been approved by the boards of directors of both
Eaton and Cooper. The closing of the Transactions is subject to
customary conditions, including receipt of approvals of both Eaton
and Cooper shareholders and under the antitrust laws of certain
jurisdictions, and is expected to close in 2012.
On July 9, 2012, two purported Cooper shareholders, the Louisiana
Municipal Police Employees Retirement System and Frank E. Waters,
filed a putative class action complaint in the United States
District Court for the Northern District of Ohio, Eastern
Division, styled Louisiana Municipal Police Employees Retirement
System v. Cooper Industries plc et. al., Case No. 1: 12-cv-1750,
challenging the transaction. The complaint alleges that Cooper,
its directors and Eaton disseminated a preliminary proxy statement
in connection with the transaction that contains material
omissions and misstatements in violation of federal securities
laws. The alleged omissions and misstatements concern: (a) the
sales process leading to the proposed acquisition and (b) the
analysis performed by Cooper's financial advisor. The complaint
further alleges that the conduct of Cooper's directors constitutes
shareholder oppression in violation of Irish law. Plaintiffs
request that consummation of the transaction be enjoined. Cooper
and Eaton believe that the claims asserted in the action are
without merit and intend to vigorously defend against them.
DISH NETWORK: Plaintiffs Seek Review of Antitrust Suit Dismissal
----------------------------------------------------------------
Plaintiffs in an antitrust class action against a subsidiary of
DISH Network Corporation filed a petition with the United States
Supreme Court seeking review of the dismissal of their lawsuit,
according to the Company's August 8, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
During 2007, a purported class of cable and satellite subscribers
filed an antitrust action against the Company's wholly-owned
subsidiary, DISH Network L.L.C., in the United States District
Court for the Central District of California. The lawsuit also
names as defendants DirecTV, Comcast, Cablevision, Cox, Charter,
Time Warner, Inc., Time Warner Cable, NBC Universal, Viacom, Fox
Entertainment Group and Walt Disney Company. The lawsuit alleges,
among other things, that the defendants engaged in a conspiracy to
provide customers with access only to bundled channel offerings as
opposed to giving customers the ability to purchase channels on an
"a la carte" basis. On October 16, 2009, the District Court
entered an order granting the defendants' motion to dismiss with
prejudice. On June 3, 2011, the U.S. Court of Appeals for the
Ninth Circuit affirmed the District Court's order. The plaintiff
class sought rehearing en banc. On October 31, 2011, the Ninth
Circuit issued an order vacating the previous June 3, 2011 order,
directing that a 3-judge panel be reconstituted, and denying the
plaintiff class' motion for rehearing. On March 30, 2012, the
reconstituted panel of the Ninth Circuit again affirmed the
District Court's order. On April 10, 2012, the plaintiff class
again filed a petition for rehearing en banc, which was denied on
May 4, 2012. On August 2, 2012, the plaintiff class filed a
petition seeking review by the United States Supreme Court.
The Company says it intends to vigorously defend this case. The
Company cannot predict with any degree of certainty the outcome of
the lawsuit or determine the extent of any potential liability or
damages.
DORCHESTER MINERALS: Awaits OK of Royalty Underpayment Suit Deal
----------------------------------------------------------------
Dorchester Minerals, L.P. is awaiting court approval of its
$500,000 settlement of a class action lawsuit alleging royalty
underpayments, according to the Company's August 8, 2012, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
The Company owns net profits overriding royalty interests
(referred to as the Net Profits Interests, or "NPIs") in various
properties owned by Dorchester Minerals Operating LP, a Delaware
limited partnership owned directly and indirectly by the Company's
general partner. Dorchester Minerals Operating LP is referred to
as the "operating partnership" or "DMOLP."
In January 2002, some individuals and an association called Rural
Residents for Natural Gas Rights sued Dorchester Hugoton, Ltd.,
along with several other operators in Texas County, Oklahoma,
regarding the use of natural gas from the wells in residences.
The operating partnership now owns and operates the properties
formerly owned by Dorchester Hugoton. These properties contribute
a significant portion of the NPI amounts paid to the Company. On
April 9, 2007, plaintiffs, for immaterial costs, dismissed with
prejudice all claims against the operating partnership regarding
such residential gas use. On October 4, 2004, the plaintiffs
filed severed claims against the operating partnership regarding
royalty underpayments, which the Texas County District Court
subsequently dismissed with a grant of time to replead. On
January 27, 2006, one of the original plaintiffs again sued the
operating partnership for underpayment of royalty, seeking class
action certification. On October 1, 2007, the Texas County
District Court granted the operating partnership's motion for
summary judgment finding no royalty underpayments. Subsequently,
the District Court denied the plaintiff's motion for
reconsideration, and the plaintiff filed an appeal. On
March 31, 2010, the appeal decision reversed and remanded to the
Texas County District Court to resolve material issues of fact.
On June 30, 2011, the District Court issued a revised partial
summary judgment in favor of the operating partnership.
On April 27, 2012, the parties successfully mediated terms for a
settlement in the amount of $500,000 plus immaterial future
royalty amounts on fuel gas; which will be paid to the plaintiffs
upon finalization of the agreed settlement and ultimate approval
by the District Court. A $500,000 reserve was recorded in Net
Profits Revenues on the financial statements in the first quarter
of 2012.
ENERGY TRANSFER: Faces Suits Over Proposed Sunoco Acquisition
-------------------------------------------------------------
Energy Transfer Partners, L.P. is facing class action lawsuits
arising from its proposed acquisition of Sunoco, Inc., according
to the Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On April 30, 2012, the Company announced its entry into a
definitive merger agreement whereby the Company will acquire
Sunoco Inc. in exchange for ETP Common Units and cash. Under the
terms of the merger agreement, Sunoco shareholders may elect to
receive, for each Sunoco common share, either $50.00 in cash,
1.0490 ETP Common Units or a combination of $25.00 in cash and
0.5245 of an ETP Common Unit. The cash and unit elections,
however, will be subject to proration to ensure that the total
amount of cash paid and the total number of ETP Common Units
issued in the merger to Sunoco shareholders as a whole are equal
to the total amount of cash and number of ETP Common Units that
would have been paid and issued if all Sunoco shareholders
received the standard mix of consideration. Upon closing, Sunoco
shareholders are expected to own approximately 20% of ETP's
outstanding limited partner units. This transaction is expected
to close in the third or fourth quarter of 2012, subject to
approval of Sunoco's shareholders and customary regulatory
approvals.
Following the announcement of the Sunoco merger, eight putative
class action and derivative complaints were filed in connection
with the Sunoco merger in the Court of Common Pleas of
Philadelphia County, Pennsylvania. Each complaint names as
defendants the members of Sunoco's board of directors and alleges
that they breached their fiduciary duties by negotiating and
executing, through an unfair and conflicted process, a merger
agreement that provides inadequate consideration and that contains
impermissible terms designed to deter alternative bids. Each
complaint also names as defendants Sunoco, ETP, Energy Transfer
Partners GP, L.P., the general partner of ETP, Energy Transfer
Partners, L.L.C., the general partner of ETP GP, and Sam
Acquisition Corporation, alleging that they aided and abetted the
breach of fiduciary duties by Sunoco's directors; some of the
complaints also name Energy Transfer Equity, L.P., a publicly
traded partnership and the owner of ETP LLC, as a defendant on
those aiding and abetting claims. The lawsuits seek an injunction
barring completion of the Sunoco merger and, in some instances,
damages. The Company and the other defendants believe that the
lawsuits are without merit and they intend to defend vigorously
against them.
ENTERPRISE FINANCIAL: Defends "Scott" Class Suit in Missouri
------------------------------------------------------------
Enterprise Financial Services Corp is defending a class action
lawsuit in Missouri initiated by William Mark Scott, according to
the Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On April 10, 2012, a putative class action was filed in the United
States District Court for the Eastern District of Missouri
captioned William Mark Scott v. Enterprise Financial Services
Corp, Peter F. Benoist, and Frank H. Sanfilippo. The complaint
asserts claims for violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 on behalf of a putative class of
purchasers of the Company's stock between April 20, 2010, and
January 25, 2012, inclusive. The complaint alleges, among other
things, that defendants made false and misleading statements and
"failed to disclose that the Company was improperly recording
income on loans covered under loss share agreements with the FDIC"
and that, as a result, "the Company's financial statements were
materially false and misleading at all relevant times." The
action seeks unspecified damages and costs and expenses. The
Company is unable to estimate a reasonably possible loss for the
case because the proceeding is in an early stage and there are
significant factual issues to be determined and resolved. The
Company denies plaintiffs' allegations and intends to vigorously
defend the lawsuit.
EXPEDIA INC: Sued for Restraining Room Reservation Competition
--------------------------------------------------------------
David Piening and Evelyn Gonzalez, individually and on behalf of
others similarly situated v. Expedia, Inc., Hotels.com LP,
Travelocity.com LP, Sabre Holdings Corporation, Priceline.com
Incorporated, Booking.com B.V., Booking.com (USA), Inc., Orbitz
Worldwide, Inc., Hilton Worldwide Inc., Starwood Hotels & Resorts
Worldwide, Inc., Marriott International, Inc., Trump International
Hotels Management, LLC, Kimpton Hotel & Restaurant Group, LLC,
Intercontinental Hotels Group Resources, Inc., and John Does 1-
100, Case No. 3:12-cv-04805 (N.D. Calif., September 13, 2012) is a
direct purchaser antitrust action challenging the Online Retailer
Defendants' conspiracy with the Hotel Defendants to enter into,
maintain and enforce minimum resale price maintenance ("RPM")
agreements.
The Online Retailer Defendants conspired with the Hotel Defendants
and agreed to impose an RPM scheme that would fix the retail price
for Room Reservations at the price the Hotel Defendants were
selling the Room Reservation ("Rack Rates") and restrain
competition for Room Reservations in the market for online
reservations, the Plaintiffs allege.
Mr. Piening is a resident and Santa Monica, California. Ms.
Gonzalez is a resident of Burbank, California. The Plaintiffs
purchased hotel room reservations online ("Room Reservations")
directly from one or more of the Online Retailer Defendants in the
United States.
Expedia is a Delaware corporation based in Bellevue, Washington.
Hotels.com, an affiliate of Expedia, is a Texas limited
partnership headquartered in Dallas, Texas. Travelocity.com, a
Delaware limited partnership based in Southlake, Texas, is owned
by Sabre. Booking.com B.V., a company based in Amsterdam, the
Netherlands, owns and operates Booking.com, the leading worldwide
online Room Reservations agency by room nights sold, attracting
over 30 million unique visitors each month via the Internet from
both leisure and business markets worldwide. Booking.com B.V. is
a wholly owned subsidiary of Priceline.com. Booking.com (USA) is
a Delaware corporation with its primary place of business in New
York. Booking.com (USA) is a wholly owned subsidiary of
Priceline.com. Priceline.com is a Delaware corporation based in
Norwalk, Connecticut.
Orbitz Worldwide is a Delaware corporation headquartered in
Chicago, Illinois. Sabre is a Delaware corporation headquartered
in Southlake, Texas. Intercontinental is a Delaware corporation
with its primary place of business in Atlanta, Georgia. Starwood
is a Maryland corporation based in Stamford, Connecticut.
Starwood's hotels are primarily operated under the brand names St.
Regis(R), The Luxury Collection(R), Sheraton(R), Westin(R),
W(R),Le Meridien(R), Four Points(R) by Sheraton, Aloft(R)and
Element(R). Marriott is a Delaware corporation with its principal
place of business in Bethesda, Maryland. Trump International is a
Delaware limited liability company headquartered in New York.
Hilton is a Delaware company based in McLean, Virginia. Kimpton
is a Delaware limited liability based in San Francisco,
California.
The Plaintiffs are represented by:
Yvonne Ballesteros, Esq.
PRICE WAICUKAUSKI & RILEY, LLC
301 Massachusetts Avenue
Indianapolis, IN 46204
Telephone: (317) 633-8787
Facsimile: (317) 633-8797
E-mail: yballesteros@price-law.com
FIDELITY NATIONAL: Settles J. Alexander Merger Class Action
-----------------------------------------------------------
Fidelity National Financial, Inc. and J. Alexander's Corporation
disclosed that on Monday, September 17, 2012, J. Alexander's, FNF
and the other named defendants entered into a memorandum of
understanding with the plaintiff and its counsel in connection
with the class action lawsuit filed in Tennessee state court
related to the proposed acquisition of J. Alexander's by
affiliates of FNF. The MOU reflects the parties' agreement in
principle to resolve the claims by the plaintiff against J.
Alexander's, its board of directors and FNF in connection with the
tender offer and the merger agreement. Under the MOU, J.
Alexander's agreed to make certain supplemental disclosures in its
Schedule 14D-9 in exchange for a release and settlement by the
purported class of J. Alexander's shareholders of all claims
against J. Alexander's, its board of directors, FNF and their
respective affiliates and agents. J. Alexander's filed its
supplemental disclosures with the Securities and Exchange
Commission on September 17, 2012. FNF also filed corresponding
supplemental disclosures with the SEC on that date.
FNF and J. Alexander's are parties to an Amended and Restated
Agreement and Plan of Merger, dated July 30, 2012, by and among J.
Alexander's, FNF, and certain affiliates of FNF, which was amended
on September 5, 2012 to increase the offer price from $13.00 per
share to $14.50 per share.
Lonnie J. Stout II, Chairman, President and Chief Executive
Officer, said the Company's board continues to recommend that J.
Alexander's shareholders tender their shares into FNF's tender
offer and confirmed that no additional offers have been received
since J. Alexander's announced FNF's revised offer at $14.50.
"FNF's offer at $14.50 per share represents the highest price and
best proposal received by J. Alexander's. J. Alexander's board of
directors believes that FNF's revised tender offer is in the best
interest of all J. Alexander's shareholders." The recommendation
was included in the amendment to J. Alexander's
solicitation/recommendation statement on Schedule 14D-9.
The tender offer was set to expire at 5:00 p.m. (Eastern Time) on
September 19, 2012. J. Alexander's shareholders may tender their
shares by following the procedures set forth in the tender offer
statement on Schedule TO, which contains an offer to purchase, a
form of letter of transmittal and related tender offer documents,
as filed by FNF and its affiliates with the SEC on August 6, 2012,
as amended to date.
FREDDIE MAC: Seneca, Martin and Faribault Counties Join Class Suit
------------------------------------------------------------------
Nick Dutro, writing for The Advertiser-Tribune, reports that
county commissioners supported a measure allowing the county to
"control its destiny" by getting involved in a class-action
lawsuit against two federal lending agencies.
During a meeting Sept. 18, Seneca County commissioners agreed 2-1
to join class-action litigation against Freddie Mac and Fannie
Mae. The county is involved on a contingent basis only.
According to County Administrator Stacy Wilson, the auditor's
office did not charge the agencies for some land transfers in the
county. However, litigation in other counties in other states has
found that the agencies may not have been exempt from those fees.
Commissioners were split in the decision.
"I don't think there is a lot of benefit in joining this . . . and
I just don't have a good feel for this. It feels like ambulance
chasing," Commissioner Jeff Wagner said.
"I feel just the opposite. I think we're due the money and we
should get it for services rendered," Commissioner Dave Sauber
said.
"I'm inclined to do it, because (Wagner's) right, the class action
lawsuit is going to happen anyway, and if we're not part of it, we
don't have a seat at the table. I think it's important to control
our own destiny as opposed to having others control it for us,"
said Nutter, board president.
Meanwhile, Martin County and Faribault County joined other
counties on Sept 19 in the class action lawsuit against Fannie Mae
and Freddie Mac, Kylie Saari of the Fairmont Sentinel reports.
The lawsuit seeks to recover deed tax transfers not paid on
foreclosed properties resold by the companies, which are
government-sponsored enterprises currently in conservatorship run
by the Federal Housing Finance Agency.
Freddie and Fannie claim they are exempt from paying the tax,
which every private seller is required to pay in order to transfer
title to real property.
Martin County Attorney Terry Viesselman said the Hennepin County
Attorney's Office (Minneapolis) is handling the case for all the
counties.
"Action was filed on behalf of all the counties," Mr. Viesselman
said. "Counties can choose to opt out."
According to the Hennepin County Attorney's Office, the two quasi-
public entities have acquired ownership of thousands of properties
through foreclosure in Minnesota. If they resold 20,000 homes,
deed transfer taxes at the median home price of $150,900 would
amount to about $10 million.
If the counties are unsuccessful in their claim, there is no cost
to Martin County. If they are successful, the county must pay a
proportional cost for expenses not exceeding 10 percent of
recovery.
"We really have no risk," Mr. Viesselman said.
GENTIVA HEALTH: Acquisition-Related Suits Settlement OK'd in May
----------------------------------------------------------------
Gentiva Health Services, Inc. received in May 2012 final approval
of its settlement of class action lawsuits arising from its
acquisition of Odyssey HealthCare, Inc., according to the
Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Three putative class action lawsuits were filed in connection with
the Company's acquisition ("Merger") of Odyssey HealthCare, Inc.
("Odyssey"). The first, entitled Pompano Beach Police &
Firefighters' Retirement System v. Odyssey HealthCare, Inc. et
al., was filed on May 27, 2010, in the County Court, Dallas
County, Texas. The second, entitled Eric Hemminger et al. v.
Richard Burnham et al., was filed on June 9, 2010, in the District
Court, Dallas, Texas. The third, entitled John O. Hansen v.
Odyssey HealthCare, Inc. et al., was filed on July 2, 2010, in the
United States District Court for the Northern District of Texas.
All three lawsuits named the Company, GTO Acquisition Corp.,
Odyssey and the members of Odyssey's board of directors as
defendants. All three lawsuits were brought by purported
stockholders of Odyssey, both individually and on behalf of a
putative class of stockholders, alleging that Odyssey's board of
directors breached its fiduciary duties in connection with the
Merger by failing to maximize shareholder value and that the
Company and Odyssey aided and abetted the alleged breaches. On
October 8, 2010, the District Court consolidated the Hemminger and
Pompano Beach actions and transferred the Hemminger action to
County Court No. 5 in Dallas County, Texas. On October 12, 2010,
Gentiva entered a general denial with respect to the material
allegations in both the Pompano Beach and Hemminger complaints.
On December 16, 2010, defendants in the actions executed a
Memorandum of Understanding with plaintiffs reflecting an
agreement in principle to settle each of the actions for
additional disclosures which were included in Odyssey's Definitive
Proxy Statement on Schedule 14A, filed on July 9, 2010.
Defendants also agreed not to contest an application for
attorneys' fees not exceed $675,000 to be made by plaintiffs. On
February 17, 2012, the court preliminarily approved a settlement
of the Pompano Beach, Hemminger and Hansen actions. The
settlement became final following court approval at a final
settlement hearing on May 18, 2012.
GENTIVA HEALTH: Awaits Approval of "Wilkie" Suit Settlement
-----------------------------------------------------------
Gentiva Health Services, Inc. is awaiting court approval of its $5
million settlement of a class action lawsuit filed by Catherine
Wilkie, according to the Company's August 8, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On June 11, 2010, a collective and class action complaint entitled
Catherine Wilkie, individually and on behalf of all others
similarly situated v. Gentiva Health Services, Inc. was filed in
the United States District Court for the Eastern District of
California against the Company in which a former employee alleges
wage and hour violations under the FLSA and California law. The
complaint alleges that the Company paid some of its employees on
both a per visit and hourly basis, thereby voiding their exempt
status and entitling them to overtime pay. The complaint further
alleges that California employees were subject to violations of
state laws requiring meal and rest breaks, accurate wage
statements and timely payment of wages. The plaintiff seeks class
certification, attorneys' fees, back wages, penalties and damages
going back three years on the FLSA claim and four years on the
state wage and hour claims. The parties held mediation
discussions on August 3, 2011, and
March 7, 2012. The parties have finalized the terms of a monetary
settlement, and the Company has paid $5 million in escrow to
settle all claims in the lawsuit, including the plaintiff's
attorney's fees and costs. The settlement is subject to court
approval.
GENTIVA HEALTH: Summary Judg. Bids Pending in "Rindfleisch" Suit
----------------------------------------------------------------
Gentiva Health Services, Inc. is awaiting a court decision on its
motion for partial summary judgment in the class action lawsuit
initiated by Lisa Rindfleisch et al., according to the Company's
August 8, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2012.
On May 10, 2010, a collective and class action complaint entitled
Lisa Rindfleisch et al. v. Gentiva Health Services, Inc. was filed
in the United States District Court for the Eastern District of
New York against the Company in which five former employees allege
wage and hour law violations. The former employees claim they
were paid pursuant to "an unlawful hybrid" compensation plan that
paid them on both a per visit and an hourly basis, thereby voiding
their exempt status and entitling them to overtime pay. The
plaintiffs have alleged continuing violations of federal and state
law and seek damages under the Fair Labor Standards Act ("FLSA"),
as well as under the New York Labor Law and North Carolina Wage
and Hour Act ("NCWHA"). On October 8, 2010, the Court granted the
Company's motion to transfer the venue of the lawsuit to the
United States District Court for the Northern District of Georgia.
On April 13, 2011, the Court granted plaintiffs' motion for
conditional certification of the FLSA claims as a collective
action.
On May 26, 2011, the Court bifurcated the FLSA portion of the
lawsuit into a liability phase, in which discovery was scheduled
to close on August 28, 2012, and a damages phase, to be scheduled
pending outcome of the liability phase. Following a motion for
partial summary judgment by the Company regarding the New York
state law claims, plaintiffs agreed voluntarily to dismiss those
claims in a filing on December 12, 2011. Plaintiffs continue to
seek class certification of allegedly similar employees and seek
attorneys' fees, back wages and liquidated damages going back
three years under the FLSA and two years under the North Carolina
statute. Plaintiffs filed a motion for certification of a North
Carolina state law class for NCWHA claims on January 20, 2012.
The Company filed a motion for partial summary judgment on
plaintiffs' claims under the NCWHA on March 22, 2012. These
motions have been briefed in full by both parties and are
currently awaiting the Court's decision. Plaintiffs also filed a
motion for partial summary judgment with regard to the Company's
liability for plaintiffs' FLSA claims on April 3, 2012. The
Company moved for a continuance for its response to plaintiffs'
motion to provide time to obtain full discovery. On April 19,
2012, the Court denied plaintiffs' motion with leave to re-file
and granted the Company's motion for continuance.
Based on the information the Company has at this time in the
Rindfleisch lawsuit, the Company is unable to assess the probable
outcome or potential liability, if any, arising from this
proceeding on the business, financial condition, results of
operations, liquidity or capital resources of the Company. The
Company does not believe that an estimate of a reasonably possible
loss or range of loss can be made for this lawsuit at this time.
The Company intends to defend itself vigorously in this lawsuit.
GENTIVA HEALTH: Awaits Ruling on Bid to Dismiss Securities Suit
---------------------------------------------------------------
Gentiva Health Services, Inc. is awaiting a court decision on its
motion to dismiss a consolidated securities lawsuit pending in New
York, according to the Company's August 8, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2012.
Between November 2, 2010, and October 25, 2011, five shareholder
class actions were filed against Gentiva and certain of its
current and former officers and directors in the United States
District Court for the Eastern District of New York. Each of
these actions asserted claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 in connection with the
Company's participation in the Medicare Home Health Prospective
Payment System ("HH PPS"). Following consolidation of the
actions, and the appointment of Los Angeles City Employees'
Retirement System as lead plaintiff and Kaplan Fox & Kilsheimer
LLP as lead counsel, on April 16, 2012, a consolidated shareholder
class action complaint, captioned In re Gentiva Securities
Litigation, Civil Action No. 10-CV-5064, was filed in the United
States District Court for the Eastern District of New York. The
complaint, which names Gentiva and certain current and former
officers and directors as defendants, asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
as well as Sections 11 and 15 of the Securities Act of 1933, in
connection with the Company's participation in the HH PPS. The
complaint alleges, among other things, that the Company's public
disclosures misrepresented and failed to disclose that the Company
improperly increased the number of in-home therapy visits to
patients for the purposes of triggering higher reimbursement rates
under the HH PPS, which caused an artificial inflation in the
price of Gentiva's common stock during the period between July 31,
2008, and October 4, 2011.
On June 15, 2012, defendants filed a motion to dismiss the
complaint.
Given the preliminary stage of the action, the Company says it is
unable to assess the probable outcome or potential liability, if
any, arising from the action on the business, financial condition,
results of operations, liquidity or capital resources of the
Company. The Company does not believe that an estimate of a
reasonably possible loss or range of loss can be made for the
action at this time. The defendants intend to defend themselves
vigorously in the action.
GUAM: Depositions in Political Status Referendum Suit Begin
-----------------------------------------------------------
Kevin Kerrigan at Pacific News Center reports that depositions
have begun in the controversial Class Action lawsuit over the
referendum on Guam's political status.
The lead attorney in the case, Christian Adams is on island
conducting those depositions.
Mr. Adams is a former U.S. Justice Department Attorney who worked
in the Civil Rights Division but resigned in May 2010, accusing
the Eric Holder led Department of racial bias.
He now works for the election law center in Washington D.C. and
represents Guam resident Dave Davis in his class action law suit
against the non-binding plebiscite on Guam's political status.
Mr. Adams is on island for the next two weeks. He declined to
discuss who he's deposing in the case, although 49 prominent
island residents are named in court documents.
District Court Judge Joaquin Manibusn has already recommended the
lawsuit be dismissed. Chief District Court Judge Francis
Tydingco-Gatewood is expected to decide whether or not to accept
that recommendation soon.
HILLENBRAND INC: 5th Cir. Affirms Class Cert. Denial in FCA Suit
----------------------------------------------------------------
Hillenbrand, Inc. disclosed that on September 13, 2012 the United
States Court of Appeals for the Fifth Circuit affirmed the denial
of class certification in the previously disclosed lawsuit filed
by the Funeral Consumers Alliance, Inc. (FCA) and a number of
individual consumer casket purchasers against Batesville and
Hillenbrand Inc.'s former parent company, Hillenbrand Industries,
Inc., now Hill-Rom Holdings, Inc. (Hill-Rom), and three national
funeral home businesses (the FCA Action). The plaintiffs' claim
for attorney fees was remanded back to the District Court.
The FCA, a self-styled consumer advocacy group, had sought class
certification in a lawsuit alleging that Batesville Casket Company
and its three named customers had violated antitrust laws by
Batesville limiting the sale of its Batesville Caskets to licensed
funeral homes. A U.S. District Court judge for the Southern
District of Texas denied class certification on March 26, 2009 and
the appellate court denied the subsequent petition for appeal on
June 19, 2009. Following the denial of class certification, the
plaintiffs pursued claims for individual defendants, and those
claims were ultimately dismissed by the District Court in their
entirety on September 24, 2010. Following dismissal of the
lawsuit, the plaintiffs appealed the overall dismissal and the
earlier denial of class certification to the United States Court
of Appeals for the Fifth Circuit. The recent ruling from the
Fifth Circuit once again denied the certification of a class.
"We have prevailed at every step of the way with regard to class
action, and are very pleased this matter was upheld once again by
the courts," said Kenneth A. Camp, Hillenbrand's president and
chief executive officer. "For more than a century, our policy of
selling caskets to licensed funeral directors operating licensed
funeral homes has helped to ensure families receive quality
products and services when they choose a Batesville casket."
For further information and background on these cases, please
refer to Hillenbrand's most recent SEC Form 10-Q and to the
rulings posted on our Web site, http://www.hillenbrand.com
Hillenbrand -- http://www.hillenbrand.com-- is a global
diversified industrial company that makes and sells premium
business-to-business products and services for a wide variety of
industries.
JUNIPER NETWORKS: Securities Class Suit Dismissed in July
---------------------------------------------------------
A securities class action lawsuit against Juniper Networks, Inc.
was dismissed in July 2012, according to the Company's August 8,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
On August 15, 2011, a purported securities class action lawsuit,
captioned City of Royal Oak Retirement System v. Juniper Networks,
Inc., et al., Case No. 11-cv-04003-LHK, was filed in the United
States District Court for the Northern District of California
naming the Company and certain of its officers and directors as
defendants. The complaint alleges that the defendants made false
and misleading statements regarding the Company's business and
prospects. Plaintiffs seek an unspecified amount of monetary
damages on behalf of the purported class. On January 9, 2012, the
Court appointed City of Omaha Police and Fire Retirement System
and City of Bristol Pension Fund as lead plaintiff. Lead
plaintiff filed an amended complaint on
February 13, 2012. The amended complaint alleges that defendants
made false and misleading statements about Juniper's business and
future prospects, and failed to adequately disclose the impact of
certain changes in accounting rules. The amended complaint
purports to assert claims for violations of Sections 10(b), 20(a)
and 20A of the Securities Exchange Act of 1934 and SEC Rule 10b-5
on behalf of those who purchased or otherwise acquired Juniper's
common stock between July 20, 2010, and July 26, 2011, inclusive.
On March 14, 2012, Defendants filed motions to dismiss.
Plaintiffs filed their opposition to the motions on April 13,
2012. Defendants filed reply briefs on May 4, 2012. On July 23,
2012, the Court issued an order dismissing the action and giving
Plaintiffs 21 days to file an amended complaint.
KINDRED HEALTHCARE: Subject to Suits Over Employee-Related Claims
-----------------------------------------------------------------
Kindred Healthcare, Inc. is currently subject to lawsuits alleging
employee-related claims, according to the Company's August 8,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
The Company's operations are subject to a variety of federal and
state employment-related laws and regulations, including but not
limited to the U.S. Fair Labor Standards Act, regulations of the
Equal Employment Opportunity Commission, the Office of Civil
Rights and state attorneys general, federal and state wage and
hour laws and a variety of laws enacted by the federal and state
governments that govern these and other employment-related
matters. Accordingly, the Company is currently subject to
employee-related claims, class action and other lawsuits and
proceedings in connection with the Company's operations, including
but not limited to those related to alleged wrongful discharge,
illegal discrimination and violations of equal employment and
federal and state wage and hour laws. Because labor represents
such a large portion of the Company's operating costs, non-
compliance with these evolving federal and state laws and
regulations could subject the Company to significant back pay
awards, fines and additional lawsuits and proceedings. These
claims, lawsuits and proceedings are in various stages of
adjudication or investigation and involve a wide variety of claims
and potential outcomes. Based upon currently available
information, the Company has recorded a $5 million loss provision
related to these claims, lawsuits and proceedings in the second
quarter of 2012, but the actual losses may be more than the
provision for loss.
KINDRED HEALTHCARE: Facilities Subject to "Staffing" Class Suits
----------------------------------------------------------------
Certain of Kindred Healthcare, Inc.'s facilities are subject of a
class action lawsuit alleging they did not meet relevant staffing
requirements, according to the Company's August 8, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
Various states in which the Company operates hospitals and nursing
and rehabilitation centers have established minimum staffing
requirements or may establish minimum staffing requirements in the
future. While the Company seeks to comply with all applicable
staffing requirements, the regulations in this area are complex
and the Company may experience compliance issues from time to
time. Failure to comply with such minimum staffing requirements
may result in one or more facilities failing to meet the
conditions of participation under relevant federal and state
healthcare programs and the imposition of significant fines,
damages or other sanctions. Private litigation involving these
matters also has become more common, and certain of the Company's
facilities are the subject of a class action lawsuit involving
claims that these facilities did not meet relevant staffing
requirements from time to time since 2006.
KROGER CO: Recalls Fresh Selections Tender Spinach
--------------------------------------------------
The Kroger Co. (NYSE:KR) Family of Stores in 15 states is asking
customers to check their refrigerators for certain Kroger Fresh
Selections Tender Spinach 10 ounce packages (UPC: 0001111091649)
with a "best if used by" date of September 16.
This product, supplied by NewStar Fresh Foods LLC, is being
recalled because the product may contain Listeria monocytogenes.
Customers should return the items to stores for a full refund or a
replacement. Customers can visit http://www.kroger.com/recall/
for more information.
Stores under the following names in 15 states are included in this
recall:
* Kroger stores in Ohio, Kentucky, West Virginia, Virginia,
Georgia, Alabama, North Carolina, South Carolina, central
and eastern Tennessee, and Michigan.
* Kroger, Jay C, Owen's, Pay Less, Scott's and Food 4 Less
stores in Indiana, Illinois and eastern Missouri.
* Dillons, Baker's, and Gerbes stores in Kansas, Missouri, and
Nebraska.
Stores the company operates under the following names are not
included in this recall: Fry's, Ralphs, Fred Meyer, QFC, Smith's,
King Soopers, City Market and Food 4 Less/Foods Co. in California.
Picture of the recalled products is available at:
http://www.fda.gov/Safety/Recalls/ucm320168.htm
What Kroger is Doing
Kroger has removed affected items from store shelves and initiated
its customer recall notification system. Customers who may have
purchased the affected products will receive register receipt
messages and/or automated phone calls. Kroger is also placing
signs in stores in produce departments.
What Customers Should Do
Kroger is asking customers to carefully check their refrigerators
for this recalled Fresh Selections product because it may contain
Listeria monocytogenes. Any opened or unopened products included
in this recall should not be consumed and should be returned by
customers to their local Kroger store for a full refund or
replacement.
Listeria monocytogenes, if eaten, could result in severe illness
to those individuals who are pregnant or have a weakened immune
system.
Customers with additional questions can contact 1-800-KROGERS.
Kroger, one of the world's largest retailers, employs more than
339,000 associates who serve customers in 2,425 supermarkets and
multi-department stores in 31 states under two dozen local banner
names including Kroger, City Market, Dillons, Jay C, Food 4 Less,
Fred Meyer, Fry's, King Soopers, QFC, Ralphs and Smith's. The
company also operates 788 convenience stores, 342 fine jewelry
stores, 1,124 supermarket fuel centers and 37 food processing
plants in the U.S. Recognized by Forbes as the most generous
company in America, Kroger supports hunger relief, breast cancer
awareness, the military and their families, and more than 30,000
schools and grassroots organizations in the communities it serves.
Kroger contributes food and funds equal to 160 million meals a
year through more than 80 Feeding America food bank partners. For
more information please visit http://wwww.Kroger.com/
LEXMARK INT'L: Appeal From Court Ruling in "Molina" Suit Pending
----------------------------------------------------------------
Lexmark International, Inc.'s appeal from a $7.8 million award to
class members and a $5.7 million award in attorneys' fees in the
lawsuit captioned Molina v. Lexmark, remains pending, according to
the Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On August 31, 2005, former Company employee Ron Molina filed a
class action lawsuit in the California Superior Court for Los
Angeles under a California employment statute which in effect
prohibits the forfeiture of vacation time accrued. This statute
has been used to invalidate California employers' "use or lose"
vacation policies. The class is comprised of less than 200
current and former California employees of the Company. The trial
was bifurcated into a liability phase and a damages phase. On May
1, 2009, the trial court Judge brought the liability phase to a
conclusion with a ruling that the Company's vacation and personal
choice day's policies from 1991 to the present violated California
law. In a Statement of Decision, received by the Company on
August 27, 2010, the trial court Judge awarded the class members
approximately $8.3 million in damages which included waiting time
penalties and interest but did not include post judgment interest,
costs and attorneys' fees. On
November 17, 2010, the trial court Judge partially granted the
Company's motion for a new trial solely as to the argument that
current employees are not entitled to any damages. On March 7,
2011, the trial court Judge reduced the original award to $7.8
million. On October 28, 2011, the trial court Judge awarded the
class members $5.7 million in attorneys' fees.
The Company filed a notice of appeal with the California Court of
Appeals objecting to the trial court Judge's award of damages and
attorneys' fees. The appeal is pending.
No further updates were reported in the Company's latest SEC
filing.
The Company believes an unfavorable outcome in the matter is
probable. The range of potential loss related to this matter is
subject to a high degree of estimation. In accordance with the
accounting guidance for contingencies, if the reasonable estimate
of a probable loss is a range and no amount within the range is a
better estimate, the minimum amount of the range is accrued.
Because no amount within the range of potential loss is a better
estimate than any other amount, the Company has accrued $1.8
million for the Molina matter, which represents the low-end of the
range. At the high-end of the range, the class has sought $16.7
million in damages along with $5.7 million in attorneys' fees,
plus post judgment interest. Thus, it is reasonably possible that
a loss exceeding the $1.8 million already accrued may be incurred
in this matter, ranging from $0 to $22.4 million, excluding post
judgment interest, costs and any additional attorneys' fees which
may be assessed against the Company.
Established in 1991, Lexmark International, Inc. --
http://www.lexmark.com/-- is a developer, manufacturer and
supplier of printing, imaging and document workflow solutions for
the office. The Company also operates in the office imaging and
ECM markets. Lexmark's products include laser printers, inkjet
printers, multifunction devices, dot matrix printers and
associated supplies, solutions and services and ECM software
solutions and services.
NESTLE PURINA: Sued Over Contaminated Chicken Jerky Pet Food
------------------------------------------------------------
Rebel Ely, Individually and On Behalf of All Others Similarly
Situated v. Nestle Purina Pet Care Company, Waggin' Train, LLC,
CVS Caremark Corporation and Does 1-10, Case No. 3:12-cv-04785
(N.D. Calif., September 12, 2012) is brought to seek redress for
those who were injured by the sale of contaminated chicken jerky
pet food throughout the United States of America.
These chicken jerky treats, when ingested by an animal, cause it
to suffer from seizures, vomiting, diarrhea, incontinence,
excessive thirst, neurological problems, including an awkward tilt
of the pet's head, loss of balance, pain, and ultimately renal
problems, respiratory problems and death, Ms. Ely alleges. She
contends that Nestle Purina's actions in selling the contaminated
food and failing to issue a recall and continuing to market and
sell the chicken jerky treats are reckless and in breach of its
duties and warranties to its customers.
Ms. Ely is a resident of San Mateo, California. She asserts that
the Defendants' actions were a proximate cause of injury and death
of currently untold numbers of pets, including her Golden
Retriever.
Nestle Purina is a Missouri corporation headquartered in St.
Louis, Missouri. Waggin' Train is a South Carolina limited
liability corporation headquartered in Anderson, South Carolina.
Nestle Purina and Waggin' Train sell their pet products throughout
California, including in San Mateo, California. CVS Caremark
Corporation is a Delaware corporation headquartered in Woonsocket,
Rhode Island. CVS oversees its retail division CVS/Pharmacy,
which sells pet food products, including the Waggin' Train Chicken
Jerky Treats. The Doe Defendants are currently unknown to the
Plaintiff.
The Plaintiff is represented by:
Rose F. Luzon, Esq.
Kolin C. Tang, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
401 West A Street, Suite 2350
San Diego, CA 92101
Telephone: (619) 235-2416
Facsimile: (619) 234-7334
E-mail: rluzon@sfmslaw.com
ktang@sfmslaw.com
- and -
Bruce E. Newman, Esq.
BROWN, PAINDIRIS & SCOTT, LLP
747 Stafford Avenue
Bristol, CT 06010
Telephone: (860) 583-5200
Facsimile: (860) 589-5780
E-mail: bnewman@bpslawyers.com
NRG ENERGY: Faces Eight Suits Over Proposed GenOn Acquisition
-------------------------------------------------------------
NRG Energy, Inc. is facing eight class action lawsuits arising
from its proposed acquisition of GenOn Energy, Inc., according to
the Company's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On July 20, 2012, the Company entered into an agreement, or the
Merger Agreement, to acquire GenOn Energy, Inc., or GenOn. GenOn,
a generator of wholesale electricity, has baseload, intermediate
and peaking power generation facilities using coal, natural gas
and oil, totaling approximately 22,700 MW. The Company will
issue, as consideration for the acquisition, 0.1216 shares of NRG
common stock for each outstanding share of GenOn, including
restricted stock units outstanding, on the acquisition date,
except for fractional shares which will be paid in cash. The
acquisition is expected to close by the first quarter of 2013.
NRG Energy, Inc. has been named as a defendant in eight purported
class actions pending in Texas and Delaware, related to its
announcement of its agreement to acquire all outstanding shares of
GenOn. The plaintiffs generally allege breach of fiduciary
duties, as well as conspiracy, aiding and abetting breaches of
fiduciary duties. Plaintiffs are generally seeking to: be
certified as a class; enjoin the merger; direct the defendant to
exercise their fiduciary duties; rescind the acquisition and be
awarded attorneys' fees costs and other relief that the court
deems appropriate. The Company believes that these allegations
are without merit and it intends to cooperate with GenOn in the
defense of these claims.
NRG Energy, Inc. is an integrated wholesale power generation and
retail electricity company. It is a retail electricity company
engaged in the supply of electricity, energy services, and cleaner
energy products to retail electricity customers in deregulated
markets through its Retail businesses, which include Reliant
Energy, Green Mountain Energy Company and Energy Plus Holdings
LLC. The Company is headquartered in Princeton, New Jersey.
NRG ENERGY: Units Face Class Suits in New York and New Jersey
-------------------------------------------------------------
NRG Energy, Inc.'s subsidiaries are facing class action lawsuits
in New York and New Jersey, according to the Company's August 8,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
Energy Plus Holdings, LLC, or Energy Plus, is a defendant in three
purported class action lawsuits, one in New York and two in New
Jersey (Energy Plus Natural Gas LP is a defendant in the two New
Jersey lawsuits and NRG Energy, Inc. is a defendant in one of the
New Jersey lawsuits). The plaintiffs in those lawsuits generally
allege that Energy Plus misrepresents that its rates are
competitive in the market; fails to disclose that its rates are
substantially higher than those in the market and that Energy Plus
has engaged in deceptive practices in its marketing of energy
services. Plaintiffs generally seek that these matters be
certified as class actions, with treble damages, interest, costs,
attorneys' fees, and any other relief that the court deems just
and proper. The Company believes that these allegations are
without merit and it is defending against these claims.
In addition, on July 26, 2012, the Connecticut Attorney General
and Office of Consumer Counsel filed a petition with the
Connecticut Public Utilities Regulatory Authority seeking to
investigate Energy Plus' marketing practices. On August 7, 2012,
Energy Plus Holdings LLC and Energy Plus Natural Gas LLC received
a subpoena from the State of New York Office of Attorney General
which generally seeks information and business records related to
Energy Plus' sales, marketing and business practices.
NRG Energy, Inc. is an integrated wholesale power generation and
retail electricity company. It is a retail electricity company
engaged in the supply of electricity, energy services, and cleaner
energy products to retail electricity customers in deregulated
markets through its Retail businesses, which include Reliant
Energy, Green Mountain Energy Company and Energy Plus Holdings
LLC. The Company is headquartered in Princeton, New Jersey.
OPTION ONE: African-American Borrowers Lose Certification Bid
-------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that a federal
judge said African-American borrowers who obtained home loans from
Option One Mortgage Corp. may no longer pursue a class-action
lawsuit accusing the lender of charging them more than white
borrowers.
U.S. District Court Judge Rya Zobel in Boston reversed her March
2011 order certifying a class, citing an intervening U.S. Supreme
Court decision involving Wal-Mart Stores Inc.
The decision could force borrowers to sue individually, resulting
in lower recoveries and higher costs.
It follows a San Francisco judge's denial last September of class-
action status to more than one million black and Hispanic
borrowers accusing Wells Fargo & Co., the largest U.S. mortgage
lender, of discriminating on rates and fees.
Gary Klein, a lawyer for plaintiffs in the Option One case, did
not immediately respond to a request for comment.
Once owned by the tax preparation company H&R Block Inc., Option
One is now known as Sand Canyon Corp.
Option One and H&R Block Mortgage Corp had been accused of giving
brokers discretion to impose extra charges unrelated to borrowers'
creditworthiness.
The plaintiffs said this resulted in African-American borrowers
spending on average about $134 more per year on mortgages than
similarly situated white borrowers.
But Judge Zobel said it is no longer enough to show a disparate
impact to win class-action status.
In the Wal-Mart case, the U.S. Supreme Court in June 2011
decertified a nationwide class of more than 1 million current and
former female workers alleging gender bias.
It said Wal-Mart's policy of giving discretion to local managers
over pay and promotions meant there was no common means of
exercising that discretion.
"Plaintiffs' class in this case faces the same commonality problem
as did the Wal-Mart class," Judge Zobel wrote.
"Because plaintiffs do not claim that all of Option One's brokers
exercised their discretion in the same way, they do not raise a
single question common to all plaintiffs in the class," she said.
The case is Barrett et al v. Option One Mortgage Corp et al, U.S.
District Court, District of Massachusetts, No. 08-10157.
QUANTA SERVICES: Tentative Deal Reached in Suits Over Wildfires
---------------------------------------------------------------
Discussions with parties in lawsuits involving Quanta Services,
Inc.'s subsidiary have recently progressed towards a settlement,
according to the Company's August 8, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On June 18, 2010, PAR Electrical Contractors, Inc., a wholly owned
subsidiary of Quanta (PAR), was named as a third party defendant
in four lawsuits in California state court in San Diego County,
California, all of which arise out of a wildfire in the San Diego
area that started on October 21, 2007, referred to as the Witch
Creek fire. The California Department of Forestry and Fire
Protection issued a report concluding that the Witch Creek fire
was started when the conductors of a three phase 69kV transmission
line, known as TL 637, owned by San Diego Gas & Electric (SDG&E),
touched each other, dropping sparks on dry grass. The Witch Creek
fire, together with another wildfire referred to as the Guejito
fire that allegedly merged with the Witch Creek fire, burned a
reported 198,000 acres, over 1,500 homes and structures and is
alleged to have caused two deaths and numerous personal injuries.
Numerous lawsuits have been filed directly against SDG&E and its
parent company, Sempra, claiming SDG&E's power lines caused the
fire. The court ordered that the claims be organized into the
four lawsuits and grouped the matters by type of plaintiff,
namely, insurance subrogation claimants, individual/business
claimants, governmental claimants, and a class action matter, for
which class certification has since been denied. PAR is not named
as a direct defendant in any of these lawsuits against SDG&E or
its parent. SDG&E has reportedly settled many of the claims. On
June 18, 2010, SDG&E joined PAR to the four lawsuits as a third
party defendant, seeking contractual and equitable indemnification
for losses related to the Witch Creek fire. SDG&E's claims for
indemnity relate to work done by PAR involving the replacement of
one pole on TL 637 about four months prior to the Witch Creek
fire. Quanta does not believe that the work done by PAR was the
cause of the contact between the conductors. However, PAR has
notified its various insurers of the claims. While one insurer is
participating in the defense of the matter, others have contested
coverage. On August 5, 2011, PAR and Quanta filed a lawsuit in
California state court against certain insurers seeking a
determination that coverage exists under the policies. PAR is
vigorously defending the third party claims by SDG&E and is
vigorously pursuing its actions against the insurers for coverage
of any potential liabilities. Quanta is also regularly
communicating with SDG&E, as well as the insurers, to attempt to
reach an acceptable resolution to these matters. These
discussions have recently progressed toward settlement, although a
final settlement agreement has not been reached with all parties
involved. Based on these discussions, however, Quanta believes
that PAR's liability for any uninsured losses will be immaterial.
ST. LOUIS COUNTY, MO: Bank Sues Over New Foreclosure Law
--------------------------------------------------------
Paul Hampel, writing for St. Louis Post-Dispatch, reports that a
commercial bank on Sept. 18 filed a class-action suit against St.
Louis County, claiming the county overstepped its authority with a
new ordinance that requires banks to participate in formal
mediation before foreclosing on county residents.
The Business Bank of St. Louis filed the suit in county circuit
court on behalf of 272 commercial banks throughout the state.
The suit claims that the ordinance, which the County Council
passed last month, constitutes an "effort to deny to Plaintiff and
others similarly situated the right to choose when and how to
exercise a lawful foreclosure remedy granted by the Missouri
Legislature to stated chartered banks."
County Counselor Pat Redington said on Sept 18 that she had not
seen the lawsuit and declined to comment on it.
County Councilwoman Hazel Erby, D-University City, who sponsored
the ordinance, said she was confident it would stand up to court
challenges.
"We feel like this is a good law and that we will be able to carry
it out on behalf of our constituents," Ms. Erby said on Sept. 18.
The bank's attorney, John Davidson, had promised in public
hearings prior to the bill's passage that his client would sue if
the ordinance was enacted.
"I offered to compromise with the county," Mr. Davidson said on
Sept. 18. "In my very first letter to the county, I said we will
go away if you do not apply this (law) to commercial loans. The
county refused."
The bill had passed 5-2 along party lines, with the council's
Democrats voting for it.
In addition to his assertion that such a bill would illegally
circumvent state law, Davidson had contended that commercial banks
were not involved in the residential foreclosure crisis that was
the focus of the ordinance.
"When you talk about the loans that county residents got
foreclosed on, they were not loans made by our local commercial
bankers; that is the key point in this," Mr. Davidson said.
Under the ordinance, lenders and homeowners who request mediation
would be required only to meet and would not have to reach an
agreement. Lenders would pay a $500 fee for the mediation
session.
Foreclosures in St. Louis County peaked at 4,540 in 2010. Through
July of this year, the county had recorded 1,980.
Meanwhile, at the Sept. 18 regular council meeting, Ms. Erby
introduced legislation to tweak the new law.
She said the proposed changes were made in response to concerns
from lenders in the wake of the new law.
Among the proposals would be adding wording that notes that the
ordinance does not provide grounds for any individual to sue the
bank over foreclosures. Another proposed change would, in light
of the mediation process, give banks extra time to hold required
foreclosure sales.
SUPPORT.COM INC: Awaits OK of Software-Related Suit Settlement
--------------------------------------------------------------
Support.com, Inc. is awaiting court approval of its settlement of
class action lawsuits pending in California and New York,
according to the Company's August 8, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On February 7, 2012, a lawsuit seeking class-action certification
was filed against the Company in the United States District Court
for the Northern District of California, No. 12-CV-00609, alleging
that the design of one the Company's software products and the
method of promotion to consumers constitute fraudulent inducement,
breach of contract, breach of express and implied warranties, and
unjust enrichment. On the same day the same plaintiffs' law firm
filed another action in the United States District Court for the
Southern District of New York, No. 12-CV-0963, involving similar
allegations against a subsidiary of the Company and one of the
Company's channel partners who distributes the Company's software
products, and that channel partner has requested indemnification
under contract terms with the Company. The law firm representing
the plaintiffs in both cases has filed unrelated class actions in
the past year against a number of major software providers with
similar allegations about those providers' products. On June 18,
2012, the Company entered into a settlement which remains subject
to final court approval. Under the terms of the settlement, the
Company would offer a one-time cash payment, which is covered by
the Company's insurance provider, to qualified class-action
members. In addition, the Company would offer a limited free
subscription to one of its software products. In accordance with
ASC 450, Contingencies, the Company has estimated and recorded a
charge against earnings in general and administrative expense of
$57,000 associated with the limited free software subscription.
The Company denies any wrongdoing or liability and entered into
the settlement to minimize the costs of defense.
VIASYSTEMS GROUP: Awaits Approval of DDi Acquisition Suits Deal
---------------------------------------------------------------
Viasystems Group, Inc. is awaiting court approval of its
settlement of class action lawsuits arising from its acquisition
of DDi Corp., according to the Company's August 8, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On May 31, 2012, the Company acquired DDi Corp. ("DDi") in an all
cash purchase transaction pursuant to which DDi became a wholly
owned subsidiary of the Company (the "DDi Acquisition"). DDi was
a leading manufacturer of technologically advanced, multi-layer
printed circuit boards with operations in the United States and
Canada.
Subsequent to the announcement of the DDi Acquisition, a number of
purported class action lawsuits were filed on behalf of DDi's
stockholders in various jurisdictions which named DDi Corp.
("DDi"), Viasystems Group, Inc. and others as primary defendants,
and generally alleged, among other things, (i) that the members of
DDi's board of directors violated the fiduciary duties owed to
stockholders by approving the merger agreement, (ii) that the
members of DDi's board of directors engaged in an unfair process
and agreed to a price that allegedly failed to maximize value for
stockholders and (iii) that DDi and Viasystems Group, Inc. aided
and abetted the DDi board members' alleged breach of fiduciary
duties. These complaints sought, among other things, to enjoin
the DDi Acquisition until corrective actions were taken, as well
as to award to plaintiffs the costs and disbursements of the
action, including attorneys' fees and experts' fees.
On May 15, 2012, the parties reached an agreement in principle to
settle the various actions. The parties subsequently entered into
a definitive stipulation of settlement in July 2012. The
settlement is subject to approval by the Superior Court of
California, Orange County (the "Court"). Pursuant to the terms of
the proposed settlement, DDi made additional information available
to its stockholders in advance of the special meeting of DDi's
stockholders to approve the DDi Acquisition. In addition, the
settlement contemplates that plaintiffs' counsel will petition the
Court for an award of attorneys' fees and expenses in an amount
not to exceed $600,000 to be paid by DDi or its insurers. The
proposed settlement did not affect the merger consideration paid
to DDi's stockholders in connection with the DDi Acquisition or
change any of the terms of the merger or the merger agreement.
ZIONS BANCORPORATION: Defends Suits Pending in Various States
-------------------------------------------------------------
Zions Bancorporation is defending class action lawsuits pending in
various states, according to the Company's August 8, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2012.
The Company is subject to putative class action claims and similar
broader claims. Current putative class actions include:
-- three complaints relating to allegedly wrongful acts in the
Company's processing of overdraft fees on debit card
transactions:
* Barlow, et. al. v. Zions First National Bank and Zions
Bancorporation, pending in the United States District
Court for the District of Utah;
* Sadlier, et. al. v. National Bank of Arizona, pending in
the Superior Court for the State of Arizona, County of
Maricopa; and
* Starr, et al. v. California Bank & Trust, pending in the
Superior Court for the State of California at San Diego;
and
-- a complaint relating to the Company's banking relationships
with customers that allegedly engaged in wrongful
telemarketing practices, Reyes v. Zions First National
Bank, et. al., pending in the United States District Court
for the Eastern District of Pennsylvania.
Each of these class-action matters is in a relatively early stage,
with discovery not yet having been commenced, except in the Reyes
case. A complaint relating to allegedly wrongful practices
relating to the Company's recording of customer and employee phone
calls, Hernandez v. California Bank & Trust and Zions
Bancorporation, et al., brought in the Superior Court for the
State of California at Los Angeles, was recently dismissed.
ZYNGA INC: Law Offices of Curtis V. Trinko Files Class Action
-------------------------------------------------------------
Law Offices of Curtis V. Trinko, LLP on Sept. 18 disclosed that it
has filed a class action complaint in the United States District
Court for the Northern District of California captioned Westley v.
Zynga Inc. et al., 12 Civ.4833. The lawsuit is filed on behalf of
purchasers of securities of Zynga Inc. between December 1, 2011
and July 25, 2012, inclusive.
The lawsuit alleges violations of the Securities Exchange Act of
1934 that occurred when Defendants issued materially false and
misleading statements regarding the Company's business and
prospects.
Specifically, it is alleged that during the Class Period,
Defendants made false and misleading statements about or knew but
failed to disclose that (1) the Company's optimistic financial
forecasts were not justified in light of declining users of the
Company's games and declining average bookings per user; and (2)
as a result of Defendants' false and misleading statements,
Zynga's stock traded at artificially inflated prices.
On July 25, 2012, Zynga issued a press release in connection with
its second quarter 2012 financial results, which were much lower
than expected. The Company revealed that year-over-year quarterly
earnings dropped from $0.05 per share to $0.01 per share, and
reported a net loss of over $22.8 million. In addition, the
Company dramatically reduced its guidance for 2012, citing "delays
in launching new games, a faster decline in existing web games due
in part to a more challenging environment on the Facebook web
platform, and reduced expectations for 'Draw Something.'" As a
result of this disclosure, the market price of Zynga's common
stock dropped nearly 40%, from a close of $5.078 per share on
July 25, 2012, to a close of $3.175 per share on July 26, 2012.
If you are a member of the class described above, you may move the
Court, not later than October 1, 2012, to serve as Lead Plaintiff.
A Lead Plaintiff is a representative chosen by the Court who acts
on behalf of other class members in directing the litigation. You
do not need to be a Lead Plaintiff to be included in the class.
If you purchased Zynga securities and wish to discuss this
litigation, any questions concerning this Notice or your rights or
interests with respect to these matters, please contact us.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Peter Chapman
at 240/629-3300.
* * * End of Transmission * * *