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C L A S S A C T I O N R E P O R T E R
Tuesday, September 25, 2012, Vol. 14, No. 190
Headlines
ADVANTAGE EDUCATION: Sued Over Bogus Online Education Program
AVIS RENT: Judge Denies Bid to Dismiss Class Action
BAIN CAPITAL: Judge Orders Disclosure of Class Action Details
BANK OF AMERICA: Sued Over Illegal Coogan Account Withdrawals
BEHRINGER HARVARD: Faces Class Action Over Alleged Ponzi Scheme
BLINKS DELI: Sued For Not Paying Minimum Wages & Overtime Pay
BNY MELLON: Awaits OK of Deal in One of Securities Lending Suits
BNY MELLON: Continues to Defend Suits Over Forex Transactions
BNY MELLON: Unit Continues to Defend Suits Over Madoff Investment
BNY MELLON: Reached Settlement with Medical Capital Receiver
CHUBB CORP: Discovery Ongoing in Remaining Antitrust Suits
COMPUTER SCIENCES: Motion to Dismiss Consolidated Suit Pending
COMPUTER SCIENCES: "Morefield" Class Suit Dismissed in July
DEL MONTE: Recalls 1,600 Bowls of Fresh-Cut Mango Products
DUKE ENERGY: Faces Securities Suits Over Progress Acquisition
ELLIE MAE: Dismissed From Three Missouri Suits in July
ENERGY TRANSFER: Delaware Plaintiffs to Join Texas Merger Suit
ENERGY TRANSFER: Faces Shareholder Suits Over Sunoco Acquisition
ENERGY TRANSFER: Unit Still Defends "Price" Suit in Kansas
ENTERGY CORP: Appeal From Class Cert. Ruling Remains Pending
ERNST & YOUNG: January 28 Settlement Fairness Hearing Set
FANNIE MAE: Washington County Joins Class Action
FLORIDA: Faces Class Action Over Medicaid Program
FOREVER CHEESE: To Stop Selling Fattorie Products Due to Recall
FORTINET INC: Nov. Hearing on Judgment Bids in Calif. Suit Set
FREDDIE MAC: Clayton County to Join Class Action
GHSW LLC: Recalls Fresh-Cut Mango Products Due to Health Risk
GLOBAL PIPELINE: Glencoe Residents File Class Action
HAIER AMERICA: Agrees to Pay $850,000 Fine Over Defective Blenders
HAYNEEDLE INC: Recalls 131 Shorea Wooden Arc Hammock Stands
HEARTWARE INT'L: Got Final Okay of Mass. Suit Settlement in July
INUVIK GAS: Inuvik Town Should File Class Action, Shattler Says
JOHN HANCOCK: Must Face RICO Violation Class Action Suit
KELLOGG CO: Mislabels Kashi Products as All Natural, Suit Says
LAKESHORE GENERAL: Sued Over Incomplete Colonoscopies
MIDLAND CREDIT: Sued Over Illegal Debt Collection Tactics
MILBERG LLP: Judge Refuses to Certify Malpractice Class Action
MMODAL INC: Defends Consolidated Legend Merger-Related Suit
PHYSICIANS FORMULA: Being Sold for Too Little, Suit Claims
SITEL WORLDWIDE: Awaits Final OK of Deal in Ill. Suit vs. Unit
SITEL WORLDWIDE: Discovery Ongoing in Michigan Suit
TD AMERITRADE: Yield Plus Fund Suit Dismissal Bids Pending
THRESHOLD ENTERPRISES: Sued For False Claims Over Colloidal Silver
THYSSENKRUPP ACCESS: Recalls 670 Residential Elevators
TRIPLE-S MANAGEMENT: Awaits Ruling on Breach of Contract Claim
TRIPLE-S MANAGEMENT: TSP Continues to Defend Vehicle Owner Suits
UNITED STATES: Conejos Housing Authority Mulls Joining Class Suit
VENOCO INC: Colo. Merger-Related Suits Administratively Closed
XL FOODS: FSIS Issues Alert for Raw Boneless Beef Trim Products
ZYNGA INC: Faces Another Shareholder's Class Action Suit
*********
ADVANTAGE EDUCATION: Sued Over Bogus Online Education Program
-------------------------------------------------------------
Courthouse News Service reports that Advantage Education and
Duvera Billing Services sell a $3,900 "online education" program
that is "useless and a scam," and won't give refunds, as
advertised, a class action claims in Superior Court.
A copy of the Complaint in Edward v. Duvera Billing Services, LLC,
et al., Case No. 37-2012-00057308 (Calif. Superior Ct., San Diego
Cty.), is available at:
http://www.courthousenews.com/2012/09/20/CCA.pdf
The Plaintiff is represented by:
Jeffrey Wilens, Esq.
LAKESHORE LAW CENTER
18340 Yorba Linda Blvd., Suite 107-610
Yorba Linda, CA 92886
Telephone: (714) 854-7205
E-mail: jeff@lakeshorelaw.org
- and -
Jeffrey P. Spencer, Esq.
THE SPENCER LAW FIRM
903 Calle Amanecer, Suite 220
San Clemente, CA 92673
Telephone: (949) 240-8595
E-mail: jps@spencerlaw.net
AVIS RENT: Judge Denies Bid to Dismiss Class Action
---------------------------------------------------
Juan Carlos Rodriguez, writing for Law360, reports that a federal
judge on Sept. 18 denied Avis Rent A Car System LLC's bid to quash
a proposed class action that alleges the company wrongly dings
consumers with a 75-cent surcharge through its travel partner
reward program, saying the plaintiff had adequately pled his
claims.
Plaintiff Edward Schwartz alleges the company does not adequately
disclose the fee and misleads customers who use frequent-flyer
miles or rewards points into believing they will not be charged.
BAIN CAPITAL: Judge Orders Disclosure of Class Action Details
-------------------------------------------------------------
Bonnie Kavoussi, writing for The Huffington Post, reports that a
judge has ruled that certain information involved in a lawsuit
against Bain Capital, the private equity firm where Mitt Romney
made his fortune, should be released to the public.
U.S. District Judge Edward Harrington said in a decision on
Sept. 14 that the public has the right to see a new complaint
filed as part of a class-action antitrust lawsuit that claims Bain
Capital and 10 other private equity firms colluded with one
another to keep the costs of leveraged buyouts low. The
plaintiffs recently filed another complaint with new information,
but that complaint has not yet been made public because of
opposition from Bain Capital lawyers, who say doing so could hurt
the company's business because of increased scrutiny during the
election news cycle.
Judge Harrington disagreed. "The Defendants have failed to
explain how the particular information that they have redacted
causes specific and severe harm," he wrote in the decision. "It
is further unclear to the Court whether the redactions are
narrowly tailored to addressing that harm."
Still, Bain Capital lawyers have about three weeks to submit a
second redacted version of the complaint and to "demonstrate with
greater particularity" how potential harm to the company's
business interests could trump the public's right to see the
complaint, according to the decision.
A heavily redacted version of the complaint recently was leaked to
The New York Times. The document includes e-mails suggesting that
the private equity firms worked together to keep buyout costs low.
Mr. Romney, the Republican presidential nominee, co-founded Bain
Capital in 1984 and ran the company until 2002. Mr. Romney's and
Bain's lawyers say he was not involved in the company at the time
of the deals covered by the lawsuit.
BANK OF AMERICA: Sued Over Illegal Coogan Account Withdrawals
-------------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that Bank of
America illegally allowed withdrawals from "Coogan accounts" for
child entertainers, a class action claims in Superior Court.
California's Coogan law is named after child star Jackie Coogan,
who sued his mother as an adult after he found out she had spent
the millions he made during the silent film era. Of the $4
million he earned as a child actor, Ms. Coogan recovered only
$126,000. He went on to play Uncle Fester on the television
version of "The Addams Family."
The Coogan Law was enacted in 1939, but it was ineffective in
protecting minor actors' earnings until several loopholes were
closed in 2000.
Under its present form, minors' earnings from their entertainment
work are property of the child, with parents acting as fiduciaries
until their children are old enough to control their own money.
In the new complaint, trustees for two minor plaintiffs claim Bank
of America allowed money to be taken from Coogan accounts before
the account holders turned 18.
"Plaintiffs bring this class action on behalf of all similarly
situated current and former customers of Bank of America who
maintain or have maintained Coogan Trust Accounts with defendants
from which defendants have made or allowed withdrawals, including
but not limited to withdrawals for monthly service fees, without
court approval, at any time in the four years preceding the filing
of this action to the present," the complaint states.
"(W)hen an unemancipated minor is paid for performing artistic or
creative services, 15 percent of the minor's gross earnings must
be set aside by the minor's employer in trust and placed in an
account to be preserved for the benefit of the minor. Prior to
the time the minor turns 18 years old or becomes emancipated, no
withdrawals can be made from the account without written order of
the Superior Court," the complaint states.
More than 5,000 people held Coogan Accounts that were affected by
the withdrawals, according to the complaint.
Named plaintiffs are Jasmine Phillips aka Jasmine Gonzales, as
trustee for Alex Gonzales, and Anesha Coleman as trustee for Jadon
Monroe.
Bank of America spokesman Lawrence Grayson declined to comment,
telling Courthouse News that the company is reviewing the
complaint.
The class seeks compensatory damages for unfair business
practices, and an injunction.
The Plaintiffs are represented by:
David Markun, Esq.
MARKUN ZUSMAN & COMPTON
Los Angeles Office
17383 West Sunset Boulevard, Suite A380
Pacific Palisades, CA 90272
Telephone: (310) 454-5900
E-mail: dmarkun@mzclaw.com
BEHRINGER HARVARD: Faces Class Action Over Alleged Ponzi Scheme
---------------------------------------------------------------
David Lee at Courthouse News Service reports that one of Behringer
Harvard's real estate investment trusts operates like a Ponzi
scheme, while its directors drain millions from it in fees, an
investor claims in a federal class action.
Named plaintiff Lillian Hohenstein sued the Addison, Texas-based
real estate investment firm, its Behringer Harvard REIT I Inc. and
several company directors. She claims that since she invested in
the REIT, its value has plummeted.
"On December 28, 2011, defendants filed Form 8-K with the SEC
estimating the per share value of the company's common stock to be
$4.64 per shares, a 53.6 percent decline for those shareholders
that purchased BH REIT stock at $10.00 per share," the complaint
states.
"It is doubtful that BH REIT stock is even worth the $4.64 claimed
by the defendants, as the company's shares have traded in the
secondary market for as little as $2.40 per share."
Ms. Hohenstein claims that two of the REIT's properties were
foreclosed on this year and that the company has indicated in its
most recent SEC filings that more foreclosures are coming.
Ms. Hohenstein claims BH REIT operates as a Ponzi scheme because
it pays distributions with offering proceeds, not operating cash
flow.
"This flies in the face of BH REIT's stated investment objective
of preserving its shareholders capital contributions," the
complaint states. "What's worse is that although BH REIT is
illiquid, defendants have made it even harder for the company's
shareholders to exit their investment by misrepresenting its true
value and amending the company's charter to make it more difficult
for third parties making a tender offer for BH REIT shares."
Ms. Hohenstein claims the defendants urged shareholders in
September 2011 and again in February this year to reject a tender
offer for their shares by CMG Legal Income Fund, and that the
defendants misrepresented the value of the REIT.
"Defendants have done so because tendering jeopardizes their
control over BH REIT," the complaint states. "If defendants lose
control over BH REIT then they will no longer be able to continue
to prosper from related party transactions they have forced BH
REIT to undertake. Also, they will not be able to drain the
millions of dollars in asset and property management fees from BH
REIT that they charge every year despite its negative operational
performance."
Behringer Harvard announced 2 weeks ago that the REIT had become
self-managed.
"The REIT owns 53 properties in 19 states and the District of
Columbia, as of June 30, 2012," the company stated on its website.
"The REIT's portfolio of more than 20 million square feet includes
concentrations in the major markets of Chicago, Houston and
Philadelphia."
Behringer Harvard's companies manage more than $6 billion and have
invested more than $11 billion in assets, according to its
website.
Ms. Hohenstein seeks class damages for securities fraud, fiduciary
duty, unjust enrichment and negligence.
A copy of the Complaint in Hohenstein v. Behringer Harvard REIT I,
Inc., Case No. 12-cv-03772 (N.D. Tex.), is available at:
http://www.courthousenews.com/2012/09/20/BehringerPonzi.pdf
The Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, LLP
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Telephone: (214) 744-3000
E-mail: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
- and -
Lionel Z. Glancy, Esq.
Louis Boyarsky, Esq.
GLANCY BINKOW & GOLBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: lglancy@glancylaw.com
lboyarsky@glancylaw.com
BLINKS DELI: Sued For Not Paying Minimum Wages & Overtime Pay
-------------------------------------------------------------
Pedro Zapata, Jonathan Casarrubias, Carlos Coca, Luis Valentin,
Pedro Millan, and Felipe Tepale on behalf of themselves and those
similarly situated v. Spiro Kaloudis, Danny Kaloudis, Blinks Deli
Inc., d/b/a Blinks Deli & Pizzeria, jointly and severally, Case
No. 1:12-cv-06987 (S.D.N.Y., September 14, 2012) is brought to
recover unpaid minimum wages, overtime, spread-of-hours premiums
and withheld tips for the plaintiffs and their similarly situated
co-workers, hourly employees who have worked at Blinks Deli in
Long Island City, New York.
The Plaintiffs allege that the Defendants have deprived them and
their co-workers of minimum wages, overtime pay and the spread-of-
hours premium since at least September 14, 2006. They also accuse
the Defendants of making unlawful deductions from their wages, and
required kickbacks from them since September 14, 2006, in
violation of labor laws. They add that the Defendants have
retaliated against them for complaining about the labor law
violations by yelling at them even more and using abusive,
threatening and antagonizing language towards them.
Carlos Coca is a resident of New York County, New York. He was
employed by the Company as a grill cook, but was also responsible
for making other food and general food preparation. Jonathan
Casarrubias is a resident of the County of Bronx, New York. He
was first employed by the Company as a pizza maker, but his
responsibilities also included cleaning, deliveries and food
preparation. Pedro Millan is a resident of the County of Bronx,
New York. He was first employed as a cashier, who was charged
with taking telephone orders for deliveries, and also was
responsible for cleaning and food preparation. Felipe Tepale is a
resident of the County of Queens, New York. He was employed as a
delivery man, but was also charged with stocking the basement,
cleaning the shop, and washing dishes. Luis Valentin is a
resident of the County of Queens, New York. He was employed as a
grill cook, but was also responsible for making other food and
general food preparation. Pedro Zapata is a resident of the
County of Queens, New York. He was employed as a cashier, but
also prepared food and was charged with general maintenance
duties.
The Defendants are part of a single integrated enterprise that
jointly employed the Plaintiffs and similarly situated employees.
Spiro Kaloudis and Danny Kaloudis are the owners of Blinks Deli.
The Plaintiffs are represented by:
Eugene G. Eisner, Esq.
EISNER & MIRER, P.C.
113 University Place
New York, NY 10003
Telephone: (212) 473-8700
BNY MELLON: Awaits OK of Deal in One of Securities Lending Suits
----------------------------------------------------------------
The Bank of New York Mellon Corporation awaits court approval of
its settlement of the class action lawsuit over its securities
lending program that was filed in Oklahoma, 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.
BNY Mellon or its affiliates have been named as defendants in a
number of lawsuits initiated by participants in BNY Mellon's
securities lending program, which is a part of BNY Mellon's
Investment Services business. The lawsuits were filed on various
dates from December 2008 to 2012, and are currently pending in
courts in Oklahoma, New York, South Carolina and North Carolina
and in commercial court in London. The complaints assert
contractual, statutory, and common law claims, including claims
for negligence and breach of fiduciary duty. The plaintiffs
allege losses in connection with the investment of securities
lending collateral, including losses related to investments in
Sigma Finance Inc. ("Sigma"), Lehman Brothers Holdings, Inc. and
certain asset-backed securities, and seek damages as to those
losses. Three of the pending cases seek to proceed as class
actions.
On July 5, 2012, BNY Mellon, N.A. and The Bank of New York Mellon
entered into a Stipulation of Settlement in the Oklahoma class
action lawsuit concerning Sigma losses. The Oklahoma case was
initiated by CompSource Oklahoma. Under the terms of the
settlement, The Bank of New York Mellon will make a payment of
$280 million in exchange for a complete release of claims in the
class action. The settlement is subject to final court approval.
The Company recorded an after-tax charge of $212 million
(approximately $350 million pre-tax) in the second quarter of 2012
primarily related to claims involving Sigma investments. This
charge includes in part the expected payment of $280 million
settling the Sigma-related class action.
BNY MELLON: Continues to Defend Suits Over Forex Transactions
-------------------------------------------------------------
The Bank of New York Mellon Corporation continues to defend itself
against class action lawsuits over foreign exchange transactions,
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.
Beginning in December 2009, government authorities have been
conducting inquiries seeking information relating primarily to
standing instruction foreign exchange transactions in connection
with custody services BNY Mellon provides to public pension plans
and certain other custody clients. BNY Mellon is cooperating with
these inquiries.
In addition, in early 2011, the Virginia Attorney General's Office
and the Florida Attorney General's Office each filed a Notice of
Intervention in a qui tam lawsuit pending in its jurisdiction.
These offices filed complaints superseding the qui tam lawsuits on
August 11, 2011. On May 1, 2012, the Virginia court dismissed the
lawsuit in its entirety. On July 10, 2012, the Virginia Attorney
General's office filed a motion seeking leave of the court to file
an amended complaint. On October 4, 2011, the New York Attorney
General's Office, the New York City Comptroller and various city
pension and benefit funds filed a lawsuit whereby, among other
things, the plaintiffs assert claims under the Martin Act and
state and city false claims acts. Also, on October 4, 2011, the
United States Department of Justice ("DOJ") filed a civil lawsuit
seeking civil penalties under 12 U.S.C. Section 1833a and
injunctive relief under 18 U.S.C. Section 1345 based on alleged
ongoing violations of 18 U.S.C. Sections 1341 and 1343 (mail and
wire fraud). On January 17, 2012, the court approved a partial
settlement resolving the DOJ's claim for injunctive relief. In
October 2011, several political subdivisions of the state of
California intervened in a qui tam lawsuit pending in California
state court, previously under seal, and, on November 28, 2011, BNY
Mellon removed the lawsuit to federal district court in
California. On March 30, 2012, the court dismissed certain of
plaintiffs' claims, including all claims under the California
False Claims Act, and provided plaintiffs an opportunity to file a
motion seeking leave to replead. On October 26, 2011, the
Massachusetts Securities Division filed an Administrative
Complaint against BNY Mellon.
BNY Mellon has also been named as a defendant in several putative
class action federal lawsuits filed on various dates in 2011. The
complaints, which assert varying claims, including breach of
contract, and violations of Employee Retirement Income Security
Act of 1974 ("ERISA"), state and federal law, all allege that the
prices BNY Mellon charged and reported for standing instruction
foreign exchange transactions executed in connection with custody
services provided by BNY Mellon were improper. In addition, BNY
Mellon has been named as a nominal defendant in several derivative
lawsuits filed on various dates in 2011 and 2012 in state and
federal court in New York. BNY Mellon has also been named as a
defendant in a lawsuit filed on March 12, 2012, in Ohio state
court, and subsequently removed to federal district court in Ohio,
asserting claims including breach of contract and fraud. BNY
Mellon was also named in a qui tam lawsuit originally filed under
seal in October 2009 in Massachusetts state court, but the
plaintiff voluntarily dismissed the lawsuit on May 16, 2012. To
the extent these lawsuits are pending in federal court, they have
been consolidated for pre-trial purposes in federal court in New
York.
BNY MELLON: Unit Continues to Defend Suits Over Madoff Investment
-----------------------------------------------------------------
On May 11, 2010, the New York State Attorney General commenced a
civil lawsuit against Ivy Asset Management LLC ("Ivy"), a
subsidiary of The Bank of New York Mellon Corporation that manages
primarily funds-of-hedge-funds, and two of its former officers in
New York state court. The lawsuit alleges that Ivy, in connection
with its role as sub-advisor to investment managers whose clients
invested with Bernard L. Madoff, did not disclose certain material
facts about Madoff. The complaint seeks an accounting of
compensation received from January 1997 to the present by the Ivy
defendants in connection with the Madoff investments, and
unspecified damages, including restitution, disgorgement, costs
and attorneys' fees.
On October 21, 2010, the U.S. Department of Labor commenced a
civil lawsuit against Ivy, two of its former officers, and others
in federal court in the Southern District of New York. The
lawsuit alleges that Ivy violated the Employee Retirement Income
Security Act ("ERISA") by failing to disclose certain material
facts about Madoff to investment managers subadvised by Ivy whose
clients included employee benefit plan investors. The complaint
seeks disgorgement and damages. On December 8, 2010, the Trustee
overseeing the Madoff liquidation sued many of the same defendants
in bankruptcy court in New York, seeking to avoid withdrawals from
Madoff investments made by various funds-of-funds (including six
funds-of-funds managed by Ivy).
Ivy or its affiliates have been named in a number of civil
lawsuits filed beginning January 27, 2009 relating to certain
investment funds that allege losses due to the Madoff investments.
Ivy acted as a sub-advisor to the investment managers of some of
those funds. Plaintiffs assert various causes of action including
securities and common-law fraud. Certain of the cases have been
certified as class actions and/or assert derivative claims on
behalf of the funds. Most of the cases have been consolidated in
two actions in federal court in the Southern District of New York,
with certain cases filed in New York State Supreme Court for New
York and Nassau counties.
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.
BNY MELLON: Reached Settlement with Medical Capital Receiver
------------------------------------------------------------
The Bank of New York Mellon Corporation in June reached a
conditional settlement with the Federal Equity Receiver for
Medical Capital Corporation in connection with certain lawsuits
brought by numerous plaintiffs, 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 Bank of New York Mellon has been named as a defendant in a
number of class actions and non-class actions brought by numerous
plaintiffs in connection with its role as indenture trustee for
debt issued by affiliates of Medical Capital Corporation. The
actions, filed in late 2009 and currently pending in federal court
in the Central District of California, allege that The Bank of New
York Mellon breached its fiduciary and contractual obligations to
the holders of the underlying securities, and seek unspecified
damages. On June 7, 2012, The Bank of New York Mellon reached a
conditional settlement with the Federal Equity Receiver for
Medical Capital Corporation and its affiliates.
CHUBB CORP: Discovery Ongoing in Remaining Antitrust Suits
----------------------------------------------------------
Discovery is ongoing in the remaining antitrust class action
lawsuits against The Chubb Corporation, according to the
Corporation's August 8, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Chubb and certain of its subsidiaries have been involved in the
investigations by various Attorneys General and other regulatory
authorities of several states, the U.S. Securities and Exchange
Commission, the U.S. Attorney for the Southern District of New
York and certain non-U.S. regulatory authorities with respect to
certain business practices in the property and casualty insurance
industry including (1) potential conflicts of interest and anti-
competitive behavior arising from the payment of contingent
commissions to brokers and agents and (2) loss mitigation and
finite reinsurance arrangements. In connection with these
investigations, Chubb and certain of its subsidiaries received
subpoenas and other requests for information from various
regulators. The Corporation has cooperated fully with these
investigations. The Corporation has settled with several state
Attorneys General and insurance departments all issues arising out
of their investigations.
Individual actions and purported class actions arising out of the
investigations into the payment of contingent commissions to
brokers and agents have been filed in a number of federal and
state courts. On August 1, 2005, Chubb and certain of its
subsidiaries were named in a putative class action entitled In re
Insurance Brokerage Antitrust Litigation in the U.S. District
Court for the District of New Jersey (N.J. District Court). This
action, brought against several brokers and insurers on behalf of
a class of persons who purchased insurance through the broker
defendants, asserts claims under the Sherman Act, state law and
the Racketeer Influenced and Corrupt Organizations Act (RICO)
arising from the alleged unlawful use of contingent commission
agreements. On September 28, 2007, the N.J. District Court
dismissed the second amended complaint filed by the plaintiffs in
its entirety. In so doing, the N.J. District Court dismissed the
plaintiffs' Sherman Act and RICO claims with prejudice for failure
to state a claim, and it dismissed the plaintiffs' state law
claims without prejudice because it declined to exercise
supplemental jurisdiction over them. The plaintiffs appealed the
dismissal of their second amended complaint to the U.S. Court of
Appeals for the Third Circuit (Third Circuit). On August 13,
2010, the Third Circuit affirmed in part and vacated in part the
N.J. District Court decision and remanded the case back to the
N.J. District Court for further proceedings. As a result of the
Third Circuit's decision, the plaintiffs' state law claims and
certain of the plaintiffs' Sherman Act and RICO claims were
reinstated against the Corporation. The Corporation and the other
defendants filed motions to dismiss the reinstated claims on
October 1, 2010.
Subsequently, several of the other defendants entered into
settlement agreements with the plaintiffs. In light of these
settlements and their impact on the litigation, the N.J. District
Court on June 17, 2011, dismissed without prejudice the motions to
dismiss filed by the Corporation and the other non-settling
defendants. On October 21, 2011, the Corporation and the other
non-settling defendants refiled their motions to dismiss and the
plaintiffs filed their papers in opposition. On March 30, 2012,
the N.J. District Court formally approved the settlements entered
into by the settling defendants. On April 30, 2012, the non-
settling parties were ordered to engage in settlement discussions
and, as a result, on May 31, 2012, the N.J. District Court
administratively terminated the non-settling defendants' motions
to dismiss. Nevertheless, to date, no further settlements have
been reached. The non-settling defendants have again requested
leave of the N.J. District Court to refile their motions to
dismiss and discovery is on-going.
Chubb and certain of its subsidiaries also have been named as
defendants in other putative class actions relating or similar to
the In re Insurance Brokerage Antitrust Litigation that have been
filed in various state courts or in U.S. district courts between
2005 and 2007. These actions were subsequently removed and
ultimately transferred to the N.J. District Court for
consolidation with the In re Insurance Brokerage Antitrust
Litigation. These matters were previously stayed but that stay
has been lifted. The parties currently are conducting discovery
in these matters.
In the various actions, the plaintiffs generally allege that the
defendants unlawfully used contingent commission agreements and
conspired to reduce competition in the insurance markets. The
actions seek treble damages, injunctive and declaratory relief and
attorneys' fees. The Corporation believes it has substantial
defenses to all of the legal proceedings and intends to defend the
actions vigorously.
The Corporation says it cannot predict at this time the ultimate
outcome of the ongoing investigations and legal proceedings,
including any potential amounts that the Corporation may be
required to pay in connection with them. Nevertheless, management
believes that the outcome will not have a material adverse effect
on the Corporation's results of operations or financial condition.
COMPUTER SCIENCES: Motion to Dismiss Consolidated Suit Pending
--------------------------------------------------------------
Between June 3, 2011, and July 21, 2011, four putative class
action complaints were filed in the United States District Court
for the Eastern District of Virginia, entitled City of Roseville
Employee's Retirement System v. Computer Sciences Corporation, et
al. (No. 1:11-cv-00610-TSE-IDD), Murphy v. Computer Sciences
Corporation, et al. (No. 1:11-cv-00636-TSE-IDD), Kramer v.
Computer Sciences Corporation, et al. (No. 1:11-cv-00751-TSE-IDD)
and Goldman v. Computer Sciences Corporation, et al. (No. 1:11-cv-
777-TSE-IDD). On August 29, 2011, the four actions were
consolidated as In re Computer Sciences Corporation Securities
Litigation (No. 1:11-cv-610-TSE-IDD) and Ontario Teachers' Pension
Plan Board was appointed lead plaintiff. A consolidated class
action complaint was filed by plaintiff on September 26, 2011, and
names as defendants CSC, Michael W. Laphen, Michael J. Mancuso and
Donald G. DeBuck. A corrected complaint was filed on October 19,
2011. The complaint alleges violations of the federal securities
laws in connection with alleged misrepresentations and omissions
regarding the business and operations of the Company.
Specifically, the allegations arise from the Company's disclosure
of the Company's investigation into certain accounting
irregularities in the Nordic region and its disclosure regarding
the status of the Company's agreement with the U.K.'s National
Health Service (NHS). Among other things, the plaintiff seeks
unspecified monetary damages. The plaintiff filed a motion for
class certification with the court on September 22, 2011, and the
defendants filed a motion to dismiss on October 18, 2011. Both
motions are fully briefed, a hearing was held on November 4, 2011,
and the motions are now pending before the court.
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 29, 2012.
The defendants deny the allegations and intend to defend their
position vigorously. It is not possible to make reasonable
estimates of the amounts or range of losses that could result from
this matter at this time.
COMPUTER SCIENCES: "Morefield" Class Suit Dismissed in July
-----------------------------------------------------------
The class action lawsuit initiated by Shirley Morefield against
Computer Sciences Corporation 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 29, 2012.
On May 29, 2009, a class action lawsuit entitled Shirley Morefield
vs. Computer Sciences Corporation, et al., Case # A-09-591338-C,
was brought in state court in Clark County, Nevada, against the
Company and certain current and former officers and directors
asserting claims for declarative and injunctive relief related to
stock option backdating. The alleged factual basis for the claims
is the same as that which was alleged in a prior derivative case,
In re CSC Shareholder Derivative Litigation, CV 06-5288, filed in
U.S. District Court in Los Angeles, which was dismissed on August
9, 2007, by such court. This dismissal was affirmed on appeal by
the Ninth Circuit, which judgment is final. The defendants in the
Morefield case deny the allegations in the complaint. On June 30,
2009, the Company removed the case to the United States District
Court for the District of Nevada, Case No. 2:09-cv-1176-KJD-GWF.
On motion made by the plaintiffs, the District Court remanded the
case to state court on February 18, 2010. Defendants filed a
motion to dismiss on April 30, 2010, and plaintiffs filed their
opposition on June 14, 2010.
On July 16, 2012, the court dismissed the plaintiff's case with
prejudice.
DEL MONTE: Recalls 1,600 Bowls of Fresh-Cut Mango Products
----------------------------------------------------------
In cooperation with the FDA's warning to not consume mangoes from
Agricola Daniella in Mexico, Del Monte Fresh Produce N.A., Inc, is
initiating a voluntary recall of 1,600 bowls of fresh-cut mangoes
distributed to retail outlets due to the potential risk that the
mangoes may contain Salmonella. Salmonella is an organism which
can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened immune
systems. Healthy persons infected with Salmonella often
experience fever, diarrhea (which may be bloody), nausea, vomiting
and abdominal pain. In rare circumstances, infection with
Salmonella can result in the organism getting into the bloodstream
and producing more severe illnesses such as arterial infections
(i.e., infected aneurysms), endocarditis and arthritis. This
recall is associated with FoodSource's (Edinburg, Texas) recall of
mangoes sourced from Agricola Daniella in Mexico.
Product was distributed between September 8 to 12, 2012, by
retailers in the states of Florida, Georgia, North Carolina,
Oregon, South Carolina, Tennessee and Washington. Product is
packaged in clear plastic 32 oz bowls with a Del Monte(R) label on
the top. The affected product will have printed Best By date
9/18/12 and lot code 05252101 below, and Best By date 9/22/12 and
lot code 03256100 below. These dates and codes are clearly
printed on the top label of each individual package. The UPC is
7-62357-07532-1.
There have been no reported illnesses attributed to the items
listed in this recall. Del Monte Fresh Produce N.A., Inc has
notified the retailers who have received the recalled product and
directed them to remove it from their store shelves. Consumers
who purchased affected products with the listed Best By dates and
lot codes should not consume them and should destroy or discard
them. Consumers with questions may contact the Company's consumer
hotline at 1-800-659-6500 or e-mail Del Monte Fresh at Contact-US-
Executive-Office@freshdelmonte.com
DUKE ENERGY: Faces Securities Suits Over Progress Acquisition
-------------------------------------------------------------
Duke Energy Corporation is facing three securities class action
lawsuits arising from its acquisition of Progress 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 2, 2012, Duke Energy completed the merger contemplated by
the Agreement and Plan of Merger (Merger Agreement), among Diamond
Acquisition Corporation, a North Carolina corporation and Duke
Energy's wholly owned subsidiary (Merger Sub) and Progress Energy,
Inc., a North Carolina corporation engaged in the regulated
utility business of generation, transmission and distribution and
sale of electricity in portions of North Carolina, South Carolina
and Florida. As a result of the merger, Merger Sub was merged
into Progress Energy and Progress Energy became a wholly owned
subsidiary of Duke Energy.
In connection with the merger, Duke Energy has received three
purported securities class action lawsuits. The first case (Craig
v. Duke Energy Corporation, et al,) was filed on July 24, 2012, in
the United States District Court for the Eastern District of North
Carolina, Western Division and is brought on behalf of all persons
who purchased Duke Energy stock between June 28, 2012, and July 9,
2012. The second case (Nieman v. Duke Energy Corporation, et al,)
was filed on July 24, 2012, in the United States District Court
for the Western District of North Carolina on behalf of all
persons who exchanged shares of Progress Energy common stock for
shares of Duke Energy common stock in connection with the merger.
The third case (Sunner v. Duke Energy Corporation, et al,) was
filed on July 30, 2012, in the United States District Court for
the Western District of North Carolina on behalf of all persons
who purchased stock of Duke Energy between June 11, 2012, and July
9, 2012. All three of these lawsuits name as defendants the
Legacy Duke Directors. The Craig and Nieman cases also name
certain officers of the Company.
Duke Energy says it is not possible to predict whether it will
incur any liability or to estimate the damages, if any, that Duke
Energy might incur in connection with these lawsuits. Additional
lawsuits may be filed.
ELLIE MAE: Dismissed From Three Missouri Suits in July
------------------------------------------------------
Ellie Mae, Inc. was voluntarily dismissed, without prejudice, from
three class action lawsuits filed in Missouri, 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.
Although as of June 30, 2012, the Company had not been served with
the initial complaints, the Company has been named as a co-
defendant in three purported class action lawsuits filed in the
Missouri Circuit Court in St. Louis County, Missouri. These
lawsuits against the Company and various other defendants were
filed by (i) David and Lisa Clepper on May 4, 2012 (the "Clepper
Matter"), (ii) Russell and Kathleen Klingel and Lee McMurray on
May 4, 2012 (the "Klingel Matter"), (iii) Richard and Susan Ryffel
on May 25, 2012 (the "Ryffel Matter") and (iv) Nicole and Kenneth
Boegeman on June 27, 2012 (the "Boegeman Matter"), all the
plaintiffs of which are being represented by the same law firm.
The respective plaintiffs in these lawsuits allege that the
Company, among other things, violated Missouri's Merchandising
Practices Act and engaged in the unauthorized practice of law in
connection with document preparation services that the Company
began offering following the acquisition of certain assets from
Online Documents, Inc. in September 2008. The respective
plaintiffs seek unspecified damages, injunctive relief, attorney's
fees, other costs and expenses and pre-judgment interest. The
plaintiffs in the Clepper Matter and Boegeman Matter voluntarily
dismissed the Company without prejudice from the lawsuit on July
12, 2012. The plaintiffs in the Ryffel Matter voluntarily
dismissed all the defendants, including the Company, without
prejudice from the lawsuit on
June 14, 2012. In addition, the Company may be subject to similar
claims and legal proceedings in the future.
The Company believes that it has substantial and meritorious
defenses in each of these cases and, if these matters are re-filed
or similar claims are pursued, the Company intends to defend these
claims vigorously. However, neither the outcome of this
litigation nor the amount or range of potential damages can be
assessed with certainty.
ENERGY TRANSFER: Delaware Plaintiffs to Join Texas Merger Suit
--------------------------------------------------------------
Plaintiffs in the consolidated merger-related lawsuit filed in
Delaware voluntarily dismissed their claims in July 2012, and
indicated their intent to join a similar case in Texas, according
to Energy Transfer Equity, L.P.'s August 8, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2012.
On March 26, 2012, Sigma Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of ETE, completed its
acquisition of Southern Union Company. Southern Union is the
surviving entity in the merger and operates as a wholly-owned
subsidiary of ETE. The assets acquired as a result of this merger
significantly expand the Company's existing geographic footprint
of natural gas pipeline and natural gas transportation capacity
and into natural gas utilities distribution, and are complementary
to the assets owned and operated by the Company's other entities.
On June 21, 2011, a putative class action lawsuit captioned
Jaroslawicz v. Southern Union Company, et al., Cause No. 2011-
37091, was filed in the 333rd Judicial District Court of Harris
County, Texas. Also on June 21, 2011, another putative class
action lawsuit captioned Magda v. Southern Union Company, et al.,
Cause No. 2011-37134, was filed in the 11th Judicial District
Court of Harris County, Texas. The petitions named as defendants
the members of the Southern Union Board of Directors ("Southern
Union Board"), as well as Southern Union and ETE. The petitions,
which were also amended on June 28, 2011, and August 19, 2011,
alleged that the Southern Union Board breached their fiduciary
duties to Southern Union's stockholders in connection with the
merger transaction with ETE and that Southern Union and ETE aided
and abetted those alleged breaches. The petitions further alleged
that the Southern Union Merger involved an unfair price and an
inadequate sales process, that Southern Union's directors entered
into the transaction to benefit themselves personally, including
though consulting and noncompete agreements and that defendants
have failed to disclose all material information related to the
Southern Union Merger to Southern Union stockholders. The
petition sought injunctive relief, including an injunction of the
Southern Union Merger, and an award of attorneys' and other fees
and costs, in addition to other relief. The two Texas cases have
been consolidated with the following style: In re: Southern Union
Company; Cause No. 2011-37091, in the 333rd Judicial District
Court of Harris County, Texas. On October 21, 2011, the court
denied ETE's October 13, 2011, motion to stay the Texas proceeding
in favor of cases pending in the Delaware Court of Chancery.
On June 27, 2011, a putative class action lawsuit captioned
Southeastern Pennsylvania Transportation Authority, et al. v.
Southern Union Company, et al., C.A. No. 6615-CS, was filed in the
Delaware Court of Chancery. Additionally, on June 29 and 30,
2011, putative class action lawsuits captioned KBC Asset
Management NV v. Southern Union Company, et al., C.A. No. 6622-CS,
and LBBW Asset Management Investment GmbH v. Southern Union
Company, et al., C.A. No. 6627-CS, respectively were filed in the
Delaware Court of Chancery. Also, on July 6, 2011, a putative
class action lawsuit captioned Memo v. Southern Union Company, et
al., C.A. No. 6639-CS, was filed in the Delaware Court of
Chancery. Each complaint named as defendants the members of the
Southern Union Board, Southern Union, and ETE. The plaintiffs
alleged that the Southern Union directors breached their fiduciary
duties to Southern Union's stockholders in connection with the
merger transaction with ETE and further claimed that ETE aided and
abetted those alleged breaches. The complaints further alleged
that the Southern Union Merger involves an unfair price and an
inadequate sales process, that Southern Union's directors entered
into the transactions to benefit themselves personally, including
through consulting and noncompete agreements, and that the
Southern Union Board should deem a competing proposal made by The
Williams Companies, Inc. ("Williams") to be superior. The
complaints sought compensatory damages, injunctive relief,
including an injunction of the Southern Union Merger, and an award
of attorneys' and other fees and costs, in addition to other
relief.
On August 25, 2011, a consolidated amended complaint was filed in
the Southeastern Pennsylvania Transportation Authority, KBC Asset
Management NV, and LBBW Asset Management Investment GmbH actions
pending in the Delaware Court of Chancery naming the same
defendants as the original complaints in those actions and
alleging that the Southern Union directors breached their
fiduciary duties to Southern Union's stockholders in connection
with the merger transactions with ETE, that ETE aided and abetted
those alleged breaches of fiduciary duty, and that the provisions
in Section 5.4 of the Second Amended Merger Agreement relating to
Southern Union's ability to accept a superior proposal is invalid
under Delaware law. The amended complaint alleges that the
Southern Union Merger involves an unfair price and an inadequate
sales process, that Southern Union's directors entered into the
Merger to benefit themselves personally, including through
consulting and noncompete agreements, and that the defendants have
failed to disclose all material information related to the Merger
to Southern Union stockholders. The consolidated amended
complaint sought injunctive relief, including an injunction of the
Southern Union Merger and an award of attorneys' and other fees
and costs, in addition to other relief.
The four Delaware Court of Chancery cases have been consolidated
with the following style: In re Southern Union Co. Shareholder
Litigation, C.A. No. 6615-CS, in the Delaware Court of Chancery.
On November 9, 2011, the attorneys for the plaintiffs in the
aforementioned Texas and Delaware actions stated that they did not
intend to pursue their efforts to enjoin the Southern Union
Merger. Plaintiffs have indicated that they intend to pursue a
claim for damages. A trial has not yet been scheduled in any of
these matters. Discovery for the damages claim is in its
preliminary stages.
On July 25, 2012, the plaintiffs in the Delaware action filed a
notice with the Delaware Court of Chancery to voluntarily dismiss
all claims without prejudice. In the notice, the plaintiffs
stated their claims were being dismissed to avoid duplicative
litigation and indicated their intent to join the Texas case
before the District Court of Harris County, Texas, 333rd Judicial
District.
ETE has not recorded an accrued liability, believes the
allegations of all the actions related to the Southern Union
Merger lack merit, and intends to contest them vigorously.
ENERGY TRANSFER: Faces Shareholder Suits Over Sunoco Acquisition
----------------------------------------------------------------
Energy Transfer Equity, L.P. is facing class action lawsuits
arising from its subsidiary's 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's subsidiary, Energy Transfer
Partners, L.P. ("ETP"), announced that it had entered into a
definitive merger agreement whereby ETP will acquire Sunoco Inc.
in exchange for ETP Common Units and cash.
In connection with the Sunoco Merger, purported shareholders of
Sunoco have filed several shareholder class action lawsuits
against the Company, Sunoco, the Sunoco board of directors and
others. Among other remedies, the plaintiffs seek to enjoin the
Sunoco Merger. If a final settlement is not reached, or if a
dismissal is not obtained, these lawsuits could prevent or delay
completion of the Sunoco Merger and result in substantial costs to
the Company and Sunoco, including any costs associated with the
indemnification of directors. Additional lawsuits may be filed
against the Company and/or Sunoco related to the Sunoco Merger.
The defense or settlement of any lawsuit or claim that remains
unresolved at the time the merger is completed may adversely
affect the combined company's business, financial condition or
results of operations.
ENERGY TRANSFER: Unit Still Defends "Price" Suit in Kansas
----------------------------------------------------------
Energy Transfer Equity, L.P.'s subsidiary continues to defend
itself against a class action lawsuit commenced by Will Price in
Kansas, 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.
Will Price, an individual, filed actions in the U.S. District
Court for the District of Kansas for damages against a number of
companies, including Company subsidiary Panhandle Eastern Pipe
Line Company, LP, alleging mis-measurement of natural gas volumes
and Btu content, resulting in lower royalties to mineral interest
owners. On September 19, 2009, the Court denied plaintiffs'
request for class certification. Plaintiffs have filed a motion
for reconsideration, which the Court denied on March 31, 2010.
Panhandle believes that its measurement practices conformed to the
terms of its Federal Energy Regulatory Commission natural gas
tariffs, which were filed with and approved by the FERC. As a
result, Southern Union Company, a subsidiary of ETE and parent of
Panhandle, believes that it has meritorious defenses to the Will
Price lawsuit (including FERC-related affirmative defenses, such
as the filed rate/tariff doctrine, the primary/exclusive
jurisdiction of the FERC, and the defense that Panhandle complied
with the terms of its tariffs). In the event that Plaintiffs
refuse Panhandle's pending request for voluntary dismissal,
Panhandle will continue to vigorously defend the case. Southern
Union believes it has no liability associated with this
proceeding.
ENTERGY CORP: Appeal From Class Cert. Ruling Remains Pending
------------------------------------------------------------
Entergy Corporation and other defendants' appeal from an order
certifying a class in the lawsuit pending in Texas 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.
In August 2003, a lawsuit was filed in the district court of
Chambers County, Texas, by Texas residents on behalf of a
purported class apparently of the Texas retail customers of
Entergy Gulf States, Inc. who were billed and paid for electric
power from January 1, 1994, to the present. The named defendants
include Entergy Corporation, Entergy Services Inc., Entergy Power
Inc., Entergy Power Marketing Corp., and Entergy Arkansas Inc.
Entergy Gulf States, Inc. was not a named defendant, but was
alleged to be a co-conspirator. The court granted the request of
Entergy Gulf States, Inc. to intervene in the lawsuit to protect
its interests.
Plaintiffs allege that the defendants implemented a "price gouging
accounting scheme" to sell to plaintiffs and similarly situated
utility customers higher priced power generated by the defendants
while rejecting and/or reselling to off-system utilities less
expensive power offered and/or purchased from off-system suppliers
and/or generated by the Entergy system. In particular, plaintiffs
allege that the defendants manipulated and continue to manipulate
the dispatch of generation so that power is purchased from
affiliated expensive resources instead of buying cheaper off-
system power.
Plaintiffs stated in their pleadings that customers in Texas were
charged at least $57 million above prevailing market prices for
power. Plaintiffs seek actual, consequential and exemplary
damages, costs and attorneys' fees, and disgorgement of profits.
The plaintiffs' experts have tendered a report calculating damages
in a large range, from $153 million to $972 million in present
value, under various scenarios. The Entergy defendants have
tendered expert reports challenging the assumptions,
methodologies, and conclusions of the plaintiffs' expert reports.
The case is pending in state district court, and in March 2012,
the court found that the case met the requirements to be
maintained as a class action under Texas law. On April 30, 2012,
the court entered an order certifying the class. The defendants
have appealed the order to the Texas Court of Appeals - First
District.
Entergy Corporation -- http://www.entergy.com/-- is an integrated
energy company engaged primarily in electric power production and
retail distribution operations. Entergy owns and operates power
plants with approximately 30,000 megawatts of electric generating
capacity. Entergy delivers electricity to 2.7 million utility
customers in Arkansas, Louisiana, Mississippi and Texas. Entergy
has annual revenues of more than $11 billion and approximately
15,000 employees.
ERNST & YOUNG: January 28 Settlement Fairness Hearing Set
---------------------------------------------------------
Susman Godfrey L.L.P. and Berger & Montague, P.C., Co-Lead Counsel
for Plaintiffs in the securities class action litigation Coady, et
al. v. Perry, et al., Case No. CV 08-03812-GW (VBKx), have
announced the following:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
MICHAEL B. COADY and ROBERT Case No. CV 08-03812-GW(VBKx)
HAKIMIAN, on Behalf of Themselves and All CLASS ACTION
Others Similarly Situated,
Plaintiffs,
vs.
MICHAEL W. PERRY, A. SCOTT KEYS,
and ERNST & YOUNG LLP,
Defendants.
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT, SETTLEMENT FAIRNESS HEARING AND MOTION FOR ATTORNEYS'
FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
THE COMMON STOCK OF INDYMAC BANCORP, INC. BETWEEN MARCH 1, 2007
AND MAY 12, 2008, THROUGH AND INCLUSIVE.
PLEASE READ THIS NOTICE CAREFULLY
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the Court, that the above-
captioned action has been conditionally certified as a settlement
class action and that a settlement for $6,500,000 with Defendants
Michael W. Perry and A. Scott Keys has been proposed. A hearing
will be held before the Honorable George H. Wu, United States
District Judge, on January 28, 2013, at 8:30 a.m., in Courtroom 10
of the United States Courthouse, located at 312 N. Spring Street,
Los Angeles, California, 90012, to determine whether:
The Settlement Class should be finally certified for settlement
purposes;
The proposed settlement of the Action for $6,500,000, plus
interest, is fair, reasonable and adequate and should be approved
by the Court;
An order and Final Judgment should be entered dismissing all
Claims in the Action against the Settling Defendants and
dismissing the Action with prejudice, and without costs;
The Plan of Allocation of the Net Settlement Fund should be
approved; and
To award attorneys' fees and expenses requested by Co-Lead Counsel
on behalf of Plaintiffs' Counsel.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS DESCRIBED ABOVE, YOUR
RIGHTS WILL BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE
SETTLEMENT FUND. If you have not yet received the full printed
Notice of Pendency and Proposed Settlement of Class Action,
Settlement Hearing and Application for Attorneys' Fees and a Proof
of Claim form, you may obtain copies of these documents by
contacting:
Claims Administrator Coady, et al. v. Perry, et al., Case No. CV
08-03812-GW (VBKx) Heffler Claims Administration P.O. Box
58819Philadelphia, PA 19102-8819
Copies of the Notice and Proof of Claim Form may also be
downloaded from the Claims Administrator's Web site
http://www.indymac.hefflerclaims.com
Inquiries, other than requests for the forms of Class Notice and
Proof of Claim, may be made to Plaintiffs' Co-Lead Counsel: Marc
M. Seltzer, Susman Godfrey L.L.P., 1901 Avenue of the Stars, Suite
950, Los Angeles, California 90067-6029, (310) 789-3100, and
Sherrie R. Savett, Berger & Montague, P.C., 1622 Locust Street,
Philadelphia, Pennsylvania 19103, (800) 424-6690.
To participate in the settlement, you must submit a Proof of Claim
no later than January 18, 2013. If you are a Settlement Class
Member and do not exclude yourself from the Settlement Class, you
will be bound by the order and Final Judgment of the Court. To
exclude yourself from the Settlement Class, you must submit a
Request for Exclusion postmarked no later than January 7, 2013.
If you are a Settlement Class Member and do not submit a proper
Proof of Claim, you will not share in the settlement but you
nevertheless will be bound by the order and Final Judgment of the
Court.
Further information may be obtained by directing your inquiry in
writing to the Claims Administrator, at the address listed above.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
Dated: September 20, 2012 By Order of the Court
FANNIE MAE: Washington County Joins Class Action
------------------------------------------------
The Stillwater Gazette reports that Washington County will join
other Minnesota counties in a class action suit brought by
Hennepin County against Fannie Mae and Freddie Mac after the Board
of Commissioners authorized joining the lawsuit on Sept. 18.
One result of the downturn of the U.S. economy is increased
numbers of home mortgage foreclosures, which, in turn, has
transferred ownership of many homes to Fannie Mae and Freddie Mac.
The Federal National Mortgage Association, commonly known as
Fannie Mae, was founded in 1938 during the Great Depression as a
government-sponsored enterprise as part of the New Deal. Fannie
Mae has been a publicly traded company since 1968.
Fannie Mae's purpose is to expand the secondary mortgage market by
securitizing mortgages in the form of mortgage-backed securities.
The Federal Home Loan Mortgage Corporation (FHLMC), known as
Freddie Mac, was created in 1970 for the same purpose.
When these two entities record its ownership, it refuses to pay
the deed tax, claiming it is exempt from the tax. However, its
exemption from the tax is less than clear, and Hennepin County
instituted a class action lawsuit on behalf of the 87 Minnesota
counties to challenge this exemption.
Hennepin County estimates Freddie Mac and Fannie Mae owe
approximately $10 million to $11 million in deed tax. However, 97
percent of any recovery would go into state coffers, leaving 3
percent to be distributed among the 87 counties.
However, Hennepin County states it will pay all costs unless it
obtains a favorable judgment, in which case it will recover costs
proportionately from any judgment. While the amount Washington
County might receive from any judgment is small, it appears nearly
all of the counties are joining the class to resolve a significant
issue, which is whether Freddie Mac and Fannie Mae are obligated
to pay these "transfer" taxes.
FLORIDA: Faces Class Action Over Medicaid Program
-------------------------------------------------
News Service of Florida reports that in what could become a class-
action lawsuit, attorneys for a disabled Tallahassee woman allege
that many nursing-home residents are required to turn over too
much income when they enter Florida's Medicaid program.
The lawsuit, filed in Leon County circuit court, stems from a
longstanding requirement that Medicaid beneficiaries help pay for
a portion of nursing-home care if they have income from sources
such as Social Security. They are allowed to retain some money to
cover expenses like health insurance and relatively minor personal
needs.
But the lawsuit contends that Florida is violating federal
requirements by preventing beneficiaries from keeping income to
pay nursing-home bills that were wracked up before they became
eligible for Medicaid.
The lawsuit, which names Tallahassee resident Gabrielle Goodwin as
the plaintiff, says the state's position has allowed the Medicaid
program to pay less for nursing-home care than it otherwise
should, prevented beneficiaries from having money to pay their old
bills and led to nursing homes providing uncompensated care.
The state Department of Children and Families, which is a
defendant in the case along with the Agency for Health Care
Administration, has already rejected the arguments in an
administrative case. A hearing officer last month issued an order
finding that DCF acted correctly and that "federal law allows for
reasonable limits to be set by each state on the amount of
expenses" that can be shielded when it is determined how much
income beneficiaries should chip in for their care.
Also, the order said that if past nursing-home expenses could be
shielded, "Medicaid would be paying a larger share of the ongoing
care in the facility due to a past period of time when petitioner
was not eligible for . . . Medicaid."
The lawsuit says DCF approved Ms. Goodwin's application for
Medicaid benefits in March, after she was denied last year. It
says she had monthly income of $1,414, and DCF determined she
needed to pay $1,032 a month to help defray costs of care -- with
most of the remaining amount going to health-insurance costs.
Ms. Goodwin's attorneys, however, said in the lawsuit that DCF
also should have taken into account $70,607 in unpaid expenses
from her prior nursing-home care. If that would have been
considered, she would not have been required to pay the $1,032 a
month until the time when past nursing-home bills would be paid
off.
The lawsuit seeks to become a class action. The lawsuit seeks to
become a class action, saying it could include "tens of thousands
of people."
FOREVER CHEESE: To Stop Selling Fattorie Products Due to Recall
---------------------------------------------------------------
In a letter addressed to customers, Forever Cheese Inc. said that
it has stopped importing and selling all products produced by
Fattorie Chiarappa Srl. On September 10, 2012, Forever Cheese
recalled Ricotta Salata Frescolina Brand due to possible Listeria
Monocytogenes contamination. Listeria is an organism, which can
cause serious and sometimes fatal infections in young children,
frail or elderly people, and others with weakened immune systems.
Forever Cheese's Letter
September 14, 2012
To our valued customers,
Forever Cheese has decided to stop importing and selling all
products produced by Fattorie Chiarappa Srl. Ricotta Salata
Frescolina, Marte brand Roasted Ricotta and Hard Ricotta Salata
will be discontinued immediately.
We are contacting all of our customers asking you to destroy
whatever you have in house and to notify us so we may issue you a
credit. This includes ALL lots and ALL production codes of Marte
brand Frescolina Ricotta Salata cheese due to the possible
contamination from Listeria Monocytogenes, an organism which can
cause serious and sometimes fatal infections in young children,
frail or elderly people, and others with weakened immune systems.
Although healthy individuals may suffer only short-term symptoms
such as high fever, severe headache, stiffness, nausea, abdominal
pain and diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
We apologize for any inconvenience this may cause. However, we
prefer at this time to be proactive and remove ALL products from
the marketplace that we have imported from Fattorie Chiarappa.
Sincerely,
Forever Cheese Inc.
FORTINET INC: Nov. Hearing on Judgment Bids in Calif. Suit Set
--------------------------------------------------------------
Hearing on motions for summary judgment in a class action lawsuit
pending in California is currently set for November 2012,
according to Fortinet, Inc.'s August 8, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2012.
In April 2010, an individual, a former stockholder of Fortinet,
filed a class action lawsuit against the Company claiming
unspecified damages in the California Superior Court for the
County of Los Angeles alleging violation of various California
Corporations Code sections and related tort claims alleging
misrepresentation and breach of fiduciary duty regarding the 2009
repurchase by Fortinet of shares of its stock while the Company
was a privately-held company. In September 2010, the Court
granted the Company's motion to transfer the case to the
California Superior Court for Santa Clara County and the plaintiff
has filed several amended complaints in the Superior Court to add
individual defendants, among other amendments. The Superior Court
will be hearing motions for summary judgment in November 2012 and
has set a trial date for December 2012. The Company says it has
determined that, as of this time, there is not a reasonable
possibility that a loss has been incurred.
FREDDIE MAC: Clayton County to Join Class Action
------------------------------------------------
Clayton News Daily reports that Clayton County Commissioners voted
unanimously on Sept. 18 to join Upson County commissioners in a
potential class action lawsuit against the Federal Housing Finance
Agency.
The resolution approved by commissioners last week states the
Upson County Board of Commissioners filed a lawsuit on Sept. 5,
against the Federal Housing Finance Agency Commission, the Federal
National Mortgage Association and the Federal Home Loan Mortgage
Corporation.
Interim Clayton County Attorney Jack Hancock told commissioners
Upson County commissioners had invited them to join in the lawsuit
because of the perceived widespread nature of the allegations.
Court documents state every county in Georgia may qualify as a
plaintiff.
"They are working to get it certified as a class action lawsuit,"
said Mr. Hancock.
A copy of the lawsuit, provided by Clayton County officials,
states more than $75,000 in tax proceeds are in dispute. The
resolution states the case centers around claims by embattled
financial institutions Fannie Mae and Freddie Mac that they are
exempt from paying the Georgia Real Estate Transfer Tax on some
properties and have underpaid other real estate transfer taxes.
Fannie Mae and Freddie Mac are run by the Federal Housing Finance
Agency.
Hancock told Clayton County commissioners the amount of money the
county could receive if the group of plaintiff counties win the
lawsuit ranges from 15 percent, to 33 percent, depending on how
many counties end up joining the suit.
GHSW LLC: Recalls Fresh-Cut Mango Products Due to Health Risk
-------------------------------------------------------------
GHSW, LLC of Houston, Texas, is initiating a voluntary recall of a
limited quantity of expired products that contain fresh-cut
mangoes and are distributed to retail supermarkets due to the
potential risk that the mangoes may contain Salmonella.
Salmonella is an organism which can cause serious and sometimes
fatal infections in young children, frail or elderly people, and
others with weakened immune systems. Healthy persons infected
with Salmonella often experience fever, diarrhea (which may be
bloody), nausea, vomiting and abdominal pain. In rare
circumstances, infection with Salmonella can result in the
organism getting into the bloodstream and producing more severe
illnesses such as arterial infections (i.e., infected aneurysms),
endocarditis and arthritis.
This recall is associated with Food Source's recall of mangoes
sourced from Agricola Daniella. The FDA has issued an Import
Alert and advised consumers not to eat mangoes from Agricola
Daniella.
The products listed in this recall were distributed through retail
stores to the following states: Alabama, Arkansas, Louisiana,
Mississippi & Texas. Products are packaged in clear plastic
containers (cups, trays and clamshell type containers) and were
distributed to retail distribution centers August 29 to September
5, 2012. Products contain printed code dates on the top or bottom
labels of the plastic package, ranging from 9/7/12 - 9/15/12.
Please reference the information below for all products and code
dates associated with this recall.
Brand: Garden Highway, Plant Code P-008
Included States: TX, LA, MS, AL, AR
------------------------------------------------------
Pack
Product Size UPC Code
------ ---- --------
Island MedleyIsland 1 Lb 8.26766-20104.4
Date Range: Best if Sold By: 9/8/12, 9/13/12, 9/15/12
Mango Spears 1 Lb 8.26766-26849.8
Date Range: Best if Sold By: 9/8/12, 9/13/12
Fruit Burst 1 Lb 8.26766-24107.1
Best if Sold By: 9/8/12, 9/13/12, 9/15/12
Fruit Burst 1.5 Lbs 8.26766-24127.9
Best If Sold By: 9/8/12, 9/13/12, 9/15/12
------------------------------------------------------
Brand: Garden Highway, Plant Code P-008
Included States: TX, LA, AR
------------------------------------------------------
Pack
Product Size UPC Code
------ ---- --------
Mango Medley 10 oz 8.26766-21433.4
Best if Sold By: 9/8/12, 9/9/12, 9/11/12,9/13/12
Mango Spears 1 Lb 8.26766-26849.8
Best if Sold By: 9/8/12,9/11/12, 9/13/12,
------------------------------------------------------
Brand: Generic Label, Plain White Label with no brand
& Sold at Winn-Dixie Stores, Plant Code P-008
Included States: LA, MS
------------------------------------------------------
Pack
Product Size UPC Code
------ ---- --------
Mango Spears 1 Lb 0.21140-01694.2
Best if Sold By: 9/7/12, 9/8/12, 9/10/12, 9/11/12,
9/12/12, 9/14/12, 9/15/12
Fruit Burst 1 Lb 0.21140-01701.7
Best if Sold By: 9/7/12, 9/8/12, 9/10/12, 9/11/12,
9/12/12, 9/15/12
Fruit Burst 1.5 Lbs 0.21140-01707.9
Best if Sold By: 9/7/12, 9/8/12,9/10/12, 9/11/12,
9/12/12, 9/14/12, 9/15/12
------------------------------------------------------
Brand: Signature Cafe, Sold at Tom Thumb & Randalls,
Plant code P-008
Included States: TX
------------------------------------------------------
Pack
Product Size UPC Code
------ ---- --------
Fruit Basket Medley 30 OZ 21130-06918
(1 LB 14 OZ)
Use BY: SEP 7 12, SEP 10 12, SEP 12 12
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm320361.htm
There have been no reported illnesses attributed to the items
listed in this recall. The Company has directly notified all
retailers who have received the recalled product and has directed
them to remove affected product(s) from their store shelves.
Consumers who may have purchased affected products with the listed
code dates should not consume the product and should destroy or
discard it.
Consumers with questions may contact the company Monday - Friday,
9:00 a.m. - 4:00 p.m. Pacific Daylight Time at 1-888-449-9386
GLOBAL PIPELINE: Glencoe Residents File Class Action
----------------------------------------------------
Russell Hixson, writing for NewsPress, reports that lawyers
representing Glencoe residents filed a class-action lawsuit in
Payne County District Court against pipeline owners and
contractors claiming worker negligence led to a massive
August wildfire that burned thousands of acres and destroyed
dozens of homes.
The Chickasha-based attorneys and their clients are seeking at
least $75,000 in actual damages, and an unspecified amount in
punitive damages.
The lawsuit alleges pipeline workers employed by Global Pipeline
Construction, L.L.C. behaved negligently and violated burn bans
while grinding and welding on Aug. 4. Court records show Parnon
Gathering, a Tulsa crude oil logistics company, contracted Global
to do the work.
The pipeline was being built on and near the three plaintiff's
properties -- all of which sustained damage, according to court
documents.
The fire burned 2,000 acres and destroyed at least 17 homes, fire
officials said. The Payne County Sheriff's Department and State
Fire Marshal investigated the wildfire but could not determine the
cause.
Pipeline workers questioned by the sheriff's department stated
they did not see the fire ignite. The report shows workers said
they had taken precautions to prevent a fire and attempted to put
it out with fire extinguishers.
HAIER AMERICA: Agrees to Pay $850,000 Fine Over Defective Blenders
------------------------------------------------------------------
The U.S. Consumer Product Safety Commission (CPSC) announced that
Haier America Trading LLC, of New York, N.Y., has agreed to pay a
civil penalty of $850,000. The settlement agreement
[http://www.cpsc.gov/cpscpub/prerel/prhtml12/12280.pdf]has been
provisionally accepted by the Commission (4-0).
The settlement resolves CPSC staff allegations that Haier America
failed to report immediately to CPSC, as required by federal law,
a defect involving its blenders that resulted in nearly 60
incidents and an injury to a consumer's hand. The nut on the
blender that holds the blade assembly can dislodge during use,
allowing the blade assembly pieces to break apart, and/or crack
the blender's glass jar, posing a laceration hazard to consumers.
A picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12280.html
Haier America sold the blenders through retail stores between
October 2006 and October 2009. The Company became aware of the
incidents and injury between January 2007 and September 2009, yet
did not file a full report to the Commission until October 2009.
Federal law requires manufacturers, distributors, and retailers to
report to CPSC immediately (within 24 hours) after obtaining
information reasonably supporting the conclusion that a product
contains a defect that could create a substantial product hazard,
creates an unreasonable risk of serious injury or death, or fails
to comply with any consumer product safety rule or any other rule,
regulation, standard or ban enforced by CPSC.
CPSC and Haier America announced a recall of nearly 54,000
blenders in December 2009.
In agreeing to the settlement, Haier America denies CPSC staff
allegations of the defect and that it violated the law.
HAYNEEDLE INC: Recalls 131 Shorea Wooden Arc Hammock Stands
-----------------------------------------------------------
About 131 Shorea Wooden Arc Hammock Stands were voluntarily
recalled by Hayneedle Inc., of Omaha, Nebraska, 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 layers of wood in the stand can separate and fail, causing the
stand to break and posing a fall hazard.
The firm received 18 reports of incidents, including one injury
that required medical attention.
The recalled Shorea wood hammock stands are natural colored with
an arc-shaped holder standing perpendicular to two base pieces.
The stand is 14.5 feet long, 5 feet wide and 4.25 feet high. The
stand is compatible with spreader bar hammocks, which are sold
separately. The item/model number VFA042-1 is printed on the
packaging. A picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12749.html
The recalled products were manufactured in Vietnam and sold at
Hammocks.com during June and July 2012 for about $380.
Consumers should immediately stop using the hammock stand and
return it to Hayneedle. Hayneedle is offering consumers a full
refund, including return shipping costs, or a substitute hammock
stand at no additional charge. Hayneedle has directly contacted
consumers who purchased the hammock stands. For additional
information, contact Hayneedle Customer Care toll-free at (866)
508-1142 between 8:00 a.m. and 10:00 p.m. Eastern Time Monday
through Friday or between 10:00 a.m. and 6:00 p.m. Eastern Time
Saturday, or visit the firm's Web site at http://www.hammocks.com/
to schedule a convenient pick up time for your hammock stand and
arrange a full refund or exchange.
HEARTWARE INT'L: Got Final Okay of Mass. Suit Settlement in July
----------------------------------------------------------------
HeartWare International, Inc. received final approval in July 2012
of its settlement of a class action 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.
On June 27, 2011, HeartWare International, Inc. and HeartWare,
Inc., along with HeartWare's directors, certain officers and a
significant stockholder, were named as defendants in a putative
class action lawsuit filed in Massachusetts state court by two
other Series A Preferred Stockholders on behalf of all holders of
Series A Preferred Stock. The complaint alleges that the
defendants breached their fiduciary and contractual obligations to
Series A Preferred Stockholders by preventing them from receiving
a payment of the liquidation preference in connection with certain
corporate transactions, including a transaction in 2005 in which
HeartWare, Inc. was acquired by HeartWare Limited, a subsidiary of
HeartWare International, Inc. The plaintiffs seek monetary
damages, interest, costs and limited equitable relief. The
Company does not believe it, HeartWare, Inc. or any of its
directors, officers or stockholders have abrogated the rights, or
in any way failed to satisfy obligations owed to, any of its
stockholders, including holders of Series A Preferred Stock. On
September 12, 2011, the defendants served on plaintiffs a motion
to dismiss the complaint with prejudice.
On February 3, 2012, counsel for plaintiffs and defendants entered
into a Memorandum of Understanding to settle the matter.
Defendants have agreed to pay up to $1.1 million to participating
putative class members in exchange for a full and unconditional
release of all claims asserted in the litigation, including any
and all claims arising from any right to receive a payment upon
any liquidation or deemed liquidation event that has arisen or may
arise in the future. On March 22, 2012, the parties filed with
the court a stipulation of settlement formalizing the settlement
agreement. Shortly thereafter, plaintiffs caused notice of the
settlement to be made to putative class members. Following a
hearing on July 25, 2012, the court entered judgment granting
plaintiffs' motion to finally approve the settlement, including
the full and unconditional release of all present and future
claims to receive the liquidation preference.
In accordance with ASC 450, Contingencies, the Company accrues
loss contingencies including costs of settlement, damages and
defense related to litigation to the extent they are probable and
reasonably estimable. Otherwise, the Company expenses these costs
as incurred. If the estimate of a probable loss is a range and no
amount within the range is more likely, the Company accrues the
minimum amount of the range. At December 31, 2011, the Company
determined that settlement of the litigation was probable and that
the reasonably estimable settlement amount is $1.1 million.
Accordingly, the Company recorded a liability for the $1.1
million, a $0.2 million receivable from one of the co-defendants,
who is a related party. In the six months ended June 30, 2012,
the Company deposited $50,000 in escrow in connection with the
potential settlement. As a result of the settlement approval the
Company recorded a receivable at June 30, 2012, in the amount of
$0.8 million representing the estimated contribution it will
receive from its insurance carrier in connection with the
settlement of this litigation. The anticipated insurance recovery
is included in selling, general and administrative expenses in the
Company's statement of operations.
HeartWare International, Inc. -- http://www.heartware.com.au-- a
medical device company, develops and manufactures miniaturized
implantable heart pumps or ventricular assist devices (VAD) for
the treatment of advanced heart failure in the United States and
internationally. The Company offers HeartWare Ventricular Assist
System, which includes a VAD, or blood pump, patient accessories,
and surgical tools designed to provide circulatory support for
patients in the advanced stage of heart failure. It is also
developing the MVAD, a miniaturized blood pump, intended for
chronic heart failure patients. The Company is headquartered in
Framingham, Massachusetts.
INUVIK GAS: Inuvik Town Should File Class Action, Shattler Says
---------------------------------------------------------------
CBC News reports that a candidate for mayor of Inuvik says the
town should consider a class-action lawsuit against Inuvik Gas in
case of damages from using a propane-air mix proposed to extend
the town's dwindling gas supply.
The Ikhil gas project Inuvik Gas developed is drying up sooner
than expected and the town is struggling to find a new source of
energy.
This winter Inuvik homes will be heated in part by propane, in
order to slow consumption of natural gas. On Sept. 17, candidate
Todd Shattler said if the system freezes or does not run as
expected, the town should consider a class-action lawsuit for
homeowners to recoup any damages.
He said the mayor and town council need to be more aggressive with
Inuvik Gas.
"He should be there like a pit bull right in their face, asking
where do we stand, what are we going to do? He's laid back. I
think the mayor dropped the ball."
Mr. Shattler's opponent, former premier Floyd Roland, said the gas
crisis is not the company's fault.
"Everybody who has a home here, who has to light up a furnace or a
gas stove over the winter is going to feel an impact as a result
of the Ikhil situation," he said.
"So there's going to be a need to come together and try and find a
team, to try and mitigate the impacts to the businesses and the
people of this community."
Outgoing mayor Denny Rodgers said the franchise agreement the town
signed with Inuvik Gas does not support a legal case.
Fifteen candidates are running for eight seats on town council.
The election is set for Oct. 15.
JOHN HANCOCK: Must Face RICO Violation Class Action Suit
--------------------------------------------------------
Nate Raymond, writing for Reuters, reports that John Hancock Life
Insurance Co and its law firm, Edwards Wildman Palmer, must face a
class action accusing them of violating racketeering laws by
marketing a tax shelter, a federal appeals court ruled on
Wednesday.
The 6th U.S. Circuit Court of Appeals in Cincinnati in reversing a
lower court's ruling, found that the insurer's customers had
sufficient grounds to pursue a claim under the Racketeer
Influenced and Corrupt Organization Act (RICO).
Federal prosecutors first used RICO to go after mobsters and
organized crime, but later used its powers to pursue white collar
crime on Wall Street. Victims of an alleged fraud can use RICO to
file civil suits and recover triple the amount of damages they
suffered.
Judge Jane Stranch, writing for a three-judge panel, said the
appellate court recognized that John Hancock, Edwards Wildman and
various individuals named as defendants may ultimately be found to
have not participated in a RICO enterprise.
"But that is a matter to be fleshed out in discovery and to be
resolved through motion practice or by the jury," Judge Stranch
wrote.
Ralph Canada, a lawyer for the plaintiffs, welcomed the decision.
"We're obviously delighted to go back to do discovery and go
forward with our case," he said.
Representatives for John Hancock, the U.S. unit of Canada's
Manulife Financial Corp, did not respond to requests for comment.
John Tuerck, a spokesman for Edwards Wildman, said in a statement
that the law firm looks "forward to the opportunity to show in the
district court that there is no basis for the plaintiffs' claims
against the firm."
The lawsuit, filed in 2009 in the U.S. District Court in Grand
Rapids, Mich., stemmed from a purported tax-deductible welfare
benefit plan called Benistar 419 Plan.
The plaintiffs, family owners of Newaygo County, Mich.-based
Stoney Creek Fisheries and Equipment Inc., alleged that starting
in 2001, agents with John Hancock approached them about buying
financial products, including the Benistar plan, which was
intended to provide death benefits funded by life insurance
policies.
Stoney Creek's owners signed up for Benistar in 2001 following
meetings with John Hancock, which also furnished a letter from the
law firm Edwards Angell Palmer & Dodge attesting to the plan's
legality. The law firm is now called Edwards Wildman following a
merger last year.
When the owners of Stoney Creek chose to terminate their
participation in the Benistar plans in 2006, John Hancock
allegedly told them there wouldn't be any tax consequence, the
complaint said.
But in 2008, the Internal Revenue Service declared the Benistar
plan an "abusive tax shelter" and assessed back taxes and
penalties on the plaintiffs, the complaint said.
The lawsuit seeks an unknown amount of compensatory and punitive
damages. The 6th Circuit's ruling sends the case back to U.S.
District Judge Janet Neff, who had dismissed the lawsuit in
October 2010.
The judges on the 6th Circuit panel besides Judge Stranch included
Judges Richard Suhrheinrich and Bernice Donald.
The case is Ouwinga, et al., v. Benistar 419 Plan Services, Inc.,
6th U.S. Circuit Court of Appeals, 10-2531
For the plaintiffs: W. Ralph Canada, Canada Ridley, and Joe
Whatley, Whatley Drake & Kallas
For John Hancock: Eric Mattson, Sidley Austin
For Edwards Wildman: Kathleen Klaus, Maddin, Hauser, Wartell, Roth
& Heller
KELLOGG CO: Mislabels Kashi Products as All Natural, Suit Says
--------------------------------------------------------------
Julie Martin, as an individual, and on behalf of all others
similarly situated v. The Kellogg Company, a Delaware corporation,
and Kashi Company, a California corporation, Case No. 3:12-cv-
04846 (N.D. Calif., September 14, 2012) accuses the Defendants of
misrepresenting their Kashi products as all natural when they are
not because they contain genetically modified organisms("GMOs").
At issue in the lawsuit is the cereal product Go Lean Crunch(R)
(the "Product"), which the Defendants market as "ALL NATURAL," Ms.
Martin asserts. Contrary to the Defendants' representations,
however, the Product uses plants grown from GMOs, she alleges.
She contends that the Product poses a potential threat to
consumers because medical research and scientific studies have yet
to determine the long-term health effects of genetically
engineered foods.
Ms. Martin is a resident of San Francisco, California. She
purchased Kashi Go-Lean Crunch cereal during the Class Period from
a Trader Joes Market.
Kellogg is a Delaware corporation based in Battle Creek, Michigan.
Kellogg is the owner and manufacturer of a line of snack foods
commonly known as "Kashi." Kellogg manufactures, markets,
advertises, distributes and sells various breakfast cereals,
energy bars, crackers, frozen entrees including pizza and
breakfast foods, as well as snack foods. Kellogg is the parent
company and owner of Kashi Co., which maintains its principal
place of business in La Jolla, California.
The Plaintiff is represented by:
Benjamin M. Lopatin, Esq.
THE LAW OFFICES OF HOWARD W. RUBINSTEIN, P.A.
One Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone: (800) 436-6437
Facsimile: (415) 692-6607
E-mail: lopatin@hwrlawoffice.com
- and -
L. De-Wayne Layfield, Esq.
LAW OFFICE OF L. DEWAYNE LAYFIELD
PO Box 3829
Beaumont, TX 77704-3829
Telephone: (409) 832-1891
Facsimile: (866) 280-3004
E-mail: dewayne@layfieldlaw.com
LAKESHORE GENERAL: Sued Over Incomplete Colonoscopies
-----------------------------------------------------
Aaron Derfel, writing for The Montreal Gazette, reports that a 70-
year-old Pierrefonds man who was given the all-clear after a
colonoscopy at the Lakeshore General Hospital three years ago --
but who has since learned he does have colon cancer -- is the lead
plaintiff in a class-action lawsuit being prepared against the
Pointe Claire institution.
Lawyer David Assor filed a motion in Quebec Superior Court on
Sept. 14 against Lakeshore and general surgeon Gilles Bourdon. Two
days earlier, Lakeshore announced that it would be recalling 684
patients to redo colonoscopies after discovering that the initial
exams were "incomplete."
The colonoscopies were performed from 2009 to January 2012 by a
single physician -- whom Lakeshore officials have refused to
identify but whom The Gazette has confirmed is Mr. Bourdon.
Mr. Assor told The Gazette that his client, whose name he did not
want published, was devastated to learn that he was part of the
recall, and that he was given falsely negative results three years
ago.
"My plaintiff had surgery in June to remove a tumor and on Monday
he started his chemotherapy," Mr. Assor said.
"When he received a letter about the recall from the Lakeshore by
Purolator, his thinking was: 'I could have avoided all this
chemotherapy and the surgery and the cancer had I been properly
checked at the time.'"
Making matters worse, the man's wife also underwent a colonoscopy
at the same time by Mr. Bourdon, and "she's now thinking she might
have cancer, too, and she's very fearful at this point for herself
and her husband."
Mr. Bourdon could not be reached for comment. A secretary at his
Pointe Claire office said he was in a meeting and "could not be
disturbed."
Lakeshore officials say Mr. Bourdon quit the hospital in January
for personal reasons, although several patients have contacted The
Gazette to say that he still treated them at the hospital in the
months afterward.
In June, the Quebec College of Physicians reached an agreement
with Mr. Bourdon to restrict his license, barring him from
operating in hospitals and from conducting colonoscopies.
However, he is still able to practice medicine at his Pointe
Claire office.
In 2005, the College of Physicians launched an investigation into
Mr. Bourdon following a complaint by a patient. On March 18,
2009, Bourdon was found guilty by the professional order for
failing to take the required medical notes within 24 hours of
having performed operations, as well as for misreading lab
results.
He was suspended for two months.
Mr. Assor insisted that the physician alone should not take full
responsibility for the recall, since the hospital did manage him
and was probably aware that there were problems with his practice.
"I believe that the Lakeshore General should have watched the
doctor more carefully, especially because of his disciplinary
past," Mr. Assor said.
"He had issues of not filling out his post-operative files and
having problems reading lab results. They should have kept an eye
on him more carefully and they should have had a better system in
order to verify that he was doing the colonoscopies correctly
instead of waking up to this problem sometime in April," according
to them.
Lakeshore officials refused to comment on the class-action motion,
as it is before the courts.
Mr. Assor explained that his motion is for "authorization to bring
a class action," and does not automatically mean the lawsuit will
proceed. A hearing will likely be held in nine months to a year,
given the backlog of court cases.
The motion seeks moral, punitive and exemplary damages from the
defendants without specifying a dollar figure.
MIDLAND CREDIT: Sued Over Illegal Debt Collection Tactics
---------------------------------------------------------
Courthouse News Service reports that more than a dozen financial
firms conspired to collect debts by compiling fraudulent papers
and bringing those papers to court with illegal tactics, a class
claims in the United States District Court for the Southern
District of New York.
The case is Amal Shetiwy; Louis Yeostros v. Midland Credit
Management aka Midland Funding.
MILBERG LLP: Judge Refuses to Certify Malpractice Class Action
--------------------------------------------------------------
Nate Raymond, writing for Reuters, reports that Milberg normally
isn't in the business of arguing against a class action going
forward.
But the New York-based plaintiffs' law firm recently found itself
in that position as it fought the certification of a class of
former clients suing it for malpractice.
It has now prevailed.
On Sept. 18, U.S. District Judge Frank Zapata held that the former
Milberg clients had failed to show that Arizona state law could
apply to a nationwide class action. The clients had sued Milberg
for allegedly missing a crucial deadline in a securities class
action against an American International Group Inc. subsidiary.
In declining to certify the class, Judge Zapata said the lawsuit
was filed before customers who bought insurance from the AIG
subsidiary, Variable Annuity Life Insurance Co., could be notified
there was a lawsuit.
"The absent class members did not choose or hire the attorneys,
and did not ask them to litigate a nationwide class action based
on violations of the securities laws in Arizona," Judge Zapata
said.
A lawyer for the former clients promised an appeal on Sept. 19.
"We certainly disagree with the opinion and look forward to the
appeal to the Ninth Circuit," Guy Hohmann, a lawyer for the
plaintiffs at Hohmann, Taube & Summers, said in an e-mail.
A spokeswoman for Milberg declined to comment.
Founded in 1965, the 65-lawyer Milberg is known for its roles
securing class action settlements, such as the $3.2 billion
settlement for investors in Tyco International Ltd in 2007.
Earlier this year, the firm obtained a $45 million settlement from
Sketchers U.S.A. Inc in a case over false advertising connected
with the sale of its toning shoes.
The malpractice suit against Milberg spilled out of years of
litigation against Variable Annuity Life Insurance, which sold
annuities throughout the U.S. and had more than one million
customers. The lawsuit was filed in 2001 when the law firm was
still known as Milberg Weiss Bershad Hynes & Lerach.
The lawsuit claimed that Variable Annuity Life violated federal
securities laws by selling tax-sheltered annuities in instances
where the investments already were protected from taxes, such as
in retirement accounts.
U.S. District Judge Cindy Jorgenson in Tucson, Arizona, initially
certified the class. But before issuing an order notifying the
class of the certification, Ms. Jorgenson found that Milberg had
missed a deadline to file expert disclosures.
As a result, she struck those experts, found the plaintiffs
couldn't establish damages anymore and decertified the class
action.
Two of the class members, Philip Bobbitt and John Sampson,
subsequently sued Milberg and three other law firms involved in
the litigation over the missed deadlines in 2009. In April 2011,
Judge Zapata denied a motion to dismiss an amended complaint in
the lawsuit against Milberg.
The case is Bobbitt v. Milberg, U.S. District Court for the
District of Arizona, No. 09cv00629
For the plaintiffs: R. James George, George & Brothers; Guy
Hohmann, Hohmann, Taube & Summers; Robert McKirgan, Lewis and
Roca.
For Milberg: Gregory Joseph, Gregory P. Joseph Law Offices.
MMODAL INC: Defends Consolidated Legend Merger-Related Suit
-----------------------------------------------------------
MModal Inc. is defending a consolidated shareholder class action
lawsuit arising from its proposed merger with affiliates of One
Equity Partners V, L.P., 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 2, 2012, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Legend Parent, Inc., a
Delaware corporation ("Parent"), and Legend Acquisition Sub, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Parent
("Merger Sub"). Parent and Merger Sub are affiliates of One
Equity Partners V, L.P., a Cayman Islands exempted limited
partnership ("OEP").
Pursuant to the Merger Agreement, upon the terms and subject to
the conditions thereof, Merger Sub commenced a tender offer on
July 17, 2012 (the "Offer"), to purchase all of the outstanding
shares of common stock of the Company at a purchase price of
$14.00 per share, net to the seller thereof in cash (the "Offer
Price"), without interest thereon and subject to any applicable
withholding taxes. The transaction is expected to close during
the third quarter of 2012.
On July 6, 2012, a purported stockholder of the Company filed a
putative class action lawsuit in the Court of Chancery of the
State of Delaware, captioned Alan Kahn v. Roger L. Davenport, et
al., Case No. 7675-VCP, in connection with the proposed merger
transaction. The defendants are the Company, the members of the
Company's board of directors, One Equity Partners, LLC and its
affiliates, Legend Parent, Inc. and Legend Acquisition Sub, Inc.
The Kahn action purports to be brought individually and on behalf
of the public stockholders of the Company. The Kahn complaint
contains allegations that the individual directors breached their
fiduciary obligations because they (i) agreed to a flawed process
that precluded the emergence of competing bidders and whereby the
Company's financial advisor was not independent; and (ii) failed
to maximize stockholder value. The Kahn complaint further alleges
that One Equity Partners, LLC and Legend Parent, Inc. aided and
abetted those alleged breaches of fiduciary duty. The Kahn action
seeks, among other things, injunctive relief prohibiting
consummation of the proposed merger transaction, rescission of the
Agreement and Plan of Merger governing such transaction, damages
and attorneys' fees and costs.
On July 9, 2012, a purported stockholder of the Company filed a
putative class action lawsuit in the Court of Chancery of the
State of Delaware, captioned Edward Forstein, v. MModal Inc. et
al., Case No. 7680-VCP, in connection with the proposed merger
transaction. The defendants are the Company, the members of the
Company's board of directors, One Equity Partners, LLC, Legend
Parent, Inc. and Legend Acquisition Sub, Inc. The Forstein action
purports to be brought individually and on behalf of the public
stockholders of the Company. The Forstein complaint contains
allegations that the individual directors breached their fiduciary
obligations because (i) one of the Company's financial advisors
was materially conflicted; (ii) the Company's largest stockholder
had different interests than the Company's public stockholders;
(iii) they agreed to preclusive deal protection provisions; and
(iv) the individual directors failed to maximize stockholder
value. The Forstein complaint further alleges that One Equity
Partners, LLC, Legend Parent, Inc. and Legend Acquisition Sub,
Inc. aided and abetted those alleged breaches of fiduciary duty.
The Forstein action seeks, among other things, injunctive relief
prohibiting consummation of the proposed merger transaction,
rescission of the Agreement and Plan of Merger governing such
transaction, damages and attorneys' fees and costs.
On July 10, 2012, a purported stockholder of the Company filed a
putative class action lawsuit in the Court of Chancery of the
State of Delaware, captioned Scott Phillips v. Roger L. Davenport,
et al., Case No. 7685-VCP, in connection with the proposed merger
transaction. The defendants are the Company, the members of the
Company's board of directors, One Equity Partners, LLC, Legend
Parent, Inc. and Legend Acquisition Sub, Inc. The Phillips action
purports to be brought individually and on behalf of the public
stockholders of the Company. The Phillips complaint contains
allegations that the individual directors breached their fiduciary
duty because (i) they failed to take steps to maximize the value
of the Company to its public shareholders and took steps to avoid
competitive bidding; (b) they did not properly value the Company;
and (c) they ignored or did not protect against the numerous
conflicts of interest resulting from the directors' own
interrelationships or connection with the merger transaction. The
Phillips complaint further alleges the Company, One Equity
Partners, LLC, Legend
Parent, Inc. and Legend Acquisition Sub, Inc. aided and abetted
those alleged breaches of fiduciary duty. The Phillips action
seeks, among other things, injunctive relief prohibiting
consummation of the proposed merger transaction, rescission of the
Agreement and Plan of Merger governing such transaction, damages
and attorneys' fees and costs.
On July 17, 2012, a proposed order of consolidation was submitted
to the Court of Chancery of the State of Delaware for approval,
pursuant to which, inter alia, each of the previously-filed
lawsuits would be consolidated into one action, captioned In re
MModal Inc. Shareholder Litigation, Consolidated C.A. No. 7675-
VCP. On July 18, 2012, the Court of Chancery of the State of
Delaware granted the order of consolidation.
On July 24, 2012, an amended putative class action lawsuit was
filed in the Court of Chancery of the State of Delaware, captioned
In re MModal Inc. Shareholder Litigation, Consolidated Civil
Action No. 7675-VCP (referred to as the "Consolidated Complaint").
In addition to re-asserting the previously-asserted allegations
and claims against the previously-named defendants, the
Consolidated Complaint: (i) names certain funds affiliated with
S.A.C. Private Capital Group LLC (the "SAC PCG Funds") as
defendants, (ii) alleges that the support agreement entered into
between the Company and the SAC PCG Funds gives rise to claims of
breach of fiduciary duty against the Company's board of directors
and to claims of aiding and abetting breach of fiduciary duty
against One Equity Partners, LLC, Legend Parent, Inc., Legend
Acquisitions Sub, Inc. and the SAC PCG Funds and (iii) alleges
that the Company's board of directors breached its fiduciary duty
via materially incomplete and misleading disclosures in the
Schedule 14D-9 filed on July 17, 2012, as amended (specifically
focusing on (a) the timing and content of any post-transaction
employment discussions with senior management, (b) certain aspects
of Macquarie Capital's (the Company's financial advisor) valuation
work, (c) all services performed by Macquarie Capital for the
Company and One Equity Partners LLC and its affiliates over the
past two years and (d) which directors of the Company are
principals in the fund in which Macquarie Capital has made a $15
million investment). The Consolidated Complaint seeks
substantially similar relief as the previously filed lawsuits. On
July 27, 2012, plaintiffs filed a motion for expedited
proceedings, and papers in support thereof, as well as a motion to
enjoin consummation of the proposed merger transaction.
The Company believes that the Consolidated Complaint lacks merit,
and intends to defend the case vigorously. Because this matter is
in an early stage, the Company cannot estimate the possible loss
or range of loss, if any, associated with its ultimate resolution.
PHYSICIANS FORMULA: Being Sold for Too Little, Suit Claims
----------------------------------------------------------
Courthouse News Service reports that Physicians Formula is selling
itself too cheaply through an unfair process at $4.25 a share, in
a deal that will enrich its directors, a class action claims in
Superior Court.
SITEL WORLDWIDE: Awaits Final OK of Deal in Ill. Suit vs. Unit
--------------------------------------------------------------
SITEL Worldwide Corporation is awaiting final court approval of
its settlement of a class action lawsuit commenced in Illinois
against a subsidiary, 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.
In July 2010, the Company's wholly owned subsidiary, National
Action Financial Services, Inc. ("NAFS"), was served with a
purported class action lawsuit in United States District Court for
the Northern District of Illinois. The complaint alleged NAFS
placed automated calls to plaintiff's cell phone without his
consent, allegedly in violation of the federal Telephone Consumer
Protection Act ("TCPA"). NAFS made a demand upon its insurance
carrier for coverage under its errors and omissions insurance
policy which contains a self-insured retention amount of $1
million. The insurance carrier denied the existence of a duty to
defend or indemnify NAFS for the claims at issue relying on
certain exclusions in the policy. Following recent settlement
discussions and after assessing the merits of the underlying
claims and the likelihood of an insurance recovery, the parties
have tentatively settled this matter on a non-recourse basis to
NAFS by requiring the Company to assign certain rights to
insurance recoveries for the benefit of the class plaintiffs in
exchange for a release of all class claims and a covenant not to
execute any agreed judgment against NAFS. The settlement
agreement has been preliminarily approved by the court but remains
subject to final court approval following receipt of completed
class claim forms. Class members were required to submit claim
forms by July 30, 2012, and a hearing before the court for final
approval of the settlement agreement was set for September 13,
2012.
As of June 30, 2012, a reserve has been recorded which the Company
believes is in accordance with the reasonable range of loss.
SITEL WORLDWIDE: Discovery Ongoing in Michigan Suit
---------------------------------------------------
SITEL Worldwide Corporation's subsidiary is awaiting responses to
its discovery served on plaintiff of a class action lawsuit
pending in Michigan, 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.
In April 2011, the Company's wholly owned subsidiary, National
Action Financial Services, Inc. ("NAFS"), was served with a
purported class action filed in United States District Court for
the Eastern District of Michigan. The complaint alleges
violations of the federal Fair Debt Collection Practices Act
("FDCPA") and the Telephone Consumer Protection Act ("TCPA") for
calls to plaintiff's cell phone in an attempt to collect a debt
not owed by the plaintiff. The complaint also alleges pre-
recorded message calls to debtors on their cell phones by means of
an automated dialing device, without having received permission
from the recipients of the calls in violation of the TCPA. NAFS
has filed a motion to dismiss, which was granted in part and
denied in part, with the TCPA claim surviving as well as certain
of the FDCPA claims. NAFS has responded to Plaintiff's discovery
requests and is awaiting responses to its discovery served on
Plaintiff.
The Company says it is currently unable to predict the probable
outcome of this matter and is not able to reasonably estimate the
amount of loss, if any. No reserve has been recorded as of
June 30, 2012, and December 31, 2011.
TD AMERITRADE: Yield Plus Fund Suit Dismissal Bids Pending
----------------------------------------------------------
TD Ameritrade, Inc.'s clients continue to hold shares in the Yield
Plus Fund (now known as "Yield Plus Fund - In Liquidation"), which
is being liquidated. TD Ameritrade, Inc. is TD Ameritrade Holding
Corporation's introducing broker-dealer subsidiary.
In November 2008, a purported class action lawsuit was filed with
respect to the Yield Plus Fund. The lawsuit is captioned Ross v.
Reserve Management Company, Inc. et al. and is pending in the U.S.
District Court for the Southern District of New York. The Ross
lawsuit is on behalf of persons who purchased shares of Reserve
Yield Plus Fund. On November 20, 2009, the plaintiffs filed a
first amended complaint naming as defendants the fund's advisor,
certain of its affiliates and the Company and certain of its
directors, officers and shareholders as alleged control persons.
The complaint alleges claims of violations of the federal
securities laws and other claims based on allegations that false
and misleading statements and omissions were made in the Reserve
Yield Plus Fund prospectuses and in other statements regarding the
fund. The complaint seeks an unspecified amount of compensatory
damages including interest, attorneys' fees, rescission, exemplary
damages and equitable relief. On
January 19, 2010, the defendants submitted motions to dismiss the
complaint. The motions are pending.
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.
The Company estimates that its clients' current aggregate
shortfall, based on the original par value of their holdings in
the Yield Plus Fund, less the value of fund distributions to date
and the value of payments under the Company's SEC settlement, is
approximately $37 million. This amount does not take into account
any assets remaining in the fund that may become available for
future distributions.
The Company is unable to predict the outcome or the timing of the
ultimate resolution of the Pennsylvania action and the Ross
lawsuit, or the potential loss, if any, that may result from these
unresolved matters. However, management believes the outcome of
these pending proceedings is not likely to have a material adverse
effect on the financial condition, results of operations or cash
flows of the Company.
Based in Omaha, Nebraska, TD Ameritrade Holding Corporation --
http://www.ameritrade.com/-- through its subsidiaries, provides
securities brokerage services and technology-based financial
services to retail investors, traders, and independent registered
investment advisors (RIAs) in the United States.
THRESHOLD ENTERPRISES: Sued For False Claims Over Colloidal Silver
------------------------------------------------------------------
Courthouse News Service reports that Threshold Enterprises' and
Source Natural's "Source Naturals Ultra Colloidal Silver" do not
actually "kill primitive bacteria, viruses and germs in the human
body!", a class action claims in Superior Court.
A copy of the Complaint in Kaleopa v. Threshold Enterprises Ltd.,
et al., Case No. 37-2012-00057330 (Calif. Super Ct., San Diego-
North County), is available at:
http://www.courthousenews.com/2012/09/20/SnakeOil.pdf
The Plaintiff is represented by:
Michael Louis Kelly, Esq.
Behram V. Parekh, Esq.
Heather M. Baker, Esq.
KIRTLAND & PACKARD LLP
2041 Rosecrans Avenue
Third Floor
El Segundo, CA 90245
Telephone: (310) 536-1000
E-mail: mlk@kirtlandpackard.com
bvp@kirtlandpackard.com
hmb@kirtlandpackard.com
THYSSENKRUPP ACCESS: Recalls 670 Residential Elevators
------------------------------------------------------
About 670 units of LEV II(R), Volant(TM) and Rise(TM) residential
elevators were voluntarily recalled by ThyssenKrupp Access
Manufacturing LLC, of Roanoke, Illinois, 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 elevator's door can unlock and open at a landing with no
elevator car present, exposing the elevator shaft and posing a
fall hazard to consumers.
No incidents or injuries have been reported.
This recall involves LEV II, Volant and Rise residential
elevators. The elevators were installed in residences with three
or more floors. The elevator's four-digit model number is part of
the longer serial number. Model numbers included in this recall
are "RLWL" for the LEV II, "RLGL" for the Volant and "RLRC" for
the Rise. The model/serial number is printed in the owner's
manual and at the top of the elevator's controller, which is
mounted at the top of the elevator in the hoistway or shaft.
A picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12750.html
The recalled products were manufactured in the United States of
America and were sold to elevator dealers from December 2010
through August 2012 for between $16,000 and $26,000 installed.
Consumers should stop using the elevators immediately if they see
an "E3" or "E8" error code displayed on the elevator. Even if
there is no "E3" or "E8" error code displayed, contact the firm to
arrange for a free software upgrade for the elevator. The firm's
dealers are directly contacting consumers who purchased the
recalled elevators. For more information, contact ThyssenKrupp
Access Manufacturing LLC at (800) 925-3100 between 7:00 a.m. and
5:00 p.m. Central Time Monday through Friday, e-mail the firm at
levplc@tkaccess.com or visit the firm's Web site at
http://www.tkaccess.com/and click on "Important Recall Notice."
TRIPLE-S MANAGEMENT: Awaits Ruling on Breach of Contract Claim
--------------------------------------------------------------
Triple-S Management Corporation is awaiting a court decision on
its and other defendants' motion for reconsideration of a ruling
regarding breach of contract claim asserted in a dentists
association's class action 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.
On February 11, 2009, the Puerto Rico Dentists Association
(Colegio de Cirujanos Dentistas de Puerto Rico) filed a complaint
in the Court of First Instance against 24 health plans operating
in Puerto Rico that offer dental health coverage. The Corporation
and two of its subsidiaries, TSS and Triple-C, Inc. ("TCI"), were
included as defendants. This litigation purports to be a class
action filed on behalf of Puerto Rico dentists who are similarly
situated.
The complaint alleges that the defendants, on their own and as
part of a common scheme, systematically deny, delay and diminish
the payments due to dentists so that they are not paid in a timely
and complete manner for the covered medically necessary services
they render. The complaint also alleges, among other things,
violations to the Puerto Rico Insurance Code, antitrust laws, the
Puerto Rico racketeering statute, unfair business practices,
breach of contract with providers, and damages in the amount of
$150 million. In addition, the complaint claims that the Puerto
Rico Insurance Companies Association is the hub of an alleged
conspiracy concocted by the member plans to defraud dentists.
There are numerous available defenses to oppose both the request
for class certification and the merits. The Corporation intends
to vigorously defend this claim.
Two codefendant plans, whose main operations are outside Puerto
Rico, removed the case to federal court in Florida, which the
plaintiffs and the other codefendants, including the Corporation,
opposed. Following months of jurisdictional proceedings in the
federal court system, the federal district court in Puerto Rico
decided to retain jurisdiction on February 8, 2011. The
defendants filed a joint motion to dismiss the case on the merits,
because the complaint fails to state a claim upon which relief can
be granted. On August 31, 2011, the District Court dismissed all
of plaintiffs' claims except for its breach of contract claim, and
ordered the parties to brief the issue of whether the court still
has federal jurisdiction under the Class Action Fairness Act of
2005, which they have done. Plaintiffs moved the court to
reconsider its August 31, 2011 decision and the defendants did the
same arguing that the breach of contract claim failed to state a
claim upon which relief can be granted.
On May 2, 2012, the court denied the plaintiffs' motion. The
parties are awaiting the court's decision on the defendants'
motion to reconsider its ruling regarding the breach of the
contract claim. In addition, on May 31, 2012, plaintiffs appealed
the District Court's dismissal of their complaint and the denial
of plaintiffs' motion for reconsideration.
Triple-S Management Corporation --
http://www.triplesmanagement.com/triples-- is an independent
licensee of the Blue Cross Blue Shield Association. It is a
player in the managed care industry in Puerto Rico. Triple-S
Management also has the exclusive right to use the Blue Cross Blue
Shield name and mark throughout Puerto Rico and the U.S. Virgin
Islands. With more than 50 years of experience in the industry,
Triple-S Management offers a broad portfolio of managed care and
related products in the Commercial and Medicare Advantage markets
under the Blue Cross Blue Shield brand through its subsidiary
Triple-S Salud, Inc. and effective February 2011, also offers non-
branded Medicare products through American Health Inc. In
addition to its managed care business, Triple-S Management
provides non-Blue Cross Blue Shield branded life and property and
casualty insurance in Puerto Rico.
TRIPLE-S MANAGEMENT: TSP Continues to Defend Vehicle Owner Suits
----------------------------------------------------------------
Triple-S Management Corporation's subsidiary continues to defend
two class action lawsuits brought by motor vehicle owners in
Puerto Rico, 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 19, 2011, plaintiffs, purportedly a class of motor
vehicle owners, filed an action in the United States District
Court for the District of Puerto Rico against the Puerto Rico
Joint Underwriting Association ("JUA") and 18 other defendants,
including Triple-S Propiedad, Inc. ("TSP"), alleging violations
under the Puerto Rico Insurance Code, the Puerto Rico Civil Code,
the Racketeer Influenced and Corrupt Organizations Act ("RICO")
and the local statute against organized crime and money
laundering. JUA is a private association created by law to
administer a compulsory public liability insurance program for
motor vehicles in Puerto Rico ("CLI"). As required by its
enabling act, JUA is composed of all the insurers that underwrite
private motor vehicle insurance in Puerto Rico and exceed the
minimum underwriting percentage established in such act. TSP is a
member of JUA.
In this lawsuit, entitled Noemi Torres Ronda, et al v. Joint
Underwriting Association, et al., plaintiffs allege that the
defendants illegally charged and misappropriated a portion of the
CLI premiums paid by motor vehicle owners in violation of the
Puerto Rico Insurance Code. Specifically, they claim that because
the defendants do not incur in acquisition or administration costs
allegedly totaling 12% of the premium dollar, charging for such
costs constitutes the illegal traffic of premiums. Plaintiffs
also claim that the defendants, as members of JUA, violated RICO
through various inappropriate actions designed to defraud motor
vehicle owners located in Puerto Rico and embezzle a portion of
the CLI premiums for their benefit.
Plaintiffs seek the reimbursement of funds for the class amounting
to $406.6 million, treble damages under RICO, and equitable
relief, including a permanent injunction and declaratory judgment
barring defendants from their alleged conduct and practices, along
with costs and attorneys' fees.
On December 30, 2011, TSP and other insurance companies filed a
joint motion to dismiss, arguing that plaintiffs' claims are
barred by the filed rate doctrine, inasmuch a lawsuit cannot be
brought, even under RICO, to amend the compulsory liability
insurance rates that were approved by the Puerto Rico Legislature
and the Commissioner of Insurance. The motion also argues that
since RICO is not a federal statute that specifically relates to
the business of insurance, and its application in the claims at
issue would frustrate state policy and interfere with Puerto
Rico's insurance administrative regime, the McCarran-Ferguson Act
precludes plaintiffs' claims. Finally, the Company argued that
plaintiffs failed to allege the necessary elements of an
actionable RICO claim, or, in the alternative, their damages claim
is time barred.
On February 17, 2012, plaintiffs filed their opposition. On April
4, 2012, the Company filed a Reply in support of its motion to
dismiss.
A similar case entitled Maria Margarita Collazo Burgos, et al. v.
La Asociacion de Suscripcion Conjunta del Seguro de
Responsabilidad Obligatorio ("JUA"), et al., was filed against JUA
and its members, including TSP, in the Puerto Rico Court of First
Instance, San Juan Part on January 28, 2010. This litigation is a
putative class action lawsuit brought on behalf of motor vehicle
owners in Puerto Rico. Plaintiffs in this lawsuit allege that
each of the defendants engaged in similar activities and conduct
as those alleged in the Torres Ronda litigation and claim the
recovery of $225 million for the class pertaining to the
acquisition and administration costs of the CLI, allegedly charged
in violation of the Puerto Rico Insurance Code's provisions
prohibiting the illegal traffic of premiums. TSP is vigorously
contesting this action.
Given the early stage of these cases, the Corporation cannot
assess the probability of an adverse outcome, or the reasonable
financial impact that any such outcome may have on the
Corporation. The Corporation intends to vigorously defend these
lawsuits.
Triple-S Management Corporation --
http://www.triplesmanagement.com/triples-- is an independent
licensee of the Blue Cross Blue Shield Association. It is a
player in the managed care industry in Puerto Rico. Triple-S
Management also has the exclusive right to use the Blue Cross Blue
Shield name and mark throughout Puerto Rico and the U.S. Virgin
Islands. With more than 50 years of experience in the industry,
Triple-S Management offers a broad portfolio of managed care and
related products in the Commercial and Medicare Advantage markets
under the Blue Cross Blue Shield brand through its subsidiary
Triple-S Salud, Inc. and effective February 2011, also offers non-
branded Medicare products through American Health Inc. In
addition to its managed care business, Triple-S Management
provides non-Blue Cross Blue Shield branded life and property and
casualty insurance in Puerto Rico.
UNITED STATES: Conejos Housing Authority Mulls Joining Class Suit
-----------------------------------------------------------------
Tori Vigil, writing for Valley Courier, reports that the Conejos
County Housing Authority recently presented the Conejos County
Commissioners with the option to join a class action lawsuit
against the U.S. Department of Housing and Urban Development
(HUD).
Jesse Vance, chairman of the housing authority board, presented a
letter regarding the suit to the county commissioners at their
September meeting.
Some Colorado housing authorities have already joined the class
action lawsuit and Colorado isn't the only state participating.
Many housing authorities throughout the country have joined in.
The lawsuit was brought about when HUD instituted a requirement
that the housing authorities use all reserve monies they have
saved up before they could receive any more money for operating
funds.
As a result, many housing authorities lost their funding for 2012.
The Conejos County Housing Authority currently maintains 44 units
and, if they participate, they will be suing for the loss of this
year's operating funds.
The Conejos County Housing Authority has received two letters from
the attorneys on the case inquiring if they wanted to participate
in the lawsuit against HUD. The attorneys in the case are sure
they can win and have told the housing authorities they can get
back most of the funds they lost for this year.
However, there is a law stating that local housing authorities
can't use HUD monies to sue the government, so the housing
authorities must find ways to obtain funds to pay for the lawsuit
on their own.
The Conejos County Commissioners are currently unsure if they will
allow the housing authority to participate in the lawsuit, and
requested more information before making a decision.
VENOCO INC: Colo. Merger-Related Suits Administratively Closed
--------------------------------------------------------------
Merger-related class action lawsuits in Colorado have been
administratively closed pending resolution of a consolidated case
in Delaware, Venoco, Inc. disclosed in its August 8, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2012.
In August 2011, Timothy Marquez, the then-chairman and chief
executive officer of the Company, submitted a nonbinding proposal
to the board of directors of the Company to acquire all of the
shares of the Company he does not beneficially own for $12.50 per
share in cash (the "Marquez Proposal"). As a result of that
proposal, four lawsuits were filed in the Delaware Court of
Chancery in 2011 against the Company and each of its directors by
shareholders alleging that the Company and its directors had
breached their fiduciary duties to the shareholders in connection
with the Marquez Proposal. A fifth lawsuit filed in 2011, also in
the Delaware Court of Chancery, named only Mr. Marquez as a
defendant.
On January 16, 2012, the Company announced it had entered into a
merger agreement with Mr. Marquez and certain of his affiliates
pursuant to which, at closing, each of the shareholders other than
Mr. Marquez and his affiliates would receive $12.50 for each share
of Company stock (the "Merger"). Following announcement of the
merger agreement, four additional lawsuits were filed in Delaware
and three lawsuits were filed in federal court in Colorado naming
as defendants the Company and each of its directors. Each action
seeks certification as a class action. Plaintiffs in both the
Delaware and Colorado actions challenge the Merger and allege,
among other things, that the consideration to be paid is
inadequate. The complaints filed in Delaware were consolidated.
The consolidated complaint sought, among other relief, to enjoin
defendants from consummating the Merger and to direct defendants
to exercise their fiduciary duties to obtain a transaction that is
in the best interests of the shareholders.
On April 25, 2012, plaintiffs in the Delaware action withdrew
their request for a preliminary injunction. The Colorado actions
have been administratively closed pending resolution of the
Delaware case. The Company has reviewed the allegations contained
in the complaints and believes they are without merit.
XL FOODS: FSIS Issues Alert for Raw Boneless Beef Trim Products
---------------------------------------------------------------
The U.S. Department of Agriculture's Food Safety and Inspection
Service (FSIS) is announcing a Public Health Alert for raw
boneless beef trim products imported from Canada that may be
contaminated with E. coli O157:H7.
FSIS testing of raw boneless beef trim product from Canadian
Establishment 38, XL Foods, Inc., confirmed positive for E. coli
O157:H7 on September 3, 2012. FSIS alerted the Canadian Food
Inspection Agency (CFIA) of the positive results. After follow-up
testing by FSIS and CFIA, the CFIA announced a recall by XL Foods,
Inc. of a variety of ground beef products on September 16, 2012.
Subsequently, the CFIA has expanded the scope of the recall to
include additional products.
The Company has notified its customers, including U.S.
establishments that beef trim associated with the recall was
shipped to them. FSIS is working expeditiously to perform
effectiveness checks to confirm that all trim received at FSIS-
inspected establishments from Canadian Establishment 38, either
received a full lethality treatment or that no raw trim was
further distributed and manufactured into other not-ready-to-eat
product. In addition, for products that may have been further
distributed and manufactured into other not-ready-to-eat product,
FSIS is working to confirm that actions are being taken to remove
the product from commerce. FSIS is taking all necessary steps to
ensure that all raw ground products produced from the recalled
trim are removed from commerce.
While the investigation continues, FSIS is issuing a Public Health
Alert to inform food service operations and consumers. The
products subject to the Canadian recall were distributed to U.S.
establishments in the following states: California, Michigan,
Nebraska, Oregon, Texas, Utah, Washington and Wisconsin. At the
U.S. establishments, these products may have been further
processed into various products, such as ground beef, ground beef
patties, beef jerky and pastrami. FSIS will continue to provide
information as it becomes available, including information about
any related recall. When available, the retail distribution list
will be posted on FSIS' Web site at:
http://www.fsis.usda.gov/FSIS_Recalls/Open_Federal_Cases/index.asp
E. coli O157:H7 is a potentially deadly bacterium that can cause
bloody diarrhea, dehydration, and in the most severe cases, kidney
failure. The very young, seniors and persons with weak immune
systems are the most susceptible to foodborne illness.
FSIS advises all consumers to safely prepare their raw meat
products, including fresh and frozen, and only consume ground beef
that has been cooked to a temperature of 160 degrees F. The only
way to confirm that ground beef is cooked to a temperature high
enough to kill harmful bacteria is to use a food thermometer that
measures internal temperature.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at AskKaren.gov.
The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-
888-674-6854) is available in English and Spanish and can be
reached from l0:00 a.m. to 4:00 p.m. (Eastern Time) Monday through
Friday. Recorded food safety messages are available 24 hours a
day.
ZYNGA INC: Faces Another Shareholder's Class Action Suit
--------------------------------------------------------
Mark F. Westley, Individually and on Behalf of All Others
Similarly Situated v. Zynga, Inc., Mark Pincus, David M. Wehner
and John Schappert, Case No. 5:12-cv-04833 (N.D. Calif., September
14, 2012) alleges violations of the anti-fraud provisions of the
federal securities laws on behalf of all purchasers of Zynga
common stock between December 15, 2011, and July 25, 2012,
inclusive.
The Class Period representations by the Defendants were each
materially false and misleading when made as they failed to
disclose the true facts, which were known or recklessly
disregarded by them, including the fact that the Company's
December 15, 2011 Registration Statement failed to disclose the
true extent of the current risk of Facebook policy changes on
Zynga's bookings prospects and overall financial condition, Mr.
Westley contends. He adds that Facebook, upon which the Company
was heavily reliant for users and bookings, had already begun to
change its platform and user policies to a degree that would
negatively impact Zynga's current and future bookings metrics and
growth prospects.
Mr. Westley acquired the common stock of Zynga during the Class
Period.
Zynga, a Delaware corporation headquartered in San Francisco,
California, is a provider of online networking games. The
Individual Defendants are directors and officers of the Company.
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
E-mail: shawnw@rgrdlaw.com
- and -
Darren J. Robbins, Esq.
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
- and -
Curtis V. Trinko, Esq.
LAW OFFICES OF CURTIS V. TRINKO, LLP
16 West 46th Street, 7th Floor
New York, NY 10036
Telephone: (212) 490-9550
Facsimile: (212) 986-0158
E-mail: ctrinko@trinko.com
*********
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