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C L A S S A C T I O N R E P O R T E R
Monday, October 8, 2012, Vol. 14, No. 199
Headlines
ALLIANCEONE RECEIVABLES: Judge OKs $9MM TCPA Class Suit Settlement
AMGEN: Supreme Court to Hear Pension Fund Class Action on Nov. 5
ASSURED GUARANTY: "MDL 1950" Remains Pending in New York Court
ASSURED GUARANTY: Still Defends Suit Over Sewer Debt in Alabama
AUSTRALIA: Class Action Lawyers to Get 30% of Flooding Payouts
BANCORP INC: Faces Suits Over Transaction Fees in Miss. & Conn.
BANK OF AMERICA: Class Action Lawyers to Seek $150-Mil. Fees
BMW OF NORTH AMERICA: Faces Class Action Over Service Warranty
CLEARWIRE CORP: Accused of Recording Calls Without Prior Consent
DIVERSIFIED MAINTENANCE: More Workers to Join Class Action
EXETER HOSPITAL: Seeks Temporary Stay of Discovery in Hep. C Suit
GE APPLIANCES: Recalls 62,000 GE Profile(TM) Front Load Washers
GRETCHEN'S SHOEBOX: Recalls Starbucks Brand Protein Bistro Boxes
HANSEN MEDICAL: Awaits Ruling on Bid to Dismiss Securities Suit
IDAHO: Parents Sue Over Unconstitutional School Fees
JAGUAR LAND: Seeks Dismissal of Consumer Warranty Class Action
KASEL ASSOCIATED: Recalls Nature's Deli Chicken Jerky Dog Treats
KOPPERS HOLDINGS: Gainesville Plant Suit Stayed Until September
LAS VEGAS SANDS: Discovery in Securities Suit Ongoing in Nevada
LHC GROUP: Faces "Omaha" Securities Class Suit in Louisiana
LIFESTYLE TRANSPORTATION: Faces Wage and Hour Suit in Mass.
MARICOPA COUNTY, AZ: Sheriff Can't Arrest Based on Suspicion
MERRILL LYNCH: Supreme Court Allows Racial Bias Case to Proceed
MONEYGRAM INT'L: Hearing on "Pittman" Suit Settlement on Oct. 10
MOTRICITY INC: "Callan" Suit Plaintiffs File Amended Complaint
NOVELOS THERAPEUTICS: Securities Suit Dismissal Not Appealed
PENNSYLVANIA: Judge Tosses Pre-Shift Work Class Action v. SEPTA
SAXON MORTGAGE: Loan Modification Class Action Can Proceed
SEABRIGHT: Shareholders File Class Action Over Enstar Merger
SPEARS: Supreme Court to Decide on Privacy Litigation Exception
STEREOTAXIS INC: Awaits Ruling on Bid to Dismiss Securities Suit
TASER INT'L: Sued Over Improperly Selling Self-Defense Weapons
UNITED STATES: Marshals Can't Amend Discrimination Class Action
UNITED STATES: "Age Out" Visa Applicants Get Favorable Ruling
VALEANT PHARMA: Faces Class Action Over Medicis Takeover Offer
WAL-MART: Tennessee Women File Gender Bias Class Action
WARNER MUSIC: Suit Over Digital Download Prices Remains Pending
WARNER MUSIC: Defends Suits Over Digital Music Sales Royalties
WARNER MUSIC: Still Awaits Okay of "Cournoyer" Suit Settlement
WHOLE FOODS: Recalls Chicken Spring Rolls & Peanut Sesame Noodles
*********
ALLIANCEONE RECEIVABLES: Judge OKs $9MM TCPA Class Suit Settlement
------------------------------------------------------------------
Juan Carlos Rodriguez, writing for Law360, reports that a federal
judge on Sept. 27 approved a $9 million settlement between call
center and outsourcing company AllianceOne Receivables Management
Inc. and a class of plaintiffs who alleged the company violated
the Telephone Consumer Protection Act by placing prerecorded calls
to their cellphones.
In their 2008 complaint, the plaintiffs asserted two class claims
against AllianceOne under the TCPA, alleging that the company
placed telephone calls to their cellphones without "prior express
consent," using an "automatic telephone dialing system" and using
an "artificial or prerecorded voice."
AMGEN: Supreme Court to Hear Pension Fund Class Action on Nov. 5
----------------------------------------------------------------
Hazel Bradford, writing for Pensions & Investments, reports that a
class-action lawsuit led by the $24.3 billion Connecticut
Retirement Plans & Trust Funds against Amgen is on the docket for
the U.S. Supreme Court's 2012-2013 session, which began on Oct. 1.
The class of investors led by the Hartford, Conn.-based pension
funds alleged in 2007 that Amgen withheld information about the
safety of two of its anemia drugs, but before that lawsuit could
proceed, Amgen challenged the class certification process. Amgen
was rebuffed by federal district and appellate courts in
California.
The Supreme Court will hear arguments Nov. 5 to consider whether
district courts must prove material harm before certifying a class
action in such cases.
Numerous amicus briefs have been filed on behalf of both parties,
including the $239.3 billion California Public Employees'
Retirement System, Sacramento, and the $152.1 billion California
State Teachers' Retirement System, West Sacramento, in support of
the investor class.
Amgen's case is being supported by the U.S. Chamber of Commerce,
among other groups concerned about the ease of class action
lawsuits.
Connecticut was granted lead plaintiff status because it sustained
the largest investment losses.
Christopher J. McDonald, an attorney with the law firm of Labaton
Sucharow representing the investors, said that regardless of the
high court decision, the case is far from over. "Either way, we
expect to be remanded back to the district court, where the
discovery process has been stayed during the appeal, so we still
have a while to go," he said in an interview.
The Supreme Court this term is also scheduled to hear a case
brought by a former portfolio manager and chief operating officer
with GAMCO Investors (GBL), seeking to clear their names following
a $16 million settlement with the SEC in April 2008 over market
timing of the Gabelli Global Fund between 1999 and 2002. The
court will address whether the statute of limitations for
penalties begins when the SEC discovered the claim, or when the
claims first accrued. Calls to lawyers representing Marc Gabelli
and Bruce Alpert were not returned at press time.
A date for arguments has not been set in the Gabelli case.
ASSURED GUARANTY: "MDL 1950" Remains Pending in New York Court
--------------------------------------------------------------
During 2008, nine putative class action lawsuits were filed in
federal court alleging federal antitrust violations in the
municipal derivatives industry, seeking damages and alleging,
among other things, a conspiracy to fix the pricing of, and
manipulate bids for, municipal derivatives, including guaranteed
investment contracts ("GICs"). These cases have been coordinated
and consolidated for pretrial proceedings in the U.S. District
Court for the Southern District of New York as MDL 1950, In re
Municipal Derivatives Antitrust Litigation, Case No. 1:08-cv-2516
("MDL 1950").
Five of these cases named both Assured Guaranty Ltd.'s
subsidiaries, Assured Guaranty Municipal Holdings Inc. ("AGMH")
and Assured Guaranty Municipal Corp. ("AGM"): (a) Hinds County,
Mississippi v. Wachovia Bank, N.A.; (b) Fairfax County, Virginia
v. Wachovia Bank, N.A.; (c) Central Bucks School District,
Pennsylvania v. Wachovia Bank, N.A.; (d) Mayor and City Council of
Baltimore, Maryland v. Wachovia Bank, N.A.; and (e) Washington
County, Tennessee v. Wachovia Bank, N.A. In April 2009, the MDL
1950 court granted the defendants' motion to dismiss on the
federal claims, but granted leave for the plaintiffs to file a
second amended complaint. In June 2009, interim lead plaintiffs'
counsel filed a Second Consolidated Amended Class Action
Complaint; although the Second Consolidated Amended Class Action
Complaint currently describes some of AGMH's and AGM's activities,
it does not name those entities as defendants. In March 2010, the
MDL 1950 court denied the named defendants' motions to dismiss the
Second Consolidated Amended Class Action Complaint. The
complaints in these lawsuits generally seek unspecified monetary
damages, interest, attorneys' fees and other costs. The Company
cannot reasonably estimate the possible loss or range of loss that
may arise from these lawsuits.
Four of the cases named AGMH (but not AGM) and also alleged that
the defendants violated California state antitrust law and common
law by engaging in illegal bid-rigging and market allocation,
thereby depriving the cities or municipalities of competition in
the awarding of GICs and ultimately resulting in the cities paying
higher fees for these products: (f) City of Oakland, California v.
AIG Financial Products Corp.; (g) County of Alameda, California v.
AIG Financial Products Corp.; (h) City of Fresno, California v.
AIG Financial Products Corp.; and (i) Fresno County Financing
Authority v. AIG Financial Products Corp. When the four
plaintiffs filed a consolidated complaint in September 2009, the
plaintiffs did not name AGMH as a defendant. However, the
complaint does describe some of AGMH's and AGM's activities. The
consolidated complaint generally seeks unspecified monetary
damages, interest, attorneys' fees and other costs. In April
2010, the MDL 1950 court granted in part and denied in part the
named defendants' motions to dismiss this consolidated complaint.
In 2008, AGMH and AGM also were named in five non-class action
lawsuits originally filed in the California Superior Courts
alleging violations of California law related to the municipal
derivatives industry: (a) City of Los Angeles, California v. Bank
of America, N.A.; (b) City of Stockton, California v. Bank of
America, N.A.; (c) County of San Diego, California v. Bank of
America, N.A.; (d) County of San Mateo, California v. Bank of
America, N.A.; and (e) County of Contra Costa, California v. Bank
of America, N.A. Amended complaints in these actions were filed in
September 2009, adding a federal antitrust claim and naming AGM
(but not AGMH) and Assured Guaranty US Holdings Inc. ("AGUS"),
among other defendants. These cases have been transferred to the
Southern District of New York and consolidated with MDL 1950 for
pretrial proceedings.
In late 2009, AGM and AGUS, among other defendants, were named in
six additional non-class action cases filed in federal court,
which also have been coordinated and consolidated for pretrial
proceedings with MDL 1950: (f) City of Riverside, California v.
Bank of America, N.A.; (g) Sacramento Municipal Utility District
v. Bank of America, N.A.; (h) Los Angeles World Airports v. Bank
of America, N.A.; (i) Redevelopment Agency of the City of Stockton
v. Bank of America, N.A.; (j) Sacramento Suburban Water District
v. Bank of America, N.A.; and (k) County of Tulare, California v.
Bank of America, N.A.
The MDL 1950 court denied AGM and AGUS's motions to dismiss these
eleven complaints in April 2010. Amended complaints were filed in
May 2010. On October 29, 2010, AGM and AGUS were voluntarily
dismissed with prejudice from the Sacramento Municipal Utility
District case only. The complaints in these lawsuits generally
seek or sought unspecified monetary damages, interest, attorneys'
fees, costs and other expenses. The Company cannot reasonably
estimate the possible loss or range of loss that may arise from
the remaining lawsuits.
In May 2010, AGM and AGUS, among other defendants, were named in
five additional non-class action cases filed in federal court in
California: (a) City of Richmond, California v. Bank of America,
N.A. (filed on May 18, 2010, N.D. California); (b) City of Redwood
City, California v. Bank of America, N.A. (filed on May 18, 2010,
N.D. California); (c) Redevelopment Agency of the City and County
of San Francisco, California v. Bank of America, N.A. (filed on
May 21, 2010, N.D. California); (d) East Bay Municipal Utility
District, California v. Bank of America, N.A. (filed on May 18,
2010, N.D. California); and (e) City of San Jose and the San Jose
Redevelopment Agency, California v. Bank of America, N.A (filed on
May 18, 2010, N.D. California). These cases have also been
transferred to the Southern District of New York and consolidated
with MDL 1950 for pretrial proceedings. In September 2010, AGM
and AGUS, among other defendants, were named in a sixth additional
non-class action filed in federal court in New York, but which
alleges violation of New York's Donnelly Act in addition to
federal antitrust law: Active Retirement Community, Inc. d/b/a
Jefferson's Ferry v. Bank of America, N.A. (filed on September 21,
2010, E.D. New York), which has also been transferred to the
Southern District of New York and consolidated with MDL 1950 for
pretrial proceedings. In December 2010, AGM and AGUS, among other
defendants, were named in a seventh additional non-class action
filed in federal court in the Central District of California, Los
Angeles Unified School District v. Bank of America, N.A., and in
an eighth additional non-class action filed in federal court in
the Southern District of New York, Kendal on Hudson, Inc. v. Bank
of America, N.A. These cases also have been consolidated with MDL
1950 for pretrial proceedings. The complaints in these lawsuits
generally seek unspecified monetary damages, interest, attorneys'
fees, costs and other expenses. The Company cannot reasonably
estimate the possible loss or range of loss that may arise from
these lawsuits.
In January 2011, AGM and AGUS, among other defendants, were named
in an additional non-class action case filed in federal court in
New York, which alleges violation of New York's Donnelly Act in
addition to federal antitrust law: Peconic Landing at Southold,
Inc. v. Bank of America, N.A. This case has been consolidated
with MDL 1950 for pretrial proceedings. The complaint in this
lawsuit generally seeks unspecified monetary damages, interest,
attorneys' fees, costs and other expenses. The Company cannot
reasonably estimate the possible loss or range of loss that may
arise from this lawsuit.
No further updates were reported in the Company's August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
ASSURED GUARANTY: Still Defends Suit Over Sewer Debt in Alabama
---------------------------------------------------------------
In August 2008, a number of financial institutions and other
parties, including Assured Guaranty Ltd.'s subsidiary, Assured
Guaranty Municipal Corp. ("AGM"), and other bond insurers, were
named as defendants in a civil action brought in the circuit court
of Jefferson County, Alabama, relating to the County's problems
meeting its debt obligations on its $3.2 billion sewer debt:
Charles E. Wilson vs. JPMorgan Chase & Co et al (filed the Circuit
Court of Jefferson County, Alabama), Case No. 01-CV-2008-
901907.00, a putative class action. The action was brought on
behalf of rate payers, tax payers and citizens residing in
Jefferson County, and alleges conspiracy and fraud in connection
with the issuance of the County's debt. The complaint in this
lawsuit seeks equitable relief, unspecified monetary damages,
interest, attorneys' fees and other costs. On January, 13, 2011,
the circuit court issued an order denying a motion by the bond
insurers and other defendants to dismiss the action. Defendants,
including the bond insurers, have petitioned the Alabama Supreme
Court for a writ of mandamus to the circuit court vacating such
order and directing the dismissal with prejudice of plaintiffs'
claims for lack of standing. The Company says it cannot
reasonably estimate the possible loss or range of loss that may
arise from this lawsuit.
No further updates were reported in the Company's August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
AUSTRALIA: Class Action Lawyers to Get 30% of Flooding Payouts
--------------------------------------------------------------
Michael Madigan, writing for The Courier, reports that thousands
of Queensland flood victims risk losing a large slice of any
compensation payouts even if a planned multibillion-dollar class
action never reaches a courtroom.
Lawyers trying to extract taxpayer compensation for Brisbane flood
victims stand to gain up to 30 per cent even if the Newman
Government bows to pressures and makes ex gratia payments.
Law firm Maurice Blackburn's backers IMF Australia stand to pocket
tens of millions of dollars if they succeed, with the government
payout likely to be in the hundreds of millions.
Up to 5,000 victims are believed to have signed up to a class
action despite a recently released US Army report that backed the
actions of the Wivenhoe dam engineers.
The AUD15 million flood inquiry earlier this year found the
engineers had breached the manual.
Pressure is expected to build on the Newman Government to make
some ex gratia payments to avoid a public backlash in the lead-up
to the next election.
Flood victim David Stark, who estimates the flood cost him close
to AUD250,000 and who has repeatedly linked the management of
Wivenhoe Dam with the floods, said litigants had to take care.
"I am not necessarily anti-Maurice Blackburn, but I would urge all
flood victims to look at all options before signing anything,"
Mr. Stark said.
He said it was unlikely the Government would settle victims'
claims for compensation without a courtroom showdown, but it was
not an impossible scenario.
Maurice Blackburn principal Damian Scattini said there was only
one pressure point applied to the Newman Government to pay flood
victims compensation and that was the class action.
"You can join the class action or you can get 100 per cent of
nothing," he said.
"Because that is what the Government has promised you -- nothing."
Mr. Scattini said it was standard procedure for a company funding
a class action to be recompensed.
He said backers would not expect any slice of the payout if the
Government announced a compensation payout clearly unrelated with
the pressure applied by the class action.
IMF Australia has made it clear in section 13 of its agreement
summary if claims are settled "or there is an ex gratia payment
received by you" IMF would be repaid a fee of between 26 and 30
per cent of the gross amount.
If the class action reaches resolution on or before June 30, 2013,
the fee is 26 per cent off the top of the first AUD1 million. If
the resolution is reached after June 2013, the fee is 30 per cent
off the top.
The Government has refused to comment.
A spokesman said that Premier Campbell Newman had made the
Government's position clear when he said: "People who have a
complaint, they will have to look at these things and make a
judgment, it is a free country".
But Mr. Newman has dodged questions on whether his Government
would act as a model litigant as pledged by former premier Anna
Bligh.
A model litigant is required to fairly assess the claims and
mediate the claims wherever possible.
Ipswich Councillor Paul Tully, whose own home was flooded, said
the prime impetus for the Government to settle claims came from
the class action.
BANCORP INC: Faces Suits Over Transaction Fees in Miss. & Conn.
---------------------------------------------------------------
The Bancorp, Inc. is facing two class action lawsuits over debit
card transaction fees in Mississippi and Connecticut, according to
the Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
The Company is a co-defendant with its former customer in two
lawsuits, both commenced in July 2012, one in Mississippi and one
in Connecticut, and each purporting to be a class action, alleging
that certain debit card transaction fees and ATM transaction fees
imposed, and received solely by the Company's former customer were
improperly disclosed by it to its clients. The Company believes
each of these lawsuits to be without merit to the extent they seek
to hold liable the Company's wholly owned subsidiary, The Bancorp
Bank. Moreover, because the Company's former customer
contractually agreed to indemnify the Bank for such liabilities,
the Company does not believe that an adverse result in either
lawsuit will materially affect the Company. The Company expects
the Bank will incur legal fees in connection with its defense in
these two actions, however, these costs are also subject to
indemnification by the Company's former customer.
On May 4, 2012, final termination of the former customer
relationship was achieved. All amounts, including the former
customers' deposits, were maintained at the Federal Reserve Bank;
accordingly, there was no material impact the Company's liquidity.
Total deposits at June 30, 2012, after the termination of that
customer were $2.8 billion compared to $2.2 billion at June 30,
2011.
BANK OF AMERICA: Class Action Lawyers to Seek $150-Mil. Fees
------------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that class
action attorneys will reportedly ask for $150 million in fees as a
result of the Sept. 28 $2.43 billion settlement with Bank of
America.
The settlement resolved allegations that Bank of America misled
its investors in the months leading to a shareholder vote over the
purchase of Merrill Lynch. Alison Frankel of Reuters wrote on
Sept. 28 that attorneys will be asking U.S. District Judge Kevin
Castel for $150 million.
Lead counsel in the case included the firms Bernstein Litowitz
Berger & Grossman and Topaz Kessler Meltzer & Check.
Though Frankel wrote the firms are deserving of the award, Daniel
Fisher of Forbes wrote that he is skeptical.
"First of all, how hard was it to convince the new management at
BoA, led by Chief Executive Brian Moynihan, to hand over another
couple of billion dollars to end one of the last significant civil
cases stemming from his predecessor Ken Lewis's bungled tenure?"
Mr. Fisher wrote.
"Ohio (Attorney General Mike) DeWine, a Republican, boasts his
state Teachers Retirement System and the Ohio Public Employees
Retirement System 'will receive a total of $20 million.' Did he
need to hire lawyers for $150 million to achieve that result?
"Maybe, but I'm guessing some of the lawyers in his own department
could have done as well."
The lead plaintiff group includes two Ohio public pension funds,
the Teacher Retirement System of Texas and two European public
pension funds.
It was former Ohio Attorney General Richard Cordray, a Democrat,
who initiated the funds' involvement in the case. He is now the
head of the federal Consumer Financial Protection Bureau. Kaplan
Fox & Kilsheimer represented the Ohio funds.
The Kaplan firm contributed $270,000 to the Ohio Democratic Party
in 2007-08. The Bernstein firm contributed $175,000.
Bank of America allegedly misled investors in the months leading
up to its 2008 purchase of Merrill Lynch. It was alleged that it
withheld Merrill Lynch's heavy fourth quarter losses before a
shareholder vote on the purchase.
It also allegedly withheld Merrill Lynch's plan to spend up to
$5.8 billion in executive bonuses after the merger.
The bank says the litigation expense, improvements in credit
spreads and a tax charge will decrease third-quarter earnings per
share by 28 cents.
In August 2010, Castel dismissed claims relating to the alleged
failure of Bank of America to disclose Merrill Lynch's 2008
losses.
BMW OF NORTH AMERICA: Faces Class Action Over Service Warranty
--------------------------------------------------------------
Courthouse News Service reports that BMW of North America cheats
customers out of the full four years for a service warranty by
selling demonstration vehicles as new, a class claims in federal
court.
CLEARWIRE CORP: Accused of Recording Calls Without Prior Consent
----------------------------------------------------------------
Richard Wuest, individual and on behalf of a class of similarly
situated individuals v. Clearwire Corporation; Clearwire
Communications LLC; Clear Wireless LLC; and Does 1 through 10,
inclusive, Case No. CGC-12-522668 (Calif. Super. Ct., San
Francisco Cty., July 25, 2012) arises out of Defendants' alleged
policy and practice of recording calls made to and from Clear call
centers without the consent of all parties.
Certain telephone numbers connect callers with call centers for
Clear, the Defendants then intentionally and surreptitiously
record telephone calls made to Clear call centers without warning
or disclosing to callers that they are doing so, Mr. Wuest
alleges. He argues that this practice violates California's
Invasion of Privacy Act, which prohibits the recording of a
communication made from a cellular or cordless telephone without
the consent of all parties to the communication.
Mr. Wuest is a resident of California.
Clearwire Corporation is a Delaware corporation headquartered in
Kirkland, Washington. Clearwire Communications is a subsidiary of
Clearwire Corporation and a Delaware limited liability company.
Clear Wireless is a subsidiary of Clearwire Corporation and a
Nevada limited liability company. The Clear Defendants
systematically and continuously do business in California and with
California residents. The Plaintiff believes that these
Defendants have not identified a principal place of business
within California on its most recent Statement of Information
filed with the California Secretary of State. The Plaintiff is
ignorant of the true names and capacities of the Doe Defendants.
Clear removed the lawsuit on September 28, 2012, from the Superior
Court of the state of California, County of San Francisco, to the
United States District Court for the Northern District of
California. Clear argues that the removal is proper because the
proposed class consists of 100 or more members. The District
Court Clerk assigned Case No. 3:12-cv-05061 to the proceeding.
The Plaintiffs are represented by:
Eric A. Grover, Esq.
Carey G. Been, Esq.
KELLER GROVER LLP
1965 Market Street
San Francisco, CA 94103
Telephone: (415) 543-1305
Facsimile: (415) 543-7861
E-mail: eagrover@kellergrover.com
cbeen@kellergrover.com
- and -
Steven L. Miller, Esq.
STEVEN L. MILLER, A PROFESSIONAL LAW CORP.
16133 Ventura Blvd., Suite 645
Encino, CA 91436
Telephone: (818) 986-8900
Facsimile: (818) 990-7900
E-mail: stevenlmiller@gmail.com
The Defendants are represented by:
Thomas R. Burke, Esq.
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111
Telephone: (415) 276-6500
Facsimile: (415) 276-6599
E-mail: thomasburke@dwt.com
- and -
Stephen M. Rummage, Esq.
Kenneth E. Payson, Esq.
John A. Goldmark, Esq.
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
Telephone: (206) 622-3150
Facsimile: (206) 757-7700
E-mail: steverummage@dwt.com
kenpayson@dwt.com
johngoldmark@dwt.com
DIVERSIFIED MAINTENANCE: More Workers to Join Class Action
----------------------------------------------------------
The Uptake reports that hundreds of more workers may be joining a
class action lawsuit against a company that cleans stores for
major retailers. Twelve Twin City cleaning workers originally
filed the suit against Diversified Maintenance Systems. It has
now received conditional class action which could be applied to
workers at approximately 130 stores. This means that Diversified,
the subcontractor for cleaning Kmart, Target, Sears and other
stores, will be forced to turn over the names and addresses of all
the workers in these stores.
About 200 retail cleaning workers and supporters with CTUL (Centro
de Trabajadores en Lucha - Center for Workers United in the
Struggle) picketed outside Kmart on Lake St. in Minneapolis to
protest the pay practices of Diversified Maintenance Systems. The
Sept. 30 action is part of an ongoing struggle, which began two
years ago, for improved wages and working conditions for workers
at Diversified Maintenance Systems.
CTUL's 2-year campaign has produced some results, wage increases
and improved working conditions but much remains to be done.
While many area janitors make $13.42 an hour, workers at
Diversified make around $8 an hour.
In August, 2012, seventeen Twin Cities workers filed complaints
against Diversified with the Occupational Safety and Health
Administration regarding alleged unsafe working conditions
including being locked in the store overnight while they worked.
OSHA has stated that apparent violations were observed and
citations have been issued to the company.
State Senator Jeff Hayden, DFL, Minneapolis said, "Thank you for
having the courage to fight because sometimes its hard to think
about fighting when your families are suffering."
Minneapolis Council Member Betsy Hodges said, "If this community
is not working for workers of Diversified, then it's not working
for any of us. And if it's not working for any of us, we are not
in a world that we want."
There have been several suits filed against Diversified for
working conditions and pay policies. In the past Diversified has
chosen not to face the charges in court but settled the case
before it went to court.
EXETER HOSPITAL: Seeks Temporary Stay of Discovery in Hep. C Suit
----------------------------------------------------------------
Jim Haddadin, writing for Fosters, reports that Exeter Hospital is
asking a superior court judge to temporarily block attorneys from
using their legal powers to request documents and information
about the hepatitis C outbreak at the facility.
Exeter Hospital is named in 25 lawsuits filed in Rockingham
Superior Court by former patients who now carry the liver disease.
That includes a class-action lawsuit filed by Concord attorney
Peter McGrath, whose clients now include 147 former Exeter
Hospital patients. A handful have tested positive for the
disease. The remainder either received a negative test result or
are awaiting more information.
An attorney representing Exeter Hospital against the lawsuits
filed a motion on Sept. 28 in Rockingham County Superior Court
asking a judge to issue a temporary stay of discovery in the
cases. The move would stop the lawyers from forcing employees
such as Chief Executive Officer Kevin Callahan to give sworn
statements about the hepatitis C outbreak.
It would also prevent them from questioning the doctors and nurses
who worked side-by-side with David Kwiatkowski, the former Exeter
Hospital cardiovascular technician facing drug tampering charges
in connection with the hepatitis C outbreak.
Federal investigators say the 33-year-old spread the virus to
patients in the process of abusing stolen hospital narcotics.
Mr. Kwiatkowski, a traveling hospital worker, allegedly stole
syringes of the anesthesia drug fentanyl, injected himself, then
allowed syringes contaminated with his blood to be reused on
patients.
Genetic testing has confirmed that 32 patients of the hospital are
carrying the identical strain of the virus diagnosed in Mr.
Kwiatkowski.
Attorney Peter Mosseau, of Nelson Kinder + Mosseau, the law firm
representing the hospital, has asked the judge to freeze discovery
actions until at least 90 days after a structuring conference is
held with defendants in the lawsuit.
Those defendants are likely to include at least two former medical
staffing companies that employed Mr. Kwiatkowski. At least one
attorney is also asking a judge to add the American Registry of
Radiologic Technologists (ARRT) as one of the defendants. ARRT is
the group that provided a radiology certificate for Mr.
Kwiatkowski when he was later hired at Exeter Hospital.
Mr. Kwiatkowski has been employed as a traveling medical
technician in at least 19 hospitals in eight states during the
last decade, including stints in New York, Maryland, Michigan,
Georgia, Kansas, Arizona and Pennsylvania. His arrest has spurred
more than a dozen hospitals to begin reviewing their patient
records to identify people who may have been exposed to the virus.
At least four patients of the Hays Medical Center in Kansas, where
Mr. Kwiatkowski worked in 2010, have also been diagnosed with
cases of hepatitis C "closely related" to the strain identified in
the Exeter Hospital outbreak.
Before he was hired in Exeter, Mr. Kwiatkowski was fired by
hospitals in Pennsylvania and Arizona due to problems with his
conduct. In one instance in 2010, Mr. Kwiatkowski was found
passed out inside a men's restroom while working at the Arizona
Heart Hospital.
According to documents obtained by Foster's Daily Democrat, the
hospital worker who found Mr. Kwiatkowski reported finding a
syringe labeled "fentanyl" floating inside the toilet beside him.
Springboard Staffing, which supplied Mr. Kwiatkowski to work at
Arizona Heart Hospital, said it fired Mr. Kwiatkowski immediately
and told both a state radiology board and ARRT that Mr.
Kwiatkowski had been terminated after the 2010 incident. The
incident was never investigated because Mr. Kwiatkowski moved out
of the state and gave up his certification to work in Arizona.
He went on to work in hospitals in Pennsylvania, Kansas and
Georgia before reaching New Hampshire.
Hepatitis C is a liver disease that can lead to fatal health
complications. It is transferred through direct blood contact or
from unsterilized or contaminated equipment used or handled by a
person infected with the virus. The hepatitis C virus can't be
contracted through casual contact, meaning you can't get hepatitis
C from shaking hands, hugging or sitting next to an infected
person.
GE APPLIANCES: Recalls 62,000 GE Profile(TM) Front Load Washers
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
GE Appliances, of Louisville, Kentucky, announced a voluntary
recall of about 62,000 GE Profile(TM) Front Load Washers.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The washer's basket can separate during use and break the washer's
top panel, posing an injury hazard to consumers.
GE has received 19 reports of washer baskets separating, including
10 reports of top panel breakage. No injuries have been reported.
This recall involves GE Profile(TM) frontload washing machines
with model numbers beginning with WPDH8800, WPDH8900 and WPDH8910.
All serial numbers with these models are included in this recall.
The washers were sold in gold, red and white colors. The model
number is located on the washer's right side near the bottom and
behind the door near the door frame visible when the door is
opened.
Model Number Serial Number
Brand Begins With: Begins With:
----- ------------ ------------
GE Profile(TM) WPDH8800 All serial numbers
WPDH8900 with these models
WPDH8910 are included.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13003.html
The recalled products were manufactured in China and sold at Best
Buy, Lowe's, Sears, The Home Depot and other department and retail
stores nationwide, from July 2008 to August 2011 for between
$1,199 and $1,599.
Consumers should immediately stop using the recalled washers and
contact GE for a free repair. For additional information, contact
GE Appliances at (888) 641-9739 between 8:00 a.m. and 5:00 p.m.
Eastern Time Monday through Friday or visit the firm's Web site at
http://www.geappliances.com/products/recall/
GRETCHEN'S SHOEBOX: Recalls Starbucks Brand Protein Bistro Boxes
----------------------------------------------------------------
Out of the utmost caution and care for its customers, and in
response to Justin's Nut Butter voluntary recall of its 0.5 oz.
single-serve Honey Peanut Butter squeeze packs, Gretchen's Shoebox
Express in Seattle, Washington, is initiating a voluntary recall
of Starbucks brand Protein Bistro Box (see associated Enjoy by
dates below) which contain the above named peanut butter product.
The recalled peanut butter squeeze pack contained in the Protein
Bistro Box products have Best By dates: 7/14/13, 8/10/13, 8/13/13,
8/14/13 or 8/15/13.
Peanuts associated with the Sunland, Inc. recall were used in the
production of certain lots of Justin's Nut Butter product and have
the potential to be contaminated with 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.
Gretchen's Shoebox Express is issuing this voluntary recall linked
to the supplier's recall to minimize the risk to the public
health.
The recalled product was distributed solely to Starbucks retail
stores in Washington and Oregon, from 9/1/2012 to 9/27/2012. All
affected product has been confirmed as removed from all stores.
The Bistro Box product is in a clear plastic container, with a
white code date sticker on the bottom of the container, stating
"Enjoy by" followed by the date in the following format: M (Month)
DD (Date), for example 9 27 standing for Sept 27th. The recalled
single-serve peanut butter pouches are included inside the Bistro
Box and is fully labeled and sealed. The individual pouches are
date stamped at the bottom of the pouch.
Anyone who has the recalled product or the associated individual
Peanut Butter pouches in their possession should not consume it
and should destroy or discard the product. Consumers with
questions may contact the company at 206-623-8194 Monday - Friday,
8:00 a.m. to 5:00 p.m. (Pacific Time).
This recall is being made with the knowledge of the Food and Drug
Administration.
The Company thanks its customers for their understanding and
cooperation in this regard. Please feel free to contact the
Company should additional information or assistance is required.
Recalled Products and Pack Codes:
Brand Product Pack Size Included States
----- ------- --------- ---------------
Starbucks Protein Bistro Box 6.80 oz WA, OR
UPC: 762111881502
Code Date Range: Enjoy By 09/02/12 - 09/27/12
Recalled Peanut Butter Pouch, located inside the Protein Bistro
Box products:
Brand Product Pack Size Included States
----- ------- --------- ---------------
Justin's Honey Peanut 0.5 oz WA, OR
Butter Blend
UPC: 894455000391
Code Date Range: Best By 7/14/13, 8/10/13, 8/13/13, 8/14/13
or 8/15/13
HANSEN MEDICAL: Awaits Ruling on Bid to Dismiss Securities Suit
---------------------------------------------------------------
Hansen Medical, Inc. is awaiting a court decision on its motion to
dismiss a consolidated securities class action lawsuit, according
to the Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Following the Company's October 19, 2009 announcement that it
would restate certain of its financial statements, a securities
class action lawsuit was filed on October 23, 2009 in the United
States District Court for the Northern District of California,
naming the Company and certain of its officers, Curry v. Hansen
Medical, Inc. et al., Case No. 09-05094. The complaint asserts
claims for violation of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 on behalf of a putative class of purchasers
of Hansen stock between May 1, 2008, and October 18, 2009,
inclusive, and alleges, among other things, that defendants made
false and/or misleading statements and/or failed to make
disclosures regarding the Company's financial results and
compliance with GAAP while improperly recognizing revenue; that
these misstatements and/or nondisclosures resulted in
overstatement of Company revenue and financial results and/or
artificially inflated the Company's stock price; and that
following the Company's October 19, 2009 announcement, the price
of the Company's stock declined. On November 4, 2009, and
November 13, 2009, substantively identical complaints were filed
in the Northern District of California by other purported Hansen
stockholders asserting the same claims on behalf of the same
putative class of Hansen stockholders. Livingstone v. Hansen
Medical, Inc. et al., Case No. 09-05212 and Prenter v. Hansen
Medical, Inc., et al., Case No. 09-05367. All three complaints
seek certification as a class action and unspecified compensatory
damages plus interest and attorneys fees. On December 22, 2009,
two purported Hansen stockholders, Mina and Nader Farr, filed a
joint application for appointment as lead plaintiffs and for
consolidation of the three actions. On February 25, 2010, the
Court issued an order granting Mina and Nader Farr's application
for appointment as lead plaintiffs and consolidating the three
securities class actions. On July 15, 2010, the Court entered an
order granting lead plaintiffs' motion for leave to file a second
amended complaint. Lead plaintiffs' second amended complaint, in
addition to alleging that shareholders suffered damages as a
result of the decline in the Company's stock price following the
October 19, 2009 announcement, also alleges that shareholders
suffered additional damages as the result of share price declines
on July 28, 2009, July 31, 2009, January 8, 2009, July 6, 2009,
and August 4, 2009, all of which lead plaintiffs allege were
caused by the disclosure of what they claim was previously
misrepresented information. The defendants filed their motion to
dismiss the second amended complaint on October 13, 2010. The
Court granted Defendants' motion to dismiss with leave to amend on
August 25, 2011. Plaintiffs' third amended complaint was filed on
October 18, 2011. Defendants filed their motion to dismiss on
January 9, 2012. The hearing on Defendants' motion to dismiss was
held on May 3, 2012. The Company and the named officers intend to
defend themselves vigorously against these actions.
The Company says it cannot estimate whether the pending securities
law class actions will result in significant expenses nor the
amount of any such expenses. No amounts have been accrued for any
of the preceding actions based on the uncertainly of the outcomes.
However, depending on the outcome of the actions, the Company may
be required to pay material damages and fines, or suffer other
penalties, remedies or sanctions. The ultimate resolution of
these matters could have a material adverse effect on the
Company's results of operations, financial position and liquidity.
Hansen Medical, Inc. -- http://www.hansenmedical.com/-- develops,
manufactures, and sells medical robotics designed for positioning,
manipulation, and control of catheters and catheter-based
technologies. The Company's products comprise the Sensei Robotic
Catheter System and its related Artisan and Lynx catheters. The
Company was founded in 2002 and is headquartered in Mountain View,
California.
IDAHO: Parents Sue Over Unconstitutional School Fees
----------------------------------------------------
Idaho Press-Tribune reports that parents and guardians across the
state are demanding a more than $2 million refund from the state
of Idaho, claiming some fees charged at various school districts
were charged unconstitutionally.
Russell and Kathleen Joki, grandparents and guardians of a student
in Meridian's Joint School District No. 2 have filed a class
action lawsuit in the Ada County Fourth District on behalf of
other parents statewide. The lawsuit is filed against the State
of Idaho, the Idaho State Department of Education, Superintendent
of Public Instruction Tom Luna, the Idaho State Legislature and
various school districts statewide.
The lawsuit describes the fees charged, and claims they violate
Article IX, Section 1 of the Idaho constitution which requires the
Legislature fund a ". . . thorough system of free common schools."
A 1970 Idaho Supreme Court case, Paulson v. Minidoka County School
District No. 331, rules such fees are unconstitutional, plaintiffs
say.
Along with the refund, plaintiffs seek a declaratory judgment that
similar fees not be charged in the future.
JAGUAR LAND: Seeks Dismissal of Consumer Warranty Class Action
--------------------------------------------------------------
Zach Winnick, writing for Law360, reports that Jaguar Land Rover
North America LLC urged a California federal judge on Oct. 1 to
nix nationwide class action allegations from multidistrict
litigation claiming it violated consumer warranty laws by selling
defective cars with misaligned wheels.
Jaguar's attorney Audrey Moog of Hogan Lovells told U.S. District
Judge Andrew J. Guilford at a hearing on Oct. 1 that three prior
court orders had found plaintiffs would need to apply the laws of
their home states in lawsuits over the purported defects.
KASEL ASSOCIATED: Recalls Nature's Deli Chicken Jerky Dog Treats
----------------------------------------------------------------
Kasel Associated Industries of Denver, Colorado, is voluntarily
recalling its NATURE'S DELI CHICKEN JERKY DOG TREATS product
because it may be contaminated with Salmonella. Salmonella can
sicken animals that eat these products and humans are at risk for
salmonella poisoning from handling contaminated pet products,
especially if they have not thoroughly washed their hands after
having contact with the pet products or any surfaces exposed to
these products.
Healthy people infected with Salmonella should monitor themselves
for some or all of the following symptoms: nausea, vomiting,
diarrhea or bloody diarrhea, abdominal cramping and fever.
Rarely, Salmonella can result in more serious ailments, including
arterial infections, endocarditis, arthritis, muscle pain, eye
irritation, and urinary tract symptoms. Consumers exhibiting
these symptoms after having contact with this product should
contact their healthcare providers.
Pets with Salmonella infections may be lethargic and have diarrhea
or bloody diarrhea, fever, and vomiting. Some pets will have only
decreased appetite, fever and abdominal pain. Infected but
otherwise healthy pets can be carriers and infect other animals or
humans. If your pet has consumed the recalled product and has any
of these signs, please contact your veterinarian.
The recalled Chicken Jerky Dog Treats were distributed to 57 Sam's
Club locations in the following states:
CO,IA,ID,IL,KS,MO,MT,NE,OK,SD,UT and WY.
The product comes in a clear plastic bag with the Nature's Deli
logo containing 2.5 lbs chicken jerky marked with UPC bar code
647263800208. Kasel Industries is recalling lot number BEST BY
091913 DEN because this lot code tested positive through analysis
by the FDA. Picture of the recalled products is available at:
http://www.fda.gov/Safety/Recalls/ucm322481.htm
No illnesses have been reported to date in animals or humans in
connection with this product.
The recall was the result of a routine sampling by the FDA that
revealed finished products contained the Salmonella bacteria. The
Company has ceased distribution of any lots that have possible
contamination of the bacteria. No other products made by Kasel
Associated Industries are included in the recall of 2.5 lbs
packages of Chicken Jerky Dog Treats.
Consumers who have purchased the 2.5 lbs packages of Chicken Jerky
Dog Treats are urged to return it to the place of purchase for a
full refund. Consumers with questions may contact Kasel
Associated Industries at (800) 218-4417 Monday thru Friday from
7:00 a.m. to 5:00 p.m. Mountain Daylight Time.
KOPPERS HOLDINGS: Gainesville Plant Suit Stayed Until September
---------------------------------------------------------------
Proceedings in the class action lawsuit arising from the
operations of Koppers Holdings Inc.'s former plant in Gainesville
has been stayed until September 2012 so that the parties can
explore the possibility of resolving the case, according to the
Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
In November 2010, a class action complaint was filed in the
Circuit Court of the Eighth Judicial Circuit located in Alachua
County, Florida, by residential real property owners located in a
neighborhood west of and immediately adjacent to the former
utility pole treatment plant in Gainesville. The complaint named
Koppers Holdings Inc., Koppers Inc., Beazer East and several other
parties as defendants. The complaint alleges that chemicals and
dust from the plant have contaminated and impacted plaintiffs'
properties by reducing the fair market value. The complaint seeks
injunctive relief and compensatory damages for diminution in
property values and for plaintiffs' loss of use and enjoyment of
the properties.
The case was removed to the United States District Court for the
Northern District of Florida in December 2010. Koppers Holdings
Inc. filed a motion to dismiss alleging that the Court lacks
personal jurisdiction over it. The Court has not yet ruled on
Koppers Holdings Inc.'s motion to dismiss. The plaintiffs were
granted leave to file a supplemental amended complaint which
expands the boundaries of the "class affected area" from its
original size. The Court recently granted the parties joint
motion to stay the proceedings until September 2012 so that the
parties can explore the possibility of resolving the case. The
Court has not yet scheduled a class certification hearing or
trial.
The Company has not provided a reserve for this matter because, at
this time, it cannot reasonably determine the probability of a
loss, and the amount of loss, if any, cannot be reasonably
estimated. The timing of resolution of this case cannot be
reasonably determined. Although the Company is vigorously
defending this case, an unfavorable resolution of this matter may
have a material adverse effect on the Company's business,
financial condition, cash flows and results of operations.
LAS VEGAS SANDS: Discovery in Securities Suit Ongoing in Nevada
---------------------------------------------------------------
Discovery is ongoing in the consolidated securities class action
lawsuit pending in Nevada, according to Las Vegas Sands Corp.'s
August 9, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2012.
On May 24, 2010, Frank J. Fosbre, Jr., filed a purported class
action complaint in the United States District Court for the
District of Nevada (the "U.S. District Court"), against Las Vegas
Sands Corp. ("LVSC"), Sheldon G. Adelson, and William P. Weidner.
The complaint alleged that LVSC, through the individual
defendants, disseminated or approved materially false information,
or failed to disclose material facts, through press releases,
investor conference calls and other means from
August 1, 2007, through November 6, 2008. The complaint sought,
among other relief, class certification, compensatory damages and
attorneys' fees and costs. On July 21, 2010, Wendell and Shirley
Combs filed a purported class action complaint in the U.S.
District Court, against LVSC, Sheldon G. Adelson, and William P.
Weidner. The complaint alleged that LVSC, through the individual
defendants, disseminated or approved materially false information,
or failed to disclose material facts, through press releases,
investor conference calls and other means from June 13, 2007,
through November 11, 2008. The complaint, which was substantially
similar to the Fosbre complaint sought, among other relief, class
certification, compensatory damages and attorneys' fees and costs.
On August 31, 2010, the U.S. District Court entered an order
consolidating the Fosbre and Combs cases, and appointed lead
plaintiffs and lead counsel. As such, the Fosbre and Combs cases
are reported as one consolidated matter. On November 1, 2010, a
purported class action amended complaint was filed in the
consolidated action against LVSC, Sheldon G. Adelson and William
P. Weidner. The amended complaint alleges that LVSC, through the
individual defendants, disseminated or approved materially false
and misleading information, or failed to disclose material facts,
through press releases, investor conference calls and other means
from August 2, 2007, through November 6, 2008. The amended
complaint seeks, among other relief, class certification,
compensatory damages and attorneys' fees and costs. On
January 10, 2011, the defendants filed a motion to dismiss the
amended complaint, which, on August 24, 2011, was granted in part,
and denied in part, with the dismissal of certain allegations. On
November 7, 2011, the defendants filed their answer to the
allegations remaining in the amended complaint.
On July 11, 2012, the U.S. District Court issued an order allowing
Defendants' Motion for Partial Reconsideration of the Court's
Order dated August 24, 2011, striking additional portions of the
plaintiff's complaint and reducing the class period to a period of
February 4 to November 6, 2008. The discovery process has also
begun.
The Company says this consolidated action is in a preliminary
stage and management has determined that based on proceedings to
date, it is currently unable to determine the probability of the
outcome of this matter or the range of reasonably possible loss,
if any. The Company intends to defend this matter vigorously.
LHC GROUP: Faces "Omaha" Securities Class Suit in Louisiana
-----------------------------------------------------------
LHC Group, Inc. is facing a shareholder securities class action
lawsuit brought by the City of Omaha Police & Fire Retirement
System, according to the Company's August 9, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On June 13, 2012, a putative shareholder securities class action
was filed against the Company and its Chairman/CEO in the United
States District Court for the Western District of Louisiana,
styled City of Omaha Police & Fire Retirement System v. LHC Group,
Inc., et al., Case No. 6:12-cv-01609-RFD-CMH. The action was
filed on behalf of LHC shareholders who purchased shares between
July 30, 2008, and October 26, 2011. Plaintiff generally alleges
that the defendants caused false and misleading statements to be
issued in violation of Section 10(b) of the Securities Exchange
Act of 1934 ("Exchange Act") and Rule 10b-5 promulgated thereunder
and that the Company's Chairman/CEO is a control person under
Section 20(a) of the Exchange Act. The Company believes these
claims are without merit and intends to defend this lawsuit
vigorously. The Company cannot predict the outcome or effect of
this lawsuit, if any, on the Company's business.
LIFESTYLE TRANSPORTATION: Faces Wage and Hour Suit in Mass.
-----------------------------------------------------------
Kristopher Victor and Zvonko Bozic, individually and on behalf of
all others similarly situated v. Lifestyle Transportation
International, Inc. and Michael Southwick, Case No. SUCV2012-03558
(Mass. Super. Ct., September 26, 2012) is brought under
Massachusetts statutory and common law for the Defendants' alleged
unlawful failure to pay wages for all hours worked, failure to pay
overtime compensation, and for unlawful set-offs from wages
arising from the performance of services provided by the
Plaintiffs.
The Plaintiffs allege that the Defendants are liable under
Massachusetts common law for unjust enrichment. Hence, in this
action, they seek for themselves and others similarly situated,
payment for all compensation not properly remitted to them.
Mr. Victor is a resident of Revere, Massachusetts. From
October 4, 2007, until November 2011, he was a limousine driver
employed by Lifestyle Transportation. Mr. Bozic is a resident of
Lynn, Massachusetts. He was a limousine driver employed by LTI
for several continuous months ending February 26, 2011. The
Plaintiffs were non-exempt employees of LTI, and thereby, was
subjected to the Defendants' payroll practices.
Lifestyle Transportation is a Massachusetts corporation engaged in
the business of limousine transportation services in the
Commonwealth to individual consumers and businesses. Mr.
Southwick is a resident of Winchester, Massachusetts. He is the
president and treasurer of LTI.
The Plaintiffs are represented by:
Edward L. Manchur, Esq.
James R. Knudsen, Esq.
KNUDSEN, BURBRIDGE & MANCHUR, P.C.
401 Edgewater Place, Suite 140
Wakefield, MA 01880
Telephone: (781) 246-3030
E-mail: elm@kbmlawfirm.com
jrk@kbmlawfirm.com
MARICOPA COUNTY, AZ: Sheriff Can't Arrest Based on Suspicion
------------------------------------------------------------
Tim Hull at Courthouse News Service reports that Sheriff Joe
Arpaio may not detain suspects based solely on a belief that they
are in the country illegally, the United States Court of Appeals
for the Ninth Circuit ruled.
The federal appeals panel in San Francisco late on Sept. 25 upheld
a preliminary injunction in a class action over the sheriff's
alleged pattern of racial profiling. Other issues in the action
went to trial in Phoenix in late July.
Manuel de Jesus Ortega Melendres, David and Jessica Rodriguez,
Manuel Nieto Jr., Velia Meraz and the organization Somos America
sued Arpaio and the Maricopa County Sheriff's office over three
traffic stops during a 2006 anti-illegal immigration sweep. The
plaintiffs claimed in a 2007 complaint that they were racially
profiled as Latinos and illegally singled out for arrest.
U.S. District Judge G. Murray Snow issued the preliminary
injunction in 2011, prohibiting deputies from "detaining any
individual 'based only on knowledge or reasonable belief, without
more, that the person is unlawfully present within the United
States."
Judge Snow has yet to rule on other aspects of the case, which was
the subject of seven-day bench trial in July. Whatever his
ruling, the case is likely to return to the 9th Circuit on appeal.
In the Sept. 25 limited review of the preliminary injunction, a
three-judge appeals panel found that the plaintiffs were likely to
succeed with their Fourth Amendment claims, and that they were
likely to be profiled again in the absence of a court order.
"Even if the plaintiffs comply with all criminal laws enforceable
by the defendants, under the defendants' view of the Fourth
Amendment, the plaintiffs remain vulnerable to unlawful detention
solely because an officer has reasonable suspicion or knowledge
that they are not authorized to be present in the United States,"
wrote Judge J. Clifford Wallace for the unanimous panel.
The panel found the plaintiffs' case strong and likely to succeed
because "mere unauthorized presence is not a criminal matter,
[and] suspicion of unauthorized presence alone does not give rise
to an inference that criminal activity is 'afoot.'"
"While the seizures of the named plaintiffs based on traffic
violations may have been supported by reasonable suspicion, any
extension of their detention must be supported by additional
suspicion of criminality," Judge Wallace wrote. "Unlawful
presence is not criminal. Nor does illegal presence, without
more, give rise to reasonable suspicion of violation of Arizona's
human smuggling statute, as the defendants maintain."
A copy of the Opinion in Melendres, et al. v. Arpaio, et al., No.
12-15098 (9th Cir.), is available at http://is.gd/ViT8BJ
MERRILL LYNCH: Supreme Court Allows Racial Bias Case to Proceed
---------------------------------------------------------------
Brent Kendall, writing for Dow Jones Newswires, reports that the
U.S. Supreme Court on Oct. 1 refused to consider a challenge by
Bank of America Corp.'s (BAC) Merrill Lynch unit to a class-action
lawsuit alleging the firm's employment policies discriminate
against black financial advisers.
Merrill Lynch argued the case should not be allowed to proceed as
a class action, a type of lawsuit that allows plaintiffs to
combine their claims in one big case.
The plaintiffs, suing on behalf of some 700 black brokers, alleged
that two Merrill Lynch policies have contributed to racial
disparities in how much financial advisors are paid. One policy
deals with the redistribution of client accounts held by departing
or retiring brokers. Plaintiffs said black brokers are largely
excluded from such distributions. They also alleged another
policy, which allows brokers in the same office to form teams,
leads to racial disparities.
A federal trial judge refused to allow the lawsuit to proceed on a
class-wide basis, but the Chicago-based 7th U.S. Circuit Court of
Appeals reversed that ruling in February, allowing the class
action to proceed for the purpose of deciding whether the Merrill
Lynch policies had a discriminatory effect. The appeals court
said each individual broker would have to prove in later
proceedings that his compensation had been affected by the
policies, and by how much.
The Supreme Court, in a brief written order, let that ruling
stand, rejecting Merrill Lynch's appeal without comment.
Merrill Lynch said in a court brief that the policies were
"ordinary organizational tools" that made its business more
effective. It said certifying the case as a class action was
particularly problematic because some black financial advisers
benefited from the policies. Allowing such class-action suits
also makes it easier for plaintiffs to use the threat of legal
liability to coerce settlements from companies, Merrill Lynch
said.
The plaintiffs said in their court brief that uncontested evidence
showed Merrill Lynch's black brokers fared worse than its white
brokers "in nearly all of the firm's metrics." They argued that
class-actions can be certified to resolve particular legal issues,
even if other portions of the lawsuit don't qualify to move
forward in one large case.
The case is Merrill Lynch v. McReynolds, 12-113.
MONEYGRAM INT'L: Hearing on "Pittman" Suit Settlement on Oct. 10
----------------------------------------------------------------
A hearing will be held on October 10, 2012, to consider final
approval of MoneyGram International, Inc.'s settlement of the
class action lawsuit originally commenced by Willie R. Pittman,
according to the Company's August 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On April 15, 2011, a complaint was filed in the Court of Chancery
of the State of Delaware by Willie R. Pittman purporting to be a
class action complaint on behalf of all stockholders and a
stockholder derivative complaint against the Company, affiliates
of Thomas H. Lee Partners, L.P. ("THL") and affiliates of Goldman,
Sachs & Co. ("Goldman Sachs") and each of the Company's directors.
Ms. Pittman alleged in her complaint that she is a stockholder of
the Company and asserted, among other things, (i) breach of
fiduciary duty and disclosure claims against the Company's
directors, THL and Goldman Sachs, (ii) breach of the Company's
certificate of incorporation claims against the Company, THL and
Goldman Sachs, and (iii) claims for aiding and abetting breach of
fiduciary duties against Goldman Sachs. Ms. Pittman purported to
sue on her own behalf and on behalf of the Company and its
stockholders. Ms. Pittman sought to, among other things, enjoin
or rescind the 2011 Recapitalization. On
April 29, 2011, the plaintiff filed an amended complaint to add
two additional plaintiffs, Susan Seales and Stephen Selzer. On
May 16, 2011, a hearing to enjoin or rescind the 2011
Recapitalization was held in the Court of Chancery of the State of
Delaware (the "Delaware Court"), and at the hearing, the
plaintiffs' request for a preliminary injunction was denied. The
2011 Recapitalization was completed on May 18, 2011. Since that
time, Ms. Pittman has withdrawn as a putative class
representative; Ms. Seales and Mr. Selzer remain as plaintiffs.
The plaintiffs sought to recover damages of some or all of the
cash and stock payments made to THL and Goldman Sachs by the
Company in connection with the 2011 Recapitalization.
On May 12, 2011 a complaint was filed in the County Court at Law
No. 3 in Dallas County, Texas by Hilary Kramer purporting to be a
class action complaint on behalf of all stockholders and a
stockholder derivative complaint against the Company, THL, Goldman
Sachs and each of the Company's directors. Ms. Kramer alleged in
her complaint that she is a stockholder of the Company and
asserted, among other things, (i) breach of fiduciary duty claims
against the Company's directors, THL and Goldman Sachs and (ii)
claims for aiding and abetting breach of fiduciary duties against
Goldman Sachs. Ms. Kramer purported to sue on her own behalf and
on behalf of the Company and its stockholders. Ms. Kramer sought
to, among other things, enjoin the 2011 Recapitalization. The
defendants have moved for the Texas court to stay this litigation
in favor of the Pittman litigation in Delaware, which has an
overlapping class definition.
On July 20, 2012, the parties in the Pittman litigation applied
for preliminary approval of a proposed settlement, the terms of
which are set forth in a Stipulation and Agreement of Compromise
and Settlement, dated as of July 19, 2012 (the "Stipulation").
The Stipulation, which is still subject to preliminary and final
approval by the Delaware Court, provides for a settlement payment
of $10.0 million, to be distributed pro rata to certain
stockholders, net of any attorneys' fees awarded by the Delaware
Court. During the three and six months ended June 30, 2012, the
Company recognized $6.5 million of expense for the proposed
settlement. The Company, THL, Goldman Sachs, the Company's
directors and other parties agreed to share financial
responsibility for funding the settlement payment as follows: (i)
the Company will contribute $3.5 million; (ii) the Company's
insurer will contribute $2.8 million under the Company's director
and officer liability policy; (iii) THL and the individuals
nominated by THL as directors of the Company, referred to
Collectively herein as the THL Directors, will waive all future
rights to receive cash or equity compensation from the Company for
services by the THL Directors or any other directors nominated by
THL, and the Company will contribute $2.0 million toward the
settlement payment in recognition of such waiver; (iv) Goldman
Sachs has agreed to waive reimbursements of $1.0 million of legal
fees and expenses associated with the Company's 2011
Recapitalization, and the Company will contribute this amount
toward the settlement payment; and (v) other parties with rights
related to the 2011 Recapitalization have agreed to waive
reimbursement of $0.8 million of legal fees and expenses, and the
Company will contribute this amount toward the settlement payment.
The Stipulation also includes a release by the putative class of
stockholders of all claims with respect to the allegations in the
action or relating to the 2011 Recapitalization. The Delaware
Court has set a hearing on October 10, 2012, to consider final
approval of the settlement and entry of judgment. If the
settlement is approved, the action will be dismissed with
prejudice on the merits, and the Company will seek to dismiss the
Texas action as well.
MOTRICITY INC: "Callan" Suit Plaintiffs File Amended Complaint
--------------------------------------------------------------
Plaintiffs in the securities class action lawsuit originally filed
by Joe Callan filed a second amended complaint in July, according
to Motricity, Inc.'s August 9, 2012, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2012.
Joe Callan filed a putative securities class action complaint in
the U.S. District Court, Western District of Washington at Seattle
on behalf of all persons who purchased or otherwise acquired
common stock of Motricity between June 18, 2010, and August 9,
2011, or in the Company's initial public offering. The defendants
in the case are Motricity, certain of the Company's current and
former directors and officers, including Ryan K. Wuerch, James R.
Smith, Jr., Allyn P. Hebner, James N. Ryan, Jeffrey A. Bowden,
Hunter C. Gary, Brett Icahn, Lady Barbara Judge CBE, Suzanne H.
King, Brian V. Turner; and the underwriters in the Company's IPO,
including J.P. Morgan Securities, Inc., Goldman, Sachs & Co.,
Deutsche Bank Securities Inc., RBC Capital Markets Corporation,
Robert W. Baird & Co Incorporated, Needham & Company, LLC and
Pacific Crest Securities LLC. The complaint alleges violations
under Sections 11 and 15 of the Securities Act of 1933, as
amended, (the "Securities Act") and Section 20(a) of the
Securities Exchange Act (the "Exchange Act") by all defendants and
under Section 10(b) of the Exchange Act by Motricity and those of
the Company's former and current officers who are named as
defendants. The complaint seeks, inter alia, damages, including
interest and plaintiff's costs and rescission. A second putative
securities class action complaint was filed by Mark Couch in
October 2011 in the same court, also related to alleged violations
under Sections 11 and 15 of the Securities Act, and Sections 10(b)
and 20(a) of the Exchange Act. On November 7, 2011, the class
actions were consolidated, and lead plaintiffs were appointed
pursuant to the Private Securities Litigation Reform Act. On
December 16, 2011, plaintiffs filed a consolidated complaint which
added a claim under Section 12 of the Securities Act to its
allegations of violations of the securities laws and extended the
putative class period from August 9, 2011, to November 14, 2011.
On February 14, 2012, the Company filed a motion to dismiss the
consolidated class actions, which the plaintiffs opposed by filing
opposition briefs on April 4, 2012. The plaintiffs filed an
amended complaint on May 11, 2012, and on June 11, 2012, the
Company filed a motion to dismiss the consolidated class action.
The plaintiffs then filed a second amended complaint on July 11,
2012.
The Company says it intends to vigorously defend against these
claims.
NOVELOS THERAPEUTICS: Securities Suit Dismissal Not Appealed
------------------------------------------------------------
Novelos Therapeutics, Inc. disclosed in its August 9, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2012, that plaintiffs in a federal
securities class action did not appeal the dismissal of their
lawsuit.
A putative federal securities class action complaint was filed on
March 5, 2010, in the United States District Court for the
District of Massachusetts by an alleged shareholder of Novelos, on
behalf of himself and all others who purchased or otherwise
acquired Novelos common stock in the period between December 14,
2009, and February 24, 2010, against Novelos and its President and
Chief Executive Officer, Harry S. Palmin. On October 1, 2010, the
court appointed lead plaintiffs (Boris Urman and Ramona McDonald)
and appointed lead plaintiffs' counsel. On October 22, 2010, an
amended complaint was filed. The amended complaint claims, among
other things, that Novelos violated Section 10(b) of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder in connection with alleged misleading
disclosures related to the progress of the Phase 3 clinical trial
of NOV-002 for non-small cell lung cancer. On December 6, 2010,
the defendants filed a motion to dismiss the complaint with
prejudice. On January 20, 2011, the plaintiffs filed their
opposition to the Company's motion and on March 3, 2011, the
defendants filed their response to the opposition. On June 23,
2011, the motion to dismiss was granted and the case was dismissed
without prejudice. Because the dismissal was without prejudice,
the plaintiffs could reinstitute the proceeding by filing an
amended complaint. On August 5, 2011, the plaintiffs filed a
second amended complaint realleging that the defendants violated
Section 10(b) of the Exchange Act and Rule 10b-5 in connection
with alleged misleading disclosures related to the Phase 3
clinical trial for NOV-002 in non-small cell lung cancer. On
September 9, 2011, the defendants filed a motion to dismiss the
second amended complaint. The plaintiffs' opposition to the
motion was filed on October 14, 2011, and the defendants filed a
reply brief on November 4, 2011. The Company and Mr. Palmin
believe the allegations are without merit and intend to continue
to vigorously defend against them.
On June 11, 2012, the second amended complaint was dismissed with
prejudice. The plaintiffs did not file a notice of appeal prior
to the expiration of the deadline for such filing on July 13,
2012.
PENNSYLVANIA: Judge Tosses Pre-Shift Work Class Action v. SEPTA
---------------------------------------------------------------
Dan Packel, writing for Law360, reports that a Pennsylvania
federal judge on Sept. 28 tossed a Fair Labor Standards Act class
action claim against the Southeastern Pennsylvania Transportation
Authority, ruling that the employees' claims over payment for pre-
shift work are subject to arbitration under the collective
bargaining agreements between the parties.
A set of bus and trolley drivers claimed that SEPTA failed to
compensate them for daily, pre-trip inspections they were forced
to conduct off the clock before the start of their shifts.
SAXON MORTGAGE: Loan Modification Class Action Can Proceed
----------------------------------------------------------
Indiawest.com reports that the U.S. District Court for the Eastern
District of New York has ruled that an Indian American couple can
proceed with a class-action lawsuit against mortgage servicing
company Saxon Mortgage Services, a unit of Morgan Stanley, under
New York's deceptive trade practices statute.
Ranujoy and Deborah Pandit of Long Island, N.Y., filed the lawsuit
in August 2011 on behalf of a nationwide class of homeowners who
sought loan modifications (I-W, Sept. 2, 2011).
According to their attorney, Krishnan Chittur of New York-based
Chittur & Associates, they sought a loan modification agreement in
October 2008 and were offered a "Trial Period Plan Agreement,"
with reduced payments, under the federal Home Affordable
Modification Program.
The trial period was to be for three months, at the end of which
the loan was to be modified. When the couple inquired about the
status of their application, Saxon demanded re-submission of
"essentially the same information and documentation," the law firm
asserted in a press release.
Despite re-submitting documents at least three times, Saxon a year
later denied their application, but advised them to apply again.
The plaintiffs argued in court that loan servicing companies have
significant financial incentives to avoid modifying such loans
under HAMP and that Saxon gave the Indian American couple the
"runaround."
In the Sept. 18, 2012 decision, Judge Joanna Seybert held that
plaintiffs could proceed with a class-action lawsuit.
"Plaintiffs allege that defendant routinely asks homeowners to
resubmit financial information on pre-textual grounds, misleads
homeowners over the phone and ignores completed loan modifications
in what is fairly read to be a series of steps designed to string
along loan modification applicants," the court stated.
Saxon, the court added, "took steps to delay deciding applicants'
permanent loan modifications until well after their three-month
Trial Periods had run," and "lulled" plaintiffs into not pursuing
other options for saving their home.
However, the court dismissed claims for breach of contract and
jurisdiction under the Equal Credit Opportunity Act.
"We are delighted at the decision," said Chittur in an e-mail to
India-West. "While we are disappointed at the dismissal of the
contract and ECOA claims, we intend to hold them accountable to
the tens of thousands of distressed homeowners," he added.
SEABRIGHT: Shareholders File Class Action Over Enstar Merger
------------------------------------------------------------
The Insurance Insider reports that two SeaBright investors have
brought class action suits on behalf of all stockholders against
the company and its board of directors over the impending merger
with Enstar, alleging that the firm was sold too cheaply via an
unfair process.
The shareholders, Mitchell Daks and Craig Lochner, filed separate
suits on 13 and 20 September respectively in an attempt to block
the acquisition.
The investors claim that SeaBright directors breached their
fiduciary duties owed to investors because of the undervalued
selloff.
SPEARS: Supreme Court to Decide on Privacy Litigation Exception
---------------------------------------------------------------
Annie Youderian at Courthouse News Service reports that the U.S.
Supreme Court has agreed to decide whether lawyers can retrieve
confidential information from state motor vehicle records to
solicit clients.
The high court on Sept. 26 granted certiorari in the case of
Marachich v. Spears, which raises questions about the scope of the
"litigation exception" to the Driver's Privacy Protection Act of
1994.
A group of South Carolina attorneys used this exception to
retrieve the names, phone numbers and addresses of thousands of
car buyers who were then targeted as potential plaintiffs in
several "group action" lawsuits against car dealerships.
The buyers filed a federal class action, claiming the mailings
they received from lawyers violated their privacy rights.
A federal judge sided with the lawyers, and the United States
Court of Appeals for the 4th Circuit affirmed in a decision that
placed it at odds with other federal appeals courts.
The three-judge panel found that "solicitation is an accepted and
expected element of, and is inextricably intertwined with, conduct
satisfying the litigation exception under the DPPA."
The Supreme Court justices will decide if the 4th Circuit was
wrong to extend the litigation exception to lawyers using the
protected data to find clients for potential lawsuits, as opposed
to evidence for existing lawsuits.
They will also decide if the exception allows a lawyer who files
an action that's effectively a "place holder" lawsuit to retrieve
personal DPPA information solely to solicit clients for that
action.
STEREOTAXIS INC: Awaits Ruling on Bid to Dismiss Securities Suit
----------------------------------------------------------------
Stereotaxis, Inc. is awaiting a court decision on its motion to
dismiss a securities class action lawsuit pending in Missouri,
according to the Company's August 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On October 7, 2011, a purported securities class action was filed
against the Company, one of the Company's current executive
officers and a past executive officer in the U.S. District Court
for the Eastern District of Missouri by Kevin Pound, a purported
shareholder of the Company. On December 29, 2011, the court
granted an unopposed motion appointing Local 522 Pension Fund as
Lead Plaintiff in the action and granting Lead Plaintiff leave to
file an Amended Complaint, which Lead Plaintiff filed on
March 19, 2012. The Amended Complaint alleges that, during the
period from February 28, 2011, through August 9, 2011, the Company
and certain of its officers made materially false and misleading
statements regarding the Company's financial condition and future
business prospects, in violation of sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended. The Amended
Complaint seeks unspecified damages, costs, attorneys' fees and
such other relief as the Court may deem appropriate. On May 18,
2012, the Company filed a motion to dismiss the Amended Complaint,
and on July 24, 2012, Lead Plaintiff filed its response to the
motion to dismiss.
The Company believes the complaint is without merit and intends to
vigorously defend against it. However, litigation is inherently
uncertain and it is too early in this proceeding to predict the
outcome of this lawsuit or to reasonably estimate possible losses,
if any, related thereto. In addition, the Company has
obligations, under certain circumstances, to indemnify the
individual defendants with respect to claims asserted against them
and otherwise to the fullest extent permitted under Delaware law
and the Company's bylaws and certificate of incorporation.
Headquartered in St. Louis, Missouri, Stereotaxis, Inc. --
http://www.stereotaxis.com//-- designs, manufactures, and markets
cardiology instrument control systems for use in a hospital's
interventional surgical suite or interventional lab for the
treatment of arrhythmias and coronary artery diseases in the
United States and internationally.
TASER INT'L: Sued Over Improperly Selling Self-Defense Weapons
--------------------------------------------------------------
Heather Johnson at Courthouse News Service reports that Taser
International improperly sells its self-defense weapons to
California consumers who do not have a concealed weapons permit, a
class claims in court.
California Penal Code considers Tasers a firearm, and places
several requirements on consumers who carry firearms in public,
according to the complaint in Sonoma County Superior Court. Such
individuals must allegedly have a concealed weapons permit and
complete of a handgun-safety class, among other requirements.
Taser International, however, makes no such requirements of
California consumers, thus putting consumers at risk of criminal
prosecution for carrying a handheld Taser, according to the
complaint.
Lead plaintiff Chiko Katiki, a 23-year-old college student, says
she bought a Taser C2 from the Taser International Web site to
protect herself when walking to and from school and at odd hours.
But Taser neither required Ms. Katiki to show proof of a concealed
weapons permit nor to go through a 10-day waiting period, per
California law, according to the complaint. Ms. Katiki says she
received her Taser with a paper target for practice and learned
that she must call the company to undergo a private screening and
activation code.
Her attorney, Mark Clausen of Santa Rosa, Calif., mailed Taser
International a cease-and-desist letter in August 2012. Receiving
no response, Mr. Clausen filed claims for fraud and declaratory
relief on behalf of Ms. Katiki. The complaint says that Taser
"falsely represented that plaintiff and others similarly situated
may lawfully carry a fully-loaded Taser in any public place for
purposes of self-defense" without a license.
It did so "for the purposes of illicit profit," Ms. Katiki says.
The complaint notes that the parties dispute whether People v.
Heffner (1977), which would dictate whether Tasers are considered
loaded firearms in California, is "good law."
UNITED STATES: Marshals Can't Amend Discrimination Class Action
---------------------------------------------------------------
Bonnie Barron at Courthouse News Service reports that a group of
black deputy U.S. marshals cannot amend their complaint alleging
race discrimination against their employer, a federal judge ruled.
The litigation history extends back to July 1994 when non-party
U.S. Deputy Marshal Matthew Fogg filed an EEOC complaint on behalf
of more than 50 black U.S. Marshals Service employees.
Though it repeatedly dismissed the complaint, the EEOC made an
about face in July 2012, granting Mr. Fogg class certification and
ordering an administrative judge to hear the claims.
In the meantime, David Grogan, Herman Brewer, and Fayette Reid
sought to amend a separate class action complaint regarding race
discrimination against the U.S. Marshals Service in federal court.
The amendment would include expanding the liability period to
begin in 1994.
James Brooks joined Messrs. Grogan, Brewer, and Reid as a
plaintiff in their complaint. However, he sued only for
individual claims of race discrimination.
The marshals argued that Mr. Fogg's complaint to the EEOC
satisfied their own obligation to exhaust administrative remedies
under Title VII of the Civil Rights Act of 1964.
Not so, ruled U.S. District Judge Henry Kennedy Jr., who denied in
part the marshals' motion to amend their complaint in September
2011.
The vicarious exhaustion doctrine does not apply to the marshals,
since Mr. Fogg did not take part in their federal complaint, Judge
Kennedy determined.
"In other words, Judge Kennedy refused to allow plaintiffs 'to
piggyback' off of Fogg's EEO charges when Fogg was not named in
the action currently before the court," U.S. District Judge
Barbara Rothstein noted in an order issued on Sept. 21.
Judge Rothstein denied the marshals' motion to reconsider Judge
Kennedy's ruling in the 9-page order.
The marshals said Mr. Fogg was seeking to amend his complaint and
include Messrs. Brewer and Reid as parties, but until the
administrative judge rules on the amendment, Judge Rothstein
refuses to reconsider vicarious exhaustion.
Judge Rothstein denied as moot the marshals' motion for
reconsideration based on the continuing violations doctrine, which
she says Judge Kennedy's order did not address.
As for James Brooks, Judge Rothstein found that he failed to wait
the mandatory 180 days from the time he complained to the EEOC
before filing civil claims. Therefore, Judge Rothstein refused to
consider his request to amend his claims.
Judge Rothstein gave the marshals two weeks to raise any
outstanding arguments, as the Fogg class action continues to
develop.
A copy of the Memorandum Order Denying Plaintiffs' Motion for
Reconsideration; Granting Plaintiffs' Leave to File Motion as to
Remaining Issues in Grogan, et al. v. Holder, Case No. 08-cv-01747
(D.D.C.), is available at:
http://www.courthousenews.com/2012/09/27/US%20Marshals.pdf
UNITED STATES: "Age Out" Visa Applicants Get Favorable Ruling
-------------------------------------------------------------
Tim Hull at Courthouse News Service reports that a full panel of
the United States Court for the Ninth Circuit ruled on Sept. 26
that federal immigration law gives priority to children of legal
residents that became adults while waiting years for a visa.
The San Francisco-based appeals court revived a class action
brought by several visa applicants who have "aged-out" of a
program that allowed their parents to sponsor them after the
parents became legal permanent residents. Because the United
States issues a limited number of such family-sponsored or
"derivative" immigrant visas every year, enrolled children
sometimes turn 21 while waiting.
That's what happened to Teresita Costelo, Lorenzo Ong and other
class members, all of whom waited several years for their visa
before age caught up with them and their names went to the back of
the line.
Recognizing the severe backlog, in 2002 Congress passed the Child
Status Protection Act (CSPA). Section 1153(h)(3) of the law allows
some applicants who have aged-out of the process to "retain the
original priority date issued upon receipt of the original
petition," which effectively puts them back at the front of the
line.
However, when the plaintiffs asked to keep their priority date,
the U.S. Citizen and Immigration Service refused them, as did the
Board of Immigration Appeals. Both agencies interpreted the
statute to exclude "all derivative beneficiaries" from priority-
date retention. The plaintiffs challenged this interpretation in
a class action, but Presiding U.S. District Judge James Selna, in
Riverside, deferred to the agencies' reading of what he considered
to be an ambiguous paragraph. The issue then went before a three-
judge panel of the 9th Circuit, which agreed with the lower court.
An 11-judge, en banc panel agreed to review the case and reversed
Wednesday in a divided ruling.
"We conclude that the plain language of the CSPA unambiguously
grants automatic conversion and priority date retention to aged-
out derivative beneficiaries," wrote Judge Mary Murguia for the
six-judge majority. "The BIA's interpretation of the statute
conflicts with the plain language of the CSPA, and it is not
entitled to deference."
The panel reversed the district court's grant of summary judgment
to the government and remanded the case back to Riverside.
Four judges, including Chief Judge Alex Kozinski, joined Judge
Milan Smith's dissent arguing for deference.
"Other courts, including the original three-judge panel in this
case, concluded that Sec. 1153(h)(3) is ambiguous, and that the
Board of Immigration Appeals's (BIA) decision is entitled to
deference under Chevron," Judge Smith wrote, noting that last year
the 2nd Circuit "held that Sec. 1153(h)(3) means the exact
opposite of what the majority holds." "I would hold that 8 U.S.C.
Sec. 1153(h)(3) is ambiguous because it contains language
simultaneously including and excluding derivative beneficiaries of
F3 and F4 visa petitions from the benefits of the Child Status
Protection Act," Judge Smith wrote.
A copy of the Opinion in Costelo, et al. v. Napolitano, et al.,
No. 09-56846 (9th Cir.), is available at http://is.gd/5XV50d
VALEANT PHARMA: Faces Class Action Over Medicis Takeover Offer
--------------------------------------------------------------
Courthouse News Service reports that Valeant Pharmaceuticals
International's $2.6 billion bid for Medicis Pharmaceutical leaves
public shareholders in the dust, a class claims in court.
Even though the company's flagship products are "cutting edge,"
shareholders say the firm's stock price has been hit hard after
"unwarranted media attention" focused on the deaths of Medicis
chairman and CEO Jonah Shacknai's girlfriend and son, which
happened days apart last July.
"Although no charges were brought, investigation into these
matters caused Medicis shares to plunge within hours of the
report," according to the complaint in Delaware Chancery Court.
"Valeant is seeking to acquire the company at the most opportune
time, at a time when the company is still in the process of
recovering from negative media attention and is positioned for
tremendous growth."
Valeant's offer of $44 per share, meanwhile, falls short of other
potential deals after other bidders indicated that Medicis is
worth up to $50 per share, the complaint states. Valeant,
according to the complaint, would gain a greater foothold in the
dermatology field while benefitting from Medicis' sales force.
Despite the plunge in stock price Medicis experienced "resurgence"
in 2012, according to the complaint, reporting $0.52 earnings per
share in the second quarter on guidance of between $0.37 and $0.47
earnings per share.
But shareholders claim the fix is in since Mr. Shacknai is set to
receive nearly $35 million from the sale, while other top brass at
Abraxis are set to cash in as well. In addition, the deal
includes no-shop, no solicitation and a matching rights provisions
as well as an $85 million termination fee, according to the
complaint.
Finally, shareholders claim that the proxy Medicis filed with the
SEC is full of holes.
"The preliminary proxy omits material information with respect to
the process and events leading up to the proposed transaction, as
well as the opinion and analyses of Medicis's financial advisors,"
the complaint states. "This omitted information, if disclosed,
would significantly alter the total mix of information available
to the public holders of Medicis's shares."
Shareholders are represented by:
Seth Rigrodsky, Esq.
Brian Long, Esq.
Gina Serra, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway
Suite 120
Wilmington, DE 19803
Telephone: (302) 295-5310
WAL-MART: Tennessee Women File Gender Bias Class Action
-------------------------------------------------------
Bobby Allyn, writing for The Tennessean, reports that lawyers
representing three Tennessee women filed a class-action lawsuit on
Oct. 2 alleging that Wal-Mart's employment practices give unequal
treatment to women in the region that covers Tennessee and four
surrounding states.
The federal suit comes more than a year after the U.S. Supreme
Court threw out a massive gender discrimination case aimed at Wal-
Mart. In that case, the court said there were too many women in
varied jobs and refused to consider them a single class.
In the wake of that decision, labor advocates regrouped and
formulated a new approach: to file regional gender bias complaints
against the retailer, as opposed to the millions of employees
involved in the national suit.
The Oct. 2 lawsuit is the third to emerge after the U.S. Supreme
Court decision, and some plaintiff lawyers have dubbed the assault
"Wal-Mart 2.0."
In October 2011, two regional class-action bias cases were filed
against Wal-Mart, one in Northern California and the second in
Northern Texas.
A federal judge in California last month issued an order rejecting
Wal-Mart's request to dismiss the lawsuit.
Nashville-based firm Barrett Johnston filed the latest suit,
which, if certified, is expected to affect tens of thousands of
current and former employees of Wal-Mart and Sam's Club in
Tennessee, Alabama, Arkansas, Georgia and Mississippi.
In all of those states, according to the complaint, scores of
women ran up against companywide pay and promotion discrimination.
Wal-Mart spokesman Randy Hargrove said the cases in the complaint
are unsuitable for class treatment, saying that the nature of the
lawsuit is not unlike the one the U.S. Supreme Court knocked down.
"Wal-Mart has strong policies against discrimination,"
Mr. Hargrove said, adding that the women in the complaint "are not
representative of the hundreds of thousands of employees who work
at Wal-Mart."
David Garrison, the lawyer for the plaintiffs, said he is proud to
represent the women "who are standing up for thousands of their
fellow workers to fight back against Wal-Mart's discriminatory
employment practices."
Since the procedural hurdle prevented the U.S. Supreme Court from
ever deciding if the world's largest retailer discriminated
against women, labor activists hope the regional class-action
suits will address the heart of the matter.
Brian Fitzpatrick, a law professor at Vanderbilt University who
specializes in class-action cases, is far less convinced.
Even though the suit is smaller than the national one thrown out
last year for failing to find enough in common with the
plaintiffs, Mr. Fitzpatrick said the same logic will apply. He
said lumping instances from individual stores together was still
not likely to meet the standard of common circumstances required
for a class-action lawsuit.
"If I were betting, I would say it's not going to prevail," Mr.
Fitzpatrick said.
Still, Cheryl Phipps, 59, of Covington, Tenn., who is among the
lead plaintiffs in the case, is standing in for thousands of Wal-
Mart employees who deserve to be compensated for the
discrimination they endured, the plaintiffs' attorneys say.
Ms. Phipps realized something was amiss when she found out one of
her male colleagues, who had less experience than she did,
received a 75-cent raise, compared to Phipps' 25-cent bump.
"When I asked about it, it was brushed off," said Ms. Phipps, who
worked at Wal-Mart for more than a decade.
Then at a meeting, Ms. Phipps told her district manager that she
would like to be a manager at the store in Covington, about an
hour outside of Memphis.
The manager said she "was not good enough" to be in management.
Shortly after that, a male colleague with less experience landed a
management position.
When, in 2005, Ms. Phipps was training to work in the store's auto
center, she was told that she could not learn what the men were
being taught because she was a woman.
"I was ticked," Ms. Phipps said. "I thought, 'how much more am I
gonna take?'"
The other two plaintiffs in the case, Bobbi Miller, of Jackson,
Tenn., and Shawn Gibbins of Cookeville, are described in the
complaint. Both women also provided anecdotal and statistical
examples in their cases.
Attorneys Garrison and Scott Tift, co-counsel in the case, gave
some examples from Middle Tennessee, like when Lisa Tate Sweeney
asked to be assigned to the furniture department at a Franklin
store and was told, "the furniture department was for men."
Or when Laura Comfort was told her promotion was taken away at a
McMinnville store because "a man can do a better job than a
woman."
Ms. Phipps said she has been long waiting for her and dozens of
other women to expose what she sees as the retailer's rampant
bias.
"We want our day in court," Ms. Phipps said. "We want them to
hear what we have to say."
WARNER MUSIC: Suit Over Digital Download Prices Remains Pending
---------------------------------------------------------------
Warner Music Group Corp. continues to defend a consolidated
lawsuit over pricing of digital music downloads, according to the
Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On December 20, 2005, and February 3, 2006, the Attorney General
of the State of New York served the Company with requests for
information in connection with an industry-wide investigation as
to the pricing of digital music downloads. On February 28, 2006,
the Antitrust Division of the U.S. Department of Justice served
the Company with a Civil Investigative Demand, also seeking
information relating to the pricing of digitally downloaded music.
Both investigations were ultimately closed, but subsequent to the
announcements of the investigations, more than thirty putative
class action lawsuits were filed concerning the pricing of digital
music downloads. The lawsuits were consolidated in the Southern
District of New York. The consolidated amended complaint, filed
on April 13, 2007, alleges conspiracy among record companies to
delay the release of their content for digital distribution,
inflate their pricing of CDs and fix prices for digital downloads.
The complaint seeks unspecified compensatory, statutory and treble
damages. On October 9, 2008, the District Court issued an order
dismissing the case as to all defendants, including the Company.
But on January 12, 2010, the Second Circuit vacated the judgment
of the District Court and remanded the case for further
proceedings and on January 10, 2011, the Supreme Court denied the
defendants' petition for Certiorari.
Upon remand to the District Court, all defendants, including the
Company, filed a renewed motion to dismiss challenging, among
other things, plaintiffs' state law claims and standing to bring
certain claims. The renewed motion was based mainly on arguments
made in defendants' original motion to dismiss, but not addressed
by the District Court. On July 18, 2011, the District Court
granted defendants' motion in part, and denied it in part.
Notably, all claims on behalf of the CD-purchaser class were
dismissed with prejudice. However, a wide variety of state and
federal claims remain, for the class of Internet Music purchasers.
The parties have filed amended pleadings complying with the
court's order, and the case is currently in discovery. The
parties were scheduled to confer at the end of August 2012 on a
class certification briefing schedule, for a determination by the
District Court as to whether class treatment is appropriate. The
case will proceed into discovery, based on a schedule to be
determined by the District Court.
The Company says it intends to defend against these lawsuits
vigorously, but is unable to predict the outcome of these
lawsuits. Regardless of the merits of the claims, this and any
related litigation could continue to be costly, and divert the
time and resources of management.
WARNER MUSIC: Defends Suits Over Digital Music Sales Royalties
--------------------------------------------------------------
Warner Music Group Corp. continues to defend itself against a
consolidated class action lawsuit over improper calculation of
royalties from sales of digital music, according to the Company's
August 9, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2012.
Five putative class action lawsuits have been filed against the
Company in Federal Court in the Northern District of California.
The lawsuits, which were brought by various recording artists, all
allege that the Company has improperly calculated the royalties
due them for certain digital music sales under the terms of their
recording contracts. The named plaintiffs purport to raise these
claims on their own behalf and, as a putative class action, on
behalf of other similarly situated artists. Plaintiffs base their
claims on a previous ruling that held another recorded music
company had breached the specific recording contracts at issue in
that case through its payment of royalties for music downloads and
ringtones. In the wake of that ruling, a number of recording
artists have initiated lawsuits seeking similar relief against all
of the major record companies. Here too, plaintiffs seek to have
the interpretation of the contracts in that prior case applied to
their different and separate contracts.
On April 10, 2012, the Company filed a motion to dismiss various
claims in one of the lawsuits, with the intention of filing
similar motions in the remaining lawsuits, on the various
applicable response dates. Meanwhile, certain plaintiffs' counsel
moved to be appointed as interim lead counsel, and other
plaintiffs' counsel moved to consolidate the various actions. On
April 23, 2012, the court issued an order setting out a more
orderly process for dealing with the various cases. It set May
24, 2012 for a Case Management Conference for all five actions,
and set the same day as the hearing date for the Plaintiffs'
various outstanding motions. In addition, the Court removed the
Company's motion to dismiss from the calendar, with new dates to
be set on or after May 24, 2012. In a June 1, 2012 order, the
court consolidated the cases. Plaintiffs were to file a
consolidated, master complaint by August 21, 2012.
No other dates have been set in the litigation. The Company
intends to defend against these lawsuits vigorously, but is unable
to predict the outcome of these lawsuits. Regardless of the merits
of the claims, this and any related litigation could continue to
be costly, and divert the time and resources of management.
WARNER MUSIC: Still Awaits Okay of "Cournoyer" Suit Settlement
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Warner Music Group Corp. was formed on November 21, 2003. The
Company is the direct parent of WMG Holdings Corp. ("Holdings"),
which is the direct parent of WMG Acquisition Corp. ("Acquisition
Corp."). Acquisition Corp. is one of the world's major music-
based content companies.
Pursuant to the Agreement and Plan of Merger, dated as of May 6,
2011 (the "Merger Agreement"), by and among the Company, AI
Entertainment Holdings LLC (formerly Airplanes Music LLC), a
Delaware limited liability company ("Parent") and an affiliate of
Access Industries, Inc. ("Access"), and Airplanes Merger Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), on July 20, 2011 (the "Closing Date"),
Merger Sub merged with and into the Company with the Company
surviving as a wholly owned subsidiary of Parent (the "Merger").
The Company awaits a decision on the application for approval by
the Supreme Court for the State of New York of the previously
disclosed settlement of the claims filed against, inter alia, the
Company and its directors in 2011 on behalf of a class of the
Company's shareholders in the action entitled Cournoyer v. Warner
Music Group Corp. et al., Index No. 651367/2011 (the "Cournoyer
Action"). The Cournoyer Action, as well as two related actions,
were brought in connection with the Merger.
As previously disclosed, the settlement did not involve any
monetary payment to the class of shareholders. Instead, the
Company agreed to publicly disclose additional information about
the Merger in a filing that it made with the SEC on June 13, 2011,
and pay up to $500,000 for plaintiffs counsel fees.
No further updates were reported in the Company's August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
WHOLE FOODS: Recalls Chicken Spring Rolls & Peanut Sesame Noodles
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Whole Foods Market is recalling two premade items, Chicken Spring
Rolls and Peanut Sesame Noodles, sold in its prepared food
department in the grab and go section and at the full service
chef's case, due to possible Salmonella contamination in the
peanuts used as an ingredient. 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.
The recalled items were sold from September 27 - 28, 2012, from
the Kirby location (2955 Kirby Drive, Houston, Texas). To date,
no illnesses have been reported related to these items. This
recall is in response to a recall by Sunland, Inc., whose recalled
peanut butter has been connected to 30 illnesses in 19 states.
Below is the Whole Foods Market store that was affected and the
recalled products that were sold at that location:
Store Address Recalled Product
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Kirby 2955 Kirby Drive Chicken Spring Rolls
Houston, Texas UPC Number: 225757203997
With a sell by date of 10/1 or 10/2
Kirby 2955 Kirby Drive Peanut Sesame Noodles
Houston, Texas UPC Number: 222099604192
With either a sold on date of 9/27
or 9/28 or a sell by date of
10/1 or 10/2
These products, Chicken Spring Rolls (UPC Number: 225757203997)
and Peanut Sesame Noodles (UPC Number: 222099604192), were sold
from the prepared foods department in the grab and go section and
at the full service chef's case in a clear 8 oz - 16 oz clamshell
container from September 27 - 28, 2012. UPC and sell by dates may
be found on a white sticker on the bottom or the side of the
container. Pictures of the recalled products' labels are
available at:
http://www.fda.gov/Safety/Recalls/ucm322460.htm
Signage is posted at this Whole Foods Market store to notify
customers of this recall. Consumers who have purchased Chicken
Spring Rolls (UPC Number: 225757203997) and Peanut Sesame Noodles
(UPC Number: 222099604192) from this location should discard them,
and may bring their receipt to the place of purchase for a full
refund. Consumers with questions may contact 512-542-0060 Monday
to Friday 9:00 a.m. to 5:00 p.m. Central Daylight Time.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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