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C L A S S A C T I O N R E P O R T E R
Wednesday, October 24, 2012, Vol. 14, No. 211
Headlines
ARCH CHEMICALS: Faces Age Discrimination Class Action in Georgia
BED BATH: Sued for Not Reimbursing Personal Vehicle Expenses
BEST BUY: Ninth Circuit Revives Robot Calls Class Action
CALIFORNIA: AG Faces Class Action Over Incorrect Arrest Records
CHICO'S FAS: Still Defends "Schlim" Class Suit in California
GILSTER-MARY LEE: Recalls Better Valu Fruit Whirls Cereal
GROTON, CT: Faces Class Action Over Property Revaluation
HOME DEPOT: Dismissal of ERISA Suit Now Final and Nonappealable
JOHNVINCE FOOD: Mulls Appeal of Peanut Vending Class Action Ruling
JPMORGAN CHASE: Judge Dismisses Termination Fee Class Action
LLOYDS BANKING: Investors Lose Class Action Over HBOS Deal
M-QUBE: Sued Over Unsolicited Monthly Subscriptions
MERRILL LYNCH: Accused of Recording Calls Without Prior Consent
MICHAELS STORES: Awaits Approval of Wage Suit Settlement
MICHAELS STORES: Bid to Dismiss "Jurgens" Suit Remains Pending
MICHAELS STORES: Defends Suits Over Song-Beverly Act Violations
MICHAELS STORES: Faces "Barreras" Disability Discrimination Suit
MICHAELS STORES: Plea to Dismiss "Henry" Suit Remains Pending
MICHAELS STORES: Reaches Deal in Card Terminal Tampering Suits
MICHAELS STORES: Reaches Tentative Settlement in "Ragano" Suit
NAT'L COLLEGIATE: Seeks Dismissal of O'Bannon Class Action
NAT'L FOOTBALL: Saints Fan Files $80-Mil. Class Action
NVIDIA CORP: Appeal in Securities Suit Remains Pending
NVIDIA CORP: Appeals From NVIDIA GPU Litigation Deal Pending
NVIDIA CORP: Plaintiff Refused to Amend "Granfield" Complaint
NYSTAR: Maurice Blackburn Mulls Asbestos Class Action
OCZ TECHNOLOGY: Two Law Firms File Class Action in California
PREMIERE LOAN: Sued Over Worthless Foreclosure Rescues
QUESTAR CAPITAL: Faces Shareholder Class Action
RAYMOND-HADLEY: Expands Recall of Wegmans Gluten Free Brownie Mix
SAVANNAH BANCORP: Faces Acquisition-Related Suit in New York
SOUTH BAY: Sued For Not Paying All Hours Worked by Therapists
TOSHIBA: Consumers Have Until Dec. 6 to File LCD Settlement Claims
UNITED STATES: Class Challenges Limited Evidentiary Privilege
VERSANT: Being Sold to Unicom for Too Little, Suit Claims
WILHELMINA: Models File Class Action Over Unpaid Royalties
WMS INDUSTRIES: "Conlee" Suit Dismissed Without Prejudice
XL FOODS: Faces Two Lawsuits Over Contaminated Beef
*********
ARCH CHEMICALS: Faces Age Discrimination Class Action in Georgia
----------------------------------------------------------------
Django Gold, writing for Law360, reports that Arch Chemicals Inc.
was hit on Oct. 15 with a class action in Georgia federal court by
a septuagenarian who alleges the company violated the Age
Discrimination in Employment Act by using its recent acquisition
by Lonza Group Ltd. as pretext to fire older workers and replace
them with younger employees.
Seventy-year-old Paul A. Kurke alleges that Arch abruptly fired
him following its buyout by Swiss chemicals and biotechnology
conglomerate Lonza last October, alleging that his termination was
part of the company's larger plan to unload its older workers.
BED BATH: Sued for Not Reimbursing Personal Vehicle Expenses
------------------------------------------------------------
Sean Boring, individually and on behalf of all others similarly
situated v. Bed Bath & Beyond of California Limited Liability
Company, a Delaware Limited Liability Company, and Does 1 through
100, Case No. RG12641888 (Calif. Super. Ct., Alameda Cty.,
August 1, 2012), is brought on behalf of Bed Bath's California
employees, who were employed by the Company from August 1, 2008,
until the conclusion of this case.
Mr. Boring alleges that Bed Bath failed to reimburse employees for
business expenses incurred when the employees travelled in their
own personal vehicles on behalf of the Defendants to the
Defendants' other store locations to perform Inter Store Inventory
Transfers and attend business meetings. He adds that he and the
Class Members also journeyed in their personal vehicles to the
bank, on behalf of the Defendants, to procure change for cashiers
and trekked to other businesses to perform business-related tasks.
Mr. Boring is a resident of Moorpark, California, and is a former
employee of the Defendants. He held several management positions
from about October 2005 through April 19, 2012.
Bed Bath is a Delaware Corporation doing business in California by
operating numerous locations throughout the state. The
corporation's principal place of business is in Union, New Jersey.
The true names and capacities of the Doe Defendants are currently
unknown to Mr. Boring.
The Company removed the lawsuit on October 11, 2012, from the
Superior Court of the state of California, County of Alameda, to
the United States District Court for the Northern District of
California. The Company asserts that the removal is proper
because the District Court has original subject matter
jurisdiction over the Plaintiff's claims for the amount in
controversy exceeds $75,000. The District Court Clerk assigned
Case No. 3:12-cv-05259 to the proceeding.
The Plaintiff is represented by:
Craig J. Ackermann, Esq.
ACKERMANN & TILAJEF, P.C.
1180 South Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone: (310) 277-0614
Facsimile: (310) 277-0635
E-mail: cja@laborgators.com
- and -
Michael Malk, Esq.
MICHAEL MALK, ESQ., APC
1180 South Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone: (310) 203-0016
Facsimile: (310) 499-5210
E-mail: mm@malklawfirm.com
The Defendants are represented by:
John S. Battenfeld, Esq.
MORGAN, LEWIS & BOCKIUS LLP
300 South Grand Avenue, Twenty-Second Floor
Los Angeles, CA 90071-3132
Telephone: (213) 612-2500
Facsimile: (213) 612-2501
E-mail: jbattenfeld@morganlewis.com
- and -
Stephen L. Taeusch, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market Street, Spear Street Tower
San Francisco, CA 94105-1126
Telephone: (415) 442-1000
Facsimile: (415) 442-1001
E-mail: staeusch@morganlewis.com
BEST BUY: Ninth Circuit Revives Robot Calls Class Action
--------------------------------------------------------
The Los Angeles Times reports that robot telephone calls aimed at
getting shoppers into a store are barred by federal law, a federal
appeals court ruled on Oct. 17.
A three-judge panel of the United States Court of Appeals for the
Ninth Circuit decided unanimously to revive a class-action lawsuit
in the state of Washington against Best Buy Stores, ruling the
chain's automated calls urging consumers to redeem reward points
amounted to unsolicited telephone advertising.
The court said the calls violated the Telephone Consumer
Protection Act, which prohibits prerecorded or artificial messages
to residents without their prior consent. Calls made for
emergency purposes are exempted.
A lower court had ruled for Best Buy, which argued the calls were
merely informational and did not advertise a product. But the 9th
Circuit overturned the district court, deciding "the calls were
aimed at encouraging listeners to engage in future commercial
transactions with Best Buy to purchase its goods."
CALIFORNIA: AG Faces Class Action Over Incorrect Arrest Records
---------------------------------------------------------------
Courthouse News Service reports that the California Attorney
General and Department of Justice injure people by failing to
correct arrest records of people who were exonerated, and
disseminating the incorrect information, a class action claims in
Alameda County Court.
CHICO'S FAS: Still Defends "Schlim" Class Suit in California
------------------------------------------------------------
Chico's FAS, Inc. was named as a defendant in a putative class
action filed in March 2011 in the Superior Court of the State of
California for the County of Los Angeles, Eileen Schlim v. Chico's
FAS, Inc. The Complaint attempts to allege numerous violations of
California law related to wages, meal periods, rest periods, and
failure to issue timely final pay, among other things. The
Company denies the material allegations of the Complaint. The
Company believes that its policies and procedures for paying its
associates comply with all applicable California laws. As a
result, the Company does not believe that the case should have a
material adverse effect on the Company's consolidated financial
condition or results of operations.
No further updates were reported in the Company's August 23, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended July 28, 2012.
GILSTER-MARY LEE: Recalls Better Valu Fruit Whirls Cereal
---------------------------------------------------------
Gilster-Mary Lee of Chester, Illinois, is voluntarily recalling
one lot of Fruit Whirls cereal because it contains undeclared
almond butter. People who have an allergy or severe sensitivity
to almonds run the risk of serious or life-threatening allergic
reaction if they consume these products.
The only brand involved is Better Valu Fruit Whirls Ready to Eat
Cereal, packaged in 28-oz. plastic bags which has a Best By date
of JUL 17 13 J8 (UPC# 79801-24630). The code is located on the
lower left corner of the back of the package, below the Nutrition
Facts and Ingredient Declaration Panel. Consumers should return
the product to the store for a full refund or discard it.
Pictures of the recalled products are available at:
http://www.fda.gov/Safety/Recalls/ucm324764.htm
The product was distributed between July 24, 2012, and
October 16, 2012, to retail stores located in Florida, Georgia,
Kentucky, Louisiana, North Carolina, Ohio, Oklahoma, Pennsylvania,
South Carolina, Tennessee, Texas, Virginia, and West Virginia.
Gilster-Mary Lee Corp. became aware of the mis-packaging after
receiving a customer complaint. Investigation into the complaint
confirmed some bags of the Fruit Whirls inadvertently contained
Honey Nut Toasted Oats cereal. No illnesses have been reported in
connection with this cereal.
For questions, consumers can call Gilster-Mary Lee Corp. at 618-
826-2361 ext. 3283 or 417-781-7777 ext. 4835 from 8:00 a.m. to
4:30 p.m. Central Daylight Time, Monday through Friday.
GROTON, CT: Faces Class Action Over Property Revaluation
--------------------------------------------------------
Ian Holliday, writing for Mystic River Press, reports that ten
Groton Long Point residents, including the current president of
the Groton Long Point Association, have initiated a class action
lawsuit against the town, charging that it treated the political
subdivision unfairly during its October 2011 property revaluation.
Specifically, the suit alleges that Town Assessor Mary Gardner
applied a 1.35 "adjustment factor" to the values of residential
properties located in Groton Long Point as determined by Tyler
Technologies, the firm that assisted Ms. Gardner in conducting the
revaluation. This adjustment factor, which the suit refers to as
a "manual override," was not applied to properties in any other
section of town, the suit says, and resulted in assessed property
values being 35 percent higher than they should have been.
The suit was filed at the Town Clerk's office on Sept. 11. It
names Ms. Gardner and the town as defendants. The plaintiffs are:
association President John P. Toughy, Mary B. Toughy, Robert
Feery, Yola Feery, David W. Nickolenko Sr., Charlene J.
Nickolenko, James J. Falcone, Linda A. Falcone, Louise H. Fisher,
and Betsey F. Amador.
According to a memo regarding the revaluation that Ms. Gardner and
town Finance Director Salvatore M. Pandolfo presented to the Town
Council on March 13, only 978 of the roughly 10,000 residential
properties in the town saw their assessed values increase during
the revaluation. Many of these properties were located in Groton
Long Point.
In that memo and duplicated in the suit is data on the total
percentage change for each of the various sections of the town.
Groton Long Point's total property value increased by 14.6
percent. For comparison, only five other areas increased in
value, and only Old Mystic increased by more than 1.3 percent.
The increase there was 3.8 percent.
At the March meeting, councilors questioned the reasons behind the
disproportionate increase in assessed value of property in Groton
Long Point. Ms. Gardner didn't mention an "adjustment factor"
specific to the subdivision, speaking instead about the complexity
of revaluation in general.
"It's all the process of a two-year project called a mass
appraisal," Ms. Gardner said. "When we do a revaluation, we, at
the end of the job, have to meet state standards for performance-
based testing, which this reval job met."
Councilor James L. Streeter asked Ms. Gardner to explain specific
factors the revaluation process took into account that could have
resulted in the increase for Groton Long Point. Ms. Gardner
explained that the revaluation is based on recent sales, of which
there were 18 in the subdivision during the assessment process.
"Basically, the appraisals we put on those properties using the
land sales that we had on Groton Long Point and then applying
appreciation and age factors to the buildings, their appraisals
are very similar to their sales price," Ms. Gardner said. "You
take those sales and you apply the same values that you have on
that land and those buildings and you spread it across the rest of
the properties."
"There is no 10-line formula," Ms. Gardner said. The lawsuit
claims that the property values Ms. Gardner arrived at for Groton
Long Point were "arbitrary, grossly excessive, disproportionate,
and unlawful in that they failed to properly reflect the true
market value of said properties."
The suit seeks a court order rolling back the 1.35 adjustment
factor, reimbursing Groton Long Point residents for their
overpayment of taxes, awarding attorney fees and costs and
providing "such other relief as the court may deem appropriate."
HOME DEPOT: Dismissal of ERISA Suit Now Final and Nonappealable
---------------------------------------------------------------
The dismissal of a consolidated class action lawsuit alleging
violation of the Employee Retirement Income Security Act of 1974
against The Home Depot, Inc., et al., is now final and
nonappealable, according to the Company's August 22, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 29, 2012.
In the second and third quarters of fiscal 2006, three purported,
but uncertified, class actions were filed against the Company, The
Home Depot FutureBuilder Administrative Committee and certain of
the Company's current and former directors and employees alleging
breach of fiduciary duty in violation of the Employee Retirement
Income Security Act of 1974 in connection with the Company's
return-to-vendor and stock option practices. These actions were
joined into one case in 2007, and the plaintiffs' joint amended
complaint sought certification as a class action, unspecified
damages, costs, attorney's fees and equitable and injunctive
relief. On June 7, 2010, the U.S. District Court for the Northern
District of Georgia (the "District Court") in Atlanta granted with
prejudice Home Depot's motion to dismiss plaintiffs' third amended
complaint. On June 28, 2010, plaintiffs filed a notice of appeal
with the U.S. Court of Appeals for the Eleventh Circuit (the
"Circuit Court"), and on May 8, 2012, the Circuit Court affirmed
the District Court's order dismissing plaintiffs' third amended
complaint with prejudice. The plaintiffs did not seek
reconsideration by the Circuit Court, and the time for them to
apply for review by the United States Supreme Court has now
passed. As a result, the Circuit Court's decision is now final
and nonappealable.
JOHNVINCE FOOD: Mulls Appeal of Peanut Vending Class Action Ruling
------------------------------------------------------------------
Chuck Howitt, writing for The Record, reports that a Kitchener
couple plans to appeal a court ruling that dealt a serious blow to
their lawsuit seeking damages for a failed peanut vending
operation.
David and Jennifer Zwaniga are the lead plaintiffs in a proposed
class-action lawsuit launched in March 2011 after they and more
than 100 other distributors suffered losses while trying to sell
peanuts from vending machines across the province.
In a ruling last month in the Ontario Superior Court of Justice in
Toronto, a judge dismissed the action against one of the
defendants in the case, Johnvince Food Distribution of Toronto.
Justice J. Perell ruled that Johnvince was not a partner or a
franchisor's associate in the program.
Johnvince was merely a supplier of Planters peanuts to Revolution
Food Technologies and had no control over the recruitment of
distributors or how the peanuts were to be sold, the justice said.
The ruling dealt a potentially fatal blow to the lawsuit, which
seeks damages of $20 million but has yet to be certified as a
class action.
Revolution, the other defendant in the case, has ceased operations
and the Orillia-area company has "no real assets," said the lawyer
acting for the plaintiffs in the case.
Money earned by Revolution largely went to cover expenses and to
the principal owners, but they did not get rich from the scheme,
Darcy Merker, a lawyer with the Toronto firm Thomson, Rogers, said
in an interview.
The Zwanigas and other plaintiffs plan to appeal Judge Perell's
ruling, he said.
"We're disappointed, as are our class members, that the court
didn't agree that Johnvince was legally responsible for the
consequences of the failed enterprise," Mr. Merker said.
The firm was set to file a notice of appeal last week, he said.
He expects the appeal to be heard in about nine months.
The Zwanigas invested $65,488 to purchase 51 vending machines,
peanuts and other startup services in the program, but after eight
months had generated only $2,100 in sales, their statement of
claim says.
They were told they could earn up to $89,000 a year by making just
four sales a day from each machine, the suit claims. None of the
allegations in the suit have been proved in court.
In his ruling, Justice Perell was not swayed by an affidavit
submitted by Rod Knight, president of Revolution, stating that
Johnvince had an active and controlling role in the peanut
distributorship program.
Mr. Knight submitted the affidavit after the Zwanigas agreed to
drop a second class-action suit against him and two other
directors of Revolution if they agreed to testify about
Johnvince's role in the program.
Under cross-examination, Mr. Knight said that Johnvince's
participation was limited to supplying product, the judge noted.
JPMORGAN CHASE: Judge Dismisses Termination Fee Class Action
------------------------------------------------------------
Sean McLernon, writing for Law360, reports that a New York federal
judge on Oct. 15 dismissed a putative class action accusing a
JPMorgan Chase Bank NA subsidiary of breach of contract for
illegally charging customers account -- minimum and early --
termination fees, ruling the contract at issue has a valid
arbitration clause.
U.S. District Judge Alison J. Nathan said named plaintiff Gerry
Wendrovsky will have to settle his dispute with Chase Paymentech
over charges for online credit card processing services as part of
a binding arbitration process.
LLOYDS BANKING: Investors Lose Class Action Over HBOS Deal
----------------------------------------------------------
Daniel Wilson, writing for Law360, reports that Lloyds Banking
Group PLC on Oct. 16 escaped a putative investor class action
alleging it had concealed the precarious position of Halifax Bank
of Scotland PLC prior to acquiring it in 2008, after U.S. District
Judge P. Kevin Castel ruled the plaintiffs had failed to prove any
fraud by the bank.
M-QUBE: Sued Over Unsolicited Monthly Subscriptions
---------------------------------------------------
Courthouse News Service reports that M-Qube and Mobile Messenger
prey on consumers by deceptively signing them up for monthly
subscriptions during Internet searches, and by phishing, a class
action claims in King County Court.
MERRILL LYNCH: Accused of Recording Calls Without Prior Consent
---------------------------------------------------------------
Abdullah Byanooni individually and on behalf of a class and
subclass of similarly situated individuals v. Merrill Lynch,
Pierce, Fenner & Smith; Bank of America Corporation; and Does 1
through 10, inclusive, Case No. CGC-12-523355 (Calif. Super. Ct.,
San Francisco Cty., August 17, 2012) arises out of the Defendants'
alleged policy and practice of recording and intercepting calls
made to the telephone number 877-653-4732 without the consent of
all parties.
The number connects callers with the help desk for "Merrill Edge,"
a brokerage service and advisory center owned and operated by Bank
of America and its wholly owned subsidiary, Merrill Lynch. Mr.
Byanooni contends that the Defendants' practice of recording
conversations without the consent of all parties violates
California's Invasion of Privacy Act.
Mr. Byanooni is a resident of California.
Bank of America is a Delaware corporation headquartered in
Charlotte, North Carolina. Merrill Lynch is a wholly owned
subsidiary of Bank of America incorporated in Delaware and also
headquartered in Charlotte, North Carolina. Mr. Byanooni is
ignorant of the true names and capacities of the Doe Defendants.
Merrill Lynch removed the lawsuit on October 11, 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. The Company says the removal is proper
because the aggregate amount in controversy exceeds $5 million.
The District Court Clerk assigned Case No. 3:12-cv-05270 to the
proceeding.
The Plaintiff is represented by:
Anthony J. Orshansky, Esq.
David H. Yeremian, Esq.
Justin Kachadoorian, Esq.
ORSHANSKY & YEREMIAN LLP
16133 Ventura Boulevard, Suite 1245
Encino, CA 91436
Telephone: (818) 205-1212
Facsimile: (818) 205-1616
E-mail: anthony@oyllp.com
david@oyllp.com
justin@oyllp.com
- and -
Steven L. Miller, Esq.
STEVEN L. MILLER, APC
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:
David S. Reidy
Matthew J. Brady
Ashley L. Shively
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone: (415) 543-8700
Facsimile: (415) 391-8269
E-mail: dreidy@reedsmith.com
mbrady@reedsmith.com
ashively@reedsmith.com
MICHAELS STORES: Awaits Approval of Wage Suit Settlement
--------------------------------------------------------
Michaels Stores, Inc. is awaiting court approval of its settlement
of a consolidated class action lawsuit in California, according to
the Company's August 23, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 28,
2012.
On February 12, 2010, the Company and its wholly owned subsidiary,
Aaron Brothers, was served with a lawsuit filed in the California
Superior Court in and for the County of Alameda by Jose Tijero, a
former assistant manager for Aaron Brothers, as a purported class
action proceeding on behalf of himself and all current and former
hourly retail employees employed by Aaron Brothers in California.
On July 12, 2010, Aaron Brothers was served with a lawsuit filed
in the California Superior Court in and for the County of Orange
by Amanda Godfrey, a former Aaron Brothers' hourly employee
alleging similar allegations as in the Tijero lawsuit. On October
15, 2010, the cases were consolidated against Aaron Brothers and
re-filed in the U.S. District Court Northern District of
California. These lawsuits allege that Aaron Brothers failed to
pay all wages and overtime, failed to provide its hourly employees
with adequate meal and rest breaks (or compensation in lieu
thereof), failed to timely pay final wages, unlawfully withheld
wages and failed to provide accurate wage statements and further
alleges that the conduct was in breach of various laws, including
California's unfair competition law. The plaintiff seeks
injunctive relief, compensatory damages, meal and rest break
penalties, waiting time penalties, interest, and attorneys' fees
and costs. On April 4, 2012, the Company reached a class-wide
settlement with plaintiffs that is subject to the Court's
approval. A preliminary hearing on the settlement was scheduled
for September 11, 2012. The settlement, if approved, will not
have a material effect on the Company's consolidated financial
statements, and has already been accrued as of July 28, 2012.
MICHAELS STORES: Bid to Dismiss "Jurgens" Suit Remains Pending
--------------------------------------------------------------
Michaels Stores, Inc.'s motion to dismiss a class action lawsuit
initiated by Jerome Jurgens remains pending, according to the
Company's August 23, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 28,
2012.
On June 19, 2012, Jerome Jurgens, a citizen of Missouri, filed a
purported class action proceeding against Michaels Stores, Inc. in
the 25th Judicial Circuit Court, Phelps County, Missouri, on
behalf of himself, Wendy Poepsel and all other similarly-situated
Missouri individuals who, on or after June 19, 2007, accessed the
Michaels Web site and had Flash cookies attach to their computers.
Plaintiffs allege that Michaels, through the use of its Web site,
makes use of cookies in order to ascertain user's web browsing
habits. Specifically, the plaintiffs allege violations of the
Missouri Computer Tampering and Merchandising Practices Act
statutes, as well as common law claims of conversion, trespass to
chattels, invasion of privacy and unjust enrichment are alleging
damages, penalties and fees not to exceed $5 million, inclusive of
costs and attorneys' fees. The Company filed a Motion to Dismiss
on August 8, 2012, and the motion is pending. The Company
believes it has meritorious defenses and intends to defend the
lawsuit vigorously. The Company does not believe the resolution
of this lawsuit will have a material effect on its consolidated
financial statements.
MICHAELS STORES: Defends Suits Over Song-Beverly Act Violations
---------------------------------------------------------------
Michaels Stores, Inc. continues to defend itself from class action
lawsuits alleging violations of the Song-Beverly Credit Card Act
of 1971, according to the Company's August 23, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 28, 2012.
On August 15, 2008, Linda Carson, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the
Superior Court of California, County of San Diego ("San Diego
Superior Court"), on behalf of herself and all similarly-situated
California consumers. The Carson lawsuit alleges that Michaels
unlawfully requested and recorded personally identifiable
information (i.e., her zip code) as part of a credit card
transaction. The plaintiff sought statutory penalties, costs,
interest, and attorneys' fees. The Company contested
certification of this claim as a class action and filed a motion
to dismiss the claim. On March 9, 2009, the Court dismissed the
case with prejudice. The plaintiff appealed this decision to the
California Court of Appeals for the Fourth District, San Diego.
On July 22, 2010, the Court of Appeals upheld the dismissal of the
case. The plaintiff appealed this decision to the Supreme Court
of California ("California Supreme Court"). On
September 29, 2010, the California Supreme Court granted the
plaintiff's petition for review; however, it stayed any further
proceedings in the case until another similar zip code case
pending before the court, Pineda v. Williams-Sonoma, was decided.
On February 10, 2011, the California Supreme Court ruled, in the
Williams-Sonoma case, that zip codes are personally identifiable
information and therefore the Song-Beverly Credit Card Act of
1971, as amended ("Song Act"), prohibits businesses from
requesting or requiring zip codes in connection with a credit card
transaction. On or about April 6, 2011, the Supreme Court
transferred the Carson case back to the Court of Appeals with
directions to the Court to reconsider its decision in light of the
Pineda decision. Upon reconsideration, the Court of Appeals
remanded the case back to the San Diego Superior Court on May 31,
2011.
Additionally, since the California Supreme Court decision on
February 10, 2011, three additional purported class action
lawsuits alleging violations of the Song Act have been filed
against the Company: Carolyn Austin v. Michaels Stores, Inc. and
Tiffany Heon v. Michaels Stores, Inc., both in the San Diego
Superior Court and Sandra A. Rubinstein v. Michaels Stores, Inc.
in the Superior Court of California, County of Los Angeles,
Central Division. The Rubinstein case was transferred to the San
Diego Superior Court. An order coordinating the cases has been
entered and plaintiffs filed a Consolidated Complaint on
April 24, 2012. A hearing on Plaintiffs Motion for Certification
is set for March 8, 2013. Plaintiffs seek damages, civil
penalties, common settlement fund recovery, attorney fees, costs
of lawsuit and prejudgment interest.
Also, relying in part on the California Supreme Court decision, an
additional purported class action lawsuit was filed on May 20,
2011 against the Company: Melissa Tyler v. Michaels Stores, Inc.
in the U.S. District Court-District of Massachusetts, alleging
violation of a similar Massachusetts statute, Mass. Gen. Laws ch.
93, section 105(a) ("Statute"), regarding the collection of
personally identifiable information in connection with a credit
card transaction. A hearing was held on October 20, 2011, on the
Company's Motion to Dismiss the claims. On January 6, 2012, the
Court granted the Company's Motion to Dismiss. However, the Court
certified questions of law to the Massachusetts Supreme Judicial
Court regarding the interpretation of the Statute. Briefing to
the Supreme Judicial Court is complete and a hearing on the matter
is expected to be scheduled in October 2012.
The Company says it intends to vigorously defend each of these zip
code claim cases and it is unable, at this time, to estimate a
range of loss, if any.
MICHAELS STORES: Faces "Barreras" Disability Discrimination Suit
----------------------------------------------------------------
Michaels Stores, Inc. is facing a class action lawsuit in
California alleging, among other things, disability
discrimination, according to the Company's August 23, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 28, 2012.
On July 24, 2012, Irene Barreras, a former employee, filed a
purported class action proceeding against Michaels Stores, Inc. in
the Superior Court of the State of California for the County of
Alameda ("Alameda Superior Court"), alleging unfair business
competition and unjust enrichment, wrongful termination,
disability discrimination, failure to prevent discrimination,
failure to engage in the interactive process, and failure to
accommodate mental or physical disabilities. The lawsuit is
brought on Ms. Barreras' behalf and on behalf of a class of all
retail store employees who were terminated from July 24, 2008, to
the present, allegedly due to Michaels refusal to engage in the
interactive process with, or provide accommodations to, the
terminated employees who did not meet the qualifications for
medical leaves. The plaintiff seeks injunctive relief,
compensatory damages, punitive damages, consequential damages,
general damages, interest, attorneys' fees and costs. The Company
intends to remove the lawsuit to the United States District Court,
Northern District of California. The Company believes it has
meritorious defenses and intends to defend the lawsuit vigorously.
The Company does not believe the resolution of the lawsuit will
have a material effect on its consolidated financial statements.
MICHAELS STORES: Plea to Dismiss "Henry" Suit Remains Pending
-------------------------------------------------------------
Michaels Stores, Inc.'s motion to dismiss a class action lawsuit
over discounts on framing products filed by William J. Henry
remains pending, according to the Company's August 23, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 28, 2012.
On April 30, 2012, William J. Henry, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the Court
of Common Pleas, Lake County, Ohio, on behalf of himself and all
similarly-situated Ohio consumers who purchased framing products
and/or services from Michaels during weeks where Michaels was
advertising a discount for framing products and/or services. The
lawsuit alleges that Michaels advertised discounts on its framing
products and/or services without actually providing a discount to
its customers. The plaintiff claims violation of Ohio law ORC
1345.01 et seq., breach of contract, unjust enrichment and fraud.
The plaintiff has alleged damages, penalties and fees not to
exceed $5 million, exclusive of interest and costs. The Company
filed a Motion to Dismiss on July 3, 2012, and the motion is
pending. The Company believes it has meritorious defenses and
intends to defend the lawsuit vigorously. The Company does not
believe the resolution of this lawsuit will have a material effect
on its consolidated financial statements.
MICHAELS STORES: Reaches Deal in Card Terminal Tampering Suits
--------------------------------------------------------------
Michaels Stores, Inc. disclosed in its August 23, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 28, 2012, that it reached in August 2012 a
tentative class-wide settlement in payment card terminal tampering
lawsuits.
On May 3, 2011, the Company was advised by the U.S. Secret Service
that they were investigating certain fraudulent debit card
transactions that occurred on accounts that had been used for
legitimate purchases in selected Michaels stores. A subsequent
internal investigation revealed that approximately 90 payment card
terminals in certain Michaels stores had been physically tampered
with, potentially resulting in customer debit and credit card
information to be compromised. The Company has since removed and
replaced approximately 7,100 payment card terminals comparable to
the identified tampered payment card terminals from the Company's
Michaels stores. The Company says it continues to cooperate with
various governmental entities and law enforcement authorities in
investigating the payment card terminal tampering, but it does not
know the full extent of any fraudulent use of such information.
On May 18, 2011, Brandi F. Ramundo, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the U.S.
District Court for the Northern District of Illinois, on behalf of
herself and all similarly- situated U.S. consumers. The Ramundo
lawsuit alleges that Michaels failed to take commercially
reasonable steps to protect consumer financial data, and was in
breach of contract and laws, including the Federal Stored
Communications Act and the Illinois Consumer Fraud and Deceptive
Practices Act. The plaintiff seeks compensatory, statutory and
punitive damages, costs, credit card fraud monitoring services,
interest and attorneys' fees. Subsequently two additional
purported class action lawsuits significantly mirroring the claims
in the Ramundo complaint were filed against the Company: Mary
Allen v. Michaels Stores, Inc., and Kimberly Siprut v. Michaels
Stores, Inc., both in the U.S. District Court for the Northern
District of Illinois. On June 8, 2011, an order was entered
consolidating these matters, which also provided for consolidation
of all related actions subsequently filed in or transferred to the
Northern District of Illinois. On July 8, 2011, a Consolidated
Amended Class Action Complaint styled In Re Michaels Stores Pin
Pad Litigation ("In Re Michaels Stores Consolidated Complaint")
was filed in the U.S. District Court for the Northern District of
Illinois. On August 8, 2011, the Company filed a Motion to
Dismiss the In Re Michaels Stores Consolidated Complaint. On
November 23, 2011, the Court dismissed the Stored Communications
Act and negligence claims under Illinois law, but denied the
motion as to the breach of implied contract and Illinois Consumer
Fraud and Deceptive Practices Act claims.
Four other substantially similar putative class action lawsuits
have also been filed. Jeremy Williams v. Michaels Stores, Inc.
and Fred Sherry v. Michaels Stores, Inc., were filed in the U.S.
District Court for the Northern District of Illinois. Sara
Rosenfeld and Ilana Soffer v. Michaels Stores, Inc. and Lori
Wilson v. Michaels Stores, Inc. were both filed in New Jersey
state court, removed to the United States District Court for the
District of New Jersey, and transferred to the United States
District Court for the Northern District of Illinois. The New
Jersey cases assert negligence and New Jersey Consumer Fraud Act
claims. All four cases are subject to the consolidation order.
The Court has held that Michaels is not required to respond to
those complaints.
On August 20, 2012, the Company reached a tentative class-wide
settlement with plaintiffs that is subject to the Court's
approval. The settlement, if approved, will not have a material
effect on the Company's consolidated financial statements.
MICHAELS STORES: Reaches Tentative Settlement in "Ragano" Suit
--------------------------------------------------------------
Michaels Stores, Inc. reached a tentative class-wide settlement in
August 2012 with respect to a class action lawsuit commenced by
Anita Ragano in California, according to the Company's
August 23, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 28, 2012.
On July 11, 2011, the Company was served with a lawsuit filed in
the California Superior Court in and for the County of San Mateo
by Anita Ragano, as a purported class action proceeding on behalf
of herself and all current and former hourly retail employees
employed by Michaels stores in California. The Company removed
the matter to the U.S. District Court for the Northern District of
California on August 9, 2011. The complaint was subsequently
amended to add an additional named plaintiff, Terri McDonald. The
lawsuit alleges that Michaels stores failed to pay all wages and
overtime, failed to provide its hourly employees with adequate
meal and rest breaks (or compensation in lieu thereof), failed to
timely pay final wages, unlawfully withheld wages and failed to
provide accurate wage statements and further alleges that the
conduct was in breach of various laws, including California's
unfair competition law. The plaintiffs seek injunctive relief,
compensatory damages, meal and rest break penalties, waiting time
penalties, interest, and attorneys' fees and costs.
On August 10, 2012, the Company reached a tentative class-wide
settlement with plaintiffs that is subject to the Court's
approval. The settlement, if approved, will not have a material
effect on the Company's consolidated financial statements.
NAT'L COLLEGIATE: Seeks Dismissal of O'Bannon Class Action
----------------------------------------------------------
Steve Berkowitz, writing for USA TODAY Sports, reports that
lawyers defending the NCAA in an anti-trust lawsuit related to the
use of college athletes' names and likenesses say the case should
not be certified as a class action, in part, because the
plaintiffs changed their legal strategy in a way that is unfair
and could mean the NCAA has wasted "significant time and money"
responding to the suit.
The NCAA and other defendants have spent millions of dollars on
the case, initially filed in May 2009, and the NCAA has had to
engage in a review of more than 650,000 documents, the
association's lawyers wrote in documents filed on Oct. 17 with a
U.S. District Court in California.
The NCAA's lawyers signaled their belief that the case, now set
for trial in June 2014, would be further delayed if the class
certification is granted because new plaintiffs would be added and
more pre-trial motions would be required.
Lawyers for former and current football and men's basketball
players are seeking damages from the NCAA; video-game maker
Electronic Arts; and Collegiate Licensing Co., the nation's
leading collegiate trademark licensing and marketing firm. The 16
named plaintiffs, including former basketball stars Ed O'Bannon,
Oscar Robertson and Bill Russell, say their names, images and
likenesses were used illegally by the NCAA.
The former players allege that the defendants violated anti-trust
law by conspiring to fix at zero the amount of compensation
athletes can receive for the use of their names, images and
likenesses in products or media while they are in school. They
also are challenging the NCAA's practice of requiring athletes to
sign forms under which they allegedly relinquish in perpetuity all
rights pertaining to the use of their names, images and likenesses
in ways including TV contracts, rebroadcasts of games, and video
game, jersey and other apparel sales.
In the Oct. 17 filings, the NCAA's lawyers make a series of
arguments, including a claim that the plaintiffs have recently
adopted legal theories for their case that are fundamentally
different from those cited in the plaintiffs' underlying
complaint. If the plaintiffs are allowed to pursue those "new"
theories, the defendants would have to "litigate an entirely new
case after three years of fact-finding and motion practice," the
NCAA's lawyers wrote.
Lawyers for the plaintiffs dispute the characterization of their
approach as "new," and the matter is scheduled for a class-
certification hearing in late November.
The NCAA's lawyers say the defendants overall "have spent millions
on discovery," the pre-trial process under which each party in a
lawsuit can obtain evidence from the opposing party, including
significant money "on topics that plaintiffs no longer intend to
pursue on behalf of the class."
Specifically, NCAA attorney Robert J. Wierenga wrote, the NCAA
identified 658,705 "potentially responsive documents" for the
case, "then engaged in manual review of the 658,705 documents,
reviewing for both responsiveness and privilege." Mr. Wierenga
added that the NCAA ultimately produced 91,852 documents totaling
600,299 pages.
"Now . . . much of this work may prove to be wasted," he wrote.
When the plaintiffs' lawyers filed their motion for class
certification on Aug. 31, that filing indicated for the first time
that they are seeking not only potentially billions of dollars in
damages, but also a system under which money generated by the
licensing and sale of current athletes' names, images and
likenesses would be held temporarily held in trust until the end
of their college playing careers.
Documents in support of the motion and the financial awards
subsequently have become public, including parts of the NCAA's
multimedia and marketing rights contract for the Division I men's
basketball tournament that were placed in the court file earlier
this week.
Certification of the suit as a class action would open the case to
other qualifying litigants, but the NCAA lawyers warned that if
what they term the plaintiffs' "new theory" of the case goes
forward, "the named plaintiffs will be prejudiced by additional
discovery and motion practice, the costs associated with prolonged
litigation, and by the additional time that it will take to have
their claims adjudicated."
If class certification is denied, the case still can proceed for
the current plaintiffs. The NCAA lawyers wrote that the
association "is not asking, at this time, that the named
plaintiffs' claims be limited or dismissed."
NAT'L FOOTBALL: Saints Fan Files $80-Mil. Class Action
------------------------------------------------------
Christie Walton, writing for Fox8 Live, reports that fed up with
what the bounty scandal suspensions have done to the Saints
season, a fan files a class action lawsuit against the NFL and
Commissioner Roger Goodell in Federal Court in New Orleans.
David Mancina is the lead plaintiff in the legal action.
The suit maintains suspensions of coaches and players under the
league's severe bounty punishments have diminished the value of
fans' tickets and their enjoyment of the game.
The suit says "Complainant, and the class, purchased their tickets
with the representation, expectation, from the Commissioner and
the League that the Saints would be capable of competitively
fielding a contending team comprised of the finest athletes, and
the best coaches, under contract with the New Orleans Saints . .
."
The suit alleges the League took action and revealed the
investigation after fans had already paid for their tickets for
the season.
The suit also questions the NFL's investigation of the alleged
misconduct.
The lawsuit asks for $80 million dollars in damages, an amount
Mr. Mancina says represents the value of all season tickets.
According to a court filing, the plaintiff is asking for a trial
by jury. The Wiedemann Law Firm is handling the case for Mr.
Mancina.
NVIDIA CORP: Appeal in Securities Suit Remains Pending
------------------------------------------------------
NVIDIA Corporation disclosed in its August 22, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 29, 2012, that the appeal from the dismissal of
a consolidated securities class action lawsuit has been fully
briefed and is now pending.
In September 2008, three putative securities class actions, or the
Actions, were filed in the United States District Court for the
Northern District of California arising out of the Company's
announcements on July 2, 2008, that it would take a charge against
cost of revenue to cover anticipated costs and expenses arising
from a weak die/packaging material set in certain versions of the
Company's previous generation media and communications processor,
or MCP, and graphics processing unit, or GPU, products and that
the Company was revising financial guidance for the Company's
second quarter of fiscal year 2009. The Actions purport to be
brought on behalf of purchasers of NVIDIA stock and assert claims
for violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, or the Securities Exchange Act.
On October 30, 2008, the Actions were consolidated under the
caption In re NVIDIA Corporation Securities Litigation, Civil
Action No. 08-CV-04260-JW (HRL). Lead Plaintiffs and Lead
Plaintiffs' Counsel were appointed on December 23, 2008. On
February 6, 2009, co-Lead Plaintiff filed a Writ of Mandamus with
the Ninth Circuit Court of Appeals challenging the designation of
co-Lead Plaintiffs' Counsel. On February 19, 2009, co-Lead
Plaintiff filed with the District Court, a motion to stay the
District Court proceedings pending resolution of the Writ of
Mandamus by the Ninth Circuit. On February 24, 2009, Judge Ware
granted the stay. On November 5, 2009, the Court of Appeals
issued an opinion reversing the District Court's appointment of
one of the lead plaintiffs' counsel, and remanding the matter for
further proceedings. On December 8, 2009, the District Court
appointed Milberg LLP and Kahn Swick & Foti, LLC as co-lead
counsel.
On January 22, 2010, Plaintiffs filed a Consolidated Amended Class
Action Complaint for Violations of the Federal Securities Laws,
asserting claims for violations of Section 10(b), Rule 10b-5, and
Section 20(a) of the Securities Exchange Act. The consolidated
complaint sought unspecified compensatory damages. The Company
filed a motion to dismiss the consolidated complaint in March 2010
and a hearing was held on June 24, 2010, before Judge Seeborg. On
October 19, 2010, Judge Seeborg granted the Company's motion to
dismiss with leave to amend. On December 2, 2010, co-Lead
Plaintiffs filed a Second Consolidated Amended Complaint. The
Company moved to dismiss the Second Consolidated Amended Complaint
on February 14, 2011. Following oral argument, on October 12,
2011, Judge Seeborg granted the Company's motion to dismiss
without leave to amend, and on November 8, 2011, Plaintiffs filed
a Notice of Appeal to the Ninth Circuit. The appeal has been
fully briefed, but the Ninth Circuit has not yet set a hearing
date.
NVIDIA CORP: Appeals From NVIDIA GPU Litigation Deal Pending
-------------------------------------------------------------
Appeals from final approval of NVIDIA Corporation's settlement of
a consolidated consumer class action lawsuit relating to weak
die/packaging material set in certain versions of the Company's
previous generation products used in notebook configurations
remain pending, according to the Company's August 22, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 29, 2012.
In September, October and November 2008, several putative consumer
class action lawsuits were filed against the Company, asserting
various claims arising from a weak die/packaging material set in
certain versions of the Company's previous generation products
used in notebook configurations. On
February 26, 2009, the various lawsuits were consolidated in the
United States District Court for the Northern District of
California, San Jose Division, under the caption "The NVIDIA GPU
Litigation." On March 2, 2009, several of the parties filed
motions for appointment of lead counsel and briefs addressing
certain related issues. On April 10, 2009, the District Court
appointed Milberg LLP lead counsel. On May 6, 2009, the
plaintiffs filed an Amended Consolidated Complaint, alleging
claims for violations of California Business and Professions Code
Section 17200, Breach of Implied Warranty under California Civil
Code Section 1792, Breach of the Implied Warranty of
Merchantability under the laws of 27 other states, Breach of
Warranty under the Magnuson-Moss Warranty Act, Unjust Enrichment,
violations of the New Jersey Consumer Fraud Act, Strict Liability
and Negligence, and violation of California's Consumer Legal
Remedies Act.
After extensive motion practice and litigation, plaintiffs on
December 14, 2009, filed a Second Amended Consolidated Complaint
seeking unspecified damages and asserting claims for violations of
California Business and Professions Code Section 17200, Breach of
Implied Warranty under California Civil Code Section 1792, Breach
of Warranty under the Magnuson-Moss Warranty Act, violations of
the New Jersey Consumer Fraud Act, Strict Liability and
Negligence, and violation of California's Consumer Legal Remedies
Act.
On July 16, 2010, the parties filed a stipulation with the
District Court advising that, following mediation they had reached
a settlement in principle in The NVIDIA GPU Litigation. The
settlement in principle was subject to certain approvals,
including final approval by the court. As a result of the
settlement in principle, and the other estimated settlement, and
offsetting insurance reimbursements, NVIDIA recorded a net charge
of $12.7 million to sales, general and administrative expense
during the second quarter of fiscal year 2011. In addition, a
portion of the $181.2 million of additional charges the Company
recorded against cost of revenue related to the weak die/packaging
set during the second quarter of fiscal year 2011, relates to
estimated additional repair and replacement costs related to the
implementation of these settlements.
On August 12, 2010, the parties executed a Stipulation and
Agreement of Settlement and Release. On September 15, 2010, the
Court issued an order granting preliminary approval of the
settlement and providing for notice to the potential class
members. The Final Approval Hearing was held on December 20,
2010, and on that same day the Court approved the settlement and
entered Final Judgment over several objections. In January 2011,
several objectors filed Notices of Appeal of the Final Judgment to
the United States Court of Appeals for the Ninth Circuit.
NVIDIA CORP: Plaintiff Refused to Amend "Granfield" Complaint
-------------------------------------------------------------
The plaintiff in the class action lawsuit titled Granfield v.
NVIDIA Corp. indicated in August 2012 that he would not be filing
an amended complaint, according to the Company's August 22, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended July 29, 2012.
On July 22, 2011, a putative class action titled Granfield v.
NVIDIA Corp. was filed in federal court in Massachusetts asserting
claims for breach of implied warranties arising out of the weak
die/packaging material set, on behalf of a class of consumers
alleged to not be covered by the settlement approved by the
California court in The NVIDIA GPU Litigation. On
November 3, 2011, the action was transferred to the Northern
District of California, San Francisco Division, based upon
stipulation of the parties. On December 30, 2011, Plaintiff filed
a First Amended Complaint asserting claims for violation of
California Consumers Legal Remedies Act and Unfair Competition
Law. On March 19, 2012, Plaintiff filed a Second Amended
Complaint asserting claims for California Consumers Legal Remedies
Act and Unfair Competition Law violations, Breach of Implied
Warranty, and violations of the Massachusetts consumer protection
statutes. NVIDIA filed a motion to dismiss the Second Amended
Complaint on April 12, 2012.
On July 12, 2012, the District Court dismissed six of the seven
asserted causes of action with prejudice, allowing only one cause
of action for violation of the Massachusetts consumer protection
statute to continue, and instructed Plaintiff to file an amended
complaint consistent with its Order. On August 15, 2012, Plaintiff
indicated that he would not be filing an amended complaint.
NYSTAR: Maurice Blackburn Mulls Asbestos Class Action
-----------------------------------------------------
Sarah Martin, writing for The Australian, reports that class-
action lawyers Maurice Blackburn have spoken to Port Pirie
residents about suing metals company Nyrstar, comparing the toxic
lead dust that pollutes the town with asbestos exposure.
Principal Damian Scattini, who launched a class action against
Xstrata's Mount Isa mine in Queensland over lead poisoning, said
Port Pirie residents who had suffered brain damage as a result of
lead pollution were well placed to sue for damages.
"It seems like there are grounds for an action and if there are
sufficient common factors, there may well be grounds for a class
(action)," Mr. Scattini said.
Port Pirie resident Aarron Fuller said he wanted the company to
take responsibility for the impact its lead emissions had on the
town, 200km north of Adelaide.
Exposed as a child to lead levels above 40 micrograms a decilitre,
Mr. Fuller suffered at school as a result of behavioral problems
linked to lead poisoning. He now has an 18-month-old son,
Benjamin, who he wants to protect from lead poisoning.
"I don't want BJ to have any lead problems.
"I don't want him to have the problems at school I had," he said.
Aarron's mother, Cindy Fuller, said Nyrstar needed to take
responsibility for the effect the smelter's emissions had on her
family. She said she had spoken to Mr. Scattini about taking
legal action and would send him documentation of Aarron's medical
history.
"If they are going to pollute the area and if they are going to
cause any illness or problems, they should be responsible," she
said. "The company knows what they have done wrong.
"The community has got to stand up for itself."
Mr. Scattini said lead exposure should be viewed in the same way
as asbestos, given the harm caused by long-term exposure.
"Lead has no business being in the bodies of young children, and
it is children with growing brains that are most at risk," he
said.
Mr. Scattini said even if Nyrstar had been complying with
government regulations, it could still be liable for the harm
caused to the community.
"If it is their smelter and their lead that is getting into these
children, it is their responsibility," he said.
"What we would ideally like to see them do is make good the harm
they have done to individuals, clean up after themselves and make
sure that more children aren't exposed."
A spokeswoman for Nyrstar declined to comment.
OCZ TECHNOLOGY: Two Law Firms File Class Action in California
-------------------------------------------------------------
Block & Leviton LLP and Cotchett, Pitre & McCarthy, LLP on Oct. 17
disclosed that they filed a class action lawsuit against OCZ
Technology Group Inc. OCZ's former CEO, Ryan M. Peterson, and its
CFO, Arthur F. Knapp, are also named as defendants. The lawsuit,
captioned Leang v. OCZ Technology Group Inc. et al., Case No. 12-
cv-05329, is pending in the United States District Court for the
Northern District of California.
The lawsuit alleges violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, on behalf of investors who purchased or otherwise
acquired OCZ's common stock from July 10, 2012 through October 10,
2012.
On Wednesday, October 10, 2012, the Company issued a press release
announcing that its financial results for the second quarter of
fiscal year 2013, which ended August 31, 2012, would be delayed.
The press release also disclosed that the Company's second quarter
revenue will be "materially lower" than its previous guidance
released on September 5, 2012, which was in the range of $110 to
$120 million, "principally due to the impact of customer incentive
programs," and that the Company expects to report a "significant
net loss."
The complaint asserts that OCZ, through its officers and
directors, made false and misleading statements and omissions
regarding the Company's internal financial controls and its
accounting for certain customer incentive programs. These
statements are alleged to have been false and misleading when made
because: (i) the Company was suffering from grossly deficient
internal controls and therefore was susceptible to accounting
fraud; (ii) Defendants failed to disclose the true nature of the
customer incentive programs and the associated accounting
irregularities; (iii) the Company's financial statements were
inaccurate in numerous material respects; and (iv) Defendants
failed to disclose the risks that the lack of internal controls
and improper accounting of payments posed to Company revenue.
Shortly after the release of this news, shares of OCZ dropped over
50 percent from a close of $3.15 on October 9, 2012 to close at
$1.47 per share on October 12, 2012.
If you are a member of the Class, you may, no later than December
10, 2012, request that the court appoint you as Lead Plaintiff for
the Class. You may contact the attorneys at Block & Leviton to
discuss your rights in the case. You may also retain counsel of
your choice and you need not take any action at this time to be a
class member. If you have any questions regarding your rights
related to this action or have information relevant to the claims
asserted in the complaint, please contact attorney Steven Harte of
Block & Leviton LLP at (617) 398-5600 or steven@blockesq.com
PREMIERE LOAN: Sued Over Worthless Foreclosure Rescues
------------------------------------------------------
Courthouse News Service reports that Premiere Loan Services bosses
Raed Farraj and Nathaniel Genis used a "statewide network of
cohorts" to defraud elderly people and foreign language-speakers
of thousands of dollars for worthless "foreclosure rescues," a
class action claims in Superior Court.
QUESTAR CAPITAL: Faces Shareholder Class Action
-----------------------------------------------
Courthouse News Service reports that Questar Capital sold $20
million of securities issued by Diversified Business Services &
Investments, a defunct Ponzi scheme, and took $2.2 million in
commissions from it, a shareholder claims in a federal class
action.
RAYMOND-HADLEY: Expands Recall of Wegmans Gluten Free Brownie Mix
-----------------------------------------------------------------
The Raymond-Hadley Corp. of Spencer, New York, is expanding the
recall of Wegmans Gluten Free Double Chocolate Brownie Mix 17.2OZ,
UPC 077890283363, to include possible contamination of undeclared
allergen Pecans (Tree Nuts).
The Raymond-Hadley Corp. of Spencer, New York, is recalling
Wegmans Gluten Free Double Chocolate Brownie mixes because they
may be contaminated with the undeclared allergen Milk and Pecans.
People who have an allergy to milk or pecans run the risk of
serious, or life-threatening allergic reaction if they consume
these products.
Wegmans 17.2oz Double Chocolate Brownie mixes were distributed in
the United States through the Wegmans retail stores.
The mixes are packaged under the Wegmans brand in chipboard boxes
with the following markings on the packages: ENJOY BY OCT 30 2014
through MAR 17 2014. A picture of the recalled products' label is
available at: http://www.fda.gov/Safety/Recalls/ucm324823.htm
The voluntary recall was initiated after it was discovered that
chocolate chunks used in the mix were received in packaging that
did not reveal the presence of the allergen milk and pecans.
Subsequent investigation confirms milk and pecans as a possible
cross-contaminate in the chocolate chunks used in the brownie
mixes.
As of October 12, 2012, two reports of rash have been received.
Consumers who have purchased the product listed above are urged to
return it to Wegmans for a full refund. Consumers with questions
may contact the manufacturer at 1-800-252-2220, Monday - Friday
8:00 a.m. - 4:30 p.m. Eastern Daylight Time.
SAVANNAH BANCORP: Faces Acquisition-Related Suit in New York
------------------------------------------------------------
Rational Strategies Fund, on Behalf of Itself and All Others
Similarly Situated v. Robert H. Demere, Jr., Berryman W. Edwards,
Jr., J. Curtis Lewis III, M. Lane Morrison, James Toby Roberts,
Sr., James W. Royal, Sr., Russell W. Carpenter, Clifford H. Dales,
Aaron M. Levy, Jerry O'Dell Keith, Francis A. Brown, L. Carlton
Gill, John C. Helmken II, Savannah Bancorp, Inc. and SCBT
Financial Corporation, Case No. 653566/2012 (N.Y. Super. Ct.,
October 11, 2012) is a shareholder class action lawsuit on behalf
of the Plaintiff and the other public stockholders of Savannah
common stock.
The lawsuit arises from disclosure claims related to a
distribution of a registration statement to Rational Strategies
and other Savannah shareholders relating to an agreement pursuant
to which SCBT will acquire Savannah (the "Sale Agreement").
Specifically, the Plaintiff challenges the Defendants' efforts to
conceal material information in the registration statement that
Savannah's directors caused to be filed with the SEC jointly with
SCBT and made available to Savannah's shareholders via the SEC's
Web site on September 28, 2012, in connection with recommending
that the Plaintiff and the Company's other public shareholders
vote their shares in support of the Sale Agreement (the
"Registration Statement").
Rational Strategies, a resident of New York, is the owner of
shares of Savannah common stock and has continuously owned such
shares since August 2009.
Savannah is a publicly traded Georgia corporation headquartered in
Savannah, Georgia. The Company is a bank holding company for The
Savannah Bank, N.A., Bryan Bank & Trust ("Bryan Bank"), and Minis
& Co., Inc. The Individual Defendants are directors and officers
of the Company. SCBT is a publicly traded bank holding company
incorporated under South Carolina law and headquartered in
Columbia, South Carolina.
The Plaintiff is represented by:
Richard B. Brualdi, Esq.
Gaitri Boodhoo, Esq.
David Titus, Esq.
THE BRUALDI LAW FIRM, P.C.
29 Broadway, Suite 2400
New York, NY 10006
Telephone: (212) 952-0602
Facsimile: (212) 952-0608
E-mail: rbrualdi@brualdilawfirm.com
gboodhoo@brualdilawfirm.com
dtitus@brualdilwfirm.com
SOUTH BAY: Sued For Not Paying All Hours Worked by Therapists
-------------------------------------------------------------
Renee Gibson, on behalf of herself and all others similarly
situated v. South Bay Mental Health Center, Inc., and Peter J.
Scanlon, Case No. SUCV2012-03637 (Mass. Super. Ct., October 2,
2012) is brought on behalf of staff therapists, who have worked
for the Defendants.
The Defendants offer counseling services to low-income and
disadvantaged individuals throughout Massachusetts, and they
employ staff therapists to provide these counseling services, Ms.
Gibson says. However, she contends, the Defendants do not pay
their staff therapists for all hours that they work, as required
by the Massachusetts Payment of Wages Law.
Ms. Gibson is a resident of Hyde Park, Massachusetts. From
approximately September 2010 until approximately May 2012, she was
employed as a staff therapist by the Defendants.
South Bay is a domestic corporation with its principal office in
Brockton, Massachusetts. Mr. Scanlon is a resident of Easton,
Massachusetts. He is the founder, president, treasurer,
secretary, and director of South Bay. The Defendants operate
offices in several cities and towns throughout Massachusetts.
The Plaintiff is represented by:
Hillary Schwab, Esq.
Brant Casavant, Esq.
LICHTEN & LISS-RIORDAN, P.C.
100 Cambridge Street, 20th Floor
Boston, MA 02114
Telephone: (617) 994-5800
E-mail: hschwab@llrlaw.com
bcasavant@llrlaw.com
TOSHIBA: Consumers Have Until Dec. 6 to File LCD Settlement Claims
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Zelle Hofmann Voelbel & Mason LLP and the Alioto Law Firm on
Oct. 18 issued a statement regarding the $1.1 billion LCD
Settlement Fund.
Ten leading electronics manufacturers have settled lawsuits
involving an illegal conspiracy to raise prices for the LCD flat
panel screens used in televisions, monitors, and laptop computers.
The class action Settlements total approximately $1.1 billion and
provide cash back to consumers and businesses that bought widely
used LCD (thin-film transistor liquid crystal display) screens.
Eligible consumers will be able to collect $25, $100, $200 or more
by answering a few simple questions about the number of LCD flat
screen TVs, monitors, and laptops they bought from 1999 to 2006.
The exact amount of each payment will depend upon the number of
products purchased and the number of claims filed. No receipts or
other documents are required for small claims. Consumers have
until December 6, 2012 to file a claim. Claims can be filed online
at http://www.LCDclass.com
Cash is available to consumers and businesses in the District of
Columbia and the following 24 states: Arizona, Arkansas,
California, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Nevada, New Mexico,
New York, North Carolina, North Dakota, Rhode Island, South
Dakota, Tennessee, Vermont, West Virginia and Wisconsin.
The $1.1 billion Settlement is the largest antitrust all-cash
class action recovery ever obtained for consumers, who bought
these electronic products indirectly from retailers and resellers,
and not directly from the original manufacturer of the LCD flat
panel screens.
Co-Lead Class Counsel Joseph M. Alioto says: "This class action
against international price fixers allows individual class members
to recover a significant portion of what was illegally taken from
them and acts as a warning to large corporations that price fixing
on consumer electronic products will be successfully prosecuted."
Co-Lead Class Counsel, Francis O. Scarpulla comments that:
"Consumers and businesses that overpaid for these products can get
significant cash through a claims process that has been designed
to make it quick and easy to file a claim online. People should
act now before the December 6th deadline."
The Settling Defendants are Japanese firms Hitachi, Sharp and
Toshiba, Korean firms Samsung and LG Electronics and Taiwanese
firms AU Optronics, Chunghwa Picture Tubes, HannStar Display Corp.
and Chi Mei Optoelectronics.
To get more information about the Settlements or to file a claim
online, please visit http://www.LCDclass.comor call the number 1-
855-225-1886.
UNITED STATES: Class Challenges Limited Evidentiary Privilege
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Philip A. Janquart at Courthouse News Service reports that the
government should not get to use limited evidentiary privilege to
duck liability for the "warrantless" surveillance of U.S.
citizens, a class says.
Lead named plaintiff Virginia Shubert says that the government
actively violates the Fourth Amendment rights of its citizens, as
well as the Foreign Intelligence Surveillance Act (FISA), under
the Terrorist Surveillance Program (TSP) authorized by then
President George W. Bush.
After the United States Court of Appeals for the 9th Circuit
looked at the case in December 2011, Ms. Shubert filed an amended
complaint in May, and the National Security Administration
countered with a third motion to dismiss last month.
Ms. Shubert warned U.S. District Judge Jeffrey White in San
Francisco to affirm that the class has a valid legal claim.
"The government is engaged in a massive, criminal, domestic spying
Dragnet that monitors the content of millions of telephone and
Internet communications of ordinary Americans," according to the
opposition brief authored by Emery Celli attorney Ilann Maazel.
"Now, for the third time in this case, the government seeks to
transform a limited, common law, evidentiary privilege into
sweeping immunity for its own unlawful conduct. If defendants
were to prevail, no court could ever stop the government from
spying upon millions of innocent Americans, even if unlawful,
unconstitutional and criminal."
Federal officials are overreaching in interpreting the "states
secrets" privilege as able to provide immunity against litigation
stemming from its actions, the brief states.
"But none of the few, narrow Supreme Court state secret cases of
the past 223 years supports defendants' dangerous view,"
Mr. Maazel wrote. "To the contrary, the government's radical
extension of the state secrets privilege defies over two centuries
of American jurisprudence: law that established the constitutional
right and duty of Article III court to 'say what the law is,' the
right to be free from unreasonable searches and seizures, and upon
'military intrusion into civilian affairs,' and the right to
judicial forum to assert constitutional rights."
Granting immunity would allegedly cause massive and unprecedented
government invasions of privacy.
"The government's state secrets argument is perhaps as frightening
as the dragnet itself," Mr. Maazel wrote. "Under this argument, a
secret program by the military to put a camera in every American's
bedroom could not be revealed, if to reveal it might harm national
security. A secret program by the president to abduct and torture
Americans could not be revealed, much less enjoined, if to reveal
it might harm national security. This is not some parade of
horribles; it is the government's position in this case. Article
III courts exist to prevent such unchecked power."
Ms. Shubert says the wiretapping is not limited to suspected al-
Qaida operatives or terrorist sympathizers.
The NSA continues to intercept "millions of phone calls and email
of ordinary Americans, including plaintiffs, with no connection to
Al Qaeda, terrorism or any foreign government," the brief states.
"There is nothing speculative about the spying program. The
existence of, and purported justifications for, the dragnet are
public."
There are even as many as nine legal opinions in support of the
program authored by the Department of Justice, Office of Legal
Counsel, according to the filing.
FISA pre-empts the state-secrets privilege, which does not
specifically apply to the current case anyway, the class says.
"The SAC alleges a wholesale military intelligence takeover of the
phones and email," Mr. Maazel wrote. "The government's alleged
conduct is far more sweeping and intrusive than that involved in
any of the six Supreme Court state secrets privilege cases in the
history of the country."
Of the six, the brief cites five that involved plaintiffs who
"volunteered to work or contract with the United States military
or intelligence." The sixth allegedly involved the potential
presence of nuclear weapons on a Naval facility.
"No case involved the United States military reaching into the
heartland of the country, much less as part of a dragnet
representing one of the most sweeping constitutional violations in
American history," Mr. Maazel wrote.
Calling the surveillance program a "crime" in violation of FISA
and the Constitution, the class says that separation-of-powers
principles "require[]" the court to review the government's
"unconstitutional" conduct.
It also asserts that "the president cannot use the state secrets
privilege to create immunity from suit for unconstitutional acts."
"The president offers no limiting principle for this breathtaking
extension of the state secrets privilege," Ms. Shubert wrote,
citing the 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer.
"Any unconstitutional conduct, any violation of law -- no matter
how many people it affects, no matter how violative of fundamental
rights -- cannot be stopped, or even revealed, if its revelation
might harm national security. Such an awesome power 'either has
no beginning or it has no end. If it exists, it need submit to no
legal restraint . . . [it may not] plunge us straightway into
dictatorship, but it is at least a step in the right direction.'"
Mr. Maazel is based in Manhattan.
A copy of the Plaintiffs' Opposition to Defendants' Third Motion
to Dismiss and for Summary Judgment in Shubert, et al. v. Barack
Obama, et al., Case No. 07-cv-00693 (N.D. Calif.), is available
at:
http://www.courthousenews.com/2012/10/19/wiretap.pdf
The Plaintiffs are represented by:
Ilann M. Maazel, Esq.
Matthew D. Brinckerhoff, Esq.
Adam R. Pulver, Esq.
EMERY CELLI BRINCKERHOFF & ABADY LLP
75 Rockefeller Plaza, 20th Floor
New York, NY 10019
Telephone: (212) 763-5000
VERSANT: Being Sold to Unicom for Too Little, Suit Claims
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Courthouse News Service reports that Versant is selling itself too
cheaply through an unfair process to Unicom, for $32 million or
$11.50 a share, shareholders say in a class action in San Mateo
County Court.
WILHELMINA: Models File Class Action Over Unpaid Royalties
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Leonard Greene, writing for New York Post, reports that New York's
biggest modeling agencies have been cheating their beauties out of
royalties for years, despite pushing their pictures to advertising
agencies, a new lawsuit charges.
Top-notch agencies such as Wilhelmina, Ford and Elite Models
Management gave inaccurate financial statements, concealed funds
received on their clients' behalf, and used models' money for
other expenses, the court papers say.
The models lost a collective $20 million to the agencies' shoddy
accounting practices, the suit alleges.
"Each of the modeling agencies has money in its accounts that
rightfully belongs to models, that is being used by the modeling
agencies and which has not been paid to models," the lawsuit says.
It's the second class-action suit brought against the modeling
agencies in the past decade.
Leading the fight is Louisa Raske, a 5-foot-9 blonde who has
appeared on the cover of Brides magazine.
The suit claims models were told they would "never again model in
New York" if they sued the agencies. Contract language even
waived models' right to sue, the papers said.
WMS INDUSTRIES: "Conlee" Suit Dismissed Without Prejudice
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An Illinois court dismissed without prejudice a class action
lawsuit filed by Wayne C. Conlee against WMS Industries Inc.,
according to the Company's August 21, 2012, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On May 25, 2011, a putative class action was filed against the
Company and certain of its executive officers in the U.S. District
Court for the Northern District of Illinois by Wayne C. Conlee
(the "Conlee lawsuit"). On October 13, 2011, the lead plaintiff
filed an amended complaint in the Conlee lawsuit. As amended, the
lawsuit alleges that, during the period from September 21, 2010,
to August 4, 2011, (the date the Company announced its fiscal 2011
financial results), the Company made material misstatements and
omitted material information related to its fiscal year 2011
guidance. Plaintiff seeks to certify a class of stockholders who
purchased stock between these dates. The lawsuit specifically
alleges violations of (i) Section 10(b) of the Securities Exchange
Act of 1934, as amended (the "34 Act"), and Rule 10b-5 promulgated
thereunder and (ii) Section 20(a) of the 34 Act. The amended
complaint seeks unspecified damages. The Company filed a motion
to dismiss the amended complaint on December 8, 2011, and, on July
25, 2012, the Court granted the Company's motion without prejudice
and allowed Plaintiff an opportunity until September 12, 2012, to
file a further amended complaint.
WMS Industries Inc. is engaged in the design, manufacture and sale
of coin-operated and home video games, pinball and novelty games
and video lottery terminals and gaming devices. The Company is
headquartered in Waukegan, Illinois.
XL FOODS: Faces Two Lawsuits Over Contaminated Beef
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James Keller, writing for Canadian Press, reports that two British
Columbians who claim they fell ill after eating E. coli
contaminated beef from XL Foods have filed lawsuits, including a
class-action, adding to the legal problems facing a company that
is still struggling to bring its troubled plant in southeastern
Alberta back online.
The recall at XL Foods has grown to include 1,800 products at 33
retail chains across Canada, and at least 15 people in four
provinces have become ill from a strain of E. coli linked to the
plant, located in Brooks, Alta.
Lawsuits targeting XL Foods and its parent company, Nilsson Bros.
Inc., have already been filed in several provinces, including
class-action cases in Alberta, Saskatchewan, Ontario and Quebec,
and illnesses linked to the plant have been reported as far away
as Newfoundland.
The B.C. court cases include a lawsuit filed on behalf of 15-year-
old Cody Farmer, whose statement of claim says he fell ill after
eating beef from the XL Foods plant in mid-September.
Farmer's statement of claim, filed on Oct. 16, says the boy
suffered a range of symptoms including diarrhea, inflamed bowels
and internal bleeding, and he required surgery during his illness.
"The contamination of the beef by the E. coli occurred solely as
the result of the defendant's negligence," says the statement of
claim, filed in B.C. Supreme Court.
Another lawsuit involves Erin Thornton, a Vancouver woman who is
the first plaintiff in what could be a class-action lawsuit for
British Columbians affected by the recall.
Ms. Thornton's statement of claim, filed Oct. 12, seeks to launch
a class-action case on behalf of anyone in British Columbia who
bought recalled meat, whether they ate it and became ill or simply
threw it out to avoid getting sick.
The statement of claim says Ms. Thornton spent four days in
hospital after eating ground beef from the XL Foods plant before
the meat was recalled.
The law firm working on Ms. Thornton's case, Siskinds of London,
Ont., has already filed class-action cases in other provinces.
Daniel Bach, a lawyer with the firm, said it's easier under
Canadian law to file class-action cases in each province rather
than attempting to peruse a single lawsuit that stretches across
the entire country.
Ms. Thornton will serve as the representative plaintiff, but the
statement of claim seeks to include anyone who fell ill, customers
who threw out recalled meat and now want a refund, and businesses
who issued refunds to customers and want to be compensated by XL
Foods.
The statement of claim alleges XL Foods failed to ensure meat from
the plant was safe and failed to take adequate steps once the E.
coli contamination was discovered.
"The defendant, XL Foods Inc., was negligent in the supply of beef
products," says the statement of claim.
"The defendant, XL Foods Inc., did not meet industry standards,
including those for testing and sampling of meat products for
possible E. coli contamination."
The allegations in both cases have yet to be tested in court. XL
Foods has not filed a statement of defense in either case and
could not be reached for comment.
E. coli was first detected in the plant on Sept. 4, but it took 12
days for the first of numerous public alerts to be issued. The
plant has been shut out of the U.S. market since Sept. 13, but the
Canadian Food Inspection Agency didn't order the plant closed
until Sept. 27.
Roughly 2,200 workers have been out of work during the recall and
it's not clear when they will be asked to return. About 800 were
recalled temporarily on Tuesday to finish processing beef
carcasses as part of a Canadian Food Inspection Agency assessment.
The agency has said it expects to complete a report on its
findings, including recommendations, before the beginning of next
week.
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Copyright 2012. All rights reserved. ISSN 1525-2272.
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