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/raid1/www/Hosts/bankrupt/CAR_Public/121115.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 15, 2012, Vol. 14, No. 227 Headlines AK STEEL: Hearing on Zanesville Retirees Suit Deal on Dec. 21 AMERICAN ELECTRIC: Appeal From CO2 Suit Dismissal Still Pending AMERICAN EXPRESS: Sup. Ct. to Hear Pro-Arbitration Arguments BILLS: Faces Class Action Over Excesses Text Messages BLIZZARD: Disputes Class Action Over Account Authenticator CELLCOM ISRAEL: Provides Update on Network Malfunction Suit CLEARWIRE CORP: Awaits Final Okay of "Minnick" Suit Settlement CLEARWIRE CORP: Faces "Wuest" Class Action Suit in California CLEARWIRE CORP: Got Prelim. Okay of "Dennings" Suit Settlement CLEARWIRE CORP: Received Prelim. Approval of "Newton" Suit Deal CLEARWIRE CORP: Settlement Negotiations in "Kwan" Suit Ongoing EASTMAN KODAK: Judge Dismisses Shareholder Class Action ELI LILLY: Awaits Dist. Ct. Ruling in Employee Suits in Indiana FIRST AMERICAN: Class Suits Over Business Practices Still Pending FOXBOROUGH, MA: Faces Class Action Over Protective Custody Policy FREDERICK'S OF HOLLYWOOD: Mediation in "Weber" Suit on Nov. 29 FRISCH'S RESTAURANTS: Faces Suit Over Minimum Wage Act Violations GOLD RESOURCES: Shuman Law Firm Files Securities Class Action JIMMY DEAN: Recalls 1,110 Lbs. of French Toast & Sausage Sandwich LINNCO LLC: Briefing & Hearing in Royalty Payments Suit Deferred NAVISTAR CANADA: Awaits Hearing Results on Employee Class Action ORLANDO, FL: Set to Appear in Court Over Red-Light Cameras PFIZER INC: Settles Pristiq Class Action for $67.5 Million PRINCE GEORGE, WA: Public Schools System Faces Class Action SEI INVESTMENTS: Awaits Cert. Ruling in Stanford-Related Suit SEI INVESTMENTS: Plaintiffs Appeal Dismissal of ETF-Related Suit SP AUSNET: New Courtroom Prepared for Bushfire Class Action TELLABS INC: "Makor" Securities Suit Dismissed in June TRAVELERS COS: Appeal From "Safeco" Suit Deal Approval Pending TRAVELERS COS: Appeals From Antitrust Suit Deal Order Pending TRAVELERS COS: Appeals in Asbestos-Related Suits Still Pending UNION PACIFIC: Class Cert. Appeal in Antirust Suit Still Pending ZYNGA INC: Continues to Face Securities Class Action Lawsuits ********* AK STEEL: Hearing on Zanesville Retirees Suit Deal on Dec. 21 ------------------------------------------------------------- A fairness hearing with respect to AK Steel Holding Corporation's settlement of a class action lawsuit over changes to retirees' health benefits has been scheduled for December 21, 2012, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On December 15, 2011, four former members of the Zanesville Armco Independent Organization, now the United Autoworkers Union, filed a purported class action against AK Steel in the United States District Court for the Southern District of Ohio, Case No. 1- 11CV00877 (the "Zanesville Retiree Action"), alleging that AK Steel did not have a right to make changes to their healthcare benefits. The named plaintiffs in the Zanesville Retiree Action sought, among other things, injunctive relief for themselves and the other members of a proposed class, including an order retroactively rescinding certain changes to retiree healthcare benefits negotiated by AK Steel with its union. The proposed class the plaintiffs seek to represent consists of all individuals who worked at AK Steel's Zanesville Works under collective bargaining agreements negotiated between the union and AK Steel, or a predecessor of AK Steel, and who retired from such employment between 1960 and May 20, 2006, and whose negotiated health and related benefits have been or may be improperly modified, amended or terminated by AK Steel. The proposed class also includes the spouses, surviving spouses and/or eligible dependents of those retirees. On December 15, 2011, plaintiffs also filed a motion for preliminary injunction, seeking to prevent certain scheduled January 2012 changes to retiree healthcare for members of the purported class from taking effect. Because of timing issues, the proposed changes were implemented in January 2012. By mutual agreement of the parties, however, AK Steel has agreed effective February 1, 2012, and continuing through at least July 31, 2012, to re-institute the contribution rates in effect in 2011 for all Zanesville retirees who retired between February 1, 1984, and May 19, 2006. As a result of that interim agreement, the Plaintiffs' motion for preliminary injunction was dismissed without prejudice as moot on December 23, 2011. In the third quarter of 2012, the Company reached a tentative settlement agreement ("Class Settlement") with the retirees who initiated the litigation. The participants in the Class Settlement consist generally of all retirees, as well as their spouses, surviving spouses and/or eligible dependents, of those retirees in the proposed class (collectively referred to hereinafter as "Class Members"). Pursuant to the Class Settlement, AK Steel will provide company-paid health and life insurance to Class Members through December 31, 2015, at the premium rates that were in effect in 2010. The Company also will make combined lump sum payments totaling $10.6 million to a Voluntary Employees Beneficiary Association trust (the "VEBA Trust)" and to plaintiffs' counsel. More specifically, AK Steel will make three cash contributions to the VEBA Trust as follows: $3.1 million on July 1, 2013; $3.1 million on July 1, 2014; and $3.1 million on July 1, 2015. The balance of the $10.6 million will be paid to plaintiff's attorneys to cover plaintiffs' obligations with respect to attorneys' fees. Effective January 1, 2016, AK Steel will transfer to the VEBA Trust all the Company's other postretirement benefit ("OPEB") obligations owed to the Class Members under the Company's applicable health and welfare plans and will have no further liability for any claims incurred by Class Members after December 31, 2015, relating to their OPEB obligations. The VEBA Trust will be utilized to fund all such future OPEB obligations to the Class Members. Trustees of the VEBA will determine the scope of the benefits to be provided to the Class Members. The Class Settlement is subject to final approval by the Court. In connection with the settlement, on September 13, 2012, the plaintiffs filed an unopposed Motion for an Order Conditionally Certifying Classes, and the parties filed a Joint Motion for Preliminary Approval of Class Action Settlement and Proposed Class Notice. On September 18, 2012, the Court held a hearing on these motions and issued orders granting both motions on September 19, 2012. Notice of the settlement was sent to all Class Members on September 28, 2012. The Class Members will be given the opportunity to object to the settlement in writing and at a hearing conducted by the Court to determine whether to approve the settlement. The deadline for filing objections to the settlement was November 12, 2012. A fairness hearing with respect to the settlement has been scheduled for December 21, 2012. The Court will decide after that hearing whether or not to grant final approval of the settlement. If the Court does grant final approval of the settlement, a judgment ("Judgment") approving the settlement will be entered. The Judgment may be appealed to the United States Court of Appeals for the Sixth Circuit. If such an appeal is still pending at the time a payment is due from AK Steel to the VEBA Trust under the terms of a settlement, the payment will not occur until the Judgment approving the settlement is final and not subject to further appeals or judicial review. If the Judgment is not approved on appeal, the Zanesville Retiree Action would return to the trial court and the parties would continue to litigate whether the Company has a right to reduce OPEB benefits provided to any Class Members as to whom the settlement no longer applies. Once the settlement is final and no longer subject to appeal, the Company's only remaining liability with respect to the OPEB obligations to the Class Members will be to provide existing company-paid health and life insurance to Class Members through December 31, 2015, and to contribute the payments due to the VEBA Trust under the settlements. The Company will have no other liability or responsibility with respect to OPEB obligations to the Class Members. Based on current valuation assumptions, the Company's total OPEB liability (prior to any funding of the VEBA Trust) is projected to increase by approximately $3.0 million, and there would be a one-time charge of approximately $3.8 million for legal fees and the reversal of previous amortization of the prior plan amendment. The remaining portion of the plan amendment would be amortized over approximately two years. AK Steel Holding Corporation's operations consist of seven steelmaking and finishing plants located in Indiana, Kentucky, Ohio and Pennsylvania that produce flat-rolled carbon steels, including premium-quality coated, cold-rolled and hot-rolled products, and specialty stainless and electrical steels that are sold in hot band, sheet and strip form. The Company is headquartered in West Chester, Ohio. AMERICAN ELECTRIC: Appeal From CO2 Suit Dismissal Still Pending --------------------------------------------------------------- An appeal challenging the dismissal of a class action lawsuit relating to carbon dioxide emissions remains pending, according to American Electric Power Company, Inc.'s July 27, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. In October 2009, the Fifth Circuit Court of Appeals reversed a decision by the Federal District Court for the District of Mississippi dismissing state common law nuisance claims in a putative class action by Mississippi residents asserting that CO2 emissions exacerbated the effects of Hurricane Katrina. The Fifth Circuit held that there was no exclusive commitment of the common law issues raised in plaintiffs' complaint to a coordinate branch of government and that no initial policy determination was required to adjudicate these claims. The court granted petitions for rehearing. An additional recusal left the Fifth Circuit without a quorum to reconsider the decision and the appeal was dismissed, leaving the district court's decision in place. Plaintiffs filed a petition with the U.S. Supreme Court asking the court to remand the case to the Fifth Circuit and reinstate the panel decision. The petition was denied in January 2011. Plaintiffs refiled their complaint in federal district court. The court ordered all defendants to respond to the refiled complaints in October 2011. In March 2012, the court granted the defendants' motion for dismissal on several grounds, including the doctrine of collateral estoppel and the applicable statute of limitations. Plaintiffs appealed the decision to the Fifth Circuit Court of Appeals. No updates were reported in the Company's latest Form 10-Q filing. Management says it will continue to defend against the claims. Management is unable to determine a range of potential losses that are reasonably possible of occurring. Headquartered in Columbus, Ohio, American Electric Power Company, Inc., generates, transmits, and distributes electric power in Arkansas, Indiana, Kentucky, Louisiana, Michigan, Ohio, Oklahoma, Tennessee, Texas, Virginia and West Virginia. AMERICAN EXPRESS: Sup. Ct. to Hear Pro-Arbitration Arguments ------------------------------------------------------------ Terry Baynes and Jonathan Stempel, writing for Reuters, report that the Supreme Court on Nov. 9 agreed to consider whether American Express Co may invoke an arbitration clause to prevent merchant customers from banding together in an antitrust lawsuit against the company. The court accepted the credit card and travel services company's appeal from a February ruling by the 2nd U.S. Circuit Court of Appeals in New York that voided the clause, and allowed merchants including the Italian Colors Restaurant in Oakland, California to pursue a class-action lawsuit. A decision could determine the extent to which companies might rely on arbitration clauses to fend off class-action lawsuits, which can allow litigants to obtain larger recoveries at lower cost. Since 1999, American Express has required merchant customers to waive their right to sue the company in a class action. But a group of restaurants, retailers and other customers sued in 2003, saying the New York-based company violated antitrust law in its effort to force them to pay inflated fees on charge card transactions. A two-judge panel of the 2nd Circuit said the company's mandatory arbitration clause violated antitrust law, because many merchants would find it economically unfeasible to pursue their claims individually. American Express said that ruling created a "sweeping, unwritten loophole" in federal arbitration law that should be overturned. The Supreme Court has in recent years shown deference to arbitration clauses, while narrowing the ability of various plaintiffs to bring class-action lawsuits. In a 2011 case involving AT&T Inc., the court gave businesses a big victory by upholding contracts that required customers to submit to individual arbitrations to resolve disputes, and waive their right to pursue class-action litigation. A California law had prohibited such waivers. The same year, the court decertified a class of as many as 1.5 million female workers at Wal-Mart Stores Inc. who alleged gender bias in pay and promotions. The Supreme Court will likely hear oral arguments in the American Express case early next year, with a decision to follow by the end of June. Justice Sonia Sotomayor, who was involved with the case when she was a federal appeals court judge, did not take part in the decision to accept American Express' appeal. The case is American Express Co et al v. Italian Colors Restaurant et al, U.S. Supreme Court, No. 12-133. BILLS: Faces Class Action Over Excesses Text Messages ----------------------------------------------------- Gene Warner, writing for Buffalo News, reports that Bills faces a class action over fans text messages. Like many other Buffalo expatriates who have moved far away from Ralph Wilson Stadium, Jerry Wojcik wanted to stay connected to his hometown Bills. So earlier this season, the Florida resident signed up for a Bills program that sends fans text messages. Trouble is, he says, the text alerts became too frequent. So now he and his attorneys are suing the Bills, in the form of a class- action lawsuit, complaining that the team sent him a few extra messages. In their legal papers, his attorneys claim that after he signed up for a Bills program that pledged to send him no more than five text alerts per week, he instead received six messages one week and seven a few weeks later. That's a total of three extra texts, over several weeks. Some people clearly would label this a frivolous lawsuit. "I'm just appalled," a Bills fan with personal knowledge of the case said, before turning sarcastic. "Obviously, he was grievously harmed and is deserving of a pile of season-ticket money." Buffalo attorney Thomas H. Burton, who has served as both a plaintiffs' and defense attorney, sounded concerns about the effect such lawsuits have on public perceptions of the legal system. "I like to think that the plaintiff attorneys, at least around here, bring these claims when someone has a legitimate and meaningful injury and real damages," Mr. Burton said. "My sense is that as long as you stick to the good substantive cases, citizens and jurors don't have a bad view of the system. "I'm not sure suing over text messages fits the bill." Mr. Wojcik's attorneys, both also from Western New York, have a totally different view. Text message spam costs Americans hundreds of millions of dollars per year, attorneys Scott D. Owens and James S. Giardina stated, in written replies to e-mail questions. They also cited two spam- settlement cases of about $20 million and $47 million. "Furthermore, a 'frivolous lawsuit' is one that has little chance of succeeding in court," the two attorneys stated. "This case is exactly the opposite. We have a defendant who appears to have violated a federal law on multiple occasions, affecting thousands of people. Whether you are a fan of the Bills or not, no one should spam their customers. The [Telephone Consumer Protection Act] has been on the books for more than 20 years. The Bills either knew or should have known that they were breaking the law." But attorney Michael Schiavone, of Lipsitz Green Scime Cambria, who's representing the Bills, pointed out that the intent of that law was to protect consumers against unwanted and unsolicited phone calls; the law later was extended to text messages. "Clearly, that's not what happened here," Mr. Schiavone said, referring to the belief that Mr. Wojcik signed up for the mobile alerts. Owens and Giardina say they don't know how large the class will be for this class-action lawsuit, but their research suggests similar pro sports teams have mobile-marketing databases ranging anywhere from 4,000 to 93,000 subscribers. While the attorneys cited only two occasions when the Bills sent more than five messages per week, they say the exact number of violations will be found later. The lawsuit has a decidedly local flavor. Mr. Wojcik is a native Western New Yorker in his mid-30s who moved to Tampa Bay in 2001, and both his attorneys also have local roots. Mr. Owens is a Williamsville East and University at Buffalo graduate, while Mr. Giardina graduated from Sweet Home High School and UB Law School. Each spends a substantial part of his practice on Telephone Consumer Protection Act cases. In the court papers, filed in U.S. District Court in the Middle District of Florida, Mr. Wojcik and his attorneys claim that on Sept. 12, while visiting the team's Web site, he read an ad about receiving mobile text messages from the Bills. "Get up to the minute news and team alerts sent directly to your phone!" the program's terms and conditions state, according to court papers. "You will be opted in to receive 3-5 messages per week for a period of 12 months." After Mr. Wojcik subscribed, the Bills texted him a message confirming his participation. In his second full week after signing up, from Sept. 23-29, Mr. Wojcik received six text messages from the Bills, the court papers state. Several weeks later, from Oct. 14-20, he received seven. Those excessive texts, auto-dialed to all the subscribers, were made without their consent and in violation of the Telephone Consumer Protection Act, the lawsuit claims. The suit seeks statutory damages of $500 per excessive call for negligent violations and up to $1,500 per call for willful violations. Those amounts could be multiplied by the thousands of subscribers receiving the excessive texts. The complaint, though, does not specify the claimed harm caused by the extra messages. And the court papers don't explain why, if Mr. Wojcik were harmed by the extra message late in September, he didn't drop out of the program. Mr. Wojcik could not be reached to comment. Mr. Burton, the attorney who's been on both the plaintiff and defense sides, came up with his own resolution for the dispute: "Maybe the Bills should just send this guy a bucket of chicken wings and a case of Labatt's beer and call the whole thing even." BLIZZARD: Disputes Class Action Over Account Authenticator ---------------------------------------------------------- Erik Kain, writing for Forbes, reports that a class action lawsuit has been filed against video game maker Blizzard, the creators of Diablo III, World of Warcraft, and Starcraft. The lawsuit alleges that the company "fails to disclose to consumers that additional products must be acquired after buying the games in order to ensure the security of information stored in online accounts that are requisites for playing," according to a press release from law firm Carney Williams Bates Pulliam & Bowman, PLLC. "This deceptive upselling, coupled with Blizzard's negligence in maintaining proper security protocols, compromised millions of customers' e-mail addresses, passwords, answers to personal security questions, and other items of sensitive information." The suit, Benjamin Bell et al. vs Blizzard Entertainment, was filed in California earlier last week. "Blizzard requires all of its customers to establish accounts with its online gaming service, Battle.net," according to the firm's Hank Bates, "but it fails to disclose to consumers, prior to purchase, that they'll need additional products called authenticators to keep information stored in these accounts safe. Even though the company frequently receives complaints about accounts being hacked, it simply tells the customer to attach an authenticator to their account. Blizzard doesn't inform people about this requirement when they purchase the game, and that amounts to a deceptive trade practice. Worse still, Blizzard has failed to maintain adequate levels of security for its customers, time and again, which led to a significant loss of private data in Blizzard's safekeeping." Earlier this year, Blizzard confirmed that a security breach had occurred with the possible loss of customers' personal data. Still, security breach or not, Blizzard says they find the lawsuit absurd. "This suit is without merit and filled with patently false information," a Blizzard spokesperson said in an e-mail, "and we will vigorously defend ourselves through the appropriate legal channels. "We want to reiterate that we take the security of our players' data very seriously, and we're fully committed to defending our network infrastructure. We also recognize that the cyber-threat landscape is always evolving, and we're constantly working to track the latest developments and make improvements to our defenses." Blizzard continues: "The suit's claim that we didn't properly notify players regarding the August 2012 security breach is not true. Not only did Blizzard act quickly to provide information to the public about the situation, we explained the actions we were taking and let players know how the incident affected them, including the fact that no names, credit card numbers, or other sensitive financial information was disclosed. You can read our letter to players and a comprehensive FAQ related to the situation on our Web site." Blizzard also disputes claims that the Authenticator is required to achieve a minimal level of account security. "This claim is also completely untrue," according to Blizzard, "and apparently based on a misunderstanding of the Authenticator's purpose. The Battle.net Authenticator is an optional tool that players can use to further protect their Battle.net accounts in the event that their login credentials are compromised outside of Blizzard's network infrastructure. Available as a physical device or as a free app for iOS or Android devices, it offers players an added level of security against account-theft attempts that stem from sources such as phishing attacks, viruses packaged with seemingly harmless file downloads, and Web sites embedded with malicious code. "When a player attaches an Authenticator to his or her account, it means that logging in to Battle.net will require the use of a random code generated by the Authenticator in addition to the player's login credentials. This helps our systems identify when it's actually the player who is logging in and not someone who might have stolen the player's credentials by means of one of the external theft measures, or as a result of the player using the same account name and password on another Web site or service that was compromised. Considering that players are ultimately responsible for securing their own computers, and that the extra step required by the Authenticator is an added inconvenience during the log in process, we ultimately leave it up to the players to decide whether they want to add an Authenticator to their account. However, we always strongly encourage it, and we try to make it as easy as possible to do." The suit's plaintiffs seek damages and to prevent Blizzard from "tacking on additional, undisclosed costs to ensure security in the form of a post-point-of-sale Authenticator." The suit also demands that Blizzard no longer require Battle.net accounts for any game that's not an MMO. CELLCOM ISRAEL: Provides Update on Network Malfunction Suit ----------------------------------------------------------- Cellcom Israel Ltd. on Nov. 11 provided an update with respect to a purported class action pending against the Company in respect to the network malfunction that occurred on December 1, 2010. An amendment has been filed with the court under the previously reported procedural agreement among the plaintiffs of several purported class actions filed against the Company in relation to the malfunction. The plaintiffs included causes of actions and remedies allegedly sought in purported class actions dismissed under the procedural agreement and updated the claimed amount of approximately NIS61 million to NIS350 per customer in a private calling plan and NIS700 per customer in a business calling plan and added approximately NIS1.182 billion for non monetary damages as well as the relative portion of the monthly payment relating to the hours of the malfunction. The Company believes that part of the amendment is not in line with the procedural agreement and will address the amendment when responding to the claim. CLEARWIRE CORP: Awaits Final Okay of "Minnick" Suit Settlement -------------------------------------------------------------- Clearwire Corporation is awaiting final approval of its settlement of a class action lawsuit initiated by Chad Minnick, et al., according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In April 2009, a purported class action lawsuit was filed against Clearwire U.S. LLC in Superior Court in King County, Washington by a group of five plaintiffs (Chad Minnick, et al.). The lawsuit generally alleges that the Company disseminated false advertising about the quality and reliability of its services; imposed an unlawful early termination fee, referred to as ETF; and invoked allegedly unconscionable provisions of the Company's Terms of Service to the detriment of subscribers. Among other things, the lawsuit seeks a determination that the alleged claims may be asserted on a class-wide basis; an order declaring certain provisions of the Company's Terms of Service, including the ETF provision, void and unenforceable; an injunction prohibiting the Company from collecting ETFs and further false advertising; restitution of any ETFs paid by the Company's subscribers; equitable relief; and an award of unspecified damages and attorneys' fees. Plaintiffs subsequently amended their complaint adding seven additional plaintiffs. The Company removed the case to the United States District Court for the Western District of Washington. On July 23, 2009, the Company filed a motion to dismiss the amended complaint. The Court stayed discovery pending its ruling on the motion, and on February 2, 2010, granted the Company's motion to dismiss in its entirety. Plaintiffs appealed to the Ninth Circuit Court of Appeals. On March 29, 2011, the Court of Appeals entered an Order Certifying Question to the Supreme Court of Washington requesting guidance on a question of Washington state law. On May 23, 2012, the Washington Supreme Court issued a decision holding that an ETF is a permissible alternative performance provision. The Court of Appeals has stayed the matter. The parties have agreed to settle the lawsuit. The Court has granted preliminary approval of the settlement. The Company says it has accrued an estimated amount it anticipates to pay for the settlement in Other current liabilities. The amount accrued is considered immaterial to the financial statements. Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR) -- http://www.clearwire.com/-- through its operating subsidiaries, is a provider of 4G mobile broadband network services in 68 markets, including New York City, Los Angeles, Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C., Atlanta and Boston. CLEARWIRE CORP: Faces "Wuest" Class Action Suit in California ------------------------------------------------------------- Clearwire Corporation is facing a class action lawsuit in California brought by Richard Wuest, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In August 2012, Richard Wuest filed a purported class action against Clearwire in the California Superior Court, San Francisco County. Plaintiff alleges that Clearwire violated California's Invasion of Privacy Act, Penal Code 630, notably Section 632.7, which prohibits the recording of communications made from a cellular or cordless telephone without the consent of all parties to the communication. Plaintiff seeks statutory damages and injunctive relief, costs, attorney fees, pre- and post-judgment interest. Clearwire has filed a motion to remove the matter to federal court. Clearwire's answer or other response was due November 2, 2012. The Company says the litigation is in the early stages, its outcome is unknown and an estimate of any potential loss cannot be made at this time. Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR) -- http://www.clearwire.com/-- through its operating subsidiaries, is a provider of 4G mobile broadband network services in 68 markets, including New York City, Los Angeles, Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C., Atlanta and Boston. CLEARWIRE CORP: Got Prelim. Okay of "Dennings" Suit Settlement -------------------------------------------------------------- The U.S. District Court for the Western District of Washington has granted preliminary approval to Clearwire Corporation's settlement of a class action lawsuit filed by Angelo Dennings, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In November 2010, a purported class action lawsuit was filed against Clearwire by Angelo Dennings in the U.S. District Court for the Western District of Washington. The complaint generally alleges the Company slow network speeds when network demand is highest and that such network management violates the Company's agreements with subscribers and is contrary to the Company's advertising and marketing claims. Plaintiffs also allege that subscribers do not review the Terms of Service prior to subscribing, and when subscribers cancel service due to network management, the Company charge an early termination fee, referred to as ETF, or restocking fee that they claim is unconscionable under the circumstances. The claims asserted include breach of contract, breach of the covenant of good faith and fair dealing and unjust enrichment. Plaintiffs seek class certification; unspecified damages and restitution; a declaratory judgment that Clearwire's ETF and restocking fee are unconscionable under the alleged circumstances; an injunction prohibiting Clearwire from engaging in alleged deceptive marketing and from charging ETFs; interest; and attorneys' fees and costs. On January 13, 2011, the Company filed concurrent motions to compel arbitration and in the alternative, to dismiss the complaint for failure to state a claim upon which relief may be granted. In response to Clearwire's motions, plaintiff abandoned its fraud claim and amended its complaint with fourteen additional plaintiffs in eight separate jurisdictions. Plaintiff further added new claims of violation of Consumer Protection statutes under various state laws. On March 31, 2011, Clearwire filed concurrent motions to (1) compel the newly-added plaintiffs to arbitrate their individual claims, (2) alternatively, to stay this case pending the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion, No. 09-893, referred to as Concepcion, and (3) to dismiss the complaint for failure to state a claim upon which relief may be granted. Plaintiffs did not oppose Clearwire's motion to stay the litigation pending Concepcion, and the parties stipulated to stay the litigation. The parties have agreed to settle the lawsuit. The Court has granted preliminary approval of the settlement. The Company says it has accrued an estimated amount it anticipates to pay for the settlement in Other current liabilities. The amount accrued is considered immaterial to the financial statements. Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR) -- http://www.clearwire.com/-- through its operating subsidiaries, is a provider of 4G mobile broadband network services in 68 markets, including New York City, Los Angeles, Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C., Atlanta and Boston. CLEARWIRE CORP: Received Prelim. Approval of "Newton" Suit Deal --------------------------------------------------------------- The U.S. District Court for the Eastern District of California has granted preliminary approval of Clearwire Corporation's settlement of a class action lawsuit alleging false advertising, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In March 2011, a purported class action was filed against Clearwire in the U.S. District Court for the Eastern District of California. The case, Newton v. Clearwire, Inc. [sic], alleges Clearwire's network management and advertising practices constitute breach of contract, unjust enrichment, unfair competition under California's Business and Professions Code Sections 17200 et seq., and violation of California's Consumers' Legal Remedies Act. Plaintiff contends Clearwire's advertisements of "no speed cap" and "unlimited data" are false and misleading. Plaintiff alleges Clearwire has breached its contracts with customers by not delivering the Internet service as advertised. Plaintiff also claims slow data speeds are due to Clearwire's network management practices. Plaintiff seeks class certification; declaratory and injunctive relief; unspecified restitution and/or disgorgement of fees paid for Clearwire service; and unspecified damages, interest, fees and costs. On June 9, 2011, Clearwire filed a motion to compel arbitration. The parties have agreed to settle the lawsuit. The Court has granted preliminary approval of the settlement. The Company says it has accrued an estimated amount it anticipates to pay for the settlement in Other current liabilities. The amount accrued is considered immaterial to the financial statements. Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR) -- http://www.clearwire.com/-- through its operating subsidiaries, is a provider of 4G mobile broadband network services in 68 markets, including New York City, Los Angeles, Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C., Atlanta and Boston. CLEARWIRE CORP: Settlement Negotiations in "Kwan" Suit Ongoing -------------------------------------------------------------- Settlement negotiations in the class action lawsuit brought by Rosa Kwan are ongoing, according to Clearwire Corporation's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In September 2009, a purported class action lawsuit was filed against Clearwire in King County Superior Court, brought by representative plaintiff Rosa Kwan. The complaint alleges the Company placed unlawful telephone calls using automatic dialing and announcing devices and engaged in unlawful collection practices. It seeks declaratory, injunctive, and/or equitable relief and actual and statutory damages under federal and state law. On October 1, 2009, the Company removed the case to the United States District Court for the Western District of Washington. The parties stipulated to allow a Second Amended Complaint, which plaintiffs filed on December 23, 2009. The Company then filed a motion to dismiss the amended complaint. On February 22, 2010, the Court granted the Company's motion to dismiss in part, dismissing certain claims with prejudice and granting plaintiff leave to further amend the complaint. Plaintiff filed a Third Amended Complaint adding additional state law claims and joining Bureau of Recovery, a purported collection agency, as a co-defendant. On January 27, 2011, the court granted the parties' stipulation allowing plaintiff to file a Fourth Amended Complaint adding two new class representatives. The Company then filed motions to compel the newly-added customer plaintiffs to arbitrate their individual claims. On January 3, 2012, the Court denied without prejudice the Company's motions to compel arbitration because of factual issues to be resolved at an evidentiary hearing. The parties stipulated to allow a Fifth Amended Complaint. The evidentiary hearing and the matter are stayed pending settlement negotiations. The parties completed a mediation and reached a preliminary settlement in principal. Settlement negotiations are ongoing. The Company says it has accrued an estimated amount it anticipates to pay for the settlement in Other current liabilities. The amount accrued is considered immaterial to the financial statements. This case is in the early stages of litigation and its outcome is unknown. Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR) -- http://www.clearwire.com/-- through its operating subsidiaries, is a provider of 4G mobile broadband network services in 68 markets, including New York City, Los Angeles, Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C., Atlanta and Boston. EASTMAN KODAK: Judge Dismisses Shareholder Class Action ------------------------------------------------------- Matthew Leonard, writing for Innovation Trail, reports that a shareholder class action lawsuit brought by investors who purchased stock in Eastman Kodak during 2011 was dismissed by U.S. District Judge Harold Baer on Nov. 8. The case had been mounted by a group of shareholders who claimed that the Kodak's share price had been artificially inflated following statements by the company's CEO, CFO and COO, and that this was in violation of the 1934 Securities Exchange Act. Kodak filed for bankruptcy on January 19th, 2012 and the case was brought against the current Kodak CEO Antonio Perez and three former executives because of the company's Chapter 11 status. The suit says in part: During the Class Period, Perez was responsible for the issuance of false and misleading statements about Kodak and failed to disclose the true and material facts about the Company's digital transformation, liquidity, financial condition and prospects and bankruptcy considerations. Reuters reports that Judge Baer ruled that there was no evidence that the executives deliberately misled investors about the company's plans for transformation or its financial situation. Kodak's share prices during the period covered by the lawsuit fell from approximately $4 to 30 cents. ELI LILLY: Awaits Dist. Ct. Ruling in Employee Suits in Indiana --------------------------------------------------------------- Eli Lilly and Company is awaiting a ruling from an Indiana district court on the status of remaining plaintiffs in employee lawsuits against the Company after an appellate court upheld the district court's decision on the related claims of Schaefer-Rose, according to the Company's July 27, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. The Company has been named as a defendant in a lawsuit filed in the U.S. District Court for the Northern District of New York (Schaefer-LaRose, et al. v. Eli Lilly and Company, filed November 14, 2006), claiming that the Company's pharmaceutical sales representatives should have been categorized as "non-exempt" rather than "exempt" employees, and claiming that the Company owes them back wages for overtime worked, as well as penalties, interest, and attorneys' fees. Other pharmaceutical industry participants face similar lawsuits. The case was transferred to the U.S. District Court for the Southern District of Indiana and involves approximately 400 plaintiffs. In September 2009, the district court granted the Company's motion for summary judgment with regard to Ms. Schaefer-LaRose's claims and ordered the plaintiffs to demonstrate why the entire class action should not be decertified within 30 days. Plaintiffs filed a motion for reconsideration of the summary judgment decision and also opposed decertification, and in October 2010, the court denied plaintiffs' motion for reconsideration but decided not to decertify the class action at this time. In May 2012, the Sixth Circuit Court of Appeals affirmed the District Court's summary judgment ruling. The Company is waiting for the district court to rule on the status of the remaining plaintiffs. The Company believes the lawsuit is without merit and are prepared to defend against it vigorously. Eli Lilly and Company -- http://www.lilly.com/-- is an innovation-driven corporation, which is into developing a growing portfolio of pharmaceutical products by applying the latest research from its own worldwide laboratories and from collaborations with eminent scientific organizations. Headquartered in Indianapolis, Indiana, the Company provides answers, through medicines and information, for some of the world's most urgent medical needs. FIRST AMERICAN: Class Suits Over Business Practices Still Pending ----------------------------------------------------------------- First American Financial Corporation continues to defend itself from various class action lawsuits challenging practices in its title insurance business, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company and its subsidiaries are parties to a number of non- ordinary course lawsuits. Frequently these lawsuits are similar in nature to other lawsuits pending against the Company's competitors. For those non-ordinary course lawsuits where the Company has determined that a loss is both probable and reasonably estimable, a liability representing the best estimate of the Company's financial exposure based on known facts has been recorded. Actual losses may materially differ from the amounts recorded. For a substantial majority of these lawsuits, however, it is not possible to assess the probability of loss. Most of these lawsuits are putative class actions which require a plaintiff to satisfy a number of procedural requirements before proceeding to trial. These requirements include, among others, demonstration to a court that the law proscribes in some manner the Company's activities, the making of factual allegations sufficient to suggest that the Company's activities exceeded the limits of the law and a determination by the court -- known as class certification -- that the law permits a group of individuals to pursue the case together as a class. In certain instances the Company may also be able to compel the plaintiff to arbitrate its claim on an individual basis. If these procedural requirements are not met, either the lawsuit cannot proceed or, as is the case with class certification or compelled arbitration, the plaintiffs lose the financial incentive to proceed with the case (or the amount at issue effectively becomes de minimus). Frequently, a court's determination as to these procedural requirements is subject to appeal to a higher court. As a result of, among other factors, ambiguities and inconsistencies in the myriad laws applicable to the Company's business and the uniqueness of the factual issues presented in any given lawsuit, the Company often cannot determine the probability of loss until a court has finally determined that a plaintiff has satisfied applicable procedural requirements. Furthermore, because most of these lawsuits are putative class actions, it is often impossible to estimate the possible loss or a range of loss amounts, even where the Company has determined that a loss is reasonably possible. Generally class actions involve a large number of people and the effort to determine which people satisfy the requirements to become plaintiffs -- or class members -- is often time consuming and burdensome. Moreover, these lawsuits raise complex factual issues which result in uncertainty as to their outcome and, ultimately, make it difficult for the Company to estimate the amount of damages which a plaintiff might successfully prove. In addition, many of the Company's businesses are regulated by various federal, state, local and foreign governmental agencies and are subject to numerous statutory guidelines. These regulations and statutory guidelines often are complex, inconsistent or ambiguous, which results in additional uncertainty as to the outcome of a given lawsuit -- including the amount of damages a plaintiff might be afforded -- or makes it difficult to analogize experience in one case or jurisdiction to another case or jurisdiction. Most of the non-ordinary course lawsuits to which the Company and its subsidiaries are parties challenge practices in the Company's title insurance business, though a limited number of cases also pertain to the Company's other businesses. These lawsuits include, among others, cases alleging, among other assertions, that the Company, one of its subsidiaries and/or one of its agents: -- charged an improper rate for title insurance in a refinance transaction, including: * Hamilton v. First American Title Insurance Company, et al., filed on August 25, 2008, and pending in the Superior Court of the State of North Carolina, Wake County, * Haskins v. First American Title Insurance Company, filed on September 29, 2010, and pending in the United States District Court of New Jersey, * Lang v. First American Title Insurance Company of New York, filed on March 9, 2012, and pending in the United States District Court of New York, * Levine v. First American Title Insurance Company, filed on February 26, 2009, and pending in the United States District Court of Pennsylvania, * Lewis v. First American Title Insurance Company, filed on November 28, 2006, and pending in the United States District Court for the District of Idaho, * Loef v. First American Title Insurance Company, filed on August 16, 2008, and pending in the United States District Court of Maine, * Mitchell-Tracey v. First American Title Insurance Company, et al., filed on April 30, 2012, and pending in the United States District Court for the Northern District of Maryland, * Raffone v. First American Title Insurance Company, filed on February 14, 2004, and pending in the Circuit Court, Nassau County, Florida, and * Slapikas v. First American Title Insurance Company, filed on December 19, 2005, and pending in the United States District Court for the Western District of Pennsylvania. All of these lawsuits are putative class actions. A court has only granted class certification in Loef, Hamilton, Lewis, Raffone and Slapikas. An appeal to a higher court is pending with respect to the granting of class certification in Hamilton. For these reasons, the Company has been unable to assess the probability of loss or estimate the possible loss or the range of loss or, where the Company has been able to make an estimate, the Company believes the amount is immaterial to the financial statements as a whole. -- purchased minority interests in title insurance agents as an inducement to refer title insurance underwriting business to the Company or gave items of value to title insurance agents and others for referrals of business, in each case in violation of the Real Estate Settlement Procedures Act, including: * Edwards v. First American Financial Corporation, filed on June 12, 2007, and pending in the United States District Court for the Central District of California. In Edwards a narrow class has been certified, however, a motion to decertify that class and to compel arbitration is pending. For these reasons, the Company has been unable to assess the probability of loss or estimate the possible loss or the range of loss. -- conspired with its competitors to fix prices or otherwise engaged in anticompetitive behavior, including: * Klein v. First American Title Insurance Company, et al., filed on July 10, 2012, and pending in the United States District Court for the District of Colombia, and * McCray v. First American Title Insurance Company, et al., filed on October 15, 2008, and pending in the United States District Court of Delaware. These lawsuits are putative class actions for which a class has not been certified. For these reasons, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. -- engaged in the unauthorized practice of law, including: * Gale v. First American Title Insurance Company, et al., filed on October 16, 2006, and pending in the United States District Court of Connecticut, and * Katin v. First American Signature Services, Inc., et al., filed on May 9, 2007, and pending in the United States District Court of Massachusetts. Katin is a putative class action for which a class has not been certified. The class originally certified in Gale was subsequently decertified. For these reasons, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. -- failed to pay required compensation and provide required rest periods, including: * Bartko v. First American Title Insurance Company, filed on November 8, 2011, and pending in the Superior Court of the State of California, Los Angeles. Bartko is a putative class action for which a class has not been certified. For these reasons, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. -- overcharged or improperly charged fees for products and services provided in connection with the closing of real estate transactions, denied home warranty claims, recorded telephone calls, acted as an unauthorized trustee and gave items of value to developers, builders and others as inducements to refer business in violation of certain other laws, such as consumer protection laws and laws generally prohibiting unfair business practices, and certain obligations, including: * Carrera v. First American Home Buyers Protection Corporation, filed on September 23, 2009, and pending in the Superior Court of the State of California, County of Los Angeles, * Chassen v. First American Financial Corporation, et al., filed on January 22, 2009, and pending in the United States District Court of New Jersey, * Coleman v. First American Home Buyers Protection Corporation, et al., filed on August 24, 2009, and pending in the Superior Court of the State of California, County of Los Angeles, * Eide v. First American Title Company, filed on February 26, 2010, and pending in the Superior Court of the State of California, County of Kern, * Gunning v. First American Title Insurance Company, filed on July 14, 2008, and pending in the United States District Court for the Eastern District of Kentucky, * Kaufman v. First American Financial Corporation, et al., filed on December 21, 2007, and pending in the Superior Court of the State of California, County of Los Angeles, * Kirk v. First American Financial Corporation, filed on June 15, 2006, and pending in the Superior Court of the State of California, County of Los Angeles, * Sjobring v. First American Financial Corporation, et al., filed on February 25, 2005, and pending in the Superior Court of the State of California, County of Los Angeles, * Smith v. First American Title Insurance Company, filed on November 23, 2011, and pending in the United States District Court for the Western District of Washington, * Tavenner v. Talon Group, filed on August 18, 2009, and pending in the United States District Court for the Western District of Washington, and * Wilmot v. First American Financial Corporation, et al., filed on April 20, 2007, and pending in the Superior Court of the State of California, County of Los Angeles. All of these lawsuits, except Sjobring, Tavenner and Coleman, are putative class actions for which a class has not been certified. In Sjobring a class was certified but that certification was subsequently vacated. In Coleman, class certification was denied. For these reasons, the Company has not yet been able to assess the probability of loss or estimate the possible loss or the range of loss. While some of the lawsuits may be material to the Company's operating results in any particular period if an unfavorable outcome results, the Company does not believe that any of these lawsuits will have a material adverse effect on the Company's overall financial condition or liquidity. FOXBOROUGH, MA: Faces Class Action Over Protective Custody Policy ----------------------------------------------------------------- Jeremie Smith, writing for Foxborough Patch, reports that two additional people are joining the class action lawsuit challenging the town of Foxborough's policy of holding people in protective custody during Gillette Stadium events, according to the Law Offices of Howard Friedman. The suit alleges over a thousand people were held in protective custody unlawfully because they were intoxicated but not incapacitated, according to a press release issued by the Law Offices of Howard Friedman. Michael Burgess, 42, a police officer in Massachusetts and Lindsey Schmidt, 23 of Portland, Maine have joined original plaintiffs Dr. Timothy Dutton and Paul Weldner in a lawsuit against the town and Foxborough Police Chief Edward O'Leary filed on Sept. 24. Mr. Burgess was allegedly placed into protective custody by Foxborough Police officers at the 2011 New England Country Music Festival at Gillette Stadium and Schmidt was allegedly placed into protective custody before entering Gillette Stadium for the 2012 New England Country Music Festival this past August. Mr. Burgess and Ms. Schmidt will join Dr. Dutton at a press conference on Nov. 12 in Boston to announce the class action lawsuit. An amended complaint in the lawsuit was to be filed on Nov. 12, according to the Law offices of Howard Friedman. Dr. Dutton commented on Foxborough Patch's Aug. 21 article, "Foxborough Police Report 'Few Problems' During Bruce Springsteen Concert at Gillette Stadium," calling Foxborough Police "vigilantes" after he was allegedly taken into protective custody. "The security surrounding these events are vigilantes," said Dr. Dutton. "So are the Foxboro Police. My girlfriend was nabbed for barely stumbling in the ticket line, breathalyzed, handcuffed and detained for nothing more than having a good time. I was told to move on or join her. I joined her. For the next six hours I received inhumane treatment that the Foxboro Police all enjoyed. Lawsuit coming." Dr. Dutton remained true to his word. The lawsuit, according to the Law Offices of Howard Friedman, alleges that it is unconstitutional to take people into custody simply because they are perceived to be under the influence of alcohol. Mr. Weldner and Dr. Dutton reportedly planned to attend the Springsteen concert in Foxborough on Aug. 18, according to a press release issued by the Law Offices of Howard Friedman. "They drank alcohol before the concert, but they were not incapacitated," according to the press release. "They had rented a bus so they could travel safely." Foxborough Police officers, according to attorney Friedman's office, detained Mr. Weldner and Dr. Dutton before they entered the concert and placed them into protective custody along with over 60 others. "Protective custody is a joke," said Dr. Dutton. "I was detained in a cell with a man who had spent one year in jail for attempted murder for stabbing someone eight times. There were plenty of other innocent people like me in this lockup." The civil lawsuit, brought by Boston attorneys Howard Friedman and David Milton of the Law Offices of Howard Friedman P.C., seeks money damages for violations of the class members' constitutional rights, as well as an end to the policy. The lawsuit, filed in the United States District Court in Boston, is called Paul Weldner et al., v. Edward O'Leary, et al., C.A. No. 12-11771-DPW. A copy of the original complaint can be found here: http://www.civil-rightslaw.com/storage/weldner.pdf FREDERICK'S OF HOLLYWOOD: Mediation in "Weber" Suit on Nov. 29 -------------------------------------------------------------- Frederick's of Hollywood Group Inc. disclosed in its October 26, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended July 28, 2012, that parties to the class action lawsuit brought by Michelle Weber have agreed to stay discovery proceedings in order to conduct a mediation, which is scheduled for November 29, 2012. On February 2, 2012, a former California store employee filed a purported class action lawsuit in the California Superior Court, County of San Francisco, naming Frederick's of Hollywood, Inc., one of the Company's subsidiaries, as a defendant (Michelle Weber, on behalf of herself and all others similarly situated v. Frederick's of Hollywood, Inc., Case No. CGC-12-517909). The complaint alleges, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Unfair Competition Law. The complaint seeks, among other relief, collective and class certification of the lawsuit (the class being defined as all California retail store hourly employees), unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court might find just and proper. The Company contests these allegations and deny any liability with respect to the lawsuit. The Company answered the Plaintiff's first amended complaint on April 2, 2012. The parties have agreed to stay discovery proceedings in order to conduct a mediation, which is scheduled for November 29, 2012. Therefore, the Company is unable to predict the likely outcome and whether such outcome may have a material adverse effect on its results of operations or financial condition. Accordingly, no provision for a loss contingency has been accrued as of July 28, 2012. FRISCH'S RESTAURANTS: Faces Suit Over Minimum Wage Act Violations ----------------------------------------------------------------- Frisch's Restaurants, Inc. is facing a class action lawsuit alleging violations of the Ohio Minimum Fair Wage Standards Act, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 18, 2012. On September 18, 2012, a former employee (plaintiff) filed a collective action under the Fair Labor Standards Act and class action under the Ohio Minimum Fair Wage Standards Act for allegations of off-the-clock work, unpaid overtime, and minimum wage violations as a result of alleged improper application of the Tip Credit. As part of the collective action, the plaintiff seeks recovery for all individuals who worked as a server at any Frisch's Big Boy restaurant operated by the Company during the three year period, September 18, 2009, through September 18, 2012. The class action is limited to servers who worked for the Company at Frisch's Big Boy restaurants located in Ohio during the last three years. The Company has not answered the complaint, but expects to deny all allegations and will vigorously defend the matter, including efforts by the plaintiff to certify the class. If successful on these claims, the plaintiff and any class members would be entitled to unpaid wages, liquidated damages, and attorneys' fees. Although employee unfair practice claims are not covered by insurance, no loss provision has been made in the consolidated financial statements for amounts that would be payable by the Company as management has not fully evaluated the merits of the claim. GOLD RESOURCES: Shuman Law Firm Files Securities Class Action ------------------------------------------------------------- The Shuman Law Firm on Nov. 10 disclosed that it has filed a lawsuit seeking class action status in the United States District Court for the District of Colorado on behalf of purchasers of Gold Resource Corporation common stock during the period between January 30, 2012 and October 17, 2012. If you wish to discuss this action or have any questions concerning this notice or your rights and interests with respect to this matter, please contact Kip B. Shuman or Rusty E. Glenn toll free at (866) 974-8626 or e-mail Mr. Shuman at kip@shumanlawfirm.com or Mr. Glenn at rusty@shumanlawfirm.com The complaint charges Gold Resource and certain of its officers and directors with violations of the Securities Exchange Act of 1934. The Company, based in Colorado Springs, Colorado, mines, mills and produces metal concentrates that contain gold, silver, copper, lead and zinc at its El Aguila mining project in the southern state of Oaxaca, Mexico. The complaint alleges that, during the Class Period, defendants issued materially false and misleading statements regarding the Company's operational status and financial projections. Specifically, it is alleged that defendants misrepresented and/or failed to disclose the following adverse facts: (a) that overly aggressive expansion of Gold Resource's underground mining operations in the first quarter of 2012 had created operational difficulties in the mine, which were lowering mine production; (b) that Gold Resource was mining in lower grade zones of the deposit; (c) that significant operational efficiency improvements were required at the mine, including the need to upgrade electric power throughout the mine, expand ventilation and handle increased ground water the deeper the mine went, which limited the Company's ability to mine higher grade stopes; (d) that decreases in long- hole stoping were forcing the Company to process more diluted development ore and mine from areas of the deposit with lower metal grades; (e) that as a result of the foregoing, tonnes from stoping, as a percentage of milled ore, had decreased from an estimated year-to-date high of 55% during the first quarter of 2012 to an estimated year-to-date low of 15% during the second quarter of 2012; and (f) that during the third quarter of 2012, a dispute had arisen between the Company and the buyer of its metal concentrates, with the buyer claiming net adjustments (reductions) to the Company's provisional third quarter 2012 invoices. JIMMY DEAN: Recalls 1,110 Lbs. of French Toast & Sausage Sandwich ----------------------------------------------------------------- Jimmy Dean(R) is voluntarily recalling a partial production run of the brand's butcher wrapped Food service product, Jimmy Dean French Toast & Sausage Sandwich with the code "12292P1" on the back label under the products ingredient statement, as a precautionary measure because the product may contain the undeclared allergens egg and soy, not listed on the label. This recall is due to a labeling error, in which the wrong ingredient statement may have been applied to a small number of sandwiches. The recall affects 1,110 pounds of product with the code 12292P1 on the back panel. People who are allergic to egg or soy could have a serious or life-threatening reaction if they consume this product. For consumers who are not allergic to egg or soy, there is no safety issue with the product. The following states are included in this recall: Iowa, Maine, Maryland, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania and Virginia. The item included in the voluntary recall is part of a partial production run only for Jimmy Dean French Toast & Sausage Sandwich with the UPC CODE 5450051434 and the code 12292P1 on the back of the packaging. Pictures of the recalled products' labels are available at: http://www.fda.gov/Safety/Recalls/ucm327725.htm No other Jimmy Dean branded products, including Jimmy Dean Delights French Toast Griddlers sold at traditional grocery chains, are affected by this voluntary recall and the company has received no reports of illnesses associated with this product. Consumers may return affected product to the store where it was purchased for a full refund. Consumers who may have questions or concerns should call the special toll-free consumer line at 1.888.914.1247. The consumer line is available from 9:00 a.m. to 5:00 p.m. Central Time Saturday and Sunday, and 7:00 a.m. to 6:00 p.m. Central Standard Time Monday - Friday. LINNCO LLC: Briefing & Hearing in Royalty Payments Suit Deferred ---------------------------------------------------------------- Briefing and hearing on class certification in a statewide class action royalty payment dispute have been deferred pending an appellate resolution of interlocutory appeals of two unrelated lawsuits, according to LinnCo, LLC's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company has been named as a defendant in a number of lawsuits, including claims from royalty owners related to disputed royalty payments and royalty valuations. The Company has established reserves that management currently believes are adequate to provide for potential liabilities based upon its evaluation of these matters. For a certain statewide class action royalty payment dispute where a reserve has not yet been established, the Company has denied that it has any liability on the claims and has raised arguments and defenses that, if accepted by the court, will result in no loss to the Company. Discovery related to class certification has concluded. Briefing and the hearing on class certification have been deferred by court order pending the Tenth Circuit Court of Appeals' resolution of interlocutory appeals of two unrelated class certification orders. As a result, the Company is unable to estimate a possible loss, or range of possible loss, if any. In addition, the Company is involved in various other disputes arising in the ordinary course of business. The Company says it is not currently a party to any litigation or pending claims that it believes would have a material adverse effect on its overall business, financial position, results of operations or liquidity; however, cash flow could be significantly impacted in the reporting periods in which such matters are resolved. NAVISTAR CANADA: Awaits Hearing Results on Employee Class Action ---------------------------------------------------------------- Bob Boughner, writing for Chatham Daily News, reports that a hearing on a class action against Navistar Canada Inc. by Cathy Baker and Joe Lucier on behalf of company union employees was set to be heard Nov. 14 in Windsor. Navistar idled its Chatham truck plant in 2009 when no contract agreement could be reached between the CAW and the company affecting approximately 1,000 workers. A final closure agreement has yet to be worked out between the CAW and the company. The matter was to be heard by Justice Gates at the Windsor Court House at 10:00 a.m. and was open to the public. The company has filed a motion claiming essentially that as a matter of law the court has no jurisdiction to hear the workers' claim. The plaintiffs, Ms. Baker and Mr. Lucier, have also filed an affidavit in support of their position. The affidavit was sworn by former hourly worker Ken Claes. ORLANDO, FL: Set to Appear in Court Over Red-Light Cameras ---------------------------------------------------------- Dan Tracy and Robert Nolin, writing for Orlando Sentinel, report that lawyers will argue before the Florida Supreme Court early next year whether the cities of Orlando and Aventura had the right to install red-light cameras before they were approved by the Legislature. The stakes are higher than simply deciding whether their actions were legal. If the court rules against the two cities, it could set the stage for a "claw-back" of millions of dollars in fines paid by motorists caught driving through an intersection after the light turned red. And if Orlando and Aventura, which is in South Florida, have to issue refunds, other cities could be forced to follow suit. Getting at that cash is the ultimate goal of attorneys from a West Palm Beach law firm who will square off with the cities in Tallahassee, probably in February or March. It is targeting more than the $4.3 million from Orlando collected from 2008 to 2010 -- when Florida authorized the cameras -- but also an estimated $15 million to $20 million that other cities such as Aventura brought in during a similar time frame. "We're looking forward to continuing the good fight," said Dave Kerner, a lawyer with the West Palm Beach firm of Schuler, Halvorson, Weisser and Zoeller. Other cities that enacted the law early include West Palm Beach, Pembroke Pines and Juno Beach in South Florida, all of which settled the suits against them for lesser than full refunds. West Palm Beach, for example, agreed to pay each cited motorist $26.57. If Mr. Kerner's firm ultimately prevails, much of the money would be refunded to those who paid the fines, though the amount each would get has not been determined. The law firm also would be paid, with the amount decided by a judge. But it will not be easy getting at the money, even if the Supreme Court sides with Mr. Kerner's firm. Mr. Kerner would have to expand his client list from one to thousands by winning class-action status for the case, meaning he would need a court to certify the firm represents virtually all the people who paid the fines from before mid-2010. A previous attempt for class-action status was rejected by an Orange circuit judge. Mr. Kerner said he thinks he can get that standing if he wins in the Supreme Court, although he would not go into detail. If he is successful, he would have to go back to court and win again on behalf of his new clients. Orlando officials are skeptical that Mr. Kerner and his firm will win either argument, but would not offer their reasoning, saying that should be discussed in court, not in the news media. The case before the Supreme Court focuses partly on a ticket issued in May 2009 to Michael Udowychenko, a Kissimmee attorney. He paid the $125 fine but hired Mr. Kerner's firm to argue the cameras were illegal. The case has bounced around the judicial system since with some conflicting decisions. That led to the state Supreme Court announcing on its Web site on Nov. 6 that it would hear oral arguments after first considering written briefs. Orlando issued 48,579 red-light tickets from Sept. 1, 2008, to July 1, 2010, when the law changed allowing red-light cameras statewide. The city charged each offender $125 per ticket, but some offenders never paid. The fine went up to $158 when the state approved the cameras. Now, nearly 100 cities and counties in Florida have cameras, including Orange County, Apopka, Ocoee, Winter Park, Maitland, Kissimmee and Winter Springs. Nationwide, close to 700 jurisdictions have installed the cameras, according to the U.S. PIRG Education Fund, a consumer group. The 5th District Court of Appeal in Daytona Beach has ruled that Orlando did not have the right to start a red-light-camera system in 2008, but that decision does not affect the way the program has been run since the state law passed. The 3rd DCA in South Florida, however, also has ruled that cities were allowed to operate red-light cameras without state approval. The Supreme Court is expected to resolve that dispute. Orlando officials have said they launched the ticket-by-camera program before the state sanctioned them because Mayor Buddy Dyer and city commissioners had concluded it would reduce crashes and save lives. But critics have contended the cameras are all about raising money for cash-strapped governments. One national study found that red-light cameras saved 159 lives in 14 of the nation's biggest cities from 2004 to 2008. If similar programs had been operating in all large U.S. cities, 815 deaths could have been avoided during those four years, the Insurance Institute for Highway Safety said. PFIZER INC: Settles Pristiq Class Action for $67.5 Million ---------------------------------------------------------- Jonathan Stempel and Nate Raymond, writing for Reuters, report that Pfizer Inc. agreed to pay $67.5 million to settle a class- action lawsuit by former Wyeth Inc. shareholders who said they were misled about risks associated with the antidepressant Pristiq. The all-cash settlement was disclosed on Nov. 9, one month after Pfizer agreed to pay $164 million to settle a separate lawsuit accusing it of misleading investors about clinical trial results for the arthritis drug Celebrex. Wyeth shares lost more than $7.6 billion of market value on July 24, 2007, after the company said the U.S. Food and Drug Administration would not approve Pristiq to treat "hot flashes" in post-menopausal women until it learned more about potential heart and liver problems associated with the drug. Shareholders led by the Pipefitters Union Local 537 Pension Fund in Boston said Wyeth's failure to reveal adverse effects sooner caused its stock price to be inflated during the June 26, 2006, to July 24, 2007, class period. Pfizer bought Wyeth in 2009. Several former Wyeth officials, including onetime Chief Executive Robert Essner, are also defendants in the case. Christopher Loder, a Pfizer spokesman, said the defendants denied wrongdoing in agreeing to settle. Laurie Largent and David Rosenfeld, lawyers for the plaintiffs, did not immediately respond to requests for a comment. Pristiq generated $461 million of sales from January to September for Pfizer. Analysts once hoped annual sales would top $2 billion for the drug, whose chemical name is desvenlafaxine. The settlement followed nearly six months of mediation. It requires approval by U.S. District Judge Richard Sullivan in Manhattan, who certified the class action in September. Lawyers for the plaintiffs plan to seek attorneys' fees of roughly $16.5 million, plus as much as $650,000 for expenses, court papers show. The case, which has a Michigan retirement system as the named plaintiff, is City of Livonia Employees' Retirement System v. Wyeth et al, U.S. District Court, Southern District of New York, No. 07-10329. PRINCE GEORGE, WA: Public Schools System Faces Class Action ----------------------------------------------------------- NBC Washington reports that the Prince George's County Public Schools system is facing a lawsuit from the union that represents the schools' principals and administrators. The Association of Supervisory and Administrative School Personnel, or ASASP, filed a $100 million federal class action suit against the schools on November 2. The suit names the County School Board as well as former Superintendent Dr. William Hite. It claims 100 school administrators and principals were demoted or fired under Dr. Hite, and were the targets of age and race discrimination. "Dr. Hite alone replaced almost half of the principals in the schools," said Doris Reed, Executive Director of ASASP. "That kind of action reflects on what is happening in the schools." Dr. Hite served as superintendent of the Prince George's County Public Schools from 2009 until earlier this year. He is now the superintendent of the Philadelphia School District. Ms. Reed said the administrative changes during that time period likely affected students. "When you have administrators in the schools who are so demoralized, it's going to roll down to the children," Ms. Reed said. Almost 30 plaintiffs are named in the suit. A Prince George's County School spokesperson said the system will not comment on the lawsuit until it goes to court. SEI INVESTMENTS: Awaits Cert. Ruling in Stanford-Related Suit ------------------------------------------------------------- SEI Investments Company is awaiting a court decision on a motion for class certification in the putative class action pending in East Baton Rouge related to a Company subsidiary's role in providing back-office services to Stanford Trust Company, according to SEI's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. SEI has been named in six lawsuits filed in Louisiana. Five lawsuits were filed in the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. One of the five actions purports to set forth claims on behalf of a class and also names the Company's wholly-owned limited purpose federal thrift subsidiary, SEI Private Trust Company (SPTC), as a defendant. Two of the other actions also name SPTC as a defendant. All five actions name various defendants in addition to SEI, and, in all five actions, the plaintiffs purport to bring a cause of action under the Louisiana Securities Act. The putative class action originally included a claim against SEI and SPTC for an alleged violation of the Louisiana Unfair Trade Practices Act. Two of the other five actions include claims for violations of the Louisiana Racketeering Act and possibly conspiracy. In addition, another group of plaintiffs have filed a lawsuit in the 23rd Judicial District Court for the Parish of Ascension, State of Louisiana, against SEI and SPTC and other defendants asserting claims of negligence, breach of contract, breach of fiduciary duty, violations of the uniform fiduciaries law, negligent misrepresentation, detrimental reliance, violations of the Louisiana Securities Act and Louisiana Racketeering Act and conspiracy. The underlying allegations in all the actions are purportedly related to the role of SPTC in providing back-office services to Stanford Trust Company. The petitions allege that SEI and SPTC aided and abetted or otherwise participated in the sale of "certificates of deposit" issued by Stanford International Bank. Two of the five actions filed in East Baton Rouge have been removed to federal court, and plaintiffs' motions to remand are pending. These two cases have been transferred by the Judicial Panel on Multidistrict Litigation to United States District Court for the Northern District of Texas. On August 31, 2011, the United States District Court for the Northern District of Texas issued an order and judgment that the causes of action alleged against SEI and SPTC in the two remanded actions were preempted by federal law and the Court dismissed these cases with prejudice. The Court of Appeals for the Fifth Circuit granted an expedited appeal of the United States District Court's order and judgment. The appeal was briefed, and oral argument was held on February 7, 2012. On March 19, 2012, a panel of the Court of Appeals for the Fifth Circuit reversed the decision of the United States District Court and remanded the actions for further proceedings. On April 2, 2012, SEI filed with the United States Court of Appeals for the Fifth Circuit a petition for rehearing en banc of the panel's opinion. On April 19, 2012, the Fifth Circuit Court of Appeals denied the petition for rehearing. On July 18, 2012, the Company filed a petition for certiorari in the United States Supreme Court, seeking review of the decision by the United States Court of Appeals for the Eleventh Circuit to permit the claims against SEI to proceed. The Company believes that the trial court correctly concluded that the claims against SEI were barred by the federal Securities Litigation Uniform Standards Act and is requesting that the Supreme Court reinstate that dismissal. The case filed in Ascension Parish was also removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas. The schedule for responding to that complaint has not yet been established. The plaintiffs in the remaining two cases in East Baton Rouge have granted SEI an extension to respond to the filings. SEI and SPTC filed exceptions in the putative class action pending in East Baton Rouge, which the Court granted in part and dismissed the claims under the Louisiana Unfair Trade Practices Act and denied in part as to the other exceptions. SEI and SPTC filed an answer to the East Baton Rouge putative class action; plaintiffs filed a motion for class certification; and SEI and SPTC also filed a motion for summary judgment against certain named plaintiffs which the Court stated will not be set for hearing until after the hearing on the class certification motion. Following the decision by the United States District Court for the Northern District of Texas, the Court in the East Baton Rouge action issued an order staying the proceedings in the East Baton Rouge class action pending the outcome of the appeal of the order and judgment of the United States District Court for the Northern District of Texas. Following the panel opinion of the Court of Appeals on March 19, 2012, the Court in the East Baton Rouge action held a hearing on class certification on September 20, 2012. The Court in the East Baton Rouge action has not yet issued its decision on the class certification motion. While the outcome of this litigation is uncertain given its early phase, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. Because of the uncertainty of the make-up of the classes, the specific theories of liability that may survive a motion to dismiss, the lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the foregoing lawsuits. Based in Oaks, Pennsylvania and founded in 1968, SEI Investments Co. -- http://www.seic.com/-- is a publicly owned investment manager. The firm provides wealth management and investment advisory services to its clients through its subsidiaries. SEI INVESTMENTS: Plaintiffs Appeal Dismissal of ETF-Related Suit ---------------------------------------------------------------- Plaintiffs have taken an appeal from the dismissal of their class action lawsuit filed against a subsidiary of SEI Investments Company, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. One of SEI's principal subsidiaries, SEI Investments Distribution Co. (SIDCO), has been named as a defendant in certain putative class action complaints (the Complaints) related to leveraged exchange traded funds (ETFs) advised by ProShares Advisors, LLC. The first complaint was filed on August 5, 2009. To date, the Complaints have been filed in the United States District Court for the Southern District of New York and in the United States District Court for the District of Maryland. The three complaints filed in the District of Maryland have been voluntarily dismissed by the plaintiffs. Two of them were subsequently re-filed in the Southern District of New York. Two of the complaints filed in the Southern District of New York have also been voluntarily dismissed by plaintiffs. The Complaints are purportedly made on behalf of all persons that purchased or otherwise acquired shares in various ProShares leveraged ETFs pursuant or traceable to allegedly false and misleading registration statements, prospectuses and statements of additional information. The Complaints name as defendants ProShares Advisors, LLC; ProShares Trust; ProShares Trust II, SIDCO, and various officers and trustees to ProShares Advisors, LLC; ProShares Trust and ProShares Trust II. The Complaints allege that SIDCO was the distributor and principal underwriter for the various ProShares leveraged ETFs that were distributed to authorized participants and ultimately shareholders. The complaints allege that the registration statements for the ProShares ETFs were materially false and misleading because they failed adequately to describe the nature and risks of the investments. The Complaints allege that SIDCO is liable for these purportedly material misstatements and omissions under Section 11 of the Securities Act of 1933. The Complaints seek unspecified compensatory and other damages, reasonable costs and other relief. Defendants have moved to consolidate the complaints, which motion has been granted. The Court appointed lead plaintiff on July 13, 2010, and an amended consolidated class action complaint was filed on September 25, 2010, asserting substantially the same claims. This complaint subsequently was further amended by the plaintiffs. Defendants moved to dismiss the amended complaint and on September 7, 2012, the District Court for the Southern District of New York issued an opinion dismissing with prejudice the plaintiffs' amended complaint. On October 3, 2012, plaintiffs filed with the Second Circuit Court of Appeals a notice of appeal of the District Court's decision. While the outcome of this litigation is uncertain given its early phase, SEI believes that it has valid defenses to plaintiffs' claims and intends to defend the lawsuits vigorously. Based in Oaks, Pennsylvania and founded in 1968, SEI Investments Co. -- http://www.seic.com/-- is a publicly owned investment manager. The firm provides wealth management and investment advisory services to its clients through its subsidiaries. SP AUSNET: New Courtroom Prepared for Bushfire Class Action ----------------------------------------------------------- The Australian Associated Press reports that a massive Black Saturday bushfire class action will be held in a new courtroom large enough to house the trial, the Victorian government says. Some 1,500 victims of the February 2009 Kilmore East bushfire, which killed 119 people and razed more than 1000 homes, are suing electricity company SP AusNet. Victorian Supreme Court Justice Jack Forrest had warned the trial, scheduled to begin in January, could be delayed because there was no courtroom big enough to house the case. But a new courtroom in Melbourne is being refurbished and is due for completion in January, in time for the start of the Kilmore East trial, Attorney-General Robert Clark said on Nov. 12. "Until now, Victorian courts have had to seek use of the Federal Court facilities . . . to hold very large trials, and these facilities have not always been available," Mr. Clark said in a statement. The new courtroom, located in the William Cooper Justice Centre, would seat up to 40 lawyers at its bar tables and include public gallery seating for up to 100 people, he said. An additional floor will host conference rooms, retreat and counselling rooms and media facilities. SP AusNet has vowed to "vigorously defend" the class action, which centres on claims relating to the inspection and maintenance of its assets. TELLABS INC: "Makor" Securities Suit Dismissed in June ------------------------------------------------------ The consolidated securities class action complaint captioned Makor Issues & Rights, Ltd. v. Tellabs, Inc. was formally dismissed with prejudice last June 15, according to Tellabs' August 3, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2012. On June 18, 2002, a class action complaint was filed in the U.S. District Court of the Northern District of Illinois against Tellabs; Michael Birck, Chairman of the Board of Tellabs; and Richard Notebaert, former CEO, President and Director of Tellabs. Thereafter, eight similar complaints were also filed in the U.S. District Court of the Northern District of Illinois. All nine of these actions were subsequently consolidated, and on December 3, 2002, a consolidated amended class action complaint was filed against Tellabs, Mr. Birck, Mr. Notebaert, and certain other of the Company's current or former officers and/or directors. The consolidated amended complaint alleged that during the class period (December 11, 2000 to June 19, 2001) the defendants violated the federal securities laws by making materially false and misleading statements, including, among other things, allegedly providing revenue forecasts that were false and misleading, misrepresenting demand for the Company's products, and reporting overstated revenue for the fourth quarter 2000 in its financial statements. Further, certain of the individual defendants were alleged to have violated the federal securities laws by trading the Company's securities while allegedly in possession of material, non-public information about the Company pertaining to these matters. The consolidated amended complaint seeks unspecified restitution, damages and other relief. On January 17, 2003, Tellabs and the other named defendants filed a motion to dismiss the consolidated amended class action complaint in its entirety. On May 19, 2003, the Court granted the Company's motion and dismissed all counts of the consolidated amended complaint, while affording plaintiffs an opportunity to replead. On July 11, 2003, plaintiffs filed a second consolidated amended class action complaint against Tellabs, Messrs. Birck and Notebaert, and many (although not all) of the other previously named individual defendants, realleging claims similar to those contained in the previously dismissed consolidated amended class action complaint. The Company filed a second motion to dismiss on August 22, 2003, seeking the dismissal with prejudice of all claims alleged in the second consolidated amended class action complaint. On February 19, 2004, the Court issued an order granting that motion and dismissed the action with prejudice. On March 18, 2004, the plaintiffs filed a Notice of Appeal to the United States Federal Court of Appeal for the Seventh Circuit, appealing the dismissal. The appeal was fully briefed and oral argument was heard on January 21, 2005. On January 25, 2006, the Seventh Circuit issued an opinion affirming in part and reversing in part the judgment of the district court, and remanding for further proceedings. On February 8, 2006, defendants filed with the Seventh Circuit a petition for rehearing with suggestion for rehearing en banc. On April 19, 2006, the Seventh Circuit ordered plaintiffs to file an answer to the petition for rehearing, which was filed by the plaintiffs on May 3, 2006. On July 10, 2006, the Seventh Circuit denied the petition for rehearing with a minor modification to its opinion, and remanded the case to the district court. On September 22, 2006, defendants filed a motion in the district court to dismiss some (but not all) of the remaining claims. On October 3, 2006, the defendants filed with the United States Supreme Court a petition for a writ of certiorari seeking to appeal the Seventh Circuit's decision. On January 5, 2007, the defendants' petition was granted. The United States Supreme Court heard oral arguments on March 28, 2007. On June 21, 2007, the United States Supreme Court vacated the Seventh Circuit's judgment and remanded the case for further proceedings. On November 1, 2007, the Seventh Circuit heard oral arguments for the remanded case. On January 17, 2008, the Seventh Circuit issued an opinion adhering to its earlier opinion reversing in part the judgment of the district court, and remanded the case to the district court for further proceedings. On February 24, 2009, the district court granted plaintiffs' motion for class certification. On August 13, 2010, the Court granted in large part Tellabs' motion for summary judgment. Subsequently, the parties agreed to settle the lawsuit and on July 27, 2011, the Court granted the plaintiffs' motion for final approval of class action settlement and dismissed the lawsuit without prejudice. The lawsuit was dismissed with prejudice on June 15, 2012. All settlement amounts were paid by Tellabs' insurers. Tellabs, Inc., is a telecommunications company that designs and manufactures equipment for service providers. TRAVELERS COS: Appeal From "Safeco" Suit Deal Approval Pending -------------------------------------------------------------- The Travelers Indemnity Company, a subsidiary of The Travelers Companies, Inc., is one of the Settlement Class plaintiffs and a class member in a class action lawsuit captioned Safeco Insurance Company of America, et al. v. American International Group, Inc. et al. (U.S. District Court, N.D. Ill.) in which the defendants are alleged to have engaged in the under-reporting of workers' compensation premium in connection with a workers' compensation reinsurance pool in which several subsidiaries of the Company participate. On July 26, 2011, the court granted preliminary approval of a class settlement pursuant to which the defendants agreed to pay $450 million to the class. The settlement includes a plan of allocation of the settlement proceeds among the class members. On December 21, 2011, the court entered an order granting final approval of the settlement, and on February 28, 2012, the district court issued a written opinion regarding its approval of the settlement. Three parties who objected to the settlement have appealed the court's orders approving the settlement to the U.S. Court of Appeals for the Seventh Circuit. No further updates were reported in the Company's October 18, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company anticipates that its allocation from the settlement fund, in the event the court's approval of the class settlement is affirmed, will be approximately $90 million. This amount is treated for accounting purposes as a gain contingency in accordance with FASB Topic 450, Contingencies, and accordingly, has not been recognized in the Company's consolidated financial statements. TRAVELERS COS: Appeals From Antitrust Suit Deal Order Pending ------------------------------------------------------------- In 2005, four putative class action lawsuits were brought against a number of insurance brokers and insurers, including The Travelers Companies, Inc., by plaintiffs who allegedly purchased insurance products through one or more of the defendant brokers. The plaintiffs alleged that various insurance brokers conspired with each other and with various insurers, including the Company, to artificially inflate premiums, allocate brokerage customers and rig bids for insurance products offered to those customers. To the extent they were not originally filed there, the federal class actions were transferred to the U.S. District Court for the District of New Jersey and were consolidated for pre-trial proceedings with other class actions under the caption In re Insurance Brokerage Antitrust Litigation. On August 1, 2005, various plaintiffs, including the four named plaintiffs in the class actions, filed an amended consolidated class action complaint naming various brokers and insurers, including the Company, on behalf of a putative nationwide class of policyholders. The complaint included causes of action under the Sherman Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), state common law and the laws of the various states prohibiting antitrust violations. The complaint sought monetary damages, including punitive damages and trebled damages, permanent injunctive relief, restitution, including disgorgement of profits, interest and costs, including attorneys' fees. All defendants moved to dismiss the complaint for failure to state a claim. After giving plaintiffs multiple opportunities to replead, the court dismissed the Sherman Act claims on August 31, 2007, and the RICO claims on September 28, 2007, both with prejudice, and declined to exercise supplemental jurisdiction over the state law claims. The plaintiffs appealed the district court's decisions to the U.S. Court of Appeals for the Third Circuit. On August 16, 2010, the Third Circuit affirmed the district court's dismissal of all Sherman Act and RICO claims against certain defendants, including the Company, except for Sherman Act and RICO claims involving the sale of excess casualty insurance through a single defendant broker, as well as all state law claims, which they remanded to the district court for further proceedings. On October 1, 2010, defendants, including the Company, filed renewed motions to dismiss the remanded claims. On March 18, 2011, the Company and certain other defendants entered into an agreement with the plaintiffs to settle the lawsuit, under which the Company agreed to pay $6.75 million. Preliminary approval of the settlement was granted on June 27, 2011. On September 14, 2011, the court conducted a final fairness hearing, and on March 30, 2012, the court granted final approval of the settlement. On April 27, 2012, three members of the settlement class appealed the court's order granting final approval of the settlement to the U.S. Court of Appeals for the Third Circuit. Those appeals are pending. No further updates were reported in the Company's October 18, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. TRAVELERS COS: Appeals in Asbestos-Related Suits Still Pending -------------------------------------------------------------- Appeals from a March 1, 2012 decision related to settlements in asbestos-related lawsuits remain pending in the Second Circuit Court of Appeals, according to The Travelers Companies, Inc.'s October 18, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In October 2001 and April 2002, two purported class action lawsuits (Wise v. Travelers and Meninger v. Travelers) were filed against Travelers Property Casualty Corp. (TPC) and other insurers (not including The St. Paul Companies, Inc. (SPC)) in state court in West Virginia. These and other cases subsequently filed in West Virginia were consolidated into a single proceeding in the Circuit Court of Kanawha County, West Virginia. The plaintiffs allege that the insurer defendants engaged in unfair trade practices in violation of state statutes by inappropriately handling and settling asbestos claims. The plaintiffs seek to reopen large numbers of settled asbestos claims and to impose liability for damages, including punitive damages, directly on insurers. Similar lawsuits alleging inappropriate handling and settling of asbestos claims were filed in Massachusetts and Hawaii state courts. These lawsuits are collectively referred to as the Statutory and Hawaii Actions. In March 2002, the plaintiffs in consolidated asbestos actions pending before a mass tort panel of judges in West Virginia state court amended their complaint to include TPC as a defendant, alleging that TPC and other insurers breached alleged duties to certain users of asbestos products. The plaintiffs seek damages, including punitive damages. Lawsuits seeking similar relief and raising similar allegations, primarily violations of purported common law duties to third parties, have also been asserted in various state courts against TPC and SPC. The claims asserted in these lawsuits are collectively referred to as the Common Law Claims. The federal bankruptcy court that had presided over the bankruptcy of TPC's former policyholder Johns-Manville Corporation issued a temporary injunction prohibiting the prosecution of the Statutory Actions (but not the Hawaii Actions), the Common Law Claims and an additional set of cases filed in various state courts in Texas and Ohio, and enjoining certain attorneys from filing any further lawsuits against TPC based on similar allegations. Notwithstanding the injunction, additional common law claims were filed against TPC. In November 2003, the parties reached a settlement of the Statutory and Hawaii Actions. This settlement includes a lump-sum payment of up to $412 million by TPC, subject to a number of significant contingencies. In May 2004, the parties reached a settlement resolving substantially all pending and similar future Common Law Claims against TPC. This settlement requires a payment of up to $90 million by TPC, subject to a number of significant contingencies. Among the contingencies for each of these settlements is a final order of the bankruptcy court clarifying that all of these claims, and similar future asbestos-related claims against TPC, are barred by prior orders entered by the bankruptcy court ("the 1986 Orders"). On August 17, 2004, the bankruptcy court entered an order approving the settlements and clarifying that the 1986 Orders barred the pending Statutory and Hawaii Actions and substantially all Common Law Claims pending against TPC ("the Clarifying Order"). The Clarifying Order also applies to similar direct action claims that may be filed in the future. On March 29, 2006, the U.S. District Court for the Southern District of New York substantially affirmed the Clarifying Order while vacating that portion of the order that required all future direct actions against TPC to first be approved by the bankruptcy court before proceeding in state or federal court. Various parties appealed the district court's March 29, 2006 ruling to the U.S. Court of Appeals for the Second Circuit. On February 15, 2008, the Second Circuit issued an opinion vacating on jurisdictional grounds the District Court's approval of the Clarifying Order. On February 29, 2008, TPC and certain other parties to the appeals filed petitions for rehearing and/or rehearing en banc, requesting reinstatement of the district court's judgment, which were denied. TPC and certain other parties filed Petitions for Writ of Certiorari in the United States Supreme Court seeking review of the Second Circuit's decision, and on December 12, 2008, the Petitions were granted. On June 18, 2009, the Supreme Court ruled in favor of TPC, reversing the Second Circuit's February 15, 2008 decision, finding, among other things, that the 1986 Orders are final and generally bar the Statutory and Hawaii actions and substantially all Common Law Claims against TPC. Further, the Supreme Court ruled that the bankruptcy court had jurisdiction to issue the Clarifying Order. However, since the Second Circuit had not ruled on certain additional issues, principally related to procedural matters and the adequacy of notice provided to certain parties, the Supreme Court remanded the case to the Second Circuit for further proceedings on those specific issues. On October 21, 2009, all but one of the objectors to the Clarifying Order requested that the Second Circuit dismiss their appeal of the order approving the settlement, and that request was granted. On March 22, 2010, the Second Circuit issued an opinion in which it found that the notice of the 1986 Orders provided to the remaining objector was insufficient to bar contribution claims by that objector against TPC. On April 5, 2010, TPC filed a Petition for Rehearing and Rehearing En Banc with the Second Circuit, requesting further review of its March 22, 2010 opinion, which was denied on May 25, 2010. On August 18, 2010, TPC filed a Petition for Writ of Certiorari in the United States Supreme Court seeking review of the Second Circuit's March 22, 2010 opinion, and a Petition for a Writ of Mandamus seeking an order from the Supreme Court requiring the Second Circuit to comply with the Supreme Court's June 18, 2009 ruling in TPC's favor. The Supreme Court denied the Petitions on November 29, 2010. The plaintiffs in the Statutory and Hawaii actions and the Common Law Claims actions filed Motions to Compel with the bankruptcy court on September 2, 2010, and September 3, 2010, respectively, arguing that all conditions precedent to the settlements have been met and seeking to require TPC to pay the settlement amounts. On September 30, 2010, TPC filed an Opposition to the plaintiffs' Motions to Compel on the grounds that the conditions precedent to the settlements, principally the requirement that all contribution claims be barred, have not been met in light of the Second Circuit's March 22, 2010 opinion. On December 16, 2010, the bankruptcy court granted the plaintiffs' motions and ruled that TPC was required to fund the settlements. On January 20, 2011, the bankruptcy court entered judgment in accordance with its December 16, 2010 ruling and ordered TPC to pay the settlement amounts plus prejudgment interest. On January 21, 2011, TPC filed an appeal with the U.S. District Court for the Southern District of New York from the bankruptcy court's January 20, 2011 judgment. On January 24, 2011, certain of the plaintiffs in the Common Law Claims actions appealed that portion of the bankruptcy court's January 20, 2011 judgment that denied their request for an order of contempt and for sanctions. On March 1, 2012, the district court ruled in TPC's favor and reversed the bankruptcy court, finding that the conditions to the settlements had not been met, and that TPC is not obligated to pay the settlement amounts. The district court also upheld the bankruptcy court's order denying the plaintiffs' motion for an order of contempt and for sanctions. The district court further ruled that, since TPC is not obligated to go forward with the settlements, it was unnecessary to address the issue of pre- judgment interest. The plaintiffs appealed the district court's March 1, 2012 decision to the Second Circuit Court of Appeals, and those appeals are pending. SPC, which is not covered by the Manville bankruptcy court rulings or the settlements, is a party to pending direct action cases in Texas state court asserting common law claims. All such cases that are still pending and in which SPC has been served are currently on the inactive docket in Texas state court. If any of those cases becomes active, SPC intends to litigate those cases vigorously. SPC was previously a defendant in similar direct actions in Ohio state court. Those actions have all been dismissed following favorable rulings by Ohio trial and appellate courts. From time to time, SPC and/or its subsidiaries have been named in individual direct actions in other jurisdictions. UNION PACIFIC: Class Cert. Appeal in Antirust Suit Still Pending ---------------------------------------------------------------- An appeal from a class certification ruling in the antitrust lawsuits involving Union Pacific Corporation and a subsidiary remains pending, according to the Company's October 18, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. As previously reported, 20 small rail shippers (many of whom are represented by the same law firms) filed virtually identical antitrust lawsuits in various federal district courts against the Company and four other Class I railroads in the U.S (one railroad was eventually dropped from the lawsuit). The original plaintiff filed the first of these claims in the U.S. District Court in New Jersey on May 14, 2007, and the additional plaintiffs filed claims in district courts in various states, including Florida, Illinois, Alabama, Pennsylvania, and the District of Columbia. These lawsuits allege that the named railroads engaged in price-fixing by establishing common fuel surcharges for certain rail traffic. The Company received additional complaints following the initial claim, increasing the total number of complaints to 30. In addition to lawsuits filed by direct purchasers of rail transportation, a few of the lawsuits involved plaintiffs alleging that they are or were indirect purchasers of rail transportation and seeking to represent a purported class of indirect purchasers of rail transportation that paid fuel surcharges. These complaints added allegations under state antitrust and consumer protection laws. On November 6, 2007, the Judicial Panel on Multidistrict Litigation ordered that all of the rail fuel surcharge cases be transferred to Judge Paul Friedman of the U.S. District Court in the District of Columbia for coordinated or consolidated pretrial proceedings. Subsequently, the direct purchaser plaintiffs and the indirect purchaser plaintiffs filed Consolidated Amended Class Action Complaints against the Company's subsidiary, Union Pacific Railroad Company ("UPRR") and three other Class I railroads. One additional shipper filed a separate antitrust lawsuit during 2008. Subsequently, the shipper voluntarily dismissed the action without prejudice. On October 10, 2008, Judge Friedman heard oral arguments with respect to the defendant railroads' motions to dismiss. In a ruling on November 7, 2008, Judge Friedman denied the motion with respect to the direct purchasers' complaint, and pretrial proceedings are underway in that case. On December 31, 2008, Judge Friedman dismissed the complaints of the indirect purchasers based upon state antitrust, consumer protection, and unjust enrichment laws. He also ruled, however, that these plaintiffs could proceed with their claim for injunctive relief under the federal antitrust laws, which is identical to a claim by the direct purchaser plaintiffs. The indirect purchasers appealed Judge Friedman's ruling to the U.S. Court of Appeals for the District of Columbia. On April 16, 2010, the U.S. Court of Appeals for the District of Columbia affirmed Judge Friedman's ruling dismissing the indirect purchasers' claims based on various state laws. With respect to the direct purchasers' complaint, Judge Friedman conducted a two-day hearing on October 6 and 7, 2010, on the class certification issue and the railroad defendants' motion to exclude evidence of interline communications. On April 7, 2011, Judge Friedman issued an order deferring any decision on class certification until the Supreme Court issued its decision in the Wal-Mart employment discrimination case. On June 21, 2012, Judge Friedman issued his decision certifying a class of plaintiffs to be represented by the eight named plaintiffs. The class includes all shippers that paid a rate- based fuel surcharge to any one of the defendant railroads for rate-unregulated rail transportation from July 1, 2003, through December 1, 2008. This is a procedural ruling, which does not affirm any of the claims asserted by the plaintiffs and does not affect the ability of the railroad defendants to disprove the allegations made by the plaintiffs. On July 5, 2012, the defendant railroads filed a petition with the U.S. Court of Appeals for the District of Columbia requesting that the court review the class certification ruling. On August 28, 2012, a panel of the Circuit Court of the District of Columbia referred the petition to a merits panel of the court to address the issues in the petition and to address whether the district court properly granted class certification. The Company denies the allegations that its fuel surcharge programs violate the antitrust laws or any other laws. The Company believes that these lawsuits are without merit, and it will vigorously defend its actions. Therefore, the Company currently believes that these matters will not have a material adverse effect on any of its results of operations, financial condition and liquidity. ZYNGA INC: Continues to Face Securities Class Action Lawsuits ------------------------------------------------------------- Zynga Inc. continues to face securities class action lawsuits, according to the Company's October 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On July 30, 2012, a purported securities class action captioned DeStefano v. Zynga Inc. et al., Case No. 3:12-cv-04007-JSW, was filed in the United States District Court for the Northern District of California against the Company, and certain of the Company's current and former directors, officers, and executives. Additional purported securities class actions containing similar allegations have since been filed in the Northern District. On September 26, 2012, the court consolidated various of the class actions as In re Zynga Inc. Securities Litigation, Lead Case No. 12-cv-04007-JSW. In addition, a securities class action captioned Reyes v. Zynga Inc., et al. was filed on August 1, 2012, in San Francisco County Superior Court, and removed to the Northern District on September 28, 2012. The various class action complaints allege that the defendants violated the federal securities laws by issuing false or misleading statements regarding the Company's business and financial projections. The various plaintiffs seek to represent a class of persons who purchased or otherwise acquired the Company's securities between December 16, 2011, and July 25, 2012. The complaints assert claims for unspecified damages, and an award of costs and expenses to the putative class, including attorneys' fees. The Company believes it has meritorious defenses and will vigorously defend these actions. The Company says the actions have only recently been filed and there has been no discovery or other proceedings. Accordingly, the Company is not in a position to assess whether any loss or adverse effect on its financial condition is probable or remote or to estimate the range of potential loss, if any. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter Chapman at 240/629-3300. * * * End of Transmission * * *