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C L A S S A C T I O N R E P O R T E R
Thursday, January 10, 2013, Vol. 15, No. 7
Headlines
ALTRIA GROUP: "Tang" and "Lawrence" Lights Cases Dismissed
ALTRIA GROUP: Appeals in "Smith" Price-Fixing Suit Remain Pending
ALTRIA GROUP: Counsel Fee Issue in "Scott" Suit Remains Pending
ALTRIA GROUP: Philip Morris Not Dismissed in "Brown" Class Suit
ALTRIA GROUP: Smoking and Health Class Action Suits Still Pending
ALTRIA GROUP: Two Medical Monitoring Suits vs. Unit Still Pending
BANK OF AMERICA: Jan. 18 Class Action Settlement Deadline Set
BLUE CROSS: Faces Class Action Antitrust Complaint
BOB EVANS: Faces Age Bias Class Action in Florida
CASH AMERICA: Appeal in "Strong" Class Suit Remains Pending
CHATTEM INC: April 8 Class Action Opt-Out Deadline Set
COMMERCIAL METALS: Antitrust Suits Pending in Ill. and Tenn.
DAVEY TREE: Class Cert. Denial in Rice Canyon Fire Suits Affirmed
DAVEY TREE: Paid $2.9-Mil. Under "Ely" Class Suit Settlement
DEX ONE: Still Awaits Approval of $2.1MM ERISA Suit Settlement
DOW CHEMICAL: Paid $133-Mil. as of Sept. 30 in Pension Plan Deal
EASTMAN KODAK: Suit Claiming Kodak Hid Bankruptcy Plans Reopened
ELECTRONIC GAME: Rosen Law Firm Files Securities Class Action
ELOQUA: Being Sold to Oracle for Too Little, Suit Claims
FACEBOOK INC: May 2 Settlement Claims Filing Deadline Set
HEMISPHERX BIOPHARMA: Rosen Reminds of Lead Plaintiff Deadline
HOWREY LLP: Creditor Defends Right to Bring Alter Ego Claims
KIA SORENTO: Faces Class Action Over Some Defective Parts
LONG ISLAND POWER: Faces Class Action Over Gross Negligence
LONGWEI PETROLEUM: Rosen Law Firm Files Class Action in Calif.
SILVERCORP: RCMP Mulls Probe on Alleged Criminal Violations
*********
ALTRIA GROUP: "Tang" and "Lawrence" Lights Cases Dismissed
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Two "lights" lawsuits against Altria Group, Inc. have been
dismissed -- the "Tang" case in New York in July and the
"Lawrence" case in New Hampshire in October, according to the
Company's October 30, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
The Company also disclosed in its latest Form 10-Q filing that a
certification hearing in the "Phillips" lights case has been set
for August 30, 2013, while a new trial in the "Larsen" lights case
has been set for January 2014.
"Lights/Ultra Lights" Cases
Plaintiffs in certain pending matters seek certification of their
cases as class actions and allege, among other things, that the
uses of the terms "Lights" and/or "Ultra Lights" constitute
deceptive and unfair trade practices, common law fraud, or RICO
violations, and seek injunctive and equitable relief, including
restitution and, in certain cases, punitive damages. These class
actions have been brought against PM USA and, in certain
instances, Altria Group, Inc. or its subsidiaries, on behalf of
individuals who purchased and consumed various brands of
cigarettes, including Marlboro Lights, Marlboro Ultra Lights,
Virginia Slims Lights and Superslims, Merit Lights and Cambridge
Lights. Defenses raised in these cases include lack of
misrepresentation, lack of causation, injury and damages, the
statute of limitations, non-liability under state statutory
provisions exempting conduct that complies with federal regulatory
directives, and the First Amendment.
As of October 25, 2012, a total of 14 such cases were pending in
the United States. Three of these cases were pending in U.S.
federal courts. The other cases were pending in various U.S.
state courts. In addition, a purported "Lights" class action is
pending against PM USA in Israel.
In the one "Lights" case pending in Israel (El-Roy), hearings on
plaintiffs' motion for class certification were held in November
and December 2008, and an additional hearing on class
certification was held in November 2011.
The Good Case
In May 2006, a federal trial court in Maine granted PM USA's
motion for summary judgment in Good, a purported "Lights" class
action, on the grounds that plaintiffs' claims are preempted by
the Federal Cigarette Labeling and Advertising Act ("FCLAA") and
dismissed the case. In December 2008, the United States Supreme
Court ruled that plaintiffs' claims are not barred by federal
preemption. Although the Court rejected the argument that the
FTC's actions were so extensive with respect to the descriptors
that the state law claims were barred as a matter of federal law,
the Court's decision was limited: it did not address the ultimate
merits of plaintiffs' claim, the viability of the action as a
class action, or other state law issues. The case was returned to
the federal court in Maine and consolidated with other federal
cases in the multidistrict litigation proceeding. In June 2011,
the plaintiffs voluntarily dismissed the case without prejudice
after the district court denied plaintiffs' motion for class
certification, concluding the litigation.
Federal Multidistrict Proceeding
and Subsequent Developments
Since the December 2008 United States Supreme Court decision in
Good, and through October 25, 2012, 24 purported "Lights" class
actions were served upon PM USA and, in certain cases, Altria
Group, Inc. These cases were filed in 14 states, the U.S. Virgin
Islands and the District of Columbia. All of these cases either
were filed in federal court or were removed to federal court by PM
USA and were transferred and consolidated by the Judicial Panel on
Multidistrict Litigation ("JPMDL") before the United States
District Court for the District of Maine for pretrial proceedings
("MDL proceeding").
In November 2010, the district court in the MDL proceeding denied
plaintiffs' motion for class certification in four cases, covering
the jurisdictions of California, the District of Columbia,
Illinois and Maine. These jurisdictions were selected by the
parties as sample cases, with two selected by plaintiffs and two
selected by defendants. Plaintiffs sought appellate review of
this decision but, in February 2011, the United States Court of
Appeals for the First Circuit denied plaintiffs' petition for
leave to appeal. Later that year, plaintiffs in 13 cases
voluntarily dismissed without prejudice their cases. In April
2012, the JPMDL remanded the remaining four cases (Phillips, Tang,
Wyatt and Cabbat) back to the federal district courts in which the
suits originated.
In Phillips, which is now pending in the United States District
Court for the Northern District of Ohio, defendants filed in June
2012 a motion for partial judgment on the pleadings on plaintiffs'
class action consumer sales practices claims and a motion for
judgment on the pleadings on plaintiffs' state deceptive trade
practices claims. A hearing on plaintiff's motion for class
certification was set for August 30, 2013.
In Tang, which was pending in the United States District Court for
the Eastern District of New York, the plaintiffs voluntarily
dismissed the case without prejudice on July 30, 2012, concluding
the litigation.
In Cabbat, which is pending in the United States District Court
for the District of Hawaii, plaintiffs on July 30, 2012, amended
their complaint, adding a claim for unjust enrichment and dropping
their claims for breach of express and implied warranty.
"Lights" Cases Dismissed,
Not Certified or Ordered De-Certified
To date, in addition to the district court in the MDL proceeding,
16 courts in 17 "Lights" cases have refused to certify class
actions, dismissed class action allegations, reversed prior class
certification decisions or have entered judgment in favor of PM
USA.
Trial courts in Arizona, Illinois, Kansas, New Jersey, New Mexico,
Oregon, Tennessee and Washington have refused to grant class
certification or have dismissed plaintiffs' class action
allegations. Plaintiffs voluntarily dismissed a case in Michigan
after a trial court dismissed the claims plaintiffs asserted under
the Michigan Unfair Trade and Consumer Protection Act.
Several appellate courts have issued rulings that either affirmed
rulings in favor of Altria Group, Inc. and/or PM USA or reversed
rulings entered in favor of plaintiffs. In Florida, an
intermediate appellate court overturned an order by a trial court
that granted class certification in Hines. The Florida Supreme
Court denied review in January 2008. The Supreme Court of
Illinois has overturned a judgment that awarded damages to a
certified class in the Price case. In Louisiana, the United
States Court of Appeals for the Fifth Circuit dismissed a
purported "Lights" class action brought in Louisiana federal court
(Sullivan) on the grounds that plaintiffs' claims were preempted
by the FCLAA. In New York, the United States Court of Appeals for
the Second Circuit overturned a decision by a New York trial court
in Schwab that denied defendants' summary judgment motions and
granted plaintiffs' motion for certification of a nationwide class
of all United States residents that purchased cigarettes in the
United States that were labeled "Light" or "Lights." In July
2010, plaintiffs in Schwab voluntarily dismissed the case with
prejudice. In Ohio, the Ohio Supreme Court overturned class
certifications in the Marrone and Phillips cases. Plaintiffs
voluntarily dismissed without prejudice both cases in August 2009,
but refiled in federal court (discussed above). The Supreme Court
of Washington denied a motion for interlocutory review filed by
the plaintiffs in the Davies case that sought review of an order
by the trial court that refused to certify a class. Plaintiffs
subsequently voluntarily dismissed the Davies case with prejudice.
In August 2011, the United States Court of Appeals for the Seventh
Circuit affirmed the Illinois federal district court's dismissal
of "Lights" claims brought against PM USA in the Cleary case.
In Curtis, a certified class action, in May 2012, the Minnesota
Supreme Court affirmed the trial court's entry of summary judgment
in favor of PM USA, concluding this litigation.
In Lawrence, on August 21, 2012, the New Hampshire Supreme Court
reversed the trial court's order to certify a class and
subsequently denied plaintiffs' rehearing petition. On
October 26, 2012, the case was dismissed after plaintiffs filed a
motion to dismiss the case with prejudice, concluding this
litigation.
In Oregon (Pearson), a state court denied plaintiff's motion for
interlocutory review of the trial court's refusal to certify a
class. In February 2007, PM USA filed a motion for summary
judgment based on federal preemption and the Oregon statutory
exemption. In September 2007, the district court granted PM USA's
motion based on express preemption under the FCLAA, and plaintiffs
appealed this dismissal and the class certification denial to the
Oregon Court of Appeals. Argument was held in April 2010.
Other Developments
In December 2009, the state trial court in the Carroll (formerly
known as Holmes) case (pending in Delaware) denied PM USA's motion
for summary judgment based on an exemption provision in the
Delaware Consumer Fraud Act. In January 2011, the trial court
allowed the plaintiffs to file an amended complaint substituting
class representatives and naming Altria Group, Inc. and PMI as
additional defendants. In July 2011, the parties stipulated to
the dismissal without prejudice of Altria Group, Inc. and PMI.
The stipulation is signed by the parties but not yet approved by
the trial court.
In June 2007, the United States Supreme Court reversed the lower
court rulings in the Miner (formerly known as Watson) case that
denied plaintiffs' motion to have the case heard in a state, as
opposed to federal, trial court. The Supreme Court rejected
defendants' contention that the case must be tried in federal
court under the "federal officer" statute. The case was removed
to federal court in Arkansas and the case was transferred to the
MDL proceeding. In November 2010, the district court in the MDL
proceeding remanded the case to Arkansas state court. In December
2011, the plaintiffs voluntarily dismissed their claims against
Altria Group, Inc. without prejudice.
The Price Case
Trial in the Price case commenced in state court in Illinois in
January 2003, and in March 2003, the judge found in favor of the
plaintiff class and awarded $7.1 billion in compensatory damages
and $3 billion in punitive damages against PM USA. In December
2005, the Illinois Supreme Court reversed the trial court's
judgment in favor of the plaintiffs. In November 2006, the United
States Supreme Court denied plaintiffs' petition for writ of
certiorari and, in December 2006, the Circuit Court of Madison
County enforced the Illinois Supreme Court's mandate and dismissed
the case with prejudice.
In December 2008, plaintiffs filed with the trial court a petition
for relief from the final judgment that was entered in favor of PM
USA. Specifically, plaintiffs sought to vacate the judgment
entered by the trial court on remand from the 2005 Illinois
Supreme Court decision overturning the verdict on the ground that
the United States Supreme Court's December 2008 decision in Good
demonstrated that the Illinois Supreme Court's decision was
"inaccurate." PM USA filed a motion to dismiss plaintiffs'
petition and, in February 2009, the trial court granted PM USA's
motion on the basis that the petition was not timely filed. In
March 2009, the Price plaintiffs filed a notice of appeal with the
Fifth Judicial District of the Appellate Court of Illinois. In
February 2011, the intermediate appellate court ruled that the
petition was timely filed and reversed the trial court's dismissal
of the plaintiffs' petition and, in September 2011, the Illinois
Supreme Court declined PM USA's petition for review. As a result,
the case has returned to the trial court for proceedings on
whether the court should grant the plaintiffs' petition to reopen
the prior judgment. In February 2012, plaintiffs filed an amended
petition, which PM USA opposed. Subsequently, in responding to PM
USA's opposition to the amended petition, plaintiffs asked the
trial court to reinstate the original judgment. A hearing on PM
USA's opposition to plaintiffs' amended petition was held on
August 21, 2012.
In June 2009, the plaintiff in an individual smoker lawsuit
(Kelly) brought on behalf of an alleged smoker of "Lights"
cigarettes in Madison County, Illinois state court filed a motion
seeking a declaration that his claims under the Illinois Consumer
Fraud Act are not (i) barred by the exemption in that statute
based on his assertion that the Illinois Supreme Court's decision
in Price is no longer good law in light of the decisions by the
United States Supreme Court in Good and Watson, and (ii) preempted
in light of the United States Supreme Court's decision in Good.
In September 2009, the court granted plaintiff's motion as to
federal preemption, but denied it with respect to the state
statutory exemption.
State Trial Court Class Certifications
State trial courts have certified classes against PM USA in
several jurisdictions. Over time, several such cases have been
dismissed by the courts at the summary judgment stage. Certified
class actions remain pending in California (Brown), Massachusetts
(Aspinall), and Missouri (Larsen) and one was recently dismissed
in New Hampshire (Lawrence).
Significant developments in these cases include:
* Aspinall: In August 2004, the Massachusetts Supreme Judicial
Court affirmed the class certification order. In August 2006, the
trial court denied PM USA's motion for summary judgment and
granted plaintiffs' motion for summary judgment on the defenses of
federal preemption and a state law exemption to Massachusetts'
consumer protection statute. On motion of the parties, the trial
court subsequently reported its decision to deny summary judgment
to the appeals court for review and stayed further proceedings
pending completion of the appellate review. In December 2008,
subsequent to the United States Supreme Court's decision in Good,
the Massachusetts Supreme Judicial Court issued an order
requesting that the parties advise the court within 30 days
whether the Good decision is dispositive of federal preemption
issues pending on appeal. In January 2009, PM USA notified the
Massachusetts Supreme Judicial Court that Good is dispositive of
the federal preemption issues on appeal, but requested further
briefing on the state law statutory exemption issue. In March
2009, the Massachusetts Supreme Judicial Court affirmed the order
denying summary judgment to PM USA and granting the plaintiffs'
cross-motion. In January 2010, plaintiffs moved for partial
summary judgment as to liability claiming collateral estoppel from
the findings in the case brought by the Department of Justice. In
March 2012, the trial court denied plaintiffs' motion.
* Larsen: In August 2005, a Missouri Court of Appeals affirmed
the class certification order. In December 2009, the trial court
denied plaintiffs' motion for reconsideration of the period during
which potential class members can qualify to become part of the
class. The class period remains 1995 through 2003. In June 2010,
PM USA's motion for partial summary judgment regarding plaintiffs'
request for punitive damages was denied. In April 2010,
plaintiffs moved for partial summary judgment as to an element of
liability in the case, claiming collateral estoppel from the
findings in the case brought by the Department of Justice (see
Federal Government's Lawsuit described above). The plaintiffs'
motion was denied in December 2010. In June 2011, PM USA filed
various summary judgment motions challenging the plaintiffs'
claims. In August 2011, the trial court granted PM USA's motion
for partial summary judgment, ruling that plaintiffs could not
present a damages claim based on allegations that Marlboro Lights
are more dangerous than Marlboro Reds. The trial court denied PM
USA's remaining summary judgment motions. Trial in the case began
in September 2011 and, in October 2011, the court declared a
mistrial after the jury failed to reach a verdict. The court has
continued the new trial through January 2014, with an exact date
to be determined.
* Lawrence: In November 2010, the trial court certified a class
consisting of all persons who purchased Marlboro Lights cigarettes
in the state of New Hampshire at any time from the date the brand
was introduced into commerce until the date trial in the case
begins. PM USA's motion for reconsideration of this decision was
denied in January 2011. In September 2011, the New Hampshire
Supreme Court accepted review of the class certification decision.
On August 21, 2012, the New Hampshire Supreme Court reversed the
trial court decision, holding that the trial court abused its
discretion in certifying the class. Plaintiffs' motion for
reconsideration with the New Hampshire Supreme Court was denied on
October 1, 2012. On October 26, 2012, the case was dismissed
after plaintiffs filed a motion to dismiss the case with
prejudice. This litigation has concluded.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
ALTRIA GROUP: Appeals in "Smith" Price-Fixing Suit Remain Pending
-----------------------------------------------------------------
Parties' appeals in a cigarette price-fixing lawsuit remain
pending, according to Altria Group, Inc.'s October 30, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2012.
As of October 30, 2012, one case remains pending in Kansas (Smith)
in which plaintiffs allege that defendants, including Philip
Morris USA (PM USA) and Altria Group, Inc., conspired to fix
cigarette prices in violation of antitrust laws. Plaintiffs'
motion for class certification was granted. In March 2012, the
trial court granted defendants' motions for summary judgment.
Plaintiffs sought the trial court's reconsideration of its
decision, but in June 2012, the trial court denied plaintiffs'
motion for reconsideration. Plaintiffs have appealed the
decision, and the defendants have appealed the trial court's class
certification decision, to the Court of Appeals of Kansas.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
ALTRIA GROUP: Counsel Fee Issue in "Scott" Suit Remains Pending
---------------------------------------------------------------
The issue on where to get the fees for plaintiffs' counsel in
"Scott" class action lawsuit remains pending, according to the
Company's October 30, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
Following a 2004 verdict that awarded plaintiffs approximately
$590 million to fund a 10-year smoking cessation program and a
series of appeals and other post-trial motions, Altria Group's
wholly owned subsidiary, Philip Morris USA (PM USA) recorded in
the second quarter of 2011 a provision on its condensed
consolidated balance sheet of approximately $36 million related to
the judgment and approximately $5 million related to interest,
which was in addition to a previously recorded provision of
approximately $30 million. In August 2011, PM USA paid its share
of the judgment and interest in an amount of approximately $70
million. The defendants' payments have been deposited into a
court-supervised fund that is intended to pay for smoking
cessation programs.
In October 2011, plaintiffs' counsel filed a motion for an award
of attorneys' fees and costs. Plaintiffs' counsel sought
additional fees from defendants of up to $673 million.
Additionally, plaintiffs' counsel requested an award of
approximately $13 million in costs. In March 2012, the trial
court denied defendants' motion challenging plaintiffs' counsel's
request that defendants pay their attorneys' fees directly, as
opposed to out of the court-supervised fund. Defendants
subsequently filed a petition for a supervisory writ challenging
the decision to the Louisiana Fourth Circuit Court of Appeal.
In May 2012, the parties reached a settlement on the amount of
fees and costs to be awarded to plaintiffs' counsel. Plaintiffs
agreed that any recovery of fees and costs would come from the
court-supervised fund, not the defendants, and indicated they
would seek approximately $114 million from the fund. In exchange,
defendants agreed to waive 50% of their right to a refund of any
unspent money in the fund after the 10-year program is completed.
The agreement is not contingent on the trial court's granting
plaintiffs' request for additional costs and fees. The trustee of
the fund intervened to challenge whether the plaintiffs' lawyers
should get any money from the fund or, alternatively, the amount
they would recover from the fund. Plaintiffs and defendants are
challenging the standing of the trustee. Argument was scheduled
for August 22, 2012, but the matter was removed from the docket.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
ALTRIA GROUP: Philip Morris Not Dismissed in "Brown" Class Suit
---------------------------------------------------------------
All Defendants in the "Brown" consumer lawsuit was dismissed in
September except Altria Group, Inc.'s subsidiary, Philip Morris
USA, according to the Company's October 30, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended September 30, 2012.
In June 1997, a lawsuit (Brown) was filed in California state
court alleging that domestic cigarette manufacturers, including
Philip Morris USA (PM USA) and others, violated California
Business and Professions Code Sections 17200 and 17500 regarding
unfair, unlawful and fraudulent business practices. Class
certification was granted as to plaintiffs' claims that class
members are entitled to reimbursement of the costs of cigarettes
purchased during the class periods and injunctive relief. In
September 2004, the trial court t defendants' motion for summary
judgment as to plaintiffs' claims attacking defendants' cigarette
advertising and promotion and denied defendants' motion for
summary judgment on plaintiffs' claims based on allegedly false
affirmative statements. In March 2005, the court granted
defendants' motion to decertify the class based on a California
law, which, among other things, limits the ability to bring a
lawsuit to only those plaintiffs who have "suffered injury in
fact" and "lost money or property" as a result of defendants'
alleged statutory violations ("Proposition 64").
In September 2006, an intermediate appellate court affirmed the
trial court's order decertifying the class. In May 2009, the
California Supreme Court reversed the trial court decision that
was affirmed by the appellate court and remanded the case to the
trial court. In March 2010, the trial court granted
reconsideration of its September 2004 order granting partial
summary judgment to defendants with respect to plaintiffs'
"Lights" claims on the basis of judicial decisions issued since
its order was issued, including the United States Supreme Court's
ruling in Good, thereby reinstating plaintiffs' "Lights" claims.
Since the trial court's prior ruling decertifying the class was
reversed on appeal by the California Supreme Court, the parties
and the court are treating all claims currently being asserted by
the plaintiffs as certified, subject, however, to defendants'
challenge to the class representatives' standing to assert their
claims. The class is defined as people who, at the time they were
residents of California, smoked in California one or more
cigarettes between June 10, 1993, and April 23, 2001, and who were
exposed to defendants' marketing and advertising activities in
California.
In July 2010, plaintiffs filed a motion seeking collateral
estoppel effect from the findings in the case brought by the
Department of Justice. In September 2010, plaintiffs filed a
motion for preliminary resolution of legal issues regarding
restitutionary relief. The trial court denied both of plaintiffs'
motions in November 2010. In November 2010, defendants filed a
motion seeking a determination that Brown class members who were
also part of the class in Daniels (a previously disclosed consumer
fraud case in which the California Supreme Court affirmed summary
judgment in PM USA's favor based on preemption and First Amendment
grounds) are precluded by the Daniels judgment from recovering in
Brown. This motion was denied in December 2010. Defendants
sought review of this decision before the Fourth District Court of
Appeal but were denied review in March 2011. In January 2012,
defendants filed motions for a determination that the class
representatives lack standing and are not typical or adequate to
represent the class and to decertify the class.
In May 2012, the trial court decertified the class as to
plaintiffs' claims alleging that the defendants falsely denied
nicotine manipulation and that they concealed the dangers and
addictiveness of smoking, finding that none of the named
representatives could adequately represent the class on these
issues. The trial court denied defendants' decertification motion
as to the claim regarding "Lights" cigarettes and found that only
one of the four named class representatives may assert this claim.
As a result, the case is proceeding as a "Lights"-only class
action brought by the sole remaining class representative. The
trial court also continued the trial date from October 5, 2012, to
April 19, 2013.
In July 2012, defendants filed a petition in the Court of Appeal
asking the court to issue a writ of mandate ordering the trial
court to vacate its denial of defendants' motion to decertify and
instead to decertify the class. On September 26, 2012, at the
plaintiffs' request, the trial court dismissed all defendants
except PM USA from the lawsuit. On October 18, 2012, the Court of
Appeal denied the defendants' petition to issue a writ of mandate.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
ALTRIA GROUP: Smoking and Health Class Action Suits Still Pending
-----------------------------------------------------------------
Since the dismissal in May 1996 of a purported nationwide class
action brought on behalf of allegedly addicted smokers, plaintiffs
have filed numerous putative smoking and health class action suits
in various state and federal courts. In general, these cases
purport to be brought on behalf of residents of a particular state
or states (although a few cases purport to be nationwide in scope)
and raise addiction claims and, in many cases, claims of physical
injury as well.
Class certification has been denied or reversed by courts in 59
smoking and health class actions involving Altria Group, Inc.'s
subsidiary, Philip Morris USA in Arkansas (1), California (1), the
District of Columbia (2), Florida (2), Illinois (3), Iowa (1),
Kansas (1), Louisiana (1), Maryland (1), Michigan (1), Minnesota
(1), Nevada (29), New Jersey (6), New York (2), Ohio (1), Oklahoma
(1), Pennsylvania (1), Puerto Rico (1), South Carolina (1), Texas
(1) and Wisconsin (1).
PM USA and Altria Group, Inc. are named as defendants, along with
other cigarette manufacturers, in six actions filed in the
Canadian provinces of Alberta, Manitoba, Nova Scotia, Saskatchewan
and British Columbia. In Saskatchewan and British Columbia,
plaintiffs seek class certification on behalf of individuals who
suffer or have suffered from various diseases, including chronic
obstructive pulmonary disease, emphysema, heart disease or cancer,
after smoking defendants' cigarettes. In the actions filed in
Alberta, Manitoba and Nova Scotia, plaintiffs seek certification
of classes of all individuals who smoked defendants' cigarettes.
No further updates were reported in Altria Group's October 30,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
ALTRIA GROUP: Two Medical Monitoring Suits vs. Unit Still Pending
-----------------------------------------------------------------
Two medical monitoring class action lawsuits against Altria Group,
Inc.'s subsidiary, Philip Morris USA (PM USA), remain pending,
according to the Company's October 30, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2012.
Two purported medical monitoring class actions are pending against
Altria Group, Inc.'s wholly-owned subsidiary, Philip Morris USA
Inc. (PM USA). The two cases were brought in New York (Caronia,
filed in January 2006 in the United States District Court for the
Eastern District of New York) and Massachusetts (Donovan, filed in
December 2006 in the United States District Court for the District
of Massachusetts) on behalf of each state's respective residents
who are age 50 or older; have smoked the Marlboro brand for 20
pack-years or more; and have neither been diagnosed with lung
cancer nor are under investigation by a physician for suspected
lung cancer. Plaintiffs in these cases seek to impose liability
under various product-based causes of action and the creation of a
court-supervised program providing members of the purported class
Low Dose CT Scanning in order to identify and diagnose lung
cancer. Plaintiffs in these cases do not seek punitive damages.
A case brought in California (Xavier) was dismissed in July 2011,
and a case brought in Florida (Gargano) was voluntarily dismissed
with prejudice in August 2011.
In Caronia, in February 2010, the district court granted in part
PM USA's summary judgment motion, dismissing plaintiffs' strict
liability and negligence claims and certain other claims, granted
plaintiffs leave to amend their complaint to allege a medical
monitoring cause of action and requested further briefing on PM
USA's summary judgment motion as to plaintiffs' implied warranty
claim and, if plaintiffs amend their complaint, their medical
monitoring claim. In March 2010, plaintiffs filed their amended
complaint and PM USA moved to dismiss the implied warranty and
medical monitoring claims. In January 2011, the district court
granted PM USA's motion, dismissed plaintiffs' claims and declared
plaintiffs' motion for class certification moot in light of the
dismissal of the case. The plaintiffs have appealed that decision
to the United States Court of Appeals for the Second Circuit.
Argument before the Second Circuit was heard in March 2012.
In Donovan, the Supreme Judicial Court of Massachusetts, in
answering questions certified to it by the district court, held in
October 2009 that under certain circumstances state law recognizes
a claim by individual smokers for medical monitoring despite the
absence of an actual injury. The court also ruled that whether or
not the case is barred by the applicable statute of limitations is
a factual issue to be determined by the trial court. The case was
remanded to federal court for further proceedings. In June 2010,
the district court granted in part the plaintiffs' motion for
class certification, certifying the class as to plaintiffs' claims
for breach of implied warranty and violation of the Massachusetts
Consumer Protection Act, but denying certification as to
plaintiffs' negligence claim. In July 2010, PM USA petitioned the
United States Court of Appeals for the First Circuit for appellate
review of the class certification decision. The petition was
denied in September 2010. As a remedy, plaintiffs have proposed a
28-year medical monitoring program with an approximate cost of
$190 million. In April 2011, plaintiffs moved to amend their
class certification to extend the cut-off date for individuals to
satisfy the class membership criteria from December 14, 2006, to
August 1, 2011. The district court granted this motion in May
2011. In June 2011, plaintiffs filed various motions for summary
judgment and to strike affirmative defenses, which the district
court denied in March 2012. In October 2011, PM USA filed a
motion for class decertification, which motion was denied in March
2012. A trial date has not been set.
Evolving medical standards and practices could have an impact on
the defense of medical monitoring claims, the Company says.
No further updates were reported in the Company's latest Form 10-Q
filing with the SEC.
Altria Group, Inc. (previously named Philip Morris Companies Inc.)
is a corporate business based in Henrico County, Virginia, United
States of America and is the parent company of Philip Morris USA,
John Middleton, Inc., U.S. Smokeless Tobacco Company, Inc., Philip
Morris Capital Corporation, and Chateau Ste. Michelle Wine
Estates. It is one of the world's largest tobacco corporations.
Philip Morris International was spun off in 2008.
BANK OF AMERICA: Jan. 18 Class Action Settlement Deadline Set
-------------------------------------------------------------
Monica Yantosh, writing for Everythinglubbock.com. reports that
the Department of Justice, on March 12, 2012, announced a
settlement of $25 billion because of violations of state and
federal laws.
According to the settlement, foreclosures were not properly filed.
There was a 10 month investigation, beginning in October 2010.
The investigation found the fraud, and then, "The major mortgage
servicing banks soon acknowledged that individuals had been
signing thousands of foreclosure affidavits without reviewing the
validity or accuracy of the sworn statements." That's according
to a statement from Philip A. Lehman, Assistant Attorney General
for the Consumer Protection Division of the North Carolina
Department of Justice.
Mr. Lehman's statement also said "Several national banks then
agreed to stop their foreclosure filings and sales until
corrective action could be taken."
Of the $25 billion, $17 billion will be available to reduce
mortgage principals for those affected.
The deadline to file for your place in the settlement is on
January 18. Your home would have had to be foreclosed on between
January 1, 2008, and December 31, 2011.
The five lenders named in the settlement are Bank of America, JP
Morgan Chase, Citigroup, Wells Fargo, and Ally Financial.
Lubbock Attorney Fernando Bustos said it's important to at least
look at any class action lawsuits that may come your way, as some,
could help you out.
There's more information on the settlement from National Mortgage
Settlement's Web site:
http://nationalforeclosuresettlement.com/about
BLUE CROSS: Faces Class Action Antitrust Complaint
--------------------------------------------------
Courthouse News Service reports that Blue Cross conspired to
restrain trade in more than 40 states, according to a federal
class action antitrust complaint.
BOB EVANS: Faces Age Bias Class Action in Florida
-------------------------------------------------
Stewart Bishop, writing for Law360, reports that restaurateur Bob
Evans Farms Inc. discriminated against Joanne Leonard, a former
69-year-old employee who contends that she and other older workers
have been unfairly treated because of their age, according to a
putative class action removed to Florida federal court on Jan. 3.
CASH AMERICA: Appeal in "Strong" Class Suit Remains Pending
-----------------------------------------------------------
Cash America International, Inc.'s appeal from a partial summary
judgment in the class action lawsuit filed by James E. Strong
remains pending, according to the Company's October 30, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2012.
On August 6, 2004, James E. Strong filed a purported class action
lawsuit in the State Court of Cobb County, Georgia against Georgia
Cash America, Inc., Cash America International, Inc. (together
with Georgia Cash America, Inc., Cash America), Daniel R. Feehan,
and several unnamed officers, directors, owners and "stakeholders"
of Cash America. The lawsuit alleges many different causes of
action, among the most significant of which is that Cash America
made illegal short-term loans in Georgia in violation of Georgia's
usury law, the Georgia Industrial Loan Act and Georgia's Racketeer
Influenced and Corrupt Organizations Act (RICO). First National
Bank of Brookings, South Dakota (FNB) and Community State Bank of
Milbank, South Dakota (CSB) for some time made loans to Georgia
residents through Cash America's Georgia operating locations. The
complaint in this lawsuit claims that Cash America was the true
lender with respect to the loans made to Georgia borrowers and
that FNB and CSB's involvement in the process is "a mere
subterfuge." Based on this claim, the suit alleges that Cash
America was the "de facto" lender and was illegally operating in
Georgia. The complaint seeks unspecified compensatory damages,
attorney's fees, punitive damages and the trebling of any
compensatory damages. In November 2009, the case was certified as
a class action lawsuit. In August 2011, Cash America filed a
motion for summary judgment, and in October 2011, the plaintiffs
filed a cross-motion for partial summary judgment. Hearings on the
motions were held in October and November 2011, and the trial
court entered an order granting summary judgment in favor of Cash
America on one of plaintiff's claims, denying the remainder of
Cash America's motion and granting plaintiff's cross-motion for
partial summary judgment. Cash America filed a notice of appeal
in December 2011 on the grant of plaintiff's partial summary
judgment, which is pending before the Georgia Court of Appeals.
The Company is currently unable to estimate a range of reasonably
possible losses, as defined by ASC 450-20-20, Contingencies --
Loss Contingencies -- Glossary, for this litigation. Cash America
believes that the Plaintiffs' claims in this suit are without
merit and is vigorously defending this lawsuit.
Cash America International, Inc. is a Fort Worth, Texas, retailer
which operates over 1,000 pawn shops in the United States. The
Company also provides check-cashing services and short-term
unsecured loans both through its pawn shops as well as in self-
standing facilities, and also on the Internet under the name
"enovafinancial."
CHATTEM INC: April 8 Class Action Opt-Out Deadline Set
------------------------------------------------------
Chattem and Blood Hurst & O'Reardon, LLP on Jan. 4 issued a
statement regarding the Duffer v. Chattem, Inc. case.
LEGAL NOTICE
Those people who purchased ACT Total Care Anticavity Fluoride
Mouthwash between Jan. 1, 2009 and June 30, 2010, may be entitled
to a cash refund from a class action settlement.
WHAT IS THIS SETTLEMENT ABOUT?
Plaintiff claims that defendant Chattem, Inc.'s ACT Total Care
Anticavity Fluoride Mouthwash ("ACT Total Care") did not provide
all of the comprehensive oral care health benefits as advertised,
including the ability to reduce, remove, or otherwise fight
plaque. Chattem strongly denies the allegations made in the
lawsuit. The Court has not decided who is right and who is wrong.
Instead, the parties decided to settle the dispute.
WHAT DOES THE SETTLEMENT PROVIDE?
Each Class Member who submits a valid Claim may be entitled to a
cash payment for bottles of ACT Total Care purchased between
Jan. 1, 2009, and June 30, 2010, not to exceed 10 bottles.
Chattem will make payments of up to $1.5 million into a Settlement
Fund to reimburse Class Members for the ACT Total Care they
purchased, to pay for costs of settlement administration, and a
service award to the Class Representative.
Class Members are scheduled to receive $1.50 for each qualifying
18-ounce or smaller bottle, and $2 for each qualifying 33-ounce or
larger bottle. Depending on the amount of claims made and other
factors, the payments may be decreased or increased, not to exceed
$4 per 18-ounce or smaller bottle and $6 per 33-ounce or larger
bottle. Chattem has agreed to pay an award of Plaintiff's
Attorneys' Fees and Expenses of up to $300,000, separate from the
Settlement Fund. The motion(s) by Class Counsel for Attorneys'
Fees and Expenses and service award for the Class Representative
will be available for viewing on the Settlement Website after they
are filed. After that time, if you wish to review them, you may
do so by viewing them at http://www.acttotalcaresettlement.com
AM I A CLASS MEMBER?
You're a Class Member if you purchased ACT Total Care nationwide
from Jan. 1, 2009, through June 30, 2010.
WHAT ARE MY LEGAL OPTIONS?
To ask for cash and remain in the Class, you must mail, fax, or
submit online a completed Claim Form by July 6, 2013. If you do
not wish to be legally bound by the Settlement, you may exclude
yourself from the Class by April 8, 2013, or you may stay in the
Class and object to the Settlement by April 8, 2013. Visit
http://www.acttotalcaresettlement.comfor important information
about these options.
HEARING ON THE PROPOSED SETTLEMENT:
The Court will hold a Final Approval Hearing on May 7, 2013 at
10:30 a.m. to determine whether the proposed Settlement is fair,
reasonable, and adequate, to approve Attorneys' Fees and Expenses,
and any service award for the Class Representative. The Final
Approval Hearing will take place at U.S. District Court, Southern
District of California, 221 West Broadway, San Diego, CA 92101.
You do not have to attend the hearing.
HOW CAN I GET MORE INFORMATION?
If you have questions, visit http://www.acttotalcaresettlement.com
or call (877) 669-3201.
COMMERCIAL METALS: Antitrust Suits Pending in Ill. and Tenn.
------------------------------------------------------------
Antitrust lawsuits against Commercial Metals Company remain
pending in Illinois and Tennessee, according to the Company's
October 30, 2012, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended August 31, 2012.
On September 18, 2008, the Company was served with a class action
antitrust lawsuit alleging violations of Section 1 of the Sherman
Act, brought by Standard Iron Works of Scranton, Pennsylvania,
against nine steel manufacturing companies, including Commercial
Metals Company. The lawsuit, filed in the United States District
Court for the Northern District of Illinois, alleges that the
defendants conspired to fix, raise, maintain and stabilize the
price at which steel products were sold in the United States by
artificially restricting the supply of such steel products. The
lawsuit, which purports to be brought on behalf of a class
consisting of all purchasers of steel products directly from the
defendants between January 1, 2005, and September 2008, seeks
treble damages and costs, including reasonable attorney fees and
pre- and post-judgment interest. Document discovery has taken
place but motions for class certification are not yet pending nor
have any depositions been taken. The Company believes the case is
without merit and intends to defend it vigorously.
Since the filing of the direct purchaser lawsuit, a case has been
filed in federal court in the Northern District of Illinois on
behalf of a class of indirect purchasers in approximately 28
states naming the same defendants and containing allegations
substantially identical to those of the Standard Iron Works
complaint. That case has in effect been stayed. Another indirect
purchaser action was filed in Tennessee state court, again naming
the same defendants but contending that the conspiracy continued
through 2010. The case has been removed to federal court and
plaintiffs have moved to remand. The motion to remand has not yet
been decided and no motion practice or discovery has taken place.
The Company believes that the lawsuits are without merit and plans
to defend them vigorously. Due to the uncertainty and the
information available at this time, the Company cannot reasonably
estimate a range of loss relating to these cases.
No further updates were reported in the Company's latest Form 10-Q
filing with the SEC.
Commercial Metals Company -- http://www.cmc.com/-- engages in
recycling, manufacturing, fabricating, and distributing steel and
metal products, and related materials and services in the United
States and internationally. The company was founded in 1915 and
is headquartered in Irving, Texas.
DAVEY TREE: Class Cert. Denial in Rice Canyon Fire Suits Affirmed
-----------------------------------------------------------------
Class certification denial in certain lawsuits arising from the
Rice Canyon fire has been upheld on appeal, according to The Davey
Tree Expert Company's October 30, 2012, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
September 29, 2012.
Davey Tree Surgery Company, a Davey subsidiary, and Davey Resource
Group, a Davey division, along with the Company has previously
been sued, together with a utility services customer, San Diego
Gas & Electric ("SDG&E"), and its parent company, as defendants,
and as cross-defendants in cross-complaints filed by SDG&E, in the
Superior Court of the State of California in and for the County of
San Diego, arising out of a wildfire in San Diego County that
started on October 22, 2007, referred to as the "Rice Canyon
fire."
Numerous lawsuits related to the Rice Canyon fire were filed
against SDG&E, its parent company, Sempra Energy, and Davey. The
earliest of the lawsuits naming Davey was filed on April 18, 2008.
The Court ordered that the lawsuits be organized into four groups
based on type of plaintiff, namely insurance subrogation
claimants, individual/business claimants, governmental claimants,
and plaintiffs seeking class certification. Plaintiffs' motions
seeking class certification were denied and the orders denying
class certification were affirmed on appeal. SDG&E filed cross-
complaints against Davey for contractual indemnity, declaratory
relief, and breach of contract. SDG&E has reportedly settled many
of the third-party claims and asserted its claims against Davey
for indemnity.
Davey previously notified its insurers of the Rice Canyon fire
claims (collectively the "Davey Insurers"), vigorously defended
the third-party claims, and worked with the Davey Insurers both to
defend the claims and to ensure coverage of any potential
liabilities.
During the third quarter 2012, Davey entered into a Settlement and
Release Agreement among Davey, SDG&E and Davey Insurers.
Under the Agreement, (a) Davey paid SDG&E an amount previously
expensed and accrued as self-insurance, (b) the Davey Insurers
paid SDG&E amounts under Davey's insurance policies in effect
during the period of the Rice Canyon fire, and (c) SDG&E agreed to
defend and hold harmless Davey from any and all claims that are
currently asserted against Davey.
The Davey Tree Expert Company is a privately held company that
provides tree and lawn care services throughout the United States
and Canada. It was incorporated in 1909 in Kent, Ohio by John
Davey. The Company's core services include tree, shrub and lawn
care, utility services, large tree moving, commercial grounds
management and consulting services. It has been employee-owned
since 1979 and is the largest employee-owned company in the state
of Ohio and one of the top 20 largest in the United States. More
than 7,000 people work for Davey in 45 U.S. states and six
Canadian provinces.
DAVEY TREE: Paid $2.9-Mil. Under "Ely" Class Suit Settlement
------------------------------------------------------------
The Davey Tree Expert Company paid $2,900,000 in August 2012 in
connection with its settlement of a class action lawsuit brought
by Peter Ely, et al. against its subsidiary, according to
Company's October 30, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
29, 2012.
Davey Tree Surgery Company, a subsidiary of The Davey Tree Expert
Company, was named as a defendant in Peter Ely et al. v. Davey
Tree Surgery Company et al., a purported class action lawsuit in
the State of California filed on July 15, 2008 in the Superior
Court of the State of California in and for the County of Alameda.
The plaintiffs alleged on behalf of themselves and a putative
class that Davey Tree Surgery Company failed to comply with
California law concerning off-duty meal periods and the required
content of paycheck stubs.
The plaintiffs alleged that they and the putative "meal periods"
class were not provided with uninterrupted, duty-free 30-minute
meal periods. In addition, plaintiffs claimed that because they
were allegedly required to work during their meal breaks, Davey
Tree Surgery Company violated California's minimum wage law
because they and the putative class members were not paid minimum
wage for their alleged work during meal breaks. Plaintiffs also
contended that Davey Tree Surgery Company violated California law
by not including the time that they and the putative "wage
statement" class members worked during their meal periods, their
hourly rates of pay and the number of hours worked at each hourly
rate on their paycheck stubs.
The Court granted plaintiffs' motion for class certification and
certified both the "meal periods" class and the "wage statements"
class; some individuals were members of both classes, while others
were members of only one class (collectively, the "class
members"). A trial was initially scheduled for January 30, 2012,
and was rescheduled to March 26, 2012, pending results of a
mediation process initiated in January 2012 with plaintiffs and
Local Union 1245 of the International Brotherhood of Electrical
Workers.
As a result of the mediation, on January 6, 2012, Davey Tree
Surgery Company entered into a Settlement Agreement and Release of
All Claims with the plaintiffs, counsel for the class members, and
the Union representing the class members.
The Settlement Agreement required court approval of its terms. The
Court, in April 2012, granted preliminary approval and granted
final approval of the Settlement Agreement in August 2012. Under
the terms of the Settlement Agreement, during August 2012, the
Company paid $2,900,000 that was previously recorded in the fourth
quarter 2011.
The Davey Tree Expert Company is a privately held company that
provides tree and lawn care services throughout the United States
and Canada. It was incorporated in 1909 in Kent, Ohio, by John
Davey. The Company's core services include tree, shrub and lawn
care, utility services, large tree moving, commercial grounds
management and consulting services. It has been employee-owned
since 1979 and is the largest employee-owned company in the state
of Ohio and one of the top 20 largest in the United States. More
than 7,000 people work for Davey in 45 U.S. states and six
Canadian provinces.
DEX ONE: Still Awaits Approval of $2.1MM ERISA Suit Settlement
--------------------------------------------------------------
Dex One Corporation disclosed in its October 30, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012, that it was awaiting court
approval of a $2.1 million settlement of a class action lawsuit
alleging violations of the Employee Retirement Income Security Act
of 1974 filed against its units.
On December 7, 2009, a putative ERISA class action lawsuit was
commenced in the United States District Court for the Northern
District of Illinois on behalf of certain participants in, or
beneficiaries of, the R.H. Donnelley 401(k) Savings Plan at any
time between July 26, 2007, and January 29, 2010, and whose plan
accounts included investments in R.H. Donnelley common stock.
R.H. Donnelley Corporation and R.H. Donnelley Inc. are direct
wholly-owned subsidiaries of Dex One Corporation.
The putative ERISA class action complaint contains allegations
against certain current and former directors, officers and
employees similar to those set forth in the Securities Class
Action Complaint as well as allegations of breaches of fiduciary
duties under ERISA and seeks damages and equitable relief. The
Company is not named as a defendant in this ERISA class action.
On June 21, 2012, the parties to the ERISA class action lawsuit
entered into a memorandum of understanding containing the
essential terms of a settlement of all disputes between them. On
July 9, 2012, a formal settlement agreement and release was filed
with the court. Pursuant to the settlement agreement and release,
in exchange for a complete release of all claims, the Company's
fiduciary liability insurers will create a $2.1 million settlement
fund for the benefit of the settlement class. The Company is not
making any financial contribution to the settlement fund. The
settlement agreement and release is subject to final court
approval, which it expected to receive during the second half of
2012.
Formed in February 2010, Dex One Corporation provides online,
mobile and print search marketing via their DexKnows.com Web site,
print yellow pages directories and pay-per-click ad networks in
the U.S. It was previously known as the R. H. Donnelley Company.
DOW CHEMICAL: Paid $133-Mil. as of Sept. 30 in Pension Plan Deal
----------------------------------------------------------------
The pension plan of a unit of The Dow Chemical Company made
settlement payments totaling $133 million as of September 30,
2012, according to the Company's October 30, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012.
In December 2005, a federal judge in the U.S. District Court for
the Southern District of Indiana issued a decision granting a
class of participants in the Rohm and Haas Pension Plan who had
retired from Rohm and Haas Company, now a wholly owned subsidiary
of the Company, and who elected to receive a lump sum benefit from
the Rohm and Haas Plan, the right to a cost-of-living adjustment
("COLA") as part of their retirement benefit. In August 2007, the
Seventh Circuit Court of Appeals affirmed the District Court's
decision, and in March 2008, the U.S. Supreme Court denied the
Rohm and Haas Plan's petition to review the Seventh Circuit's
decision. The case was returned to the District Court for further
proceedings. In October 2008 and February 2009, the District
Court issued rulings that have the effect of including in the
class all Rohm and Haas retirees who received a lump sum
distribution without a COLA from the Rohm and Haas Plan since
January 1976. These rulings are subject to appeal, and the
District Court has not yet determined the amount of the COLA
benefits that may be due to the class participants. The Rohm and
Haas Plan and the plaintiffs entered into a settlement agreement
that, in addition to settling the litigation with respect to the
Rohm and Haas retirees, provides for the amendment of the
complaint and amendment of the Rohm and Haas Plan to include
active employees in the settlement benefits.
The District Court preliminarily approved the settlement on
November 24, 2009 and, following a hearing on March 12, 2010,
issued a final order approving the settlement on April 12, 2010.
A group of objectors to the settlement filed an appeal from the
final order. In November 2010, the District Court issued an order
approving class counsel's fee award petition in an amount
consistent with the terms of the settlement. The same objectors
also appealed this order. On September 2, 2011, the Seventh
Circuit affirmed the approval of the settlement and award of
attorneys' fees. A lone objector filed a petition for rehearing,
which was denied on October 17, 2011. The objector continued the
appeal process by timely filing a petition for a writ of
certiorari to the U.S. Supreme Court, which was denied on
April 16, 2012, rendering the settlement and award of attorneys'
fees final.
A pension liability associated with the matter of $185 million was
recognized as part of the acquisition of Rohm and Haas on April 1,
2009. The liability, which was determined in accordance with the
accounting guidance for contingencies, recognized the estimated
impact of the above described judicial decisions on the long-term
Rohm and Haas Plan obligations owed to the applicable Rohm and
Haas retirees and active employees. The Company had a liability
associated with the matter of $189 million at
December 31, 2011. The Rohm and Haas Plan made settlement
payments totaling $133 million as of September 30, 2012. The
Company's remaining liability for this matter was $56 million at
September 30, 2012. A portion of the remaining liability was
expected to be settled by the end of 2012; the remaining liability
will be resolved over time through the administration of the Rohm
and Haas Plan.
Based in Midland, Michigan, The Dow Chemical Company in the
business of specialty chemicals delivering products and solutions
to sectors such as electronics, water, energy, and coatings.
EASTMAN KODAK: Suit Claiming Kodak Hid Bankruptcy Plans Reopened
----------------------------------------------------------------
Richard Vanderford of BankruptcyLaw360 reported that a New York
federal judge on Jan. 8 allowed an investor to refile a putative
class action alleging Eastman Kodak Co.'s leadership intentionally
hid plans to file for bankruptcy, after the investor said he had
new confidential witnesses to bolster his allegations.
U.S. District Judge Harold Baer said in a written order that
investor Timothy Hutchinson could file a second amended complaint
in a suit claiming Kodak CEO Antonio Perez and other officers knew
about the company's bankruptcy plans before they were made public,
the report related.
About Eastman Kodak
Rochester, New York-based Eastman Kodak Company and its U.S.
subsidiaries on Jan. 19, 2012, filed voluntarily Chapter 11
petitions (Bankr. S.D.N.Y. Lead Case No. 12-10202) in Manhattan.
Subsidiaries outside of the U.S. were not included in the filing
and are expected to continue to operate as usual.
Kodak, founded in 1880 by George Eastman, was once the world's
leading producer of film and cameras. Kodak sought bankruptcy
protection amid near-term liquidity issues brought about by
steeper-than-expected declines in Kodak's historically profitable
traditional businesses, and cash flow from the licensing and sale
of intellectual property being delayed due to litigation tactics
employed by a small number of infringing technology companies with
strong balance sheets and an awareness of Kodak's liquidity
challenges.
In recent years, Kodak has been working to transform itself from a
business primarily based on film and consumer photography to a
smaller business with a digital growth strategy focused on the
commercialization of proprietary digital imaging and printing
technologies. Kodak has 8,900 patent and trademark registrations
and applications in the United States, as well as 13,100 foreign
patents and trademark registrations or pending registration in
roughly 160 countries.
Attorneys at Sullivan & Cromwell LLP and Young Conaway Stargatt &
Taylor, LLP, serve as counsel to the Debtors. FTI Consulting,
Inc., is the restructuring advisor. Lazard Freres & Co. LLC, is
the investment banker. Kurtzman Carson Consultants LLC is the
claims agent.
The Official Committee of Unsecured Creditors has tapped Milbank,
Tweed, Hadley & McCloy LLP, as its bankruptcy counsel.
Michael S. Stamer, Esq., David H. Botter, Esq., and Abid Qureshi,
Esq., at Akin Gump Strauss Hauer & Feld LLP, represent the
Unofficial Second Lien Noteholders Committee.
The Retirees Committee has hired Haskell Slaughter Young &
Rediker, LLC, and Arent Fox, LLC as Co-Counsel; Zolfo Cooper, LLC,
as Bankruptcy Consultants and Financial Advisors; and the Segal
Company, as Actuarial Advisors.
Robert J. Stark, Esq., Andrew Dash, Esq., and Neal A. D'Amato,
Esq., at Brown Rudnick LLP, represent Greywolf Capital Partners
II; Greywolf Capital Overseas Master Fund; Richard Katz, Kenneth
S. Grossman; and Paul Martin.
Kodak intends to reorganize by focusing on the commercial printing
business. Other businesses are being sold or shut down.
ELECTRONIC GAME: Rosen Law Firm Files Securities Class Action
-------------------------------------------------------------
The Rosen Law Firm, P.A. on Jan. 4 disclosed that it has filed a
class action lawsuit on behalf of all purchasers of Electronic
Game Card, Inc. stock between April 5, 2007 and February 19, 2010.
To join the EGMI class action, go to the Web site at
http://www.rosenlegal.comor call Timothy Brown, Esq. or Jonathan
Horne, Esq. toll-free at 866-767-3653 or e-mail
tbrown@rosenlegal.com or jhorne@rosenlegal.com for information on
the class action. The case is pending in the United States
District Court for the Southern District of New York.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO
NOTHING AT THIS POINT. YOU MAY ALSO RETAIN COUNSEL OF YOUR
CHOICE.
The complaint charges Timothy Quintanilla and certain of the
present and former partners of Mendoza Berger & Co., LLP ("M&B")
with violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934. The complaint asserts that, during the
Class Period, M&B, EGMI's independent auditor, issued materially
false and misleading audit opinions certifying financial
statements of EGMI, which misrepresented the Company's true
financial condition. The Complaint alleges that on February 19,
2010 the Company filed an 8-K announcing that its auditors had
withdrawn their audit opinions for Electronic Game Card, Inc.'s
financial statements for the years ended December 31, 2006, 2007,
and 2008.
A class action lawsuit has already been filed on behalf of EGMI
shareholders. If you wish to serve as lead plaintiff, you must
move the Court no later than March 5, 2013. If you wish to join
the litigation or to discuss your rights or interests regarding
this class action, please contact plaintiff's counsel, Timothy
Brown, Esq. or Jonathan Horne, Esq. of The Rosen Law Firm toll
free at 866-767-3653 or via e-mail at tbrown@rosenlegal.com or
jhorne@rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
ELOQUA: Being Sold to Oracle for Too Little, Suit Claims
--------------------------------------------------------
Courthouse News Service reports that Eloqua is selling itself too
cheaply to Oracle Corp., for $871 million, or $23.50 a share,
shareholders claim in Federal Court.
FACEBOOK INC: May 2 Settlement Claims Filing Deadline Set
---------------------------------------------------------
Christina Warren, writing for Mashable, reports that Facebook is
sending proposed settlement notices to members of a class-action
lawsuit against the company's use of Sponsored Stories.
Facebook's offer of $20 million to settle the case was granted
preliminary approval by the courts in December.
An e-mail detailing the reason behind the lawsuit as well as the
terms of the settlement was sent to users it believes are class
members of the lawsuit, "according to available records."
The lawsuit was initially filed on behalf of Facebook users
objecting to the use of their names and pictures in Sponsored
Stories, ads which turn a user's Likes into ads appearing in
friends' news feeds. The lawsuit argues the ads are a violation
of privacy, as they turn users into spokespeople and endorsers
without their direct approval.
The terms of the settlement state that users who file a claim can
receive up to $10 from Facebook.
According to the document:
The amount, if any, paid to each claimant depends upon the number
of claims made and other factors detailed in the Settlement. No
one knows in advance how much each claimant will receive, or
whether any money will be paid directly to claimants. If the
number of claims made renders it economically infeasible to pay
money to persons who make a timely and valid claim, payment will
be made to the not-for-profit organizations identified on the
Settlement Web site at http://www.fraleyfacebooksettlement.com
Class members have until May 2, 2013, to submit a claim, exclude
themselves from the settlement (in order to file an individual
lawsuit over the legal claims), or tell the court why they object
to the settlement. A Fairness Hearing over the matter will be
held on June 28, 2013.
For users that do not submit a claim, they will not receive
payment at all, but may be eligible for the non-monetary benefits
of the settlement.
HEMISPHERX BIOPHARMA: Rosen Reminds of Lead Plaintiff Deadline
--------------------------------------------------------------
The Rosen Law Firm reminds investors of the important February 22,
2013 lead plaintiff deadline in the class action filed on behalf
of investors who purchased the securities of Hemispherx Biopharma,
Inc., from March 19, 2012 through December 17, 2012.
To join the Hemispherx class action, visit the firm's website at
http://rosenlegal.comor call Phillip Kim, Esq., toll-free, at
866-767-3653; you may also email pkim@rosenlegal.com for
information on the class action.
The Complaint asserts violations of the federal securities laws
against Hemispherx and its officers and directors for issuing
false and misleading information about its lead drug candidate
Ampligen. Specifically, that Hemispherx misstated the safety and
efficacy of Ampligen, and touted purportedly positive results from
Ampligen's clinical trials.
On December 18, 2012, the FDA published a staff report concluding
that the Company's studies were "ill-defined and invalid" with
signals of efficacy that were inconsistent between clinical
trials, and based on the limited quality of the data, "it is
difficult to draw conclusions regarding potential safety signals,"
but the "review identified nine potential safety concerns
associated with Ampligen." The Complaint alleges that as a result
of this adverse information, Hemispherx stock price dropped and
investors have been damaged.
If you wish to serve as lead plaintiff, you must move the Court no
later than February 22, 2013. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. If you wish to join the litigation, or
to discuss your rights or interests regarding this class action,
please contact Phillip Kim, Esq. of The Rosen Law Firm, toll-free,
at 866-767-3653, or via e-mail at pkim@rosenlegal.com
You may also visit the firm's Web site at
http://www.rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
HOWREY LLP: Creditor Defends Right to Bring Alter Ego Claims
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Ama Sarfo of BankruptcyLaw360 reported that an attorney for a
Howrey LLP unsecured creditor on Monday blasted the Chapter 11
trustee's bid to stop a proposed class action targeting hundreds
of equity security holders of the defunct law firm, saying the
creditor has the right to file alter ego claims.
Trustee Allan B. Diamond had argued that the suit would violate
the bankruptcy's automatic stay, but William McGrane, counsel for
Howrey Claims LLC, said the creditor's adversary proceeding would
not breach the automatic stay, the BankruptcyLaw360 report
related.
About Howrey LLP
Three creditors filed an involuntary Chapter 7 petition (Bankr.
N.D. Calif. Case No. 11-31376) on April 11, 2011, against the
remnants of the Washington-based law firm Howrey LLP. The filing
was in San Francisco, where the firm had an office. The firm
previously was known as Howrey & Simon and Howrey Simon Arnold &
White LLP. The firm at one time had more than 700 lawyers in 17
offices. The partners voted to dissolve in March 2011.
The firm specialized in antitrust and intellectual-property
matters. The three creditors filing the involuntary petition
together have $36,600 in claims, according to their petition.
The involuntary chapter 7 petition was converted to a chapter 11
case in June 2011 at the request of the firm. In its schedules
filed in July, the Debtor disclosed assets of $138.7 million and
liabilities of $107.0 million.
Representing Citibank, the firm's largest creditor, is Kelley
Cornish, Esq., a partner at Paul, Weiss, Rifkind, Wharton &
Garrison. Representing Howrey is H. Jason Gold, Esq., a partner
at Wiley Rein.
The Official Committee of Unsecured Creditors is represented in
the case by Bradford F. Englander, Esq., at Whiteford, Taylor And
Preston LLP.
In September 2011, Citibank sought conversion of the Debtor's case
to Chapter 7 or, in the alternative, appointment of a Chapter 11
Trustee. The Court entered an order appointing a Chapter 11
Trustee. In October 2011, Allan B. Diamond was named as Trustee.
KIA SORENTO: Faces Class Action Over Some Defective Parts
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Courthouse News Service reports that Kia Sorento models 2002-2009
with a 3.5-liter 24-valve engine have a defective crank sprocket
and balancer that can fail dangerously and catastrophically, a
class action claims in Federal Court.
LONG ISLAND POWER: Faces Class Action Over Gross Negligence
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Courthouse News Service reports that a class action accuses in
Nassau County Court the Long Island Power Authority and National
Grid Electric Services of gross negligence before Hurricane Sandy,
and demands refunds.
LONGWEI PETROLEUM: Rosen Law Firm Files Class Action in Calif.
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The Rosen Law Firm on Jan. 4 disclosed that it has filed a class
action lawsuit on behalf of all purchasers of common stock of
Longwei Petroleum Investment Holding Limited between May 17, 2010
and January 3, 2013, inclusive.
To join the Longwei class action, visit the firm's website at
http://rosenlegal.comor call Phillip Kim, Esq. or Jonathan Horne,
Esq., toll-free, at 866-767-3653; you may also email
pkim@rosenlegal.com or jhorne@rosenlegal.com
The action filed by the firm is pending in the U.S. District Court
for the Central District of California.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN
AN ABSENT CLASS MEMBER.
The Complaint asserts violations of the federal securities laws
against Longwei and certain if its officers and directors for
issuing materially false and misleading financial information.
The lawsuit asserts that Longwei: (a) failed to disclose a
material related party investment in a tourism business involving
CEO Cai; (b) concealed that CEO Cai was a minority owner of
Longwei's subsidiaries; (c) Longwei's wholesale fuel sales were
vastly exaggerated.
On January 3, 2013, investment analyst Geoinvesting.com published
a report revealing these adverse facts and other red-flags of
potential fraud, including Longwei's connection to another
notorious PRC fraud involving Puda Coal, Inc. -- a case where the
Rosen Law Firm is currently serving as co-lead counsel for
investors. Geoinvesting's public disclosure of fraud at Longwei
caused Longwei's stock to fall more than 70% on January 3, 2013.
Since the announcement, trading in Longwei stock has been halted.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 5, 2013. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. If you wish to join the litigation, or to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of The Rosen Law Firm, toll-free, at
866-767-3653, or via e-mail at pkim@rosenlegal.com
You may also visit the firm's Web site at http://rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
CONTACT: The Rosen Law Firm P.A.
Laurence Rosen, Esq.
Phillip Kim, Esq.
275 Madison Avenue 34th Floor
New York, New York 10016
Telephone: (212) 686-1060
Weekends Tel: (917) 562-8616
Toll Free: 1-866-767-3653
Fax: (212) 202-3827
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
Web site: http://www.rosenlegal.com
SILVERCORP: RCMP Mulls Probe on Alleged Criminal Violations
-----------------------------------------------------------
According to Stockhouse, Canada's Royal Canadian Mounted Police is
assessing an investigation of Silvercorp for alleged criminal
violations of the Corruption of Foreign Public Officials Act,
court documents show.
A New York law firm has launched a class-action suit against
Silvercorp Metals Inc. and three of its executives.
The class action suit, which was filed in a New York District
Court on December 28, 2012, has been brought on behalf of people
who bought Silvercorp shares between June 24, 2010 and September
13, 2011.
It alleges that Silvercorp violated U.S. Federal Securities laws
by overstating the quality and quantity of its ore reserves at its
Ying mine in China.
"When the truth regarding the quantity and quality of Silvercorp's
minerals production was disclosed, Silvercorp's stock price fell,
damaging investors," the suit alleges.
The defendants named in the suit include Silvercorp's Chairman and
Chief Executive Officer Rui Feng, President and chief operating
officer Myles Gao, and chief financial officer Maria Tang.
Silvercorp is a Vancouver-based company, which operates four
silver, lead and zinc mines in the Ying District in the western
Henan Province of China. The company purports to be China's
largest primary silver producer. Its main revenue-generating
asset is the Ying mine.
According to the court filing, the anti-corruption unit of
Canada's RCMP is assessing an investigation of Silvercorp for
criminal violations of the Corruption of Foreign Public Officials
Act.
However, Silvercorp and its executives are presumed to be innocent
until such times as these allegations are tested in a court of
law.
Trading at C$4.70 on Jan. 4, Silvercorp has a market cap of
C$802.5 million, based on 170.7 million shares outstanding. The
52-week range is C$8.45 and C$4.90.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Julie Anne L.
Toledo, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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