/raid1/www/Hosts/bankrupt/CAR_Public/130131.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 31, 2013, Vol. 15, No. 22
Headlines
31 GREAT JONES: Settlement of Workers' Suit Gets Preliminary OK
A25: Judge Okays Class Action Over Toll Administration Fees
ANGLOGOLD ASHANTI: Lawyers Call for Silicosis Compensation Fund
BPT PRODUCTS: Recalls 213 Pounds of Beef Jerky Products
CLAIRE'S STORES: Sued for Not Paying All Hours Worked by Employees
CLARCOR INC: Price Fixing Suit in Canada Likely Abandoned
CNA INSURANCE: Sued for Breach of Contract & Unjust Enrichment
CREDIT SUISSE: Judge Enlarges MBS Investor Class Action
DISCOVER FINANCIAL: Continues to Defend "Bradley" Suit in Calif.
DISCOVER FINANCIAL: Continues to Defend "Steinfeld" Class Suit
FORD MOTOR: May Have to Stand Trial in Fuel Tank Class Action
HARTZ MOUNTAIN: Recalls Chicken Chews & Oinkies Pig Skin Twists
HEWLETT-PACKARD: Faces Securities Class Action Over Misstatements
KMART: Paul Hastings to Handle Suitable Seating Class Action
LG CHEM: Conspired to Raise Lithium Ion Battery Prices, Suit Says
LOWE'S HOME: Sued For Violating Labor Law Violations
NESTLE: Faces Class Action Suit Over "Trans Fat Pizzas"
NEW YORK: Court Denies Preliminary Injunction in "NYTDA" Suit
OGDEN CAP: Faces Hurricane Sandy-Related Class Suit in New York
PETSMART INC: Blumenthal, Nordrehaug Files Overtime Class Action
PRICEWATERHOUSECOOPERS: Unlicensed Associates File Class Action
PRUDENTIAL FINANCIAL: Judge Denies Class Cert. in Overtime Suit
RAY'S PIZZERIA: Sued Over Unpaid OT and Spread-of-Hours Premiums
REGIONS MORGAN: April 12 Settlement Fairness Hearing Set
SEQWATER: Engineers Australia Wants Class Suit Info Made Available
SILVERCORP METALS: Disputes Allegations in N.Y. Class Actions
SPROUTER NORTHWEST: Recalls 1,953 Pounds of Various Sprouts
SYNGENTA AG: City of Pinckneyville Gets Atrazine Settlement Share
WALLABY YOGURT: Sued For False Advertising on Yogurt Product
WEST COVINA AUTO: FAA Preempts Right to Class Action Under CLRA
YUM! BRANDS: Shareholders File Class Action Over False Statements
* Alberta Class Actions Continue to Surge, Stikeman Elliot Says
* Brooklyn Court Reinstates Class Action Over "Sober House"
* Sup. Ct. of Appeal Provides Price-Fixing Class Action Guidelines
* Va. Drywall Class Action Settlements Get Prelim. Court Okay
*********
31 GREAT JONES: Settlement of Workers' Suit Gets Preliminary OK
---------------------------------------------------------------
District Judge Kimba M. Wood of the United States District Court
for the Southern District of New York granted preliminary approval
to the settlement of the class action captioned ALISHA SILVER,
Individually and on Behalf of All Other Persons Similarly
Situated, Plaintiff, v. 31 GREAT JONES RESTAURANT, d/b/a FIVE
POINTS RESTAURANT, MARC MEYER, VICTORIA FREEMAN, and JOHN DOES #
1-10, Jointly and Severally, Defendants, No. 11 CV 7442 (KMW)
(DCF).
The Court certified the "Settlement Class" as: "All current and
former employees of 31 Great Jones Restaurant Corp., d/b/a/ Five
Points Restaurant who are or were employed as servers, bussers,
runners, bartenders, and barbacks at any time since October 21,
2005 until the entry of judgment in this case."
The Court appointed Bronson Lipsky LLP and Gottlieb & Associates
as class counsel.
The Court will hold a fairness hearing on March 26, 2013, at 10:00
a.m., at the United States District Court, Southern District of
New York, U.S. Courthouse, 500 Pearl Street, Courtroom 18B, in New
York.
Class Members may file written objections to be submitted no later
than 5:00 p.m. EST to:
Douglas B. Lipsky, Esq.
BRONSON LIPSKY LLP
630 Third Avenue, Fifth Floor
New York, NY 10017
- and -
Michael J. DiMattia, Esq.
Philip A. Goldstein, Esq.
MCGUIREWOODS LLP
1345 Avenue of the Americas Seventh Floor
New York, NY 10105
All additional papers in support of the settlement will be filed
and served on all named parties by March 16, 2013.
A copy of the District Court's January 3, 2013 Opinion and Order
is available at http://is.gd/BKN5qrfrom Leagle.com.
A25: Judge Okays Class Action Over Toll Administration Fees
-----------------------------------------------------------
CTV Montreal reports that a Quebec Superior Court judge authorized
a class action lawsuit on Jan. 24 against the private company that
operates the tolls.
The suit was brought by the Union des Consommateurs who argued the
fees charged for using the bridge are not clear.
The signs are clear for most, but for some of the thousands of
drivers who paid administration fees to use the A25 toll bridge
between Laval and Montreal, a refund might be in their future.
"We should see big signs that when you're crossing that bridge --
depending on the hour -- you have to pay $6.84 or $7.44 and not
doing the math while driving across that bridge," said Philippe
Viel.
"Under the consumer protection act you have to put and put a
bigger stress on the total amount that you have to pay when you
cross that bridge."
Signs just before the bridge advertise the toll fee and the
administration fee separately.
The class action suit covers only those drivers who do not have
transponders for the toll bridge and who were charged the $5
administration fee.
When you add the service charge to the toll, the total for drivers
without transponders is almost triple the cost of crossing the
bridge. That annoyed Linda Raizenne when she used the bridge just
a few months after it opened.
"A little while later I get a bill: $5. I said what? $5? How come
$5?" said the upset driver.
Ms. Raizenne wasn't aware of the service charge because there were
no signs at the time. She's upset on principle.
"I wouldn't have minded paying the $1.80 whatsoever because, you
know? But $5? No. I felt that was really gouging us without
warning us."
The company that manages the A25 Bridge refused CTV Montreal's
request for comment, saying the matter is now before the courts.
But in a statement they reminded everyone who receives a bill that
they still have to pay it.
The company's Web site still doesn't show the total charge for
crossing the bridge.
The Union des Consommateurs doesn't know how many people could be
affected by the class action lawsuit, but thousands of drivers who
don't have a transponder have paid the administration fee.
They're asking the court to return the fees plus a $5 penalty per
driver.
It could take years for the case to be resolved.
ANGLOGOLD ASHANTI: Lawyers Call for Silicosis Compensation Fund
---------------------------------------------------------------
Heidi Swart, writing for Mail & Guardian, reports that as the case
against Anglo American SA in the UK unfolds, local lawyers are
calling for the setting up of a compensation fund.
Human rights lawyers have accused Anglo American South Africa of
knowingly and negligently neglecting to implement measures to
protect gold miners from serious lung diseases, particularly
silicosis and silico-tuberculosis, and have filed massive lawsuits
against them.
Should these various court cases and mass actions succeed, it
could force the gold mining industry to pay billions to ailing
miners. The bulk of the miners contracted the diseases between
1970 and 2000 and there is evidence that shows that Anglo American
South Africa allowed miners to continue working up to 15 years
after they were diagnosed with silicosis.
Despite these looming cases, health and legal experts believe that
due to the conditions underground, a number of mineworkers are
still at risk of contracting silicosis.
In May, British law firm Leigh Day and Co, personal injury,
employment and human rights solicitors, will battle it out with
Anglo American South Africa in the London High Court on behalf of
3,500 men claiming damages from the mining giant. All of them are
Southern African gold miners suffering from silicosis. Anglo
American South Africa has denied all liability.
Leigh Day has launched the case in London because that is where
the Anglo American Group's headquarters are now situated.
Anglo American South Africa spokesperson Pranill Ramchander said
the company did not believe it was liable for the miners'
silicosis claims in any way.
"We maintain that the gold mining companies that owned and
operated the mines and that employed these mine workers were
responsible for the health and safety of their employees and took
reasonable steps to protect them," was all that Mr. Ramchander
said in response to a list of questions dealing with a range of
accusations made against the company.
Uncompensated
Silicosis is a potentially lethal and painful respiratory disease
caused by airborne crystalline silica found in the same rock ore
as gold. Silicosis weakens strong men, forcing them to take early
retirement, barely capable of any physical exertion.
New claimants are continually joining Leigh Day's mass action,
said Leigh Day attorney Richard Meeran. The final amount that
Anglo American South Africa will have to pay should Leigh Day win
will depend on the number of miners joining the claim, the average
value per claim and how many miners ultimately win. Mr. Meeran
estimated that the total value of the claims could be in the area
of GBP1.6 billion.
"Although this amount is speculative, that type of figure does not
seem at all unrealistic," he said.
However, many of the miners may never be able to claim. "All of
the miners are still alive, but for those who die before the
litigation reaches the stage of 'close of pleadings', pain and
suffering damages will be lost unless Anglo agrees that they
should be preserved," said Mr. Meeran.
Mr. Meeran said that thousands of silicotic miners had died
uncompensated in recent decades. "Their claims for pain and
suffering have been lost and cannot be claimed by their
dependants," he said. "Over time, the gold mining industry's
potential compensation bill becomes progressively smaller. It
therefore suits the financial interests of the industry to
continue to drag its heels."
He said the position under British law was that pain and suffering
claims were transmitted to the dependants on death and that
legislation to achieve the same result in South Africa appeared to
be required urgently. Mr. Meeran said the mining industry's
approach flew in the face of global campaigns advertising a
commitment to corporate social responsibility.
Silicosis is an invisible disease. Microscopic particles of
silica are released into the air during the gold mining process --
particularly during blasting and drilling -- and miners work in
conditions where they are likely to inhale the invisible, odorless
and highly toxic dust. Silicosis sufferers run a higher risk of
contracting pulmonary tuberculosis and inhaling silica dust puts a
miner at a higher risk of tuberculosis, regardless of whether or
not silicosis has set in.
Externalization of Trauma
Just how many people have contracted the disease while working in
gold mines is difficult, if not impossible, to determine,
according to a number of experts in the field. "Often, miners
become sick after they have been retired from mining for 10 to 15
years," said Mr. Meeran.
Many miners' illnesses go undiagnosed, because they are migrant
workers from rural areas in the Eastern Cape, Mozambique, Lesotho
and Botswana, said Tony Davies, professor emeritus at the
University of Witwatersrand School of Public Health and former
director of the South African National Institute for Occupational
Health. Often miners live in poverty, with a lack of medical
facilities to make accurate diagnoses. These miners are also
often out of reach of legal help and are therefore unlikely to
confront their former employers with civil claims.
"One of the things that has made South African mining so
profitable is the externalization of trauma and disease to people
in labor sending areas," said Mr. Davies. "The cost of all of
this falls on the community."
Mr. Meeran said that Leigh Day had filed the mass action claim in
England for several reasons: damages awarded under British
legislation are generally higher than in South Africa and the
procedures to deal with mass action are better developed.
In addition, should Leigh Day win in Britain, Anglo American South
Africa will have to settle Leigh Day's "success" fees -- that is,
the fees that are payable to lawyers acting on a "no-win, no-fee"
basis. Under the South African no-win, no-fee system, claimants'
lawyers' success fees are deductible from claimants' damages and
can be up to 25% of the damages.
Leigh Day contends that Anglo American South Africa's central
administration is in London, where the Anglo American group is now
headquartered. On that basis, said Mr. Meeran, the English courts
had jurisdiction. However, said Mr. Meeran, Anglo American South
Africa was disputing this, arguing that its central administration
is in Johannesburg, where board meetings take place to make
operational decisions.
Since 2004, Leigh Day has also been assisting the Legal Resources
Centre (LRC) in South Africa with 18 other claims from former mine
workers affected by silicosis after working at the President Steyn
Mine in Welkom in the Free State. The LRC is a non-profit
organization providing legal assistance to people who cannot
afford it. The case has received funding from Legal Aid South
Africa.
Historic Ruling
Anglo American South Africa is alleged to have negligently
controlled and advised its group of companies that operated the
mine at the time that the claimants worked there, between the late
1960s and 1998. The precise sums claimed by each miner are still
being calculated and will vary from one individual to another,
said Mr. Meeran. He estimated that the total claimed by the 18
would be millions of rands. "It is anticipated that if
successful, their claims will pave the way for a wider settlement
for silicosis victims employed on Anglo South Africa mines," said
Mr. Meeran.
Anglo American South Africa no longer owns shares in the mine: the
company sold the last of its shares in the gold mining sector in
2009.
Thus far, four of the 18 miners have died. One of the plaintiffs
died in November 2012.
In October this year, nine surviving miners, some of whose health
is also very fragile, and one widow of a deceased miner will
attend a final hearing of the case. This will be a public
arbitration in Johannesburg before a panel of three retired
judges, former chief justice Sandile Ngcobo and retired Supreme
Court of Appeal judges Ian Farlam and Noel Hurt. Gold mines'
headaches really started in March 2011 when Thembekile Mankayi was
given the green light by the Constitutional Court to seek
compensation from his former employer, AngloGold Ashanti.
Human rights lawyer Richard Spoor represented Mr. Mankayi, who
died a week before the historic ruling -- Mr. Spoor had fought the
case through a number of courts.
Although the court did not rule on his R2.6-million claim, it
ruled that mineworkers could now claim from their employers for
damages caused by having contracted silicosis.
In December 2012, Mr. Spoor filed an application for the
certification of a class action suit brought on behalf of all gold
miners with silicosis and the widows of gold-mine workers who had
died of the disease. The miners had worked on gold mines since
1965. The respondents are 30 gold mining companies and their
parent companies and include Anglo American South Africa, Harmony
Gold, AngloGold Ashanti and Goldfields. Mr. Spoor's firm
represents about 17 000 former mine workers in the class action.
Deregistered
"We are asking the court to recognize the applicants as the
representatives of a class and to recognize my firm as the
representative attorneys," said Mr. Spoor. Mr. Mankayi's widow is
now one of the 30 representatives in the class action.
Mr. Spoor said that it was too early to determine the claim's
value, since the claim amounts for individual miners varied and
the size of the classes had not been determined.
"[Many] have already died and many gold mining companies have been
deregistered and it may not be possible to find all the members of
the class who are widely dispersed across the subcontinent."
But Mr. Spoor expects it to run into "billions of rands". He
hopes that once the mines' liability is established through the
class action, it will be possible to create a compensation scheme
for the miners.
"Such a scheme would operate along the lines of the Asbestos
Relief Trust, which was established in 2004 pursuant to litigation
against the asbestos mining industry.
"A class action is a potential lifeline for the gold mining
industry," said Mr. Spoor. "The alternative is thousands of
individual claims." This could bankrupt the industry.
Mr. Spoor said the suggestion that paying compensation for
silicosis would destroy the industry was without foundation.
Legal and Factual Issues
"You're talking about an industry with a market capitalization of
about R500-billion. To settle this issue is well within its
means. It has ploughed much more money into black economic
empowerment schemes over the past two decades than it would ever
need to do to settle the silicosis issue."
Anglo American South Africa said: "We have the deepest sympathy
for those miners who have contracted silicosis and we fully
support the initiatives of the mining industry, labor and
government to ensure that sufferers receive proper treatment and
compensation."
AngloGold Ashanti spokesperson Alan Fine said the company had
received and was reviewing Mr. Spoor's application. "The
application raises a number of complex legal and factual issues,
and AngloGold Ashanti plans to respond through the appropriate
court procedures to defend the case on its merits," he said,
pointing out that it made continual efforts to protect workers
from silicosis.
"As a result of efforts to improve underground dust levels and
reduce exposure, rates of silicosis at AngloGold Ashanti have
shown a consistent and encouraging downward trend." Gold Fields
spokesperson Sven Lunsche said that, given the highly sensitive
legal issues involved, the company preferred not to comment.
Harmony Gold spokesperson Bobo Ndinisa referred the Mail &
Guardian to the Chamber of Mines. The latter did not respond.
The mineral resources department also did not respond to requests
for comment.
BPT PRODUCTS: Recalls 213 Pounds of Beef Jerky Products
-------------------------------------------------------
BPT Products Inc., a Sunland Park, New Mexico establishment, is
recalling approximately 213 pounds of beef jerky products that
contain wheat, a known allergen, which is not declared on the
product label, the U.S. Department of Agriculture's Food Safety
and Inspection Service (FSIS) announced.
The following products are subject to USDA recall:
* "1.5-oz. bags of "Cow Chips Dried Beef Original Flavor"
* "1.5-oz. bags of "Cow Chips Dried Beef Adobo Flavor"
* "1.5-oz. bags of "Cow Chips Dried Beef Adobo Flavor Hot
Habanero"
* "1.5-oz. bags of "Carne Seca Nativo Dried Beef Adobo Flavor"
* "1.5-oz. bags of "Carne Seca Nativo Dried Beef Adobo Flavor
Hot Habanero"
The recalled product bears the establishment number "Est. 40357M"
inside the USDA mark of inspection, and a "sell by" date between
"2/16/2013" and "7/18/2013" appears on a sticker on the back of
each bag. The products were produced on various dates between
August 16, 2012, and January 18, 2013, and were distributed for
retail sale in El Paso, Texas. Pictures of the recalled products'
labels are available at: http://is.gd/Iq6cJx
The problem was discovered by FSIS inspection personnel during a
routine label review. The undeclared wheat is a sub-ingredient of
soy sauce, which is declared on the product label, though the soy
sauce's sub-ingredients are not. FSIS and the company have
received no reports of adverse reactions associated with
consumption of these products. Anyone concerned about an adverse
reaction should see a health care professional.
FSIS routinely conducts recall effectiveness checks to verify that
recalling firms notify their customers of the recall and that
steps are taken to make certain that the product is no longer
available to consumers.
Consumers and media with questions about the recall should contact
Roberto Rubio at (915) 603-7178.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at AskKaren.gov or
via smartphone at m.askkaren.gov. "Ask Karen" live chat services
are available Monday through Friday from 10:00 a.m. to 4:00 p.m.
Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888-
MPHotline (1-888-674-6854) is available in English and Spanish and
can be reached from 10:00 a.m. to 4:00 p.m. Eastern Time Monday
through Friday. Recorded food safety messages are available 24
hours a day. For information on how to report a problem with a
meat, poultry or processed egg product to FSIS at any time, visit:
http://www.fsis.usda.gov/FSIS_Recalls/Problems_With_Food_Products
CLAIRE'S STORES: Sued for Not Paying All Hours Worked by Employees
------------------------------------------------------------------
Mayra Quintana, Elizabeth Sanchez, individually, and on behalf of
other members of the general public similarly situated, and as
aggrieved employees v. Claire's Stores, Inc., a Florida
corporation; CBI Distributing Corporation, a Florida corporation;
Claire's Boutiques, Inc., a Colorado corporation; Shelly Muzeck,
an individual; and Does 1 through 10, inclusive, Case No.
112cv238295 (Calif. Super. Ct., Santa Clara Cty., December 21,
2012) alleges that the Defendants violated the California Labor
Code.
The Plaintiffs allege that they and class members were not paid
for all hours worked because all hours worked were not recorded.
The Plaintiffs also allege that the Defendants knew or should have
known that the Plaintiffs and class members were entitled to
receive all meal periods or payment of one additional hour of pay
at their regular rate of pay when they did not receive a timely
uninterrupted meal period, and that they did not receive all meal
periods or payment of additional pay when they did not receive a
timely uninterrupted meal period.
The Plaintiffs are residents of San Jose, California. Ms.
Quintana was employed as a non-exempt, hourly-paid assistant
manager from approximately February 10, 2012, to November 2012 in
the Defendants' Santa Clara retail location. Ms. Sanchez was
employed as a non-exempt, hourly-paid store manager from
approximately April 2011 to October 2012 in the Defendants'
Santa Clara and Capitola retail locations.
Claire's Stores, CBI and Claire's Boutiques are Florida
corporations doing business in California as "Claire's" and
"Icing." Shelley Muzeck is a resident of the state of California,
and was the district manager at the Claire's location where the
Plaintiffs worked. The Plaintiffs are currently unaware of the
true names or capacities of the Doe Defendants.
The Defendants removed the lawsuit on January 25, 2013, from the
Superior Court of the state of California, County of Santa Clara,
to the United States District Court for the Northern District of
California. The Defendants argue that the removal is proper
because diversity of citizenship exists between the Plaintiffs and
one or more Defendants. The District Court Clerk assigned Case
No. 5:13-cv-00368 to the proceeding.
The Plaintiffs are represented by:
Raul Perez, Esq.
Nathan Lowery, Esq.
Alexandria Witte, Esq.
CAPSTONE LAW APC
1840 Century Park East, Suite 450
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Raul.Perez@Capstonelawyers.com
Nathan.Lowery@Capstonelawyers.com
Atexandria.Witte@Capstonelawyers.com
The Defendants are represented by:
John S. Battenfeld, Esq.
MORGAN, LEWIS & BOCKIUS LLP
300 South Grand Avenue, Twenty-Second Floor
Los Angeles, CA 90071-3132
Telephone: (213) 612-2500
Facsimile: (213) 612-2501
E-mail: jbattenfeld@morganlewis.com
- and -
Eric Meckley, Esq.
Rebecca Licht Jensen, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1126
Telephone: (415) 442-1000
Facsimile: (415) 442-1001
E-mail: emeckley@morganlewis.com
rjensen@morganlewis.com
CLARCOR INC: Price Fixing Suit in Canada Likely Abandoned
---------------------------------------------------------
CLARCOR Inc. believes that the attorneys representing a plaintiff
class in the lone price-fixing case that remains pending in Canada
have effectively abandoned the action, according to the Company's
January 25, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 1, 2012.
On March 31, 2008, S&E Quick Lube, a filter distributor, filed a
lawsuit in U.S. District Court for the District of Connecticut
alleging that virtually every major North American engine filter
manufacturer, including the Company's subsidiary Baldwin Filters,
Inc., (the "Defendant Group"), engaged in a conspiracy to fix
prices, rig bids and allocate U.S. customers for aftermarket
filters. The lawsuit is a purported class action on behalf of
direct purchasers of filters from the Defendant Group. Parallel
purported class actions, including on behalf of indirect
purchasers of filters, were filed by other plaintiffs against the
Defendant Group in a variety of jurisdictions in the United States
and Canada. All of the U.S. cases were consolidated into a single
multi-district litigation in the Northern District of Illinois
(the "Court"). The Company consistently denied any wrongdoing
whatsoever and has vigorously defended the action.
On October 7, 2011, Baldwin entered into a settlement agreement
(the "Settlement Agreement") with the putative plaintiff classes
involved in the action. Pursuant to the terms of the Settlement
Agreement, Baldwin denied any wrongdoing whatsoever but agreed to
pay a total of $625,000 to a settlement fund to be divided among
the plaintiff classes in exchange for a full and complete release
of all claims with prejudice. Two other members of the Defendant
Group, Donaldson and Cummins, Inc., also entered into
substantially identical settlement agreements with the putative
plaintiff classes at the same time as Baldwin.
The Company says it entered into the Settlement Agreement to free
itself from the expense of ongoing U.S. litigation, which was
anticipated to be many times greater than the agreed settlement
amount. The Company paid the $625,000 settlement during the first
quarter of fiscal year 2012. On November 28, 2012, the Court
entered a final judgment order approving the Settlement Agreement
as to the last of the U.S. plaintiff classes and dismissing the
U.S. causes of action against Baldwin with prejudice and without
costs. The time for appealing these U.S. actions has expired, and
the Company faces no further liability in the United States in
connection with this matter. Similarly, the Company does not
believe that it faces any material liability in connection with
the lone Canadian case that remains pending. The Company believes
that the attorneys representing the Canadian plaintiff class have
effectively abandoned the action in light of the small U.S.
settlements.
CNA INSURANCE: Sued for Breach of Contract & Unjust Enrichment
--------------------------------------------------------------
Reliable Roofing and Sheet Metal, LLC, Individually And On Behalf
of All Others Similarly Situated v. CNA Insurance Companies Inc.
and Transportation Insurance Company, Case No. SUCV2013-00269
(Mass. Super. Ct., Suffolk Cty., January 22, 2013) alleges breach
of contract, breach of the covenant of good faith and fair
dealing, unjust enrichment and violations of the Massachusetts
Consumer Protection Act.
The complaint asserts that the Defendants failed to timely and
properly revise unit statistical reports and to adjust reserves
after certain reimbursements and recoveries. Reliable Roofing
contends that these failures resulted in the Defendants reaping
the benefits of reimbursements and recoveries for losses at the
expense of the Plaintiff and all others similarly situated.
Reliable Roofing is a business incorporated under the laws of the
Commonwealth of Massachusetts, with its principal place of
business in Framingham, Massachusetts. Reliable Roofing purchased
workers' compensation insurance from CNA and Transportation
Insurance for coverage of occupational injuries occurring in and
around Massachusetts. The Plaintiff is a business with employees
working in Massachusetts, and is required by Massachusetts law to
have in effect at all times a policy of workers' compensation
insurance for the benefit of its employees.
CNA is an Illinois corporation headquartered in Chicago, Illinois.
CNA has promoted itself as a leader in the insurance industry,
with superior expertise and profitability. Transportation
Insurance is an Illinois corporation and a subsidiary of CNA. At
all relevant times, the Defendants have actively pursued and
executed workers compensation insurance contracts in
Massachusetts, including the contract with Reliable Roofing.
The Plaintiff is represented by:
Michael P. Thornton, Esq.
Christian F. Uehlein, Esq.
THORNTON & NAUMES LLP
100 Summer Street, 30th Floor
Boston, MA 02110
Telephone: (617) 720-1333
E-mail: mthornton@tenlaw.com
cuehlein@tenlaw.com
CREDIT SUISSE: Judge Enlarges MBS Investor Class Action
-------------------------------------------------------
The Litigation Daily reports that a federal judge in Manhattan has
enlarged a class action brought by investors who claim that Credit
Suisse misled them about the risks of mortgage-backed securities
that the bank arranged. It's the third time in two months that a
MBS suit has been revived because of a recent Second Circuit
ruling on standing.
DISCOVER FINANCIAL: Continues to Defend "Bradley" Suit in Calif.
----------------------------------------------------------------
On November 30, 2011, a class action lawsuit was filed against
Discover Financial Services by a cardmember in the U.S. District
Court for the Northern District of California (Walter Bradley, et
al. v. Discover Financial Services). The plaintiff alleges that
the Company contacted him, and members of the class he seeks to
represent, on their cellular telephones without their express
consent in violation of the Telephone Consumer Protection Act
("TCPA"). Plaintiff seeks statutory damages for alleged negligent
and willful violations of the TCPA, attorneys' fees, costs and
injunctive relief. The TCPA provides for statutory damages of
$500 for each violation ($1,500 for willful violations).
No further updates were reported in the Company's January 25,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended November 30, 2012.
Discover Financial Services is a direct banking and payment
services company. Discover Financial is headquartered in
Riverwoods, Illinois.
DISCOVER FINANCIAL: Continues to Defend "Steinfeld" Class Suit
--------------------------------------------------------------
On March 6, 2012, a class action lawsuit was filed against
Discover Financial Services by a cardmember in the U.S. District
Court for the Northern District of California (Andrew Steinfeld,
et al. v. Discover Financial Services, et al.). The plaintiff
alleges that the Company contacted him, and members of the class
he seeks to represent, on their cellular telephones without their
express consent in violation of the Telephone Consumer Protection
Act ("TCPA"). Plaintiff seeks statutory damages for alleged
negligent and willful violations of the TCPA, attorneys' fees,
costs and injunctive relief. The TCPA provides for statutory
damages of $500 for each violation ($1,500 for willful
violations).
No further updates were reported in the Company's January 25,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended November 30, 2012.
Discover Financial Services is a direct banking and payment
services company. Discover Financial is headquartered in
Riverwoods, Illinois.
FORD MOTOR: May Have to Stand Trial in Fuel Tank Class Action
-------------------------------------------------------------
New Jersey Law Journal reports that Ford Motor may have to stand
trial in a putative class action over rusting fuel tanks in
certain of its vans and pickup trucks. A federal judge has
declined to dismiss claims for breach of express warranty and
breach of the implied covenant of good faith and fair dealing,
though he dismissed counts of common-law fraud and violation of
the New Jersey Consumer Fraud Act.
HARTZ MOUNTAIN: Recalls Chicken Chews & Oinkies Pig Skin Twists
---------------------------------------------------------------
The Hartz Mountain Corporation is voluntarily withdrawing its
Hartz Chicken Chews and Hartz Oinkies Pig Skin Twists wrapped with
Chicken for dogs in the United States because they contain trace
amounts of unapproved antibiotic residue.
The Company says it is taking this action after recent Hartz
testing found trace amounts of unapproved antibiotic residue in
samples of Hartz(R) Chicken Chews(TM) and Oinkies(R) Pig Skin
Twists wrapped with Chicken products. Even though two-thirds of
the products the Company tested did not contain antibiotic
residues, the Company says it would rather be overly cautious by
voluntarily withdrawing these products from the market.
These antibiotics are approved for use in poultry in China and
other countries, including European Union member states, but are
not among those approved in the U.S. Based on the FDA's review of
the New York State Department of Agriculture & Markets (NYSDAM)
results, there is no evidence that raises health concerns, and
these results are highly unlikely to be related to the reports of
illnesses FDA has received related to jerky pet treats.
Immediately upon learning of this finding, Hartz contacted the FDA
to share its test results and execute a nationwide voluntary
withdrawal. There have been no known illnesses to date associated
with the consumption of these products.
"Upon learning about the nationwide voluntary withdrawal of
several other brands of chicken jerky products through media
reports, Hartz acted immediately to begin additional testing to
determine if the same unapproved antibiotic residues were present
in our products," said Sean McNear, Sr. Director of Quality and
Regulatory at Hartz Mountain.
There is no indication that the trace amounts of unapproved
antibiotic residue are linked to the FDA's ongoing investigation
of chicken jerky products produced in China. The trace amounts of
antibiotic residue do not pose a health or pet safety risk.
No other Hartz products are affected by this withdrawal.
If consumers have these products, they may contact the Hartz
Consumer Affairs team (24 hours/day 7 days/week) at 1-800-275-1414
for a refund.
HEWLETT-PACKARD: Faces Securities Class Action Over Misstatements
-----------------------------------------------------------------
Kenneth A. Kotyuk v. Hewlett-Packard Co. reports that Hewlett-
Packard stock traded at artificially inflated prices because of
misstatements to investors, and the stock dropped significantly
amid news that HP had grossly overpaid on several acquisitions, a
class claims.
KMART: Paul Hastings to Handle Suitable Seating Class Action
------------------------------------------------------------
The Recorder reports that after achieving mixed results in its
first suitable seating class action trial, Kmart is betting on new
counsel to handle what could be a much larger battle. The head of
Winston & Strawn's San Francisco labor and employment group is off
the case, along with two other partners, according to a court
filing. A Paul Hastings partner whom Kmart retained on the eve of
a bench trial will take over as head of its defense team.
LG CHEM: Conspired to Raise Lithium Ion Battery Prices, Suit Says
-----------------------------------------------------------------
Krista Lepore, Individually and on Behalf of All Others Similarly
Situated v. LG Chem, Ltd.; LG Chem America, Inc.; Panasonic
Corporation; Panasonic Corporation of North America; Sanyo
Electric Co., Ltd.; Sanyo North America Corporation; Sony
Corporation; Sony Energy Devices Corporation; Sony Electronics,
Inc.; Samsung SDI Co., Ltd.; Samsung SDI America, Inc.; Hitachi,
Ltd.; Hitachi Maxell, Ltd.; and Maxell Corporation of America,
Case No. 3:13-cv-00361 (N.D. Calif., January 25, 2013) accuses the
Defendants of conspiring to stabilize and raise the prices of
Lithium Ion Rechargeable Battery above competitive levels.
The Defendants and other co-conspirators agreed, combined and
conspired to inflate, fix, raise, maintain, or artificially
stabilize prices of Lithium Ion Rechargeable Batteries, Ms. Lepore
contends. She argues that as a direct result of the anti-
competitive and unlawful conduct of the Defendants, she and the
Class members paid artificially inflated prices for Lithium Ion
Rechargeable Batteries during the Class Period.
Ms. Lepore is a resident of New York. During the Class Period,
she purchased a Sony digital camera containing a Lithium Ion
Rechargeable Battery containing a cell manufactured by a
Defendant.
LG Chem is a Korean corporation based in Seoul, South Korea. LG
Chem is an affiliate of Seoul-based conglomerate LG Electronics.
LG Chem America is a Delaware corporation based in Englewood
Cliffs, New Jersey, and a wholly owned subsidiary of LG Chem.
Panasonic Corp. is a Japanese corporation based in Osaka, Japan.
Panasonic Corp. was formerly known as Matsushita Electric
Industrial Co. Panasonic manufactures and sells Lithium Ion
Rechargeable Batteries under the Panasonic name and also under the
name of Defendant and wholly owned subsidiary Sanyo Electric Co.,
Ltd. Panasonic Corporation of North America, formerly known as
Matsushita Electric Corporation of America, is a Delaware
Corporation based in Secaucus, New Jersey, and a wholly owned and
controlled subsidiary of Panasonic Corporation. Sanyo is a
Japanese corporation based in Osaka, Japan. Sanyo North America
Corporation is a Delaware corporation based in San Diego,
California, and a wholly owned subsidiary of Sanyo Electric Co.,
Ltd.
Sony Corporation is a Japanese corporation based in Tokyo, Japan.
Sony Energy is a Japanese corporation based in Fukushima, Japan.
Sony Energy Devices Corporation is a wholly owned subsidiary of
Sony Corporation. Sony Electronics is a Delaware corporation
based in San Diego, California and a wholly owned subsidiary of
Sony Corporation.
Samsung SDI is a Korean corporation based in Gyeonggi, South
Korea, and 20% owned by the Korean conglomerate Samsung
Electronics, Inc. Samsung SDI America is a California corporation
based in Irvine, California, and a wholly owned subsidiary of
Samsung SDI.
Hitachi Ltd. is a Japanese company based in Tokyo, Japan. Hitachi
Maxell is a Japanese corporation based in Tokyo, Japan, and a
wholly owned subsidiary of Hitachi, Ltd. Maxell is a New Jersey
corporation based in Woodland Park, New Jersey.
The Defendants manufacture, market, and sell Lithium Ion
Rechargeable Batteries throughout the United States and the world.
The Defendants collectively controlled approximately two-thirds or
more of the worldwide market for Lithium Ion Rechargeable
Batteries throughout this period, and over 80 percent of the
market in the early part of this period.
The Plaintiff is represented by:
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
E-mail: shanas@hbsslaw.com
- and -
Bryan L. Clobes, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
1101 Market Street, Suite 2650
Philadelphia, PA 19107
Telephone: (215) 864-2800
Facsimile: (215) 864-2810
E-mail: bclobes@caffertyclobes.com
LOWE'S HOME: Sued For Violating Labor Law Violations
----------------------------------------------------
Courthouse News Service reports that Lowe's Home Centers
misclassifies its installers as independent contractors to duck
labor laws, a class action claims in Cook County Court.
NESTLE: Faces Class Action Suit Over "Trans Fat Pizzas"
-------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that Nestle and
California Pizza Kitchen are "deliberately poisoning their
consumers" with "trans fat pizzas" containing partially
hydrogenated vegetable oil, a "toxic carcinogen," a woman claims
in a $5 million class action.
Katie Simpson sued California Pizza Kitchen and Nestle, whose
store-bought pizza brands include California Pizza Kitchen,
DiGiornos and Stouffer's, in Federal Court.
Ms. Simpson does not claim she was forced to eat Nestle's pizzas,
but says she "repeatedly purchased Nestle trans fat pizzas for
personal and household consumption."
She claims that Nestle squeezes healthier pizzas off supermarket
shelves by using the low-cost food additive, partially
hydrogenated vegetable oil, allowing it to increase its market
share.
"Artificial trans fat is a toxic carcinogen for which there are
many safe and commercially acceptable substitutes," Ms. Simpson
says. She claims it has been shown to cause, or contribute to,
heart disease, type-2 diabetes, breast, prostrate and colorectal
cancer, Alzheimer's disease and or cognitive decline.
"Although there are safe, low-cost, and commercially acceptable
alternatives to trans fat, including those used in competing
brands and even in a few Nestle and CPK [California Pizza Kitchen]
products, defendants unfairly elect not to use those substitutes
in the Nestle trans fat pizzas in order to increase profit at the
expense of consumer health," the 16-page complaint states.
Partially hydrogenated vegetable oil was invented in 1901, and
patented by German chemist Wilhelm Normann, according to the
complaint.
"Artificial trans fat is manufactured via an industrial process
called partial hydrogenation, in which hydrogen atoms are added to
normal vegetable oil by heating the oil to temperatures above 400
degrees Fahrenheit in the presence of ion donor catalyst metals
such as rhodium, ruthenium, and nickel. The resulting product is
known as partially hydrogenated vegetable oil, or PHVO, which is
the main source of trans fat in the American diet and used in
dangerous quantities in the Nestle trans fat pizzas," the
complaint states.
Due to its low cost and long shelf life, the additive was marketed
originally as a "'wonder product'" and used in many processed
foods.
But in recent years scientists have determined that trans fat is
unhealthy, and many countries have banned or limited its use,
including Denmark, Austria, Switzerland, Brazil, Argentina, Chile
and South Africa.
California was the first state to ban artificial trans fat, in
88,000 restaurants, and has limited the amount of trans fat used
in foods offered on school menus, Ms. Simpson says.
New York City banned trans fat in 20,000 restaurants in 2006, and
Philadelphia, Stamford, Conn., and Montgomery County, Md. followed
suit.
"Now, given its toxic properties few food companies continue to
use PHVO. Defendants, however, have decided not to follow their
more responsible peers and cease using PHVO, instead placing
profits over public health and deliberately poisoning their
consumers," the complaint states.
Ms. Simpson claims Nestle's profits are "far outweighed by the
gravity of the serious health harm imposed on consumers." She
claims this "unfair, immoral behavior" limits shelf space of
competitors who make trans fat-free pizzas.
States are also burdened by sick Americans who seek treatment
through Medicare and Medicaid programs after eating trans fat
pizza, Ms. Simpson claims.
She adds: "Plaintiff lost money as a result of defendants' conduct
described herein in that she purchased products that, because they
were detrimental to her health, were unfairly offered for sale in
violation of California law. Had defendants not violated the law,
plaintiff would not have been able to purchase the Nestle trans
fat pizzas, or would have only been able to purchase Nestle and
CPK pizzas containing safe alternatives to PHVO and trans fat."
She seeks restitution, disgorgement, a cease and desist order for
abatement of nuisance, corrective advertising and damages for
unfair competition.
She is represented by Gregory Weston.
Nestle Pizza is reviewing a copy of the lawsuit, division and
brand affairs manager Deborah Cross told Courthouse News.
"We will vigorously defend ourselves against all baseless
allegations," Ms. Cross said in an e-mail.
"All of our pizza products are in strict compliance with both FDA
and USDA regulations."
NEW YORK: Court Denies Preliminary Injunction in "NYTDA" Suit
-------------------------------------------------------------
In NYTDA, INC. v. CITY OF NEW YORK, District Judge Nicholas G.
Garaufis denied the request of New York Trucking & Delivery
Association for preliminary injunction and for other equitable
relief.
The Court denied the request for injunctive relief under Federal
Rules of Civil Procedure 23 and 65 because the Plaintiff has not
demonstrated entitlement to the preliminary injunction.
In its complaint, NYTDA alleged that the City's implementation and
operation of its Stipulated Fine Program deprived it and other
putative class members of their right to be free from unreasonable
searches and seizures and right to property and due process in
violation of the United States Constitution, the New York State
Constitution, and New York contract law. The Plaintiff seeks to
recoup $5 million of losses; an estimated $50 million of damages
for all class members, as well as rescission and return of all
fines collected under the illegal parking scheme; and declaratory
and permanent injunctive relief.
The case before Judge Garaufis is styled, NYTDA, INC. a/k/a NEW
YORK TRUCKING & DELIVERY ASSOCIATION, individually and on behalf
of all others similarly situated, Plaintiffs, v. THE CITY OF NEW
YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK
CITY POLICE DEPARTMENT THE NEW YORK CITY DEPARTMENT OF FINANCE;
STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN;
and JOHN AND JANE DOES 1-10, ALL IN THEIR OFFICIAL CAPACITIES,
Defendants, No. 11-CV-1836 (NGG) (MDG), (E.D.N.Y.)
A copy of Judge Garaufis' January 23, 2013 Memorandum &
Order is available at http://is.gd/exFd2Mfrom Leagle.com.
OGDEN CAP: Faces Hurricane Sandy-Related Class Suit in New York
---------------------------------------------------------------
Briana Adler, Lauren Schoenfeld, Perri Steiner, on behalf of
themselves and all persons similarly situated v. Ogden Cap
Properties, LLC, Solil Management, LLC, 145 East 16th Street, LLC,
Sol Goldman Investments, LLC, Tres Realty, LLC, and Does 1-500,
Case No. 650292/2013 (N.Y. Sup. Ct., January 25, 2013) is brought
on behalf of all persons, who were tenants or lessees of leased
residential apartments in New York that were rendered
uninhabitable by Hurricane Sandy.
Every residential landlord or management company in the state of
New York that accepted and retained rent payments for the period
when Hurricane Sandy rendered uninhabitable the residential
apartments, or cooperative units, of putative class members must
return the funds, the Plaintiffs assert. The Plaintiffs seek to
ensure that affected tenants and lessees recover those rents paid
and retained by their landlords and management companies covering
the period commencing October 29, 2012, and continuing well into
November 2012, and beyond, during which time residential tenants
and lessees were without electricity, heat and hot water in their
leased residential units.
The Plaintiffs are residents of New York. Briana Adler has been a
tenant at the Windsor Court, a 31-story residential building in
New York, which is owned and operated by Ogden Cap. Lauren
Schoenfeld has been a tenant at the Washington Irving House, a 19-
story residential building in New York with 234 apartments, which
is owned by 145 East and Sol Goldman, and operated by Solil
Management. Perri Steiner has been a tenant at 17 Stuyvesant, a
20-unit residential building in New York, which is owned and
operated by Tres Realty.
Ogden Cap is a Delaware limited liability company based in New
York. Solil Management, 145 East, Sol Goldman and Tres Realty are
New York limited liability companies also based in New York. All
the Defendants have members that are domiciled in New York. The
Doe Defendants are the owners and landlords of residential
apartments, including cooperative apartments, located in the state
of New York where Plaintiffs and the proposed members of Class
leased residential apartment units.
The Plaintiffs are represented by:
Barbara J. Hart, Esq.
Thomas Skelton, Esq.
Scott V. Papp, Esq.
LOWEY DANNENBERG COHEN & HART, P.C.
One North Broadway, Suite 509
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: bhart@lowey.com
tskelton@lowey.com
spapp@lowey.com
- and -
Harold M. Hoffman, Esq.
LAW OFFICE OF HAROLD M. HOFFMAN
1140 Sixth Avenue, Suite 1701
New York, NY 10036
Telephone: (212) 486-6322
Facsimile: (212) 980-8746
PETSMART INC: Blumenthal, Nordrehaug Files Overtime Class Action
----------------------------------------------------------------
An unpaid overtime wages lawsuit has been filed against the
nation's largest pet specialty retailer for allegedly violating
overtime laws by failing to pay employees the proper amount of
overtime wages.
On January 9, 2013 Blumenthal, Nordrehaug & Bhowmik, the class
action lawyers in Los Angeles and San Diego filed a lawsuit
against Petsmart, Inc. for allegedly shorting their employees the
proper amount of overtime wages for all overtime hours worked.
Allen vs. Petsmart, Inc., Case No. BC498740 is currently pending
in the Los Angeles County Superior Court.
According to the class action complaint filed against Petsmart,
the pet specialty retailer paid some of their higher level non-
exempt employees a non-discretionary bonus based on their
performance. According to the Complaint, Petsmart failed to
include the non-discretionary bonuses as part of the employees'
'regular rate of pay' and subsequently paid these employees at
incorrect overtime rates. As a result, the class action claims
hundreds of employees have been denied their overtime wages and
also seeks additional penalties.
Blumenthal, Nordrehaug & Bhowmik dedicates its practice to helping
employees, investors and consumers fight back against unfair
business practices, including violations of the California Labor
Code and Fair Labor Standards Act. If you need help in collecting
unpaid wages, call an experienced California employment attorney
today at (866) 771-7099.
PRICEWATERHOUSECOOPERS: Unlicensed Associates File Class Action
---------------------------------------------------------------
Vincent Commisso, individually and on behalf of all others
similarly situated v. PricewaterhouseCoopers LLP, Case No.
650273/2013 (N.Y. Sup. Ct., January 25, 2013) accuses PwC of
having a nationwide policy of depriving its unlicensed associates
of earned overtime wages.
To avoid paying the Unlicensed Associates' overtime premiums, PwC
has uniformly misclassified them as exempt from the overtime
protections of the New York Labor Laws, Mr. Commisso alleges. He
contends that Unlicensed Associates perform their duties under the
close supervision of more senior PwC employees, and exercise
little, or no, independent judgment and discretion.
Mr. Commisso worked for PwC's Assurance line of service as an
Associate, an entry-level job that does not require a license as a
certified public accountant, requires no advanced level training,
and primarily involves performance of routine tasks, like data
entry, basic document review and counting.
PwC is an international audit, tax and advisory firm with offices
in 154 countries and more than 160,000 employees worldwide.
The Plaintiff is represented by:
Justin M. Swartz, Esq.
Ossai Miazad, Esq.
Rachel M. Bien, Esq.
Cyrus E. Dugger, Esq.
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Telephone: (212) 245-1000
E-mail: jms@outtengolden.com
omiazad@outtengolden.com
rmb@outtengolden.com
cdugger@outtengolden.com
PRUDENTIAL FINANCIAL: Judge Denies Class Cert. in Overtime Suit
---------------------------------------------------------------
Courthouse News Service reports that a federal judge refused to
certify a class of insurance agents who claim that Prudential
Financial unfairly denied them overtime.
A copy of the Opinion in Bouder, et al. v. Prudential Financial,
Inc., et al., Case No. 06-cv-04359 (D. N.J.) (Cavanaugh, J.), is
available at:
http://www.courthousenews.com/2013/01/23/Prudential.pdf
RAY'S PIZZERIA: Sued Over Unpaid OT and Spread-of-Hours Premiums
----------------------------------------------------------------
Felicito Tapia, Domingo Nejatengo, on behalf of themselves and
those similarly situated v. Paul Pappas, John Does 1-10, "XYZ"
Corporation (actual name unknown), hereinafter referred to as
"XYZ" Corp.", d/b/a Ray's Pizza Bagel Cafe, a/k/a Ray's Pizza,
Ray's Pizzeria, severally and jointly, Case No. 650266/2013 (N.Y.
Sup. Ct., January 24, 2013) seeks to recover unpaid overtime and
spread-of-hours premiums for Plaintiffs and their similarly
situated co-workers -- hourly employees who have worked at Ray's
Pizza.
The Defendants have deprived the Plaintiffs and the class of
overtime pay and the spread-of-hours premiums since at least
January 24, 2007, the Plaintiffs allege.
Messrs. Tapia and Nejatengo are residents of Queens County, New
York. They used to work as counter-men in the deli section of
Ray's Pizza.
The Defendants jointly and severally employed the Plaintiffs and
the class at all times relevant to the complaint, the Plaintiffs
assert. The Plaintiffs add that Mr. Pappas and the Doe Defendants
were the owners and managers of Ray's Pizza at all relevant times.
The Plaintiffs are represented by:
Eugene G. Eisner, Esq.
EISNER & MIRER, P.C.
113 University Place
New York, NY 10003
Telephone: (212) 473-8700
REGIONS MORGAN: April 12 Settlement Fairness Hearing Set
--------------------------------------------------------
Labaton Sucharow LLP on Jan. 25 issued a statement regarding the
In re Regions Morgan Keegan Closed-End Fund Litigation.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
TENNESSEE WESTERN DIVISION
IN RE REGIONS MORGAN KEEGAN SECURITIES, DERIVATIVE & ERISA
LITIGATION No. 09-md-02009-SHM
This Document Relates to: In re Regions Morgan Keegan Closed-End
Fund Litigation, No. 07-cv-02830 SHM dkv
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT
AND MOTION FOR ATTORNEYS' FEES AND EXPENSES
TO: All Persons who purchased or otherwise acquired the publicly
traded shares of: (i) RMK High Income Fund, Inc. ("RMH") between
June 24, 2003 and July 14, 2009, inclusive, and were damaged
thereby; (ii) RMK Strategic Income Fund, Inc. ("RSF") between
March 18, 2004 and July 14, 2009, inclusive, and were damaged
thereby; (iii) RMK Advantage Income Fund, Inc. ("RMA") between
November 8, 2004 and July 14, 2009, inclusive, and were damaged
thereby; (iv) RMK Multi-Sector High Income Fund, Inc. ("RHY")
between January 19, 2006 and July 14, 2009, inclusive, or pursuant
or traceable to the Registration Statement, Prospectus, and
Statement of Additional Information filed by RHY on or about
January 19, 2006 with the SEC; and (v) all members of the TAL
Subclass (collectively, the "Class" or "Class Members" as further
defined in the Settlement Agreement).
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an order of the Court, that the Class in
the above-captioned litigation ("Action") has been preliminarily
certified for the purposes of settlement only and that a
settlement between Lead Plaintiffs Lion Fund, L.P., Dr. J. Samir
Sulieman, and Larry Lattimore ("Lead Plaintiffs") and C. Fred
Daniels, in his capacity as Court-appointed Trustee Ad Litem
("TAL") for the Leroy McAbee, Sr. Family Foundation Trust (the
"McAbee Foundation Trust") (the McAbee Foundation Trust together
with the Lead Plaintiffs, "Plaintiffs"), on behalf of themselves
and the Class and the TAL Subclass, and Defendants Morgan Keegan &
Company, Inc., Morgan Asset Management, Inc., MK Holding, Inc.,
Regions Financial Corporation, RMH, RSF, RMA, RHY, James C.
Kelsoe, Jr., Carter E. Anthony, Brian B. Sullivan, Joseph Thompson
Weller, Allen B. Morgan, Jr., and J. Kenneth Alderman
(collectively, "Defendants"), in the amount of $62 million in
cash, has been proposed by the Parties. A full description of the
Class and the Settlement can by found in the Notice of Pendency of
Class Action and Proposed Settlement and Motion for Attorneys'
Fees and Expenses (the "Notice").
A hearing will be held before the Honorable Samuel H. Mays, Jr. of
the United States District Court for the Western District of
Tennessee, Western Division, in the Clifford Davis/Odell Horton
Federal Building, 167 North Main Street, 11th Floor, Courtroom 2,
Memphis, Tennessee 38103 at 9:30 a.m. on April 12, 2013 to, among
other things: determine whether the proposed Settlement should be
approved by the Court as fair, reasonable, and adequate; determine
whether the proposed Plan of Allocation for distribution of the
settlement proceeds should be approved as fair and reasonable; and
consider the application of Lead Counsel for an award of
attorneys' fees and payment of litigation expenses. The Court may
change the date of the hearing without providing another notice.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO RECEIVE MONEY
FROM THE NET SETTLEMENT FUND. If you have not yet received the
full printed Notice and a Proof of Claim and Release Form ("Proof
of Claim"), you may obtain copies of these documents by contacting
the Claims Administrator:
In re Regions Morgan Keegan Closed-End Fund Litigation
c/o The Garden City Group, Inc.
PO Box 9939
Dublin, OH 43017-5939
Telephone: 1 (888) 895-9227
E-mail: Questions@rmkclosedendfundsettlement.com
Web site: http://www.rmkclosedendfundsettlement.com
Inquiries, other than requests for information about the status of
a claim, may also be made to Lead Counsel:
LABATON SUCHAROW LLP
Joel H. Bernstein, Esq.
David J. Goldsmith, Esq.
140 Broadway New York, NY 10005
Telephone: (888) 219-6877
E-mail: settlementquestions@labaton.com
Web site: http://www.labaton.com
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Proof
of Claim to the Claims Administrator postmarked or otherwise
received no later than May 20, 2013. To exclude yourself from the
Class, you must submit a written request for exclusion in
accordance with the instructions set forth in the Notice such that
it is received no later than March 22, 2013. If you are a Class
Member and do not exclude yourself from the Class, you will be
bound by the Final Order and Judgment of the Court. Any
objections to the proposed Settlement, Plan of Allocation, and/or
application for attorneys' fees and payment of litigation expenses
must be filed with the Court and served on counsel for the Parties
in accordance with the instructions set forth in the Notice, such
that they are received no later than March 22, 2013.
If you are a Class Member and do not timely submit a valid Proof
of Claim, you will not be eligible to share in the Net Settlement
Fund, but you nevertheless will be bound by the Final Order and
Judgment.
DATED: January 4, 2013
BY ORDER OF THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TENNESSEE
SEQWATER: Engineers Australia Wants Class Suit Info Made Available
------------------------------------------------------------------
Justin McGar, writing for Engineering Source, reports that if the
class action lawsuit over the Queensland floods proceeds following
the devastating damage caused in 2011, then Engineers Australia
wants the information surrounding the action to be made freely
available.
An independent investigation has concluded that the flooding of a
large number of properties down river from Wivenhoe Dam in 2011
would not have occurred had the dam's operations been up to the
standards expected of a reasonably competent dam operator.
Comprehensive modeling will form the basis of a class action
lawsuit on behalf of thousands of flood victims in Queensland's
southeast. The modeling will be run on a no-win no-fee basis by
Maurice Blackburn Lawyers and backed by litigation funder IMF
Australia.
Maurice Blackburn Class Actions principal Damian Scattini said
there is sufficient evidence to ensure a class action could
proceed.
"Our modeling shows that had Wivenhoe been operated properly there
would not have been flooding in some areas," he said. "In other
areas this poor operation meant flooding was much worse than it
should have been. This evidence provides us with strong grounds
to proceed with a class action."
IMF executive director John Walker said it was important for
people in affected areas to show their support for the class
action.
"The work has been done to build a solid case, and we're now
calling on people to register for the action," he said. "Already
we've had strong support from people affected and continuing this
is vital to ensuring this case can progress."
While acknowledging the significant loss and emotional strain
suffered by Queenslanders, Engineers Australia's Queensland
Division president Simon Orton has called for open and informed
debate and spoken out against allegations being made without
releasing any credible technical evidence to support these claims.
"Without this data, it is impossible for anyone to form a view of
the accuracy of the data, the resultant alternative flood maps, or
any lessons that may be learned to better serve our communities,"
he said. "It is our role to ensure that the community is
adequately informed on important technical issues such as these.
To enable this to occur we look forward to the data and
methodology behind the suggested flood maps being made publicly
available and open for review."
In a statement, Mr. Orton said that although it was important to
learn lessons from the past, it was equally important to focus on
the challenges ahead to assist in the preparedness of the
community to cope with future floods. Issues such as town
planning and design to enhance community resilience against future
floods should be a specific focus, he suggested.
SILVERCORP METALS: Disputes Allegations in N.Y. Class Actions
-------------------------------------------------------------
Silvercorp Metals Inc. on Jan. 24 advises it is aware of the class
action lawsuits that were first commenced on December 24, 2012 in
New York. Allegations made in the class action suits are based on
the accusations made by the blog site alfredlittle.com, which have
already been established as entirely false by the Company. These
accusations, solely in the Company's opinion, were proven to be
false by the following:
* The KPMG Forensic report, which was reviewed by regulatory
authorities, verified that the Company fairly presented its
financial results, plus a subsequent full audit of the Company for
the year ended March 31, 2012 has been completed by Ernst & Young
LLP;
* The completion of updated technical reports by AMC Mining
Consultants (Canada) Ltd., reconfirmed the Company's resources and
reserves and verified that the Company's properties are viable
economic resources. Furthermore, the report for the Ying Mining
District concluded that the asset had a Net Present Value of
US$890 million. Regulatory authorities reviewed both technical
reports.
On August 16, 2012, in the defamation action commenced by the
Company, Justice Edmead of the New York Supreme Court ruled that
the "short and distort" allegations made by the blog site
alfredlittle.com are merely statements of opinion and as such
protected by freedom of speech; Silvercorp disagrees with the
decision and filed an appeal in August 2012, in the Appellate
Division of New York Supreme Court. The Company believes the
allegations were solely intended to manipulate the market so that
profits could be made from short selling.
To date, from public court documents, only two people representing
only 7,000 Company shares initiated the class actions. It is the
Company's belief that there is no merit to the allegations set out
in the class action lawsuits since they are based on previously
made false accusations and as such represent nothing new and are a
non-event; the Company will defend itself accordingly.
About Silvercorp
Silvercorp -- http://www.silvercorp.ca-- is a low-cost silver-
producing Canadian mining company with multiple mines in China
which has paid a cash dividend since 2007. The Company is
currently developing the GC project in southern China which it
expects will become its next operating mine in early 2013. The
Company's vision is to deliver shareholder value by focusing on
the acquisition of under developed projects with resource
potential and the ability to grow organically
SPROUTER NORTHWEST: Recalls 1,953 Pounds of Various Sprouts
-----------------------------------------------------------
Sprouters Northwest of Kent, Washington, is recalling 1,953 pounds
of alfalfa, clover, brocco sandwich sprouts, and spicy sprouts due
to the potential contamination with Listeria monocytogenes, an
organism which can cause serious and sometimes fatal infections in
young children, frail or elderly people, and others with weakened
immune systems. Although healthy individuals may suffer only
short-term symptoms such as high fever, severe headache,
stiffness, nausea, abdominal pain and diarrhea, listeria infection
can cause miscarriages and stillbirths among pregnant women.
Products were distributed from 1/10/13 to 1/18/13 in Washington,
Oregon, Alaska, and British Columbia, Canada through retail stores
and food service distribution chain.
The affected products are sold under the Sprouters Northwest brand
and are packaged in plastic clamshell containers and plastic 1 lb
bags.
The affected products are:
Product Size Best by Date
------- ---- ------------
Clover Sprouts 5 oz. container 01/26/2013
UPC: 0 33383 70235 3
Clover Sprouts 1 lb. bag 01/26/2013
UPC: 0 79566 12351 5
Clover Sprouts 2 lbs. tray 01/26/2013
UPC: 0 79566 12351 5
Clover Sprouts 4 oz. container 01/26/2013
UPC: 8 15098 00201 6
Brocco Sandwich Sprouts 4 oz. container 01/26/2013
UPC: 8 15098 00028 9
Spicy sprouts 4 oz. container 01/26/2013
UPC: 8 15098 00202 3
Alfalfa sprouts 4 oz. container 01/31/2013
UPC: 8 15098 00108 8
Alfalfa sprouts 3 oz. container 01/31/2013
UPC: 8 51042 00402 6
The problem was identified through a surveillance sampling and two
samples collected at retail locations were tested positive for
Listeria monocytogenes by the Washington State Department of
Agriculture (WSDA).
The firm is working with WSDA and the Food & Drug Administration
on this recall.
Consumers should not consume the recalled sprouts products and are
advised to return them to the place of purchase for a full refund.
Consumers with questions may contact the company at 1-253-872-0577
from 7:00 a.m. to 2:00 p.m. Pacific Standard Time.
SYNGENTA AG: City of Pinckneyville Gets Atrazine Settlement Share
-----------------------------------------------------------------
DuQuoin.com reports that the City of Pinckneyville announced the
receipt of $46,923 from the settlement of a lawsuit for drinking
water contamination by the weed killer atrazine. Pinckneyville
was one of 1,085 municipalities participating in the class-action
suit.
The St. Louis law firm Korein Tillery and Dallas firm Baron and
Budd filed the lawsuit against Swiss chemical manufacturer
Syngenta AG and other manufacturers of atrazine on behalf of all
the Midwestern community water systems with detectable levels of
atrazine. Each city submitted claims for remediation costs. The
amount of each claim was determined by past atrazine detections.
While the funds are to reimburse the city for past expenses for
removing atrazine from drinking water, the court noted that it was
up to the municipalities how best to allocate the money.
The lawsuit was initially filed in 2004, but expanded in 2010.
The parties involved agreed to settle on Oct. 23, 2012 for a total
of $105 million.
Syngenta acknowledged no liability and continues to stand by the
safety of atrazine. A statement on their Web site reads "The
scientific evidence continues to make it clear that no one ever
has or ever could be exposed to enough atrazine in water to affect
their health. The plaintiffs acknowledge that they have not
commissioned and are not aware of any new scientific studies
relating to the safety of atrazine."
WALLABY YOGURT: Sued For False Advertising on Yogurt Product
------------------------------------------------------------
Courthouse News Service reports that a federal class action
accuses Wallaby Yogurt Co. of false advertising on its packaging
that says the yogurt contains "evaporated cane juice," instead of
"sugar."
WEST COVINA AUTO: FAA Preempts Right to Class Action Under CLRA
---------------------------------------------------------------
According to Travis J. Anderson, Esq. and Shannon S. Petersen,
Esq. of Sheppard Mullin, in Flores v. West Covina Auto Group, ---
Cal.Rptr.3d ----, 2013 WL 139200 (Cal. App. 2 Dist. Jan. 11,
2013), the California Court of Appeal extended the U.S. Supreme
Court's landmark decision in AT&T Mobility, Inc. v. Concepcion,
131 S. Ct. 1740 (2011) by holding that the Federal Arbitration Act
preempts any right to a class action under the California
Consumers Legal Remedies Act ("CLRA"), and class action waivers in
arbitration agreements governed by the FAA are therefore
enforceable.
The CLRA grants consumers the right to file class actions to
enforce its terms, and-according to the Flores court-provides that
"any waiver by a consumer" of this right "is contrary to public
policy and shall be unenforceable and void." Cal. Civ. Code
Sec. 1751. The court determined that the FAA preempts the CLRA's
antiwaiver provision because the latter "stands as an obstacle to
the accomplishment and execution of the full purposes and
objective of the FAA," which is to enforce arbitration agreements
according to their terms. If an arbitration provision is subject
to the FAA and contains a class action waiver, the waiver must be
enforced regardless of state public policy concerns.
In Flores, consumers filed a putative class action against an car
dealership, alleging the dealership sold them a "lemon" and failed
to fully disclose all sale terms. The dealership moved to compel
arbitration and enforce the class action waiver contained in a
form contract widely used by dealerships throughout California.
Plaintiffs opposed, contending the CLRA prevented enforcement of
the class action waiver, and that the arbitration agreement was
unconscionable and therefore unenforceable. The trial court
granted the dealership's motion and compelled arbitration.
The Court of Appeal affirmed. In doing so, it disagreed with
Fisher v. DCH Temecula Imports LLC, 187 Cal.App.4th 601 (2010),
which had denied arbitration on the ground that the CLRA
establishes an unwaivable right to bring class actions. The
Flores court correctly noted that, "since Fisher, the United
States Supreme Court's decision in Concepcion has altered the
legal landscape substantially." The Court of Appeal found "no
meaningful distinction" between the CLRA's antiwaiver provision
and the preempted class action waiver rule in Concepcion, and held
that the FAA preempted both Fisher and the CLRA's prohibition
against class waivers.
The Flores court further held that the arbitration agreement was
not substantively unconscionable for any other reason. Plaintiffs
focused on four terms they claimed were one-sided in favor of the
dealership -1) a party who loses at arbitration can appeal to a
panel of three arbitrators only if the award is $0, exceeds
$100,000, or grants injunctive relief; 2) the dealership only pays
the first $2,500 of plaintiffs' arbitration costs; 3) only certain
arbitration organizations could be selected by the plaintiffs
without the dealership's approval; and 4) self-help remedies,
including the right to repossession, are excluded from
arbitration. Citing Pinnacle Museum Tower Association v. Pinnacle
Market Development (US), LLC, 55 Cal.4th 223 (2012), the Flores
court held that none of these terms were "so one-sided as to shock
the conscience." Thus, the agreement was fully enforceable.
The California Supreme Court will soon address these and/or
related issues in Sanchez v. Valencia Holding Co. LLC, 201
Cal.App.4th 74 (2011) review granted, 139 Cal.Rptr.3d 2 (Mar. 21,
2012), which involves the same form contract.
YUM! BRANDS: Shareholders File Class Action Over False Statements
-----------------------------------------------------------------
Courthouse News Service reports that Yum! Brands inflated its
stock price through false and misleading statements and the price
fell from $74.47 to $63.38 when the truth emerged, shareholders
claim in Federal Court.
* Alberta Class Actions Continue to Surge, Stikeman Elliot Says
---------------------------------------------------------------
According to Michael Mestinsek of Stikeman Elliott, as predicted,
in the wake of Alberta's Class Proceedings Act, proclaimed in
force on April 1, 2004, the number and magnitude of class actions
in Alberta have continued to surge. Recent amendments passed in
2010 to the certification regime, including in relation to multi-
jurisdictional certifications and rendering Alberta an "opt-out"
jurisdiction, have continued the trend towards easing the burden
on class action plaintiffs in commencing and certifying class
actions in Alberta.
This is exemplified by the recent filing of a class action by the
Calgary-based JSS Barristers LLP firm on behalf of students whose
personal information was allegedly misplaced by the Government of
Canada student loans program through the loss of a computer hard
drive containing this information. The commencement of this
action was quickly reported by major news agencies in Alberta and
will, no doubt, garner national attention. Stikeman Elliott
expects that other law firms across the country will be launching
similar actions.
While in comparison to more mature class action jurisdictions in
the United States, and Ontario, the prevalence of class actions in
Alberta remains limited, their frequency has trended steadily
upwards. Also trending upwards are the number and sophistication
of the plaintiff-side firms commencing these claims. Such firms
have followed on the successful models employed by Ontario-based
firms like Siskinds LLP. In light of Alberta's growing economic
prominence in Canada, as a major center for business, trade and
finance (especially in the energy sector), Stikeman Elliott
expects Alberta to experience rapid growth in the class actions
space over the next few years.
This growth will clearly delineate the need for business
enterprises in Alberta to significantly elevate their level of
sophistication as it relates to class action risks. It will also
prioritize the development of sound strategies to mitigate those
risks and to defend these claims when they arise. Historically,
Alberta businesses have had the luxury of observing the emergence
and development of class actions law from a distance. That era has
clearly come to an end.
* Brooklyn Court Reinstates Class Action Over "Sober House"
-----------------------------------------------------------
Andrew Keshner, writing for New York Law Journal, reports that
occupants of a so-called "sober house" sufficiently argued they
were entitled to rent-regulation protections, a Brooklyn appeals
court ruled in reinstating a putative class action and ordering it
to be heard by a different judge.
* Sup. Ct. of Appeal Provides Price-Fixing Class Action Guidelines
------------------------------------------------------------------
According to Desmond Rudman, Esq. and Kathryn Lloyd, Esq. of
Webber Wentzel, the Supreme Court of Appeal has provided guidance
for prospective litigants intending to institute class actions in
relation to breaches of the Competition Act. The court's judgment
relates to a class action brought in 2010 by non-governmental
organizations (NGOs) and consumers against bread producers, which
were found guilty of fixing the bread price in 2007.
The Supreme Court of Appeal extended the right to bring class
actions in the case of non-constitutional rights matters and
provided certain guidelines that should be followed.
The Supreme Court of Appeal prescribed that in deciding whether to
permit a class action, courts should determine whether the
following features to the proposed class action are present:
* There is an objectively identifiable class;
* There is a cause of action raising an issue that a court may
consider;
* There are common issues to be dealt with in the interests of
all the members of the identified class;
* There are appropriate available procedures for distributing
damages to the members of the class; and
* The persons bringing the action are suitable representatives
for the class.
If these features exist, the court will issue a class certificate
and the action can be formally instituted.
The Supreme Court of Appeal referred the matter back to the
Western Cape High Court, which refused to issue a class
certificate to NGOs and consumers against bread producers in 2010.
The Western Cape High Court will now have to determine, on the
basis of these guidelines, whether to certify the class action.
* Va. Drywall Class Action Settlements Get Prelim. Court Okay
-------------------------------------------------------------
HarrisMartin reports that a federal judge presiding over the
coordinated Chinese drywall litigation in Louisiana has granted
preliminary approval to four class action settlements involving
drywall-related property damage in Virginia.
In a Jan. 17 order, Judge Eldon E. Fallon of the U.S. District
Court for the Eastern District of Louisiana said the four
agreements involving suppliers, installers and their insurers,
were reached in good faith and are "within the range of possible
judicial approval."
If given final approval, the deals would provide approximately
$17.4 million in funding for several hundred homeowners in
Virginia whose residences were damaged.
*********
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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