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/raid1/www/Hosts/bankrupt/CAR_Public/130204.mbx C L A S S A C T I O N R E P O R T E R Monday, February 4, 2013, Vol. 15, No. 24 Headlines AMERICAN REALTY: Faces Merger-Related Class Suit in New York ANGLOGOLD ASHANTI: To Defend Gold Miners' Silicosis Class Action BANK OF AMERICA: Fired Pregnant Worker File Class Action BRE-X MINERALS: Deloitte Seeks Leave to Discontinue Class Action BRP MEXICO: Recalls 25,000 Can-Am Side-By-Side Off Road Vehicles CANADA: Her Majesty The Queen Faces Suit Over Lost Hard Drive COLUMBIA SPORTSWEAR: Recalls 10,040 Men's/Women's Heated Jackets FACEBOOK: May 2 "Sponsored Story" Settlement Claim Deadline Set GOOGLE INC: UK Citizens File Class Action Over iPhone Tracking HIPSTER INC: Faces Consumer Suit Over Mobile Device "Hacking" LIVING ESSENTIALS: Sued for Misrepresenting Energy Drink Benefits MINNESOTA: DNR Faces Two Class Actions Over Data Breach MINNESOTA: Crowder Teske Files Data Breach Class Action v. DNR NEXIUM: Linda Nussbaum Loses Antitrust MDL Lead Counsel Bid NTS REALTY: Faces Merger-Related Class Action in Kentucky PHILADELPHIA: Class Cert. Bid in Traffic Violations Suit Denied STALLINGS HEAD: FSIS Lists Stores That Received Recalled Products SYNGENTA CROP: Municipalities Get Share in Atrazine Settlement TEXXXAN.COM: 17 Women File Class Action Over Humiliating Photos US GYPSUM: Faces Antitrust Class Action Over Drywall Price Fixing US TELEPACIFIC: Denial of Arbitration Bid in "Brennan" Suit Upheld * CBI Balks at UK Government's Class Action Law Proposals * No. of Securities Suit Settlements Hit Record Lows, NERA Says ********* AMERICAN REALTY: Faces Merger-Related Class Suit in New York ------------------------------------------------------------ Randell Quaal, individually and on behalf of all others similarly situated v. American Realty Capital Trust III, Inc., American Realty Capital Operating Partnership III, L.P., Nicholas S. Schorsch, Edward Michael Weil, Jr., Scott J. Bowman, Edward G. Rendell, David Gong, American Realty Capital Properties, Inc., ARC Properties Operating Partnership, L.P., and Tiger Acquisition, LLC, Case No. 650329/2013 (N.Y. Sup. Ct., January 30, 2013) is brought on behalf of holders of the common stock of ARCT III to enjoin the shareholder vote relating to the acquisition of all of the outstanding shares of ARCT III common stock by ARCP and its wholly-owned subsidiary, Tiger, until ARCT III shareholders are provided with sufficient information to cast a fully informed vote. Mr. Quaal asserts that in facilitating the acquisition of ARCT III by ARCP for inadequate consideration and through a flawed process, each of the Defendants breached and aided the other Defendants' breaches of their fiduciary duties. He adds that the ARCT III Board of Directors breached its fiduciary duties by failing to maximize the consideration available to ARCT III shareholders. Mr. Quaal is a shareholder of ARCT III. ARCT III is a Maryland corporation based in New York. Operating as a real estate investment trust, the Company is required to distribute at least 90% of REIT taxable income to its shareholders annually. ARCT III OP is a Delaware limited partnership based in New York. ARCT III is the sole general partner of ARCT III OP with a 99.9% stake in ARCT III OP. ARCT III conducts substantially all of its business through ARCT III OP. The remaining 0.1 % stake in ARCT III OP is held by American Realty Capital Trust III Special Limited Partner, LLC, which is 100% owned by AR Capital, LLC. The Individual Defendants are directors and officers of the Company. ARCP is a Maryland corporation based in New York. ARCP operates as a REIT. ARCP OP is a Delaware limited partnership based in New York. ARCP is the sole general partner of ARCP OP. Tiger is a Delaware corporation and a wholly-owned subsidiary of ARCP formed solely for the purpose of consummating the Proposed Transaction. The Plaintiff is represented by: David A.P. Brower, Esq. Brian C. Kerr, Esq. BROWER PIVEN, A Professional Corporation A Professional Corporation 475 Park Avenue South, 33d Floor New York, NY 10016 Telephone: (212) 501-9000 Facsimile: (212) 501-0300 E-mail: brower@browerpiven.com kerr@browerpiven.com ANGLOGOLD ASHANTI: To Defend Gold Miners' Silicosis Class Action ---------------------------------------------------------------- Gulf News reports that thousands of ex-gold miners suffering from silicosis have launched a class action suit in South Africa, in what could prove the final nail in the coffin of the country's battered but vital mining sector. Already buckling under huge operational costs and seemingly endless labor unrest, some 30 gold mine operators were last month slapped with litigation by thousands of their former employees. The plaintiffs -- mostly black migrant laborers from nearby countries and South Africa's far flung mountainous villages of the Eastern Cape region -- allegedly contracted the lung disease while drilling gold bearing rocks. Already theirs is the biggest class action in South Africa's legal history, involving more than 17,000 complainants. And the list is growing by around 500 people each month, according to lead attorney Richard Spoor. That stream could very well become a torrent. Academic calculations estimate some 280,000 people have worked in gold mines for a minimum of 10 years, long enough to inhale dangerous levels of silica dust. Research has shown that between 20 and 30% per cent of all gold mine workers contracted silicosis. Black miners working in often unsafe conditions during apartheid were hardest hit. Activists argue the disease is preventable, if only operators invest in making the mines safe. The disease has virtually been wiped out in other gold mining countries such as Australia, the US and Britain. "But in South African we continue to hear thousands each year, who have been disabled by this disease," said Mr. Spoor, whose oldest client started working in 1965. If the miners are successful, it could cost the industry millions of dollars, but mining experts warn it could also cost jobs. "There will be no golden goose anymore," warned mining consultant Peter Major. "There may be some feathers, some intestines and maybe a beak [but] there will be no goose, no golden bar ever again." That would be an epoch-ending event for a country whose very foundations were built on the gold reefs and diamond deposits. "Do you really want to put mining companies down forever in country that has 30 percent unemployment," asked Mr. Major. "We are almost getting to the stage now where it looks like 'let's kick the guy, let's put the boots to him now that he's down on the ground'." A watershed Constitutional Court ruling in 2011 which allowed sick workers to sue their employers has emboldened the gold mine workers and opened the floodgates. The mass suit -- filed last month and likely to be heard within months -- is sure to play havoc with investors' sentiment. But so far there has been no such flight by investors. Emerging market analyst Peter Nomura is of the opinion the case may not immediately move markets. Markets "may well change particularly if there are large pay- outs," he said. Depending on commodity prices, operators may in the long run consider selling their companies, he added. But some of the larger operators, already facing a few cases brought by smaller groups of miners, are not taking the latest case lightly. "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," said spokesman Alan Fine. "Silicosis is an issue that not only challenges the mining industry, but South Africa as a whole," said Mr. Fine. The consequences of the suit may yet shift into unexpected directions. Some activists argue that government should also be charged with complicity in the case as they grant mining royalties and collect taxes. The state's occupational health compensation department did not respond to requests for comment. BANK OF AMERICA: Fired Pregnant Worker File Class Action -------------------------------------------------------- Scott Flaherty, writing for Law360, reports that a Bank of America Corp. office was hit with a proposed class action on Jan. 28 in Pennsylvania federal court, led by a woman who claims she was fired because she was pregnant. Filing on behalf of a putative class of current and former employees, named plaintiff Ola Fajinmi is accusing the company and two supervisors at a Glen Mills, Pa., location of violating the Family and Medical Leave Act. Ms. Fajinmi says she was discriminated against once she became pregnant and was fired. BRE-X MINERALS: Deloitte Seeks Leave to Discontinue Class Action ---------------------------------------------------------------- Michael Beeforth, Esq. of FMC Law reports that Deloitte & Touche Inc., the long-acting trustee for the Estate of Bre-X Minerals Ltd., has brought motions in the Alberta and Ontario courts seeking leave to discontinue the class action litigation that it has been prosecuting against, amongst others, former Bre-X principal John Felderhof and his ex-wife Ingrid Felderhof, as well as the Estate of founder and CEO David Walsh. As a brief background, in October 1997, an action was commenced in Alberta by investors who lost money on the collapse of Bre-X. In November 1997, the Alberta Bankruptcy Court authorized Deloitte to prosecute the class action on behalf of these investors; shortly thereafter, Deloitte was granted carriage in Ontario in January 1998 (collectively, the "Deloitte Action"). The Deloitte Action asserted that John Felderhof failed to promptly disclose material changes relating to Bre-X's gold mining properties, and that he conspired with others to deceive investors by issuing false statements, announcements and press releases. Deloitte's motions for discontinuance are being brought for two reasons: Deloitte no longer has the financial resources to prosecute the Deloitte Action, and it believes that there is no reasonable prospect of significant recovery from the Felderhofs or the Walsh Estate. Deloitte's motions are opposed by David Carom, one of the plaintiffs in a second class action against the Felderhofs and the Walsh Estate which, until recently, was in a litigation partnership with the Deloitte Action. In anticipation of Deloitte's Ontario discontinuance motion hearing (currently scheduled for March 4, 2013), Mr. Carom recently brought a cross-motion seeking an order that Ingrid Felderhof and Jeannette Walsh (David Walsh's widow) attend to be examined as witnesses under Rule 39.03 of the Rules of Civil Procedure, and that Ingrid Felderhof allow class counsel to obtain an appraisal of a property in the Cayman Islands. Deloitte opposed the cross-motion based on its concern that its discontinuance motion could be affected in the event that either of the proposed witnesses failed to comply with any order made by the court. At the cross-motion hearing (2012 ONSC 7278), Perell J. held that since neither of the proposed witnesses had actually been served with a summons, the appropriate decision was to adjourn the cross- motion to allow Mr. Carom to serve summonses. Perell J. noted, however, that had summonses been served, he saw no basis for striking them out. With respect to the request for an appraisal, Perell J. dismissed the motion without prejudice due to the lack of advice concerning his jurisdiction to make such an order, noting that Ingrid Felderhof was not a party to the Ontario litigation. About Fraser Milner Casgrain LLP (FMC) FMC -- http://www.fmc-law.com-- is a Canadian business and litigation law firms with more than 500 lawyers in six full- service offices located in the country's key business centers. BRP MEXICO: Recalls 25,000 Can-Am Side-By-Side Off Road Vehicles ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with BRP Mexico S.A. de C.V., of Juarez, Chihuahua, Mexico, announced a voluntary recall of about 25,000 Can-Am(R) Commander Side-by-Side Off Road Vehicles. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. Debris such as leaves, hay and grass in wet terrain areas can collect in the vehicle's exhaust pipe area in a short period of time. A hot exhaust pipe and accumulated debris that has dried, poses a risk of fire. The firm has received 18 reports of fires related to accumulated debris in the exhaust pipe area, including one report of minor burns to the hand. This recall involves 2011, 2012 and early 2013 model gas-powered Can-Am Commander side-by-side vehicles. The model name is printed on the vehicle's side panel. Models included in the recall are: Model Year 2013 Model Year 2011 Model Year 2012 (w/o Front Grill Kit) --------------- --------------- -------------------- Can-Am Commander Can-Am Commander Can-Am Commander 800R and 1000 800R and 1000 800R and 1000 Can-Am Commander XT Can-Am Commander XT Can-Am Commander XT 800R and 1000 800R and 1000 800R and 1000 Can-Am Commander X Can-Am Commander X Can-Am Commander X 1000 1000 1000 Can-Am Commander Can-Am Commander Limited 1000 Limited 1000 Can-Am Commander DPS 800R and 1000 A picture of the recalled products is available at: http://is.gd/TFNz56 The recalled products were manufactured in Mexico and sold at Can- Am dealers nationwide from April 2010 through November 2012 for between $11,700 and $21,000. Consumers should immediately stop using the recalled vehicles, check their exhaust for accumulated debris as described in the Cleaning Procedure of Exhaust Area guide and contact a BRP dealer to schedule a free update kit repair. The guide is available to consumers at their local BRP dealer or online at http://www.can- am.brp.com/. BRP has notified registered consumers directly about this recall and the vehicle's cleaning guide. BRP may be reached toll-free at (888) 638-5397, from 8:00 a.m. to 6:00 p.m. Eastern Time Monday through Friday, or online at http://www.can- am.brp.com/ and click on "recall information" under the owner center for more information. CANADA: Her Majesty The Queen Faces Suit Over Lost Hard Drive ------------------------------------------------------------- Courthouse News Service reports that a federal class action against Her Majesty the Queen claims Canada's Ministry of Human Resources and Skills Development lost a hard drive with confidential information on 583,000 students with outstanding loans. COLUMBIA SPORTSWEAR: Recalls 10,040 Men's/Women's Heated Jackets ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Columbia Sportswear Company, of Portland, Oregon, announced a voluntary recall of about 9,600 Men's and Women's Heated Jackets in the United States of America and 640 in Canada. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The heated inner wrist cuff can overheat, posing a burn hazard. No incidents of jacket wrist cuffs overheating were reported in the U.S. The firm received reports of one incident in Europe and one in Canada. No injuries were reported. This recall involves seven models of men's and women's 2012 Columbia Omni-Heat(TM) electric heated jackets. They are polyester and have the Columbia name printed on the front upper left side. The jackets have two battery packs located in inner pouches. Jackets with the following names and style numbers are being recalled: MEN'S ----- Circuit Breaker(TM) II Jacket SM7051 Electro AMP(TM) Jacket SM7061 Electro(TM) Interchange Jacket SM7886 Electric Big Game(TM) Interchange Jacket HM7198 WOMEN'S ------- Circuit Breaker(TM) II Jacket SL7022 Electro AMP(TM) Jacket SL7021 Electro(TM) Interchange Jacket SL7885 The style number can be found on both the large white care label and the small white security tag sewn into the left inside seam of the jacket. Pictures of the recalled products are available at: http://is.gd/gs6QDu The recalled products were manufactured in China and sold at Bass Pro Outdoor World, Dick's Sporting Goods and other major retailers and sporting or outdoor stores nationwide; and online at Amazon.com and Columbia.com from May 2012 to January 2013 for between $250 and $1,200. Consumers should immediately stop using the heated jackets and check the style number to determine if they are part of the recall. Those with recalled jackets should disconnect both batteries from the electrical connections inside the battery pouches and contact Columbia Sportswear for a full refund with proof of purchase. Without proof of purchase, the following refund prices will apply: Men's and Women's Circuit Breaker(TM) II Jacket $275 Men's and Women's Electro AMP(TM) Jacket $250 Men's and Women's Electro(TM) Interchange Jacket $300 Men's Electric Big Game(TM) Interchange $300 Columbia Sportswear Company may be reached toll-free at (866) 201- 9073 from 8:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, or online at http://www.Columbia.com/,click on Recall Information at the bottom of the page, then select 2012 Heated Jacket Recall. FACEBOOK: May 2 "Sponsored Story" Settlement Claim Deadline Set --------------------------------------------------------------- Laurie Segall, writing for CNNMoney, reports that Facebook may have to pay some of its users up to $10 each to settle a class- action lawsuit over its "Sponsored Stories" ads, according to legal notices recently sent out. But don't get your hopes up just yet: Your chances of actually seeing that much cash are pretty slim. In April 2011, five Facebook users filed a lawsuit against the social network giant over its recently launched Sponsored Stories advertising product, which includes users' names and profile picture. If you click 'Like' on a brand like Target, your friends might start seeing Target-related ads with your face next to them. The move didn't sit well with some of Facebook's 1 billion users, but there's no way to opt out. Facebook offered last year to settle the lawsuit by making changes to its service terms to more clearly explain how Sponsored Stories works. It also agreed to pay $20 million into a settlement fund. Facebook and the suing parties agreed to channel most of that settlement cash to Internet privacy advocacy groups. U.S. District Judge Richard Seeborg vetoed the plan, though. He felt some portion of the cash should go directly to Facebook's users. Or, at least, he wanted the two sides to explore that option. With a class size that could approach 100 million people, cash payments might not be feasible, he acknowledged. "The issue this presents appears to be a novel one," he wrote in his ruling in August. "Are some class actions simply too big to settle?" The two sides went back to the drawing board and came up with a new proposal, which the court accepted: Class members will be eligible to receive payments of up to $10 each from the settlement fund. That's why some Facebook users received e-mailed settlement notices over the past few days. Sent from the address legalnotice@facebookmail.com the message looks like it could be spam, but it's not -- it's legit. Here's the catch: The more people who make claims, the less each individual will receive. The plaintiffs' lawyers fees will be deducted from the $20 million settlement fund. (The court is still determining how much they'll get, but the lawyers have asked for $7.5 million, plus around $283,000 in expenses.) Whatever is left gets divided up by the number of claimants. If the fund has $12 million after legal fees and 1.2 million people make claims, everyone gets $10. But if 12 million people make claims, everyone gets only $1. If the number of claims makes it "economically infeasible" to pay everyone cash, the two sides go back to plan A: the cash will go entirely to non-for-profit advocacy groups. The Web site http://www.fraleyfacebooksettlement.comlays out the terms of the proposed deal and the 14 groups that might collect a share of the settlement cash. Those who received the settlement notice have until May 2, 2013, to decide if they want to submit a claim. A final hearing on the case is slated to take place in June. GOOGLE INC: UK Citizens File Class Action Over iPhone Tracking -------------------------------------------------------------- RT reports that Google is embroiled in its biggest privacy battle yet in the UK over reportedly tracking users' online habits. At least 10 UK citizens began legal action with dozens more lining up. According to media estimates up to 10 million Britons could join in. Google is accused of evading security settings on Apple's devices and Safari's web browser in order to keep tabs on people's online preferences. This is the first group claim over privacy issues that the tech- giant is facing in the UK, the lawyer behind the action Dan Tench told The Guardian. "It is particularly concerning how Google circumvented security settings to snoop on its users. One of the things about Google is that it is so ubiquitous in our lives and if that's its approach, then it's quite concerning," Mr. Tench said. On top of that there are plans in the works to launch an umbrella privacy action suit, which could potentially bring in millions of people in the UK. Google executives reportedly received a letter from two users prior to the launch of legal proceedings. The tech-giant is being sued for breaches of privacy and confidence, computer misuse and trespass, and breach of the Data Protection Act of 1998. Claimants want Google to reveal how much data was secretly collected, for how long, and how the information is being used. The point of the claim is not to make money off Google, but to send a message, argued a privacy campaigner working on the legal claims, Alexander Hanff. "This lawsuit is about sending a very clear message to corporations that circumventing privacy controls will result in significant consequences. The lawsuit has the potential of costing Google tens of millions, perhaps even breaking 100 million pounds [US$15.7 million] in damages given the potential number of claimants -- making it the biggest group action ever launched in the UK," Mr. Hanff says. Some users responded by creating a Facebook group titled 'Safari Users against Google's Secret Tracking' to gather support for the new claims against Google. The page promises to hold Google responsible for any privacy breaches. The group was set up "to provide information for anyone who used the Safari internet browser between September 2011 and February 2012, and who was illegally tracked by Google," reads the group's statement. "Any users in the UK may have a claim against Google for this breach of their privacy. Other users, who have set up this group, are taking action against Google to hold them to account." The day after the page was created, it already garnered over one hundred 'likes'. One Facebook user, Vitor Costa, commented on the secrecy aspect behind Google's privacy breaches, questioning "what they are doing with this information." The legal action follows a US ruling that approved a $22.5 million fine to penalize Google for a privacy breach between summer 2011 and spring 2012. The fine resulted after allegations that Google secretly kept tabs on millions of Safari web users, while leading them to believe that their online activities could not be traced as long as they did not change the browser's privacy settings. The FTC came to the conclusion that Google's stealth tracking (which allowed the company to bypass Safari's settings) contradicted its own privacy assurances. Google is not new to privacy violation accusations. In the past it faced many allegations such as, keeping tabs on Wi-Fi users with its StreetView cars and privacy failures of Google's previous social network, Google Buzz. Also, European Union lawmakers have been continuing to pressure Google to boost personal security controls and limit the collection of data without users consent. But new Google services such as Conversations API, which merges offline consumer info with online intelligence, allowing advertisers to target users based on what they do at the keyboard and at the mall, only raise more privacy-based questions. HIPSTER INC: Faces Consumer Suit Over Mobile Device "Hacking" ------------------------------------------------------------- Francisco Espitia, Vanessa Zendejas, and Joe A. Sanchez Fraire, individually and on behalf of a class of similarly situated individuals v. Hipster, Inc., a Delaware Corporation, Case No. 3:13-cv-00432 (N.D. Calif., January 30, 2013) is a consumer class action involving the "computer hacking" of mobile devices. Hipster offered to the public an 'App,' a downloadable computing program designed to provide an enhanced user capability for a mobile device. The Hipster App ostensibly was designed to permit users to create postcards from photos taken on iPhone and Android devices. Users were given the option to share photographic postcards with others through their mobile device. However, the Plaintiffs allege, when users downloaded the Hipster App onto their mobile devices, the Hipster App engaged in additional activities that were not disclosed to the user. The Plaintiffs contend that the Hipster App, without seeking to obtain consent and without notice to the user, sought out and retrieved the list of personal contacts on the user's mobile device, which was then copied and surreptitiously uploaded to Hipster's third- party servers. The Plaintiffs add that other highly sensitive information, like passwords and geo-location, were also obtained by the Hipster App. The Plaintiffs are residents of Dallas County, Texas. They downloaded and used the Defendant's App during the Class Period. Hipster Inc. is a privately held Delaware corporation headquartered in Alto, California. Hipster operates an Internet business as a smartphone-based social network utilizing an application software that performs specific functions for a web- based platform on mobile devices. The Plaintiffs are represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 E-mail: dparisi@parisihavens.com shavens@parisihavens.com - and - Alan Himmelfarb, Esq. THE LAW OFFICES OF ALAN HIMMELFARB 80 W. Sierra Madre Blvd., # 304 Sierra Madre, CA 91024 Telephone: (626) 325-3104 E-mail: consumerlawl@earthlink.net - and - Joseph H. Malley, Esq. LAW OFFICE OF JOSEPH H. MALLEY 1045 North Zang Blvd. Dallas, TX 75208 Telephone: (214) 943-6100 E-mail: malleylaw@gmail.com LIVING ESSENTIALS: Sued for Misrepresenting Energy Drink Benefits ----------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Living Essentials misrepresents the alleged benefits of its 5-Hour Energy drinks; similar federal class actions were filed in St. Louis, New Orleans and Fort Myers, Fla. MINNESOTA: DNR Faces Two Class Actions Over Data Breach ------------------------------------------------------- Mark Saxenmeyer, writing for KAAL-TV, reports that there's more fall-out over the data breach at the Minnesota Department of Natural Resources: two class action lawsuits have now been filed. At least five thousand people had their motor vehicle records accessed -- without authorization -- by a former DNR employee. The attorney who filed the latest suit says the breach is a clear sign that people who work at the DNR, and possibly other state agencies, are not being properly trained or supervised. Victims of this invasion of privacy say they want to know why they were selected, and what, if anything, was done with their information. "I became just creeped out. It was unsettling," said Danielle Prenevost, a north Minneapolis resident. When she received a letter from the DNR explaining to her that an employee had "engaged in unauthorized viewing" of her private data, she started wondering. "What was he looking for, what was he using the information for?" she said. The DNR says the man in question, John A. Hunt, was fired for wrongful access to people's driver's licenses -- that he was viewing the data during off hours without a job-related reason for doing so. The letter Ms. Prenevost received from the DNR went on to say, "We have no indication that your data was disclosed to others, sold, or used inappropriately." Yet the DNR also suggested victims of the breach continue to monitor their personal credit in case the information is somehow exploited in the future. The DNR's investigation also revealed that 90 percent of the people accessed were female. "That's not a good feeling," Ms. Prenevost said. News of this data breach comes just months after former police officer Anne Rasmussen racked up more than a million dollars in settlements after she sued 150 officers in 16 departments statewide, claiming they used government databases to snoop on her. "I want a deeper investigation," Ms. Prenevost said. "Are there others like him? And if there are, the higher-ups need to be held more accountable for that." Class action attorney Tom Lyons agreed, telling 5 EYEWITNESS NEWS on Jan. 26, "This makes you wonder if there's more going on here than just the actions of one rogue employee. We don't know where this is going to end up." The suit Lyons filed targets both John A. Hunt and the state, but perhaps surprisingly, Ms. Prenevost wants no part of it. "I don't think that getting any monetary compensation from the state is going to help," she said. "But they do need to put safeguards in place to make sure this doesn't continue." Because two class action suits have been filed, it's now up to the courts to determine how to proceed. They could be merged, or the first one filed could simply trump the second. John A. Hunt has not been charged criminally. According to the Bureau of Criminal Apprehension, a review of its finding has been sent to county attorneys. It's now up to them to decide what to do next. MINNESOTA: Crowder Teske Files Data Breach Class Action v. DNR -------------------------------------------------------------- Nick Winkler, writing for 45 News, reports that attorneys say an ex-DNR employee broke state and federal law and could cost the state millions. Attorneys at Crowder, Teske, Katz & Micko have filed a class action complaint on behalf of a Washington County man and as many as 5,000 others whose personal drivers license information was wrongfully accessed by former DNR manager John A. Hunt. Attorneys say the breach violates a federal law called The Drivers Privacy Protection Act. In addition to possible damages and attorney fees, the law carries a $2,500 penalty for each breach. The DNR sent 5,000 letters notifying victims, which means a suit could cost the department more than $12 million dollars. Attorneys believe the number of victims may actually be closer to 20,000. Victims include other DNR employees, celebrities, and several female anchors at KSTP. Attorneys say the majority of victims are women. NEXIUM: Linda Nussbaum Loses Antitrust MDL Lead Counsel Bid ----------------------------------------------------------- Alison Frankel, writing for Thomson Reuters, reports that the Federal Judicial Center says that the preferred way to determine lead counsel in a complex multidistrict litigation is for plaintiffs' lawyers to meet and reach a consensus on which firms should direct the case. But that's not always the way things work out. Just ask Linda Nussbaum -- lnussbaum@gelaw.com -- at Grant & Eisenhofer, who recently lost a bid to lead an antitrust class action by drug wholesalers accusing AstraZeneca and three generic drugmakers of conspiring to keep AZ's blockbuster heartburn drug Nexium off of the market. Ms. Nussbaum accused three other big pharmaceutical antitrust players -- Hagens Berman Sobol Shapiro, Garwin Gerstein & Fisher and Berger & Montague -- of plotting to exclude her and then misrepresenting her stellar record. In the end, Ms. Nussbaum's rivals won the battle for lead counsel, but not without also incurring the disgust of the judge overseeing the case. In a Jan. 24 order appointing the Hagens group to lead the case, U.S. District Judge William Young of Boston meted out blame for the "unseemly squabble" among plaintiffs' firms. "This squabble reflects most poorly on all counsel involved since it appears driven more by a desire to participate to a greater degree in a potential award of attorneys' fees than by any nuanced professional judgment concerning how to assemble the strongest possible team of counsel," he wrote. Judge Young also said he planned to make sure that the cost of "this sad and unprofessional quarrel" is not passed along to the firms' clients. But even the strong words in Judge Young's order don't convey how truly nasty the showdown between Ms. Nussbaum and Bruce Gerstein -- bgerstein@garwingerstein.com -- of Garwin Gerstein became, with these two leaders of the plaintiffs' antitrust bar flinging accusations of borderline ethics back and forth for a month. Lead counsel jostling in mega-antitrust and product liability litigation is the rule, not the exception, as indicated by the briefs debating leadership of the Nexium indirect purchasers' case, also before Judge Young. Plaintiffs' lawyers, however, usually realize after a round or two of briefing that they're better off reaching an agreement than parading dirty laundry before the court and the defendants; that's what happened in the indirect purchasers' wing of the Nexium case. This story is for anyone who doubts the wisdom of finding consensus. The fight began on Dec. 17, when Thomas Sobol -- tom@hbsslaw.com -- of Hagens Berman, representing the drug wholesaler American Sales Company, moved to be appointed lead counsel. Two weeks later, on New Year's Eve, Ms. Nussbaum filed a cross-motion on behalf of Meijer Inc. suggesting that four firms jointly lead the case as co-counsel: her firm, Mr. Sobol's firm, Garwin Gerstein and Berger & Montague. Unbeknownst to Ms. Nussbaum, the other three firms had already met and decided to team up, as Hagens Berman revealed in an amended motion on Dec. 31. "Hagens Berman admittedly has changed its position," the motion said. "A three- firm leadership structure has been successful in other similar cases on behalf of a similar proposed class of direct purchasers." Ms. Nussbaum responded with a motion a couple of days later suggesting again that her firm join the lead group, since her credentials were every bit as good as those of the other candidates. If the judge was worried about too large a group, she said, he should just appoint her and Hagens Berman. Though Ms. Nussbaum noted "a not insubstantial degree of regret ... (that) the three other plaintiffs groups have chosen to exclude" her, the dispute to that point was polite, at least publicly. But in a brief on Jan. 8, Mr. Gerstein escalated matters. "There have been a number of troubling instances in the past which raise serious questions regarding Ms. Nussbaum's fidelity to the class's interests," his brief said. In a number of similar antitrust cases against makers of popular drugs, Mr. Gerstein claimed, Ms. Nussbaum and her client Meijer had pulled out after being named to lead the case, stranding co-lead counsel and plaintiffs. "Thus, unlike the other plaintiffs here, based on the aforementioned track record, Meijer is far from the most reliable plaintiff to serve the interests of the class," his brief said. Then, in an indication of how well the firms in the dispute know one another's business, Mr. Gerstein reached all the way back to a 2001 case that involved claims by both drug wholesalers and contract purchasers to accuse Ms. Nussbaum of having "an obvious conflict" and acting against the interests of the wholesalers. Ms. Nussbaum then accused Mr. Gerstein of attacking her for his own diabolical purposes. "Shock and dismay are terms perhaps too frequently used," she wrote in a brief on Jan. 10. "But those words are particularly apt here. Bruce Gerstein, counsel for Value Drug and Burlington Drug, has stepped over the line. Meijer and Ms. Nussbaum take umbrage at Mr. Gerstein's misleading accusations. His attempts to impugn the character of Ms. Nussbaum and Meijer, a class representative that he, as part of a leadership group, has represented and personally praised time and time again, are not well-taken," the Nussbaum brief said. Mr. Gerstein was all too happy to praise Meijer when he needed its support, Ms. Nussbaum asserted, but was now deploying "baseless rhetoric" to paint standard class action procedures by Ms. Nussbaum and her client as "sinister." Earlier this month, an exasperated Judge Young ordered the four firms to get together and work things out. That only led to two more rounds of bitter briefs in which Mr. Gerstein, Mr. Sobol and David Sorensen of Berger & Montague scrutinized Ms. Nussbaum and her client and Ms. Nussbaum defended her record and descried their supposed exaggerations and misrepresentations. She also claimed that Mr. Sobol had revealed confidences by her client. In the meantime, both sides solicited support from drug wholesalers who haven't filed suits in the consolidated litigation but would be members of a class of direct purchasers. Several of these absent class members were pulled into the dispute (most in support of the three-firm dispute). And when Mr. Sobol of Hagens Berman proposed ending the feud and adding Ms. Nussbaum, another plaintiff's lawyer said that if Ms. Nussbaum joined the lead counsel group, he also would demand to join. Judge Young's order shut off the stream of invective, but you can see how the whole thing left him in disgust. NTS REALTY: Faces Merger-Related Class Action in Kentucky --------------------------------------------------------- NTS Realty Holdings Limited Partnership disclosed that on January 27, 2013, the Company received notice that a putative class action lawsuit was filed on January 25, 2013 in the Jefferson County Circuit Court of the Commonwealth of Kentucky against the Company, each of the members of the board of directors of the Company's managing general partner, NTS Realty Capital, Inc. ("Realty Capital"), NTS Realty Partners, LLC, Realty Capital, NTS Merger Parent, LLC and NTS Merger Sub ("Merger Sub") alleging, among other things, that the board of directors breached their fiduciary duties to the unitholders of the Company in connection with the board's approval of the merger between Merger Sub and the Company (the "Merger"). The complaint seeks, among other things, to enjoin the defendants from completing the Merger as currently contemplated. Interested parties are urged to read relevant documents, when and if filed by the Company with the Securities and Exchange Commission because they will contain important information. NTS will file a proxy statement and other documents regarding the proposed merger with the SEC, and the definitive proxy statement will be sent to unitholders seeking their approval of the matters discussed above at a special meeting of unitholders. Unitholders are urged to read the proxy statement and any other relevant document when they become available because they will contain important information about the Company, the proposed merger and related matters. Interested parties may obtain a free copy of the definitive proxy statement (when available) and other documents filed by us with the SEC at the SEC's Web site at http://www.sec.gov The Company, its managing general partner and its managing general partner's directors, executive officers and other members of its management and employees (including J.D. Nichols and Brian F. Lavin) may be deemed participants in the solicitation of proxies from the unitholders of the Company in connection with the proposed transactions. Information regarding the special interests of persons who may be deemed to be such participants in the proposed transactions will be included in the proxy statement described above. Additional information regarding the directors and executive officers of the Company's managing general partner is also included in the Company's Annual Report on Form 10-K for the year ended December 31, 2011, which was filed with the SEC on March 23, 2012, and subsequent statements of changes in beneficial ownership on file with the SEC. These documents are available free of charge at the SEC's Web site at http://www.sec.gov About NTS Realty Holdings Limited Partnership NTS currently owns, wholly, as a tenant in common with unaffiliated co-owners, or through joint venture investments with affiliated and unaffiliated third parties, twenty-four properties comprised of fifteen multifamily properties, seven office buildings and business centers and two retail properties. The properties are located in and around Louisville and Lexington, Kentucky, Nashville and Cordova, Tennessee, Richmond, Virginia, Fort Lauderdale and Orlando, Florida, Indianapolis, Indiana and Atlanta, Georgia. PHILADELPHIA: Class Cert. Bid in Traffic Violations Suit Denied --------------------------------------------------------------- District Judge Curtis Joyner denied a motion for class certification in the lawsuit captioned DANIELLE SHELLER, ET AL., Plaintiffs, v. CITY OF PHILADELPHIA, ET AL., Defendants, Civil Action No. 11-cv-2371, (E.D. Pa.). Each of the Plaintiffs were stopped by members of the Philadelphia Police Department due to alleged violations of the city of Philadelphia's Live Stop policy, including expired vehicle registrations and driving without a proper license. Their Complaint alleges that the Defendant violated state and federal due process protections with the Live Stop policy, which describes the manner in which the PPD implements Pennsylvania Vehicle Code, 75 Pa.C.S. Section 6309.2. The Plaintiffs have moved for class certification under Federal Rule of Civil Procedure 23 on November 9, 2012. Judge Joyner denied the Plaintiffs' request for class certification without prejudice, saying the Plaintiffs have not sufficiently demonstrated the numerosity prerequisite to class certification. "Given the many moving parts in the class definition and the lack of clarity about the procedures the PPA and the Traffic Court use, it might be advisable for the Plaintiffs to refrain from moving again for class certification until these issues have been or are ready to be decided," she added. "However, the Plaintiffs are free to move again for class certification whenever they feel they have the evidence and arguments necessary to fulfill the requirements of Rule 23." A copy of Judge Joyner's January 28, 2013 Memorandum and Order is available at http://is.gd/WrAemXfrom Leagle.com. STALLINGS HEAD: FSIS Lists Stores That Received Recalled Products ----------------------------------------------------------------- The U.S. Department of Agriculture's Food Safety and Inspection Service disclosed that certain stores in various states received 10-oz. packages of "Richard's Hog Head Cheese" that have been recalled by Stallings Head Cheese Co., Inc. The FSIS says the list of store locations may not include all retail locations that have received the recalled product or may include retail locations that did not actually receive the recalled product. Therefore, the FSIS says, it is important that consumers use the product-specific identification information available at http://is.gd/Kk2sVo,in addition to the list of retail stores, to check meat or poultry products in the consumers' possession to see if they have been recalled. Retailer Name City and State ------------- -------------- Robie's Abbeville, Louisiana Stelly's Abbeville, Louisiana Young's Grocery Abbeville, Louisiana Artigues Abita Mkt Abita Springs, Louisiana Benedetto's Market Addis, Louisiana Carter's Supermarket Albany, Louisiana Food Mart Alexandria, Louisiana Joe's Grocery Alexandria, Louisiana Mac's Fresh Market Alexandria, Louisiana Berry Best Produce Amite, Louisiana Food Depot Amite, Louisiana Sunflower Angie, Louisiana Russell's Food Center Arnaudville, Louisiana Breaux's Foodland Baldwin, Louisiana Raintree Market Baldwin, Louisiana Bastrop Super Foods Bastrop, Louisiana Save U More Bastrop, Louisiana Bet-R-Grocery Baton Rouge, Louisiana Calandro's Supermarket Perkins Rd., Baton Rouge, Louisiana Calandro's Supermarket Government St., Baton Rouge, Louisiana Calvin's Supermarket Baton Rouge, Louisiana Hi Nabor Supermarket 3446 Drusilla, Baton Rouge, Louisiana Hi Nabor Supermarket Jones Creek, Baton Rouge, Louisiana Hi Nabor Supermarket Winborne Ave., Baton Rouge, Louisiana Matherne's Baton Rouge, Louisiana Piggly Wiggly Baton Rouge, Louisiana Ralph's Market Baton Rouge, Louisiana Reeve's Supermarket Baton Rouge, Louisiana Balestra's Belle Chase, Louisiana Food Depot Bogalousa, Louisiana Travis Grocery 1400 W. 10th Street, Bogalousa, LA Travis Grocery 101 Derbigney, Bogalousa, Louisiana Bourg Supermarket Bourg, Louisiana Majoria Supermarket Bouttee, Louisiana Hebert Super Market Breaux Bridge, Louisiana Hebert's of Henderson Breaux Bridge, Louisiana Hebert's Superette Breaux Bridge, Louisiana Ree's Street Market Breaux Bridge, Louisiana Piggly Wiggly Bunkie, Louisiana Short Stop Bunkie, Louisiana Robert Family Market Bush, Louisiana Lee's Hardware Store Carencro, Louisiana Mac's Fresh Market Carencro, Louisiana Piggly Wiggly Cecilia, Louisiana Centerville Market Centerville, Louisiana Oak Point Fresh Market Central, Louisiana B&G Fresh Market Chalmette, Louisiana Chitimacha Trading Post Charenton, Louisiana Piggly Wiggly Chauvin, Louisiana Davis One Stop Cheneyville, Louisiana Piggly Wiggly Church Point, Louisiana Rod's Church Point, Louisiana Westons Grocery Church Point, Louisiana Ford's Food Center Colfax, Louisiana Rivertown Market Coushatta, Louisiana IGA Covington, Louisiana Cajun Mart Crowley, Louisiana Crawfish Nest & Market Crowley, Louisiana Cuccio's Crowley, Louisiana Lagrange Food Mart Crowley, Louisiana Super Foods Crowley, Louisiana Carter's Supermarket 8439 Vincent Road, Denham Springs, LA Carter's Supermarket 92585 Cockerham Rd, Denham Springs, LA Oak Point Fresh Market Denham Springs, Louisiana Cashios Food Villa Destrehan, Louisiana Champagne's Duson, Louisiana Pit Stop Elizabeth, Louisiana Tony's Super Foods Elton, Louisiana Champagne's Erath, Louisiana Champagne's Eunice, Louisiana Big Star Farmerville, Louisiana Main's Folsom Market Folsom, Louisiana Wag-A-Bag Forest Hill, Louisiana Franklin Supermarket Franklin, Louisiana Jack Brown's Grocery Franklinton, Louisiana Galliano Food Store Galliano, Louisiana Harvest Supermarket Geismar, Louisiana Marceaux's Geuydan, Louisiana G&G Superette Glenmora, Louisiana Blair Lamendola Super Gonzales, Louisiana Ralph's Market 6341 Hwy 44, Gonzales, Louisiana Ralph's Market 15013 Hwy 44, Gonzales, Louisiana Sureway Grocery Store Grand Isle, Louisiana Brown's Neighborhood Grand Lake, Louisiana Budget Savers Gretna, Louisiana Casey Jones Supermarket Gretna, Louisiana Brown's Food Center Hackberry, Louisiana Piggly Wiggly Hammond, Louisiana Piggly Wiggly Haynesville, Louisiana Shawn's Super Center Hessmer, Louisiana Piggly Wiggly Homer, Louisiana Cannatas 1977 Prospect Blvd., Houma, Louisiana Cannatas 6289 West Park Ave., Houma, Louisiana Marcel's Supermarket Houma, Louisiana Piggly Wiggly Independence, Louisiana Prupera's Supermarket Innis, Louisiana Foret's Iowa, Louisiana Bergeron's on the Bayou Jarreau, Louisiana Robie's Jeanerette, Louisiana IGA Jena, Louisiana Piggly Wiggly Jennigs, Louisiana Super Foods Jennigs, Louisiana Ford's Food Center 612 Fourth St., Jonesville, Louisiana Ford's Food Center 1515 Fourth St., Jonesville, Louisiana IGA Kaplan, Louisiana Larry's Super Foods Kaplan, Louisiana Pecan Island Food Kaplan, Louisiana Piggly Wiggly Kaplan, Louisiana Market Basket Kinder, Louisiana Robert's Food Store Labadieville, Louisiana Lishman's City Market Lacombe, Louisiana Acadian Superette Lafayette, Louisiana Adrien's Supermarket Lafayette, Louisiana Breaux's Mart Lafayette, Louisiana Champagne's Lafayette, Louisiana Corner Pantry Lafayette, Louisiana Guidry's Produce Lafayette, Louisiana Healeaux's Grocery Lafayette, Louisiana Lagneaux's Lafayette, Louisiana Mikes Country Corner Lafayette, Louisiana Trumans Lafayette, Louisiana Piggly Wiggly Lafitte, Louisiana Bernell's Lake Arthur, Louisiana Jones' Grocery Lake Charles, Louisiana Jong's Lake Providence, Louisiana Food 4 Less Laplace, Louisiana Matherne's Laplace, Louisiana Stelly's Lebeau, Louisiana Glynn's Grocery Lecompte, Louisiana Steve's Jiffy Stop Lecompte, Louisiana Water Street Market Lecompte, Louisiana Champagne's Leonville, Louisiana Carter's Livington, Louisiana Loranger Supermarket Loranger, Louisiana Miller's Market Loreauville, Louisiana Lydia Food Store Lydia, Louisiana Piggly Wiggly Madisonville, Louisiana Piggly Wiggly Mamou, Louisiana Bobben's Supermarket Mar, Louisiana Harvest Food Marksville, Louisiana Labories Marrero, Louisiana Ragusa Food Store Marrero, Louisiana Super Laborie Food Mkt Marrero, Louisiana Dorignac's Supermarket Matarie, Louisiana Nunu's Country Market Maurice, Louisiana Cannatella's Melville, Louisiana Guidry's Grocery Mermemtau, Louisiana Canseco's Metarie, Louisiana Lagenstein's Metarie, Louisiana Zuppardo's Economic Metarie, Louisiana Broussard's Milton, Louisiana Country Market Monroe, Louisiana Johnny's Grocery Moreauville, Louisiana Cannatas Morgan City, Louisiana Mayon's Market Morgan City, Louisiana TB's Morse, Louisiana Bi Lo grocery New Iberia, Louisiana Daspit Grocery New Iberia, Louisiana Menard Brothers New Iberia, Louisiana Simoneaud's East Main St., New Iberia, Louisiana Simoneaud's E Admiral Doyle, New Iberia, Louisiana Canseco's New Orleans, Louisiana Lakeview Grocery New Orleans, Louisiana Zara's Supermarket New Orleans, Louisiana Langlois New Roads, Louisiana IGA Oakdale, Louisiana A&B Quick Stop Opelousas, Louisiana Benny's Superette Opelousas, Louisiana Ma-Jik Grocers/Flea Mkt Opelousas, Louisiana Nuba Fast Foods Opelousas, Louisiana Piggly Wiggly 1305 Heather Dr, Opelousas, Louisiana Piggly Wiggly 8410 Hwy 182, Opelousas, Louisiana Super Stop Opelousas, Louisiana Tommy's Mobile Opelousas, Louisiana Vidrine's Grocery Opelousas, Louisiana Romero's Food Center Ossun, Louisiana Budden's Palmetto, Louisiana Randall's Parks, Louisiana Cypress Point Patterson, Louisiana Matherne's Paulina, Louisiana Jubilee Foods Pearl River, Louisiana Pierre Part Store Pierre Part, Louisiana Ball Foods Pineville, Louisiana Mac's Fresh Market Pineville, Louisiana Lambright Grocery Pitkin, Louisiana Piggly Wiggly Plaindealing, Louisiana Bordelon's Superette Plancheville, Louisiana Butcher Boy Super VA Plaquemine, Louisiana Payless Platterville, Louisiana Bohnings Supermarket Ponchatoula, Louisiana Parker's Superfoods Port Vincent, Louisiana Champagne's Rayne, Louisiana Trahan's Foods Rayne, Louisiana Greg's Neighborhood Mkt Reserve, Louisiana Robert Supermarket Robert, Louisiana Don's Specialty Meats Scott, Louisiana Early's Food Store Scott, Louisiana Piggly Wiggly Simmesport, Louisiana Lishman's City Market 39522 Hwy 190 E, Slidell, Louisiana Lishman's City Market 4020 Ponchartrain, Slidell, Louisiana Mizer's Slidell, Louisiana Carter's Supermarket Spriongfield, Louisiana Feliciana Super-Value St Francisville, Louisiana St. Francisville Market St Francisville, Louisiana Delaune's Super Market St. Amant, Louisiana Tureau's Grocery St. Amant, Louisiana Cade's St. Martinville, Louisiana Joyce's Supermarket 1620 S Main St., St. Martinville, LA Joyce's Supermarket 1620 S Main St., St. Martinville, LA Piggly Wiggly St. Martinville, Louisiana Southern Meat Market Sterlington, Louisiana Misse's Sulpher, Louisiana Janise Supermarket Sunset, Louisiana Bestway Tallulah, Louisiana Gobears Neighborhood Thibodeaux, Louisiana L&N Grocery Thibodeaux, Louisiana Mac's Fresh Market Tioga, Louisiana Piggly Wiggly Vacherie, Louisiana Champagne's Ville Platte, Louisiana Paul's Meat Market Ville Platte, Louisiana Tabacco Tavern Ville Platte, Louisiana Tom's Market Vivan, Louisiana John's Supermarket Walker, Louisiana Ardoin's Washington, Louisiana Chatman's Washington, Louisiana Main Street Grocery Washington, Louisiana Harvest Food West Monroe, Louisiana Piggly Wiggly Westwego, Louisiana Daigle's Supermarket White Castle, Louisiana Ford's Food Center Winnsboro, Louisiana Ford's Food Center Wisner, Louisiana Parkside Grocery Woodworth, Louisiana Nunu's Fresh Market Youngsville, Louisiana Pat's Grocery Youngsville, Louisiana Hills Grocery Anahuac, Texas Food Town 1700 Decker St., Baytown, Texas Food Town 3517 N Main St., Baytown, Texas Thrif-Tee Dayton, Texas Ziegler's Food Dickinson, Texas Arlan's Galveston, Texas Big City Foods Houston, Texas Center Watkins Houston, Texas Food Town Houston, Texas Foodarama 15915 S. Post Oak, Houston, Texas Foodarama 4425 W. Fuqua, Houston, Texas Foodarama 10810 S Post Oak Rd., Houston, Texas Foodarama 7320 Antoine Drive, Houston, Texas Foodland Houston, Texas Super Value Foods Houston, Texas Foodarama Missouri City, Texas Food Town Pearland, Texas Arlan's Santa Fe, Texas Chris Food King Texas City, Texas SYNGENTA CROP: Municipalities Get Share in Atrazine Settlement -------------------------------------------------------------- Bob Blake, writing for Lima News, reports that getting involved in a class action lawsuit wasn't something officials at several area municipalities had much experience with. Joining a multistate lawsuit against a Swiss herbicide producer proved beneficial as coffers in six area communities recently got a boost. As previously reported, Lima received more than $227,000 from the settlement with Switzerland-based Syngenta, the world's largest manufacturer of the weed killer atrazine. Lima, Celina, Delphos, Findlay, Ottawa and Van Wert were among the 81 communities in Ohio and nearly 1,100 communities nationwide to join the lawsuit. Farmers use the chemical to treat corn crops. Eventually, as rainfall washes it into streams and rivers the chemical ends up in a community's water supply. The settlement ordered municipalities to be paid for the cost of removing the chemical from drinking water. "It wasn't at levels that would have caused concern but there was a presence,"said John Williams, municipal director for Ottawa. "It wasn't a health issue and it never exceeded the limits but with any level you have to treat it." As part of the settlement, Ottawa received more than $165,000. Findlay received more than $102,000. Van Wert got more than $74,000. Celina received more than $21,000 and Delphos received more than $18,000. The settlements were based upon not only the amount of atrazine in the water supply but how many years a community could document the presence. "It was more than we expected," said Jay Fleming, safety-service director for Van Wert. "I don't know that I recall another class action lawsuit the city has responded to in my years here. We responded because we had atrazine in the system. In these economic times, these are nice surprises." Officials in Lima, Delphos, Ottawa and Findlay said the funds would go back into their respective water funds to help pay for operations, testing and additional projects. Officials in Van Wert haven't decided how to use the funds, Mr. Fleming said. TEXXXAN.COM: 17 Women File Class Action Over Humiliating Photos --------------------------------------------------------------- David Lee at Courthouse News Service reports that seventeen women filed a class action against a "revenge porn" website, claiming it let their exes publish humiliating intimate photos and private facts about them without permission. Lead plaintiff Hollie Toups sued the site, Texxxan.com, web host GoDaddy.com, the unnamed persons or entities that host the site and all of its subscribing members, in Orange County District Court, Orange, Texas. The complaint states: "Godaddy.com hosts the website www.Texxxan.com, which is a 'revenge porn' website. This explicit website is dedicated to publishing intimate photos of young women, and also publishing private facts about these women, all of which are done without obtaining permission or authorization from the women who are the victims of this website. This website is significantly designed to cause severe embarrassment, humiliation, and emotional distress to all of the women plaintiffs, and to all the women victims that are sought to be named as plaintiffs through class-action certification (discussed infra). "The defendants who own this website, or who contribute to its contents, or who subscribe to this website, are fully aware that they do not have permission from any of the women victims to publish their photographs or their other personal information. As such, the defendants that are currently named and the defendants who shall be identified and joined later are all acting in a deliberately reprehensible manner to participate in activity that they know to be malicious, hurtful and harmful." The plaintiffs claim the website serves no useful, social or economic purpose, that it is "merely a blight upon society and a sick, cowardly enterprise for the specific purpose of inflicting emotional distress and harm upon each and every plaintiff." The women seek an injunction to shut down the site, but it appears that the unknown administrators of the site have already taken it offline. In seeking class status, the women say the number of women in Texas who could be targeted by the site is so large that joinder is impossible. "The very purpose of this website is to target Texas women for malicious revenge pornography," the complaint states. The women are represented by John Morgan of Beaumont, who told the Houston Chronicle that he is "going after the revenge porn industry" and "those sickos who post private information of women without their knowledge." "The only way to destroy this industry is to go after the people who fund it," Mr. Morgan told the Chronicle. About half of the women do not know who posted their photos on the site, while the other half suspect their former partners, Morgan said. At least 13 more women have joined the lawsuit since it was filed, according to the San Antonio Current. Mr. Morgan said he expects more women to join. Eric Goldman, a law professor at Santa Clara University, is not optimistic about the lawsuit's chances at success. "No matter how much the lawyers hype their lawsuit in the media, it's mostly dead on arrival," Mr. Goldman wrote for Forbes.com. "All of the defendants -- other than the users actually submitting the revenge porn -- are protected by 47 USC 230, the law that says websites aren't liable for third-party content." Mr. Goldman wrote that the same law explicitly protects website users, and that a recently enacted anti-SLAPP law in Texas was designed to discourage anti-free speech lawsuits such as this one. "If the courts determine that the revenge porn relates to a 'matter of public concern' (not likely, but it is possible), the plaintiffs' lawyers will be writing checks to the improperly targeted defendants," Mr. Goldman warned. Describing the class action claim as "weak," Mr. Goldman said the plaintiffs' best chance is to bring individual suits against the defendants who did them wrong. "(I)n this particular case, revenge porn plaintiffs often can find the defendants, because (we hope) there's a limited number of people who have nude depictions of the plaintiff," Mr. Goldman wrote. The plaintiffs seek actual and punitive damages and injunctive relief for breach of privacy, negligence, wrongful appropriation of names of likenesses, intentional infliction of emotional distress and civil conspiracy. US GYPSUM: Faces Antitrust Class Action Over Drywall Price Fixing ----------------------------------------------------------------- Jon Campisi, writing for The Pennsylvania Record, reports that a Florida man and a New York resident have joined forces in bringing a class action antitrust suit against U.S. Gypsum Company, CertainTeed Corp. and others over allegations that the defendants have, dating back to at least September 2011, conspired to fix, raise, maintain and stabilize the price of gypsum board, more commonly known as drywall. Attorneys for Robert Pitter, who hails from Southwest Ranches, Fla., and Nicholas L. DeMarco, a resident of Albany, N.Y., filed a federal antitrust action at the U.S. District Court in Philadelphia Jan. 23 against eight defendants who engage in the manufacture and sale of gypsum board, which is alternatively known as drywall, wallboard, sheetrock and plasterboard. The lawsuit, filed on behalf of the two plaintiffs and others similarly situated, claims that from at least the fall of 2011 through the present, the defendants combined and conspired to fix and raise the prices at which they sold the commodity across the United States, beginning with large and coordinated price increases that became effective on or about Jan. 1 or 2 of last year. "In advance of these coordinated increases, during late September through mid-October 2011, five of the eight defendant manufacturers announced to their customers that they were raising gypsum board prices in January 2012, each by an unprecedented 35% and indicated those price increases would remain in place throughout 2012,"the lawsuit reads. Because gypsum board is a commodity product, the complaint states, in the absence of collusion, the defendants' price increases would have contravened each defendant's independent self-interest, "as anyone could have profited and gained market share by undercutting the others during a period where the defendants had substantial unused capacity." The suit further states that contrary to prior history in the industry, the defendants not only announced these coordinated price increases, they also successfully maintained much higher prices throughout 2012, despite the fact that the increases were imposed during a soft construction market. "Defendants also maintained substantially higher prices in the face of significant industry overcapacity that would have made it virtually impossible for any Defendant independently to impose and maintain a substantial price increase on its customers in the absence of collusion," the lawsuit says. The defendants also simultaneously abolished their use of a decades-old competitive pricing practice known as "job quotes," the suit states, a practice that allowed customers to lock in the price of gypsum board for the entire course of a construction project. Each defendant "abruptly" eliminated this practice in late 2011, according to the complaint, which was around the same time they put into place the industry-wide price increases that are subject of the litigation. The suit states that plaintiff Mr. Pitter indirectly purchased gypsum board manufactured by defendant USG Corporation in Davie, Fla., and as a result, has suffered injury in that he paid more for that product than he would have paid in the absence of the defendants' misconduct. Similarly, plaintiff Mr. DeMarco indirectly bought gypsum board made by that same defendant and suffered the same injuries as his co-plaintiff. The lawsuit, which says that the manufacturers of gypsum board see annual sales of more than $5 billion, accuses the defendants of violating the Sherman Act. The class of plaintiffs outlined in the lawsuit would be those who indirectly purchased gypsum board in the United States from Jan. 1, 2012 through the present. The complaint alleges violations of federal and state antitrust laws, state consumer protection and unfair competition laws, and unjust enrichment laws. The plaintiffs seek judicial class action certification as well as attorney's fees, interest and other damages. The complaint was jointly filed by Kenneth I. Trujillo -- ktrujillo@trrlaw.com -- and Ira Neil Richards -- ira@trrlaw.com -- attorneys with Philadelphia-based Trujillo Rodriguez & Richards, and Jeffrey C. Block -- jeff@blockesq.com -- Whitney E. Street -- whitney@blockesq.com -- and Mark A. Delaney -- mark@blockesq.com -- lawyers with the Boston firm of Block & Leviton. The federal case number is 2:13-cv-00384-MMB. US TELEPACIFIC: Denial of Arbitration Bid in "Brennan" Suit Upheld ------------------------------------------------------------------ On January 30, 2013, the Court of Appeals of California affirmed denial of a motion to compel arbitration in the class action lawsuit captioned JOURNEY BRENNAN, Plaintiff and Respondent, v. U.S. TELEPACIFIC CORP., Defendant and Appellant, No. G046225. U.S. Telepacific provided telecommunication services to Mr. Brennan in 2008. When Mr. Brennan became unhappy with U.S. Telepacific's services, he sought termination of the parties "Account Agreement" and "Service Contract" but was informed he was required to pay an early termination fee of over $4,000. In late 2010, Mr. Brennan filed the class action on behalf of himself and other members of the class for unfair competition, violation of Civil Code section 1671, subdivision (d) for unlawful liquidated damages, breach of contract and of the implied covenant of good faith and fair dealing, unjust enrichment, and money had and received, seeking damages and injunctive relief. U.S. Telepacific filed a motion to compel arbitration after the decision in AT&T Mobility LLC v. Concepcion, which restricted states from imposing certain limitations on the enforceability of arbitration agreements. The lower court denied the motion, ruling the Defendant had not shown the existence of a binding arbitration agreement and had there been such an agreement, it would be unenforceable as unconscionable. It stated "the arbitration provision was not brought to the attention of nor accepted by nor known to the plaintiff." U.S. Telepacific appealed the denial of its motion to compel arbitration arguing that the lower court erred in finding it failed to meet its burden to show an enforceable arbitration agreement. The court of appeals ruled that there is insufficient evidence to show the existence of an enforceable agreement to arbitrate, and affirmed denial on that basis. The Plaintiff is entitled to costs on appeal. Daniel M. Kolkey, Esq. -- dkolkeygibsondunn.com -- Christopher Chorba, Esq. -- cchorba@gibsondunn.com -- Babak Lalezari, Esq. -- blalezari@gibsondunn.com -- and Melissa Case, Esq., of Gibson, Dunn & Crutcher LLP, represent the Defendant and Appellant. Amber L. Eck, Esq. -- ambere@zhlaw.com -- Aaron M. Olsen, Esq. -- aarono@zhlaw.com -- of Zeldes & Haeggquist LLP; Omel A. Nieves, Esq. -- nieves@huntortmann.com -- Katherine J. Odenbreit, Esq. -- odenbreit@huntortmann.com -- and Alison C. Gibbs, Esq. -- gibbs@huntortmann.com -- of Hunt Ortmann Palffy Nieves Lubka Darling & Mah, Inc. represent the Plaintiff and Respondent. A copy of the Appeals Court's January 30, 2013 Opinion is available at http://is.gd/tKl3wpfrom Leagle.com. * CBI Balks at UK Government's Class Action Law Proposals --------------------------------------------------------- Rowena Mason, writing for The Telegraph, reports that Britain is at risk of falling prey to a damaging "class action" culture like America under plans to help consumers get compensation when they are ripped off, major businesses have warned. The Government is facing a backlash from the CBI, Britain's biggest business group, after it proposed new laws making it easier for people to be part of "class action" litigation. Under the plans, a single umbrella lawsuit could automatically get compensation for people affected by competition scandals, such as price-fixing by airlines or big retail chains. Jo Swinson, a business minister, said it is important that people can "take appropriate action" when companies abuse their position in the market. However, the CBI said proposed new laws would "let the litigation genie out of the bottle" and could hold back the country's economic growth. Katja Hall, chief policy director of the CBI said it would not be a good move to "adopt US-style collective actions". "By grouping potential claimants together indiscriminately these 'opt-out' actions fail the growth test and will fuel a litigation culture in the UK," she said. "It is absolutely right that victims of competition law breaches are properly and swiftly compensated but there are better ways to do this than resorting to litigation, like using alternative dispute resolution." The Government argues that its plans are necessary to make sure people get their money back when businesses act in an uncompetitive way. It said many people at the moment find it too difficult and costly to go to court in order to seek redress. Under the new regime, one group representing all victims will be able to launch the lawsuit and affected individuals would have to opt-out if they did not want to be part of the action being fought on their behalf. Ms. Swinson said businesses found guilty of uncompetitive behavior would be able to avoid big battles if they settle with all consumers before it reaches court. "Businesses who want to voluntarily offer compensation will be able to do so through collective settlement and will be protected from expensive and lengthy legal action," she said. Some consumer groups have already won successful class action lawsuits when people have lost money because of mis-selling scandals. In one previous case, Which? got an out of court settlement for JJB Sport customers of up to GBP20 each when they were overcharged for replica football shirts. However, they have found it difficult to contact all the people involved and persuade them to sign up to legal action. Richard Lloyd, executive director of Which?, said the new laws will "give consumers more power against unscrupulous businesses. "In the small number of cases where this will apply, collective legal action and settlements will automatically include everyone who has been affected so more people should get redress and sooner," he said. "The proposals will help to put consumers in the driving seat and will also act as a meaningful deterrent to dodgy or dishonest firms. This is good for consumers, responsible businesses and the wider economy." * No. of Securities Suit Settlements Hit Record Lows, NERA Says --------------------------------------------------------------- The number of securities class action cases resolved in 2012 plummeted to record lows according to Recent Trends in Securities Class Action Litigation: 2012 Full-Year Review, a biannual report released on Jan. 29 by NERA Economic Consulting. One hundred and fifty-two cases were dismissed or settled in 2012, compared to the 244 securities class actions resolved in 2011. Only 93 securities class actions were settled in 2012 -- also a record low since 1996 and a 25% reduction over 2011. Filings of securities class actions only slightly declined in 2012, with a total of 207 class actions filed in federal courts last year, compared to the average rate of 221 over the previous five years. Trends authors also observed a decline in the pace of filings over the course of 2012, with the fewest filings occurring in December. Sizeable reductions in credit-crisis litigation and cases with a Chinese company as defendant were largely offset by filings of merger objection cases, which accounted for 25% of new filings in 2012. Of the 53 merger objection cases filed in federal court in 2012, 33 cases allege a violation of Section 14 of the Securities Exchange Act, while the remaining 20 allege breach of fiduciary duty, but no violation of federal securities law. Filings of "standard" securities class actions, those involving alleged violations of Rule 10b-5, Section 11, or Section 12, have declined in recent years compared to the period of 2005-2008. Such filings accounted for 142 cases in 2012, compared to the average of 144 class action cases annually during 2009-2011 and the average of 173 cases from 2005-2008. "There have been some interesting developments in securities class actions in 2012. A large reduction in the number of cases settled was coupled with an even larger reduction in the number of cases dismissed, yet settlement dollars have increased," said NERA Senior Consultant and Trends co-author Dr. Renzo Comolli. "Meanwhile, in the last few years, plaintiffs' attorneys' fees have been getting compressed. All of this happens against the backdrop of new filings that are changing more in nature than in number." Key Findings of Recent Trends in Securities Class Action Litigation: 2012 Full-Year Review Case Resolutions -- A record of 152 cases were dismissed or settled in 2012, the lowest number of any year since 1996. It corresponds to a 37% reduction from 2011, when 244 securities class actions were resolved. -- Ninety-three securities class actions were settled in 2012, a 25% reduction over 2011 and also the lowest number of settlements since 1996. Settlement Amounts -- The average settlement amount in 2012 was $36 million, only slightly above the $35 million average over 2007-2011 [excludes settlements above $1 billion, settlements in IPO laddering cases, and settlements in merger objection cases]. -- The median settlement amount in 2012 was $12 million, the highest since passage of the PSLRA. Last year, 2012, was only the second year in which the median settlement exceeded $10 million. -- The total value of all settlements in 2012 reached $3.3 billion. Filings Allegations -- In 2011, 31% of filings contained allegations of breach of fiduciary duty; 29% had allegations involving misleading earnings guidance; and close to 25% of filings included accounting allegations. Foreign Companies -- Case filings against foreign-domiciled companies declined in 2012, from the record 62 cases in 2011. Filings against Chinese companies also dropped significantly in 2012 with 16 suits versus the 37 in 2011. Circuit -- Forty-three percent of all filings in 2012 were concentrated in the Second Circuit (56 cases) and Ninth Circuit (four cases). Filings in the Ninth Court dropped significantly over the 60 cases filed in 2011. Sector -- Securities class action filings against defendants in the finance sector continued to decline in 2012, accounting for 13% of filings, compared to the peak of nearly half of all filings in 2008 and 2009. The health and technology services sector accounted for 22% of securities class action filings; and energy and non-energy minerals sector grew to 10%. Time to File -- In 2012, the average time to file was 110 days, down from a high of 229 days in 2009 and 153 days in 2011. The percentage of cases that are filed within one year has also been increasing, from 66% in 2009 to 92% in 2012. Motions -- A motion to dismiss was filed in more than 96% of securities class actions over the 2000-2012 period. Of those motions, 47% were granted; 15% were voluntary dismissed by plaintiffs; 14% were denied in their entirety; and 17% of the motions were granted in part. -- The fraction of motions to dismiss that are granted has increased in recent years. -- Among securities class actions that were settled, in 46% of such cases a motion to dismiss was partially granted or partially denied, while in 37% of cases a motion was simply denied. -- Seventy-seven percent of all securities class actions are resolved before a motion for class certification is filed. In 75% of cases where decision was reached on motion for class certification, the class was certified (at least in part). Plaintiffs' Attorneys' Fees and Expenses While aggregate plaintiffs' attorneys' fees and expenses for all federal settlements increased by 4% of 2011 ($653 million in total for 2012), fees as a whole have declined over the period of 2010- 2012 compared to 1996-2009. NERA Securities Class Action Trends Report Series NERA has been analyzing trends in securities class actions for more than 20 years. Two reports are published per year: a mid- year study and an annual review at year's end. This year-end study, Recent Trends in Securities Class Action Litigation: 2012 Full-Year Review, is co-authored by Dr. Renzo Comolli, Dr. Ronald I. Miller, Svetlana Starykh, and Sukaina Klein. For more details and to read the report, visit: http://www.nera.com/recenttrends About NERA NERA Economic Consulting -- http://www.nera.com-- is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For over half a century, NERA's economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world's leading law firms and corporations. ********* 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 publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *