CAR_Public/130211.mbx             C L A S S   A C T I O N   R E P O R T E R

            Monday, February 11, 2013, Vol. 15, No. 29

                             Headlines



AGILYSYS INC: Still Defends Wage and Hour Suit in California
ARBITRON INC: Faces Nielsen Merger-Related Suit in Delaware
AT&T: Settles Wash. State Prisoners' Class Action for $45 Million
BANKSIA: Solicitor to Inform Debenture Holders of Class Action
BRINKER INTERNATIONAL: Remaining Issues in Workers' Suit Pending

CERTAINTEED CORP: Faces Antitrust Class Action Over Drywall Prices
CHASE HOME: Sealed Bid for Class Cert. in "Gordon" Suit Denied
CIRRUS LOGIC: Robbins Geller Files Class Action in New York
DIRECTSAT: Economic Efficiency Does Not Justify Collective Action
ENERGY CORP: Judge Tosses Most of Royalty Class Action Claims

GREENBERG TRAURIG: Gender Bias Suit Stalls Over Arbitration Issues
INTUITIVE SURGICAL: Appeal in "Perlmutter" Suit Remains Pending
ITALIAN COLORS: Oral Argument on Arbitration Issue on Feb. 27
NIELSEN HOLDINGS: Faces Class Suit Over Arbitron Acquisition
PREWETT FAMILY: Faced Suit For Failing to Pay Employees' OT Wages

PROGRESSIVE INT'L: Recalls 26,500 Canning Jar Lifters
SANDERSON FARMS: RICO Class Action Suit Dismissed With Prejudice
SEALY CORP: Defends "Hernandez" Suit vs. Unit in California
SEALY CORP: Signs MOU to Settle Merger-Related Suits in Delaware
SOIL SOLUTIONS: Judge Approves Recycling Plant Class Action

THORLEY INDUSTRIES: Recalls 1,440 4moms breeze Playard Sheets
TOYOTA MOTOR: Loses Bid to Arbitrate Prius Brake Defect Claims
VISA: N.J. Retailers Unlikely to Implement Credit-Card Surcharge

* Securities Class Action Settlements Outside U.S. May Rise
* Comcast and Amgen Rulings Could Modify Class Action Landscape


                           *********



AGILYSYS INC: Still Defends Wage and Hour Suit in California
------------------------------------------------------------
On July 9, 2012, a putative class action lawsuit was filed against
Agilysys, Inc. in the United States District Court for the
Northern District of California alleging violations of federal and
state wage and hour laws, rules and regulations pertaining
primarily to pay for missed meals and rest periods and failure to
reimburse business expenses.  The lawsuit purports to be a class
action and seeks substantial damages.  At this time, the Company
is not able to predict the outcome of this lawsuit, or any
possible monetary exposure associated with the lawsuit.  The
Company's management believes that the plaintiffs' allegations are
without merit and that their claims are not appropriate for class
action treatment.  The Company is vigorously defending these
claims.

No further updates were reported in the Company's February 4,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 31, 2012.


ARBITRON INC: Faces Nielsen Merger-Related Suit in Delaware
-----------------------------------------------------------
Arbitron Inc. is facing a merger-related class action lawsuit in
Delaware, according to the Company's February 4, 2013, Form 8-K
filing with the U.S. Securities and Exchange Commission.

On January 24, 2013, a putative class action lawsuit was filed in
the Court of Chancery of the State of Delaware regarding the
proposed merger ("Merger") of TNC Sub I Corporation ("Merger
Sub"), a wholly owned subsidiary of Nielsen Holdings, N.V.
("Nielsen") with and into the Company.  The complaint
("Complaint") was purportedly filed on behalf of the public
shareholders of the Company, and names as defendants, the Company,
each of the Company's directors, Merger Sub, and Nielsen.  The
Complaint alleges, among other things, that the Company's
directors breached their fiduciary duties by failing to maximize
shareholder value in a proposed sale of the Company.  The
Complaint further alleges that the Company's preliminary proxy
statement fails to provide material information and provides
materially misleading information relating to the Merger and that
the Company and Nielsen aided and abetted the alleged breaches by
the Company's directors.  The plaintiff seeks, among other things,
class action status, an injunction preventing the completion of
the Merger (or, if the Merger is completed, rescinding the Merger
or awarding rescissory damages), and the payment of attorneys'
fees and expenses.  The Company says it intends to defend the
lawsuit vigorously.

On February 4, 2013, the Company issued a press release announcing
that the Company and Nielsen have agreed that Nielsen will
voluntarily withdraw and refile the Hart-Scott-Rodino ("HSR")
notification and report form for the Merger in order to give the
Federal Trade Commission additional time to review the proposed
transaction.  Nielsen originally filed its notification and report
form on January 4, 2013.  The HSR notification and report form is
being withdrawn effective as of February 4, 2013, and Nielsen was
set to refile by February 6, 2013.  Upon renewing the filing, the
waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act will expire on Friday, March 8, 2013, at 11:59 p.m. New York
City time, unless earlier terminated or extended by a request for
additional information.


AT&T: Settles Wash. State Prisoners' Class Action for $45 Million
-----------------------------------------------------------------
The Associated Press reports that AT&T has agreed to pay families
of Washington state prisoners $45 million to settle a class action
lawsuit involving collect calls made from state prisons.

Lawyers estimate at least 70,000 families are eligible for some of
the money from the settlement filed on Feb. 1 in King County
Superior Court, The Seattle Times reported on Feb. 3.

The lawsuit filed in 2000 accused AT&T and other phone companies
of failing to disclose exorbitant rates for collect calls from
prison.

The case has moved back and forth between the Washington Supreme
Court, the state Utilities and Trade Commission, and King County
Superior Court.  It was settled just before it was scheduled to go
to trial in King County to determine damages.

The class action lawsuit covers collect calls made between 1996
and 2000 from Department of Corrections facilities.  It was filed
by family members and friends of Paul Wright, editor of Prison
Legal News and a former inmate in Washington state.

Mr. Wright estimated that between 70,000 and 172,000 people could
be eligible for refunds that include full reimbursement of call
charges, plus $200 per person.

At the time, those charges were $3.95 for the first minute and 90
cents each additional minute, according to Seattle attorney
Chris Youtz, who represented the prison families.  After 20
minutes, the calls ended, requiring a new call, and a new
surcharge.

"The rates were ridiculous," Mr. Youtz said.

AT&T spokesman Marty Richter said in a statement that the company
believes it had followed all the rules at issue in the lawsuit.

"We are pleased to see the litigation resolved in a way that,
among other things, supports legal assistance for low-income
residents of Washington state and educational assistance for
families of prison inmates in the state," he said.


BANKSIA: Solicitor to Inform Debenture Holders of Class Action
--------------------------------------------------------------
Blair Thomson, writing for Bendigo Advertiser, reports that
letters regarding a class action will be sent to all people owed
money in the Banksia collapse this week.

Solicitor Mark Elliott is pursuing nine defendants over the
lender's collapse and said there had been strong interest in the
action.

"I drafted a letter over the weekend that will go out to the
16,000 debenture holders by mid [this] week," he said.  "It will
answer the debenture holders' questions.

"The class action Web site is well advanced and will be up and
running with meaningful information by the end of the month.
We're making good progress everywhere."

Mr. Elliott said Banksia directors, Cherry Fund, The Trust Company
and Bendigo-based auditors Richmond Sinnott and Delahunty
Chartered Accountants had filed notices of appearance as
defendants.

"There's no point suing Banksia for money if you're accessing the
money watermarked for debenture holders," he said.  "This is
trying to access other forms of money, principally insurance.
It's not bad luck they've lost AUD300 million . . . it's got to be
more than that."

Mr. Elliott said he expected the class action to begin in about 12
to 18 months.  Banksia is being liquidated by McGrathNichol, with
the company's loan book recently listed for sale.

A McGrathNicol spokesman said a range of institutions had
expressed interest in the loans.

Strathfieldsaye resident Jim Stein, who lost $130,000 in the
collapse, said it had been hard to find out what was happening
with the liquidation and class action.

"There has been a lack of information . . . it would be good to
find out what is going on," he said.  "I support the class action
and I've been speaking to some people in the banking industry who
say we've got a very good case."


BRINKER INTERNATIONAL: Remaining Issues in Workers' Suit Pending
----------------------------------------------------------------
In August 2004, certain current and former hourly restaurant team
members filed a putative class action lawsuit against Brinker
International, Inc. in California Superior Court alleging
violations of California labor laws with respect to meal periods
and rest breaks.  The lawsuit sought penalties and attorney's fees
and was certified as a class action by the trial court in July
2006.  In July 2008, the California Court of Appeal decertified
the class action on all claims with prejudice.  In October 2008,
the California Supreme Court granted a writ to review the decision
of the Court of Appeal and oral arguments were heard by the
California Supreme Court on November 8, 2011.  On April 12, 2012,
the California Supreme Court issued an opinion affirming in part,
reversing in part, and remanding in part for further proceedings.
The California Supreme Court's opinion resolved many of the legal
standards for meal periods and rest breaks in the Company's
California restaurants and the Company intends to vigorously
defend its position on the remaining issues upon remand to the
trial court.  It is not possible at this time to reasonably
estimate the possible loss or range of loss, if any.

No further updates were reported in the Company's February 4,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 26, 2012.


CERTAINTEED CORP: Faces Antitrust Class Action Over Drywall Prices
------------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reports that a
week after two men filed a federal antitrust class action suit
against the makers of gypsum board alleging the companies
conspired to fix the prices of the commodity, another consumer
filed his own complaint against the manufacturers in federal
court.

Massachusetts resident Howard Glaser filed his suit Jan. 30 on
behalf of himself and others similarly situated, alleging that as
a result of the defendants' misconduct, he and others sustained
injury in that they were made to pay more for drywall than they
would have in the absence of the companies' collective wrongdoing.

The lawsuit was jointly filed by Kenneth Trujillo and Ira N.
Richards, of the Philadelphia firm Trujillo, Rodriguez & Richards,
and attorneys Robert S. Green, James Robert Noblin and Lesley E.
Weaver, of the California firm Green & Noblin.

The defendants named in the case are CertainTeed Corp., USG Corp.,
United States Gypsum Co., New NGC Inc., LaFarge North America
Inc., Georgia-Pacific, American Gypsum Co., Temple-Inland Inc.,
and PABCO Building Products.

The lawsuit accuses the defendants of violating the Sherman Act,
which has to do with anti-competitiveness.

The defendants are accused of engaging in an unlawful conspiracy,
dating back to at least the fall of 2011, to fix, raise, maintain
and stabilize the price of gypsum board, which is also known as
drywall or sheetrock, and is used in residential and commercial
construction projects.

"Because of its sound-dampening, fire-retarding, and moisture-
control qualities, gypsum board has no competitively significant
substitutes, thus enabling the manufacturer of gypsum board to
control the market without fear that purchasers might turn to an
alternate product," the complaint states.

The suit claims that from at least September 2011 through the
present, the defendant companies combined and conspired to fix and
raise the prices at which they sold the product in the U.S.
beginning with large and coordinated price increases that became
effective in early 2012.

"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.

The complaint further states that the defendants conspired to
abolish a process known as "job quotes," which had protected
customers from price increases occurring during their respective
construction projects, and allowed them to lock in gypsum board
prices during the duration of their projects.

"In addition, job quotes were an avenue for price competition
between manufacturers, as customers could get bids from a variety
of manufacturers and play one off of the other," the lawsuit
states.  "But the collusive change in the industry pricing model
limited such competition and shifted the risk of future price
increases squarely to customers and was expressly designed to
allow Defendants to profit from both this and any future price
increases."

The lawsuit accuses the defendants of violating state and federal
antitrust laws as well as state and federal consumer protection
and unfair competition laws.

A similar class action suit was filed by the same plaintiffs'
attorneys at the U.S. District Court in Philadelphia on Jan. 23.

The federal case number is 2:13-cv-0059-MMB.


CHASE HOME: Sealed Bid for Class Cert. in "Gordon" Suit Denied
--------------------------------------------------------------
District Judge Virginia M. Hernandez Covington denied approval of
a sealed motion for class certification in GORDON v. CHASE HOME
FINANCE, LLC.

Ruth Gordon and Anthony Arango, residents of Florida, refinanced
their home with a mortgage from Washington Mutual Bank in 2003,
and the loan was later assigned to JPMorgan Chase Bank, N.A., with
servicing delegated to Chase Home Finance, LLC.  Ms. Gordon ad Mr.
Arango initiated their complaint against Chase Home and JP Morgan
in September 2011 asserting: (I) breach of contract; (II) breach
of the implied covenant of good faith and fair dealing; (III)
breach of fiduciary duty; (IV) declaratory judgment; (V) violation
of the anti-tying provisions of the Bank Holding Company Act, 12
U.S.C. Section 1972, et seq.; (VI) unconscionability; and (VII)
violation of the Truth in Lending Act, 15 U.S.C. Section 1601, et
seq.  They filed a sealed motion for class certification on March
16, 2012, seeking to certify two classes: one concerning force-
placed insurance and one concerning excess flood insurance
requirements.  On December 21, 2012, they filed their motion to
preserve the Court's jurisdiction over Florida Class Members
pursuant to the First-Filed Rule and All Writs Act.

Judge Covington ruled that the suit is not amenable to resolution
on a classwide basis.  "Plaintiffs fall short of satisfying the
required element of commonality as Plaintiffs have not
demonstrated the existence of a common contract signed by all
members of the proposed classes," she said.

Aside from holding that the Plaintiffs' contract-based claims are
not suitable for classwide disposition, the Court similarly finds
that the Plaintiffs cannot satisfy the commonality analysis as to
the remaining claims for breach of fiduciary duty,
unconscionability, and violation of the Bank Holding Company Act.

"Each of these claims present highly individualized inquiries, the
answers to which are not apt to drive the resolution of the
litigation," according to Judge Covington.  "In addition, even if
the requirements of Rule 23(a)[of the Federal Rules of Civil
Procedure] had been satisfied, including the requirements of
typicality and adequacy of representation, evaluation of the more
stringent requirements of Rule 23(b) underscores that class
certification is inappropriate in this case."

The Plaintiffs' motion to preserve the Court's jurisdiction over
Florida Class Members pursuant to the First-Filed Rule and All
Writs Act is denied as moot.

The case before Judge Covington is styled RUTH GORDON and ANTHONY
ARANGO, individually and on behalf of all others similarly
situated, Plaintiffs, v. CHASE HOME FINANCE, LLC, and JPMORGAN
CHASE BANK, NA., Defendants, Case No. 8:11-cv-2001-T-33EAJ, (M.D.
Fla.).

A copy of the District Court's February 5, 2013 Order is available
at http://is.gd/9Z5BEqfrom Leagle.com.


CIRRUS LOGIC: Robbins Geller Files Class Action in New York
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Feb. 4 disclosed that a class
action has been commenced in the United States District Court for
the Southern District of New York on behalf of all persons or
entities who purchased the common stock of Cirrus Logic, Inc.
between July 31, 2012 and October 31, 2012.

If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from Feb. 4.  If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact plaintiff's counsel, Samuel H.
Rudman, Esq. or David A. Rosenfeld, Esq. of Robbins Geller at
800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com

If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.rgrdlaw.com/cases/cirrus/

Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.

The complaint charges Cirrus and certain of its officers and
directors with violations of the Securities Exchange Act of 1934.
Cirrus develops high-precision, analog and mixed-signal integrated
circuits ("ICs") for a broad range of audio and energy markets,
including consumer and commercial audio, automotive entertainment,
and targeted industrial and energy-related applications.

The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's financial performance and future prospects.  According
to the complaint, the true facts, which were known or recklessly
disregarded by each of the defendants but concealed from the
investing public during the Class Period, were as follows: (i)
Cirrus's dependence on Apple, Inc. (its biggest customer) for
revenues was increasing rather than diminishing; (ii) Cirrus's
sales growth was falling rather than increasing; (iii)
difficulties in Cirrus's supply chain and at its vendors were
increasing costs and diminishing the Company's profit margins
going forward; (iv) the launch of several models of Cirrus's new
LED lighting had been delayed; and (v) as a result, defendants
knew Cirrus's increased fiscal 2013 guidance was not attainable.

According to the complaint, on October 31, 2012, after the close
of trading, Cirrus shocked the market by issuing significantly
lower guidance for fiscal 2013 than the market had been led to
expect, modeling revenues to be down 15% sequentially for its 2013
fourth quarter.  In response to the Company's announcement, the
complaint alleges that the price of Cirrus stock fell
precipitously.

Plaintiff seeks to recover damages on behalf of all purchasers of
Cirrus common stock during the Class Period.  The plaintiff is
represented by Robbins Geller, which has expertise in prosecuting
investor class actions and extensive experience in actions
involving financial fraud.

Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and
international institutional investors in contingency-based
securities and corporate litigation.  With nearly 200 lawyers in
nine offices, the firm represents hundreds of public and multi-
employer pension funds with combined assets under management in
excess of $2 trillion. The firm has obtained many of the largest
recoveries and has been ranked number one in the number of
shareholder class action recoveries in MSCI's Top SCAS 50 every
year since 2003.


DIRECTSAT: Economic Efficiency Does Not Justify Collective Action
-----------------------------------------------------------------
According to Thomson Reuters' Alison Frankel, Judge Richard Posner
of the 7th Circuit Court of Appeals is not categorically opposed
to class actions, even when the defendant claims that individual
facts predominate over classwide issues.  In a case called Butler
v. Sears, which involved class allegations about mold-prone
Whirlpool washing machines, Sears had claimed Whirlpool modified
the design on various washing machine models, so owners'
experiences varied too widely to permit the suit to proceed as a
class action.  But Judge Posner's succinct, tightly reasoned
opinion last November concluded that the key question is
efficiency.  "Is it more efficient, in terms both of economy of
judicial resources and of the expense of litigation to the
parties, to decide some issues on a class basis or all issues in
separate trials?" he wrote.  In the moldy washer case, he said, it
made sense to resolve whether the machines were defective in a
single proceeding (or perhaps subclass proceedings) rather than to
force hundreds of owners to litigate individually.

Judge Posner does not believe economic efficiency justifies every
collective action.  In particular, Judge Posner on Feb. 4 said
that a trial involving unpaid overtime claims by a small group of
DirectSat employees wouldn't prove anything tangible about the
damages claims of 2,341 home satellite dish repair and
installation technicians.  Even though DirectSat technicians are
covered by wage-and-hour laws, they work on a per-job basis rather
than at an hourly rate, "more like independent contractors than
employees," Judge Posner wrote.  If the opt-in class proposed by
three technicians and their lawyers at Axley Brynelson had sought
declaratory or injunctive relief based on DirectSat's supposed
practice of shortchanging workers by discouraging them from
recording time spent on activities such as calling customers,
Judge Posner said, it might not have mattered that individual
technicians work at varying efficiencies and put varying effort
into the job.

But because the class (technically, the collective group) wanted
to collect money damages, Judge Posner wrote in a 14-page opinion,
plaintiffs' lawyers would have to show some way to calculate those
damages short of holding 2,341 minitrials.  Their suggestion of
trying the claims of 42 supposedly representative plaintiffs is no
solution, the judge said on behalf of a three-judge panel that
also included Judges William Bauer and Ann Williams, since they
offered no evidence that the selected technicians were
representative of larger subclasses.

"They continue on appeal to labor under the misapprehension that
testimony by 42 unrepresentative 'representative' witnesses,
supplemented by other kinds of evidence that they have been unable
to specify, would enable a rational determination of each class
member's damages," Judge Posner wrote.  "They must think that like
most class action suits this one would not be tried -- that if we
ordered a class or classes certified, DirectSat would settle.
That may be a realistic conjecture, but class counsel cannot be
permitted to force settlement by refusing to agree to a reasonable
method of trial should settlement negotiations fail."

Judge Posner did suggest an alternative for workers like the
DirectSat technicians, who are supposedly out several thousand
dollars each.  Thousand-dollar claims might not justify individual
private litigation against their employer, but the Department of
Labor can get them the same money damages, according to the judge.

Judge Posner stopped well short of concluding that all wage-and-
hour collective actions are unjustified.  The DirectSat techs work
unusually individualized schedules, and Judge Posner found that
their lawyers responded to a reasonable request from the trial
court for a case management plan "rather truculently."  The judge
cites all kinds of complications in establishing a collective
damages theory but doesn't say it would be impossible.

Nevertheless, if you're prosecuting an overtime class action in
the 7th Circuit, it would be a good idea to be able to show that
the workers in the case suffered similar damages.

Michael Modl -- mmodl@axley.com -- of Axley argued the appeal for
the plaintiffs, and Miguel Estrada -- mestrada@gibsondunn.com --
of Gibson, Dunn & Crutcher, who represented DirectSat at the 7th
Circuit.


ENERGY CORP: Judge Tosses Most of Royalty Class Action Claims
-------------------------------------------------------------
A Pennsylvania class action alleging that gas producer Energy
Corporation of America (ECA) had improperly calculated royalty
payments experienced a major setback when a Pennsylvania federal
judge eliminated most of the claims brought by the class.  ECA's
motion for summary judgment was partially granted by U.S. District
Judge Joy Flowers Conti, adopting Magistrate Judge Robert
Mitchell's October 2012 Report and Recommendation.

Interpreting the landmark Kilmer decision, the court rejected the
class plaintiffs' claim that marketing costs were not acceptable
post-production deductions.  The court concluded that the list of
post-production costs detailed in Kilmer "should not be
interpreted as comprehensive and that deduction of marketing
costs, generally, is not contrary to law."  The court also found
that under the leases between ECA and the class plaintiffs, ECA
was permitted to use an allocation methodology to assign each well
its pro rata share of aggregate volumes from a total field volume,
as well as a pro rata share of post-production costs.  In so
doing, the court found that Kilmer did not mandate that ECA could
deduct only costs that it could demonstrate were actually
sustained by a particular well.

The court also eliminated the claim that the class plaintiffs
should have been paid royalties on the upside of hedges that
benefited a publicly traded trust that owned the right to receive
a portion of ECA's proceeds from the sale of gas from the class
plaintiffs' wells, concluding that ECA's relationship with the
trust was unconnected to ECA's lease obligations with the class
plaintiffs.

Finally, the court rejected ECA's challenge to the Report and
Recommendation's finding that ECA improperly deducted charges for
interstate transportation costs.  The court did, however, allow
ECA the opportunity to revisit the issue at trial depending on the
evidence presented.

The court's ruling evidences Pennsylvania courts' willingness to
give Kilmer a practical construction in allowing deductions for
post-production costs as well as computing those costs.  Further,
the court refused to connect unrelated hedging transactions
(utilized to mitigate market risk) with the specific lease
obligations between lessor and lessee.  As such, this decision is
a helpful development for Pennsylvania oil and gas producers, in
that it reasonably enables lease obligations to coexist with
commercial realities.

Paul K. Stockman, Esq. -- pstockman@mcguirewoods.com -- Gregg M.
Rosen, Esq. -- grosen@mcguirewoods.com -- Jonathan T. Blank, Esq.
-- jblank@mcguirewoods.com -- and Lisa M. Lorish, Esq. --
llorish@mcguirewoods.com -- at McGuireWoods LLP authored the news
article.


GREENBERG TRAURIG: Gender Bias Suit Stalls Over Arbitration Issues
------------------------------------------------------------------
The Am Law Daily reports that a proposed gender discrimination
class action against Greenberg Traurig is off to a slow start,
with lawyers arguing over not just whether the case belongs in
arbitration, but also which judge should decide that question.
Francine Friedman Griesing's attorney argues that she be allowed
her choice of venue as a Title VII plaintiff, a reference to the
law prohibiting employers from discriminating against those in
protected classes.


INTUITIVE SURGICAL: Appeal in "Perlmutter" Suit Remains Pending
---------------------------------------------------------------
An appeal from the dismissal of a securities litigation against
Intuitive Surgical, Inc. remains pending, according to the
Company's February 4, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.

On August 6, 2010, a purported class action lawsuit entitled
Perlmutter v. Intuitive Surgical et al., No. CV10-3451, was filed
against the Company and seven of its current and former officers
and directors in the U.S. District Court for the Northern District
of California.  The lawsuit seeks unspecified damages on behalf of
a putative class of persons who purchased or otherwise acquired
the Company's common stock between February 1, 2008, and January
7, 2009.  The complaint alleges that the defendants violated
federal securities laws by making allegedly false and misleading
statements and omitting certain material facts in the Company's
filings with the Securities and Exchange Commission.  On February
15, 2011, the Police Retirement System of St. Louis was appointed
Lead Plaintiff in the case pursuant to the Private Securities
Litigation Reform Act of 1995.  An amended complaint was filed on
April 15, 2011, making allegations substantially similar to the
original allegations.  On May 23, 2011, the Company filed a motion
to dismiss the amended complaint.  On August 10, 2011, that motion
was granted and the action was dismissed; the plaintiffs were
given 30 days to file an amended complaint.  The Company filed a
motion to dismiss the amended complaint.

A hearing occurred on February 16, 2012, and on May 22, 2012, the
Company's motion was granted.  The complaint was dismissed with
prejudice, and a final judgment was entered in the Company's favor
on June 1, 2012.  On June 20, 2012, Plaintiffs filed a notice of
appeal with the United States Court of Appeals for the Ninth
Circuit.  The appeal is styled Police Retirement System of St.
Louis v. Intuitive Surgical, Inc. et al., No. 12-16430.
Plaintiffs filed their opening brief on September 28, 2012.  The
Company filed an answering brief on November 13, 2012, and
Plaintiffs filed a reply brief on December 17, 2012.  No oral
argument date has been set, and the appeal remains pending.

The Company is aware of increasing efforts by plaintiff's
attorneys to solicit da Vinci patients for product liability
lawsuits against the Company.  The Company cannot yet estimate the
impact of these solicitations.


ITALIAN COLORS: Oral Argument on Arbitration Issue on Feb. 27
-------------------------------------------------------------
Oral argument for the case American Express Co. v. Italian Colors
Restaurant will be on February 27, 2013, before the United States
Supreme Court.

Bancroft lawyers Paul Clement, Esq. -- pclement@bancroftpllc.com
-- and Michael McGinley, Esq. -- mmcginley@bancroftpllc.com --
filed a brief on January 22, 2013, in the Supreme Court on behalf
of Italian Colors Restaurant and other small businesses, as
Respondents in American Express Co. v. Italian Colors Restaurant,
No. 12-133. Respondents are merchants who sued American Express
for violations of the federal antitrust laws. American Express
seeks to compel one-on-one arbitration according to the terms of
its standard arbitration clause.  Those terms do not allow
Respondents to share the costs of proving their claims, as they
could in litigation, or to shift the costs to American Express in
the event Respondents prevail, as they could under many other
companies' arbitration agreements. Respondents presented
undisputed evidence that those prohibitive costs, which include an
extensive expert study, would exceed each individual Respondent's
expected recovery by several hundred thousand dollars and
therefore would prevent Respondents from effectively vindicating
their federal antitrust rights. The question presented to the
Supreme Court is whether an arbitration clause should be enforced
when there is no dispute that litigants would be unable
effectively to vindicate their federal statutory rights in the
arbitral forum.

Daniel Fisher, writing for Forbes, reports that the U.S. Supreme
Court will soon hear arguments in this case that tests a
philosophical question at the heart of modern tort law: If the
cost of pursuing a lawsuit exceeds its value to an individual
plaintiff, is that a bad thing?

The case asks a second fundamental question: How far can
businesses go in asking their customers to sign agreements
prohibiting them from joining in class actions, which would solve
the problem above?

These two questions are wrapped tightly together in Amex vs.
Italian Colors, where lawyers want to bring a class action
accusing Amex of violating antitrust laws by requiring merchants
to accept Amex debit and credit cards at the same fee level.  The
problem is, each of the merchants signed an agreement to settle
their claims in arbitration, and waived their right to join in
class actions.

"The only way these lawsuits can be brought is on a class basis,"
said Matt Cantor -- mcantor@constantinecannon.com -- a partner
with Constantine Cannon, a law firm that has won billions in
antitrust settlements from the big credit-card companies over
similar claims.  Since the average merchant has potential damages
of several thousand dollars and an expert witness report could
cost $1 million, he said, "a class action waiver effectively
precludes any resolution at all."

The U.S. Solicitor General agrees, saying in a brief submitted in
the case that private lawsuits are a key part of the antitrust
enforcement scheme and consumers would lose out if those cases
could be squelched with arbitration agreements.

"The United States . . . has a substantial interest in ensuring
that arbitration agreements are not used to prevent private
parties from obtaining redress for violations of their federal
statutory rights," the SG wrote.  While the central issue involves
an arbitration contract, this case is really about the economics
of class actions, which allow lawyers to bundle together hundreds
or millions of small claims into a very powerful weapon to induce
companies to settle on their terms.

"Aggregation," Amex says in its brief, "can distort the underlying
substantive law by creating hydraulic pressure to settle even
meritless claims."

To reduce the pressure, corporate lawyers figured out how to write
arbitration clauses that prohibit class actions.  That has
inspired plaintiff lawyers to try and probe the weaknesses of
those agreements because it's simply not as profitable, or
effective, for them to represent clients one at a time in many
consumer and antitrust cases where individual damages are small.

In addition to the Solicitor General, the plaintiffs in this case
are supported by Public Citizen, the American Antitrust Institute
and the National Retail Federation.

On the other side are the U.S. Chamber, the American Bankers
Association and other business interests who say arbitration is a
cheaper and more effective way to resolve business disputes.

And they may have the upper hand in this fight.  Twice in the past
three sessions, the Supreme Court has rejected the argument that
arbitration agreements shouldn't be allowed to prevent class
litigation.  The most recent decision, AT&T vs. Concepcion,
affirmed bans on class actions even in consumer contracts.

The conservative majority on the court, led by Chief Justice John
Roberts has shown a strong preference for upholding the Federal
Arbitration Act, which encourages businesses to use arbitration
instead of courtroom litigation to settle their differences.

The FAA was passed in 1926 to address widespread hostility by
judges toward contracts that required arbitration.  Many judges
felt no one, even sophisticated businesses, should be able to sign
away their right to their day in court.  So Congress passed a
federal law requiring courts to honor agreements requiring
arbitration.

In this case, Italian Colors represents merchants who say Amex
broke antitrust laws by forcing them to accept credit and debit
American Express cards at the same fee level.  (Merchants hate
credit-card fees, calling them "swipe fees" even though consumers
don't pay them directly in the way they'd pay, say, an ATM fee.)
But as Italian Colors notes, even the largest retailer in the case
would have a maximum claim of $12,850, or $38,549 when trebled,
while hiring the experts to prove Amex broke the law could cost $1
million or more.

"No rational actor would attempt to bring a claim when a negative
recovery is a certainty," said the U.S. Solicitor General, in the
amicus brief.

The plaintiffs say the arbitration agreement prevents them from
cooperating in any way and makes the proceedings of any one case
confidential and sealed to the others.  That precludes any sort of
collective action to spread around the costs of hiring lawyers and
preparing expert testimony, they say.

Amex argues the plaintiffs had plenty of opportunity to pursue
their claims on a cost-effective basis, but chose not to.  Given
the informal rules in arbitration, "claimants could hire the same
attorneys, or hire the same expert witness, even outside the
context of class proceedings," the company says, despite the ban
on court-overseen class actions.

"There were ways the plaintiffs could have made it cost-
effective," said Alan Kaplinsky -- kaplinsky@ballardspahr.com -- a
partner with Ballard Spahr in Philadelphia who pioneered the use
of arbitration clauses banning class actions, and filed a brief on
behalf of the American Bankers Association in this case.  "They
elected not to go down that road."


NIELSEN HOLDINGS: Faces Class Suit Over Arbitron Acquisition
------------------------------------------------------------
Nielsen Holdings N.V. is facing a class action lawsuit arising
from its proposed acquisition of Arbitron Inc., according to the
Company's February 4, 2013, Form 8-K filing with the U.S.
Securities and Exchange Commission.

On December 17, 2012, Nielsen Holdings N.V., a Dutch public
company with limited liability (naamloze vennootschap)
("Nielsen"), TNC Sub I Corporation, a Delaware corporation and an
indirect wholly-owned subsidiary of The Nielsen Company B.V. and
Nielsen ("Merger Sub"), and Arbitron Inc., a Delaware corporation
("Arbitron"), entered into an Agreement and Plan of Merger (the
"Merger Agreement").  Pursuant to the terms of the Merger
Agreement, subject to the satisfaction or waiver of certain
conditions set forth in the Merger Agreement, Merger Sub will be
merged with and into Arbitron (the "Merger"), and Arbitron will
become an indirect wholly-owned subsidiary of The Nielsen Company
B.V. and Nielsen at the effective time of the Merger.

On January 24, 2013, a putative class action lawsuit was filed in
the Court of Chancery of the State of Delaware regarding the
proposed Merger.  The complaint ("Complaint") was purportedly
filed on behalf of the public shareholders of Arbitron, and names
as defendants, Arbitron, each of Arbitron's directors, Merger Sub,
and Nielsen.  The Complaint alleges, among other things, that
Arbitron's directors breached their fiduciary duties by failing to
maximize shareholder value in a proposed sale of Arbitron.  The
Complaint further alleges that Arbitron's preliminary proxy
statement fails to provide material information and provides
materially misleading information relating to the Merger and that
Arbitron and Nielsen aided and abetted the alleged breaches by
Arbitron's directors.  The plaintiff seeks, among other things,
class action status, an injunction preventing the completion of
the Merger (or, if the Merger is completed, rescinding the Merger
or awarding rescissory damages), and the payment of attorneys'
fees and expenses.  Nielsen and Merger Sub intend to defend the
lawsuit vigorously.

On February 4, 2013, Arbitron announced that Arbitron and Nielsen
have agreed that Nielsen will voluntarily withdraw and refile the
Hart-Scott-Rodino ("HSR") notification and report form for the
Merger in order to give the Federal Trade Commission additional
time to review the proposed transaction.  Nielsen originally filed
its notification and report form on January 4, 2013.  The HSR
notification and report form is being withdrawn effective as of
February 4, 2013, and Nielsen was set to refile by February 6,
2013.  Upon renewing the filing, the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act will expire on
Friday, March 8, 2013, at 11:59 p.m. New York City time, unless
earlier terminated or extended by a request for additional
information.


PREWETT FAMILY: Faced Suit For Failing to Pay Employees' OT Wages
-----------------------------------------------------------------
Christian Broughton, Mikele Antunez, Colton Wristen, individually
and on behalf of all others similarly situated v. Prewett Family
Water Park, The City of Antioch and Does 1-50, Case No. 3:13-cv-
00531 (N.D. Calif., February 6, 2013) is brought on behalf of all
persons, who have been employed by Prewett Family Water Park
operated by the City of Antioch as hourly paid non-exempt
employees engaged in the operations, safety, maintenance, repairs,
and security during the period commencing three years prior to the
filing of the complaint.

The Defendants failed to pay the Plaintiffs and the proposed class
overtime compensation, according to the complaint.  As a result of
this failure, the Plaintiffs contend, they and the members of the
collective class have been unlawfully deprived of compensation in
amounts to be determined at trial.

The Plaintiffs are residents of the state of California and were
employees of Prewett Family Water Park.

Prewett Family Water Park is a water park owned and operated by
the City of Antioch.  The Plaintiffs are unaware of the true names
of the Doe Defendants.

The Plaintiffs are represented by:

          Kenneth C. Absalom, Esq.
          James J. Achermann, Esq.
          LAW OFFICE OF KENNETH C. ABSALOM
          275 Battery Street, Suite 200
          San Francisco, CA 94111
          Telephone: (415) 392-5040
          Facsimile: (415) 392-3729
          E-mail: kenabsalom@333law.com
                  james.achermann@333law.com


PROGRESSIVE INT'L: Recalls 26,500 Canning Jar Lifters
-----------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Progressive International Corporation, of Kent,
Washington, announced a voluntary recall of about 22,700 Canning
Jar Lifters in the United States of America and 3,800 in Canada.
Consumers should stop using this product unless otherwise
instructed.  It is illegal to resell or attempt to resell a
recalled consumer product.

The jar lifter handle can detach over time due to a missing
stainless steel core in the hinge.  This can cause the tongs to
fail to grip and allow a jar being lifted to fall, posing a
laceration hazard to the user.

Progressive International has received no reports of injury or
property damage.

The recall involves the One Handed Jar Lifter.  The jar lifter is
a pair of tongs designed for lifting canning jars out of boiling
water.  The lifter is red with white handles.  It is made of
plastic and metal with a nylon coating.  Pictures of the recalled
products are available at http://is.gd/5vWDIH

The recalled products were manufactured in China and sold at AC
Sales Co., Ace Hardware, Amazon, Americas Gardening Resources, Bi-
Mart, Blain Supply Inc., Chef Central , Cole Hardware, DeNault's
True Value Hardware, Heart of America, Home Shopping Club,
InterBond Corp. of America, Kitchen Kaboodle, Kitchen Krafts Inc.,
Lehman Hardware & Appliance Inc., Metropolitan Markets, Marmaxx,
Reading China & Glass/Calvert, Supermarket Associates, Sur La
Table, Williams-Sonoma, Winners Merchants International, World
Kitchen Ltd., Zulily Inc. and other retailers nationwide  from
February 2012 to October 2012 for about $10.

Consumers should immediately stop using the jar lifter and contact
Progressive International Corporation for a free replacement.
Progressive International Corporation Customer Service may be
reached at (800) 426-7101, from 9:00 a.m. to 5:00 p.m. Pacific
Time Monday through Friday; or by e-mail at
jarlifter@progressiveintl.com; or online at
http://www.progressiveintl.com/and click on "Recall Information"
for additional information.


SANDERSON FARMS: RICO Class Action Suit Dismissed With Prejudice
----------------------------------------------------------------
The United States District Court for the Middle District of
Georgia dismissed the amended class action complaint captioned
MELISSA SIMPSON and SABRINA ROBERTS on behalf of themselves and
all those similarly situated, Plaintiffs, v. SANDERSON FARMS,
INC., PERRY HAUSER, JEFF BLACK, DEMISHIA CROFT, ARISTIDES CARRAL-
GOMEZ, JANIE PERALES, KARINA FONDON, and JENNIFER HARRISON BUSTER,
Defendants, Civil Action No. 7:12-CV-28 (HL).

The class action suit was filed pursuant to the Racketeer
Influenced and Corrupt Organizations Act, and the Georgia RICO
Act, alleging that the Defendants conspired to depress the wages
paid to hourly workers employed at the Sanderson Farms processing
facility in Moultrie, Georgia, since 2008 by knowingly employing
large numbers of illegal aliens and by falsely attesting that the
illegal aliens presented genuine work authorization documentation
or identification documents.

Senior District Judge Hugh Lawson pointed out that actual data is
required to support the wage depression claim.  "The Plaintiffs'
amended complaint cannot survive the Defendants' motions to
dismiss because it fails to allege sufficient facts to show that
[18 U.S.C. Section 1546] violations proximately caused depressed
wages."

Moreover, he said, the Plaintiffs, who are represented by counsel
well versed in wage depression RICO claims, were given an
opportunity to cure the deficiencies in the complaint and failed
to do so.  Under the circumstances, the Court finds dismissal of
the complaint with prejudice appropriate.

A copy of the District Court's February 5, 2013 Order is available
at http://is.gd/jj7HKlfrom Leagle.com.


SEALY CORP: Defends "Hernandez" Suit vs. Unit in California
-----------------------------------------------------------
Sealy Corporation is defending a lawsuit captioned Hernandez et
al. v. Sealy Mattress Manufacturing Co., according to the
Company's February 4, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 2,
2012.

In March 2012, Hernandez et al. v. Sealy Mattress Manufacturing
Co. was filed in Superior Court in California with respect to some
allegations of improper wage and hour calculations in accordance
with California state law.  The Company is vigorously defending
this lawsuit and it is too early to determine a potential
liability related to this action as there has been little
discovery and the matter has not yet been presented for class
certification.


SEALY CORP: Signs MOU to Settle Merger-Related Suits in Delaware
----------------------------------------------------------------
Sealy Corporation entered into a memorandum of understanding to
settle merger-related lawsuits in Delaware, according to the
Company's February 4, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 2,
2012.

On September 26, 2012, the Company entered into a Merger Agreement
(the "Merger Agreement") with Tempur-Pedic International Inc.
("Tempur-Pedic") pursuant to which a wholly-owned subsidiary of
Tempur-Pedic will merge with and into the Company, resulting in
the Company becoming a subsidiary of Tempur-Pedic (the "Merger").
In connection with the Merger, each share of the Company's common
stock issued and outstanding immediately prior to the Merger will
be converted into the right to receive $2.20 per share in cash
(the "Merger Consideration").  As part of the transaction, it is
anticipated that the Company's outstanding senior and subordinated
notes will also be redeemed in accordance with the provisions of
the related note indentures.  The proposed merger has been
approved by the Board of Directors of both companies and remains
subject to certain additional conditions and approvals of various
regulatory authorities.

Six purported class action lawsuits have been filed relating to
the Merger.  One lawsuit was filed in North Carolina state court
and five were filed in the Delaware Court of Chancery by purported
stockholders of the Company against the Company, the Company's
directors, the Silver Lightning Merger Company ("Sub"), and
Tempur-Pedic.  Justewicz v. Sealy Corp., et al. ("North Carolina
Action") was filed on October 3, 2012, in the General Court of
Justice, Superior Court Division in North Carolina ("North
Carolina Court").  On November 13, 2012, the Delaware Court of
Chancery consolidated all five Delaware actions into a single
action, now styled as In re Sealy Corporation Shareholder
Litigation ("Delaware Action").  Plaintiff in the North Carolina
Action and plaintiffs in the Delaware Action allege, among other
things, that the defendants have breached their fiduciary duties
to the Company's stockholders and that the Company, Sub and
Tempur-Pedic aided and abetted the Company's directors' alleged
breach of fiduciary duties.  The complaints also claim that the
Merger Consideration is inadequate, that the Merger Agreement
contains unfair deal protection provisions, that the Company's
directors are subject to conflicts of interests, and that the
Preliminary Information Statement it filed on October 30, 2012,
omits material information concerning the negotiation process
leading to the proposed transaction and the valuation of the
Company.

On October 12, 2012, plaintiff in the North Carolina Action
brought a Motion for Expedited Discovery and for a Hearing and
Briefing Schedule on Plaintiff's Motion for a Preliminary
Injunction.  On October 24, 2012, defendants in the North Carolina
Action brought a Motion to Stay the North Carolina Action in favor
of the Delaware Action.  On November 7, 2012, the North Carolina
Action plaintiff amended his complaint to add allegations claiming
that the Preliminary Information Statement filed by the Company on
October 30, 2012, did not provide sufficient information.
Following briefing and a hearing on November 8, 2012, the North
Carolina Court stayed the North Carolina Action.

On November 19, 2012, plaintiffs in the Delaware Action filed a
consolidated amended complaint, a motion for expedited
proceedings, and a motion for a preliminary injunction.

The Company believes that the allegations in these lawsuits are
entirely without merit.

On January 22, 2013, solely to avoid the burden, expense and
uncertainties inherent in litigation, and without admitting any
liability or wrongdoing, the parties to the Delaware Action
entered into a memorandum of understanding setting forth an
agreement-in-principle providing for a settlement of the Delaware
Action (the "Proposed Settlement").  In connection with the
Proposed Settlement, the Company agreed to include certain
supplemental disclosures in an amended information statement.  The
Proposed Settlement provides for the release of all claims by
Company stockholders concerning the Merger Agreement, the Merger,
and the disclosures made in connection with the Merger, including
all claims that were asserted or could have been asserted in the
Delaware Action and the North Carolina Action. The Proposed
Settlement does not provide for the payment of additional monetary
consideration to Company stockholders and the Proposed Settlement
does not affect the rights of any Company stockholder to seek
appraisal pursuant to Section 262 of the Delaware General
Corporation Law.  The Proposed Settlement is subject to definitive
documentation and approval by the Delaware Court of Chancery.


SOIL SOLUTIONS: Judge Approves Recycling Plant Class Action
-----------------------------------------------------------
The Associated Press reports that a federal judge has approved
class-action status for a lawsuit alleging that dust and other
emissions from a northern Indiana wood recycling plant pose a
health threat and nuisance to nearby residents.

About 150 people who live near the Elkhart plant sued VIM
Recycling in 2009, two years before the plant was sold to Soil
Solutions.

Environmental attorney Kim Ferraro told The Elkhart Truth that a
federal judge's decision in South Bend to approve the plaintiffs'
September 2011 request for class-action status means more than
1,700 people could become part of the lawsuit.

"This decision ensures that all of the residents of this impacted
community who might not otherwise be able to afford to legally
protect their rights to clean air and a safe home, can take action
to protect their homes and families," she said.

Ms. Ferraro, who is the water policy director of the Hoosier
Environmental Council, said notices will now be sent to residents
near the plant advising them of their status as class-action
members and, if desired, how they can opt out of the court
proceedings.

Neighbors near the wood-recycling plant, which grinds scrap wood
into animal bedding and mulch, have complained for years that its
dust and other emissions has impacted their health and is a
nuisance.

Indiana regulators have taken several actions against the
recycling plant, including fines, over the years.  The Indiana
Department of Environmental Management filed its own lawsuit
against the plant, alleging that it has improperly accepted waste
wood containing glues, resins and other substances.

The class-action lawsuit against Soil Solutions Company, VIM
Recycling, Inc., K.C. Industries, LLC, and Kenneth R. Will alleges
that waste materials were dumped and processed at the plant in
unsafe and negligent ways.

The case received media attention in the summer of 2007 when the
site's massive waste piles caught fire, prompting fire departments
from Elkhart and surrounding communities to the scene.  One worker
died in the incident.

Ms. Ferraro said the goal of the lawsuit is to put an end to the
"harmful dust, pollutant runoff, smoke and extreme noxious odors"
nearby residents endure from wood waste scraps processed at the
site or from smoldering emissions from the waste piles.

Carmine Green, one of six plaintiffs who will represent the 1,700
residents in the class action suit, said in a statement from
Ferraro that when winds blow particles and fumes away from the
plant toward her home she had to go inside and close her doors and
windows.

She said the smell would make her sick to her stomach.

"Surely we can run businesses in Elkhart and preserve our way of
life at the same time," Ms. Green said.

Jim Brotherson, an attorney for Soil Solutions, said the class-
action status "will make it easier for us" because the merits of
litigants arguments can be decided in a single case.  He said Soil
Solutions, the current owner of the site, disavows the actions of
the VIM Recycling, the previous owner.


THORLEY INDUSTRIES: Recalls 1,440 4moms breeze Playard Sheets
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Thorley Industries LLC, doing business as 4moms, of Pittsburgh,
Pennsylvania, announced a voluntary recall of about 1,440 4moms(R)
breeze(TM) Cotton Jersey Playard Sheets.  Consumers should stop
using this product unless otherwise instructed.  It is illegal to
resell or attempt to resell a recalled consumer product.

The sheets are too small for the play yards.  A sheet that does
not properly fit the play yard poses an entrapment hazard that
could lead to suffocation.

No incidents or injuries have been reported.

The recalled play yard sheets are cream-colored, cotton jersey
fabric.  They were sold as an accessory to the 4moms breeze play
yard.  "4moms" is printed on a black tag sewn onto the sheet.
Item number 4M-009-10-000101 is printed on the packaging.  UPC
817980011137 is printed on the sheet's packaging and on a white
warning tag sewn onto the sheet.  A picture of the recalled
products is available at http://is.gd/txom41

The recalled products were manufactured in China and sold at
buybuy Baby and other juvenile product stores nationwide and
online at www.buybuybaby.com from December 2012 through January
2013 for about $15.

Consumers should stop using the recalled play yard sheets
immediately and return them to 4moms for a full refund.  4moms may
be reached toll-free at (888) 977-3944 from 9:00 a.m. to 5:00 p.m.
Eastern Time Monday through Friday or online at
http://www.4moms.com/and click on Recall for more information.


TOYOTA MOTOR: Loses Bid to Arbitrate Prius Brake Defect Claims
--------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal appeals court has struck down Toyota Motor Corp.'s
attempt to arbitrate claims that it failed to inform consumers
about defects in the anti-lock braking systems of certain Prius
and Lexus vehicles.


VISA: N.J. Retailers Unlikely to Implement Credit-Card Surcharge
----------------------------------------------------------------
Michael L. Diamond, writing for The Asbury Park Press NJ, reports
that a provision in a class-action settlement with Visa,
MasterCard and major banks allows retailers to charge consumers up
to 4 percent on purchases made with credit cards.

New Jersey is one of 40 states in which retailers can implement a
credit-card surcharge, but few are expected to do so.

Especially For You Florist & Gift Shop in Freehold has its hands
full with plenty of competitors and a customer base trying to
recover both from a shaky economy and superstorm Sandy.

So the option to make up for its credit-card transaction fees by
putting a surcharge on credit-card wielding customers doesn't get
very far.

"Oooh, no," owner Marlene Rogala said.  "Times are tough enough as
it is, and, I don't know, it's probably something we would really
have to think about before we institute that program."

New Jersey retailers said on Feb. 4 they are unlikely to take
advantage of a provision in a class-action settlement with Visa,
MasterCard and major banks and charge consumers up to 4 percent on
purchases made with credit cards.

So unlikely, in fact, that they say a bill in the New Jersey
Legislature that would prohibit retailers from implementing
credit-card surcharges is a waste of time.

"We really think it is a solution in search of a problem," said
John Holub, president of the New Jersey Retail Merchants
Association, a trade group.  "You would be hard-pressed to find
any retailer in the state of New Jersey who has considered or is
even willing to place a surcharge on their customers."

New Jersey is one of 40 states in which retailers can use a
credit-card surcharge, a right they won as part of a settlement
last July of a long-running federal antitrust lawsuit brought by
nine retailers against Visa, MasterCard and major banks.

Retailers have said they pay transaction fees to credit-card
companies that can be so expensive that the bank sometimes gets a
bigger share of the profit than they do.

Before the agreement, the credit-card companies prohibited
retailers and other businesses that accept credit cards from
charging customers for the right to use plastic.  The settlement
gave merchants the right to pass along the fees as of Jan. 27.

The idea isn't foreign to consumers in New Jersey, where gasoline
stations charge different prices depending on the payment method.
But Mr. Holub said gasoline stations are seen as offering not a
surcharge, but a discount to customers who pay with cash.

New Jersey lawmakers introduced legislation that would prohibit
retailers from charging customers extra for using credit cards,
although Mr. Holub said gasoline stations would be exempt.

"This is an issue that strikes the nerve of any retailer out
there," Mr. Holub said.

Retailers can pass along transaction fees with the credit-card
surcharge.  But the lawsuit settlement requires retailers to
notify customers of the surcharge before and after a purchase with
signs that are visible at a store entrance and its cash registers.
The sales receipt has to list the surcharge separately.  Web sites
must notify customers that they're about to pay more for something
they buy online.

Some retail groups, including the National Retail Federation, are
scratching their heads over the settlement.  The lawsuit's intent,
retail groups say, was to lower the transaction fees that
merchants pay banks, but that hasn't happened.  Instead, the fee
is just has high. They can recoup the charge -- but they risk
losing customers in the process.

"That's exactly opposite where we want to be," said Mallory
Duncan, a senior vice president at the National Retail Federation
said.

Shore-area retailers sounded reluctant to penalize customers who
use a credit card. Small retailers, in particular, said they
worried about losing customers to larger competitors.

"We have to do what we can to get people to shop local," said
Sheena MacClaren, owner of Plethora Boutique in Point Pleasant.
"I just think it comes down to customer service and making things
easier for them."


* Securities Class Action Settlements Outside U.S. May Rise
-----------------------------------------------------------
Pension Funds Insider reports that a leading class action
specialist predicts that, with an increase in the amount of
pension funds claiming back lost investments, settlements in
securities class actions outside the US could rise to $8.3 billion
per year by 2020.

Class action specialist GOAL Group predicts that settlements in
securities class actions outside the US will rise substantially.
Up to very recently pension funds only focused on claiming back
lost investments in the US, as this was the market with the most
developed legislature.  However, pension fund trustees, and their
custodian banks, have a fiduciary duty to recover beneficiary
returns from class actions, and more and more funds will have this
added as a clause in their contract, forcing them to seek legal
solutions in many other nations across the world.

The root of this international diversification seems to have been
a combination of restrictions on jurisdiction definitions in the
US Federal courts (for example the Morrison v. National Australia
Bank ruling), along with a growing desire to develop domestic
class action procedures in many countries around the globe.

A worrying fact, however, in the new study by the legal
consultants identified that if non-participation rates seen in US
class actions are experienced and continued in non-US activity, by
the end of the decade $2.02 billion of investors' rightful returns
will be left unclaimed each year.

In the UK, pension funds currently account for 38% of total assets
under management -- an estimated 1.6tn (according to the 2011-
2012, IMA Annual Survey).  On average 40% of these funds portfolio
is invested in foreign stocks, of which only 11% is invested in US
stocks.

GOAL says the awareness of what is lost out on, on an annual
basis, should be a wake-up call to fiduciaries.  Especially now
that funds are seen to be including the responsibility for class
action identification and participation in contractual agreements
with their custodians, these need to be seen trying to recoup the
investment losses in order not to be sued.  Some custodians though
are restricting the geography of their class action service level,
which could indicate that non-participation rates are likely to be
even higher than at current US case levels.

Stephen Everard, CEO of the GOAL Group, said the excuses of not
participating in class action lawsuits was slowly disappearing:
"Until recently, the main focus of securities class actions was on
the US.  However, class action growth outside the US is now
increasing rapidly, and is predicted to mirror the growth of the
US class action scene in the early part of the 21st century.

"Certain legislatures -- currently The Netherlands and Canada --
have defined and admitted the idea of a global 'class' where non-
US investors in shares listed on a non-US exchange can pursue
their securities class actions in those countries' courts.  There
is no viable excuse for non-participation as a number of
specialist service providers can now perform this function at
relatively low cost."

The UK is also one of the jurisdictions where US-style securities
litigation is developing, along with Germany, The Netherlands and
Canada, where a framework is already in place.  GOAL says it is
"quite possible" that the UK could become a regional center for
the prosecution of these cases.


* Comcast and Amgen Rulings Could Modify Class Action Landscape
---------------------------------------------------------------
John D. Hanify, Esq. -- jhanify@jonesday.com -- and Jason C.
Weida, Esq. -- jweida@jonesday.com -- at Jones Day reports that
last November 5, the Supreme Court Justices listened to two
important class action cases that may offer the opportunity for
the Court to impose stricter standards for the certification of
class actions.

Comcast Corp. v. Behrend is a Sherman antitrust claim brought by
cable subscribers in the Philadelphia market asserting that they
paid too much for cable.  The plaintiffs alleged a conspiracy to
"cluster" licenses in geographical areas where the company could
then more effectively control cable prices.  At the outset of the
case, the plaintiffs advanced four theories to support their
damages claim.  The lone theory found creditable by the district
court was that Comcast's clustering deterred "overbuilders" --
companies that can offer a competitive alternative where a cable
company already operates -- from entering the Philadelphia market.

On the basis of that theory of damages, the district court
certified the class under Fed. R. Civ. P. 23(b)(3).

On appeal to the Third Circuit, Comcast argued that the plaintiffs
had not satisfied Rule 23(b)(3)'s predominance requirement.
According to Comcast, the plaintiffs' expert relied on a damages
model tied to all four theories but could not measure damages
under the sole remaining theory credited by the district court.  A
divided panel affirmed class certification.  It did so on the
heels of Wal-Mart Stores, Inc. v. Dukes, where the Supreme Court
suggested that Daubert's standards for the admission of expert
testimony applied in class certification proceedings.  The Third
Circuit, however, refused to fault the district court for not
scrutinizing the expert's damages model under Daubert standards.
The panel stated, "We understand the Court's observation to
require a district court to evaluate whether an expert is
presenting a model which could evolve to become admissible
evidence, and not requiring a district court to determine if a
model is perfect at the certification stage."  Rather, according
to the Third Circuit, expert opinions need only be "plausible" at
the class certification stage.

The majority's rationale elicited a strong dissent from Judge
Jordan.  He found the evidentiary standard which had been applied
to be deficient, noting that "simple logic indicates that a court
may consider the admissibility of expert testimony at least when
considering pre-dominance [under Rule 23(b)(3)]."  In the
dissent's view, a "court should be hard pressed to conclude that
the elements of a claim are capable of proof through evidence
common to a class if the only evidence proffered would not be
admissible as proof of anything."

Thus, Comcast raises the critical question of whether the
"plausible" prospect that admissible evidence will be admitted at
trial can satisfy the standards for class certification, or
whether admissible evidence, including competent expert opinion,
must be advanced at the time certification is considered by the
district court.

In the second case, Amgen Inc. v. Connecticut Retirement Plans and
Trust Funds, the plaintiffs claimed to be representatives of a
class of securities holders suing under Section 10(b) of the
Exchange Act and Rule 10b-5.  They alleged that false and
misleading public statements made by an officer of the company
fraudulently inflated its stock price.  The plaintiffs sought
class certification under Rule 23(b)(3) partly on the basis of the
fraud-on-the-market theory of reliance.  This theory, accepted by
the Supreme Court in Basic Inc. v. Levinson, 485 U.S. 224 (1988),
relieves plaintiffs of the need to show actual reliance where
there is a public market for the stock, a so-called "efficient
market," and where the offending statements or misrepresentations
were made into that market.  The assumption implicit in the theory
is that the market takes account of such statements and that their
impact is reflected in the price of the stock.

Amgen argued that, in addition to proving that an efficient market
existed and the alleged misstatements were public, plaintiffs must
also prove -- at the certification stage -- that those
misrepresentations were material.  According to Amgen, immaterial
statements do not affect stock price.  Thus, there is no basis for
presuming that investors relied in common on immaterial
misstatements when they bought or sold the stock.  The district
court rejected that argument, refused Amgen's attempt to offer
admissible evidence of immateriality, and certified the class.

A unanimous panel of the Ninth Circuit affirmed the certification,
reasoning that materiality is an "element of the merits of [a]
securities fraud claim," whereas the efficient-market and public-
statement predicates to the fraud-on-the-market theory are not.
Because materiality is an element of a claim, the panel reasoned,
its merits can be addressed only "at trial or by summary judgment
motion."[4]

Each of these cases raises the question as to the quantum of proof
required at the class certification stage.  Each challenges the
pre-existing practice of certifying a class with something less
than admissible evidence.  The Court's decisions in Comcast and
Amgen could dramatically modify the class action landscape.  What
is troubling to certain of the Justices is the fact that class
certification becomes the defining moment in class action cases
because the act of certification can increase risk monumentally
and exert unwarranted pressure on defendants to settle claims that
may have little chance of success on the merits.  In many high-
stakes class actions, including both antitrust and securities
class actions, certification hinges on expert testimony.
Permitting class certification on the basis of plausible but
inadmissible expert opinions and/or alleged misrepresentations
that may be immaterial to market price serves as an obvious
opportunity for what Judge Henry Friendly described as "blackmail
settlements."

The class certification issues raised by Comcast and Amgen have
split the circuits.  In Comcast, the Third Circuit's decision
itself created the split.  The emerging trend, both pre- and
especially post-Dukes, has been to apply Daubert in class
certification proceedings, although the circuits differed as to
the level of scrutiny required. For example, in American Honda
Motor Co. v. Allen, the Seventh Circuit held that when expert
testimony is critical to class certification, "the district court
must perform a full Daubert analysis before certifying the class."
The Eleventh Circuit subsequently adopted that approach.  And the
Ninth Circuit, after tinkering with a contrary view, ultimately
agreed with the Seventh and Eleventh Circuits.

Other circuits have been less exacting but still apply Daubert in
some form or another.  The Eighth Circuit, for instance, has
endorsed a "focused Daubert inquiry."  According to the panel, "an
exhaustive and conclusive Daubert inquiry before the completion of
merits discovery cannot be reconciled with the inherently
preliminary nature of pretrial evidentiary and class certification
rulings."  And, although the First Circuit has not addressed this
precise question, it has held that when predominance turns on "a
novel or complex theory as to injury . . . the district court must
engage in a searching inquiry into the viability of that theory
and the existence of the facts necessary for the theory to
succeed."

In Amgen, the Ninth Circuit compounded the pre-existing circuit
split.  Its decision aligned the Ninth Circuit with the Seventh
and Third Circuits, both of which view materiality as a merits
element of a securities fraud claim that has no place in the
certification inquiry.  In doing so, the Ninth Circuit disapproved
of contrary holdings in the Second and Fifth Circuits (and
contrary dictum in a First Circuit decision).  Those circuits
require a plaintiff to prove materiality at the certification
stage on the basis of a footnote in the Supreme Court's decision
in Basic, which they have read as suggesting a materiality
criterion for the fraud-on-the-market theory.  The Ninth, Seventh,
and Third Circuits, however, say that reading Basic in that way is
unwarranted.

If oral argument is any gauge of how the Court will rule, the
defendants in both Comcast and Amgen have reason for cautious
optimism.  In Comcast, the defense counsel argued that the
plaintiffs' model for determining damages could not pass muster
under Daubert, adding that the certified class covered subscribers
in hundreds of franchise areas facing different competitive
conditions.  "If you drop a stone in the water, you're going to
have ripples all the way out," Comcast argued.  "That doesn't mean
all the ripples are the same." Justice Kennedy, who often casts
the deciding vote in close cases, appeared sympathetic to this
line of reasoning, stating, "The judge has to make a determination
that in his view the class can be certified.  And that includes
some factual inquiries as to the damages alleged."  The
plaintiffs' counsel responded with a procedural argument, namely,
that Comcast had waived the Daubert issue by failing to raise it
below.  Chief Justice Roberts, however, suggested that the Court
could simply answer the admissibility question and then remand for
a finding on the waiver issue.

Later that same morning, in Amgen, the defense counsel argued that
the fraud-on-the-market theory does not make sense without
materiality: "Absent materiality, the market price cannot be
presumed to reflect the statement in question."  That argument
drew pointed questions from Justices Ginsburg and Kagan, who
appeared reluctant to require plaintiffs to prove materiality
before trial.  Justice Ginsburg in particular said that she was
"nonplussed" by Amgen's argument because a finding of
immateriality at the class certification stage would be
dispositive of the merits: "Of course, [the finding is] going to
bind the class representative.  So if it's immaterial, the case
ends."  But the plaintiffs' counsel was subject to harsher
treatment when he took the podium.  Indeed, Justice Scalia told
the plaintiffs' counsel that there is "good reason" to decide the
question of materiality before a class is certified: "The reason
is the enormous pressure to settle once the class is certified.
In most cases, that's the end of the lawsuit" -- an observation
that applies equally to the question of materiality in Amgen and
the question of admissibility in Comcast.



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S U B S C R I P T I O N I N F O R M A T I O N

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