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/raid1/www/Hosts/bankrupt/CAR_Public/130213.mbx C L A S S A C T I O N R E P O R T E R Wednesday, February 13, 2013, Vol. 15, No. 31 Headlines ADVANCEPIERRE FOODS: Recalls 15,328 Lbs. of Country Fried Steaks AMAG PHARMA: 1st Cir. Revives Class Action Over Feraheme Risks AMERICANS FOR RESPONSIBLE LEADERSHIP: Faces Robocall Class Action BAYER CORP: Class Member Balks at Attorneys' $5.1MM Fee Bid CANADA: Committee to Probe HRSDC Student Loan Data Privacy Breach CANADA: HRC Victims Urge NDP Leader to Provide Compensation CITIGROUP: 2nd Cir. to Hear Oral Argument on SEC Policy COMMONWEALTH BANK: New Claimants Participate in Class Action DANIEL ACKER: Faces Sexual Abuse Class Action in Shelby County DELL: Being Sold for Too Little, Suit Claims DIRECTSAT: Class Decertification in Technicians' Suit Upheld DOMINO'S PIZZA: Court Decertifies Delivery Drivers' Class Action FARMERS INSURANCE: Faces Class Action Over Improper Payouts HORIZON BLUE: Makes Fresh Class Action Bid Over Illegal Scheme HYUNDAI: Class Action Over Faulty Veloster Sunroofs Dismissed LG PHILIPS: RD Provides Financing to TFT-LCD Class Suit Attorneys MARRIOTT INT'L: Blind Employee Files Discrimination Class Action ONESOURCE DOCUMENT: Napoli Files Class Action Over Excessive Fees PERVASIVE SOFTWARE: Shareholders File Suit Over Sale to Actian PFIZER INC: Faces Consumer Class Action Over Zoloft PHUMAN SINGH: President Sued For Squandering Company Resources POWER BALANCE: Case Management Conference in Class Suit Postponed RITZ-CARLTON HOTEL: Settles Overtime Class Action for $2 Million SIRIUS XM: Faces Suit in N.Y. For Overcharging Subscribers SNC-LAVALIN GROUP: May 8 Class Action Opt-Out Deadline Set SOIL SOLUTIONS: Class Action Notices Expected in Mid-February UBS AG: 7th Circuit Tosses Class Action Over Tax Evasion UNITED STATES: Faces Suit for Snubbing Alien Citizens Applications UNITED TELEPHONE: Ohio Sup. Ct. Hears Class Action Oral Argument WELLS FARGO: "Brown Suit" Plaintiff May File New Certification Bid WICKHAM SECURITIES: Shareholders Mull Class Action WMS INDUSTRIES: Faces Class Action Over Proposed Acquisition WYNN RESORTS: Gets Favorable Ruling in Kastroll's CAFA Suit * Business Groups Oppose Britain's "Collective Actions" System ********* ADVANCEPIERRE FOODS: Recalls 15,328 Lbs. of Country Fried Steaks ---------------------------------------------------------------- AdvancePierre Foods, an Enid, Oklahoma establishment, is recalling approximately 15,328 pounds of frozen, fully cooked country fried steak products because they may contain foreign materials -- pieces of plastic, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products subject to recall include: * 22.75-oz. pouches of "Fast Classics Country Fried Steaks." * 8.5-lb. cases, each containing six pouches of "Fast Classics Country Fried Steaks." All products were produced on December 21, 2012. The packages bear the establishment number "EST. 2260Y" in the USDA mark of inspection on the front of the package and a "BEST BY" date of March 21, 2014, stamped on a label on the back of the package along with the case code of 1523560202. Pictures of the recalled products' labels are available at: http://is.gd/HA4a8H The products were distributed to one retail chain in Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia and Wyoming. When available, the retail distribution list(s) will be posted on the FSIS Web site at: http://www.fsis.usda.gov/FSIS_Recalls/Open_Federal_Cases/index.asp The firm alerted FSIS after the Company received complaints from two customers who each received an oral injury upon eating the product. The problem was a result of a piece of a plastic bin being introduced into the production process and then being broken into smaller pieces. Anyone concerned about an injury or illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. Consumers with questions about the recall may contact AdvancePierre Consumer Affairs at (855) 328-8888. Media with questions about the recall should contact Jennifer Hutchison, the company's accounts director, at (312) 573-5468 or (630) 258-8752. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from 10:00 a.m. to 4:00 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://is.gd/vlfH9I AMAG PHARMA: 1st Cir. Revives Class Action Over Feraheme Risks -------------------------------------------------------------- Daniel Wilson, writing for Law360, reports that the First Circuit on Feb. 4 revived a putative class action accusing AMAG Pharmaceuticals Inc. and its bank underwriters of misleading investors about the risks associated with iron deficiency treatment Feraheme, ruling the investors had made a reasonable claim that AMAG had failed to disclose relevant information on those risks. The investors are led by Silverstrand Investments LLC, Safron Capital Corp. and Briarwood Investments Inc. AMERICANS FOR RESPONSIBLE LEADERSHIP: Faces Robocall Class Action ----------------------------------------------------------------- Susanna Kim, writing for ABC News, reports that a lawsuit seeking federal class-action status in Colorado is accusing an Arizona non-profit of conducting illegal robocalls to campaign for Mitt Romney during the presidential election. Marlo Edholm, 34, filed a lawsuit with the U.S. District Court in Denver on Feb. 4 against Americans for Responsible Leadership, a non-profit group in Arizona. Ms. Edholm, a recent nursing school graduate from Denver, said she received at least five illegal robocalls to her cell phone from the group. She said the calls are a violation of the Telephone Consumer Protection Act, according to the lawsuit. The law prohibits unsolicited robocalls to cell phones, which can cost the telephone call recipient money for the minutes used. Americans for Responsible Leadership spent millions of dollars last year supporting Republican candidates, including presidential candidate Mitt Romney and opposing ballot initiatives in Arizona. The group's stated purpose on its Web site is to "promote the general welfare of the citizens of the United States of America by educating the public about concepts that advance government accountability, transparency, ethics and related public policy issues." In January, ProPublica said it obtained Americans for Responsible Leadership's application to the Internal Revenue Service for tax- exempt status, which stated that it would not "spend any money attempting to influence the selection, nomination, election, or appointment of any person to any Federal, state, or local public office or to an office in a political organization." Multiple calls to the three men who registered Americans for Responsible Leadership with the IRS were not returned. "The annoyance is getting calls that you haven't asked to receive and you're getting charged for them," said Joseph Mellon, attorney for Ms. Edholm. On Sept. 11, 2012, the Federal Communications Commission published an enforcement advisory in light of the 2012 election season. The advisory reminded campaigns and consumers that pre-recorded voice messages and auto-dialed calls to cell phones and other mobile services, including paging services, are prohibited. The two exceptions are if the calls are made for emergency purposes or with prior express consent. Mr. Mellon said he believes groups representing either party may have used robocalling to campaign during the last election. "This is not a partisan issue," he said. He added that his client was registered to vote, but he is not sure how she may have been targeted to receive a call. "She doesn't fit the profile of a politically active type of person," he said. According to the court case, the calls Ms. Edholm received were said to be from two people, "Olivia" and "Pam," who stated they represented Americans for Responsible Leadership. On Friday, Nov. 2, 2012, she received this pre-recorded message on her cell phone, according to the court document: "Hello, my name Olivia and I'm a volunteer with Americans for Responsible Leadership. I'm calling because I'm worried about our future. Twenty-three million Americans are out of work, we're sixteen trillion dollars in debt, and we borrow four billion dollars a day. It's disappointing, but President Obama's policies haven't worked. That's why I encourage you to vote for Mitt Romney. He has real world business experience and knows how to fix the economy. He can break through the partisan gridlock in Washington because as Governor of Massachusetts, he worked with a legislature that was 90 percent Democrat to reduce the state's debt. Thank you very much for your time. Paid for by Americans for Responsible Leadership and not authorized by any candidate or candidate's committee. www.ARL-national.org." Mr. Mellon said he hopes to learn from the discovery process how many calls were made to cell phones. If the court finds the group conducted illegal robocalls, the lawsuit states that Ms. Edholm "and the other members of the proposed class are entitled to statutory damages of $500.00 for each unlawful robocall and an injunction prohibiting ARL from engaging in similar conduct in the future." BAYER CORP: Class Member Balks at Attorneys' $5.1MM Fee Bid ----------------------------------------------------------- According to Ted Frank of PointofLaw.com, fewer than 20,000 class members have bothered to go through the arduous claim procedures in the Bayer Corp. class action, which caps recovery for most of those class members at $4 unless they saved several-year-old receipts for aspirin products. But the attorneys -- led by Hagens Berman -- are asking for $5.1 million for themselves. The fee is supposedly justified because about $8-$9 million will end up in the hands of cy pres recipients such as the American Heart Association. "Of course, Bayer already gives money to the AHA (and the AHA returns the favor by endorsing Bayer aspirin over other brands of aspirin), so this is really just a change in accounting entries rather than any sort of class benefit," Mr. Frank said. "I'm a class member and I have objected through my pro bono attorney Adam Schulman of the Center for Class Action Fairness (which, as always, is not affiliated with the Manhattan Institute)," Mr. Frank said. The case is In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Pract. Lit., No. 09-md-2023 (BMC) (E.D.N.Y.). CANADA: Committee to Probe HRSDC Student Loan Data Privacy Breach ----------------------------------------------------------------- Kady O'Malley, writing for CBC News, reports that it seems that the camera session on Feb. 5 resulted in a compromise of sorts. According to the just-posted minutes, the committee will indeed embark on an investigation into the student loans privacy breach, but the minister will not be invited to testify. Instead, members will put their questions to the "appropriate departmental officials." Here's the motion: "It was agreed, -- That the Committee invite the Deputy Minister of Human Resources and Skills Development Canada and the appropriate departmental officials to appear before the committee before March 7th, 2013 to explain how the privacy breach at HRSDC affecting 583,000 Canadians occurred, what actions have been taken since to ensure security of personal data throughout the department, and what long term solution for affected Canadians will be put in place to protect their identity." Undaunted, it seems, by the less than enthusiastic response from the government when party privacy critic Charlie Angus attempted to get his colleagues on the privacy committee to support a similar motion earlier last week, the New Democrats aren't ready to abandon their efforts to kickstart a parliamentary inquiry into the recent student loans data breach. On Feb., NDP labour critic Chris Charlton will introduce the following motion at Human Resources: "That the Committee invite Minister Finley to appear before the committee before March 7th, 2013 to explain how the privacy breach at HRSDC affecting 583,000 Canadians occurred, what actions have been taken since to ensure security of personal data throughout the department, and what long term solution for affected Canadians will be put in place to protect their identity." As predicted, the Conservatives lost no time in shutting down public discussion of the motion, on the somewhat abstract grounds that the breach itself is currently the object of a class action, which could theoretically trigger the traditional caution practices when dealing with matters before the courts, as government member and motion mover Colin Mayes was quick to explain. CANADA: HRC Victims Urge NDP Leader to Provide Compensation ----------------------------------------------------------- Marie Slark and Patricia Seth, plaintiffs in a class action lawsuit between the Huronia Regional Centre (HRC) and the province of Ontario, are asking Ontario's Premier-designate, Kathleen Wynne to listen to British Columbia's NDP leader Adrian Dix. On Feb. 5, just weeks in advance of BC's provincial election, Mr. Dix promised that the first thing he would do if elected BC's premier would be to extend compensation for former residents of the now- closed Woodlands School. Many of the residents of this school suffered abuses similar to what Ms. Slark and Ms. Seth endured at HRC. Patricia Seth went to live at HRC when she was just six years old and was not discharged from the institution until 17 years later. Ms. Seth said: "We need Ms. Wynne to do what Mr. Dix has done. Living [at HRC] was like being in jail. We had no freedom. We had no hope." Marie Slark, who resided at HRC from the age of seven until 16 said: "When I lived at Huronia I never had any control of my life. I hated it there. Why won't the new Premier say what Mr. Dix is saying?" Ms. Slark and Ms. Seth are proceeding with a class action lawsuit against the Ontario government to seek justice and compensation for the severe abuse they endured while residing at HRC. HRC opened in 1876, housing people who were deemed to have cognitive and other disabilities. At its peak, more than 2,500 people lived at HRC and by the mid-1970s, the Ontario government operated 16 such facilities. The Liberal government closed the last of these institutions on March 31, 2009. Now, former residents of HRC are seeking justice. However, since the Ontario Superior Court of Justice certified their lawsuit as a class action on July 30, 2010, government lawyers have, on multiple occasions, needlessly delayed the process and progress of the case. These delays have been emotionally devastating for the plaintiffs, many of whom are now elderly. "Many of us will pass away before we see justice," said Ms. Slark. "But we won't give up. It wasn't okay what they did to us." Koskie Minsky LLP is representing the former HRC residents involved in the C$2-billion class action lawsuit against the province of Ontario. The class action alleges residents of HRC suffered inhumane treatment from 1945 until its closure in 2009 and that the province of Ontario failed to properly care for and protect those under its care. CITIGROUP: 2nd Cir. to Hear Oral Argument on SEC Policy ------------------------------------------------------- Thomson Reuters' Alison Frankel reports that the 2nd Circuit Court of Appeals was set to get an earful on Feb. 8 on the Securities and Exchange Commission's policy of permitting defendants to settle SEC cases without admitting to the allegations against them. A three-judge panel was scheduled (snowstorm permitting) to hear oral arguments in the joint appeal by Citigroup and the SEC of U.S. Senior District Judge Jed Rakoff's rejection of their $285 million settlement. Judge Rakoff's controversial decision to squash the deal turned on the SEC's now infamous "neither admit nor deny" policy, which the judge found to be contrary to the public's interest in the "cold, hard, solid facts" of the government's case. Since the November 2011 ruling, the SEC has repeatedly justified its policy as a necessary expedient, both to critics demanding accountability from defendants and to a handful of federal judges who followed Judge Rakoff's lead and questioned "neither admit nor deny" settlements. To call the Feb. 8 appellate consideration of the SEC's policy hotly anticipated is an understatement. But according to a panel of securities lawyers speaking on Feb. 6 at a D&O symposium hosted by the Professional Liability Underwriting Society, there's another SEC practice that also has a major impact on the integrity of the markets: the agency's refusal to share investigative materials with securities class action lawyers until after private plaintiffs' cases have survived defense dismissal motions. Samuel Rudman -- SRudman@rgrdlaw.com -- of Robbins Geller Rudman & Dowd raised the point, and, as you might expect, he complained about the SEC's practice of withholding documents and testimony the agency obtains in investigations, even in response to Freedom of Information Act requests by plaintiffs' lawyers. The surprise came when panel moderator (and defense lawyer) Boris Feldman -- ncarvalho@wsgr.com -- of Wilson Sonsini Goodrich & Rosati agreed with Mr. Rudman that turning over such information to shareholder lawyers would help the SEC police the markets. "If you really wanted to maximize deterrence, you should share information with the plaintiffs bar," Mr. Feldman said. "That would be terrible for me and my clients, but it changes everything right away." That's because of two factors. The SEC can obtain documents and testimony from defendants quickly, but under the Private Securities Litigation Reform Act class action lawyers have to wait until their cases have survived dismissal motions. Class actions, on the other hand, can be much more expensive for defendants to resolve than SEC enforcement actions. Consider the example of Bank of America's alleged misstatements to investors about its merger with Merrill Lynch. BofA settled with the SEC for $150 million in 2010, after Judge Rakoff balked at the original $35 million settlement; the bank had to cough up $2.43 billion in 2012 to settle the securities class action stemming from the merger. So under the current system, Mr. Feldman explained, defendants can delay big-money securities class action claims for years, even if the SEC is concurrently investigating the supposed wrongdoing. Defendants, he said, would have much more to fear if private lawyers were armed with documents and testimony from the government case -- and that fear could deter wrongdoing. Ms. Frankel followed up on Feb. 7 with another member of the PLUS panel, Max Berger -- mwb@blbglaw.com -- of Bernstein Litowitz Berger & Grossman (who, incidentally, negotiated that $2.43 billion BofA settlement for shareholders). Mr. Berger said that, of course, it's not the SEC's job to help shareholders, or their lawyers, win securities class actions, and he wouldn't expect the agency ever to share its work product. He also said that once class actions survive dismissal and plaintiffs are permitted to conduct discovery, shareholder lawyers can obtain material from the SEC (and other government agencies) by serving document requests. But in the crucial early stages of securities class actions, when plaintiffs have to include detailed and specific allegations in their complaints in order to fend off dismissal, the SEC offers no help. "When we really need it is at the pleading stage," Mr. Berger said. "(But) the answer is always going to be, 'This is an ongoing investigation and we can't share materials with you.'" Like Mr. Rudman of Robbins Geller, Mr. Berger said that the SEC routinely denies his firm's FOIA requests. He told Thomson Reuters he doesn't think there's any legal prohibition on the SEC making investigatory information public, although a policy of sharing information with the plaintiffs bar would obviously complicate the SEC's interactions with defendants. Keeping the facts private, after all, is the whole reason defendants want to be able to reach "neither admit nor deny" settlements with the agency. SEC spokesman John Nester sent an e-mail response to Thomson Reuters' questions about the agency's practices on information sharing. He said, "There's no such policy, except that commission rules generally prohibit disclosure of non-public investigative materials to anyone during the course of an investigation or litigation." Plaintiffs' lawyers have the same rights and access as anyone else to information the SEC obtains, Mr. Nester said. Moreover, he said, plaintiffs' lawyers already enjoy the benefit of the SEC's work in enforcement actions. "An SEC action represents the culmination of months or years of painstaking investigation and testimony," Mr. Nester said in the e-mail. "Behind the detailed factual allegations spelled out in an SEC complaint, there is a robust evidentiary record to support our claims. As a result, our complaints are valuable roadmaps for plaintiff counsel that clearly describe the conduct that we believe violates the federal securities laws and the evidence to support those claims." One side note on the Feb. 6 discussion of the SEC policy of refusing to share information with plaintiffs: Judge Rakoff was also on the PLUS panel. Unfortunately for the audience, he avoided opining on any other SEC policies. COMMONWEALTH BANK: New Claimants Participate in Class Action ------------------------------------------------------------ Mark Story, writing for Financial Standard, reports that new claimants will participate in a class action brought against the Commonwealth Bank of Australia over the sale of complex debt instruments by Gloucester Shire Council in New South Wales and self-managed superannuation fund Clurname in the Federal Court last year. Piper Alderman the law firm running the action told Financial Standard on Feb. 7 that new claimants have already emerged following the ads placed in newspapers on Feb. 6, calling for disgruntled investors to come forward, and expects others to follow suit. Piper Alderman partner Amanda Banton said the (open) class action relates to a case of non-disclosure around AUD140 million that (CBA) investors lost on synthetic collateralized debt obligations (CDO) -- one of the catalysts responsible for triggering the GFC. If CBA is found to be in breach of section 192A of the Corporations Act (based on non-disclosure) -- which would ground a case for negligence -- Ms. Banton said there would be implications for CBA licensing, and possible ASIC penalties. It's understood there was significant non-disclosure of the risks associated with the CDOs, and that Piper Alderman is seeking to recover (full) damages for all those investors who suffered financial losses due to the advice provided by CBA to invest (in those CDOs). Anyone who lost money by investing in three specific investments sold by CBA -- Pure Portfolio Notes; Oasis Portfolio Notes; and Palladin Portfolio Notes -- between January 2006 and December 2007 is eligible to join the class action. However, they must register before February 21. CBA is arguing that investors made their own decisions to proceed with the investments based on the material that was provided, and as such plans to defend its position and any other allegations through the courts. Based on a Piper Alderman's experience in a similar case last year -- in which the Federal Court found Standard & Poor's and ABN Amro liable for advice they gave to 13 local councils that bought complex financial instruments -- Ms. Banton expects this class action against CBA in relation to CDOs to take a year to 18 months to complete. DANIEL ACKER: Faces Sexual Abuse Class Action in Shelby County -------------------------------------------------------------- WBRC reports that five people have filed a class action lawsuit against former Shelby County teacher Daniel Acker, Jr. and the Shelby County School Board. The 40-page claim was filed on Feb. 1 in federal court. The lawsuit details sexual abuse claims made by five people. Mr. Acker pleaded guilty last year to sexually abusing half a dozen girls while teaching in the Shelby County School System. One of victims says Mr. Acker fondled her in 1991 when he was her 4th grade teacher. The Shelby County Grand Jury did not indict Mr. Acker. Despite the allegations, the Shelby County School Board allowed Mr. Acker to remain in the classroom. Over the next two decades, Mr. Acker told authorities that he abused multiple female students after the original 1991 complaint. Most recently Mr. Acker was employed as a bus driver. "Among other failures, Acker was allowed to be in situations where he was alone in the classroom, school sponsored events, and school bus with Plaintiffs, and the School Board failed to monitor Acker's interactions with students despite knowing of the allegations raised by Hurt (Lopez) and others in the DHR's finding of reason to suspect child abuse," the lawsuit stated. In the suit, the women blame the Shelby County School Board for allowing Mr. Acker to remain in the classroom, despite seeing a report by the Department of Human Resources that concluded that Mr. Acker abused Lopez in 1991 and that he was a risk to children. The class action claim is calling for monetary damages from Mr. Acker, the School Board and former and current School Board members. DELL: Being Sold for Too Little, Suit Claims -------------------------------------------- Courthouse News Service reports that Dell computer is selling itself too cheaply through an unfair process to Michael Dell, Silver Lake Partners and others, for $13.65 a share or $24.4 billion, shareholders claim in a class action in Chancery Court. DIRECTSAT: Class Decertification in Technicians' Suit Upheld ------------------------------------------------------------ Joseph Celentino at Courthouse News Service reports that a federal judge properly barred satellite technicians from fighting their minimum wage and overtime claims as a class, the 7th Circuit ruled. DirectSat USA provides installation and maintenance services for DirecTV products. The company employs service technicians in the Midwest and Northeast. Technicians are paid for each job they complete, rather than receiving an hourly wage. In several class and collective actions, seeking to represent 2,341 technicians nationwide, workers alleged violations of under the Fair Labor Standards Act and parallel state laws. They claimed that DirectSat compelled technicians to do work for which they were not compensated, such as picking up tools prior to their first service call each day, causing them to work more than 40 hours per week without overtime. U.S. District Judge Barbara Crabb originally certified three subclasses: technicians who under-recorded hours, technicians who were not compensated for work before or after service calls, and technicians whose wages for nonproductive work were calculated improperly. After plaintiffs' lawyers failed to propose a specific litigation plan and method for calculating damages, however, Judge Crabb decertified the subclasses and left the case to proceed as one action with three plaintiffs. That trio settled with DirectSat but later took advantage of a provision to appeal their class decertification. A three-judge panel of the 7th Circuit upheld decertification. If DirectSat had simply forbidden the technicians from lunch breaks, resulting in more than a 40-hour workweek, it would be easy to compute damages, according to the ruling. But DirectSat's piece-rate pay system makes calculation nearly impossible. "Remember that the technicians are paid on a piece-rate system, which implies -- since workers differ in their effort and efficiency -- that some, maybe many, of the technicians may not work more than 40 hours a week and may even work fewer hours; others may work more than 40 hours a week," Judge Richard Posner wrote for the panel. The court shot down a solution proposed by lawyers for the plaintiffs, who called for the testimony of 42 "representative" class members. "To extrapolate from the experience of the 42 to that of the 2341 would require that all 2341 have done roughly the same amount of work, including the same amount of overtime work, and had been paid the same wage," Judge Posner wrote. "No one thinks there was such uniformity." Without uniformity, some class members who worked less overtime would enjoy a substantial windfall from the damages award, while members who worked more overtime could remain largely uncompensated, according to the ruling. Moreover, because most DirectSat workers do not record their hours, they would have to estimate from memory. While this could suffice to some extent, "what can't support an inference about the work time of thousands of workers is evidence of the experience of a small, unrepresentative sample of them," Judge Posner noted. Judge Posner criticized plaintiffs' counsel for failing to propose a reasonable calculation method. "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," he wrote. "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. Essentially they asked the district judge to embark on a shapeless, freewheeling trial that would combine liability and damages and would be virtually evidence-free so far as damages were concerned." Judge Posner added that the class members would be more likely to obtain monetary relief by complaining to the Department of Labor, which enforces the Fair Labor Standards Act. The three named plaintiffs in the appeal were Aaron Espenscheid, Gary Idler and Michael Clay. They were represented by Axley Brynelson LLP. DOMINO'S PIZZA: Court Decertifies Delivery Drivers' Class Action ---------------------------------------------------------------- Cathleen Flahardy, writing for Inside Counsel, reports that Domino's Pizza drivers who sued the company for mishandling their tips were dealt a blow on Feb. 4 by a federal appeals court. The 8th Circuit decertified the class action that 1,600 Domino's Pizza delivery drivers filed, saying they didn't have enough in common for class certification. The court, citing Wal-Mart Stores v. Dukes in its ruling, knocked down a federal court ruling in November 2011 that certified the class. The drivers filed suit against Domino's in Minnesota, claiming the company wrongfully withheld gratuities from them and forced them to share gratuities with other drivers in violation of the Minnesota Fair Labor Standards Act. The class included Domino's drivers who worked for the company in Minnesota from March 6, 2006, to Feb. 28, 2010. The disagreement stemmed from confusion over a delivery charge Domino's first instituted in 2005 for $1 and raised in 2008 to $1.50. While some drivers communicated the charge to customers, other didn't. Additionally, Domino's sometimes told customers about the charge -- when they ordered online, for example -- and other times didn't mention it. By 2009, the company began communicating to some customers that the charge was not a tip for drivers, and eventually, in 2010, it began communicating that message to all customers. The variety of transactions "made it unreasonable for some customers to construe the delivery charge as a payment for personal services, thereby preventing one-stroke determination of a class-wide question," the 8th Circuit wrote on Feb. 4, remanding the case back to the lower court. FARMERS INSURANCE: Faces Class Action Over Improper Payouts ----------------------------------------------------------- Jess Davis, writing for Law360, reports that a Texas man on Feb. 5 launched a $5 million putative class action against Farmers Insurance Group Inc. in federal court, alleging the insurer failed to properly reimburse policyholders who have private health insurance for medical expenses based on a flawed reading of state tort reform laws. Theodore Morawski alleges Farmers and several of its Texas subsidiaries intentionally short car insurance policyholders by reimbursing them for medical expenses at rates lower than their policies provide, in a breach of contract and violation of state insurance laws. HORIZON BLUE: Makes Fresh Class Action Bid Over Illegal Scheme -------------------------------------------------------------- Mary Pat Gallagher, writing for New Jersey Journal, reports that plaintiff lawyers are making another attempt at a class-action suit accusing Horizon Blue Cross Blue Shield of an illegal scheme to cut reimbursements to certain health care providers -- and this time they claim to have a smoking gun. HYUNDAI: Class Action Over Faulty Veloster Sunroofs Dismissed ------------------------------------------------------------- Penny Stacey, writing for glassBYTEs.com, reports that a class- action complaint filed against Hyundai alleging that the company knowingly put consumers at risk by selling Veloster models with faulty sunroofs has been dismissed without prejudice -- less than a month after it was originally filed. The complaint was filed by plaintiffs Linda Palacios, Sonia Palacios and Fernando Palacios and alleged that "Hyundai has actively concealed the exploding sunroof defect from consumers." The stipulation for dismissal was filed on January 25 -- exactly 10 days after the case was filed on January 15 -- and notes that the parties "hereby give notice that they voluntarily dismiss their claims in this action without prejudice." "This dismissal disposes of all claims and all parties in this action," write the plaintiffs. When a case is dismissed without prejudice, it means that "the plaintiff is allowed to bring a new suit on the same claim within the period of limitation it is dismissal without prejudice," according to information from uslegal.com. Generally, when a case is dismissed without prejudice so quickly after being filed, it has been settled, but glassBYTEs.com has not been able to confirm that a settlement was reached in this case. The plaintiffs, who reside in McAllen, Texas, had alleged that Linda Palacios' sunroof shattered around December 4, 2012, while the vehicle was parked, sending shattering glass all over and damaging the vehicle's seats. "The force of the explosion was so great that it bent the metal frame surrounding the sunroof assembly," counsel alleged in the complaint. "By fortunate chance, Mrs. Palacios was not in the car when the sunroof exploded." Plaintiffs further contended that upon taking the vehicle to a Hyundai dealer for repair they were told that there wasn't a known issue with the Veloster sunroofs and the "repair may not be covered under warranty." The Palacios also alleged that the "dealership offered to replace the sunroof but only with an identical part, presumably containing the identical dangerous defect." At press time, counsel for the Palacios had not yet responded to requests for comment on the details of the dismissal. LG PHILIPS: RD Provides Financing to TFT-LCD Class Suit Attorneys ----------------------------------------------------------------- Fees have been recommended for the attorneys in the class action suits against Asian companies accused of conspiring to bilk US customers out of billions of dollars in the sale of TFT-LCD panels, technology developed in the US. Plaintiffs in the case claim that the companies and their US subsidiaries conspired to raise and fix the prices of thin film transistor liquid crystal display (TFT-LCD) panels. Considered to be the most important technological advance of the 20th century, TFT-LCD panels were developed at Westinghouse and RCA's US Research and Development laboratories. Since 2001, one of the three engineers credited for developing the technology, Fang-Chen Luo, has been the head of research and development at Taiwan-based AU Optronics (AUO), a principal defendant in the anti-trust litigation. Class actions were brought against the conspirators on behalf of individuals and businesses who purchased TFT-LCDs directly and indirectly from the Defendants. Now that settlement amounts have been finalized, RD Legal Funding, LLC is providing immediate financing to the plaintiff's attorneys involved in the litigation. Worldwide, since 2011, over 9.4 billion electronic devices using TFT-LCD technology have been in use, more than the world's population of 7 billion. The panels are used in computer monitors and notebooks, televisions, mobile phones, and other electronic devices. Bernard J. Lechner developed the transistor-capacitor addressing circuit which is used in today's active-matrix LCDs at RCA Laboratories in 1969. This invention started the race to construct a flat television that could hang on the wall. Working at Westinghouse during the 1970s, Peter Brody and Dr. Luo extended Mr. Lechner's active matrix work, and, based on CdSe TFT technology developed by Brody during the 1960s, produced the first LCDs employing an integrated array of TFTs. In 1974 Dr. Luo demonstrated the world's first TFT-LCD panel at Westinghouse. In 1996, Dr. Luo joined AUO as the head of research and development. One of the principal companies named in a US Department of Justice's (DOJ) Sherman Antitrust suit, AUO is the world's third largest producer of large-sized TFT-LCD panels; second largest manufacturer of TFT-LCD panels for digital cameras; and third largest manufacturer of panels for digital video camcorders and in-car displays. AUO's Web site reports that in 2011 the company earned $12.5 billion in total sales revenue. The DOJ charged AUO Taiwan and its US subsidiary with conspiring from 2001 through 2006 to fix prices world-wide for TFT-LCD panels at secret monthly meetings in Taiwan hotels, karaoke bars, and tea rooms with co-conspirators including LG Philips, Samsung, Chunghwa, Chi Mei, and HannStar. Dr. Luo was not named in the suit. AUO chose to test the Antitrust Division's case rather than plead guilty. In September 2012, AU Optronics was found guilty and fined $500 million. AU Optronics, Toshiba, and LG agreed to pay a combined $571 million settlement for one of the class action lawsuits filed by customers, retailers, and consumers. Other manufacturers including Hitachi, Sharp, and Samsung, agreed in December 2011 to pay $538 million to settle their suits. TFT-LCD Antitrust Litigation attorneys are urged to contact RD Legal at 1-800-565-5177 or go to legalfunding.com/solutions for more information about immediate post-settlement financing. For well over a decade, RD Legal has been one of the nation's leading providers of attorney post-settlement financing. MARRIOTT INT'L: Blind Employee Files Discrimination Class Action ---------------------------------------------------------------- Stewart Bishop, writing for Law360, reports that a blind Marriott International Inc. employee lodged a putative class action in California federal court on Feb. 6 alleging the company discriminates against blind and disabled employees by using inaccessible software that keeps them from management positions. Ali Faraj, an event billing specialist with Marriott, contends that he's been excluded from advancing to a management position because Marriott refuses to configure or modify its Siebel Customer Relation Management software so that disabled employees like Mr. Faraj, who uses screen-reading software, can work as managers. ONESOURCE DOCUMENT: Napoli Files Class Action Over Excessive Fees ----------------------------------------------------------------- On February 5, 2013, the law offices of Napoli Bern Ripka Shkolnik, LLP filed a class action complaint against OneSource Document Management Inc. for overcharging patients seeking access to their medical records. OneSource operates in the medical records field and partners with health care providers to deliver records to patients, attorneys, and insurance companies. The class alleges OneSource violated New York State laws by charging patients in excess of the statutory limits that may be charged by health care providers. The class representative was improperly charged 280% more per page than allowed under New York State law. In addition to the improper cost per page, the complaint alleges that clients were charged excessive processing fees and mailing costs. In sum, the class representative was charged nearly $50 in total for three pages of medical records. New York State has enacted legislation to protect patient access to their medical records regardless of their ability to afford the retrieval costs. The class seeks OneSource's compliance with New York State law and the return of all improperly charged costs and fees to class members. PERVASIVE SOFTWARE: Shareholders File Suit Over Sale to Actian -------------------------------------------------------------- Courthouse News Service reports that Pervasive Software is selling itself too cheaply through an unfair process to Actian, for $9.20 a share or $162 million, shareholders claim in Travis County Court. PFIZER INC: Faces Consumer Class Action Over Zoloft --------------------------------------------------- The National Law Journal reports that plaintiffs' attorneys have filed a class complaint on behalf of millions of consumers of Zoloft, alleging they were misled about the effectiveness of the prescription antidepressant. The suit is the first consumer class action filed over Zoloft, according to Baum, Hedlund, Aristei & Goldman, which has filed similar consumer class actions over the drugs Paxil, Celexa and Lexapro. PHUMAN SINGH: President Sued For Squandering Company Resources -------------------------------------------------------------- Chandrashekhar Gowda, on behalf of Himself as a Shareholder of 2735 Indus Inc., and the Right of 2735 Indus Inc., and on behalf of All other Shareholders of Said Corporation Similarly Situated v. Phuman Singh, Lakhvir Singh and 2735 Indus Inc., Case No. 151232/2013 (N.Y. Sup. Ct., February 8, 2013) accuses Phuman Singh of causing excessive expenses to be incurred so as to prevent any dividends from being paid to the Plaintiff. Phuman Singh failed to perform his duties imposed upon him as director and officer of the Company in that he did not give proper care or oversight to the business and affairs of the Company, Mr. Gowda alleges. Mr. Gowda adds that Phuman Singh did not administer the affairs of the Company in a skillful, careful and diligent manner, but on the contrary, neglected, suffered and permitted monies, property and effects of the Company to be taken, wasted and squandered. Mr. Gowda is a resident of the county of Queens, New York. He owns 25% of the Company, and is the vice-president and secretary of the Company. 2735 Indus Inc. is a closely held domestic corporation, which was incorporated in the state of New York. The Company operated a restaurant located in Broadway, New York, doing business as Amla. Phuman Singh is a resident of New York and owns 75% of the Company. He is the president and treasurer of the Company. Lakhvir Singh is a resident of New York. The Plaintiff is represented by: Avish Dhaniram, Esq. Pitchayan & Associates, P.C. 72-30 Broadway, 3rd Floor Jackson Heights, NY 11372 Telephone: (718) 478-9272 E-mail: info@pitchayanlaw.com POWER BALANCE: Case Management Conference in Class Suit Postponed ----------------------------------------------------------------- District Judge Edward M. Chen vacated an upcoming case management conference slated for Feb. 14 in the lawsuit, C.F.C., minor, by and through CHRISTINE F., his parent and guardian, on behalf of himself and all others similarly situated, Plaintiff, v. POWER BALANCE LLC; a Delaware Limited Liability Company, Defendants, Case No. 3:11-CV-00487-EMC (N.D. Calif.). The Plaintiff filed the request to vacate. According to the Plaintiff's counsel, the Plaintiff is informed by Garrick Hollander of the law firm Winthrop Couchot, counsel for Power Balance, which is in bankruptcy, that (1) Power Balance is currently preparing a Disclosure Statement; (2) a hearing regarding the Disclosure Statement is set for March 2013; and (3) a hearing regarding confirmation of the Debtor's Chapter 11 Plan of Reorganization is expected to take place in May or June 2013. The Plaintiff proposed that the case management conference be held after June 2013, which is the expected date for the hearing regarding Power Balance's Chapter 11 Plan. Attorneys for Plaintiff, C.F.C., a minor, by and through, Christine F., his parent and guardian, are: Mark N. Todzo, Esq. Howard Hirsch, Esq. LEXINGTON LAW GROUP San Francisco, CA E-mail: mtodzo@lexlawgroup.com - and - Christopher M. Burke, Esq. SCOTT + SCOTT LLP San Diego, CA E-mail: cburke@scott-scott.com A copy of the Court's Feb. 5 order is available at http://is.gd/EQJdWpfrom Leagle.com. About Power Balance Technologies Power Balance LLC filed for Chapter 11 (Bankr. C.D. Calif. Case No. 11-25982) on Nov. 18, 2011. Judge Theodor Albert presides over the case. Garrick A. Hollander, Esq., at Winthrop Couchot, serves as the Debtor's counsel. In its petition, Power Balance estimated $1 million to $10 million in assets and $10 million to $50 million in debts. The petition was signed by Henry G. Adamanym, Jr., chairman. Power Balance -- http://www.powerbalance.com-- is the creator of the original Power Balance Performance Technology(TM) silicone wristband and the leader in the market for Performance Technology sports accessories. The company is headquartered in Orange County, CA and distributes its products in the US and internationally in more than 40 countries. RITZ-CARLTON HOTEL: Settles Overtime Class Action for $2 Million ---------------------------------------------------------------- Bill Donahue, writing for Law360, reports that Marriott International Inc. subsidiary The Ritz-Carlton Hotel Co. LLC will pay $2 million to settle claims that it underpaid overtime wages to thousands of California employees, according to court documents filed on Feb. 1. Ritz-Carlton will pay out to roughly 1,500 current and former employees at three luxury hotels in San Francisco, Half Moon Bay and Lake Tahoe, putting to rest allegations that the chain violated California state wage and hour laws by skimping on overtime. SIRIUS XM: Faces Suit in N.Y. For Overcharging Subscribers ---------------------------------------------------------- Courthouse News Service reports that Sirius XM Radio overcharges "certain of its subscribers" in violation of contract, a class action claims in New York County Supreme Court. SNC-LAVALIN GROUP: May 8 Class Action Opt-Out Deadline Set ---------------------------------------------------------- This notice is directed to all persons, wherever they may reside or be domiciled, who acquired securities of SNC-Lavalin Group Inc. during the period from and including November 6, 2009 to and including February 27, 2012, other than certain excluded persons associated with the defendants. THE CERTIFICATION ORDERS On September 19, 2012, Justice Perell of the Ontario Superior Court of Justice certified the action The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund, et al. v SNC-Lavalin Group Inc., et al., Court File No. CV-12-453236-00CP as a class proceeding, and appointed the Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund and 0793094 B.C. Ltd. as representative plaintiffs. On January 24, 2013, Justice Francoeur of the Quebec Superior Court authorized the action Delaire v SNC-Lavalin Group Inc., et al., Court File No. 200-06-000141-120 as a class proceeding, and appointed Jean-Paul Delaire as representative plaintiff. The Ontario Action has been certified on behalf of the following class: all persons, wherever they may reside or be domiciled, who acquired securities of SNC during the Class Period, except for: (1) SNC's past and present subsidiaries, affiliates, officers, directors, legal representatives, heirs, predecessors, successors and assigns, and any spouse or child of the defendants Ian A. Bourne, David Goldman, Patricia A. Hammick, Pierre H. Lessard, Edythe A. Marcoux, Lorna R. Marsden, Claude Mongeau, Gwyn Morgan, Michael D. Parker, Hugh D. Segal, Lawrence N. Stevenson, Gilles Laramee, Michael Novak, Pierre Duhaime, Riadh Ben A‹ssa and Stephane Roy; and (2) those persons who are members of the class authorized in the Quebec Action, as described in the next paragraph. The Quebec Action has been authorized on behalf of the following class: all persons who acquired securities of SNC during the Class Period, who were resident or domiciled in the Province of Quebec at the time they acquired such securities, and who are not precluded from participating in a Quebec class action by virtue of Article 999 of the Quebec Code of Civil Procedure, except for the Excluded Persons. Under Article 999 of the Quebec Code of Civil Procedure, a Class Member that is a legal person established for a private interest, partnership or association is part of the class authorized in the Quebec Action only if, at all times during the period from March 1, 2011 to February 29, 2012, not more than 50 persons bound to it by contract of employment were under its direction or control, and if it is dealing at arms length with the representative of the group. Persons excluded from the class in the Quebec Action by virtue of Article 999 are included in the class in the Ontario Action. The certification and authorization orders mean that the Ontario Action and the Quebec Action may proceed to trial as class actions involving claims under securities legislation described below for damages for misrepresentations in SNC's disclosure documents. Certification and authorization are preliminary procedural matters. The merits of the claims in the actions, or the allegations of fact on which the claims are based, have not been finally determined by the courts. The defendants deny that the claims in the actions have merit. THE LEAVE ORDERS On September 19, 2012, Justice Perell of the Ontario Superior Court of Justice also granted leave to the plaintiffs in the Ontario Action to commence an action under the secondary market liability provisions of the Ontario Securities Act and the analogous provisions of the securities legislation of each other Canadian jurisdiction. On January 24, 2013, Justice Francoeur of the Quebec Superior Court also granted leave to the plaintiff in the Quebec Action to commence an action under the secondary market liability provisions of the Quebec Securities Act. The only claims being pursued in the class actions are misrepresentation claims under the secondary market liability provisions of the Securities Act of each Canadian province and territory. These claims are subject to damages caps, which limit the amount of damages that can be recovered from the defendants. Plaintiffs' class counsel believe that the potential total damages for the matters alleged in this case may exceed the damages caps. If you wish to pursue other claims against the defendants relating to the matters at issue in the class actions, you should immediately seek independent legal advice because these other claims will be compromised if you do not opt out. See "Additional Information" for how to access the claims and the certification orders setting out the matters at issue in the class actions. DO NOTHING IF YOU WANT TO PARTICIPATE IN THE CLASS ACTIONS Class Members who want to participate in the Ontario Action and the Quebec Action are automatically included and need not do anything at this time. YOU MUST OPT OUT IF YOU DO NOT WANT TO PARTICIPATE IN THE CLASS ACTIONS Class Members who do not want to participate in the class actions must opt out. If you want to opt out of the class actions, you must send a signed letter stating that you elect to opt out of the class in the SNC class actions and provide the additional information. In order for your opt out request to be valid, it must include all of the following information: (i) the date(s) on which you purchased and sold SNC securities; (ii) the number of securities purchased and sold; (iii) the price at which you purchased and sold SNC securities; and (iv) your name, address, telephone number and signature. If you are submitting an opt out request on behalf of a corporation or other entity, you must state your position and provide your authority to bind the corporation or entity. Your opt out request may be sent by fax or mail to: NPT RicePoint Class Action Services Re: SNC-Lavalin Group Inc. Securities Litigation P.O. Box 3355 London, ON N6A 4K3 Canada Fax: (519) 432-6544 In order for your opt out request to be valid, it must be postmarked or received no later than May 8, 2013 and it must contain all the requested information. Each Class Member who does not opt out of the class actions will be bound by the terms of any judgment or settlement, whether favorable or not, and will not be allowed to prosecute an independent action against any of the defendants for any of the factual matters raised in the class actions. If the class actions are successful, you may be entitled to share in the amount of any award or settlement recovered. In order to determine if you are entitled to share in the award or settlement and the amount, if any, of your share, it may be necessary to conduct an individual determination. There may be costs payable by you if it is determined that you are not entitled to share in the award or settlement. You will have the opportunity to decide if you wish to proceed with your individual determination before it begins. No person may opt out a minor or a mentally incapable member of the class without permission of the courts after notice to The Children's Lawyer and/or the Public Guardian and Trustee, as appropriate. A Class Member who opts out will not be entitled to participate in the class actions and will not be entitled to share in the amount of any award, if the class actions are successful, or in any settlement achieved, if any. CLASS COUNSEL AND LEGAL FEES The plaintiffs and the class in the Ontario Action are represented by Siskinds LLP and Rochon Genova LLP. The plaintiffs and the class in the Quebec Action are represented by Siskinds, Desmeules, Avocats. In the Ontario Action, Siskinds LLP and Rochon Genova LLP are acting on a contingency basis, such that legal fees, disbursements and applicable taxes will be payable only in the event of success in the Ontario Action. Siskinds LLP and Rochon Genova LLP are also paying all disbursements incurred in the Ontario Action. In the event of success in the class actions, class counsel will make a motion to the courts to have their fees and disbursements approved. As a Class Member, you will not be required to pay any costs in the event that the class actions are unsuccessful. ADDITIONAL INFORMATION This notice was approved by the Ontario Superior Court of Justice and the Quebec Superior Court. The court offices cannot answer any questions about the matters in this notice. The claims, orders of the courts and other information are available on class counsel's Web sites at http://www.classaction.caand http://www.rochongenova.com NOTICE TO BROKERAGE FIRMS Please deliver this notice promptly by e-mail to your clients who purchased SNC securities during the Class Period and for whom you have valid e-mail addresses. If you have clients who purchased SNC securities during the Class Period for whom you do not have valid e-mail addresses, please contact NPT RicePoint Class Action Services to obtain hard copies of this notice for the purpose of mailing the notice to those clients or provide to NPT RicePoint the mailing address for those clients so they can mail the notices directly to those clients. Brokerage firms may cumulatively request up to $15,000 in total for the expenses incurred relating to the distribution of this notice to the Class Members. If the amounts submitted in aggregate exceed $15,000, each brokerage firm's claim shall be reduced on a pro rata basis. The publication of this notice was authorized by the Ontario Superior Court of Justice and the Quebec Superior Court SOIL SOLUTIONS: Class Action Notices Expected in Mid-February ------------------------------------------------------------- Tim Vandenack, writing for The Elkhart Truth, reports that a federal judge's decision granting class-action status to a lawsuit aimed at shuttering the Soil Solutions wood recycling facility doesn't change the issues underlying the simmering dispute. The latest version of the suit, filed by neighbors living around the facility last October, still maintains that smoke, dust and other emissions from the operation cause health problems and pose an environmental threat. Soil Solutions, which filed its response late last week, still denies any wrongdoing. With newly granted class-action status, though, the number of plaintiffs theoretically spikes, from the 151 named in the original suit when first filed October 2009 up to 1,748, the number estimated to live in the broader class area outlined in court papers. Marianne Holland, spokesman for the Hoosier Environmental Council, said Tuesday, Feb. 5, that a notice will be sent by around mid-February to the 1,700 or so people, explaining the case. They'll be able to stay in the case as plaintiffs, or, if they choose, to opt out. A Hoosier Environmental Council lawyer, Kim Ferraro, is handling the case for the neighbors. The neighbors filed their suit in U.S. District Court in South Bend, initially against VIM Recycling, long a focus of attention -- and ire at times -- of environmental officials and people living around the plant. VIM later sold the operation to Soil Solutions and the case was expanded to include the new firm. The case has taken twists and turns, and the latest major development came Jan. 29, when District Judge Philip Simon granted class-action status to the case, as sought by the plaintiffs. With his ruling, the number of plaintiffs may grow to include those living in an area around the facility bound by the St. Joseph River to the north, Old U.S. 33 to the south, Ash Road to the west and Chanel View and Elliot Park to the east. The plant is located west of Elkhart off Old U.S. 33. In his ruling, Judge Simon cited plaintiffs' estimates that there are 644 households in the class area around the company and 1,748 people. For purposes of the lawsuit, the plaintiffs -- if the case is ultimately decided in their favor -- seek compensation for property damage caused by the wood grinding operation, according to Holland. The plaintiffs also ask that the wood recycling business be closed down. Contacted on Feb. 5, Stacy Petrovas, one of the Soil Solutions owners, reiterated company defenders' contentions that the operation doesn't pose a risk. "We are completely different than VIM and we haven't done the things we're accused of," he said. The firm operates within Indiana environmental norms, Mr. Petrovas said, and it has the proper permits. Furthermore, the width of roadways between wood heaps on company grounds fall within Indiana guidelines, as do the sizes of the piles, previous points of contention with Indiana authorities when VIM operated the facility. Soil Solutions asks that the case be dismissed. The Old U.S. 33 operation takes scrap wood from area manufacturers and grinds it into mulch and animal bedding. UBS AG: 7th Circuit Tosses Class Action Over Tax Evasion -------------------------------------------------------- The Litigation Daily reports that Seventh Circuit Judge Richard Posner has tossed a proposed class action against UBS AG stemming from the bank's admission that it helped wealthy customers evade taxes. Judge Posner likened the suit to "suing one's parents to recover tax penalties one has paid, on the ground that the parents had failed to bring one up to be an honest person who would not evade taxes and so would not subject himself to penalties." UNITED STATES: Faces Suit for Snubbing Alien Citizens Applications ------------------------------------------------------------------ Courthouse News Service reports that The Department of Homeland Security, Citizenship and Immigration Services refuses to do its nondiscretionary duty to accept, and adjudicate, admitted aliens' applications for adjustment of status, a class action claims in Federal Court. UNITED TELEPHONE: Ohio Sup. Ct. Hears Class Action Oral Argument ---------------------------------------------------------------- Bricker & Eckler LLP reports that the Ohio Supreme Court heard oral argument on Feb. 6 in the potentially landmark Ohio class action case Stammco v. United Tel. Co. of Ohio, Ohio Supreme Court Case No. 2012-016912-0169. Bricker & Eckler has previously discussed the facts of this case, the appellants' merit brief and the appellees' merit brief. Briefly, Stammco alleges that Sprint engaged in the practice of "cramming," or causing unauthorized charges to be placed on their customers' telephone bills. The proposed class includes Stammco and other Sprint customers who were subjected to these allegedly unauthorized charges. This case has been pending for more than eight years and has already made one trip to the Ohio Supreme Court. In Stammco's first trip to the Ohio Supreme Court in March 2010, the Court reversed class certification, holding that the class as defined was ambiguous and not readily identifiable. The Court then remanded the case, tasking the trial court with redefining the class. On remand, the trial court denied class certification, holding that: (1) plaintiffs' revised class definition was failsafe, (2) the action was brought against the wrong party, and (3) the action imposed a duty on UTO and Sprint that was not required by law. The Sixth District Court of Appeals reversed, relying on Ojalvo v. Bd. Of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 466 N.E.2d 875, holding that any consideration of merits issues in deciding class certification is erroneous. At oral argument, Michael Farrell for appellant Sprint argued that the class definition -- even if no longer ambiguous -- still results in an unidentifiable class. He explained that ambiguity and identifiability are related -- but distinct -- issues. His example was this: a class definition that includes all people who visited Columbus in 2012 is not ambiguous, but it is, nonetheless, impossible to identify every single person who entered the city of Columbus in a given year. An unambiguous, yet unidentifiable class. Here, Mr. Farrell noted, determining whether a particular charge was "authorized" is a complicated question that has, in the named plaintiff's case, taken two depositions and written discovery to determine -- and it is still an open question. Further, Mr. Farrell noted that if the class is not certified, customers do have a remedy in small claims court. Dennis Murray for appellee Stammco argued that the trial court here improperly made two critical merits determinations, which he says is prohibited by the Court's precedent. Mr. Murray also distinguished the U.S. Supreme Court's recent WalMart v. Dukes case, noting that Dukes was decided in the employment context and involved thousands of individual employment decisions. When asked by Justice Lanzinger whether any prior cramming cases had been certified across the country, Mr. Murray responded that the only certified cases were in the context of a settlement. Mr. Farrell, on the other hand, noted that no contested cramming cases have been certified. Finally, Mr. Murray argued that the class is identifiable by simply reviewing Stammco's records. Stammco's records, he says, will demonstrate who was charged, which customers complained and each instance in which a charge was reversed. This information can then be crunched by statisticians to determine how many customers likely had unauthorized charges on their bills. Mr. Murray further pointed to an FCC investigation in which Sprint purportedly admitted that its records would reflect which customers were overcharged and refunded. In his rebuttal, Mr. Farrell objected to the use of a statistical sample to determine liability, noting that such a procedure violates the due process rights of both the defendant and absent class members. Further, he challenged the Court to clarify its decision in Ojalvo in light of the Dukes case with regard to when a trial court can consider merits issues in a class action context. Justice Pfeiffer had the last word, noting that the Court "accepted the challenge." WELLS FARGO: "Brown Suit" Plaintiff May File New Certification Bid ------------------------------------------------------------------ In the putative class action captioned ANTHONY BROWN, on behalf of himself Civil and all others similarly situated, Plaintiff, v. WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., Defendants, No. 11-1362 (JRT/JJG), (D. Minn.), the Plaintiff obtained court approval to file a new motion for class certification. In his complaint, Mr. Brown alleged that Wells Fargo violated the Electronic Fund Transfers Act, 15 U.S.C. Sections 1693a et seq. On July 25, 2012, the Court issued an order holding that as matter of law, Wells Fargo Bank failed to provide "prominent and conspicuous [fee] notice" on its ATMs, and it therefore granted summary judgment to Mr. Brown on his claim that Wells Fargo Bank violated the EFTA. The Court further found, however, that Mr. Brown had not defined a certifiable class that met the requirements of Fed. R. Civ. P. 23, and it denied his motion for class certification. Accordingly, Mr. Brown requested for permission to file a second motion for class certification. Because final judgment has not been entered and because Mr. Brown seeks to address deficiencies noted in the Court's July 25 order, the Court granted Mr. Brown's request to file a new motion for class certification, District Judge John R. Tunheim ruled. Judge Tunheim directed Mr. Brown to file his motion within 30 days of the date of the Court's Order. A copy of the District Court's February 7, 2013 Order is available at http://is.gd/osmGIgfrom Leagle.com. Counsel for Plaintiff: Curtis P. Zaun, Esq. Minneapolis, MN Counsel for Defendants: Shari L. J. Aberle, Esq. Erin A. Collins, Esq. James K. Langdon, Esq. Kenneth J. Connelly, Esq. DORSEY & WHITNEY, LLP Minneapolis, MN E-mail: aberle.shari@dorsey.com collins.erin@dorsey.com langdon.jim@dorsey.com WICKHAM SECURITIES: Shareholders Mull Class Action --------------------------------------------------- Bridie Jabour, writing for Brisbane Times, reports that shareholders may launch a class action against an investment fund which went into liquidation owing AUD27 million to more than 300 self-funded retirees. Shine Lawyers are investigating Wickham Securities and one of its trustees, Sandhurst Trustees Limited, for a possible class action on behalf of shareholders. Wickham Securities went in liquidation on Feb. 6 with the potential for investors to get back as little as 6 per cent of the money they put into the company. Shine Lawyers department manager of professional negligence and shareholder action Jan Saddler said the firm was investigating the company and trustee on behalf of some investors. "One of the things that we're looking at is whether or not that trustee was in breach of any duties or obligations it owed the holders," she said. She said they were investigating whether the Corporations Act was breached and at the moment the investigation was quite broad. "[Thurs]day and [Fri}day we've been taking many calls from people and [Fri]day we've spoken to in excess of 20 people who are wanting to sign up and become clients of Shine while we're investigating this," she said. "They want to be part of anything related to a possible action and we've got 15 or 20 other people to call." Shine Lawyers triggered their own investigation after Wickham Securities started going into administration but said they had no date for when a potential class action would be launched. "It's still some time away and I couldn't possibly put an estimate on when that would be," Ms. Saddler said. Wickham Securities is a mortgage finance lender which provided funds for borrowers buying or refinancing commercial property. The day after Wickham Securities was put into administration, the Australian Securities and Investment Commission launched legal action against its chairman Brad Sherwin, who ran the company with his brother-in-law Peter Siemons. Mr. Sherwin's assets include a string of private companies and his wife's stake in a four-year-old racehorse named Boomalicious. The corporate regulator has alleged Mr. Sherwin misled investors and made false representations. During the same week, Mr. Sherwin was hospitalized. WMS INDUSTRIES: Faces Class Action Over Proposed Acquisition ------------------------------------------------------------ Todd J. Behme, writing for Crain's Chicago Business, reports that a shareholder has filed a class-action lawsuit over the planned acquisition of slot machine maker WMS Industries Inc., alleging that the deal process was designed to ensure terms were preferential for WMS board members but bad for public WMS stockholders. Investor Audrey Gardner alleges that the proposed deal "is the product of a fundamentally flawed process that yielded an unfair price and was designed to ensure the acquisition of WMS by Scientific Games on terms preferential to Scientific Games and WMS' board members, but detrimental to (Ms. Gardner) and the other public stockholders of WMS," according to a complaint filed on Feb. 5 in Cook County Circuit Court. Ms. Gardner also alleges that the proposed acquisition "contains certain deal-protection provisions that essentially preclude superior competing proposals" for Waukegan-based WMS, according to the complaint. Ms. Gardner's complaint says the $26-per-share price "drastically undervalues (WMS') prospects and is the result of an entirely unfair sales process." WMS representatives did not immediately return messages on Feb. 6. The suit names as defendants WMS, New York-based Scientific Games and WMS' directors, including Chairman and CEO Brian Gamache. Lawyers for Ms. Gardner also did not immediately return messages on Feb. 6. Law360 reported the case on Feb. 5. WYNN RESORTS: Gets Favorable Ruling in Kastroll's CAFA Suit ----------------------------------------------------------- District Judge Lloyd D. George granted, without prejudice, Wynn Resorts, Ltd.'s motion for summary judgment in KANE KASTROLL, etc., Plaintiff, v. WYNN RESORTS, LTD, Defendant, No. 2:09-cv- 2034-LDG-VCP, (D. Nev.). The Court found that Wynn has shown by a preponderance of evidence that an overwhelming majority of Ms. Kastroll's putative class are, or would be, citizens of Nevada, requiring the court to decline to exercise subject matter jurisdiction. The putative class action, filed pursuant to the Class Action Fairness Act, alleged that Wynn Resorts failed to provide its employees a safe workplace environment because the levels of second hand smoke at Wynn Las Vegas Resort and Casino are dangerous and unhealthy. Ms. Kastroll, a full-time blackjack dealer at the Wynn, filed the case on behalf of "[a]ll former, current, and future nonsmoking employees of the WYNN LAS VEGAS who were, are, or in the future will be exposed to unsafe levels of second-hand smoke." Future employees included "any out-of-state job applicant for a casino position at the Wynn." A copy of the District Court's February 6, 2013 Order is available at http://is.gd/Z7gFqmfrom Leagle.com. * Business Groups Oppose Britain's "Collective Actions" System -------------------------------------------------------------- Andrew Longstreth, writing for Reuters, reports that a groundbreaking proposal in Britain making it easier to bring antitrust class actions has business groups worldwide fearful that London will become a center for litigation abuses. Britain's government recently proposed a system of "collective actions" that would allow individuals and businesses be part of a class of plaintiffs even if they do not participate in the lawsuit. The proposal, which has yet to be drafted into legislation, would make it easier for individuals and small businesses to recoup damages from price-fixing cases. The proposal would move Britain closer to the American class- action system, which Europeans have long resisted and derided for what they call its excesses. Under the current system in Britain, all members of a collective action must actively opt into a case and participate. The government said changes are needed because it has become too costly to bring private lawsuits alleging anti-competitive behavior. "What is needed from government is to create the legal framework that will empower individual consumers and businesses to represent their own interests," wrote Britain's business minister Vince Cable in a paper outlining the government's proposal. Mr. Cable, a Liberal Democrat in Conservative Party Prime Minister David Cameron's coalition government, is seen as a champion of the average citizen and a critic of the financial sector. Mr. Cameron has not publicly commented on the proposal. Business groups in Britain and abroad have already lambasted the proposal. Confederation of British Industry Chief Policy Director Katja Hall said in a statement the government's proposal had "let the litigation genie out of the bottle by adopting U.S.-style collective actions." The U.S. Chamber of Commerce Institute for Legal Reform echoed those concerns in a statement, predicting it would bring Britain closer to the "toxic U.S.-style litigation culture" and that it would burden business and hurt consumers. Between 2005 and 2008, there were only 41 antitrust cases of any kind that reached a judgment, according to the British government. By contrast, there were 677 private antitrust lawsuits filed in the United States last year alone, according to statistics compiled by the Administrative Office of the United States Courts. The government stressed it wanted to guard against "frivolous or unmeritorious litigation." The proposal would not allow two basic features of the American class-action antitrust practice: contingency fees which allow plaintiffs' lawyers to earn around a third of damages collected in many lawsuits; and treble damages which automatically triple damages under U.S. antitrust law. Taking away those elements will make Britain "less attractive" to some American trial lawyers thinking of moving to London, said Jon Lawrence, a litigator at the London corporate law firm Freshfields Bruckhaus Deringer. The proposal also keeps Britain's "loser pays" rule that makes those who bring unsuccessful cases pay the other side's costs. Few small businesses will want to risk losing, said Robert Lande, a law professor at the University of Baltimore School of Law who specializes in antitrust. Another element of the British proposal that could discourage American class-action attorneys is a judicial test to assess the adequacy of the representative plaintiff, said Vincent Smith, a partner at the London law firm Sheppard & Smith. The goal of the provision, according to the government, is to prevent unmeritorious lawsuits from going forward. American class-action attorneys who are used to choosing their own clients without a high degree of scrutiny will have to be prepared to change how they operate, Mr. Smith said. Many have described the British government's proposal as a radical departure from the current system, and some lawyers said they expect the government eventually to take more steps to make the system friendlier to plaintiffs. Michael Hausfeld, one of a few American plaintiffs' lawyers with operations in London, said he was "cautiously optimistic" about business opportunities for his firm under the plan. Mr. Hausfeld played down the prohibition against contingency fees and treble damages. He noted that Britain allows for plaintiffs to collect interest on damages accrued prior to a judgment, which could help make up for the lack of treble damages. He also noted that under Britain's rules, successful lawyers can seek a multiplier of their regular hourly fees. ********* 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, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. 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