/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130311.mbx C L A S S A C T I O N R E P O R T E R Monday, March 11, 2013, Vol. 15, No. 49 Headlines ASSISTED LIVING: Being Sold to TPG for Too Little, Suit Claims BUMBLE BEE: Recalls Chunk White Albacore & Light Tuna Products BURGER KING: $19-Mil. "Vallabhapurapu" Suit Deal Funded in Dec. CALIFORNIA: Race-Based Arrest Can't Proceed as Class, Judge Rules CALIX INC: Continues to Defend Occam Acquisition-Related Suit CARGILL INC: Recalls Select Mineral Product Used in Ruminant Feed CARIBBEAN CRUISE: Faces Class Action Over Bogus "Free Cruises" CHINESE DAILY: 9th Circuit Reverses Class Certification ELBIT IMAGING: Faces NIS240-Mil. Class Action in Israel EXPERIAN INFORMATION: Objectors Want to Overturn $45MM Settlement GNC HOLDINGS: Cal. Court Certifies FLSA Class in "Brewer" Suit GNC HOLDINGS: Continues to Defend "Naranjo" Suit in California GNC HOLDINGS: Continues to Defend Andro Actions in New York GNC HOLDINGS: Continues to Defend Hydroxycut-Related Suits GNC HOLDINGS: "Vargas" Suit Remains Pending in Pennsylvania JOHNSON & JOHNSON: Appeal in Blood Reagent Antitrust Suit Pending JOHNSON & JOHNSON: Awaits Ruling on Bid to Dismiss "Monk" Suit JOHNSON & JOHNSON: Continues to Defend "Field" Suit in Canada JOHNSON & JOHNSON: Continues to Defend Suits Over Inflated AWP JOHNSON & JOHNSON: Still Defends Suits Over Pelvic Mesh Device JPMORGAN CHASE: Arbitration Pact May Preclude FLSA Class Action KKR & CO: Bid to Dismiss Merger Suit in Delaware Remains Pending KKR & CO: Still Awaits Ruling on Judgment Bid in Antitrust Suit KRAFT FOODS: Court Trims Suit Over Inaccurate Labeling NETSPEND HOLDINGS: Being Sold for Too Little, Suit Claims NETSPEND HOLDINGS: Still Awaits OK of "Baker" Suit Settlement OFFICEMAX: Being Sold to Office Depot for Too Little, Suit Claims PHILIP MORRIS: Appeal in Sao Paulo Prosecutor Suit Still Pending PHILIP MORRIS: Appeals in "ADESF" Suit Still Pending in Brazil PHILIP MORRIS: "Bourassa" Suit in British Columbia Still Dormant PHILIP MORRIS: "Dorion" Suit in Alberta, Canada Still Dormant PHILIP MORRIS: Hearing in "El-Roy" Suit Appeal Set for March 2014 PHILIP MORRIS: "Jacklin" Class Suit Remains Pending in Ontario PHILIP MORRIS: "Kunta" Suit in Winnipeg, Canada, Still Dormant PHILIP MORRIS: "McDermid" Suit in British Columbia Still Dormant PHILIP MORRIS: "Navon" Suit Facing Dismissal PHILIP MORRIS: Initial Motions Still Pending in "Adams" Suit PHILIP MORRIS: "Semple" Suit in Nova Scotia Remains Dormant PHILIP MORRIS: Trial in "Blais" Suit vs. Canadian Unit Ongoing PRESTIGE DELIVERY: Truckers' Suit to Proceed in Pennsylvania Court PHILIP MORRIS: Trial in "Letourneau" Suit vs. Unit Ongoing RECKITT BENSICKER: Monopolizes Market for Suboxone, Suit Claims SPI ELECTRICITY: Black Saturday Bushfire Preventable, Lawyer Says SUMMER GARDEN: Recalls 25,000 Lbs. of Bolognese Sauce Products UNITED STATES: Judge Certifies Class Action of Black Agents VODAFONE: Law Firm Won't Provide Details on Class Action Sign-Ups * 2nd Cir. Dismisses $300BB Auction-Rate Antitrust Case ********* ASSISTED LIVING: Being Sold to TPG for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Assisted Living Concepts is selling itself too cheaply to TPG Capital, for $454 million or $12 per Class A share and $12.90 per Class B share, shareholders claim in Clark County Court. BUMBLE BEE: Recalls Chunk White Albacore & Light Tuna Products -------------------------------------------------------------- Bumble Bee Foods, LLC, has issued a voluntary recall on specific codes of 5-ounce Chunk White Albacore and Chunk Light Tuna products. The recall has been issued because the products do not meet the Company's standards for seal tightness. Loose seals or seams could result in product contamination by spoilage organisms or pathogens and lead to illness if consumed. There have been no reports to date of any illness associated with these products. Products subject to recall follow: Brunswick Brand 5 oz Chunk Light Tuna in Water - 48 Count Case (Case UPC 6661332803) Can Label UPC Can Lot Code Can Best Buy Code ------------- ------------ ----------------- 6661332803 3018SB1CLP Best By Jan 18 2016 6661332803 3018SB2CLP Best By Jan 18 2016 Bumble Bee Brand 5oz Chunk Light Tuna in Water - 48 Count Case (Case UPC 8660000020) Can Label UPC Can Lot Code Can Best Buy Code ------------- ------------ ----------------- 866203 3016SBCCLP Best By Jan 16 2016 866203 3016SBDCLP Best By Jan 16 2016 866203 3016SBECLP Best By Jan 16 2016 866203 3017SB1CLP Best By Jan 17 2016 866203 3017SB3CLP Best By Jan 17 2016 866203 3017SB4CLP Best By Jan 17 2016 866203 3017SB5CLP Best By Jan 17 2016 866203 3017SB6CLP Best By Jan 17 2016 866203 3018SB2CLP Best By Jan 18 2016 866203 3018SB4CLP Best By Jan 18 2016 866203 3018SB5CLP Best By Jan 18 2016 866203 3018SBACLP Best By Jan 18 2016 866203 3018SBBCLP Best By Jan 18 2016 866203 3018SBCCLP Best By Jan 18 2016 866203 3018SBDCLP Best By Jan 18 2016 866203 3018SBECLP Best By Jan 18 2016 Bumble Bee Brand 5oz Chunk Light Tuna in Vegetable Oil - 48 Count Case (Case UPC 8660000021) Can Label UPC Can Lot Code Can Best Buy Code ------------- ------------ ----------------- 866213 3016SACCLH Best By Jan 16 2016 866213 3016SADCLH Best By Jan 16 2016 866213 3016SAECLH Best By Jan 16 2016 866213 3016SAFCLH Best By Jan 16 2016 866213 3018SAFCLH Best By Jan 18 2016 Bumble Bee Brand 5oz Chunk White Albacore in Water - 24 Count Case (Case UPC 8660000025) Can Label UPC Can Lot Code Can Best Buy Code ------------- ------------ ----------------- 866253 3017SA1CKP Best By Jan 17 2016 866253 3017SA2CKP Best By Jan 17 2016 866253 3017SA3CKP Best By Jan 17 2016 866253 3017SADCKP Best By Jan 17 2016 866253 3017SAECKP Best By Jan 17 2016 866253 3017SAFCKP Best By Jan 17 2016 Bumble Bee Brand 5oz Chunk Light Tuna in Water - 6 Count Case of 4-Pack Cluster (Case UPC 8660000736) Cluster Can Label Pack UPC UPC Can Lot Code Can Best Buy Code -------- --------- ------------ ----------------- 8660000736 866203 3017SBACLP Best By Jan 17 2016 8660000736 866203 3017SBBCLP Best By Jan 17 2016 8660000736 866203 3017SBCCLP Best By Jan 17 2016 8660000736 866203 3017SBDCLP Best By Jan 17 2016 8660000736 866203 3017SBECLP Best By Jan 17 2016 Bumble Bee Brand 5oz Chunk White Albacore in Water - 6 Count Case of 8-Pack Cluster (Case UPC 8660000775) Cluster Can Label Pack UPC UPC Can Lot Code Can Best Buy Code -------- --------- ------------ ----------------- 8660000776 866253 3017SABCKP Best By Jan 17 2016 8660000776 866253 3017SADCKP Best By Jan 17 2016 Bumble Bee Brand 5 oz Chunk White Albacore in Water - 6 Count Case of 8-Pack Cluster (Case UPCS 8660000776) Cluster Can Label Pack UPC UPC Can Lot Code Can Best Buy Code -------- --------- ------------ ----------------- 8660000776 866253 3017SA3CKP Best By Jan 17 2016 8660000776 866253 3017SA4CKP Best By Jan 17 2016 8660000776 866253 3017SA5CKP Best By Jan 17 2016 8660000776 866253 3017SAACKP Best By Jan 17 2016 8660000776 866253 3017SACCKP Best By Jan 17 2016 8660000776 866253 3017SB2CKP Best By Jan 17 2016 Pictures of the recalled products are available at: http://www.fda.gov/Safety/Recalls/ucm342597.htm These products were distributed for retail sale nationwide between January 17, 2013, and February 28, 2013. Bumble Bee Foods SVP of Technical Services and Corporate Quality Assurance Steve Mavity said: "Due to can integrity concerns, our top priority at this time is to remove these recalled products from distribution as soon as possible. We are working closely with our sales team and with retailers to help expedite the recall. We must assure our consumers and retailers of a safe and quality product so we very much appreciate everyone's part in disposing of the products with the specific codes indicated." Mavity added, "There have been no consumer reports of illnesses attributed to these products, but because we've identified an issue with seal tightness, we're voluntarily recalling products to ensure the highest margin of safety and quality." Consumers who have purchased the recalled products should discard the product by disposing in the garbage. For any questions concerning this voluntary recall or reimbursement, consumers can contact Bumble Bee Consumer Affairs 24 hours a day at (800) 800-8572. BURGER KING: $19-Mil. "Vallabhapurapu" Suit Deal Funded in Dec. --------------------------------------------------------------- Burger King Worldwide, Inc. disclosed in its February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012, that its $19.0 million settlement of a class action lawsuit styled Vallabhapurapu v. Burger King Corporation was funded in December 2012. On September 10, 2008, a class action lawsuit, captioned Castenada v. Burger King Corp. and Burger King Corporation., No. CV08-4262 (U.S. District Court for the Northern District of California), was filed against the Company in California. The complaint alleged that all 96 Burger King restaurants in California leased by the Company and operated by franchisees violate accessibility requirements under federal and state law. In September 2009, the court issued a decision on the plaintiffs' motion for class certification. In its decision, the court limited the class action to the 10 restaurants visited by the named plaintiffs, with a separate class of plaintiffs for each of the 10 restaurants and 10 separate trials. In March 2010, the Company agreed to settle the lawsuit with respect to the 10 restaurants and, in July 2010, the court gave final approval to the settlement. In February 2011, a class action lawsuit styled Vallabhapurapu v. Burger King Corporation, No. C11-00667 (U.S. District Court for the Northern District of California) was filed with respect to the other 86 restaurants. In January 2012, the Company agreed to settle the lawsuit. Under the settlement, $19.0 million was paid for the benefit of the class members, with $5.0 million funded by the Company's franchisees, $3.9 million by Burger King Corporation, and the balance by BKC's insurance carrier. These amounts were funded in December 2012. Burger King Worldwide, Inc. is a Delaware corporation formed on April 2, 2012, and the indirect parent of Burger King Corporation ("BKC"), a Florida corporation that franchises and operates fast food hamburger restaurants, principally under the Burger King(R) brand. The restaurants of the Miami, Florida-based Company are limited service restaurants that feature flame-grilled hamburgers, chicken and other specialty sandwiches, french fries, soft drinks and other affordably-priced food items. CALIFORNIA: Race-Based Arrest Can't Proceed as Class, Judge Rules ----------------------------------------------------------------- Chris Marshall at Courthouse News Service reports that police officers must face claims that they made race-based arrests for public drunkenness, but the plaintiffs cannot proceed as a class, a federal judge ruled. U.S. District Judge Claudia Wilken found that disputed issues of material fact precluded her from dismissing most claims from a 2009 lawsuit over the arrests of revelers in San Jose, Calif., three of whom are Latino and one of whom is black. Francisco Valdez, Ricardo Vasquez, Daniel Martinez and Jamil Stubbs say they were not intoxicated and that the officers arrested them as part of a practice of wrongfully arresting minorities for public intoxication. The officers maintain, however, that each plaintiff smelled of alcohol and exhibited at least one other sign of drunkenness. They claim, for example, that one was combative and another urinated on a public garage wall. Valdez alleges that he and Vasquez were apprehended in the street and that Officer R. Amagau told him, "We don't want your kind here." Amagau allegedly told Vasquez, "We don't want you guys to come back. We don't like you people." Wilken refused to find that the allegations of such isolated comments are "insufficient to establish discriminatory intent for the purposes of Fourteenth Amendment liability." Amagau's isolated comment "is potentially quite probative of his underlying motives, especially since it remains disputed whether Amagau had probable cause to make the arrest," according to the ruling. "Because the parties dispute whether Amagau actually made this comment to Valdez, Amagau is not entitled to summary judgment on Plaintiffs' equal protection claim," Wilken added. The judge upheld similar claims against two other officers identified only as Wallace and Orlando. She granted San Jose; its police chief, Robert Davis; and two other officers, identified only as Rickert and Martin, summary judgment on all claims. There is no evidence that the arresting officers were supervised in their conduct or that the supervisors could have prevented the arrests. Though the plaintiffs' expert, Jesica Giron, told the court that probable cause was lacking in over 71 percent of the 350 police reports she had gathered, Wilken questioned how these 350 reports could represent a fair cross-section when Giron had access to over a thousand reports. Giron also failed to identify her qualifications or explain her methodology, according to the ruling. Wilken further concluded that, "most importantly, her analysis rests on the faulty assumption that symptoms of intoxication alone can never justify an officer's decision to arrest someone under 647 (f)," that is, for public intoxication. "This assumption ignores the possibility that certain symptoms of intoxication can also provide an officer with reason to believe that someone is unable to care for him or herself," Wilken added. The plaintiffs had relied on multiple studies to suggest that Latinos were arrested for public intoxication at higher rates than census data would predict, but Wilken said grounds other than race could explain the pattern. She also found no evidence of insufficient officer training, placing little weight on the results from a Public Intoxication Task Force that "convened after all four plaintiffs in this case were arrested." "Plaintiffs have not identified any evidence that SJPD made any unconstitutional arrests after the task force issued its report," according to the ruling. "Moreover, the report itself could not have provided the city with notice that SJPD officers were routinely committing constitutional violations, as plaintiffs suggest. The report focused principally on proposing procedural reforms and did not address the constitutional implications of past SJPD practices." "Accordingly, neither the creation of the task force nor its final report gave city officials notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights," Wilken added. Similar logic led Wilken to deny class certification. "Plaintiffs here have failed to produce sufficient evidence to establish that SJPD followed any unconstitutional policy or practice regarding public intoxication arrests," she wrote. "Specifically, they have not shown that SJPD's training procedures resulted in widespread constitutional violations nor have they provided reliable evidence showing a widespread practice of unreasonable seizures or racially discriminatory enforcement of section 647(f)." After criticizing the supplied data as outdated, Wilken referred the parties to U.S. Magistrate Judge Paul Grewal to schedule a settlement conference, a final pretrial conference and the jury trial. CALIX INC: Continues to Defend Occam Acquisition-Related Suit ------------------------------------------------------------- Calix, Inc. continues to defend itself against a class action lawsuit arising from its acquisition of Occam Networks, Inc., according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On September 16, 2010, the Company, two direct, wholly owned subsidiaries of the Company, and Occam Networks, Inc. entered into an Agreement and Plan of Merger and Reorganization (the "Merger Agreement"). In response to the announcement of the Merger Agreement, on October 6, 2010, a purported class action complaint was filed by stockholders of Occam in the Delaware Court of Chancery: Steinhardt v. Howard-Anderson, et al. (Case No. 5878- VCL). On November 24, 2010, these stockholders filed an amended complaint, or the amended Steinhardt complaint. The amended Steinhardt complaint names Occam and the members of the Occam board of directors as defendants. The amended Steinhardt complaint does not name Calix as a defendant. The amended Steinhardt complaint generally alleges that the members of the Occam board breached their fiduciary duties in connection with the acquisition of Occam by Calix, by, among other things, engaging in an allegedly unfair process and agreeing to an allegedly unfair price for the merger transaction. The amended Steinhardt complaint also alleges that Occam and the former members of the Occam board breached their fiduciary duties by failing to disclose certain allegedly material facts about the merger transaction in the preliminary proxy statement and prospectus included in the Registration Statement on Form S-4 that Calix filed with the SEC on November 2, 2010. The amended Steinhardt complaint sought injunctive relief rescinding the merger transaction and award of damages in an unspecified amount, as well as plaintiffs' costs, attorney's fees, and other relief. The merger transaction was completed on February 22, 2011. On January 6, 2012, the Delaware court ruled on a motion for sanctions brought by the defendants in the Delaware case against certain of the lead plaintiffs. The Delaware court found that lead plaintiffs Michael Steinhardt, Steinhardt Overseas Management, L.P., and Ilex Partners, L.L.C., collectively the "Steinhardt Plaintiffs," had engaged in improper trading of Calix shares, and dismissed the Steinhardt Plaintiffs from the case with prejudice. The court further held that the Steinhardt Plaintiffs are: (i) barred from receiving any recovery from the litigation, (ii) required to self-report to the SEC, (iii) directed to disclose their improper trading in any future application to serve as lead plaintiff, and (iv) ordered to disgorge trading profits of $0.5 million, to be distributed to the remaining members of the class of former Occam stockholders. The Delaware court also granted the motion of the remaining lead plaintiffs, Herbert Chen and Derek Sheeler, for class certification, and certified Messrs. Chen and Sheeler as class representatives. The certified class is a non-opt-out class consisting of all owners of Occam common stock whose shares were converted to shares of Calix on the date of the merger transaction, with the exception of the defendants in the Delaware action and their affiliates. Chen and Sheeler, on behalf of the class of similarly situated former Occam stockholders, continue to seek an award of damages in an unspecified amount. The Company believes that the allegations in the Delaware action are without merit and intends to continue to vigorously contest the action. However, there can be no assurance that the Company will be successful in defending this ongoing action. In addition, the Company has obligations, under certain circumstances, to hold harmless and indemnify each of the former Occam directors against judgments, fines, settlements and expenses related to claims against such directors and otherwise to the fullest extent permitted under Delaware law and Occam's bylaws and certificate of incorporation. Such obligations may apply to this lawsuit. The Company is not currently a party to any other legal proceedings that, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the Company's business, operating results or financial condition. Calix, Inc., a Delaware corporation, is a provider in North America of broadband communications access systems and software for fiber- and copper-based network architectures that enable communications service providers, to transform their networks and connect to their residential and business subscribers. The Company is headquartered in Petaluma, California. CARGILL INC: Recalls Select Mineral Product Used in Ruminant Feed ----------------------------------------------------------------- Cargill's animal nutrition business announced a voluntary recall of certain brands of its ruminant mineral products because they were deficient in vitamins A, D and E. The affected products were manufactured at Cargill's facilities in McPherson, Kansas, and Montgomery City, Missouri, between December 7, 2012, and February 27, 2013. The absence of added vitamins in these products was due to an oversight in Cargill's manufacturing process that has been remedied. No adverse health effects related to these products have been reported to date. This recall is limited to only those products and lot code ranges listed below. The affected product was sold in 50 pounds bags and the lot code can be found printed on the product tag that is attached to the bag. No other Cargill Animal Nutrition products are affected by this recall. Affected products are: Product Code Beginning with Product Name Lot Code Range -------------- ------------ -------------- 7144 Cattle Grazers All Purpose 522349 to 523058 Mineral 55103 Right Now Emerald 523024 to 523058 613030 to 613058 2MK3024-2MK3058 55104 Right Now Onyx 522342 to 523058 612356 to 613058 92111 Nutrena(R) NutreBeef Stocker 522342 to 523058 Summer Mineral 92113 Nutrena(R) NutreBeef Stocker 522342 to 523058 Wheat Mineral 92428 Nutrena(R) NutreBeef Breeding 522342 to 523058 Herd Mineral 80678 Nutrena (R) NutreBeef Cattle - 522349 to 523058 Winter Mineral Customers should return remaining products to their local distributor for a full refund. For more information, including complete product codes, sub-codes, and photos of products involved, go to: http://www.cargill.com/feed/news/mineral-recall/index.htm or call toll free 1-866-420-5425, 8:00 a.m. to 4:30 p.m. Central Time, Monday - Friday. CARIBBEAN CRUISE: Faces Class Action Over Bogus "Free Cruises" -------------------------------------------------------------- Courthouse News Service reports that Caribbean Cruise Line sends illegal, deceptive text messages pushing bogus "free cruises," a class action claims in Federal Court. CHINESE DAILY: 9th Circuit Reverses Class Certification ------------------------------------------------------- Tim Hull at Courthouse News Service reports that the 9th Circuit reversed class certification for a group of former Chinese Daily News employees in their decade-old challenge to denied overtime and lunch breaks. A three-judge panel in San Francisco sent the case back to a Los Angeles federal judge in light the U.S. Supreme Court's 2011 landmark ruling Wal-Mart Stores Inc. v. Dukes, which, among other things, requires courts to use a more rigorous standard when determining class commonality. The appellate panel also noted a recent California Supreme Court finding that employers do not have to make sure employees actually take the 30-minute lunch breaks that they are required to give. Former Chinese Daily News (CDN) employees Lynne Wang, Yu Fang Ines Kai and Hui Jung Pa had filed the proposed class action against the company back in 2004, alleging violations of federal and state labor laws. They sought damages, restitution and an injunction, claiming they were forced to work more than eight hours per day without overtime pay or meal breaks. U.S. District Judge Consuelo Marshal certified the plaintiffs' claims under the federal Fair Labor Standards Act (FLSA) as a collective action, and certified the state-law claims as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The District Court again ruled in the plaintiffs' favor in deciding that the CDN's reporters were eligible for overtime, and a jury subsequently awarded them $2.5 million in damages. Judge Marshal later denied the group's request for an injunction. After the 9th Circuit affirmed in 2010, the 9th Circuit vacated that decision for reconsideration in light of Wal-Mart. The latest round of oral argument led the unanimous panel to reverse certification and remand for further District Court proceedings. Contrary to its previous ruling, the panel found that the lower court improperly certified the class under Rule 23(b)(2). In reversing the 9th Circuit, the high court "made clear that 'individualized monetary claims belong in Rule 23(b)(3)' rather than Rule 23(b)(2)," Judge William Fletcher wrote for the panel. "The court left open the possibility that 'incidental' monetary claims could be brought in a Rule 23(b)(2) class action, but it declined to decide that question," Fletcher added. "Plaintiffs concede that class certification for their monetary claims under Rule 23(b)(2) cannot stand in light of Wal-Mart. Further, it appears that none of the named plaintiffs has standing to pursue injunctive relief on behalf of the class, as none of them is a current CDN employee." ELBIT IMAGING: Faces NIS240-Mil. Class Action in Israel ------------------------------------------------------- Elbit Imaging Ltd. disclosed that, on March 3, 2013, it was informed that a purported class action lawsuit was filed on February 25, 2013, by Yuki Shemesh Ltd., one of the Company's note holders, in the Israeli Tel-Aviv Jaffa District Court, against the Company, its controlling shareholders, officers and others. The complaint requests that the court recognize the lawsuit as a valid class action and alleges, among other things, that the Company's announcements on February 5, 2013 and February 19, 2013 that it would suspend its principal and interest payments to its note holders constitutes a breach of the trust agreements relating to the Company's Series A and Series B notes. The lawsuit seeks damages in the amount of NIS240 million (approximately $64.5 million). The Company plans to defend against it vigorously. EXPERIAN INFORMATION: Objectors Want to Overturn $45MM Settlement ----------------------------------------------------------------- Matt Reynolds at Courthouse News Service reports that an attorney on Monday asked the 9th Circuit to toss out a $45 million settlement against three major credit reporting agencies, claiming settling attorneys had "dangled" illegal incentives in front of class members. Lead plaintiff Terri White in 2005 sued Experian Information Solutions, Equifax Information Services, and Trans Union, in Los Angeles Federal Court, alleging willful and negligent violations of the Fair Credit Reporting Act. The class claimed the agencies misreported debts discharged in bankruptcy, and refused to investigate disputes over the status of discharged accounts. In September 2011, U.S. District Judge David Carter approved a $45 million settlement, despite objections that the award should be in the billions. Carter found that a larger settlement would have been "unrealistic and counterproductive," and called the proposed settlement "fair, adequate and reasonable." "Given the FCRA [Fair Credit Reporting Act]'s goal of deterring offenders from improperly reporting credit, the detriment that the settlement imposes on defendants ought to be considered alongside the benefit that the settlement confers on class members. The court finds that a $45 million judgment suffices to deter similar conduct similar to that which precipitated the lawsuit," Carter wrote. Attorney for objectors, George Carpinello with Boies, Schiller & Flexner of Albany, N.Y., have now asked a three-judge panel of the 9th Circuit to overturn Carter's ruling, claiming that a $5,000 incentive award for settling plaintiffs created a conflict of interest. He claimed that class counsel had "dangled" the incentive before the settling plaintiffs in return for supporting the settlement. If they disagreed with the agreement, plaintiffs were told they would walk away with nothing, Carpinello said. In Rodriguez v. Disner the 9th Circuit ruled that incentive agreements created an illegal conflict of interest between a class and its counsel. Carpinello asked the panel to replace counsel and set the settlement aside under a similar conflict-of-interest determination. Most plaintiffs "did not like" the settlement, and Judge Carter did not "even address the issue" of a conflict of interest in his order, Carpinello said. Carpinello became so animated that Judge Kim Wardlaw asked him to lower his voice. After apologizing, Carpinello said the case should be remanded, or the settlement renegotiated for more than a "penny on the dollar." The plaintiffs had standing to show that they had been harmed, Carpinello said. He said the defendant agencies' "own records" showed that 15 million people had been on the receiving end of misstated credit reports. "It's a statutory damage case. All the claimant has to prove is that a credit report was issued with a credit line that wrongfully stated that my debt was still owing or charged wrong," Carpinello said. But Michael Caddell, with Caddell & Chapman of Houston, accused Carpinello of fudging the facts. Caddell said that Judge Carter had "bent over backwards" to examine the fairness of the $5,000 incentive award, and that Carpinello had previously deemed it reasonable. "This is so far from Rodriguez," Caddell told the panel. U.S. District Judge Sam Haddon, appearing via a video link-up from Montana, asked if language in the agreement permitted an incentive award only if plaintiffs supported the settlement. "It's funny, judge," Caddell said. "I don't think that when we drafted the agreement we had any notion at all that this would become controversial. What we were simply saying is that these class representatives are entitled to an incentive award for having served in support of the settlement." Plaintiffs were compensated not because they agreed or disagreed with the settlement, but because they had "stepped forward," given depositions and helped with discovery during the litigation, Caddell said. He said there was no evidence of "undue influence or coercion" by settling attorneys. "This is a good settlement. In the context of the Fair Credit Reporting Act, this is the second largest settlement in history," Caddell said. Experian attorney Daniel McLoon, with Jones Day of Los Angeles, agreed. He said the incentive award did not "deter opposition to the settlement," or "affect the negotiation process." It would be "virtually impossible to manage the resolution" of up to 15 million potential claims because Experian did not keep records of all the credit reports it issued, McLoon said. During rebuttal, Carpinello called McLoon "disingenuous." He said Experian had records of when it issued the reports. "That's exactly how they came up with 15 million people," he said. Judge Ronald Gould sat with Judges Wardlaw and Haddon on the panel. GNC HOLDINGS: Cal. Court Certifies FLSA Class in "Brewer" Suit -------------------------------------------------------------- The U.S. District Court for the Northern District of California conditionally certified in January 2013 a Fair Labor Standards Act class with respect to one of Charles Brewer's claims, GNC Holdings, Inc. disclosed in its February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On July 21, 2011, Charles Brewer, on behalf of himself and all others similarly situated, sued General Nutrition Corporation in federal court, alleging state and federal wage and hour claims (U.S. District Court, Northern District of California, Case No. 11CV3587). On October 7, 2011, plaintiff filed an eight-count amended complaint alleging, inter alia, meal, rest break and overtime violations. On October 21, 2011, the Company filed a motion to dismiss the complaint and on December 14, 2011, the court dismissed count six (the federal overtime claim) giving plaintiffs an opportunity to amend the complaint within thirty days. On January 13, 2012, plaintiff filed a Second Amended complaint. On September 18, 2012, Plaintiff filed a Motion for Conditional Certification and on January 7, 2013, the Court conditionally certified a Fair Labor Standards Act class with respect to one of Plaintiff's claims. As any liabilities that may arise from these matters are not probable or reasonably estimable at this time, the Company says no liability has been accrued in the accompanying financial statements. GNC Holdings, Inc. is global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplement products, sports nutrition products and diet products. The Company is headquartered in Pittsburgh, Pennsylvania. GNC HOLDINGS: Continues to Defend "Naranjo" Suit in California -------------------------------------------------------------- GNC Holdings, Inc. continues to defend itself against a class action lawsuit brought by Elizabeth Naranjo in California, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On February 29, 2012, former Senior Store Manager, Elizabeth Naranjo, individually and on behalf of all others similarly situated sued General Nutrition Corporation in the Superior Court of the State of California for the County of Alameda (Case No. RG 12619626). The complaint contains eight causes of action, alleging, inter alia, meal, rest break, and overtime violations. As any liabilities that may arise from these matters are not probable or reasonably estimable at this time, the Company says no liability has been accrued in the accompanying financial statements. GNC Holdings, Inc. is global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplement products, sports nutrition products and diet products. The Company is headquartered in Pittsburgh, Pennsylvania. GNC HOLDINGS: Continues to Defend Andro Actions in New York ----------------------------------------------------------- GNC Holdings, Inc. continues to defend itself from remaining class action lawsuits, known as Andro Actions, pending in New York, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. The Company has been defending lawsuits in New Jersey, New York and Pennsylvania relating to the sale by the Company of certain nutritional products, between 1999 and 2004, alleged to contain the ingredients commonly known as Androstenedione, Androstenediol, Norandrostenedione, and Norandrostenediol. In each of the Andro Actions, plaintiffs sought to certify a class and obtain damages on behalf of the class representatives and all those similarly- situated who purchased from the Company certain nutritional supplements alleged to contain one or more Andro Products. The Andro Actions pending in New Jersey and Pennsylvania were dismissed during the fiscal year ending December 31, 2011. Opposing counsel in the Andro Actions in New Jersey agreed to dismiss that action during the fiscal year ending December 31, 2012. The Company no longer believes the Andro Actions are a material contingency. GNC Holdings, Inc. is global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplement products, sports nutrition products and diet products. The Company is headquartered in Pittsburgh, Pennsylvania. GNC HOLDINGS: Continues to Defend Hydroxycut-Related Suits ---------------------------------------------------------- GNC Holdings, Inc. continues to defend itself from lawsuits related to Hydroxycut-branded products, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On May 1, 2009, the U.S. Food and Drug Administration ("FDA") issued a warning on several Hydroxycut-branded products manufactured by Iovate Health Sciences, Inc. The FDA warning was based on 23 reports of liver injuries from consumers who claimed to have used the products between 2002 and 2009. As a result, Iovate voluntarily recalled 14 Hydroxycut-branded products. Following the recall, GNC was named, among other defendants, in approximately 94 lawsuits related to Hydroxycut-branded products in 13 states. Iovate previously accepted GNC's tender request for defense and indemnification under its purchasing agreement with GNC and, as such, Iovate has accepted GNC's request for defense and indemnification in the Hydroxycut matters. GNC's ability to obtain full recovery in respect of any claims against GNC in connection with products manufactured by Iovate under the indemnity is dependent on Iovate's insurance coverage, the creditworthiness of its insurer, and the absence of significant defenses by such insurer. To the extent GNC is not fully compensated by Iovate's insurer, it can seek recovery directly from Iovate. GNC's ability to fully recover such amounts may be limited by the creditworthiness of Iovate. As of December 31, 2012, there were 73 pending lawsuits related to Hydroxycut in which GNC had been named: 67 individual, largely personal injury claims and six putative class action cases, generally inclusive of claims of consumer fraud, misrepresentation, strict liability and breach of warranty. All of the individual plaintiffs in these lawsuits have either not asserted or amended their complaints to remove any specific damages claims. These six putative class actions generally include claims of consumer fraud, misrepresentation, strict liability and breach of warranty: * Andrew Dremak, et al. v. Iovate Health Sciences Group, Inc., et al., U.S. District Court, Southern District of California, 09CV1088 (filed May 19, 2009); * Enjoli Pennier, et al. v. Iovate Health Sciences, et al., U.S. District Court, Eastern District of Louisiana, 09CV3533 (filed May 13, 2009); * Alejandro M. Jimenez, et al. v. Iovate Health Sciences, Inc., et al., U.S. District Court, Eastern District of California, 09CV1473 (filed May 28, 2009); * Amy Baker, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama, 09CV872 (filed May 4, 2009); * Kyle Davis and Sara Carreon, et al. v. Iovate Health Sciences USA, Inc., et al., U.S. District Court, Northern District of Alabama, 09CV896 (filed May 7, 2009); and * Lenny Charles Gunn, Tonya Rhoden, and Nicholas Atelevich, et al., v. Iovate Health Sciences Group, Inc., et al., U.S. District Court, Southern District of California, 09CV2337 (filed October 24, 2009). By court order dated October 6, 2009, the United States Judicial Panel on Multidistrict Litigation consolidated pretrial proceedings of many of the pending actions (including the GNC class actions) in the Southern District of California (In re: Hydroxycut Marketing and Sales Practices Litigation, MDL No. 2087). As any liabilities that may arise from these matters are not probable or reasonably estimable at this time, no liability has been accrued in the Company's financial statements. Ten personal injury matters related to the use and consumption of Hydroxycut-branded products were settled during 2012 and these settlements did not result in any payments by the Company. GNC Holdings, Inc. is global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplement products, sports nutrition products and diet products. The Company is headquartered in Pittsburgh, Pennsylvania. GNC HOLDINGS: "Vargas" Suit Remains Pending in Pennsylvania ----------------------------------------------------------- The class action lawsuit commenced by Dominic Vargas and Anne Hickok in Pennsylvania remains pending, according to GNC Holdings, Inc.'s February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On June 29, 2010, Dominic Vargas and Anne Hickok, on behalf of themselves and all others similarly situated, sued General Nutrition Corporation and the Company in federal court (U.S. District Court, Western District of Pennsylvania, Case No. 2:05- mc-02025). The two-count complaint alleges, generally, that plaintiffs were required to perform work on an uncompensated basis and that the Company failed to pay overtime for such work. The second count of the complaint alleges the Company retaliated against plaintiffs when they complained about the overtime policy. The Company filed a motion to dismiss count II of the Complaint and on January 6, 2011, the court granted the motion. In fall, 2011, plaintiffs filed their Motion for Class Certification. On August 16, 2012, the Court ruled on the motion, granting in part and denying in part, the motion. Class notice was mailed to putative class members in November 2012 and following the conclusion of the opt-in period, discovery will take place regarding opt-in plaintiffs. As any liabilities that may arise from this case are not probable or reasonably estimable at this time, the Company says no liability has been accrued in the accompanying financial statements. GNC Holdings, Inc. is global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplement products, sports nutrition products and diet products. The Company is headquartered in Pittsburgh, Pennsylvania. JOHNSON & JOHNSON: Appeal in Blood Reagent Antitrust Suit Pending ----------------------------------------------------------------- An appeal from a class certification decision filed by a subsidiary of Johnson & Johnson in the case styled In re Blood Reagent Antitrust Litigation remains pending, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 30, 2012. In April 2009, Ortho-Clinical Diagnostics, Inc. (OCD) received a grand jury subpoena from the United States Department of Justice, Antitrust Division, requesting documents and information for the period beginning September 1, 2000, through the present, pertaining to an investigation of alleged violations of the antitrust laws in the blood reagents industry. OCD complied with the subpoena. In February 2011, OCD received a letter from the Antitrust Division indicating that it had closed its investigation in November 2010. In June 2009, following the public announcement that OCD had received a grand jury subpoena, multiple class action complaints were filed against OCD by direct purchasers seeking damages for alleged price fixing. The various cases were consolidated for pre-trial purposes in the United States District Court for the Eastern District of Pennsylvania as In re Blood Reagent Antitrust Litigation. In August 2012, the District Court granted a motion filed by Plaintiffs for class certification. OCD requested interlocutory review of the class certification decision, and in October 2012, the Appellate Court granted OCD's petition for interlocutory review. Johnson & Johnson was incorporated in the State of New Jersey in 1887, and is headquartered in New Brunswick, New Jersey. The Company and its subsidiaries have approximately 127,600 employees worldwide engaged in the research and development, manufacture and sale of a broad range of products in the health care field. Johnson & Johnson is a holding company, which has more than 275 operating companies conducting business in virtually all countries of the world. JOHNSON & JOHNSON: Awaits Ruling on Bid to Dismiss "Monk" Suit -------------------------------------------------------------- Johnson & Johnson is awaiting a court decision on its motion to dismiss the second amended complaint in the lawsuit initiated by Ronald Monk, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 30, 2012. In September 2010, a shareholder, Ronald Monk, filed a lawsuit in the United States District Court for the District of New Jersey seeking class certification and alleging that Johnson & Johnson and certain individuals, including executive officers and employees of Johnson & Johnson, failed to disclose that a number of manufacturing facilities failed to maintain current good manufacturing practices, and that as a result, the price of the Company's stock declined significantly. Plaintiff seeks to pursue remedies under the Securities Exchange Act of 1934 to recover his alleged economic losses. In December 2011, a motion by Johnson & Johnson to dismiss was granted in part and denied in part. Plaintiff moved the Court to reconsider part of the December 2011 ruling. Defendants filed answers to the remaining claims of the Amended Complaint in February 2012 and the case is proceeding to discovery. In May 2012, the Court denied Plaintiff's motion for reconsideration. In September 2012, Plaintiff filed a Second Amended Complaint and Johnson & Johnson has moved to dismiss Plaintiff's Second Amended Complaint in part. Johnson & Johnson was incorporated in the State of New Jersey in 1887, and is headquartered in New Brunswick, New Jersey. The Company and its subsidiaries have approximately 127,600 employees worldwide engaged in the research and development, manufacture and sale of a broad range of products in the health care field. Johnson & Johnson is a holding company, which has more than 275 operating companies conducting business in virtually all countries of the world. JOHNSON & JOHNSON: Continues to Defend "Field" Suit in Canada ------------------------------------------------------------- Johnson & Johnson continues to defend itself and its subsidiaries against a class action lawsuit filed by Nick Field in the Supreme Court of British Columbia, Canada, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 30, 2012. In September 2011, Johnson & Johnson, Johnson & Johnson Inc. and McNeil Consumer Healthcare Division of Johnson & Johnson Inc. received a Notice of Civil Claim filed by Nick Field in the Supreme Court of British Columbia, Canada (the BC Civil Claim). The BC Civil Claim is a putative class action brought on behalf of persons who reside in British Columbia and who purchased during the period between September 20, 2001, and the present one or more various McNeil infants' or children's over-the-counter medicines that were manufactured at the Fort Washington facility. The BC Civil Claim alleges that the defendants violated the BC Business Practices and Consumer Protection Act, and other Canadian statutes and common laws, by selling medicines that were allegedly not safe and/or effective or did not comply with Canadian Good Manufacturing Practices. The BC plaintiff served their affidavits in support of class certification in April 2012. The defendants responding affidavits were served in June 2012. The date for hearing of the certification application has not yet been scheduled. Johnson & Johnson was incorporated in the State of New Jersey in 1887, and is headquartered in New Brunswick, New Jersey. The Company and its subsidiaries have approximately 127,600 employees worldwide engaged in the research and development, manufacture and sale of a broad range of products in the health care field. Johnson & Johnson is a holding company, which has more than 275 operating companies conducting business in virtually all countries of the world. JOHNSON & JOHNSON: Continues to Defend Suits Over Inflated AWP -------------------------------------------------------------- Johnson & Johnson continues to defend itself and its subsidiaries from lawsuits relating to inflated average wholesale price for certain pharmaceutical products, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 30, 2012. Johnson & Johnson and several of its pharmaceutical subsidiaries (the J&J AWP Defendants), along with numerous other pharmaceutical companies, are defendants in a series of lawsuits in state and federal courts involving allegations that the pricing and marketing of certain pharmaceutical products amounted to fraudulent and otherwise actionable conduct because, among other things, the companies allegedly reported an inflated Average Wholesale Price (AWP) for the drugs at issue. Payors alleged that they used those AWPs in calculating provider reimbursement levels. Many of these cases, both federal actions and state actions removed to federal court, were consolidated for pre-trial purposes in a Multi-District Litigation (MDL) in the United States District Court for the District of Massachusetts. The plaintiffs included three classes of private persons or entities that paid for any portion of the purchase of the drugs at issue based on AWP, and state government entities that made Medicaid payments for the drugs at issue based on AWP. In June 2007, after a trial on the merits, the MDL Court dismissed the claims of two of the plaintiff classes against the J&J AWP Defendants. In March 2011, the Court dismissed the claims of the third class against the J&J AWP Defendants without prejudice. AWP cases brought by various Attorneys General have proceeded to trial against other manufacturers. Several state cases against certain subsidiaries of Johnson & Johnson have been settled, including Kentucky, which had been set for trial in January 2012 and Kansas which had been set for trial in March 2013. Louisiana and Mississippi are set for trial in October 2013, Illinois is set for trial in May 2014, and Alaska is set for trial in July 2014. Other state cases are likely to be set for trial in due course. In addition, an AWP case against the J&J AWP Defendants brought by the Commonwealth of Pennsylvania was tried in Commonwealth Court in October and November 2010. The Court found in the Commonwealth's favor with regard to certain of its claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPL"), entered an injunction, and awarded $45 million in restitution and $6.5 million in civil penalties. The Court found in the J&J AWP Defendants' favor on the Commonwealth's claims of unjust enrichment, misrepresentation/ fraud, civil conspiracy, and on certain of the Commonwealth's claims under the UTPL. The J&J AWP Defendants have appealed the Commonwealth Court's UTPL ruling to the Pennsylvania Supreme Court. The Company believes that the J&J AWP Defendants have strong arguments supporting their appeal. Because the Company believes that the potential for an unfavorable outcome is not probable, it has not established an accrual with respect to the verdict. Johnson & Johnson was incorporated in the State of New Jersey in 1887, and is headquartered in New Brunswick, New Jersey. The Company and its subsidiaries have approximately 127,600 employees worldwide engaged in the research and development, manufacture and sale of a broad range of products in the health care field. Johnson & Johnson is a holding company, which has more than 275 operating companies conducting business in virtually all countries of the world. JOHNSON & JOHNSON: Still Defends Suits Over Pelvic Mesh Device -------------------------------------------------------------- Claims for personal injury have been made against Ethicon, Inc. (Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic mesh devices used to treat stress urinary incontinence and pelvic organ prolapse. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. Cases filed in Federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Southern District of West Virginia. In addition, a class action and several individual personal injury cases have been commenced in Canada and Australia seeking damages for alleged injury resulting from Ethicon's pelvic mesh devices. The Company has established a product liability accrual in anticipation of product liability litigation associated with Ethicon's pelvic mesh products. Changes to this accrual may be required in the future as additional information becomes available. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 30, 2012. Johnson & Johnson was incorporated in the State of New Jersey in 1887, and is headquartered in New Brunswick, New Jersey. The Company and its subsidiaries have approximately 127,600 employees worldwide engaged in the research and development, manufacture and sale of a broad range of products in the health care field. Johnson & Johnson is a holding company, which has more than 275 operating companies conducting business in virtually all countries of the world. JPMORGAN CHASE: Arbitration Pact May Preclude FLSA Class Action --------------------------------------------------------------- Anthony J. Rao, Esq. -- ARao@duanemorris.com -- at Duane Morris, writes that in Tiffany Ryan v. JPMorgan Chase & Co., et al. (Case No. 12 CV 4844 (VB)), Southern District Judge Vincent Briccetti held, like many judges before him, that arbitration agreements may preclude a FLSA collective action. When Ms. Ryan was hired, she signed an arbitration agreement containing the following language: CLASS ACTION/COLLECTIVE ACTION WAIVER: All Covered Claims under this Agreement must be submitted on an individual basis. No claims may be arbitrated on a class or collective basis. Covered Parties expressly waive any right with respect to any Covered Claims to submit, initiate, or participate in a representative capacity or as a plaintiff, claimant or member in a class action, collective action, or other representative or joint action, regardless of whether the action is filed in arbitration or in court. Furthermore, if a court orders that a class, collective, or other representative or joint action should proceed, in no event will such action proceed in the arbitration forum. Claims may not be joined or consolidated in arbitration with disputes brought by other individual(s), unless agreed to in writing by all parties. Ms. Ryan filed a FLSA collective action and JPMorgan Chase moved to dismiss the action, or in the alternative stay it, and to compel arbitration of Ms. Ryan's claim on an individual basis. After mentioning in a footnote that the Court of Appeals for the District of Columbia Circuit recently vacated D.R. Horton, 357 N.L.R.B. No. 184, 2012 WL 36274 (holding that arbitration agreements cannot prevent employees from filing class/collective actions) because it was decided by an unconstitutionally constituted panel of the NLRB, the court made the following findings: One, "collective action waivers are not per se unenforceable due to the "FAA's 'overarching purpose' of 'ensur[ing] the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.'" Two, although Ryan asserted the arbitration agreement prevented her from vindicating her FLSA rights, the class action waiver "is fair, permits plaintiff to vindicate her statutory rights under the FLSA, does not hinder her ability to recover attorney's fees or costs, and comports with public policy favoring arbitration and honoring private contracts" (also, Ryan could not prove that arbitration would be prohibitively expensive). And three, "this Court joins numerous other courts in finding the NLRA (in D.R. Horton) does not determine whether a plaintiff has a right to bring a collective action under the FLSA. Bottom line, a well-written arbitration agreement may preclude class or collective actions (employers, however, most likely will be responsible for paying the hourly rate of the chosen arbitrator), and the D.R. Horton board decision is not receiving much support from judges around the country. Duane Morris LLP is a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally. KKR & CO: Bid to Dismiss Merger Suit in Delaware Remains Pending ---------------------------------------------------------------- On May 23, 2011, KKR & Co. L.P., certain KKR affiliates and the board of directors of Primedia Inc. (a former KKR portfolio company whose directors at that time included certain KKR personnel) were named as defendants, along with others, in two shareholder class action complaints filed in the Court of Chancery of the State of Delaware challenging the sale of Primedia in a merger transaction that was completed on July 13, 2011. These actions allege, among other things, that Primedia board members, KKR, and certain KKR affiliates, breached their fiduciary duties by entering into the merger agreement at an unfair price and failing to disclose all material information about the merger. Plaintiffs also allege that the merger price was unfair in light of the value of certain shareholder derivative claims, which were dismissed on August 8, 2011, based on a stipulation by the parties that the derivative plaintiffs and any other former Primedia shareholders lost standing to prosecute the derivative claims on behalf of Primedia when the Primedia merger was completed. The dismissed shareholder derivative claims included allegations concerning open market purchases of certain shares of Primedia's preferred stock by KKR affiliates in 2002 and allegations concerning Primedia's redemption of certain shares of Primedia's preferred stock in 2004 and 2005, some of which were owned by KKR affiliates. With respect to the pending shareholder class actions challenging the Primedia merger, on June 7, 2011, the Court of Chancery denied a motion to preliminarily enjoin the merger. On July 18, 2011, the Court of Chancery consolidated the two pending shareholder class actions and appointed lead counsel for plaintiffs. On October 7, 2011, defendants moved to dismiss the operative complaint in the consolidated shareholder class action. The operative complaint seeks, in relevant part, unspecified monetary damages and rescission of the merger. On December 2, 2011, plaintiffs filed a consolidated amended complaint, which similarly alleges that the Primedia board members, KKR, and certain KKR affiliates breached their respective fiduciary duties by entering into the merger agreement at an unfair price in light of the value of the dismissed shareholder derivative claims. That amended complaint seeks an unspecified amount of monetary damages. On January 31, 2012, defendants moved to dismiss the amended complaint. The motion to dismiss the amended complaint is pending before the Court of Chancery. Additionally, in May 2011, two shareholder class actions challenging the Primedia merger were filed in Georgia state courts, asserting similar allegations and seeking similar relief as initially sought by the Delaware shareholder class actions. Both Georgia actions have been stayed in favor of the Delaware action. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. Led by Henry Kravis and George Roberts, KKR & Co. L.P. -- http://kkr.com/-- is global investment firm with $59 billion in AUM as of December 31, 2011. The Company offers a broad range of investment management services to its investors and provides capital markets services to its firm, its portfolio companies and its clients. KKR & CO: Still Awaits Ruling on Judgment Bid in Antitrust Suit --------------------------------------------------------------- KKR & Co. L.P. is still awaiting a court decision on its and other defendants' motions for summary judgment in a consolidated antitrust class action lawsuit, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. In December 2007, KKR, along with 15 other private equity firms and investment banks, were named as defendants in a purported class action complaint filed in the United States District Court for the District of Massachusetts by shareholders in certain public companies acquired by private equity firms since 2003. In August 2008, KKR, along with 16 other private equity firms and investment banks, were named as defendants in a purported consolidated amended class action complaint. The lawsuit alleges that from mid-2003 defendants have violated antitrust laws by allegedly conspiring to rig bids, restrict the supply of private equity financing, fix the prices for target companies at artificially low levels, and divide up an alleged market for private equity services for leveraged buyouts. The amended complaint seeks injunctive relief on behalf of all persons who sold securities to any of the defendants in leveraged buyout transactions and specifically challenges nine transactions. The first stage of discovery concluded on or about April 15, 2010. On August 18, 2010, the court granted plaintiffs' motion to proceed to a second stage of discovery in part and denied it in part. Specifically, the court granted a second stage of discovery as to eight additional transactions but denied a second stage of discovery as to any transactions beyond the additional eight specified transactions. On October 7, 2010, the plaintiffs filed under seal a fourth amended complaint that includes new factual allegations concerning the additional eight transactions and the original nine transactions. The fourth amended complaint also includes eight purported sub-classes of plaintiffs seeking unspecified monetary damages and/or restitution with respect to eight of the original nine challenged transactions and new separate claims against two of the original nine challenged transactions. On January 13, 2011, the court granted a motion filed by KKR and certain other defendants to dismiss all claims alleged by a putative damages sub-class in connection with the acquisition of PanAmSat Corp. and separate claims for relief related to the PanAmSat transaction. The second phase of discovery permitted by the court is completed. On July 11, 2011, plaintiffs filed a motion seeking leave to file a proposed fifth amended complaint that seeks to challenge ten additional transactions in addition to the transactions identified in the previous complaints. Defendants opposed plaintiffs' motion. On September 7, 2011, the court granted plaintiffs' motion in part and denied it in part. Specifically, the court granted a third stage of limited discovery as to the ten additional transactions identified in plaintiffs' proposed fifth amended complaint but denied plaintiffs' motion seeking leave to file a proposed fifth amended complaint. On June 14, 2012, following the completion of the third phase of discovery, plaintiffs filed a fifth amended complaint which, like their proposed fifth amended complaint, seeks to challenge ten additional transactions in addition to the transactions identified in the previous complaints. On June 22, 2012, defendants filed a motion to dismiss certain claims asserted in the fifth amended complaint. On July 18, 2012, the court granted in part and denied in part defendants' motion to dismiss, dismissing certain previously released claims against certain defendants. On July 23, 2012, defendants, including KKR, filed motions for summary judgment, which is pending decision before the United States District Court. Led by Henry Kravis and George Roberts, KKR & Co. L.P. -- http://kkr.com/-- is global investment firm with $59 billion in AUM as of December 31, 2011. The Company offers a broad range of investment management services to its investors and provides capital markets services to its firm, its portfolio companies and its clients. KRAFT FOODS: Court Trims Suit Over Inaccurate Labeling ------------------------------------------------------ Philip A. Janquart at Courthouse News Service reports that some claims remain, but Kraft Foods, Cadbury Adams and a smaller company won partial dismissal of a class action alleging inaccurate labeling. Lead plaintiff Susan Ivie claimed Kraft Foods Global, Cadbury Adams USA and Back to Nature Food Co. put misleading information on federally mandated labels, violating state and federal laws, including California's Unfair Competition Law (UCL); its Fair Advertising Law (FAL); the Sherman Food, Drug and Cosmetic Laws; the Consumer Legal Remedies Act (CLRA) and the Song-Beverly Consumer Warranty Act. Ivie claimed the defendants also violated the federal Magnuson- Moss Warranty Act; the Food, Drug and Cosmetic Act; and the Nutrition Labeling and Education Act. U.S. District Judge Ronald M. Whyte granted dismissal with prejudice on three claims, dismissal with leave to amend on several more, and refused to dismiss some state law unfair competition, fair advertising and consumer law claims. "The plaintiffs claims are based on allegedly unlawful and misleading labels or packaging on a variety of defendants' consumer food products including gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell-O and Easy Mac," Whyte wrote in his 25-page order. Ivie's complaint centered around specific alleged violations of the Sherman law, in regard to the products' "(1) 'natural' or 'all natural' claims; (2) 'no artificial' colors/ sweeteners / flavors/ preservatives/ingredients claims; (3) nutrient content claims; (4) health claims; (5) 'sugar free' or 'sugarless' claims; (6) stated serving sizes; and (7) 'evaporated cane juice' claims," Whyte summarized. Ivie said she would not have bought the products had she known the nutritional information was inaccurate. "Plaintiff alleges she 'read the labels,' and was 'misled ... with respect to the nature, nutritional content and healthiness of the products she was purchasing. ' Plaintiff further alleges that she 'based and justified the decision to purchase defendants' products in substantial part on defendants' package labeling, packaging and website claims,' and 'would have foregone purchasing defendants' products and bought other products readily available at a lower price,'" Whyte wrote. Ivie claimed that other products bore similarly misleading labels. She said she did not buy them, but that Back to Nature Classic Cream Cookies, Fudge Mint Cookies and Fudge Striped Cookies falsely claim "no artificial flavors or preservatives," and that Halls Refresh Sugar Free Drops and Trident White Spearmint Sugar Free Gum make false "sugar free" claims on packaging. Whyte granted the defendants' motion to dismiss with prejudice the Song-Beverly and Magnuson-Moss Warranty Act claims. He granted defendants' motion to dismiss, with leave to amend, the UCL, FAL and CLRA claims based on the products that Ivie did not buy, the "one mint" serving size, the "natural lemon flavor" label on Crystal Light products, the "good source" and "wholesome" labels on Planter's Nut-rition Wholesome Nut Mix and the "with added . . . vitamin D" and "reduced fat" labels on Kraft Deli Deluxe Cheese. Specifically, Ivie claimed the labels on Kraft's Mexican Style Four Cheese and Deli Delux Cheese products are "unlawful for failure to include the required disclosure statement of: 'See nutrition information for fat content' (required when the fat content per reference amount exceeds 13.0 grams of fat or 4.0 grams of saturated fat)," Whyte wrote. But Whyte found: "The Kraft Mexican Style Four Cheese Blend does, in fact, contain the required referral statement." Whyte said the plaintiffs "do not sufficiently plead any claim for a violation of the FDA's prominence and placement requirements for referral statements," pre-empting those claims. Whyte set a case management conference for April 19. NETSPEND HOLDINGS: Being Sold for Too Little, Suit Claims --------------------------------------------------------- Courthouse News Service reports that NetSpend Holdings is selling itself too cheaply through an unfair process to Total System Services, for $16 a share or $1.4 billion, shareholders claim in Chancery Court. NETSPEND HOLDINGS: Still Awaits OK of "Baker" Suit Settlement ------------------------------------------------------------- NetSpend Holdings, Inc. is still awaiting court approval of its settlement of a class action lawsuit filed by Frederick J. Baker in New Jersey, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. Frederick J. Baker filed a purported consumer class action case against NetSpend, as well as one of its Issuing Banks and card associations (collectively, the "Defendants"), in the U.S District Court (the "Court") for the District of New Jersey in November 2008 seeking damages and unspecified equitable relief. In May 2009 Baker filed an amended complaint alleging that the Defendants violated the New Jersey Consumer Fraud Act (CFA), the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA) and claiming unjust enrichment in connection with the Defendants' alleged marketing, advertising, sale and post-sale handling of NetSpend's gift card product in the State of New Jersey. In March 2011, the court heard oral arguments on Defendants' motion to dismiss Baker's amended complaint. In January 2012, the court granted Defendants' motion in part and dismissed all claims except for the cause of action based on the alleged violation of the CFA. NetSpend filed its answer and affirmative defenses in February 2012. NetSpend has reached an agreement in principle with the attorneys representing the purported plaintiffs in this case to contribute approximately $0.1 million to a fund that would be used to reimburse the consumers who may have been inadvertently overcharged and to reimburse the attorneys representing the plaintiffs for up to $0.3 million in fees. This settlement is subject to approval by the Court. Austin, Texas-based NetSpend Holdings, Inc. was formed as a Delaware corporation on February 18, 2004 in connection with the recapitalization of one its current subsidiaries, NetSpend Corporation, which was founded in 1999. The Company is a program manager for the FDIC-insured depository institutions that issue the card products that the Company develops, promotes and distributes. OFFICEMAX: Being Sold to Office Depot for Too Little, Suit Claims ----------------------------------------------------------------- Courthouse News Service reports that OfficeMax is selling itself too cheaply to Office Depot, converting 2.69 OfficeMax shares into one Office Depot share, shareholders claim in a class action in Du Page County Court. PHILIP MORRIS: Appeal in Sao Paulo Prosecutor Suit Still Pending ---------------------------------------------------------------- An appeal from the dismissal of the class action lawsuit initiated by the Public Prosecutor of Sao Paulo against a subsidiary of Philip Morris International Inc. remains pending, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. Public Prosecutor of Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda., Civil Court of the City of Sao Paulo, Brazil, filed August 6, 2007, the Company's subsidiary is a defendant. The plaintiff, the Public Prosecutor of the State of Sao Paulo, is seeking (i) unspecified damages on behalf of all smokers nationwide, former smokers, and their relatives; (ii) unspecified damages on behalf of people exposed to environmental tobacco smoke ("ETS") nationwide, and their relatives; and (iii) reimbursement of the health care costs allegedly incurred for the treatment of tobacco-related diseases by all Brazilian States and Municipalities, and the Federal District. In an interim ruling issued in December 2007, the trial court limited the scope of this claim to the State of Sao Paulo only. In December 2008, the Seventh Civil Court of Sao Paulo issued a decision declaring that it lacked jurisdiction because the case involved issues similar to The Smoker Health Defense Association (ADESF) case and should be transferred to the Nineteenth Lower Civil Court in Sao Paulo where the ADESF case is pending. The court further stated that these cases should be consolidated for the purposes of judgment. In April 2010, the Sao Paulo Court of Appeals reversed the Seventh Civil Court's decision that consolidated the cases, finding that they are based on different legal claims and are progressing at different stages of proceedings. This case was returned to the Seventh Civil Court of Sao Paulo, and the Company's subsidiary filed its closing arguments in December 2010. In March 2012, the trial court dismissed the case on the merits. This decision has been appealed. No further updates were reported in the Company's latest SEC filing. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: Appeals in "ADESF" Suit Still Pending in Brazil -------------------------------------------------------------- In the first class action pending in Brazil, The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995, Philip Morris International Inc.'s subsidiary and another member of the industry are defendants. The plaintiff, a consumer organization, is seeking damages for smokers and former smokers and injunctive relief. The Civil Court of Sao Paulo found defendants liable without hearing evidence. The court did not assess moral or actual damages, which were to be assessed in a second phase of the case. The size of the class was not defined in the ruling. In April 2004, the court clarified its ruling, awarding "moral damages" of R$1,000 (approximately $540) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. Plaintiff has appealed. In addition, the defendants filed a constitutional appeal to the Federal Supreme Tribunal on the basis that the plaintiff did not have standing to bring the lawsuit. This appeal is still pending. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Bourassa" Suit in British Columbia Still Dormant ---------------------------------------------------------------- Philip Morris International Inc., its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants in Bourassa v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010. The plaintiff, the heir to a deceased smoker, alleges that the decedent was addicted to tobacco products and suffered from emphysema resulting from the use of tobacco products. She is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from chronic respiratory diseases allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. Defendants have filed jurisdictional challenges on the grounds that this action should not proceed during the pendency of the Saskatchewan class action, the Adams case. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Dorion" Suit in Alberta, Canada Still Dormant ------------------------------------------------------------- Philip Morris International Inc., its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry remain as defendants in Dorion v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Alberta, Canada, filed June 15, 2009. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic bronchitis and severe sinus infections resulting from the use of tobacco products. She is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. To date, the Company, its subsidiaries, and its indemnitees have not been properly served with the complaint. No activity in this case is anticipated while plaintiff's counsel pursues the class action filed in Saskatchewan, the Adams case. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: Hearing in "El-Roy" Suit Appeal Set for March 2014 ----------------------------------------------------------------- Oral hearing has been scheduled for March 2014 in an appeal in the class action lawsuit titled El-Roy, et al. v. Philip Morris Incorporated, et al., according to Philip Morris International Inc.'s February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. In the first class action pending in Israel, El-Roy, et al. v. Philip Morris Incorporated, et al., District Court of Tel- Aviv/Jaffa, Israel, filed January 18, 2004, the Company's subsidiary and its indemnitees (Philip Morris USA Inc. and its former importer) are defendants. The plaintiffs filed a purported class action claiming that the class members were misled by the descriptor "lights" into believing that lights cigarettes are safer than full flavor cigarettes. The claim seeks recovery of the purchase price of lights cigarettes and compensation for distress for each class member. Hearings took place in November and December 2008 regarding whether the case meets the legal requirements necessary to allow it to proceed as a class action. The parties' briefing on class certification was completed in March 2011. In November 2012, the court denied class certification and dismissed the individual claims. Plaintiffs have appealed and an oral hearing has been scheduled for March 2014. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Jacklin" Class Suit Remains Pending in Ontario -------------------------------------------------------------- The class action lawsuit commenced by Suzanne Jacklin against Philip Morris International Inc. remains pending, according to the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al., Ontario Superior Court of Justice, filed June 20, 2012, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD") resulting from the use of tobacco products. She is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, heart disease, or cancer, as well as restitution of profits. Plaintiff's counsel have indicated that they do not intend to take any action in this case in the near future. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Kunta" Suit in Winnipeg, Canada, Still Dormant -------------------------------------------------------------- In Kunta v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Winnipeg, Canada, filed June 12, 2009, Philip Morris International Inc., its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry remain as defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD"), severe asthma and mild reversible lung disease resulting from the use of tobacco products. She is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. In September 2009, plaintiff's counsel informed defendants that he did not anticipate taking any action in this case while he pursues the class action filed in Saskatchewan, the Adams case. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "McDermid" Suit in British Columbia Still Dormant ---------------------------------------------------------------- Philip Morris International Inc., its subsidiaries, and the Company's indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants in McDermid v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and heart disease resulting from the use of tobacco products. He is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from heart disease allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. Defendants have filed jurisdictional challenges on the grounds that this action should not proceed during the pendency of the Saskatchewan class action, the Adams case. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Navon" Suit Facing Dismissal -------------------------------------------- The class action lawsuit styled Navon, et al. v. Philip Morris Products USA, et al., will be dismissed if plaintiffs fail to take action by March 10, 2013, according to Philip Morris International Inc.'s February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. The claims in the class action pending in Israel, Navon, et al. v. Philip Morris Products USA, et al., District Court of Tel- Aviv/Jaffa, Israel, filed December 5, 2004, against the Company's indemnitee (the Company's distributor) and other members of the industry are similar to those in El-Roy, and the case is currently stayed pending a ruling on class certification in El-Roy case. In February 2013, the district court issued an order to dismiss the case if plaintiffs fail to take action by March 10, 2013. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: Initial Motions Still Pending in "Adams" Suit ------------------------------------------------------------ Preliminary motions are pending in the class action lawsuit styled Adams v. Canadian Tobacco Manufacturers' Council, et al., according to Philip Morris International Inc.'s February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. In the class action pending in Canada, Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada, filed July 10, 2009, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD") resulting from the use of tobacco products. She is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, emphysema, heart disease, or cancer, as well as restitution of profits. Preliminary motions are pending. No further updates were reported in the Company's latest SEC filing. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: "Semple" Suit in Nova Scotia Remains Dormant ----------------------------------------------------------- In the class action pending in Canada, Semple v. Canadian Tobacco Manufacturers' Council, et al., The Supreme Court (trial court), Nova Scotia, Canada, filed June 18, 2009, Philip Morris International Inc., its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD") resulting from the use of tobacco products. He is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. No activity in this case is anticipated while plaintiff's counsel pursues the class action filed in Saskatchewan, the Adams case. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PHILIP MORRIS: Trial in "Blais" Suit vs. Canadian Unit Ongoing -------------------------------------------------------------- In the class action pending in Canada, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in November 1998, Philip Morris International Inc.'s subsidiary and other Canadian manufacturers are defendants. The plaintiffs, an anti-smoking organization and an individual smoker, are seeking compensatory and unspecified punitive damages for each member of the class who allegedly suffers from certain smoking-related diseases. The class was certified in 2005. In February 2011, the trial court ruled that the federal government will remain as a third party in the case. In November 2012, the Court of Appeals dismissed defendants' third-party claims against the federal government. Trial began on March 12, 2012. At the present pace, the Company says trial is expected to last well into 2013 and possibly 2014, with a judgment to follow at an indeterminate point after the conclusion of the trial proceedings. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. PRESTIGE DELIVERY: Truckers' Suit to Proceed in Pennsylvania Court ------------------------------------------------------------------ Zack Needles, writing for The Legal Intelligencer, reports that a class-action case brought by two truck drivers who claim they were misclassified as independent contractors and deprived of employees' rights, privileges and benefits won't be heard in Ohio, according to an Allegheny County Common Pleas Court judge. Last month, Judge R. Stanton Wettick Jr. denied the preliminary objections of the three defendants in the case. In Watson v. Prestige Delivery Systems, according to Judge Wettick, plaintiffs Richard Watson and David Clary were truck drivers who delivered packages to customers of defendant Prestige Delivery Systems Inc. pursuant to an agreement with Prestige that refers to the drivers as an "independent contractor." Judge Wettick said the agreement requires each driver to be an affiliate of defendant National Independent Contractor Association, which provides third-party administrative services to independent contractors. Under the agreement, NICA is responsible for paying each driver. But the plaintiffs allege the defendants have misclassified them as independent contractors as part of a scheme to make illegal deductions from their pay. The defense filed preliminary objections arguing that, pursuant to the independent contractor agreement, the plaintiffs' claims must be brought in Ohio. But Judge Wettick said that forum selection clause cannot be enforced because it was not freely agreed to by the plaintiffs. He wrote that, because the clause was buried deep in the agreement under the heading "Entire Agreement," it's unlikely the plaintiffs were aware of the clause. He further reasoned: "In this case, the legislative goal of securing prompt payment of wages is thwarted if a worker must sue in Ohio rather than commencing an action before the local magisterial district court." The judge also overruled the defendants' objections to the plaintiffs' claims for unjust enrichment. PHILIP MORRIS: Trial in "Letourneau" Suit vs. Unit Ongoing ---------------------------------------------------------- In the class action pending in Canada, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in September 1998, Philip Morris International Inc.'s subsidiary and other Canadian manufacturers are defendants. The plaintiff, an individual smoker, is seeking compensatory and unspecified punitive damages for each member of the class who is deemed addicted to smoking. The class was certified in 2005. In February 2011, the trial court ruled that the federal government would remain as a third party in the case. In November 2012, the Court of Appeals dismissed defendants' third-party claims against the federal government. Trial began on March 12, 2012. At the present pace, the Company says trial is expected to last well into 2013 and possibly 2014, with a judgment to follow at an indeterminate point after the conclusion of the trial proceedings. No further updates were reported in the Company's February 22, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. New York-based Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes and other tobacco products in markets outside of the United States of America. RECKITT BENSICKER: Monopolizes Market for Suboxone, Suit Claims --------------------------------------------------------------- Courthouse News Service reports that Reckitt Bensicker monopolized the market for Suboxone, (buprenorphine hydrochloride and naloxone hydrochloride dehydrate), a union claims in a federal antitrust class action. SPI ELECTRICITY: Black Saturday Bushfire Preventable, Lawyer Says ----------------------------------------------------------------- Emily Portelli, writing for Herald Sun, reports that weeping people fled the courtroom on March 4 as emotional amateur footage was played depicting the moment a deadly Black Saturday "fire tornado", which killed more than 100 people, approached St Andrews homes. The lead plaintiff in the class action for compensation, Carol Matthews, cried through the four-and-a-half-minute video, shot only kilometers from the St Andrews home in which her 22-year-old son, Sam, died on February 7, 2009. Robert Richter, QC, for Mrs. Matthews, told the court the "entirely preventable" Kilmore East-King Lake fire was sparked due to the negligence of energy provider SPI Electricity. "They did none of the things they should have done to prevent this old line from collapsing on Black Saturday and sparking the inferno that it did," Mr. Richter told a packed courtroom. The fire killed 119 people, destroyed 1200 homes and caused an estimated $1 billion damage. The court heard Sam Matthews, trained to fight fires by the CFA, told his mother on the phone as the inferno approached that a tree near the family home had just exploded. Mr. Richter said she directed him to go to the bathroom and heard the windows explode. He said phone records show she unsuccessfully tried to call her son 15 more times, but he had died when the house burned down. Mrs. Matthews claims she has suffered significant psychological injuries as a result. She represents more than 10,000 group members -- including Darrin Gibson, who lost his partner, their two young daughters, three-year-old son, and parts of both his feet, which melted as he tried to save him family. Mrs. Matthews is also suing maintenance contractor Utility Services Corporation Limited, alleging it was negligent in its inspection and maintenance of the powerline, and the Department of Sustainability and Environment for allegedly failing to reduce fuel loads. The DSE, CFA and Victoria Police are also facing allegations they failed to give appropriate warnings about the bushfire. Mrs. Matthews had alleged the CFA was negligent in failing to suppress the fire, but the claim was settled. All the defendants deny the allegations and are fighting the claims. In two separate recovery proceedings, the state government entities are claiming compensation for damage to government property from SPI and USC. The Transport Accident Commission and the Victorian Workcover Authority are also claiming indemnity from payments made as a result of the bushfire from the power companies. Justice Jack Forrest said he complied with the parties' requests to not read any report or documentation from the 2009 Victorian Bushfires Royal Commission, so "the trial starts on a blank canvas". The total number of group members in the proceeding is estimated to be 10,450, of whom at least 1,100 bring personal injury claims, 5,950 bring property damage claims and 3,400 bring property damage and personal injury claims. Affected people have until March 22 to register to join the group. The Victorian government funded a purpose-built courtroom to accommodate the teams of barristers, dozens of expert witnesses and large numbers of people interested in attending the trial. The thousands involved directly in the class action can watch the proceedings streamed live on the internet. The trial is expected to run for nine months, but if liability is established, there could be years of further hearings on sub- issues of liability and damages. Opening submissions began on March 4 and will last for one week. The Black Saturday bushfires in February 2009 killed 173 people. Four cases brought in relation to the other fires have settled. Jane Lee, writing for The Age, reports that electricity company SP Ausnet's failure to prevent a damaged power line from collapsing negligently caused Black Saturday's deadliest blaze, a court has heard. The first day of Victoria's largest civil class action began in the Supreme Court on March with an opening address from Mr. Richter, on behalf of 10,500 people who were affected by the fire in Kilmore East that claimed 119 lives. Mr. Richter said that the fire could have been prevented if SP Ausnet had performed a number of simple tests which would have shown it was unsafe. SPI knew that the 43-year-old power line which sparked the fire had failed previously, was rusting and had been struck by lightning at least twice before, he said. It also knew that this would have produced cracks in the line over a number of years in a CFA-designated high-risk bushfire area. "SPI might be right to say they did nothing to cause it . . . but they did none of the things they should have done to prevent this damaged line from collapsing and because they did nothing, they are liable for what they could have done before Black Saturday," Mr. Richter said. "When you're dealing with the unknown it's your duty to find out and if you're not satisfied its safe it's your duty to replace conductor," he said. SPI was expected to plead in its opening address on March 5 that it could not have known about the lightning strike, which Mr. Richter called "laughable." "Lightning striking electrical poles is something an electricity company lives. "They knew what damage it could cause . . . unless (the line was) replaced or mitigated. They knew because electricity is their business." Royal Commission's Opinion According to 3AW Radio, concerns over the class action were raised after an expert who gave evidence at the Royal Commission into Black Saturday changed this opinion on the cause of the fires. Harry Better told the Royal Commission into the fires that a misaligned power line connection could be at fault, but he has now said a lightning strike may have initiated cracks in the power lines. Andrew Watson from Maurice Blackburn said the revised opinion is irrelevant and maintains Singapore-owned energy company SP Ausnet had an "inadequate asset management system". SUMMER GARDEN: Recalls 25,000 Lbs. of Bolognese Sauce Products -------------------------------------------------------------- Summer Garden Food Manufacturing, a Boardman, Ohio establishment, is recalling approximately 25,000 lbs. of Bolognese sauce products because of undeclared allergens and misbranding. The products contain soy, wheat and MSG that are not declared on the label. Soy and wheat are known allergens. The following products are subject to recall: * 24-oz. jars of "Giant Eagle Market District Bolognese Pasta Sauce" bearing the establishment number "EST. 34795" inside the USDA mark of inspection and bearing "Best By 12/05/2014 or 02/06/2015" on the lid. The products were produced on December 5, 2012, and February 6, 2013, and shipped to distributors in Ohio and Pennsylvania for further retail sales. Pictures of the recalled products' labels are available at: http://is.gd/jbFZXV The problem was discovered by the Company during a quality control label review. The Company then notified FSIS that the subcomponents of the cooked seasoned shredded beef were not included on the pasta sauce label. The subcomponents of the beef in the Bolognese sauce include soy, wheat and MSG. FSIS and the Company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a health care provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and to ensure that steps are taken to make certain that the product is no longer available to consumers. Consumers and members of the media with questions about the recall should contact Yvonne St. Pierre, the Company's Receptionist/ Administrative Clerk, at (330) 743-6050 extension 1100. 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. UNITED STATES: Judge Certifies Class Action of Black Agents ----------------------------------------------------------- Ryan Abbott at Courthouse News Service reports that black special agents with the Secret Service can advance race bias claims as a class, with the help of an expert statistician, a federal judge ruled. Eight current and former agents led by Reginald Moore have been fighting the Secret Service and the Department of Homeland Security in their discrimination suit since 2000. U.S. District Judge Richard Roberts has certified a class of black current and former SAs who say they have been denied promotions because of their race. The Secret Service evaluates agents for promotions through its Special Agent Merit Promotion Program (MPP). The MPP evaluates and grades the agents across several levels and combines with recommendations made by an advisory board to fill vacant positions. The plaintiffs say the process is unfair to black agents applying for GS-13 and 14 positions. Moore, for example, has been a Secret Service agent for more than 20 years, serving as a GS-13 agent in the Operations Section and the White House Joint Operations Center. He claims to have bid unsuccessfully for more than 180 GS-14 positions from 1999 to 2002. At one point, he had even been assigned to train a white agent for the position he had wanted. "Moore eventually was promoted to a GS-14 and a GS-15 position, but he alleges that his promotions came only after being transferred to a Chicago field office, serving as an agent for 18 years, and, filing an EEO complaint and a lawsuit," according to the ruling, which abbreviates Equal Employment Office. The statistician that the class retained as an expert witness, Dr. Charles Mann, filed a report with the court concluding that the government's promotions process has an adverse impact on black agents. Judge Roberts refused to exclude such testimony in the same ruling. "The plaintiffs have shown by a preponderance of the evidence that Dr. Charles Mann is qualified to offer expert statistical testimony and that his testimony is relevant and reliable," he wrote. The ruling notes that Mann plans to testify that "the use of MPP scores to create a cut-off for inclusion on the best qualified list disproportionately disqualifies African-American Special Agents for promotion." Mann also claims to have found a "statistically significant racial disparity in GS-14 and GS-15 promotions for the background period and the class period," according to the ruling. The class period covers all black special agents who applied for and were denied GS-14 and GS-15 promotions between 1994 and 2005, on their first bid list. These parameters exclude special agents who served as an assistant director, deputy director or director of the Secret Service. Vindication for the black agents comes on the heels of adverse ruling for an unrelated group of 45 agents claiming age discrimination. In February, U.S. District Judge Richard Leon threw out claims from all but four agents challenging new bureau term limits for squad supervisor positions. The FBI has failed thus far to prove that the four remaining agents failed to timely file their complaints with the Equal Employment Opportunity Commission. In the racial discrimination case, Judge Roberts appointed John Relman, Jennifer Klar and Megan Cacace, of Relman, Dane & Colfax, to serve as class counsel along with Desmond Hogan of Hogan Lovells. By March 18, the plaintiffs must propose a notice that would recruit eligible class members. VODAFONE: Law Firm Won't Provide Details on Class Action Sign-Ups ----------------------------------------------------------------- Allie Coyne, writing for iTnews.com.au, reports that the law firm behind a class action lawsuit leveled at Vodafone has refused to provide any details on the number of people who signed up to the suit in the first week of registrations going live. Law firm Piper Alderman recently announced it would end two years of investigation and launch a class action lawsuit against Vodafone by the end of May. A potential suit was first floated in December 2010 in reaction to alleged poor service and reception issues on Vodafone's mobile network. The law firm said around 20,000 people had indicated interest, and it expected a damages award in the tens of millions of dollars. The firm created a new Web site for unhappy Vodafone customers to formally register for the lawsuit, aiming for 23,000 sign-ups in the next three months. On March 4, it declined to reveal how many Vodafone users had formally signed up to the suit in the first week of open registrations. Piper Alderman partner Sasha Ivantsoff told iTnews the firm would not reveal any figures for at least another month. He said the law firm had received "thousands" of responses over telephone and e-mail. He would not provide a base figure of participants needed for the lawsuit, but said it needed to be commercially viable for the funding partner behind the lawsuit, LCM. LCM prefers to undertake projects in which the legal claim exceeds AUD2.5 million, according to its Web site. The litigation company charges between 35 and 50 percent of the amount recovered from the claim. Mr. Ivantsoff said that for a class action to go ahead, it required a minimum of seven participants. He said Piper Alderman would not proceed with the class action with that small a number. "We're always said there needs to be a critical mass of numbers for the case to proceed," he said. "If we get that it'll go ahead, if we don't, it won't." Piper Alderman currently has around five class actions on its books. It previously spearheaded the 2010 AUD16 million class action against Standard & Poor's, instigated by local councils over lost millions related to credit ratings, as well as the joint councils class action against investment firm Lehman Brothers in 2011. Vodafone said the firm was known for promoting class actions suits, a claim Mr. Ivantsoff rebuffed. "We only take on the cases that we think have significant merit - Lehman Brothers being a case in point, Standard & Poor's being a case in point," he said. "We only do something if it's got merit." Telecommunications consumer advocate group ACCAN (Australian Communications Consumer Advocate Network) called the class action a "lawyer's picnic" and said disaffected Vodafone users should avoid the lawsuit and take their complaints to the Telecommunications Industry Ombudsman (TIO). Mr. Ivantsoff said the TIO had inadequate powers to properly deal with complaints. "The TIO does a good job of helping people out but there are some things they can't do -- one of those is bind Vodafone to a resolution, they can only mediate," he said. "So if people have a significant damages claim, there's nothing they can do to force Vodafone to pay it. "The TIO also can't impose any consequence on Vodafone for poor service. We've also found out in the last couple of days that the wait time is currently 13 weeks minimum before they can even look at an application." Mr. Ivantsoff conceded the law firm may experience drop off in interest following the lengthy two-year campaign, but said the company expected significant numbers to join up to the lawsuit. Vodafone's Response Patrick Stafford, writing for SmartCompany, reports that Vodafone has attempted to brush off fears of a mounting class action against the company, but at least one expert warns it will take a few more years for the embattled telco to restore its reputation in the eyes of customers. New comments from chief executive Bill Morrow indicate the company isn't concerned about the impact of the class-action, while also claiming it will roll out the fastest 4G network in the country later this year. New reports also suggest the business is attempting to boost its local workforce by hiring more customer service workers in Tasmania. "I think it'll take them four to five years to come back from the issues they had back in 2010 and 2011," independent telco analyst Chris Coughlan told SmartCompany on March 4. "When Vodafone first launched it had a bad reputation, and it didn't take off because of that. It's just going to take the company a while." Mr. Morrow says the business has received no negative impact from the class-action, which he argued hasn't even gotten off the ground. "There is not a class action suit actually filed but an ongoing attempt to actually gather one, first launched in 2010. The firm is claiming to have 23,000 signatures, the same number they reported two years ago," told The Australian. "If there is any customer who is unhappy with their service, for any reason, we want to hear from them." The comment comes after law firm Piper Alderman said it would proceed with the class action within three months. The action began in 2010 after complaints over poor signal coverage, and was exacerbated in 2011 when the company suffered downtime over the Easter break. The slow rollout of the company's 4G network has also been used as evidence the company is falling behind, although Mr. Morrow says the company's will be the "fastest" in the country by the end of the year. Mr. Morrow told The Australian, "We are going to be able to offer the fastest data speeds available" because of the network's ample spectrum. "So we are the only ones today, and at least until 2015, that can offer the fastest 4G speeds but we haven't exploited that enough yet." The company confirmed on March 4 it has no timetable for rolling out 4G services, although a spokesperson confirmed "mid-year" this morning. The damage control also has continued as the company confirmed it would increase the number of staff at its Tasmania call center, with Mr. Morrow saying the business has received the message customers want to speak to someone in Australia rather than overseas. Despite all these moves, which Mr. Coughlan says are all good things, it's simply going to take time for the company to improve its image. "I think they're doing most of the right things, including spending more on the network and trying to fix all the problems they had in the past." "But it's just a matter of time, and it's a matter of just making sure their performance continues to lift." Vodafone is spending over $1 billion this year in network upgrades. * 2nd Cir. Dismisses $300BB Auction-Rate Antitrust Case ------------------------------------------------------- The Litigation Daily reports that the collapse of the $300 billion auction-rate securities market in 2008 spawned a massive antitrust case, after a trio of plaintiffs firms cooked up a theory that the market's demise was triggered by an illegal boycott on the part of major banks. The Second Circuit on March 5 affirmed a prior decision dismissing the case, ruling that the putative class of ARS purchasers and issuers failed to piece together a viable antitrust case. ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *