/raid1/www/Hosts/bankrupt/CAR_Public/130313.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, March 13, 2013, Vol. 15, No. 51
Headlines
AARON'S INC: Parties Working on Next Steps for "Kunstmann" Suit
AARON'S INC: Plaintiffs Seek Class Standing in "Korrow" Suit
AARON'S INC: Time to Add Class Members in "Jewell" Suit Expires
AMGEN INC: Court Ruling Have Practical Implications for Litigants
ANHEUSER-BUSCH: Disputes Claims Over Budweiser Alcohol Content
AT&T INC: Awaits Final Approval of "MBA Surety" Suit Settlement
AT&T INC: Final Approval Hearing of Wage and Hour Deal on April 5
BANK OF AMERICA: 2nd Cir. Affirms Antitrust Class Action Dismissal
BANKSIA SECURITIES: Fails to Set Aside Enough Money for Bad Debts
BELL MOBILITY: Class Action Proceedings Over 911 Fees Set to Begin
BIOCLINICA INC: Faces Merger-Related Class Suits in Delaware
BOSTON SCIENTIFIC: Defends Product Liability Suits vs. Guidant
CAMERON INT'L: Deepwater Horizon Suit Deal Approved in December
CHARBONNEAU COMMISSION: Faces Class Action Over Tax Hike
CONVERGYS CORP: Judge Declares Class Action Waivers Unenforceable
FREEPORT-MCMORAN: Faces Merger-Related Class Suits in Delaware
GERDAU AMERISTEEL: Opposes Steel Price-Fixing Class Certification
IMPAX LABORATORIES: Faces Class Action Over Misleading Statements
INCYTE CORP: Faces Suit Over Fraud-Induced Inflated Prices
J.B. HUNT: To Seek Stay of Further Proceedings in California Suit
JOHNS HOPKINS: Faces Suit Over Videotaping of OB-Gyne Patients
K12 INC: Securities Class Action Voluntarily Dismissed
KFORCE INC: Appeal From California Suit Settlement Still Pending
KRAFT FOODS: Workers' Class Suit Settlement Gets Court Approval
MANPOWERGROUP INC: Has Deal to Settle Class Suit
MCMORAN EXPLORATION: Defends Merger Suits in Delaware & Louisiana
METLIFE INSURANCE: Faces Class Action Over Charging Benefit Rider
METROPOLITAN MUSEUM: Faces Class Action Over $25 Admission Fee
NATALIE SALON: Settles Ex-Workers' Class Action for $750,000
NEW YORK: Faces Class Action Over Solitary Confinement
NORTHERN LEASING: To Pay $4.1MM in Accord With NY Atty General
NYSE EURONEXT: Judge Refuses to Nix Shareholder Class Action
PITTSBURGH, PA: Settles Firefighters' Overtime Class Action
PORTLAND GENERAL: Ore. Appeals Court Uphold 2008 Order on Refund
RADIAN GROUP: Still Defends Suits Alleging RESPA Violations
RAMBUS INC: Continues to Defend Securities Fraud Class Suits
RED ROBIN: Faces Class Action Over Violation of Labor Laws
SAMSUNG: Customer Balks at Detective TV Settlement Cutoff Date
SP AUSNET: Impact of Class Action Payout on Finances Uncertain
STATE STREET: Continues to Face Suit Over SSgA-Managed Funds
STATE STREET: Four Shareholder Suits Still Pending in Boston
STATE STREET: Still Defends Class Suits Over Forex Transactions
STATE STREET: Still Defends Suits by TAG Clients
TREX COMPANY: Dist. Court Enforces "Ross" Class Suit Settlement
UNUM GROUP: Seeks Reconsideration of Judgment in "Merrimon" Suit
VISA INC: Startup Firm to Cash In on $7BB Swipe-Fee Settlement
WEST COAST ULTRASOUND: Sued Over False Promise to Students
XCEL ENERGY: Appeal From Dismissal of "Comer II" Suit Pending
* Vit. C Class Action Plaintiffs Take on Defendants' Star Witness
* Mortgage Buyer Falls Flat on Discounted Debt
*********
AARON'S INC: Parties Working on Next Steps for "Kunstmann" Suit
---------------------------------------------------------------
In Kunstmann et al v. Aaron Rents, Inc., originally filed with the
United States District Court, Northern District of Alabama (Case
No.: 2:08-CV-1969-WMA), on October 29, 2008, plaintiffs alleged
that the Company improperly classified store general managers as
exempt from the overtime provisions of the Fair Labor Standards
Act. Aaron's, Inc. is previously known as Aaron Rents, Inc.
Plaintiffs seek to recover unpaid overtime compensation and other
damages for a class almost exclusively comprised of former general
managers, most of whom terminated employment with the Company more
than a year ago.
On October 4, 2012, the Court denied the Company's motion for
summary judgment as to Mr. Kunstmann individually, and on
January 23, 2013, the Court denied the Company's motion for
decertification of the class. The current class includes 247
individuals.
The parties are now working on proposing next steps for the
conduct of the case, 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 believes it has meritorious defenses to all of the
claims, and intends to vigorously defend against the claims.
However, these proceedings are still developing and due to the
inherent uncertainty in litigation and similar adversarial
proceedings, there can be no guarantee that the Company will
ultimately be successful in these proceedings, or in others to
which the Company is currently a party. Substantial losses from
legal proceedings or the costs of defending them could have a
material adverse impact upon the Company's business, financial
position and results of operations.
Headquartered in Atlanta, Georgia, Aaron's, Inc. is a specialty
retailer of consumer electronics, computers, residential
furniture, household appliances and accessories. The Company
engages in the lease ownership, lease and retail sale of a wide
variety of products, such as widescreen and LCD televisions,
computers, living room, dining room and bedroom furniture,
washers, dryers and refrigerators.
AARON'S INC: Plaintiffs Seek Class Standing in "Korrow" Suit
------------------------------------------------------------
Margaret Korrow, et al. seek certification of a class in their
lawsuit against Aaron's, 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.
In Margaret Korrow, et al. v. Aaron's, Inc., originally filed in
the Superior Court of New Jersey, Middlesex County, Law Division,
on October 26, 2010, plaintiff filed lawsuit on behalf of herself
and others similarly situated alleging that the Company is liable
in damages to plaintiff and each class member because the
Company's lease agreements issued after March 16, 2006,
purportedly violated certain New Jersey state consumer statutes.
The Company removed the lawsuit to the United States District
Court for the District of New Jersey on December 6, 2010 (Civil
Action No.: 10-06317(JAP)(LHG)). Plaintiff, on behalf of herself
and others similarly situated seeks equitable relief, statutory
and treble damages, pre- and post-judgment interest and attorneys'
fees. Discovery on this matter is closed. To date, no class has
been certified and, on December 17, 2012, the Company moved to
dismiss the class allegations from plaintiff's complaint. On
February 5, 2013, plaintiff filed its response and also moved to
certify the class.
The Company believes it has meritorious defenses to all of the
claims, and intends to vigorously defend against the claims.
However, these proceedings are still developing and due to the
inherent uncertainty in litigation and similar adversarial
proceedings, there can be no guarantee that the Company will
ultimately be successful in these proceedings, or in others to
which the Company is currently a party. Substantial losses from
legal proceedings or the costs of defending them could have a
material adverse impact upon the Company's business, financial
position and results of operations.
Headquartered in Atlanta, Georgia, Aaron's, Inc. is a specialty
retailer of consumer electronics, computers, residential
furniture, household appliances and accessories. The Company
engages in the lease ownership, lease and retail sale of a wide
variety of products, such as widescreen and LCD televisions,
computers, living room, dining room and bedroom furniture,
washers, dryers and refrigerators.
AARON'S INC: Time to Add Class Members in "Jewell" Suit Expires
---------------------------------------------------------------
With limited exceptions, the time period for additional members to
be added to the class in the lawsuit styled Kurtis Jewell v.
Aaron's, Inc. has expired, 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 matter of Kurtis Jewell v. Aaron's, Inc. was originally filed
in the United States District Court, Northern District of Ohio,
Eastern Division on October 28, 2011, and was transferred on
February 23, 2012, to the United States District Court for the
Northern District of Georgia (Atlanta Division) (Civil No.:1:12-
CV-00563-AT). Plaintiff, on behalf of himself and all other non-
exempt employees who worked in Company stores, alleges that the
Company violated the Fair Labor Standards Act ("FLSA") when it
automatically deducted 30 minutes from employees' time for meal
breaks on days when plaintiffs allegedly did not take their meal
breaks. Plaintiff claims he and other employees actually worked
through meal breaks or were interrupted during the course of their
meal breaks and asked to perform work. As a result of the
automatic deduction, plaintiff alleges that the Company failed to
account for all of his working hours when it calculated overtime,
and consequently underpaid him. On September 28, 2012, the Court
issued an order granting conditional certification of a class
consisting of all hourly store employees from October 27, 2008, to
the present. The current class size is 1,788, which is less than
seven percent of the potential class members. With limited
exceptions, the time period for additional members to be added to
the class has expired.
The Company believes it has meritorious defenses to all of the
claims, and intends to vigorously defend against the claims.
However, these proceedings are still developing and due to the
inherent uncertainty in litigation and similar adversarial
proceedings, there can be no guarantee that the Company will
ultimately be successful in these proceedings, or in others to
which the Company is currently a party. Substantial losses from
legal proceedings or the costs of defending them could have a
material adverse impact upon the Company's business, financial
position and results of operations.
Headquartered in Atlanta, Georgia, Aaron's, Inc. is a specialty
retailer of consumer electronics, computers, residential
furniture, household appliances and accessories. The Company
engages in the lease ownership, lease and retail sale of a wide
variety of products, such as widescreen and LCD televisions,
computers, living room, dining room and bedroom furniture,
washers, dryers and refrigerators.
AMGEN INC: Court Ruling Have Practical Implications for Litigants
-----------------------------------------------------------------
Steven R. Paradise, Esq. -- sparadise@velaw.com -- Jennifer B.
Poppe, Esq. -- jpoppe@velaw.com -- and Alithea Z. Sullivan, Esq.
-- asullivan@velaw.com -- at Vinson & Elkins LLP report that the
Supreme Court of the United States decided a long-anticipated and
important securities-law case on March 4, holding that plaintiffs
in a federal securities-fraud class action need not prove
materiality of a misrepresentation to obtain class certification.
In Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, a
divided Court affirmed a Ninth Circuit decision and resolved a
circuit split on this issue critical in many securities-fraud
class actions. This decision will make it more challenging for
defendants to defeat class action lawsuits in those Circuits that
had previously required a showing of materiality to obtain class
certification, and thus may lead to more securities lawsuit
filings. At the same time, however, language in the opinion may
be read to signal that lower courts should apply closer scrutiny
to materiality on motions for summary judgment, and thus
defendants may have greater success defeating claims before trial.
The Amgen Decision
As observed in V&E's recent elert on the initial grant of certiori
in Amgen, materiality is relevant at the class-certification stage
because it is a component of the "fraud-on-the-market" theory of
reliance. In a securities-fraud case, requiring proof of reliance
would likely preclude class certification because it would require
raising questions as to whether each plaintiff relied on the
alleged misrepresentation, and therefore could not be resolved on
a class-wide basis. To resolve this issue, the Supreme Court held
in Basic Inc. v. Levinson that a prospective class of plaintiffs
could invoke a rebuttable presumption of reliance by resorting to
the "fraud on the market theory," which provides that "[a]n
investor who buys or sells stock at the price set by the market
does so in reliance on the integrity of that price." In the
intervening quarter-century since Basic was decided, Courts of
Appeals have divided over whether plaintiffs must prove at the
class certification stage that the misstatement at issue is
"material." The First, Second, and Fifth Circuits have held that
a materiality showing is required at the class certification
stage, while the Third, Seventh, and Ninth Circuits have held that
it is not.
In Amgen, the Court sided with the Third, Seventh, and Ninth
Circuits in rejecting a materiality requirement at the class-
certification stage. In doing so, the Court acknowledged that
materiality is an element of the fraud-on-the-market presumption.
But the Court reasoned that it did not need to be proved at the
class certification stage because "[t]he question of materiality
. . . is an objective one . . . materiality is a 'common
questio[n]' for purposes of Rule 23(b)(3)." The Court also rested
its decision on the fact that "there is no risk whatever that a
failure of proof on the common question of materiality will result
in individual questions predominating." Because materiality is an
essential element of a Rule 10b-5 claim, if a plaintiff could not
demonstrate materiality, the failure "would not cause individual
reliance questions to overwhelm the questions common to the class"
-- rather, such failure would simply end the case.
In reaching its decision, the Court rejected Amgen's argument that
since market efficiency, publicity, and materiality can all be
proved on a classwide basis and are all essential predicates of
the fraud-on-the-market theory, they should all be proven at the
class certification stage. Unlike materiality, market efficiency
and publicity -- which all parties agreed must be proven at class
certification -- are not also elements of a Rule 10b-5 claim.
"Materiality thus differs from the market-efficiency and publicity
predicates in this critical respect: While the failure of common,
classwide proof on the issues of market efficiency and publicity
leaves open the prospect of individualized proof of reliance, the
failure of common proof on the issue of materiality ends the case
for the class and for all individuals alleged to compose the
class. . . . Because a failure of proof on the issue of
materiality, unlike the issues of market efficiency and publicity,
does not give rise to any prospect of individual questions
overwhelming common ones, materiality need not be proved prior to
Rule 23(b)(3) class certification."
The Court also considered policy rationales in rejecting a
requirement that materiality be proven before certifying a class.
First, the Court reasoned that because Congress has recently
considered, but rejected, legislation that would have eliminated
Basic's fraud-on-the-market presumption of reliance, it was
improper to impose judicially an additional class-certification
requirement. Second, the Court rejected the notion that it would
be more efficient to resolve the issue of materiality at class
certification, explaining that a materiality inquiry at the early
stage of class certification would "necessitate a mini-trial on
the issue of materiality" that "would entail considerable
expenditures of time and resources" that may need to be reexamined
at trial. On these bases, the Court declared that "[w]e have no
warrant to encumber securities-fraud litigation by adopting an
atextual requirement of precertification proof of materiality that
Congress, despite its extensive involvement in the securities
field, has not sanctioned."
Potential Consequences of the Amgen Decision
The March 4 Amgen decision may have several practical implications
for litigants. First, it alters the prevailing, defendant-
friendly rule in the First, Second, and Fifth Circuits, which had
previously required proof of materiality at the class
certification stage. For litigants in these Circuits, class
certification will be awarded more readily, thus tending to
increase the "in terrorem power" of class litigation and
settlement pressure on defendants. This increase in settlement
leverage, in turn, could increase plaintiffs' incentives to file
securities class-action lawsuits.
Second, after a long line of pro-defendant securities-fraud case
decisions, Amgen is the second consecutive decision favoring
plaintiffs alleging securities fraud, following 2011's Erica P.
John Fund v. Halliburton, which rejected the Fifth Circuit's
requirement that a plaintiff prove loss causation to obtain class
certification. It is important to note, however, that each of the
last two decisions focused on the requirements for obtaining class
certification, while the earlier decisions addressed pleading
requirements. Thus, the Court may feel that having raised the bar
to pleading a securities fraud claim, it does not want to keep the
bar as high at the class certification stage, preferring to permit
plaintiffs to advance to the proof stage and provide defendants an
opportunity to defeat deficient claims on their merits on summary
judgment or at trial.
Third, the decision also provides additional support for the
contention that materiality can and should be resolved at the
summary judgment stage. Thus, the Court stressed that materiality
is an objective inquiry, and repeatedly stated that materiality
may appropriately be addressed on summary judgment. Besides
highlighting the importance of the materiality element in a Rule
10b-5 class action, these statements suggest that defendants may
have greater success in challenging materiality on motions for
summary judgment.
Finally, Amgen is significant for what it did not decide --
namely, the wisdom of maintaining the Basic framework at all. In
a brief concurrence, Justice Alito stated that he joined the
majority opinion "with the understanding that the petitioners did
not ask us to revisit Basic's fraud-on-the-market presumption,"
and stressed that he and the three dissenting Justices believe
that in light of post-Basic developments in economic theory,
"reconsideration of the Basic presumption may be appropriate."
If Justice Alito and the dissenters can gain a single vote in a
case in which the issue is squarely presented, Basic's framework
could be vulnerable.
ANHEUSER-BUSCH: Disputes Claims Over Budweiser Alcohol Content
--------------------------------------------------------------
Insurance Journal reports that the maker of Budweiser is using
splashy newspaper ads to poke fun at a lawsuit that alleges its
beer is watered down. In full-page ads in 10 U.S. newspapers on
March 3, including The New York Times and Los Angeles Times,
Anheuser-Busch InBev shows one of the 71 million cans of drinking
water it has sent to the American Red Cross and other relief
organizations responding to disasters.
"They must have tested one of these," the ad says.
The class action lawsuit, filed in several states, accuses the
brewer of cheating consumers out of the stated alcohol percentage
by adding water just before bottling its beers. Lawsuits have
been filed in California, Colorado, Ohio, Missouri, New Jersey,
Pennsylvania and Texas so far. Each seeks at least $5 million in
damages.
The water cuts the alcohol content by 3% to 8%, according to the
lawsuit's lead lawyer, Josh Boxer. The lawsuits are based on
information from former employees at the company's 13 U.S.
breweries, some in high-level plant positions, he has said.
Anheuser-Busch InBev says the claims are groundless. In the ads,
the company calls its beer "the best beer we know how to brew."
"We take no shortcuts and make no exceptions. Ever."
Neither the ads nor a statement by an Anheuser-Busch spokesman on
March 3 directly address the complaint. "We never waver on
quality," a spokesman said in the statement.
Mr. Boxer said in a statement on March 3 that the ads amount to
"classic non-denial denials." He said that the company will be
asked to produce internal alcohol testing data in court that will
prove his case.
"These alcohol readings, taken six times a second as the finished
product is bottled, will confirm the allegations made by the
growing number of former employees who keep coming forward to tell
us the truth," he said.
The suit involves 10 Anheuser-Busch products: Budweiser, Bud Ice,
Bud Light Platinum, Michelob, Michelob Ultra, Hurricane High
Gravity Lager, King Cobra, Busch Ice, Natural Ice and Bud Light
Lime.
Anheuser-Busch, based in St. Louis, Missouri, merged with InBev in
2008 to form the world's largest alcohol producer, headquartered
in Belgium. In 2011, the company produced 10 billion gallons (3.8
billion liters) of malt beverages, 3 billion (11.4 billion liters)
of them in the U.S., and reported $22 billion profit from that
category, the lawsuit said.
According to KIMT.com, although the mislabeling of alcohol content
has garnered a media circus of attention, a local brewery owner
says this process is all but common when it comes to large beer
companies.
"I really don't think theres probably much validity in the claims.
All big brewers technically water down their beer but their making
a higher gravity beer. A stronger beer to start with and then
they water it down at the canning and bottling process and that
saves millions of dollars," said Peter Ausenhus, Co-Founder and
Master Brewer of Worth Brewing County.
Most large-scale breweries add up to 30% rice or corn syrup as a
way to add additional flavor to already watered down beer.
Although this may mimic the flavors generally associated with your
favorite beers, this also hides the fact that the beers are much
'weaker' then advertised.
With growing skepticism as to the validity behind many of our
favorite beers grows, Ausenhus believes that no brewery, big or
small, would want to risk such a potential PR disaster and thus
would label and produce beer with integrity.
"Anything that sends doubt into the consumers mind about what your
putting into your product or not putting into your product isn't a
good thing. So it's very important that its actually what is on
the label, whether its alcohol or the other ingredients or any
other kind of preservatives or things that would be put in beer
that's vital, that that's accurate on the label," says
Mr. Ausenhus.
Anheuser-Busch has denied the lawsuit's claims and states it has
not engaged in any deceptive practices involving watering down
their product. No trial dates have been set for the moment.
According to The Wall Street Journal's Jacob Gershman,
"First our subs are too short. Now we're told our beer is too
watery. It's enough to make you suspect a corporate conspiracy to
make us thinner."
But here's one difference between the class-action suits against
Subway and the ones accusing Anheuser-Busch InBev NV of
mislabeling the alcohol content of Budweiser, Bud Ice, Michelob
and other beers.
The "Footlong" plaintiffs substantiated their claims by purchasing
subs and using a ruler to measure their length. How do the beer
plaintiffs know that Anheuser-Busch is allegedly watering down its
brews? Did they notice people walking out of Fenway Park in a
suspiciously straight line?
The answer, at this point in the litigation, is we don't really
know.
AT&T INC: Awaits Final Approval of "MBA Surety" Suit Settlement
---------------------------------------------------------------
AT&T Inc. is awaiting final approval of its settlement of a class
action lawsuit brought by MBA Surety Agency, 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.
In October 2010, the Company's wireless subsidiary was served with
a purported class action in Circuit Court, Cole County, Missouri
(MBA Surety Agency, Inc. v. AT&T Mobility, LLC), in which the
plaintiffs contend that the Company violated the Federal
Communications Commission's rules by collecting Universal Service
Fees on certain services not subject to such fees, including
Internet access service provided over wireless handsets commonly
called "smartphones" and wireless data cards, as well as
collecting certain other state and local fees. Plaintiffs define
the class as all persons who from April 1, 2003, until the present
had a contractual relationship with the Company for Internet
access through a smartphone or a wireless data card. Plaintiffs
seek an unspecified amount of damages as well as injunctive
relief. In October 2012, the Circuit Court in St. Louis,
Missouri, to which the case had been transferred, granted
preliminary approval to a settlement in which the Company receives
a complete release of claims from members of the settlement class.
Under the settlement, the Company's liability to the class and its
counsel is capped at approximately $150 million, the amount that
was collected from customers but not owed or remitted to the
government. The court has scheduled a final fairness hearing in
February 2013.
A Fortune 500 company, AT&T Inc. is one of the 30 stocks that make
up the Dow Jones Industrial Average. The Company's segments are
strategic business units that offer different products and
services over various technology platforms. The Company is
headquartered in Dallas, Texas.
AT&T INC: Final Approval Hearing of Wage and Hour Deal on April 5
-----------------------------------------------------------------
The final approval hearing of AT&T Inc.'s settlement of two wage
and hour lawsuits is scheduled for April 5, 2013, 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.
Two wage and hour cases were filed in federal court in December
2009 each asserting claims under the Fair Labor Standards Act
(Luque et al. v. AT&T Corp. et al., U.S. District Court in the
Northern District of California) (Lawson et al. v. BellSouth
Telecommunications, Inc., U.S. District Court in the Northern
District of Georgia). Luque also alleges violations of a
California wage and hour law, which varies from the federal law.
In each case, plaintiffs allege that certain groups of wireline
supervisory managers were entitled to paid overtime and seek class
action status as well as damages, attorneys' fees and/or
penalties. Plaintiffs have been granted conditional collective
action status for their federal claims and also are expected to
seek class action status for their state law claims. The Company
has contested the collective and class action treatment of the
claims, the merits of the claims and the method of calculating
damages for the claims. A jury verdict was entered in favor of
the Company in October 2011 in the U.S. District Court in
Connecticut on similar Fair Labor Standards Act claims.
In April 2012, the Company settled these cases, subject to court
approval, on terms that will not have a material effect on the
Company's financial statements. In October 2012, the court
granted preliminary approval of the settlement in Luque, and the
final approval hearing is scheduled for April 5, 2013. The
parties anticipate filing the Motion for Preliminary Approval in
Lawson in the first quarter of 2013.
A Fortune 500 company, AT&T Inc. is one of the 30 stocks that make
up the Dow Jones Industrial Average. The Company's segments are
strategic business units that offer different products and
services over various technology platforms. The Company is
headquartered in Dallas, Texas.
BANK OF AMERICA: 2nd Cir. Affirms Antitrust Class Action Dismissal
------------------------------------------------------------------
Darryl Greer at Courthouse News Service reports that the 2nd
Circuit affirmed dismissal of an antitrust class action against
Citigroup and 15 other giant banks, stemming from the collapse of
the auction rate securities market.
A federal judge in Manhattan had dismissed the City of Baltimore's
complaint, finding that the defendants' conduct "was impliedly
immunized from antitrust scrutiny by the securities laws."
A three-judge panel of the 2nd Circuit affirmed, finding that
plaintiffs failed to state a claim under the Sherman Act.
The defendants included Citigroup, UBS, Merrill Lynch, Morgan
Stanley, Lehman Brothers, Bank of America, Wachovia, Goldman
Sachs, JPMorgan Chase, the Royal Bank of Canada and Deutsche Bank.
The plaintiffs included both buyers and issuers of auction rate
securities, or ARSs. They claimed the banks conspired to stop
propping up the ARS market in violation of the Sherman Act. But
the 2nd Circuit ruled: "Even construed liberally, plaintiffs'
complaints do not successfully allege a violation of Section 1 of
the Sherman Act."
Ninth Circuit Judges Leval, Katzmann and Hall wrote: "For many
years, the auction process appeared to work smoothly, rarely
resulting in failure. ARS earned a reputation as safe liquid
instruments and as an attractive alternative to normally low-risk,
low-return money market funds.
"ARS, however, had a problem -- a strong secondary market for ARS
apparently never developed. Without auctions, ARS were relatively
illiquid assets which usually could not be sold for par value."
The fa‡ade began crumbling in 2006, when the Securities and
Exchange Commission sanctioned more than a dozen brokers with
cease-and-desist orders after it found "that some of them had,
without properly disclosing their activities, intervened in the
auction process to prevent auction failures and set clearing
rates," the panel wrote.
The market trudged along with a few hiccups after the SEC's
administrative proceedings. However, "These support bids appear
to have become increasingly important to the auctions' success as
financial market conditions deteriorated throughout 2007 and early
2008," the judges wrote. "Some ARS offerings directly financed
subprime mortgage lending and many others were insured by entities
that were linked to such lending. As the housing market slipped
into crisis, investors sought to extricate themselves from related
positions. Yet, with the exception of a few isolated failures in
late 2007, the auctions continued to clear as normal.
"All of this changed when many of the auctions held on Feb. 12,
2008, failed. The next day, 87 percent of scheduled auctions
failed. By Valentine's Day, the ARS market had essentially ceased
functioning, and has never recovered."
Plaintiffs filed nearly identical lawsuits in 2008, one on behalf
of ARS investors, and the other on behalf of ARS issuers.
They claimed the defendants earned high fees from ARS offerings
and had agreed to "manufacture demand by jointly propping up the
auctions with support bids, keeping the fees flowing, and avoiding
the loss of goodwill that auction failures would inevitably
provoke."
The district court dismissed both, finding the Sherman Act claims
precluded by securities laws. Plaintiffs appealed.
They narrowed their claims alleging collusion, focusing on the
claim that "Defendants violated the antitrust laws only by
withdrawing from the ARS market 'in a virtually simultaneous
manner' on February 13, 2008."
But the 2nd Circuit disagreed, finding that "Defendants' alleged
actions -- their en masse flight from a collapsing market in which
they had significant downside exposure -- made perfect business
sense."
The judges wrote: "As the complaints vividly demonstrate, each
defendant was well aware of these dynamics -- the market as a
whole was essentially holding its breath waiting for the
inevitable death spiral of ARS auctions. In such an environment
it is unsurprising, and expected, that once failures reached a
critical mass, defendants would exit the market very quickly. In
fact, at that point abandoning bad investments was not just a
rational business decision, but the only rational business
decision."
* * *
In a separate report, Courthouse News Service says defendant
global financial firms conspired to manipulate a key benchmark
interest rate in order to increase their own profits and create
the illusion of their financial strength to the detriment of their
investors, a class action filed in Manhattan claims.
BANKSIA SECURITIES: Fails to Set Aside Enough Money for Bad Debts
-----------------------------------------------------------------
Kirsten Veness, writing for ABC News, reports that lawyers running
a class action for investors owed money by collapsed finance
company Banksia Securities claim the company's accounts were
wrong.
Banksia collapsed in October last year, owing investors AU$660
million. Up to 16,000 investors, many of them retirees from rural
Victoria, began their class action last December hoping to get
some of the money back.
Lawyers told a meeting in Warrnambool in south-west Victoria on
March 4 that Banksia Securities did not put enough money aside for
bad debts. Norman O'Bryan SC, the barrister running the class
action, says receivers have already indicated investors will get
about back about half the money they invested. But he is hoping
to recover more.
"We're not going to, unfortunately, get them back to 100 cents in
the dollar," he said.
"But even if we could win them another five or 10 or more cents in
the dollar, that's a significant chunk of money that they would
otherwise not receive."
Mr. O'Bryan says the investors have a strong case. He says
according to Banksia's most recent audit in June last year, the
company only had the provision for bad or doubtful debts of less
than AU$7 million. But he says this does not add up with the
receiver's report, which shows that just two months later, loans
in default totaled about AU$170 million.
"Ask yourself the question -- how on earth could a provision for
bad or doubtful debts go from less than AU$7 million to AU$170
(million) or more in two months? The answer is, it could not," he
said.
"The reality is of course that these loans were going bad, as all
loans do over a period of time, and they should have been
recognized as going bad much earlier and something done about it."
He says there is no evidence that anyone deliberately misled
anyone else. But he says there is no question the accounts were
wrong and inadequate.
"People reading them would not have been able to be put in a
position to understand the true position of Banksia," he said.
Pensioner Eleonor Symmonds, 59, and her husband invested AU$62,000
with Banksia Securities. She thought she had lost everything when
the company collapsed last year.
"It was just well totally devastating, I mean I couldn't stop
thinking about it," she said.
"I dreamt about it, I thought about it during the day. It
wouldn't let me sleep.
"Every time I woke up I'd think about it, it just took over my
whole life to the point where I ended up in a psychiatric
hospital."
A directions hearing for the class action is being held in the
Victorian Supreme Court in two weeks. While investors like Ms.
Symmonds are hopeful, they know the process will take a long time.
"It could take two, three or more years," she said.
"There are very elderly people there who have said to me, 'we'll
probably be dead by the time we get everything we can get back'."
BELL MOBILITY: Class Action Proceedings Over 911 Fees Set to Begin
------------------------------------------------------------------
CBC News reports that a Yellowknife man is getting his day in
court with Bell Mobility after years of wrangling and delays.
James Anderson launched the lawsuit against the phone company in
2007. He says Bell should not charge customers a 75-cent monthly
fee for a 911 service which doesn't exist anywhere in the three
territories except in the Whitehorse area. Mr. Anderson said
that, by default, about 20,000 people are included in the suit,
including customers in Nunavut and Yukon. The $6 million class-
action lawsuit will be heard by a judge alone over the next 10
days in Yellowknife.
Mr. Anderson is arguing that it is widely understood that if
someone calls 911, a live operator should be there to assist.
However, that's not the case in most parts of the territories.
Residents must instead dial a seven-digit local phone number for
immediate fire, medical or RCMP assistance in their communities.
His lawyer said it's malicious and high-handed of Bell to charge
the fee.
Mr. Anderson was given his chance to testify on March 4 after
waiting for five and a half years. He admitted that he knew the
fee existed when he signed the contract, but said he didn't think
it was fair and he knew he couldn't modify a contract.
Bell has argued that Mr. Anderson and other customers knew the
service wasn't available when they signed contracts with the
company. The company said it's living up to its end of the
contract as a wireless service provider and it doesn't have to
provide a 911 service. Bell's lawyers said it's up to local
governments to establish and fund that service. Bell also said
that Mr. Anderson and his son, who is a claimant in the lawsuit,
travel outside the territory with their Bell cell phones where 911
service is available.
BIOCLINICA INC: Faces Merger-Related Class Suits in Delaware
------------------------------------------------------------
BioClinica, Inc., is facing merger-related class action lawsuits,
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 January 30, 2013, it was announced that affiliates of JLL
Partners, Inc., or JLL, including BioCore Holdings, Inc., or
Parent, and BC Acquisition Corp., a wholly-owned subsidiary of
Parent, or Purchaser, entered into an Agreement and Plan of
Merger, or the Merger Agreement, with the Company whereby Parent
will acquire the Company. The acquisition will be carried out in
two steps. The first step is the tender offer by Purchaser to
purchase all of the Company's outstanding shares of common stock
at a price of $7.25 per share, payable net to the seller in cash,
or the Tender Offer. Unless subsequently extended, the Tender
Offer will expire on March 11, 2013, at 12:00 midnight New York
City time.
Starting on February 1, 2013, several purported stockholders of
BioClinica have filed complaints styled as class action lawsuits
in the Court of Chancery of the State of Delaware against
BioClinica, Inc., the BioClinica board of directors, JLL Partners,
Inc., BioCore Holdings, Inc. and BC Acquisition Corp. The
complaints allege, among other things, that the board of directors
of BioClinica conducted an unfair sales process resulting in an
unfair consideration to the BioClinica stockholders in the Offer,
and certain lawsuits allege that the information disclosed about
the transaction was inadequate and omitted material information.
The complaints assert that BioClinica's board members breached
their fiduciary duties in agreeing to the Offer and that
BioClinica, JLL, Parent and Purchaser aided and abetted in the
breaches of fiduciary duties. In addition, certain lawsuits bring
claims against the board of directors for breach of fiduciary duty
for materially misleading and inadequate disclosures. The
lawsuits seek to enjoin the Offer and seek other equitable relief
and unspecified monetary damages.
BioClinica(R), Inc. -- http://www.bioclinica.com/-- provides
integrated clinical research technology solutions to
pharmaceutical, biotechnology, and medical device companies, and
other organizations, such as contract research organizations,
engaged in global clinical studies. The Company is headquartered
in Newtown, Pennsylvania.
BOSTON SCIENTIFIC: Defends Product Liability Suits vs. Guidant
--------------------------------------------------------------
Boston Scientific Corporation continues to defend its subsidiary
against product liability lawsuits over defibrillators or
pacemakers, 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.
Fewer than 10 individual lawsuits remain pending in various state
and federal jurisdictions against Guidant Corporation alleging
personal injuries associated with defibrillators or pacemakers
involved in certain 2005 and 2006 product communications.
Further, the Company is aware of approximately 30 Guidant product
liability lawsuits pending in international jurisdictions
associated with defibrillators or pacemakers, including devices
involved in the 2005 and 2006 product communications. Six of
these lawsuits are pending in Canada and were filed as class
actions, four of which are stayed pending the outcome of two lead
class actions. On April 10, 2008, the Justice of Ontario Court
certified a class of persons in whom defibrillators were implanted
in Canada and a class of family members with derivative claims.
On May 8, 2009, the Justice of Ontario Court certified a class of
persons in whom pacemakers were implanted in Canada and a class of
family members with derivative claims. In each case, these
matters generally seek monetary damages from the Company.
Boston Scientific Corporation is a worldwide developer,
manufacturer and marketer of medical devices that are used in a
broad range of interventional medical specialties. The Company is
a Delaware corporation and is based in Natick, Massachusetts.
CAMERON INT'L: Deepwater Horizon Suit Deal Approved in December
---------------------------------------------------------------
A settlement resolving certain claims related to the Deepwater
Horizon incident was approved in December 2012, according to
Cameron International Corporation's February 22, 2013, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2012.
A blowout preventer ("BOP") originally manufactured by the Company
and delivered in 2001, and for which the Company was one of the
suppliers of spare parts and repair services, was deployed by the
drilling rig Deepwater Horizon in 2010 when the rig experienced an
explosion and fire resulting in bodily injuries and loss of life,
the loss of the rig, and discharge of hydrocarbons into the Gulf
of Mexico. ?
The Company was named as one of a number of defendants in over 350
lawsuits asserting claims for personal injury, wrongful death,
property damage, pollution and economic damages. Most of these
lawsuits were consolidated into a single proceeding under rules
governing multi-district litigation. The consolidated case is
styled: In Re: Oil Spill by the Oil Rig "Deep Water Horizon" in
the Gulf of Mexico on April 20, 2010, MDL Docket No. 2179.
On December 15, 2011, the Company entered into an agreement with
BP Exploration and Production Inc. (BPXP), guaranteed by BP
Corporation North America Inc., pursuant to which BPXP agreed to
indemnify the Company for any and all current and future
compensatory claims, and to pay on behalf of the Company any and
all such claims, associated with or arising out of the Deepwater
Horizon incident the Company otherwise would have been obligated
to pay, including claims arising under the Oil Pollution Act,
claims for natural resource damages and associated damage-
assessment costs, clean-up costs, and other claims arising from
third parties. The agreement does not provide indemnification of
the Company against any fines, penalties, punitive damages or
certain other potential non-compensatory claims levied on or
awarded against it individually. The Company, however, does not
consider any of these, singly or cumulatively, to pose a material
financial risk to it because, while the United States brought a
lawsuit against BP and certain other parties associated with this
incident for recovery under statutes such as the Oil Pollution Act
of 1990 (OPA) and the Clean Water Act, the Company was not named
as a defendant in this lawsuit.
Additionally, BP and the Plaintiffs' Steering Committee ("PSC"),
appointed by the Court in the MDL proceeding to represent the
interests of third-party claimants, concluded an "Economic and
Property Damages Settlement Agreement" and a "Medical Benefits
Class Action Settlement Agreement" which were filed with the Court
on April 18, 2012. Under the terms of these settlements, the PSC,
on behalf of these claimants who would be included in the proposed
settling classes, has released any claim against BP and certain
other parties, including the Company, for punitive and other non-
compensatory damages. This settlement was approved by the Court
on December 21, 2012. The BP/PSC settlement, and the release of
punitive and other non-compensatory damages against Cameron, does
not affect the claims of (i) persons who opted out of the
settlement; (ii) persons outside of Alabama, Louisiana,
Mississippi, and certain counties in Florida and Texas, the
geographic scope of the settlement; (iii) persons outside the
class of lost business covered by the settlement class such as
gambling, real estate development and insurance; and (iv) the Gulf
states and local government entities.
Cameron International Corporation's operations are organized into
three separate business segments, namely: Drilling & Production
Systems (DPS), Valves & Measurement (V&M) and Process &
Compression Systems (PCS). The Company is headquartered in
Houston, Texas.
CHARBONNEAU COMMISSION: Faces Class Action Over Tax Hike
--------------------------------------------------------
Laura Casella, writing for CJAD Local News, reports that a citizen
fed up with the corruption and collusion allegations coming to
light at the Charbonneau Commission is trying to get a class
action lawsuit off the ground.
Danika Lalonde is an ordinary Montrealer who believes taxpayers
have been ripped off long enough and deserve something in return.
She is now in the process of looking for a lawyer to work with to
get her class action going.
"From watching the news and seeing the corruption in all the
industries, and all the money that went through, and our taxes
going up, it's just frustrating to see where our money is going,"
she tells CJAD.
She is asking in her lawsuit that the government reimburse
taxpayers through their income tax. But lawyers say this won't be
an easy task. CJAD's legal expert Christopher Dimakos says even
if she was successful in getting this suit approved by the courts,
and won, the money recouped for the taxpayer would be minimal.
"The problem here is when you do sue the government for tax money,
the way that the government would pay you back is with tax money."
Ms. Lalonde has set up a Facebook page "Recours collectif suite a
la Commission Charbonneau" to bring attention to her fight. She
is hoping to get a lawyer on board soon to take this further.
CONVERGYS CORP: Judge Declares Class Action Waivers Unenforceable
-----------------------------------------------------------------
Bill Donahue, writing for Law360, reports that a Missouri federal
judge on March 3 declared class-action waivers signed by call
center employees at Convergys Corp. unenforceable, ruling that the
agreements would violate the National Labor Relations Act if put
into effect.
U.S. District Judge Carol E. Jackson rejected a bid by the
customer management company to use the waivers to strike class and
collective wage-and-hour claims filed by a former customer service
representative, saying the agreements improperly restrict the
right to concerted worker activity.
FREEPORT-MCMORAN: Faces Merger-Related Class Suits in Delaware
--------------------------------------------------------------
Freeport-McMoRan Copper & Gold Inc. is facing merger-related class
action lawsuits in Delaware, 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 2012, Freeport-McMoRan Copper & Gold Inc. (FCX)
announced definitive merger agreements to acquire, in separate
transactions, Plains Exploration & Production Company (PXP) and
McMoRan Exploration Co. (MMR). Completion of each transaction is
subject to receipt of PXP and MMR shareholder approval of their
respective transactions, regulatory approvals (including United
States (U.S.) antitrust clearance under the Hart-Scott Rodino Act)
and other customary conditions. On December 26, 2012, the U.S.
Federal Trade Commission granted early termination of the Hart-
Scott Rodino waiting period with respect to both transactions.
The PXP transaction is not conditioned on the closing of the MMR
transaction, and the MMR transaction is not conditioned on the
closing of the PXP transaction. PXP and MMR shareholder meetings
to approve the respective transactions will be scheduled upon the
effectiveness of the respective registration statements filed with
the SEC. The transactions are expected to close in second-quarter
2013, subject to satisfaction of all conditions to closing.
Three putative class actions challenging the PXP merger were filed
on behalf of PXP stockholders in the Court of Chancery of the
State of Delaware. On January 15, 2013, the Court of Chancery
consolidated the actions into a single action, In Re Plains
Exploration & Production Company Stockholder Litigation, No. 8090-
VCN, and discovery is proceeding in that action. The action names
as defendants PXP, the directors of PXP, FCX, and an FCX
subsidiary. The action alleges that PXP's directors breached
their fiduciary duties because they, among other things, pursued
their own interests at the expense of stockholders and failed to
maximize stockholder value with respect to the merger, and that
FCX and an FCX subsidiary aided and abetted the breach of
fiduciary duties by PXP's directors. The action seeks as relief
an injunction barring or rescinding the PXP merger, damages, and
attorneys' fees and costs.
In addition, ten putative class actions challenging the MMR merger
were filed on behalf of MMR stockholders. Nine were filed in the
Court of Chancery of the State of Delaware. On
January 25, 2012, the Court of Chancery consolidated the actions
into a single action, In Re McMoRan Exploration Co. Stockholder
Litigation, No. 8132-VCN, and discovery is proceeding in that
action. One action was also filed in the Civil District Court for
the Parish of Orleans of the State of Louisiana: Langley v.
Moffett et al., No. 2012-11904, filed December 19, 2012. Each of
the actions names some or all of the following as defendants, in
addition to MMR and its directors: FCX, two FCX subsidiaries, the
Gulf Coast Ultra Deep Royalty Trust and PXP. The actions allege
that MMR's directors breached their fiduciary duties because they,
among other things, pursued their own interests at the expense of
stockholders and failed to maximize stockholder value with respect
to the merger, and that PXP, FCX, or both, aided and abetted the
breach of fiduciary duty by MMR's directors. The Delaware action
also asserts claims derivatively on behalf of MMR. The actions
seek, among other things, injunctive relief barring or rescinding
the MMR merger, damages, and attorneys' fees and costs.
FCX says it intends to vigorously defend itself in these matters.
Headquartered in Phoenix, Arizona, Freeport-McMoRan Copper & Gold
Inc. -- http://www.fcx.com/-- engages in the exploration, mining,
and production of mineral resources. The Company primarily
explores for copper, gold, molybdenum, cobalt hydroxide, silver,
and other metals, such as rhenium and magnetite.
GERDAU AMERISTEEL: Opposes Steel Price-Fixing Class Certification
-----------------------------------------------------------------
Jonathan Randles, writing for Law360, reports that a group of U.S.
steelmakers claims lawsuits alleging they coordinated production
cuts to inflate steel product prices can't proceed as a class
action, arguing purchasers lack common evidence showing they were
harmed by the alleged collusion, according to documents filed on
March 1 in Illinois.
In a joint submission opposing certification, Gerdau Ameristeel
Corp., U.S. Steel Corp., ArcelorMittal SA, Nucor Corp. and others
claim individual plaintiffs -- direct steel purchasers -- have
alleged an impermissibly vague antitrust theory that lumps
together hundreds of diverse steel products.
IMPAX LABORATORIES: Faces Class Action Over Misleading Statements
-----------------------------------------------------------------
Courthouse News Service reports that Impax Laboratories propped up
its stock price with false and misleading statements about its
Rytary drug, and the share price dropped from $20 to $14.80 when
the truth came out, a shareholder claims in a federal class
action.
INCYTE CORP: Faces Suit Over Fraud-Induced Inflated Prices
----------------------------------------------------------
Courthouse News Service reports that insiders at Incyte Corp.,
pharmaceuticals, dumped $12 million of their shares at "fraud-
induced artificially inflated prices," a class action claims in
Federal Court.
J.B. HUNT: To Seek Stay of Further Proceedings in California Suit
-----------------------------------------------------------------
J.B. Hunt Transport Services, Inc. said 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 it intends to file a
motion to stay further proceedings in the class action lawsuit
pending in California.
The Company is a defendant in certain class-action lawsuits in
which the plaintiffs are current and former California-based
drivers who allege claims for unpaid wages, failure to provide
meal and rest periods, and other items. Further proceedings had
been stayed in these matters pending the California Supreme
Court's decision in a case unrelated to the Company's involving
similar issues. During the second quarter of 2012, the California
Supreme Court issued its decision in this unrelated case and
during the fourth quarter of 2012, the Company filed a motion to
decertify the class, which was heard and denied.
The Company says it intends to file a motion to stay further
proceedings pending a decision in the Ninth Circuit Court of
Appeals on yet another unrelated case, but again with similar
issues. The Company cannot reasonably estimate at this time the
possible loss or range of loss, if any, that may arise from these
lawsuits.
Lowell, Arkansas-based J.B. Hunt Transport Services, Inc., is one
of the largest surface transportation, delivery and logistics
companies in North America. The Company provides transportation
and delivery services to a diverse group of customers and
consumers throughout the continental United States, Canada and
Mexico.
JOHNS HOPKINS: Faces Suit Over Videotaping of OB-Gyne Patients
--------------------------------------------------------------
Iulia Filip at Courthouse News Service reports that a Johns
Hopkins gynecologist secretly videotaped patients during pelvic
exams for 20 years, three patients claim in a class action.
Jane Roe 1, 2 and 3 sued The Johns Hopkins Health System dba The
Johns Hopkins Hospital and Johns Hopkins Community Physicians, in
Baltimore City Circuit Court.
They claim Johns Hopkins failed to properly supervise the late
Dr. Nikita Levy, who worked as an ob-gyn at Hopkins' East
Baltimore Medical Center until last month.
Levy, 54, committed suicide on Feb. 18 at his Towson-area home
after police searched his home and office, according to The
Baltimore Sun. The Sun reported that Levy used a pen camera and
other devices to secretly record patients, according to a
colleague who reported Levy to Hopkins officials.
"Dr. Levy served for more than twenty years as a physician with
Johns Hopkins," the complaint states. "During much, if not all,
of that time, Dr. Levy took thousands of photographs and/or videos
of his patients and/or other private areas of their anatomy, doing
so surreptitiously, without his patients' knowledge, permission or
informed consent.
"As a result of Dr. Levy's actions and as a result of Johns
Hopkins' failure to prevent Dr. Levy's actions, the plaintiffs
have suffered an outrageous invasion of their privacy and been
subjected to extreme emotional distress and mental anguish."
The women, who live in Baltimore, seek to represent all of Levy's
patients at the East Baltimore Medical Center or any other Johns
Hopkins facility.
"The class plaintiffs were patients of Dr. Levy's, having seen him
for numerous medical examinations and/or procedures until Dr. Levy
left Johns Hopkins in February 2013," the complaint states.
"In early 2013, law enforcement officers searched the home of
Dr. Levy, where they discovered computer equipment containing
thousands of photographs and videos of his patients and their
genitals and/or other private areas of their anatomy.
"These aforementioned photographs and videos of their genitals
and/or other private areas had been taken surreptitiously by Dr.
Levy during much, if not all of his more than twenty years as a
physician with Johns Hopkins. He obtained those photographs and
videos without his patients' knowledge, permission or informed
consent."
The plaintiffs claim Johns Hopkins knew or should have known about
Levy's perverse activity. They say they "all have grave concerns
that personal and private photographs and/or videos of their
bodies were surreptitiously recorded and potentially distributed
over the Internet or by other means." They say they suffered
severe emotional distress and psychological damages due to Levy's
invasion of their privacy.
The plaintiffs seek class certification, compensatory and punitive
damages for invasion of privacy, lack of informed consent,
intentional infliction of emotional distress, negligence,
violations of Maryland visual surveillance laws, and costs of
therapy and counseling. They also want Johns Hopkins to find and
destroy all photographs and videos made of Levy's patients, to
notify all potential victims, and to prevent exploitation of
patients.
They are represented by Howard Janet with Janet, Jenner & Suggs.
K12 INC: Securities Class Action Voluntarily Dismissed
------------------------------------------------------
K12 Inc. disclosed that in federal court documents filed March 4,
the Lead Plaintiff in a class action securities lawsuit against
the Company voluntarily and permanently dismissed the claims it
made about the academic performance and educational quality of
K12-managed schools.
The stipulation of dismissal by the Lead Plaintiff in the class
action will state that "substantial fact and expert discovery to
date does not support the academic performance and educational
quality claims on the merits." This discovery included
"voluminous document production . . . totaling 132,355 documents
comprising 1,032,725 pages," deposition testimony of K12 corporate
representatives and of ten additional witnesses, along with
several expert reports.
The allegations the Lead Plaintiff will dismiss for lack of merit
include:
* Concealment of K12's academic performance and annual
growth measures
* Excessive and burdensome student-teacher ratios
* Improper grading and attendance policies at K12-managed
schools
* Hiring of unqualified teachers who were not properly
certified
* Failure of special education programs to meet government
standards
* Misleading high parent satisfaction scores
The remaining claims, which relate to the disclosure of student
enrollment and retention data at K12-managed schools, will be
dismissed as part of a proposed settlement agreement. Under the
settlement, $6.75 million will be paid into a settlement fund by
K12's insurance carriers for stockholders in the class. The
company continues to deny each and all of the claims and all
charges of wrongdoing or liability. Furthermore, the company
stands by its stated position that it operates schools with high
integrity and a focus on strong academic performance for all
students.
Nate Davis, Executive Chairman of K12 Inc., stated, "Ending the
litigation on these terms is a powerful vindication of K12 and a
pragmatic resolution for the company. The plaintiff is
representing before a court of law what K12 has always maintained:
that the claims in this lawsuit regarding our academic standards,
student-teacher ratios, grading and attendance policies --
allegations unfairly echoed in the media and other forums -- could
not be supported on the merits."
Continued Mr. Davis, "While we also contend that Plaintiff's
remaining claims about enrollment and retention are equally
unsupported, given the escalating costs of defense, the reality we
faced is that the continued litigation costs would have
significantly exceeded the settlement amount. Ending this
litigation will allow our company to put this distraction behind
us and focus on our mission to continue to improve academic
performance and expand the availability of high-quality,
individualized learning for students worldwide."
In addition to the resolution of the securities class action, the
company also resolved a related derivative lawsuit and associated
shareholder demands. All of these actions are subject to
preliminary and final court approval.
KFORCE INC: Appeal From California Suit Settlement Still Pending
----------------------------------------------------------------
Kforce Inc. was a defendant in a California class action lawsuit
alleging misclassification of California Account Managers and
seeking unspecified damages. The tentative settlement referred to
in the Company's Annual Report on Form 10-K for the year ended
December 31, 2010, was approved by the California court during the
three months ended June 30, 2011, in the amount of $2.5 million,
which is recorded within accounts payable and other accrued
liabilities in the accompanying Consolidated Balance Sheets as of
December 31, 2012, and December 31, 2011. Consummation of the
settlement is subject to resolution of an appeal, which the
Company believes to be without merit, brought by a non-party to
the lawsuit. The Company believes the possibility of further
losses related to this matter is remote.
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.
Kforce Inc. and subsidiaries provide professional staffing
services and technology, finance and accounting, health and life
sciences and government solutions. The Company is based in Tampa,
Florida.
KRAFT FOODS: Workers' Class Suit Settlement Gets Court Approval
---------------------------------------------------------------
District Judge Lynn Adelman approved on March 4, 2013, a petition
for approval of class certification, settlement award, attorney
fees and costs, and distribution to class representatives and
class members in the lawsuit, DAVID SCHUCKNECHT, JOHN WEBER, KEITH
FLEMING, PAUL OLSON, BRIAN VAN GROLL, CHAD FREUND, JOHN PANECK, on
behalf of themselves and all others who consent to become
Plaintiffs and similarly situated employees, Plaintiffs, v. KRAFT
FOODS GLOBAL, INC., and UNITED RESEARCH SERVICES, WASHINGTON GROUP
DIVISION Defendants, Case No. 11-cv-00524, (E.D. Wis.).
The Court found the terms of the Settlement Agreement and Release
of Claims fair, reasonable and adequate.
The Class certified by the Court are "hourly employees who worked
for Defendants at any time from June 1, 2009 to March 1, 2010, at
Kraft's Little Chute, Wisconsin pizza plant and donned/doffed
personal protective equipment during that employment."
Excluded from the Class are: Amanda Stai; Thai Xiong; Yeng Yang;
and Thae Yang; Class Members who timely and validly requested
exclusion from the Class pursuant to the Notice disseminated as
required by prior court order.
The Settlement award of $750,000 is fair, reasonable and adequate,
and is approved. All Class Representatives consent to the
Settlement Award. The class representatives and counsel agree that
Lukas Jonas meets the requirements for inclusion in the class and
will be included. The Settlement Award will be distributed as set
forth in the Settlement Agreement.
The Court appointed the named Plaintiffs as Class Representatives
and their counsel of record, Lawton & Cates, S.C., Miner, Barnhill
& Galland, P.C. as Class Counsel. The Settlement Agreement is
binding on Kraft and the Class Members, except the four that Opted
Out. The released claims are dismissed, with prejudice. The
claims of the four Class Members that Opted Out are dismissed,
without prejudice. The Defendants are forever discharged from all
the released claims.
The Attorney Fees and Costs and Service Award requested in the
Petition are granted:
a. The attorneys' fees and costs sought by Class Counsel,
Lawton & Cates, S.C., and Miner, Barnhill, and Galland for
$187,500 are awarded as reasonable attorneys' fees and
litigation expenses. This amount includes:
-- $154,242.75 in lodestar fees in total, including
$11,700 in lodestar fees after January 25, 2013;
-- $2,814.19 in expenses;
-- A fee enhancer of 1.197;
b. Class Representative David Schucknecht, John Weber, Keith
Fleming, Paul Olson, Brian Van Groll, Chad Freund, John
Paneck, are awarded $2,500 each for services to the
Class.
Kraft will establish a $750,000 Settlement Fund to resolve all
federal and Wisconsin state law wage and hour claims of the Class
Representatives and Class Members. This Settlement Fund is
inclusive of attorneys' fees, costs, a liquidated penalty, past
due or unpaid wages, and a Service Award Enhancement to the Class
Representatives, such that Kraft's settlement liability, other
than Kraft's share of payroll taxes and settlement administration
costs, will not exceed $750,000. The Fund will be distributed as
follows:
a. Class Counsel are awarded $187,500 as reasonable attorneys'
fees and litigation expenses.
b. Class Representatives are awarded $2,500 each for services
to the class for a total Service Representative Award of
$17,500; and
c. The remaining $545,000 will be divided in accordance with
paragraph 3 of the Settlement Agreement and Release of
Claims and Paragraph 3 of the Notice of Class Action
Settlement included in the Memorandum in Support of the
Petition.
The Plaintiffs were represented by Ginger Murray, Esq., at Lawton
& Cates, S.C. and Class Representatives David Schucknecht and
Brian Van Groll.
Kraft was represented by Daniel A. Kaplan, Esq. --
dkaplan@foley.com -- at Foley & Lardner LLP.
A copy of the District Court's March 4, 2013 Order is available at
http://is.gd/LsbAeNfrom Leagle.com.
MANPOWERGROUP INC: Has Deal to Settle Class Suit
------------------------------------------------
ManpowerGroup Inc. said 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 it entered into an agreement to
settle a class action lawsuit.
In June 2012, the Company recorded legal costs of $10.0 million in
the United States for various legal matters, the majority of which
was related to its entry into a settlement agreement in connection
with a purported class action lawsuit involving allegations
regarding the Company's vacation pay policies in Illinois. Under
the settlement agreement, the Company agreed to pay $8.0 million
plus certain related taxes and administrative fees. The Company
maintains that its vacation pay policies were appropriate and the
Company admits no liability or wrongdoing, but it believes that
settlement is in its best interest to avoid the costs and
disruption of ongoing litigation.
ManpowerGroup Inc. -- http://www.manpowergroup.com/-- is in the
business of innovative workforce solutions and services. The
Company is based in Milwaukee, Wisconsin.
MCMORAN EXPLORATION: Defends Merger Suits in Delaware & Louisiana
-----------------------------------------------------------------
McMoRan Exploration Co. is defending merger-related class action
lawsuits in Delaware and Louisiana, 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 December 5, 2012, the Company announced a definitive agreement
(the merger agreement) under which Freeport-McMoRan Copper & Gold
Inc. (FCX) will acquire the Company for approximately $3.4 billion
in cash, or $2.1 billion net of the 36 percent ownership interest
currently held by FCX and Plains Exploration & Production Company
(PXP) (the FCX/MMR merger). The related per-share consideration
consists of $14.75 in cash and 1.15 units in the Gulf Coast Ultra
Deep Royalty Trust, a newly formed royalty trust, which will hold
a five percent overriding royalty interest in future production
from the Company's ultra-deep prospects. On December 26, 2012,
the U.S. Federal Trade Commission granted early termination of the
Hart-Scott-Rodino waiting period. The FCX/MMR merger is expected
to close in second-quarter 2013.
Between December 11, 2012, and December 26, 2012, ten putative
class actions challenging the FCX/MMR merger were filed on behalf
of all McMoRan stockholders by purported McMoRan stockholders.
Nine were filed in the Court of Chancery of the State of Delaware
(the "Court of Chancery"). On January 25, 2013, the Court of
Chancery consolidated the actions into a single action, In re
McMoRan Exploration Co. Stockholder Litigation, No. 8132-VCN. One
action was also filed on December 19, 2012, in the Civil District
Court for the Parish of Orleans of the State of Louisiana, Langley
v. Moffett et al., No. 2012-11904. The defendants in these
lawsuits include McMoRan, members of the McMoRan board of
directors, FCX, INAVN Corp., a wholly-owned subsidiary of FCX (the
"merger sub"), another subsidiary of FCX, the Gulf Coast Ultra
Deep Royalty Trust and PXP. The lawsuits allege, among other
things, that members of the McMoRan board of directors breached
their fiduciary duties to McMoRan's stockholders because they,
among other things, pursued their own interests at the expense of
stockholders and failed to maximize stockholder value with respect
to the merger, and that FCX, the merger sub and PXP aided and
abetted that breach of fiduciary duties. The consolidated
Delaware action also asserts claims derivatively on behalf of
McMoRan. These lawsuits seek, among other things, an injunction
barring or rescinding the FCX/MMR merger, damages, and attorney's
fees and costs.
McMoRan Exploration Co. was incorporated in Delaware in 1998. The
Company engages in the exploration, development and production of
oil and natural gas in the shallow waters (less than 500 feet of
water) of the Gulf of Mexico and onshore in the Gulf Coast area of
the United States of America. The Company is headquartered in New
Orleans, Louisiana.
METLIFE INSURANCE: Faces Class Action Over Charging Benefit Rider
-----------------------------------------------------------------
Courthouse News Service reports that MetLife Insurance of
Connecticut keeps charging for a benefit rider after its possible
benefits cease, a class action claims in Palm Beach County Court.
METROPOLITAN MUSEUM: Faces Class Action Over $25 Admission Fee
--------------------------------------------------------------
Marlene Kennedy of Courthouse News Service reports that the
Metropolitan Museum of Art tricks visitors into paying for
admission though a century-old law and lease specify free entry
most days, a class action claims in state court.
The museum, in Central Park along Fifth Avenue, agreed to the no-
fee policy in exchange for a perpetual, rent-free lease of the
Beaux-Arts building from New York City, which also picks up the
tab for maintenance, utilities and security, lead plaintiff Filip
Saska says.
The deal was meant to provide access to great art for citizens
"without regard to financial means," according to the complaint in
New York County Supreme Court. But Saska claims the museum has
been transformed "into an expensive, fee-for-viewing, elite
tourist attraction, where only those of financial means can afford
to enter this publicly subsidized institution situated on prime
city-owned land."
The complaint estimates the value of the lease at $368 million a
year for the 2.4 million square foot museum that occupies four
city blocks. Its collection includes more than 2 million objects.
Museum officials estimated in January that 6.28 million people
visited in 2012.
The museum was established in 1870 after a group of Americans,
touring Paris, agreed a national gallery of art was needed in this
country. Initially housed elsewhere in the city, the museum moved
to its current location at Fifth Avenue and 82nd Street in 1880.
The museum also has a branch focused on medieval Europe, known as
The Cloisters, in Fort Tryon Park in northern Manhattan.
State lawmakers approved legislation in the 1870s that provided
for construction of the building in Central Park and made the
museum the exclusive tenant of the structure. The lease contained
no mention of rent, according to the complaint, but specified that
the museum would be open free of charge at least four days a week.
Those terms were expanded a few years later, but after the museum
expressed concerns about costs, lawmakers set the free-admission
schedule at five days a week, including Sunday afternoons, plus
two evenings a week.
No other legislation has altered the so-called free-admission
statute approved in 1893, according to the complaint.
Two of the three named plaintiffs are Czech citizens; one is a
resident of New York City. They seek to represent a class of
plaintiffs who used a credit card to buy an admission ticket or
museum membership in the past three years. They estimate the
"unlawful and deceptive" fees paid by the class in the tens of
millions of dollars annually. They claim the museum violates
state consumer protection law with signs, queues and cashier
stations that lead visitors to believe they have to pay to enter.
A $25 admission fee is posted in a large, bold font at the main
entrance, while the word "recommended" is in "tiny, unbold print,"
according to the complaint. Cashiers are trained "to pressure and
embarrass" visitors into paying the stated admission fee, the
complaint states.
"Nowhere in the building is any visitor advised that admission to
the museum exhibition halls is free for most days of each week,"
the complaint states.
The class claims the Met also uses deceptive practices online, at
its website and websites of third-party vendors, where advance-
purchase admission and package deals are advertised. The class
seeks an injunction, costs and actual damages, and an end to
admission fees on free days and any activities that "insinuate
that payment of any sum is required" on those days, such as signs,
brochures and promotions. It also wants the museum to promote the
free days in English and Spanish in New York's poorer communities.
The plaintiffs are represented by Michael Hiller, Esq. --
mhiller@weisshiller.com -- at Weiss & Hiller and Matthew
Brinckerhoff, Esq. -- mbrinckerhoff@ecbalaw.com -- at Emery Celli
Brinckerhoff & Abady.
Hiller filed a similar lawsuit against the museum and several of
its officials in November.
NATALIE SALON: Settles Ex-Workers' Class Action for $750,000
------------------------------------------------------------
Carol Blitzer, writing for Palo Alto Weekly, reports that four
former employees of Natalie Salon, joined by more than 100 others,
settled their class-action lawsuit for $750,000 against the nail
and beauty center on Feb. 26. San Mateo County Superior Court
Judge Marie Weiner gave preliminary approval of the $750,000
settlement.
Owners Natalie Phan and her husband, Bill Dong, operated five
salons at the time of the lawsuit, including one in Palo Alto.
Now they operate four in Menlo Park, Redwood City, San Mateo and
Los Gatos.
The original suit was filed in San Mateo County Superior Court in
September 2011, accusing owners Phan and Dong of not providing
overtime pay or meal breaks as well as confiscating a portion of
tips. The suit also accused the owners of "unlawfully deducting
amounts from employee wages for minor infractions like dropping
nail polish," according to news release from the Asian Law Caucus,
one of three law groups representing the plaintiffs. The other
two firms were Legal Aid Society - Employment Law Center and Davis
Cowell & Bowe, LLP.
Winifred Kao, an attorney with the Asian Law Caucus, said the next
step is for the 125 employees to review the settlement and decide
whether they want to continue to take part in the class-action
suit, to opt out or to sue separately. The next court date is set
for June 27, when eligibility and distribution will be decided.
NEW YORK: Faces Class Action Over Solitary Confinement
------------------------------------------------------
Courthouse News Service reports that Leroy Peoples seeks class
action status for his federal complaint challenging New York
state's use of solitary confinement.
NORTHERN LEASING: To Pay $4.1MM in Accord With NY Atty General
--------------------------------------------------------------
As part of National Consumer Fraud Week, Attorney General Eric T.
Schneiderman said March 7 his office has reached a multi-million
dollar settlement with a group of New York City-based business
equipment leasing companies that schemed to drain nearly $11
million from the bank accounts of small business customers in New
York State and across the country.
Northern Leasing Systems, Inc., and its affiliates provided credit
card processing machines and other equipment to small businesses
-- many of them mom-and-pop stores. As part of a coordinated
effort, the companies siphoned over $3.6 million in unauthorized
fees from the bank accounts of nearly 110,000 former customers
before the scheme was discovered and they were stopped --
preventing them from completing their plan to steal nearly $7
million in additional funds. This settlement concludes a lawsuit
filed by the Attorney General in Manhattan Supreme Court in April
2012 against NLS and its partners.
"My office will go after companies who cheat the marketplace and
use shell companies to pick the pockets of unsuspecting and hard-
working business owners in New York and across the country," said
Attorney General Schneiderman. "This settlement sends a clear
message that deceptive business practices will not be tolerated in
New York, and we will take action to help protect consumers and
small businesses from fraud."
As part of the settlement, the companies agreed to fully refund
the more than $3.6 million they drained from their customers'
accounts in the spring of 2011. They also agreed to refrain from
any efforts to collect the remaining approximately $7 million from
customers targeted in the scheme -- in some cases, up to 11 years
after their victims' equipment leases had expired. The companies
are required to make automatic refunds to certain former customers
and there will be a claims process for all other customers. Each
customer participating in the settlement will receive 100% of the
amount debited.
The companies will also pay $575,000 in costs, penalties and fees
to the State of New York.
To disguise the scheme, Northern Leasing used a shell company, SKS
Associates LLC, to mislead customers and avoid harming its
business reputation. The scheme came to light when former
customers, from New York to Texas and California, discovered
automatic debits from their bank accounts by a company they had
never heard of.
The settlement agreement with Northern Leasing and its affiliates
-- Lease Finance Group LLC, MBF Leasing LLC, Golden Eagle Leasing
LLC and Lease Source-LSI, LLC -- is the result of the Attorney
General's investigation into the SKS collection scheme. All of the
companies operate out of 132 W. 31st St. in Manhattan.
The companies' leases required customers to reimburse them for
property taxes and "administrative fees" through automated debits.
The leases were vague about the exact amount and the timing of the
payments. While Northern Leasing claimed it failed to collect
these amounts from some customers while their leases were still
active, it could not show that the deducted tax amounts were ever
owed or paid to taxing authorities, nor could it provide any proof
that the or justify the tax and fee amount debited from individual
customers was correct.
The companies, which debited some victims as much as 11 years
after they had ceased to do business together, devised the scheme
in late 2010 and started the unauthorized debits in March 2011.
The scam was halted April 2011 by court order in California
related to a private class-action lawsuit filed in that state.
When Northern Leasing began seizing money years after the leases
expired, they channeled the collections through SKS. SKS began
withdrawing money from former customers before it was even legally
registered to conduct business in New York. Some notice letters
were sent out, but many were sent out the same day or only one day
before the debits. When SKS was flooded with telephone calls from
upset customers, it stopped sending notice letters altogether and
took money from former customers' bank accounts with no notice at
all.
Former customers also faced an additional web of
misrepresentations, including the false claim that an "audit" was
conducted on the customer's account, which had supposedly revealed
that taxes and fees were still owed. When customers asked for
proof that the charges were legitimate and accurate, SKS failed or
refused to provide any. And when some customers tried to verify
the charges on their own, they discovered that the amounts were
not accurate.
Besides monetary refunds and penalties, the companies will modify
future lease agreements to clearly and conspicuously disclose
information about tax and related administrative fees on the first
page of the lease agreement. Other reforms include that the
companies will not debit or otherwise collect taxes and related
administrative fees unless the companies have paid or will pay
such taxes to a taxing authority.
Marking the beginning of National Consumer Protection Week,
Attorney General Schneiderman -- http://is.gd/m1ak4N--
highlighted the scams most reported by New Yorkers and offered
tips on how to avoid them in the future.
This case is being handled by Assistant Attorney General Tristan
C. Snell and Consumer Frauds and Protection Bureau Deputy Bureau
Chief Laura J. Levine, under the supervision of Bureau Chief Jane
M. Azia and Executive Deputy Attorney General for Economic Justice
Karla G. Sanchez.
NYSE EURONEXT: Judge Refuses to Nix Shareholder Class Action
------------------------------------------------------------
Tom Hals, writing for Reuters, reports that a New York judge has
declined to dismiss a shareholder class action over the sale of
NYSE Euronext, continuing a dispute over jurisdiction with a
Delaware judge who is hearing an almost identical case. Both
lawsuits accuse the board of NYSE Euronext, the operator of New
York's iconic stock market, of shortchanging shareholders by
agreeing to be acquired by IntercontinentalExchange for $8.2
billion.
The lawsuits have led to a dispute between Justice Shirley
Kornreich of New York Supreme Court and Chancellor Leo Strine of
Delaware's Court of Chancery over which court should have
jurisdiction. Multiple shareholder class actions have become the
norm in sizeable merger deals. The parallel lawsuits raise the
prospect of inconsistent rulings and can drive up litigation
costs. The problem is usually solved by having one judge stay his
or her cases in favor of the more advanced cases in another court.
But in the NYSE Euronext lawsuits, both judges have stood firm.
In a 104-page academic paper published in January on the subject,
Mr. Strine said cases belong in the court that specializes in the
law governing the dispute. In most merger cases involving
companies like NYSE Euronext that are incorporated in Delaware,
that would be Mr. Strine's court.
In her ruling on March 1, Justice Kornreich rejected a request by
NYSE Euronext to stay her cases and defer to Mr. Strine. The
company had argued the New York precedent was to defer to the
court with the first case file.
"In sum, defendants have failed to carry their burden of
establishing that fairness, justice and convenience require this
court to dismiss or stay the action in favor of Delaware," Justice
Kornreich wrote.
A spokesman for NYSE Euronext did not immediately respond to a
request for comment.
NYSE Euronext CEO Duncan Niederauer said on March 1 that he
expected shareholders to vote on the deal in the second quarter of
2013. The deal is also still awaiting some regulatory approval.
In her ruling, Justice Kornreich offered a solution: Have courts
work together. She quoted from U.S. Judge Jack Weinstein of New
York's Eastern District, who said it is the policy of federal
courts to encourage the coordination of state and federal cases.
"This should be the policy in all jurisdictions," Justice
Kornreich wrote in her 11-page opinion. She went on to cite Mr.
Strine's paper to make her case for not staying in favor of
Delaware. "This court agrees with Chancellor Strine that there
are more important considerations than where a lawsuit was first
commenced."
Mr. Strine's chambers declined to comment.
Justice Kornreich seemed to anticipate trouble dealing with
Mr. Strine from the start. In a Jan. 10 hearing in her court she
was informed of the parallel cases in Delaware. "Who -- please
tell me it's not Chancellor Strine who has the Delaware cases?"
she asked the lawyers at the hearing, according to a court
transcript.
Justice Kornreich told Reuters in January that she believed her
court could decide matters of Delaware law as competently as
Delaware judges, whom she praised.
Mr. Strine has scheduled an April 26 hearing to consider whether
to issue a preliminary injunction to block the NYSE Euronext deal.
Justice Kornreich has not been asked to schedule an injunction
hearing, but she has issued orders that require the parties to
coordinate with the plaintiffs in Delaware.
The New York cases are NYSE Euronext Shareholder/ICE Litigation,
New York Supreme Court, No. 654496/2012.
The Delaware cases are NYSE Euronext Shareholder Litigation,
Delaware Court of Chancery, No. 8136.
For the plaintiffs in New York: Gary Nespole -- nespole@whafh.com
-- Wolf Haldenstein Adler Freeman & Herz; James Notis --
jnotis@gardylaw.com -- of Gardy & Notis and Herman Cahn --
hcahn@milberg.com -- of Milberg.
For the Defendants: William Savitt -- WDSavitt@wlrk.com -- of
Wachtell, Lipton, Rosen & Katz.
PITTSBURGH, PA: Settles Firefighters' Overtime Class Action
-----------------------------------------------------------
Matt Fair, writing for Law360, reports that the city of Pittsburgh
has reached a settlement with a group of firefighters who filed a
putative class action in August alleging they were not properly
compensated for overtime, according to documents filed on March 4
in Pennsylvania federal court.
According to a one-page report filed in U.S. district court, the
parties resolved the suit -- in which a group of chiefs and other
high-ranking fire officials claimed they were underpaid for
overtime hours under U.S. Department of Labor standards for
emergency responders established in 2004.
PORTLAND GENERAL: Ore. Appeals Court Uphold 2008 Order on Refund
----------------------------------------------------------------
The Oregon Court of Appeals issued in February 2013 an opinion
that upheld an order issued in 2008 by the Public Utility
Commission of Oregon that required Portland General Electric
Company to provide refunds, according to PGE's February 22, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
In 1993, PGE closed its Trojan nuclear power plant (Trojan) and
sought full recovery of, and a return on, its Trojan costs in a
general rate case filing with the Public Utility Commission of
Oregon (OPUC). In 1995, the OPUC issued a general rate order that
granted the Company recovery of, and a return on, 87% of its
remaining investment in Trojan.
Numerous challenges and appeals were subsequently filed in various
state courts on the issue of the OPUC's authority under Oregon law
to grant recovery of, and a return on, the Trojan investment. In
1998, the Oregon Court of Appeals upheld the OPUC's order
authorizing PGE's recovery of the Trojan investment, but held that
the OPUC did not have the authority to allow PGE to recover a
return on the Trojan investment and remanded the case to the OPUC
for reconsideration.
In 2000, PGE entered into agreements to settle the litigation
related to recovery of, and return on, its investment in Trojan.
The settlement, which was approved by the OPUC, allowed PGE to
remove from its balance sheet the remaining investment in Trojan
as of September 30, 2000, along with several largely offsetting
regulatory liabilities. After offsetting the investment in Trojan
with these credits, the remaining Trojan regulatory asset balance
of approximately $5 million (after tax) was expensed. As a result
of the settlement, PGE's investment in Trojan was no longer
included in prices charged to customers, either through a return
of or a return on that investment. The Utility Reform Project
(URP) did not participate in the settlement and filed a complaint
with the OPUC challenging the settlement agreements. In 2002, the
OPUC issued an order (2002 Order) denying all of the URP's
challenges. In 2007, following several appeals by various
parties, the Oregon Court of Appeals issued an opinion that
remanded the 2002 Order to the OPUC for reconsideration.
The OPUC then issued an order in 2008 (2008 Order) that required
PGE to provide refunds, including interest from September 30,
2000, to customers who received service from the Company during
the period from October 1, 2000, to September 30, 2001. The
Company recorded a charge of $33.1 million in 2008 related to the
refund and accrued additional interest expense on the liability
until refunds to customers were completed in the first quarter of
2010. The URP and the plaintiffs in the class actions separately
appealed the 2008 Order to the Oregon Court of Appeals. On
February 6, 2013, the Oregon Court of Appeals issued an opinion
that upheld the 2008 Order.
In two separate legal proceedings, lawsuits were filed in Marion
County Circuit Court against PGE in 2003 on behalf of two classes
of electric service customers. The class action lawsuits,
captioned Dreyer, Gearhart and Kafoury Bros., LLC v. Portland
General Electric Company, Marion County Circuit Court, Case No.
03C 10639, and Morgan v. Portland General Electric Company, Marion
County Circuit Court, Case No. 03C 10640, seek damages totaling
$260 million, plus interest, as a result of the Company's
inclusion, in prices charged to customers, of a return on its
investment of Trojan.
In 2006, the Oregon Supreme Court issued a ruling ordering the
abatement of the class action proceedings until the OPUC responded
to the 2002 Order. The Oregon Supreme Court concluded that the
OPUC has primary jurisdiction to determine what, if any, remedy
can be offered to PGE customers, through price reductions or
refunds, for any amount of return on the Trojan investment that
the Company collected in prices.
The Oregon Supreme Court further stated that if the OPUC
determined that it can provide a remedy to PGE's customers, then
the class action proceedings may become moot in whole or in part.
The Oregon Supreme Court added that, if the OPUC determined that
it cannot provide a remedy, the court system may have a role to
play. The Oregon Supreme Court also ruled that the plaintiffs
retain the right to return to the Marion County Circuit Court for
disposition of whatever issues remain unresolved from the remanded
OPUC proceedings. The Marion County Circuit Court subsequently
abated the class actions in response to the ruling of the Oregon
Supreme Court.
On February 6, 2013, the Oregon Court of Appeals issued an opinion
that upheld the 2008 Order. Because the time periods in which to
seek reconsideration or Oregon Supreme Court review of this
decision have not yet lapsed and because the class actions remain
pending, management believes that it is reasonably possible that
the regulatory proceedings and class actions could result in a
loss to the Company in excess of the amounts previously recorded.
However, because these matters involve unsettled legal theories
and have a broad range of potential outcomes, sufficient
information is currently not available to determine PGE's
potential liability, if any, or to estimate a range of potential
loss.
Portland General Electric Company was incorporated in 1930 and is
a vertically integrated electric utility engaged in the
generation, purchase, transmission, distribution, and retail sale
of electricity in the state of Oregon. The Company operates as a
cost-based, regulated electric utility, with revenue requirements
and customer prices determined based on the forecasted cost to
serve retail customers, and a reasonable rate of return as
determined by the Public Utility Commission of Oregon (OPUC).
RADIAN GROUP: Still Defends Suits Alleging RESPA Violations
-----------------------------------------------------------
Radian Group Inc. continues to defend itself against class action
lawsuits alleging violations of the Real Estate Settlement
Procedures Act, 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 named as a defendant in a number of putative
class action lawsuits alleging, among other things, that the
Company's captive reinsurance agreements violate RESPA. On
December 9, 2011, an action titled Samp v. JPMorgan Chase Bank,
N.A. (the "Samp case"), was filed in the U.S. District Court for
the Central District of California. The defendants are JPMorgan
Chase Bank, N.A., its affiliates (collectively, "JPMorgan"), and
several mortgage insurers, including Radian Guaranty Inc.
The plaintiffs purport to represent a class of borrowers whose
loans allegedly were referred to mortgage insurers by JPMorgan in
exchange for reinsurance agreements between the mortgage insurers
and JPMorgan's captive reinsurer. Plaintiffs assert violations of
RESPA. Radian Guaranty and some of the other mortgage insurer
defendants moved to dismiss this lawsuit for lack of standing
because they did not insure any of the plaintiffs' loans. The
court denied that motion on May 7, 2012, and on October 4, 2012,
Radian Guaranty filed a new motion to dismiss on a number of
grounds. On December 21, 2012, plaintiffs filed an opposition to
that motion.
Each of these cases is a putative class action (with alleged facts
substantially similar to the facts alleged in the Samp case) in
which Radian Guaranty has been named as a defendant:
* On December 30, 2011, a putative class action under RESPA
titled White v. PNC Financial Services Group was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. On September 29, 2012, plaintiffs filed an
amended complaint. In this case, Radian Guaranty has
insured the loan of one of the plaintiffs. On November 26,
2012, Radian Guaranty filed a motion to dismiss the
plaintiffs' claims as barred by the statute of limitations.
Plaintiff has filed an opposition to the motion to dismiss.
* On March 12, 2012, a putative class action under RESPA
titled McCarn v. HSBC USA, Inc., et al. was filed in the
U.S. District Court for the Eastern District of California.
Radian Guaranty moved to dismiss this lawsuit for lack of
standing because it did not insure the plaintiff's loan.
The court granted that motion on May 29, 2012, but gave the
plaintiff permission to file an amended complaint to attempt
to address his lack of standing. On July 30, 2012, the
plaintiff filed an amended complaint. Radian Guaranty filed
a motion to dismiss the amended complaint for lack of
standing on August 16, 2012. On November 13, 2012, the
court granted Radian Guaranty's motion and dismissed the
claims with prejudice for lack of standing. On December 4,
2012, the plaintiff voluntarily dismissed his claims against
the remaining defendants in this lawsuit.
* On April 5, 2012, a putative class action under RESPA titled
Riddle v. Bank of America Corporation, et al. was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. On January 4, 2013, Radian Guaranty moved to
dismiss plaintiffs' claims as barred by the statute of
limitations.
* On April 5, 2012, a putative class action under RESPA titled
Manners, et al. v. Fifth Third Bank, et al. was filed in the
U.S. District Court for the Western District of
Pennsylvania. On September 28, 2012, plaintiffs filed an
amended complaint adding three borrowers whose loans were
insured by Radian Guaranty. On November 28, 2012, Radian
Guaranty moved to dismiss plaintiffs' claims as barred by
the statute of limitations, and on January 28, 2013,
plaintiffs filed an opposition to the motion to dismiss.
* On April 19, 2012, a putative class action under RESPA
titled Rulison v. ABN AMRO Mortgage Group, Inc., et al. was
filed in the U.S. District Court for the Southern District
of New York. The plaintiff voluntarily dismissed this
lawsuit on July 3, 2012.
* On May 18, 2012, a putative class action under RESPA titled
Hill, et al. v. Flagstar Bank FSB, et al. was filed in the
U.S. District Court for the Eastern District of
Pennsylvania. In this case, Radian Guaranty has insured the
loan of one of the plaintiffs. On January 28, 2013,
plaintiffs filed an amended complaint. Radian Guaranty
intends to file a motion to dismiss the complaint.
* On May 31, 2012, a putative class action under RESPA titled
Barlee, et al. v. First Horizon National Corporation, et al.
was filed in the U.S. District Court for the Eastern
District of Pennsylvania. On October 9, 2012, plaintiffs
filed an amended complaint, and on November 5, 2012, Radian
Guaranty filed a motion to dismiss the amended complaint for
lack of standing because it did not insure any of the
plaintiffs' loans. Plaintiffs have filed an opposition to
the motion to dismiss, and on January 16, 2013, Radian
Guaranty filed a reply in further support of its motion to
dismiss.
* On June 28, 2012, a putative class action under RESPA titled
Cunningham, et al. v. M&T Bank Corporation, et al. was filed
in the U.S. District Court for the Middle District of
Pennsylvania. On October 9, 2012, plaintiffs filed an
amended complaint in which they added one borrower whose
loan was insured by Radian Guaranty. On December 10, 2012,
Radian Guaranty moved to dismiss plaintiffs' claims as
barred by the statute of limitations, and on February 11,
2013, plaintiffs filed an opposition to the motion to
dismiss.
* On January 4, 2013, a putative class action under RESPA
titled Ba, et al. v. HSBC USA, Inc., et al., was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. Radian Guaranty intends to move to dismiss
this lawsuit for lack of standing because it did not insure
any of the plaintiffs' loans.
* On January 13, 2012, a putative class action under RESPA
titled Menichino, et al. v. Citibank, N.A., et al., was
filed in the U.S. District Court for the Western District of
Pennsylvania. Radian Guaranty was not named as a defendant
in the original complaint. On December 4, 2012, plaintiffs
amended their complaint to add Radian Guaranty as an
additional defendant. On February 4, 2013, Radian Guaranty
filed a motion to dismiss the claims against it as barred by
the statute of limitations.
With respect to the Samp case and the other similar putative class
actions, Radian Guaranty believes that the claims are without
merit and intends to vigorously defend itself against these
claims. The Company is not able to estimate the reasonably
possible loss or range of loss for these matters because the
proceedings are in a very preliminary stage and there is
uncertainty as to the likelihood of a class being certified or the
ultimate size of a class.
Based in Philadelphia, Pennsylvania, Radian Group Inc. is a credit
enhancement company with a primary strategic focus on domestic
residential mortgage insurance on first-lien loans. The Company
currently has two operating business segments -- mortgage
insurance and financial guaranty.
RAMBUS INC: Continues to Defend Securities Fraud Class Suits
------------------------------------------------------------
Rambus Inc. continues to defend itself from class action lawsuits
alleging securities fraud, 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 enters into standard license agreements in the
ordinary course of business. Although the Company does not
indemnify most of its customers, there are times when an
indemnification is a necessary means of doing business.
Indemnifications cover customers for losses suffered or incurred
by them as a result of any patent, copyright, or other
intellectual property infringement claim by any third party
arising as result of the applicable agreement with the Company.
The maximum amount of indemnification the Company could be
required to make under these agreements is generally limited to
fees received by the Company.
Several securities fraud class actions, private lawsuits and
shareholder derivative actions were filed in state and federal
courts against certain of the Company's current and former
officers and directors related to the stock option granting
actions. As permitted under Delaware law, the Company has
agreements whereby its officers and directors are indemnified for
certain events or occurrences while the officer or director is, or
was serving, at the Company's request in such capacity. The term
of the indemnification period is for the officer's or director's
term in such capacity. The maximum potential amount of future
payments the Company could be required to make under these
indemnification agreements is unlimited. The Company has a
director and officer insurance policy that reduces the Company's
exposure and enables the Company to recover a portion of future
amounts to be paid. As a result of these indemnification
agreements, the Company continues to make payments on behalf of
primarily former officers and some current officers.
As of December 31, 2012, and 2011, the Company had made cumulative
payments of approximately $32.2 million and $31.9 million,
respectively, on their behalf. These payments were recorded under
costs of restatement and related legal activities in the
consolidated statements of operations. Also, in
December 31, 2011, the Company reached a settlement agreement that
resolved the matter captioned Stuart J. Steele, et al. v. Rambus
Inc., et al., where the Company agreed to settle the claims
against it and the individual defendants for approximately $10.9
million which was recorded under costs of restatement and related
legal activities in the consolidated statements of operations. As
of December 31, 2012, the Company has cumulatively received $12.3
million from insurance settlements related to the defense of the
Company, its directors and its officers which were recorded under
costs of restatement and related legal activities in the
consolidated statements of operations. During the year ended
December 31, 2012, no insurance settlements were received.
Sunnyvale, California-based Rambus Inc. -- http://www.rambus.com/
-- was founded in 1990 and reincorporated in Delaware in March
1997. The Company is an innovative technology solutions company
that brings invention to market.
RED ROBIN: Faces Class Action Over Violation of Labor Laws
----------------------------------------------------------
Courthouse News Service reports that Red Robin International
stiffs employees for overtime and violates other labor laws, a
class action claims in Orange County.
SAMSUNG: Customer Balks at Detective TV Settlement Cutoff Date
--------------------------------------------------------------
Kurtis Ming, writing for CBS Sacramento, reports that a Cameron
Park family called Kurtis when their TV went out and they thought
it should have been covered under one of these settlements, but
were then told the TV was made one day too late.
"We have another TV upstairs," said Mike Webb.
The other TV he's talking about is a little one in his and his
wife's bedroom. The couple and their two kids have been bunched
up on the bed lately, leaving the family room empty because their
bigger, 46-inch Samsung TV went out.
"The red light will come on and blink on and off as it usually
does. You can hear a clicking noise in the background but you
never actually get a picture," said Mr. Webb.
Mr. Webb went online and found the CBS13 Call Kurtis story about
Samsung settling a class action lawsuit alleging millions of its
TVs have a defective part in them. So he contacted Samsung.
"They originally told me my model did qualify and I actually had
an e-mail which told my model was part of that," said Mr. Webb.
Under the settlement, people with qualifying TVs get a free repair
or reimbursement if they already had the repair done. Mr. Webb
thought he'd be covered until he gave Samsung his TV's serial
number.
"When they looked at the serial number, they said my TV fell
outside of the manufacture range that had the faulty capacitor,"
said Mr. Webb.
The settlement covers TVs made up until December 31, 2008.
Samsung told Mr. Webb his TV was made January 1, 2009; one day too
late.
"The idea that his television is not defective because it was
manufactured a day after the cutoff date, it seems unlikely," said
consumer attorney Stuart Talley. Mr. Talley thinks if Mr. Webb's
TV has the same exact issue as those in the settlement he might
have a case for a new lawsuit.
"That has happened in the past, where there's a class action
settlement and then it turns out that there's actually additional
people that have been hurt and then another class action is
filed," said Talley.
CBS13 contacted Samsung. The company issued the following
statement to CBS13:
"When Samsung discovered that a small percentage (less than 1%) of
the TVs sold in the U.S. from 2006 to 2008 were experiencing
performance issues caused by a component called a capacitor, the
company immediately began providing free-of-charge repairs to
affected customers. The class-action settlement only covers a
certain number of models manufactured within this timeframe.
While Mr. Webb's TV is not one of the covered models, Samsung has
offered to repair his TV as a courtesy. It is not unusual for
capacitors to eventually wear out from normal use. Of the
millions of Samsung TVs sold in the U.S., very few have
experienced this issue. All customers who have questions or
concerns regarding Samsung's TV capacitor settlement are
encouraged to contact the company directly at 1-888-899-7602."
SP AUSNET: Impact of Class Action Payout on Finances Uncertain
--------------------------------------------------------------
Tim McArthur, writing for The Motley Fool, reports that the tragic
Victorian fires that occurred on February 7, 2009 and sadly
claimed many lives have been attributed to a faulty power line
owned by SP Ausnet. A class action run by law firm Maurice
Blackburn began last week alleging SP Ausnet was negligent in the
maintenance of its infrastructure and will bring in to focus the
maintenance capital expenditure (capex) of the firm.
SP Ausnet provides electricity and gas distribution and
electricity transmission throughout Victoria. An electricity
transmission network requires substantial spending to be
maintained -- this is generally referred to as maintenance capex.
It is important when reviewing companies to compare their profit
and loss statements with their cash flow statements, as this can
provide many insights. A review of SP Ausnet's most recent
interim result shows that while the depreciation expense was only
$13 million, the maintenance capex was over $153 million.
Comparing these two charges over an extended time period can
provide insights into whether a company is overstating or
understating profits. Ongoing spending requirements differ across
assets. For example, fellow electricity distributors Spark
Infrastructure and DUET Group also have to invest relatively
heavily to maintain their networks. On the other hand, pipelines
often require lower ongoing maintenance and this can be seen in
the accounts of pipeline owner and maintenance provider APA Group
and natural gas distributor Envestra.
Like most regulated assets, SP Ausnet carries a hefty debt load.
With the cost of any potential class action pay-out unknown and
insurance coverage also unclear, the potential for the balance
sheet to come under stress is hard to gauge at present.
Foolish Takeaway
First, the profit and loss statement should never be solely relied
upon. The cash flow statement will give a much clear picture as
to the current spending on maintaining assets.
Second, companies need to adequately maintain their assets. An
investor alert to this can potentially identify and avoid future
trouble.
According to Finance News Network, SP AusNet says it remains
confident its practices and procedures did not cause or contribute
to the bushfire and has indicated it will argue the damage to the
line was caused by lightning which could not have been detected.
The case is expected to continue over this year.
SP AusNet delivered a net profit of $255 million in the 2012
financial year.
STATE STREET: Continues to Face Suit Over SSgA-Managed Funds
------------------------------------------------------------
State Street Corporation continues to face class action lawsuit
related to funds managed by State Street Global Advisors,
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 is currently defending two related Employee Retirement
Income Security Act of 1974 class actions by investors in
unregistered collective trust and common trust funds managed by
State Street Global Advisors, or SSgA, which challenge the
division of the Company's securities lending-related revenue
between those funds and State Street in its role as lending agent.
The first action alleges, among other things, that State Street
breached its fiduciary duty to investors in those funds. The
plaintiff contends that other State Street agency lending clients
received more favorable fee splits than did the SSgA lending
funds. In August 2012, the Court certified a class consisting of
ERISA plans that invested in the SSgA collective trust between
April 2004 and the present. The Company has not established a
reserve with respect to this matter.
The second action, filed January 2013, challenges the division of
the Company's securities lending-related revenue between common
trust funds and State Street in its role as lending agent. It
similarly alleges, among other things, that State Street breached
its fiduciary duty to investors in those funds.
The Company has previously reported on litigation and claims
against State Street related to (i) the active fixed-income
strategies that were the subject of the Company's 2010 regulatory
settlement with the SEC, the Massachusetts Attorney General and
the Massachusetts Securities Division of the Office of the
Secretary of State, and (ii) certain prime brokerage arrangements
between four SSgA-managed common trust funds and various Lehman
entities. All of those matters have been settled.
State Street Corporation -- http://www.statestreet.com/-- a
financial holding company, provides various financial products and
services to institutional investors worldwide. It was founded in
1832 and is headquartered in Boston, Massachusetts. The Company
offers investment servicing and investment management services.
STATE STREET: Four Shareholder Suits Still Pending in Boston
------------------------------------------------------------
Four shareholder-related complaints are currently pending against
State Street Corporation in federal court in Boston, Mass. One
complaint purports to be a class action on behalf of State Street
shareholders. A second complaint is a purported shareholder
derivative action on behalf of State Street. The two other
complaints purport to be class actions on behalf of participants
and beneficiaries in the State Street Salary Savings Program who
invested in the program's State Street common stock investment
option. The complaints variously allege violations of the federal
securities laws, common law and the Employee Retirement Income
Security Act of 1974 ("ERISA") in connection with the Company's
foreign exchange trading business, its investment securities
portfolio and its asset-backed commercial paper conduit program.
The Company has not established a reserve with respect to these
matters.
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.
State Street Corporation -- http://www.statestreet.com/-- a
financial holding company, provides various financial products and
services to institutional investors worldwide. It was founded in
1832 and is headquartered in Boston, Massachusetts. The Company
offers investment servicing and investment management services.
STATE STREET: Still Defends Class Suits Over Forex Transactions
---------------------------------------------------------------
State Street Corporation offers indirect foreign exchange
services, such as those the Company offers to the California
pension plans, to a broad range of custody clients in the U.S. and
internationally. The Company has responded and is responding to
information requests from a number of clients concerning the
Company's indirect foreign exchange rates. In February 2011, a
putative class action was filed in federal court in Boston seeking
unspecified damages, including treble damages, on behalf of all
custodial clients that executed certain foreign exchange
transactions with State Street from 1998 to 2009. The putative
class action alleges, among other things, that the rates at which
State Street executed foreign currency trades constituted an
unfair and deceptive practice under Massachusetts law and a breach
of the duty of loyalty. Two other putative class actions are
currently pending in federal court in Boston alleging various
violations of the Employee Retirement Income Security Act of 1974
("ERISA") on behalf of all ERISA plans custodied with the Company
that executed indirect foreign exchange transactions with State
Street from 1998 onward. The complaints allege that State Street
caused class members to pay unfair and unreasonable rates for
indirect foreign exchange transactions with State Street. The
complaints seek unspecified damages, disgorgement of profits, and
other equitable relief.
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.
The Company says it can provide no assurance as to the outcome of
the pending proceedings in California or Massachusetts, or whether
any other proceedings might be commenced against the Company by
clients or government authorities.
State Street Corporation -- http://www.statestreet.com/-- a
financial holding company, provides various financial products and
services to institutional investors worldwide. It was founded in
1832 and is headquartered in Boston, Massachusetts. The Company
offers investment servicing and investment management services.
STATE STREET: Still Defends Suits by TAG Clients
------------------------------------------------
State Street Corporation continues to defend itself against a
class action lawsuit initiated by investment management clients of
TAG Virgin Islands, Inc., according to State Street's February 22,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2012.
State Street is named as a defendant in a series of related
complaints by investment management clients of TAG Virgin Islands,
Inc., or TAG, who hold custodial accounts with State Street. The
complaints, collectively, allege various claims, including claims
under the Massachusetts consumer protection statute, in connection
with certain assets managed by TAG and custodied with State
Street. The complaints include a putative class action, which
alleges that the class has suffered tens of millions of dollars in
damages, and a number of individual complaints, which seek
unspecified damages. The Company has not established a reserve
with respect to these matters.
State Street Corporation -- http://www.statestreet.com/-- a
financial holding company, provides various financial products and
services to institutional investors worldwide. It was founded in
1832 and is headquartered in Boston, Massachusetts. The Company
offers investment servicing and investment management services.
TREX COMPANY: Dist. Court Enforces "Ross" Class Suit Settlement
---------------------------------------------------------------
On April 7, 2010, the U.S. District Court for the Northern
District of California approved a class action settlement in the
case, ERIC ROSS, et al, Plaintiff, v. TREX COMPANY, INC.,
Defendant, No. C 09-00670 JSW, (N.D. Cal.), which alleges claims
for surface flaking defect in decking products manufactured by
Trex Company. The approval of the class action settlement and
judgment included a permanent injunction barring any class member
from filing suit based on any released claims.
On March 4, 2013, District Judge Jeffrey S. White granted motions
filed by Trex Company to enforce the judgment entered by the Court
and to enjoin actions filed in state court by William Clark and
McCormick Pier Condominium Association.
The Court determined that Mr. Clark's and McCormick's actions in
state court are covered by the Class Action settlement.
Judge White said the Court retained jurisdiction to enforce the
settlement and injunction.
While McCormick did not file any opposition to Trex Company's
motion to enforce judgment, Mr. Clark is asking the Court for an
opportunity to conduct discovery in his action in state court.
To this, Judge White ruled that "it is not clear regarding what
information [Mr. Clark] seeks through discovery. The only issue
presented to this Court in the motion to enforce judgment is
whether the notice provided to the absent class members was
sufficient to comply with due process. The Court determined at the
time that it approved the class action settlement that the notice
was sufficient. There is nothing before the Court to show that
this initial determination was in error. Allowing Clark to pursue
his action in state court and conduct discovery in that action
would undermine the finality of the judgment entered in this
Court. Accordingly, Clark's request is denied."
The Court vacated the hearing set for March 8, 2013.
A copy of the District Court's March 4, 2013 Order is available at
http://is.gd/cs6ndDfrom Leagle.com.
UNUM GROUP: Seeks Reconsideration of Judgment in "Merrimon" Suit
----------------------------------------------------------------
Unum Group filed in February 2013 a motion requesting the U.S.
District Court for the District of Maine to reconsider its prior
summary judgment ruling, 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 October 2010, Denise Merrimon, Bobby S. Mowery, and all others
similarly situated vs. Unum Life Insurance Company of America, was
filed in the United States District Court for the District of
Maine. This class action alleges that the Company breached
fiduciary duties owed to certain beneficiaries under certain group
life insurance policies when it paid life insurance proceeds by
establishing interest-bearing retained asset accounts rather than
by mailing checks. Plaintiffs seek to represent a class of
beneficiaries under group life insurance contracts that were part
of Employee Retirement Income Security Act of 1974 ("ERISA")
employee welfare benefit plans and under which the Company paid
death benefits via retained asset accounts. The plaintiffs'
principal theories in the case are: (1) funds held in retained
asset accounts were plan assets, and the proceeds earned by the
Company from investing those funds belonged to the beneficiaries,
and (2) payment of claims using retained asset accounts did not
constitute payment under Maine's late payment statute, requiring
the Company to pay interest on the undrawn retained asset account
funds at an annual rate of 18 percent.
In February 2012, the District Court issued an opinion rejecting
both of plaintiffs' principal theories and ordering judgment for
the Company. At the same time, however, the District Court held
that the Company breached a fiduciary duty to the beneficiaries by
failing to pay rates comparable to the best rates available in the
market for demand deposits. The District Court also certified a
class of people who, during a certain period of time, were
beneficiaries under certain group life insurance contracts that
were part of ERISA employee welfare benefit plans and were paid
death benefits using retained asset accounts. The District Court
authorized the parties to make an immediate appeal of its decision
to the First Circuit Court of Appeals, and each of the parties
sought leave for an early appeal on the issues raised by the
District Court's rulings, but the First Circuit decided not to
hear the appeal at this time. Therefore, the parties are required
to wait until the proceedings in the District Court have concluded
for further resolution of those issues. The First Circuit did not
rule on or discuss the merits of the case. The case is proceeding
in the District Court where notice to class members and discovery
on the issue of damages have been completed.
In February 2013, the Company filed a motion requesting the court
reconsider its prior summary judgment ruling as well as a motion
challenging the admissibility of the testimony of plaintiffs'
expert witness.
Unum Group -- http://www.unum.com/-- together with its
subsidiaries, provides group and individual disability insurance
products primarily in the United States and the United Kingdom.
It also provides a portfolio of other insurance products,
including employer-and employee-paid group benefits, life
insurance, long-term care insurance, and related services. The
Company was founded in 1848 and is based in Chattanooga,
Tennessee.
VISA INC: Startup Firm to Cash In on $7BB Swipe-Fee Settlement
--------------------------------------------------------------
Yann Ranaivo, writing for Birmingham Business Journal, reports
that a Birmingham-based startup founded by a former class-action
attorney is looking to cash in on the $7 billion swipe-fee
settlement with Visa and MasterCard. J.J. Thomas, CEO of Lexco
Capital Partners, said his startup has gained considerable steam
since the massive settlement received preliminary approval in
November.
Mr. Thomas' company identifies, prepares and files class-action
claims for companies and investors, collecting a percentage of
what it recovers. It was founded in August and is based in the
Innovation Depot business incubator.
The $7 billion settlement in the case over card interchange fees
provides a major opportunity for Lexco, with at least 7 million
notices sent out announcing the settlement. Mr. Thomas said he
has signed up roughly 200 clients for the Visa and MasterCard
case.
Businesses that track class-action settlements are rare, but Lexco
has good chances of seeing growth in the future because the
settlement market is a lucrative yet often untouched sector,
Mr. Thomas said. Mr. Thomas said investments totaling more than
six figures have been pumped into Lexco, although he would not
disclose an exact figure.
The settlement with Visa and MasterCard stems from allegations the
two companies between January 2004 and November 2012 colluded to
set interchange fees higher than they would have been in a more
competitive market. Retailers that accepted the cards during that
period of time are eligible to participate in the settlement. How
much eligible businesses will get out the settlement will depend
on a few factors, including their transaction history with the
card companies, but the more active ones can expect to receive
awards ranging from thousands to hundreds of thousands of dollars
each, he said.
After the settlement's announcement in July, a federal judge in
New York gave the action preliminary approval in November and is
slated to give final approval this coming September, Mr. Thomas
said. Mr. Thomas said he expects Lexco to determine how much
money its clients are eligible for in early fall.
"We hope that the first checks go out to our clients at the end of
the year," he said.
WEST COAST ULTRASOUND: Sued Over False Promise to Students
----------------------------------------------------------
Courthouse News Service reports that West Coast Ultrasound
Institute falsely promised students would be eligible to take an
MRI tech exam after a 9-month program, a class action claims in
Superior Court.
XCEL ENERGY: Appeal From Dismissal of "Comer II" Suit Pending
-------------------------------------------------------------
An appeal from the dismissal of the class action lawsuit titled
Comer vs. Xcel Energy Inc., et al., remains pending, according to
Excel's February 22, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
In May 2011, less than a year after their initial lawsuit was
dismissed, plaintiffs in this purported class action lawsuit filed
a second lawsuit against more than 85 utility, oil, chemical and
coal companies in the U.S. District Court in Mississippi. The
complaint alleges defendants' CO2 emissions intensified the
strength of Hurricane Katrina and increased the damage plaintiffs
purportedly sustained to their property. Plaintiffs base their
claims on public and private nuisance, trespass and negligence.
Among the defendants named in the complaint are Xcel Energy Inc.,
and its subsidiaries, Southwestern Public Service Company, Public
Service Company of Colorado, Northern States Power Company, a
Wisconsin corporation, and Northern States Power Company, a
Minnesota corporation. The amount of damages claimed by
plaintiffs is unknown. The defendants believe this lawsuit is
without merit and filed a motion to dismiss the lawsuit. In March
2012, the U.S. District Court granted this motion for dismissal.
In April 2012, plaintiffs appealed this decision to the U.S. Court
of Appeals for the Fifth Circuit.
Although Xcel Energy believes the likelihood of loss is remote
based primarily on existing case law, it is not possible to
estimate the amount or range of reasonably possible loss in the
event of an adverse outcome of this matter. No accrual has been
recorded for this matter.
Xcel Energy Inc. -- http://www.xcelenergy.com/-- is a holding
company with subsidiaries engaged primarily in the utility
business. Xcel Energy was incorporated under the laws of
Minnesota in 1909, and its executive offices are located in
Minneapolis, Minnesota.
* Vit. C Class Action Plaintiffs Take on Defendants' Star Witness
-----------------------------------------------------------------
The Litigation Daily reports that eight years after U.S. vitamin C
purchasers first leveled class action antitrust claims against a
group of Chinese drug makers, the plaintiffs are finally making
their case before a federal jury. On March 6, Boies, Schiller &
Flexner's William Isaacson got the chance to try to discredit the
defendants' star witness, a Chinese official who testified that
the companies only fixed prices because their government commanded
it.
* Mortgage Buyer Falls Flat on Discounted Debt
----------------------------------------------
Bill Rochelle, the bankruptcy columnist for Bloomberg News,
reports that an opinion issued last week by a federal district
judge in Omaha, Nebraska, indicates that purchasers buying
defaulted mortgages at discount might sometimes end up paying
bankrupt homeowners rather than making a profit.
According to the report, U.S. District Judge Joseph F. Bataillon,
ending an opinion in a nascent class lawsuit brought on behalf of
homeowners who filed bankruptcy, said he was "troubled by the
prospect that this case may involve a third-party debt buyer
attempting to collect money from a consumer on a debt she does not
owe."
The report relates that the case involved a homeowner who
abandoned a home after filing for Chapter 7 bankruptcy.
Bankruptcy discharged the mortgage debt as an obligation owing by
the homeowner. The mortgage remained a lien on the home.
The debt evidently was sold to a collection agency, which sent
letters to a homeowner making an offer where she could pay about
one-third of the mortgage debt for a "complete satisfaction of the
lien on the property." The mortgage buyer filed a motion to
dismiss the class suit brought by the homeowner under the federal
Fair Debt Collection Practices Act.
Judge Bataillon, the report relates, denied the motion in 17-page
opinion on March 4, refusing to accept the defendant's numerous
arguments that it wasn't trying to collect a debt erased in
bankruptcy. Relying on opinions from the U.S. appeals courts in
Atlanta and Cincinnati, he said the collection letter was "at best
confusing to an unsophisticated consumer and at worst an
intentionally misleading attempt to induce unsuspecting consumers
into paying money on nonexistent debts."
Although the letter said that the debt was discharged, Judge
Bataillon characterized the letter as implying that payment was
obligatory. He said the letter showed an intent to collect the
underlying debt, not enforce a security interest.
Judge Bataillon said that a suit under FDCPA "is not defeated by
clever arguments for technical loopholes that seek to devour the
protections Congress intended."
The case is Donnelly-Tovar v. Select Portfolio Servicing Inc.,
12-cv-00203, U.S. District Court, District of Nebraska (Omaha).
*********
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 * * *