/raid1/www/Hosts/bankrupt/CAR_Public/130417.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 17, 2013, Vol. 15, No. 75
Headlines
ADOBE SYSTEMS: Workers' Class Cert. Bid Denied With Leave to Amend
AFFINION GROUP: Continues to Defend Consolidated Suit in Conn.
AFFINION GROUP: Webloyalty Unit Continues to Defend Class Suits
APPLE REITS: Obtains Favorable Ruling in REITs Class Action
BANK OF AMERICA: Judge Approves $2.43-Bil. Class Action Settlement
BANKERS LIFE: Faces Class Action Over Long-Term Care Insurance
BOULDER BRANDS: Still Awaits Ruling on Bid to Dismiss N.J. Suit
BOULDER BRANDS: Still Awaits Ruling on Bid to Dismiss Calif. Suit
BULGARIA: Stamboliyski Files Radiation Exposure Class Action
CANADA: C$887MM Accord Okayed in Disabled Veterans' Class Action
CHEVRON USA: Judge Certifies Class Action Over Hot Fuel
COMCAST CORP: Behrend Ruling Takes Toll on Other Malfeasance Suits
COMMONWEALTH EDISON: Faces Class Action Over ICC Order Violation
COMSCORE: Court Grants Class Action Status to Privacy Lawsuit
CONNEXTIONS INC: Former Employees File Fraud Class Action
DARLING DOWNS: Indigenous Group Mulls Class Action
DAVID LERNER: Judge Dismisses Securities Class Action
ERA GROUP: Court Denied Fee Request Related to Class Suit
EXXONMOBIL CORP: Faces Class Action Over Mayflower Oil Spill
FIRST AMERICAN: Continues to Defend Various Class Suits
FULL TILT: June 14 Hearing Set for Motion to Dismiss Class Action
GENWORTH FINANCIAL: Unit Continues to Defend RESPA-Related Suits
GENWORTH FINANCIAL: Unit Awaits Ruling on Bid for Certification
HARVEST GROUP: Investors File C$500-Mil. Class Action
HONDA MOTOR: Faces Class Action Over CR-V Lock Malfunctions
LEBANON SCHOOL: Judge Approves Truancy Class Action Settlement
LIBERTY MEDIA: Continues to Defend Shareholder Suits in Del. & NY
LOCKHEED MARTIN: Civil Suit Ruling Prelude to Class Action
MAKO SURGICAL: Awaits Ruling on Bid to Dismiss Securities Suit
MANDA PACKING: Expands Recall of Meat, Poultry & Deli Products
MAPLE LEAF: May Face Class Action Over Bedbug Infestation
MARCHESE HOSPITAL: Chemotherapy Patients Contact Lawyers Over Suit
MARCHESE HEALTH: Diluted Cancer Drug Class Actions Prompt Probe
MEDICAL VISION: ASIC Asked to Probe Finances Amid Class Action
NAT'L COLLEGIATE: Big 10 Chief Supports O'Bannon Class Action
NELNET INC: To Seek Permission to Appeal in Bais Yaakov Suit
NEW JERSEY: Insurers Join Bid to Dismiss Storm Class Action
OXFORD HEALTH: Decision on Class Action Expected in June
RBC DOMINION: Local Charities to Get Share of Settlement
ROTHMAN REALTY: Settles Class Action Over Tax Lien Rig Auctions
ROYAL BANK: Shareholders File Class Action Against Ex-Directors
SENTINEL OFFENDER: Faces Class Action Over False Arrests
SHIRE PHARMACEUTICALS: Adderall Maker Sued Over Inflated Prices
SHOPPERS DRUG: Cassels Brock Discusses Ontario Court Ruling
SHUTTLE EXPRESS: 4th Cir. Applies Concepcion Ruling in FLSA Case
SPI ELECTRICITY: Bushfire Victim Testifies in Class Action Trial
STILLWATER MINING: Faces Class Action Over Improper Stock Awards
TATA CONSULTANCY: Gets Prelim. OK of "Vedachalam" Suit Settlement
UNITED HEALTH: NYSPA Joins Mental Health Coverage Class Action
UNITED STATES: FAA to Delay Air Traffic Control Tower Closures
UNITED STATES: Faces Class Action Over Albany County Rail Trail
UNITED STATES: South Sioux City Joins Suit v. Corps of Engineers
WAL-MART DE MEXICO: Gainey McKenna & Egleston Files Class Action
WILD BLUE: Recalls 834 Cases of Chappaqua Crunch Simply Granola
WPX ENERGY: To Litigate Second Reserved Claim This Year
WPX ENERGY: Still Defending Potential Class Suits in New Mexico
* Canadian Class Action Lawyer Hides Money in Offshore Tax Havens
* Class Actions Over Medical Collections to Hit Industry
* Kate Gosselin to Join Class Action Against Online Bullies
* Louisiana Bill to Curb Class Certification Abuse at Lower Court
*********
ADOBE SYSTEMS: Workers' Class Cert. Bid Denied With Leave to Amend
------------------------------------------------------------------
District Judge Lucy H. Koh granted in part and denied in part,
with leave to amend, a motion for class certification in IN RE:
HIGH-TECH EMPLOYEE ANTITRUST LITIGATION, Case No. 11-CV-02509-LHK,
(N.D. Cal.).
Software engineers Michael Devine, Mark Fichtner, Siddarth
Hariharan, Brandon Marshall, and Daniel Stover, individually and
on behalf of a class of all those similarly situated, allege
antitrust claims against their former employers, Adobe Systems
Inc., Apple Inc., Google Inc., Intel Corp., Intuit Inc., Lucasfilm
Ltd., and Pixar, all of whom are high-tech companies with a
principal place of business in the San Francisco-Silicon Valley
area of California. The Plaintiffs challenge an alleged
overarching conspiracy among the Defendants to fix and suppress
employee compensation and to restrict employee mobility.
From 2009 through 2010, the Antitrust Division of the Department
of Justice conducted an investigation into the Defendants'
employment and recruitment practices, and concluded that the
Defendants reached "facially anticompetitive" agreements that
"eliminated a significant form of competition to the detriment of
the affected employees who were likely deprived of competitively
important information and access to better job opportunities."
Following its investigation, the DOJ filed complaints in federal
court against the Defendants, and filed stipulated proposed final
judgments in each case. In these stipulated proposed final
judgments, the Defendants did not admit any wrongdoing or
violation of law, but they agreed to be "enjoined from attempting
to enter into, maintaining or enforcing any agreement with any
other person or in any way refrain[ing] [from] . . . soliciting,
cold calling, recruiting, or otherwise competing for employees of
the other person."
The Plaintiffs contend that, although the DOJ ultimately put an
end to these illegal agreements, the government was unable to
compensate the victims of the conspiracy. The Plaintiffs now
bring the present case as private attorneys general "to pick up
where the DOJ left off, to seek damages for themselves and for the
Class."
The original complaints in the five actions underlying the
consolidated action were filed in California state court.
Hariharan v. Adobe Sys. Inc., Case No. 11574066 (Alameda Super.
Ct. filed May 4, 2011); Marshall v. Adobe Sys. Inc., Case No. 11-
CV-204052 (Santa Clara Super. Ct. filed June 28, 2011); Devine v.
Adobe Sys. Inc., Case No. 11-CV-204053 (Santa Clara Super. Ct.
filed June 28, 2011); Fichtner v. Adobe Sys. Inc., Case No. 11-CV-
204187 (Santa Clara Super. Ct. filed June 30, 2011); Stover v.
Adobe Sys. Inc., Case No. 11-CV-25090 (Santa Clara Super. Ct.
filed July 14, 2011). The Defendants subsequently removed the
five state court actions to the United States District Court for
the Northern District of California.
On October 1, 2012, Plaintiffs filed their Motion for Class
Certification. The Defendants opposed and filed a motion to
strike the expert report submitted by the Plaintiffs. On January
9, 2013, the Defendants filed a Joint Administrative Motion for
Leave to Supplement the Record in Support of Defendants'
Opposition to Class Certification.
The Plaintiffs sought certification of a nationwide class of
similarly situated individuals (the All-Employee Class) and
salaried technical, creative, and research and development
employees (the Technical Class). In addition to deciding whether
Plaintiffs' proposed Classes should be certified pursuant to Rule
23, the Plaintiffs' Motion for Class Certification asked the Court
determine whether named Plaintiffs should be appointed as Class
representatives and whether the Court should appoint Interim Co-
Lead Counsel as Co-Lead Class Counsel and interim members of the
Executive Committee as Class Counsel.
According to Judge Koh, the Plaintiffs have not satisfied the
predominance requirement of Rule 23(b)(3) for the purpose of the
All Employee Class or the Technical Class. Nevertheless, the
Court is keenly aware that the Defendants did not produce
significant amounts of discovery or make key witnesses available
for depositions until after the hearing on Plaintiffs' Motion for
Class Certification. Therefore, while the Court denies the
Plaintiffs' Motion for Class Certification, the Court affords
Plaintiffs leave to amend.
The Court confirmed as final the appointment of Lieff, Cabraser,
Heimann & Bernstein, LLP, and the Joseph Saveri Law Firm as
Co-Lead Counsel.
The Court granted the Plaintiffs' request to appoint as Class
Counsel the law firms that have served on the Executive Committee,
Berger & Montague, P.A. and Grant & Eisenhofer, P.A.
However, the Court declined to appoint Plaintiffs as Class
representatives at this time.
The Court said it did not find that the Plaintiffs have set forth
good cause to strike either the Declaration of Michelle Maupin,
the Senior Manager of Compensation at Lucasfilm, or the
Declaration of Danny McKelly, the Compensation and Benefits
Specialist at Intel Corporation. The Plaintiffs' request to strike
these declarations was denied.
The Court also denied the Defendants' Joint Administrative Motion
for Leave to Supplement the Record in Support of Defendants'
Opposition to Class Certification.
A copy of the District Court's April 5, 2013 Order is available at
http://is.gd/9eF9D2from Leagle.com.
AFFINION GROUP: Continues to Defend Consolidated Suit in Conn.
--------------------------------------------------------------
Affinion Group, Inc., continues to defend consolidated class
action lawsuit in Connecticut, according to the Company's Form 10-
K filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2012.
The Company states: "On June 17, 2010, a class action complaint
was filed against the Company and Trilegiant Corporation
("Trilegiant") in the United States District Court for the
District of Connecticut. The complaint asserts various causes of
action on behalf of a putative nationwide class and a California-
only subclass in connection with the sale by Trilegiant of its
membership programs, including claims under the Electronic
Communications Privacy Act, the Connecticut Unfair Trade Practices
Act, the Racketeer Influenced Corrupt Organizations Act, the
California Consumers Legal Remedies Act, the California Unfair
Competition Law, the California False Advertising Law, and for
unjust enrichment. On September 29, 2010, the Company filed a
motion to compel arbitration of all of the claims asserted in this
lawsuit. On February 24, 2011, the court denied the Company's
motion. On March 28, 2011, the Company and Trilegiant filed a
notice of appeal in the United States Court of Appeals for the
Second Circuit, appealing the district court's denial of their
motion to compel arbitration. On September 7, 2012, the Second
Circuit affirmed the decision of the District Court denying
arbitration. While that issue was on appeal, the matter proceeded
in the district court. There was written discovery and
depositions. Previously, the court had set a briefing schedule on
class certification that called for the completion of class
certification briefing on May 18, 2012. However, on March 28,
2012, the court suspended the briefing schedule on the motion due
to the filing of two other overlapping class actions in the United
States District Court for the District of Connecticut. The first
of those cases was filed on March 6, 2012, against the Company,
Trilegiant, Chase Bank USA, N.A., Bank of America, N.A., Capital
One Financial Corp., Citigroup, Inc., Citibank, N.A., Apollo
Global Management, LLC, 1-800-Flowers.Com, Inc., United Online,
Inc., Memory Lane, Inc., Classmates Int'l, Inc., FTD Group, Inc.,
Days Inn Worldwide, Inc., Wyndham Worldwide Corp., People
Finderspro, Inc., Beckett Media LLC, Buy.com, Inc., Rakuten USA,
Inc., IAC/InteractiveCorp., and Shoebuy.com, Inc. The second of
those cases was filed on March 25, 2012, against the same
defendants as well as Adaptive Marketing, LLC, Vertrue, Inc.,
Webloyalty.com, Inc., and Wells Fargo & Co. These two cases assert
similar claims as the claims asserted in the earlier-filed lawsuit
in connection with the sale by Trilegiant of its membership
programs.
"On April 26, 2012, the court consolidated these three cases. The
court also set an initial status conference for May 17, 2012. At
that status conference, the court ordered that Plaintiffs file a
consolidated amended complaint to combine the claims in the three
previously separate lawsuits. The court also struck the class
certification briefing schedule that had been set previously. On
September 7, 2012, the Plaintiffs filed a consolidated amended
complaint asserting substantially the same legal claims. The
consolidated amended complaint added Priceline, Orbitz, Chase
Paymentech, Hotwire, and TigerDirect as Defendants and added three
new Plaintiffs; it also dropped Webloyalty and Rakuten as
Defendants. On December 7, 2012, all Defendants filed motions
seeking to dismiss the consolidated amended complaint and to
strike certain portions of the complaint. Plaintiff's response
brief was filed on February 7, 2013, and Defendants' reply briefs
are due March 11, 2013.
"Also, on December 5, 2012, the Plaintiffs' law firms in these
consolidated cases filed an additional action in the United States
District Court for the District of Connecticut. That case is
identical in all respects to this case except that it was filed by
a new Plaintiff (the named Plaintiff from the case described in
the following paragraph). On January 23, 2013, Plaintiff filed a
motion to consolidate that case into the existing set of
consolidated cases. We do not know when the court will rule on
that motion. On February 15, 2013, the Court entered an order
staying the date for all Defendants to respond to the Complaint
until the sooner of (1) the resolution of the motion to
consolidate the case into the existing consolidated cases, or (2)
April 1, 2013.
"On November 10, 2010, a class action complaint was filed against
the Company, Trilegiant, 1-800-Flowers.com, and Chase Bank USA,
N.A. in the United States District Court for the Eastern District
of New York. The complaint asserts various causes of action on
behalf of several putative nationwide classes that largely overlap
with one another. The claims asserted are in connection with the
sale by Trilegiant of its membership programs, including claims
under the Electronic Communications Privacy Act, Connecticut
Unfair Trade Practices Act, and New York's General Business Law.
On April 6, 2011, the Company and Trilegiant filed
a motion to compel individual (non-class) arbitration of the
plaintiff's claims. The Company's co-defendant, 1-800-Flowers.com,
joined in the motion to compel arbitration, and co-defendant Chase
Bank filed a motion to stay the case against it pending
arbitration, or alternatively to dismiss. On November 28, 2012,
the Court allowed the Plaintiff to dismiss the case voluntarily."
AFFINION GROUP: Webloyalty Unit Continues to Defend Class Suits
---------------------------------------------------------------
Affinion Group, Inc.'s Webloyalty subsidiary continues to defend
class action lawsuits alleging violations of the Electronic Fund
Transfer Act and Electronic Communications Privacy Act, unjust
enrichment, fraud, civil theft, negligent misrepresentation,
fraud, among others, in California and Connecticut, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2012.
The Company states: "On June 25, 2010, a class action lawsuit was
filed against Webloyalty and one of its clients in the United
States District Court for the Southern District of California
alleging, among other things, violations of the Electronic Fund
Transfer Act and Electronic Communications Privacy Act, unjust
enrichment, fraud, civil theft, negligent misrepresentation,
fraud, California Consumers Legal Remedies Act violations, false
advertising and California Consumer Business Practice violations.
This lawsuit relates to Webloyalty's alleged conduct occurring on
and after October 1, 2008. On February 17, 2011, Webloyalty filed
a motion to dismiss the amended complaint in this lawsuit. On
April 12, 2011, the Court granted Webloyalty's motion and
dismissed all claims against the defendants. On May 10, 2011,
plaintiff filed a notice appealing the dismissal to the United
States Court of Appeals for the Ninth Circuit. Plaintiff filed its
opening appeals brief with the Ninth Circuit on October 17, 2011,
and defendants filed their respective answering briefs on Dec. 23,
2011. Plaintiff filed its reply brief on January 23, 2012. On
January 11, 2013, the Ninth Circuit heard oral argument on the
plaintiff's appeal and, thereafter, took the matter under
advisement.
"On August 27, 2010, another substantially similar class action
lawsuit was filed against Webloyalty, one of its former clients
and one of the credit card associations in the United States
District Court for the District of Connecticut alleging, among
other things, violations of the Electronic Fund Transfer Act,
Electronic Communications Privacy Act, unjust enrichment, civil
theft, negligent misrepresentation, fraud and Connecticut Unfair
Trade Practices Act violations. This lawsuit relates to
Webloyalty's alleged conduct occurring on and after October 1,
2008. On December 23, 2010, Webloyalty filed a motion to dismiss
this lawsuit, which had since been amended in its entirety. The
court has not yet scheduled a hearing or ruled on Webloyalty's
motion.
"On June 7, 2012, another class action lawsuit was filed in the
U.S. District Court for the Southern District of California
against Webloyalty that was factually similar to the foregoing
California and Connecticut actions. The action claims that
Webloyalty engaged in unlawful business practices in violation of
California Business and Professional Code Section 17200, et seq.
and in violation of the Connecticut Unfair Trade Practices Act.
Both claims are based on allegations that in connection with
enrollment and billing of the plaintiff, Webloyalty charged
plaintiff's credit or debit card using information obtained
through a data pass process and without obtaining directly from
plaintiff his full account number, name, address, and contact
information, as purportedly required under Restore Online
Shoppers' Confidence Act. On September 25, 2012, Webloyalty filed
a motion to dismiss the complaint in its entirety, scheduling a
hearing on the motion for January 14, 2013. Webloyalty also sought
judicial notice of the enrollment page and related enrollment and
account documents. Plaintiff filed his opposition on December 12,
2012, and Webloyalty filed its reply submission on January 7,
2013. Thereafter, on January 10, 2013, the Court cancelled the
previously scheduled January 14, 2013 hearing and indicated that
it would rule based on the parties' written submissions without
the need for a hearing, although it has not yet done so."
APPLE REITS: Obtains Favorable Ruling in REITs Class Action
-----------------------------------------------------------
Bill Singer, writing for Forbes, reports that in a dramatic
Eastern District of New York Opinion by Judge Matsumoto, the Apple
REITs class action Defendants' Motion to Dismiss was granted.
David Lerner Associates and the Apple REITs emerge victorious in
this contentious and high-profile class action.
In Re Apple REITs Litigation (EDNY, 11-CV-2919, April 4, 2013).
The Court noted on page 44 of its Opinion:
Here, however, Plaintiffs have failed to proffer an actionable
theory of loss.
"In sum, Plaintiffs' belabored Complaint appears only to confirm
that the Apple REITs are currently functioning in exactly the
manner that was anticipated and disclosed in the REITs'
prospectuses and other offering documents. . ."
In similarly stark and dismissive language, the Court states on
page 47 of its Opinion:
As the court previously discussed, Plaintiffs have failed to
sufficiently plead any damages as a result of Defendants'
purported misrepresentations or omissions with respect to the
Apple REITs. To the contrary, the Complaint alleges that
Plaintiffs have in fact consistently earned money from the Apple
REITs. Accordingly, Plaintiffs' claim for common law breach of
fiduciary duty must be and is dismissed.
A copy of the Memorandum and Order is available at:
http://brokeandbroker.com/DLAOp.pdf
BANK OF AMERICA: Judge Approves $2.43-Bil. Class Action Settlement
------------------------------------------------------------------
The Associated Press reports a New York judge has approved Bank of
America's $2.43 billion settlement of a class action lawsuit
brought by shareholders over the company's acquisition of former
competitor Merrill Lynch.
A judge for the U.S. District Court for the Southern District of
Manhattan approved the settlement on April 5. The bank proposed
the settlement in late September. The agreement resolves
allegations that Bank of America did not disclose the state of its
finances or those of Merrill Lynch when it agreed to buy Merrill
in September 2008.
Judge Kevin Castel said the settlement was "hard fought," but
called the final deal was "fair, reasonable and adequate."
"We are pleased that this matter has been resolved," said Bank of
America spokesman Lawrence Grayson. A call seeking comment from
the State Teachers Retirement System of Ohio, one of the
plaintiffs in the case, was not immediately returned.
Bank of America said in September that it rejected the allegations
and was agreeing to the settlement to end the uncertainties,
burden and costs associated with the lawsuit.
The Charlotte, N.C., company agreed to buy Merrill Lynch for
$20 billion in stock at the height of the financial crisis. The
deal was struck the same weekend that Lehman Brothers collapsed.
Bank of America later disclosed that Merrill Lynch was going to
take $27.6 billion in losses that year. Bank of America later
asked for a $20 billion bailout from the federal government to
help counteract those losses. It had already received $25 billion
in bailout funds.
The Securities and Exchange Commission won a $150 million
settlement from Bank of America in 2009 to resolve charges the
company misled shareholders about the acquisition. The SEC said
Bank of America failed to tell shareholders it had authorized
Merrill to pay as much as $5.8 billion in bonuses to its employees
in 2008 before shareholders voted on the acquisition. The deal
closed in early 2009.
Bank of America still faces a civil fraud lawsuit that accuses the
company and former CEO Kenneth Lewis of failing to disclose the
Merrill losses and bonuses before the acquisition closed. The
lawsuit was filed by then- New York Attorney General Andrew Cuomo
in February 2010, and it is being pursued by AG Eric Schneiderman.
The company says those charges are unfounded.
BANKERS LIFE: Faces Class Action Over Long-Term Care Insurance
--------------------------------------------------------------
Brent Hunsberger, writing for The Oregonian, reports that four
Oregonians filed a federal class-action lawsuit on April 4,
accusing Bankers Life and Casualty Co. of elder abuse in how it
denied and delayed long-term care insurance claims and raised
premiums without improving benefits.
The suit, filed in U.S. District Court in Portland, comes nearly
three months after a federal magistrate in Medford ruled that
Chicago-based Bankers had breached its long-term care insurance
contract with a now-deceased Grants Pass woman.
It also follows years of complaints by state insurance
commissioners and consumers in Oregon about Bankers claims
handling practices.
"Bankers Life wrongfully withheld payments for people who've
applied for assisted-living expenses," said Christopher Cauble,
one of the attorneys bringing the case, during a press conference
in Portland on April 4. "They've wrongfully delayed payments.
They've created legal hurdles and legal red tape."
A spokeswoman for Bankers parent CNO Financial Group Inc. said it
does not comment on pending litigation.
The class action names Carmel, Ind.-based CNO and Conseco Life
Insurance Co., and also alleges breach of contract, breach of
promises, fraud, negligence and intentional misconduct. It seeks
a judge's approval to represent an estimated class of 9,000
Oregonians and their relatives dissatisfied with their Bankers
policy.
Long-term care insurance helps pay for nursing, assisted living,
adult foster or home health care for elderly and people with
disabilities. Bankers have been the focus of multiple complaints
nationwide about its long-term care claims and other insurance
products.
Oregon Insurance Division records show that between 2005 and 2011,
Bankers had the highest rate of consumer complaints among 19 to 20
long-term care insurance providers in the state. Bankers also had
the highest rates of complaints about its health insurance in
2005, 2006 and 2008 and annuities from 2005-09.
In 2008, Conseco Inc. agreed to pay $6.3 million in penalties and
restitution to settle complaints brought by 40 state insurance
regulators about the behavior of Bankers and subsidiary Conseco
Senior Health Insurance Co. It also agreed to make $26 million in
claims-management improvements.
Oregon was not part of the agreement, attorneys said.
Last year, Bankers paid $3.2 million to five states to settle
allegations that it had failed to live up to terms of the 2008
settlement. The multi-state review found Bankers inappropriately
denied maximum benefit claims and failed to investigate and settle
claims in a timely matter, the Pennsylvania Insurance Division
said. The problems related to Bankers' long-term care, annuities
and life insurance policies.
"At best, there's a culture of indifference and incompetence at
Bankers Life," said Michael L. Williams, an attorney bringing the
class action. "But we suspect when we get to the bottom of this
that they've always had an intentional plan to save millions of
dollars of claims payments by denying and delaying routine
claims."
Lorraine Bates and her husband Charles Ehrman Bates are lead
plaintiffs in the Oregon class-action lawsuit along with and
Eileen Burk and her son David Youngbluth. Also named as a
defendant was James D. Peterson, a sales agent in Oregon.
According to the complaint, Bankers said the adult foster home
that 87-year-old Lorraine Bates moved into in 2009 in Union County
didn't meet its policy requirements. The Oregon Insurance
Division in 2011 later said that Bankers would pay her claim,
19 months after she first submitted it.
Mr. Youngbluth hired an attorney after becoming frustrated trying
to file a claim for his 90-year-old mother, who moved into
assisted living in 2008 after a fall. The lawsuit claims Bankers
owes Ms. Burk three months of unpaid benefits.
The lawsuit claims Bankers also violated the state's elder abuse
law by selling policies without disclosing large future premium
hikes that have come with no similar increase in benefits, despite
rising health care costs.
Ms. Burk's premiums nearly doubled to $209 a month in 2010,
according to the suit. Ms. Bates' premiums, which started at $278
a month in 1998, now cost $778 a month, the complaint says.
In the Medford case earlier this year, U.S. Magistrate Judge Mark
Clarke found Bankers failed to abide by its policy when it refused
to cover all the costs of Katherine Fallow's certified home health
care provider. The provider had been certified in Washington
state, but Bankers said the provider needed to be a certified
nursing assistant or registered in Oregon.
Mrs. Fallow passed away shortly after the case was filed in 2011,
but her son has pressed on with it.
"I think they have an obligation to society to make things easier
for older people," said Dennis E. Fallow, who said he worked as a
loss prevention consultant for an insurer. "We're pursuing it
because they owe us $40,000. They shouldn't get away with this."
According to Herald Online, law firm Williams Love O'Leary &
Powers alleges Bankers Life and Casualty, a Chicago-based firm, is
denying benefits to those who paid for long term health care
insurance so they would have security in their old age.
"My mother trusted this company," Mr. Fallow explained at a
Portland news conference this morning. "She paid their premiums
for years, counting on having support if she became ill. That
time came and all she got from Bankers Life was a cold shoulder,
rejection and red tape. It was a total rip off."
Mr. Fallow's 79-year-old mother, Katherine Fallow, needed an in-
home caregiver when she came home in 2009 following multiple
hospitalizations. The family hired a caregiver certified as a
home health aide by the State of Washington and an Oregon
certified home health aide to care for Mrs. Fallow. Mr. Fallow
began submitting the bills for that care to Bankers Life,
anticipating payment under terms of his mother's policy. What
followed were several months of wrangling over aides'
qualifications, long delays in communications and denials of
payments. Bankers Life eventually made payments in the amount of
$11,388, far short of the $51,667 the family paid for Mrs.
Fallow's care. Mrs. Fallow died on July 6, 2011.
In 2011, Mr. Cauble filed a lawsuit against Bankers Life on behalf
of the Fallows. He soon learned the Grants Pass family wasn't
alone.
"Bankers Life has likely refused long term health care benefits to
many, many Oregonians," Mr. Cauble told reporters. "I began
hearing about other families with experiences similar to that of
the Fallows. What we have in Bankers Life is a company with a
history of raising premiums, delaying payments and denying
legitimate claims."
Mr. Cauble's findings prompted him to join with Portland attorney
Mike Williams and his firm to file the federal class action
against Bankers Life on behalf of all Oregon consumers. That
lawsuit was the one filed in Portland on April 4. Four
individuals (two harmed families) have made claims as
representatives of the class. Messrs. Cauble and Williams
estimate there are hundreds, perhaps thousands, more elderly
Oregonians and their families who could join the suit. The Oregon
action is similar to other lawsuits against Bankers Life in other
states.
"This is a company that preys on people when they are at their
most vulnerable," said Mr. Williams. "When you're weak and sick,
at the end of life, that's when you need the benefits. Bankers
Life stalls and refuses to pay. The company is counting on you
not having the energy or ability to fight back. Many people
don't. And, of those who do, many still don't get paid. That's
how the company makes its money. It is a classic consumer scam
aimed at the most vulnerable people."
In 2011, Bankers Life ranked worst (19th out of 19 companies) in
the Oregon Department of Consumer and Business Services' (DCBS)
consumer complaint index. In fact, DCBS figures show Bankers Life
ranked worst for consumer complaints every year from 2005 to 2011.
DCBS reports that Oregonians held 91,545 long term care policies
in 2011. That's six percent of residents age 46 and older.
People buy the insurance as a safeguard for their old age, to help
pay medical expenses and diminish the costs of care providers at
home or in assisted living facilities and nursing homes. In 2011,
Bankers Life accounted for 10 percent of this market. Bankers
Life documents, obtained in the Fallow case, show the company
receives about 350 claims each month from Oregonians.
Messrs. Cauble and Williams drew attention to a 2008 multi-state
investigation into consumer complaints against Conseco, Inc., the
parent company of Bankers Life. That action resulted in a
settlement and agreement with Conseco that included a $2.3 million
fine and $30 million in claims-handling improvements and
restitution by the company. Oregon was not part of that multi-
state action. In November 2012, the involved states found that
Bankers Life was not complying with the terms of the 2008
settlement and another $3.2 million penalty was levied against it.
The named representatives of the Oregon class action are Lorraine
Bates and her husband Ehrman Bates, both of La Grande, Ore.; and
Eileen Burk, of Sherwood, Ore., and her son David Youngbluth, of
Prineville, Ore.
BOULDER BRANDS: Still Awaits Ruling on Bid to Dismiss N.J. Suit
---------------------------------------------------------------
Boulder Brands, Inc., is still awaiting a decision on its motion
to dismiss a class action lawsuit over milk product labeling in
New Jersey, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2012.
The Company states: "In October 2011, a class action lawsuit was
filed against us in the U.S. District Court for the District of
New Jersey alleging that the labeling and marketing of our Smart
Balance(R) "Fat Free Milk and Omega-3s" products are unfair,
deceptive, and improper because they contain 1g of fat from the
Omega-3 fatty acid oil blend in the products. We filed a motion
to dismiss in response to the complaint, which was granted in part
and denied in part on June 25, 2012. On July 25, 2012, the
plaintiffs filed a second amended complaint, which we moved to
dismiss on August 10, 2012. A decision on that motion is pending.
We intend to continue to vigorously defend ourselves in this
litigation. We do not expect that the resolution of this matter
will have a material adverse effect on our business."
BOULDER BRANDS: Still Awaits Ruling on Bid to Dismiss Calif. Suit
-----------------------------------------------------------------
Boulder Brands, Inc., is still awaiting a decision on its motion
to dismiss a class action lawsuit over butter and canola product
labeling in California, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2012.
The Company states: "On July 28, 2012, a class action lawsuit was
filed in the U.S. District Court for the Southern District of
California in San Diego claiming that the labeling and marketing
of Smart Balance(R) Butter & Canola Oil Blend products is false,
misleading and deceptive. On September 18, 2012, we moved to
dismiss the complaint. That motion remains pending. A
substantially similar class action lawsuit related to the labeling
and marketing of Smart Balance(R) Butter & Canola Oil Blend
products was filed on August 9, 2012 in the U.S. District Court
for the Southern District of New York. In light of its similarity
to the San Diego case, we intend on filing a motion to consolidate
the later-filed New York case with the San Diego case, and there
after moving to dismiss the New York complaint as well. We believe
the allegations contained in both of these Complaints are without
merit and we intend to vigorously defend ourselves against these
allegations. We do not expect that the resolution of this matter
will have a material adverse effect on our business."
BULGARIA: Stamboliyski Files Radiation Exposure Class Action
------------------------------------------------------------
Novinite.com reports that residents of the southern Bulgarian city
of Stamboliyski have filed a BGN 2 M lawsuit against the Nuclear
Regulatory Agency and the National Center of Radiobiology and
Radiation Protection, seeking damages for exposure to strong gamma
radiation
The class action on behalf of 40 residents of Stamboliyski was
submitted with the Plovdiv Administrative Court, according to
reports of Monitor daily. The class action cites the Act on the
Liability for Damage Incurred by the State and the Municipalities.
Most of the class action plaintiffs live near the office of the
Gitava OOD company where the accident occurred on June 14, 2011.
Gitava specializes in supplying and recharging gamma-ray
therapeutic equipment for the treatment of cancer patients. The
company was working on an assignment by the Ministry of Health for
the supply and recharging of radioactive sources.
The June 14 accident happened during a recharging of a cobalt-60
gamma-radiation facility. Due to an employee error, an already
charged facility, instead of an empty one, was taken out of the
piece of equipment, exposing the workers to radiation for about 5
minutes.
The regional health inspectorate in Plovdiv fined Gitava OOD with
BGN 500 after the incident. The local health authorities assured
that the accident posed no threat to the residents of
Stamboliyski.
One month after the radiation exposure accident, the most
seriously affected were offered treatment in France. On July 11,
2011 71-year-old Nikolay Genchev died at the Military Medical
Academy in Sofia from serious cardiovascular pathology, with
suspicions that the exposure to gamma radiation accelerated his
death.
CANADA: C$887MM Accord Okayed in Disabled Veterans' Class Action
----------------------------------------------------------------
NEWS1130 reports that the Federal Court has rubber-stamped an
$887 million settlement of a class-action lawsuit involving
thousands of disabled veterans. The case involved the over three-
decade long federal government practice of clawing back the
military pensions of injured soldiers by the amount of disability
payments they received.
The deal includes C$424 million in retroactive payments to
veterans dating back to 1976. Over C$82 million has been set
aside to cover interest. The rest of the settlement is an
estimate of the amount the veterans will be owed in the future.
The law firm which fought the case is also in line for C$35
million in fees associated with the case. The case has been
ongoing for six years and has been led by Halifax resident and
veteran Dennis Manuge.
Class Action Settlement Details
Ottawa Citizen discloses details from the government on the class
action court settlement re SISIP:
The Federal Court of Canada has approved the settlement reached
between the Government of Canada and members of the class action
of Dennis Manuge v. Her Majesty The Queen regarding the offset of
Pension Act disability benefits from the Service Income Security
Insurance Plan (SISIP) Long Term Disability benefits.
Class Members will be provided notice of the settlement in the
manner set out below:
a. The Notice will be published on Class Counsel's website, and
on the front page of the SISIP and Veterans Affairs Canada
websites;
b. The Notice will be emailed by Class Counsel to class members
of whom they are aware; and
c. Manulife Financial will distribute the Notice to the last
known address on file for the Class Members.
The Notice will inform class members of the terms of the
settlement and next steps. In summary, the agreement provides the
following:
-- Full retroactive payments dating back to 1976, including
interest. The current estimated value of the settlement is
approximately $887.8 million;
-- an amount, included in the total of $887.8 million, to ease
income tax implications on the retroactive payments;
-- an independent review process for disputes as to past
disability or the amount of refunds for such disability;
-- clarity about how future benefits should be calculated; and
-- access to a $10 million Scholarship Fund for Class Members,
or their family, administered by the Association of Universities
and Colleges of Canada.
The Canadian Forces Long Term Disability Income Replacement
program is a disability group insurance plan administered by SISIP
Financial Services that provides Canadian Armed Forces members
with replacement income protection and vocational rehabilitation
if they are released from the Canadian Armed Forces for medical
reasons or take a voluntary release but qualify as being totally
disabled.
Judge Lauds Lawyers in Class Action
Michael Gorman, writing for The Chronicle Herald, reports that a
Federal Court decision cementing an $887-million settlement in a
class action involving thousands of disabled veterans included
high praise for lawyers representing the plaintiffs.
In his decision, Justice Robert Barnes lauded the lawyers -- led
by Peter Driscoll of McInnes Cooper in Halifax -- representing
about 7,500 veterans and their families who saw benefits clawed
back for 30 years.
"The certification and liability determinations that provided the
impetus for this settlement resulted from the skillful and
tenacious advocacy of class counsel in the context of an
adversarial contest involving equally skilled and tenacious
opposing counsel," Justice Barnes wrote in his decision dated on
April 4.
"There is no question that the high quality of the legal work
performed by class counsel led to the favorable liability
outcome."
In his decision, Justice Barnes was also tasked with determining
how much lawyers for the veterans would be paid. While the
plaintiffs' counsel were seeking eight per cent, or about $65
million, lawyers for the federal government argued that was too
high.
Justice Barnes awarded counsel $35 million, or about four per
cent. In his decision, Justice Barnes wrote that awards must take
into consideration the time, difficulty, cost, effort and risk
involved in lawyers taking on class actions. Rewards must be
enough to motivate counsel to "take on difficult class litigation
involving potentially deserving claims that might not otherwise be
pursued."
Justice Barnes said the veterans' grievance had been well known
for more than 30 years and attracted no litigation until Mr.
Driscoll took up the claim by the lead plaintiff, Halifax resident
Dennis Manuge.
McInnes Cooper and Branch MacMaster in Vancouver, B.C., the two
firms involved in representing the veterans, worked for six years
and amassed more than 8,500 hours of unbilled time.
Unbilled time is valued at more than C$3.2 million. Out-of-pocket
expenses are about C$200,000 and counting. All of this was done
with no guarantee of victory and, thus, being paid.
Mr. Driscoll, in Toronto for meetings, said he was "very pleased"
with the decision, which he called "within the band of case law."
While there was a lot of risk in taking on the case, Driscoll said
it had nothing to do with a potentially big payday and everything
to do with fairness and doing right by a vulnerable group,
something he said his firm felt strongly about.
"Certainly McInnes Cooper, throughout my pursing this case, backed
me up and supported me the whole way."
Margaret Waddell, an experienced class-action lawyer with Paliare
Roland in Toronto, said it is "extremely difficult" to get firms
to take on complicated, high-risk class actions, especially
against Ottawa.
The government "has massive resources and fights these cases
vigorously," she said. "That's not an easy target."
The pool of people in Canada who engage in this kind of litigation
is small because of the risks involved, said Ms. Waddell. She
points to Ontario as an example, where there are only about a
dozen firms heavily involved in class-action work.
"You've got to have a very high risk tolerance to agree to take on
this kind of litigation."
She said that's why lawyers are entitled to be well compensated
for positive results. She called the result in this case
"unbelievably good," and said she thought the lawyers' fees were
on the low end of what is fair.
"I think these guys did a fantastic job with this case," she said.
"I think the number that they requested was well within the range
of reasonable."
Dimitri Lascaris, who leads the Siskinds firm's securities class-
action group in Ontario, said that while lots of attention is paid
to lawyers' fees when they win, very little attention goes to
failures.
"No one talks about how much those cases cost the lawyers,
personally and professionally, when they lose. They only talk
about the fabulous successes."
Mr. Lascaris mentioned several Ontario firms that won at trial
only to lose on appeal.
He said when one firm that had obtained a summary judgment on
behalf of veterans had the decision overturned on appeal, it had
devastating financial consequences for the lawyers involved.
That's why so few lawyers take on this kind of work, he said.
"There are far, far more lawyers on Bay Street getting paid $500,
$600 an hour with no risk than there are lawyers who are getting
paid contingency fees doing plaintiffs' work."
CHEVRON USA: Judge Certifies Class Action Over Hot Fuel
-------------------------------------------------------
Matthew Heller, writing for Law360, reports that a Kansas judge on
April 5 certified a class action alleging Chevron USA Inc. sold
gas in California without revealing or accounting for temperature
expansion, finding the plaintiffs' claims present common questions
that can be addressed with classwide proof. U.S. District Judge
Kathryn H. Vratil rejected Chevron's argument that the claims
would require an individualized inquiry into the gas-purchasing
behavior of each class member, the temperature of fuel at hundreds
of retail stations and the pricing decisions of retailers.
COMCAST CORP: Behrend Ruling Takes Toll on Other Malfeasance Suits
------------------------------------------------------------------
According to Nicole Flatow of Think Progress, in just the first
week since the U.S. Supreme Court rejected a class action lawsuit
by more than 2 million Comcast costumers, the decision is already
having major repercussions in several other cases alleging
malfeasance by major corporations.
On April 1, the U.S. Supreme Court kicked two other class action
challenges back to the lower court in light of its ruling in
Comcast v. Behrend. In both cases, the plaintiffs had secured
hard-fought wins just to establish that they could sue as a class.
Now, they will have to argue that threshold question yet again --
using the new harsher standard imposed by the Court's five
conservative justices -- before they even have a chance to make
the case that the defendants are liable. And in another case
decided just two days after Comcast, a federal trial judge relied
upon the decision to reject several claims of a class suing
Applebee's for wage-and-hour law violations.
In the Comcast ruling issued on March 27, five justices sided with
Comcast in a significant but little-noticed ruling that denied
consumers the opportunity to challenge alleged monopolistic
practices and further eviscerated the class action, the mechanism
that enables multiple individuals to band together with the
necessary resources to take on corporate behemoths. The four
dissenting justices who fumed at the audacity of the decision took
solace in the fact that it should have limited application to
other cases. But early indications are that the decision has legs.
In each of the three cases already affected by the ruling, Comcast
was the basis for rejecting rulings in favor of the class and
instead siding with the defending companies. In one, a class of
consumers alleging particular washing machine models were
defective will have to re-litigate the claim that individuals can
join the class even if their faulty appliance hasn't yet developed
mold and foul odors. In another, a group of RBS Citizens
employees will have to invest even greater resources into merely
arguing that they should not have to challenge the company's
widespread denial of overtime pay one case at a time.
The plaintiffs in both of these cases won the right to sue as a
class both at trial and before the federal appeals panel. In the
appeals court decision ruling against Whirlpool, the court cited
Judge Richard Posner, a pioneer of the conservative law and
economics movement, who upheld a class lawsuit in a case alleging
the exact same washer defect. In that case, he rejected claims
that each plaintiff had to prove individual damages at such an
early stage in order to certify the class, since plaintiffs must
later prove their own damages before they can be compensated.
Posner explains:
A class action is the more efficient procedure for determining
liability and damages in a case such as this involving a defect
that may have imposed costs on tens of thousands of consumers, yet
not a cost to any one of them large enough to justify the expense
of an individual suit. If necessary, a determination of liability
could be followed by individual hearings to determine the damages
sustained by each class member. . . . The class action procedure
would be efficient not only in cost, but also in efficacy, if we
are right that the stakes in an individual case would be too small
to justify the expense of suing, in which event denial of class
certification would preclude any relief.
This is precisely the reason why the class mechanism exists, and
why it is such a blow to consumers' rights, employees' rights, and
corporate accountability, that the Supreme Court is steadily
eroding its viability. As Reuters reports, several other lawyers
are already citing the decision in major lawsuits against the
corporations they represent.
COMMONWEALTH EDISON: Faces Class Action Over ICC Order Violation
----------------------------------------------------------------
RTTNews.com reports that The Law Offices of Paul G. Neilan, P.C.,
on behalf of the plaintiffs, said in a class action lawsuit filed
on April 4 in Cook County that Commonwealth Edison, an Exelon Co.,
violated an Illinois Commerce Commission or ICC order issued under
Illinois' Smart Grid Act.
In exchange for annual formula rate increases, ComEd agreed to
upgrade its grid, improve system reliability and install smart
meters at consumers' homes and businesses. Though the ICC ordered
ComEd to begin smart meter installation by fall 2012, the company
unilaterally pushed back deployment until 2015.
As per the lawsuit, to cover the Smart Grid upgrades, ComEd filed
for a formula rate increase of $1.915 billion with the ICC in
2011. When the ICC reduced that amount by $168 million, ComEd
allegedly ignored the ICC smart meter order and said it would
delay installation of smart meters by about two and a half years.
Customers are currently paying for the smart meters, even though
none have been installed, the lawsuit said.
ComEd's original smart meter plan included the installation of
500,000 new smart meters on Chicago's South and West sides by
2013. The smart meters would have provided customers with $182
million in savings and other benefits, such as quicker response
times to outages and the ability to participate in energy saving
programs, if implemented as per the original schedule.
Chicago energy attorney Paul Neilan, who brought the suit, said,
"ComEd has pulled off the biggest bait-and-switch in Illinois
history. ComEd sold this legislation on the benefits of smart
meters, and customers have already started paying for them. But
then ComEd took the law into its own hands and willfully defied an
order of the Illinois Commerce Commission. No one will so much as
see a smart meter until 2015."
COMSCORE: Court Grants Class Action Status to Privacy Lawsuit
-------------------------------------------------------------
Jaikumar Vijayan, writing for Computerworld, reports that a
federal court in Chicago granted class action status to a lawsuit
accusing comScore, one of the Internet's largest user tracking
firms, of secretly collecting and selling Social Security numbers,
credit card numbers, passwords and other personal data collected
from consumer systems.
The court's decision paves the way for what a lawyer for the two
named plaintiffs in the case claimed could be the largest privacy
case to ever go to trial in terms of class size and potential
damages.
ComScore did not respond to a request for comment.
Publicly traded comScore, a Reston Va.-based company that collects
Internet user data and sells it to more 2,000 firms for use in
online marketing and targeted advertising. The company said it
monitors and measures what people do on the Internet and then
turns that information into actionable data for its clients.
The company claims that it captures more than 1.5 trillion user-
interactions monthly, or roughly 40% of the monthly page views of
the Internet. Its clients include some of the world's largest
e-commerce sites, online retailers, advertising agencies and
publishers.
ComScore uses OSSProxy software to track users. The software is
typically bundled along with free software products like screen
savers and music sharing software and is downloaded to the systems
of end users that install them.
Once installed, the software is designed to constantly collect and
send to comScore servers a wide range of data, such as the names
of every file on the computer, information entered into a web
browser, the contents of PDF files and other data.
ComScore maintains that all of the data it collects is purged of
identifying information and personal data before it's sold.
However, in August 2011, two Internet users, one from Illinois and
the other from California filed a lawsuit against Comscore
alleging various violations of the federal Stored Communication
Act (SCA), the Electronic Privacy Communication Act (ECPA) and the
Computer Fraud and Abuse Act (CFAA).
In the lawsuit, the pair accused comScore of changing security
settings and opening backdoors on end-user systems, stealing
information from word processing documents, emails and PDFs,
redirecting user traffic, and injecting data collection code into
browsers and instant messaging applications.
The lawsuit called comScore's software an intrusive surveillance
tool that monitors every keystroke and every action taken by a
user on the Internet. The suit charged that the company rifled
through the iPod playlists and web browsing histories of
smartphone users.
To collect data, comScore's software modifies computer firewall
settings, redirects Internet traffic, and can be upgraded and
controlled remotely, the complaint alleged. The suit challenged
comScore's assertions that it filtered out personal information
from data sold to third parties, and of intercepting data it had
no business to access.
In a 20-page ruling on April 2, District Judge James Holderman of
the United States District Court for the Northern District of
Illinois granted the two plaintiffs the class action status they
had been seeking. The ruling means that any individual who
downloaded and installed comScore's tracking software on their
systems after 2005 now has a claim against the company.
"We sought certification of two classes," said Jay Edelson, the
lawyer representing the two named individuals. "The larger class
consists of essentially all of the millions of people who
downloaded comScore software since 2005. The subclass consists of
a subset of the primary class who downloaded comScore software
during a specific time frame and but were never provided a
functional hyperlink to the user agreement describing how the
software worked."
The court granted class certification with regard to all of the
primary claims pertaining to violations of the SCA, ECPA and CFAA
he said. Under the SCA and ECPA each class member would be
entitled to a maximum of $1,000 in statutory damages, he said.
The judge, however, denied class action status for a third claim
relating to unjust enrichment against comScore.
According to Online Media Daily, the lawsuit was filed by two
comScore panelists, Jeff Dunstan of California and Illinois
resident Mike Harris, who allege that they installed comScore's
software after downloading a free product -- like a screensaver,
game or program that creates greeting cards.
They say that comScore's terms of service don't alert users about
the "terrifying" amount of data the company collects -- including
usernames and passwords, search queries, credit card numbers and
retail transactions. comScore's terms also don't inform users
that the software can change files on people's computers, as well
as modify their security settings, Dunstan and Harris allege.
They also contend that comScore's marketing partners -- who bundle
comScore software with freeware -- often don't disclose
information about comScore until after users have started
downloading the free programs. Messrs. Dunstan and Harris argue
that comScore violated various federal privacy laws by capturing
information from people's computers without their informed
consent.
comScore unsuccessfully argued that the case didn't lend itself to
class-action certification because questions about consent require
case-by-case analysis. But Judge Holderman ruled that the lawsuit
presented many common questions, including whether the comScore's
data collection practices went beyond what the company said in its
terms of service.
The ruling will likely increase the pressure on comScore to settle
the case, Seattle-based Internet legal expert Venkat Balasubramani
tells Online Media Daily. One reason is that the relatively large
size of the class means that comScore potentially faces the risk
of high damages if it loses at trial. Another is that the major
question in the case appears to be whether comScore's terms of
service disclosed enough information about its data collection.
"It comes down to a consent issue," Mr. Balasubramani says. "In
other cases, there's more of a gray area about about whether the
conduct fits within a statute."
For instance, consumers in a lawsuit against Facebook argued that
the company's Sponsored Stories violated a 1971 California law
regulating the use of names and photos in ads. Facebook agreed to
settle that litigation for $20 million, but it was never clear
that Facebook's practices were covered by the California law,
which was passed before the emergence of social networks.
comScore did not respond to Online Media Daily's request for
comment.
CONNEXTIONS INC: Former Employees File Fraud Class Action
---------------------------------------------------------
Fort Mill Times reports that Kendall Law Group announced that a
group of former employees has brought a class action lawsuit
against Connextions, Inc., Ayava Staffing Professionals, and two
of their managers, alleging fraud and conspiracy to commit fraud.
The employees allege they and a group of employees were all hired
by Connextions and Ayava to sell insurance products for several
large insurance carriers, including Wellpoint, Wellcare, Optum RX,
and United Healthcare, during what is called an open enrollment
period between October 15, 2012, and December 7, 2012. At the
time they were recruited and hired, the employees allege they were
told they would earn between $17.00 and $25.00 per hour. Although
they were hired at a lower hourly wage, usually $13.00 per hour,
the employees were allegedly told they would receive commissions
based on their sales, which would raise their hourly rate by $4.00
to $12.00 per hour. Despite repeated inquiries by the employees,
and repeated assurances by the defendants, the employees allege
they were never paid their commissions.
"The defendants repeatedly told these people that they would be
paid commissions on their sales. It was represented to them that
way from day one, and it was represented to them that way every
time they asked about their commissions," says Matt Scott, head of
the Kendall Law Group's employment practice, and lead counsel for
the employees. "They were told the commissions would be paid.
They weren't," Mr. Scott said.
The lawsuit has fourteen named plaintiff/employees, and alleges
the existence of a class of around 600 other employees, all of
whom the lawsuit alleges were short-changed by the defendants.
The case is pending in the 14th Judicial District Court in Dallas.
DARLING DOWNS: Indigenous Group Mulls Class Action
--------------------------------------------------
William Rollo, writing for ABC News, reports that an indigenous
community in central Queensland is preparing to launch legal
action against the coal seam gas (CSG) industry.
Gurang Land Council representative Cherissma Blackman says sacred
sites in the Gladstone area have been destroyed to facilitate the
construction of three CSG to liquefied natural gas (LNG) plants on
Curtis Island.
"We have been to these proponents and put forward sustainable
partnerships for environmental sustainability . . . we are not
even considered to be a party that has an interest," she said.
"We cannot still practice our culture and we have no access to
these cultural sites."
She says members of the Port Curtis Coral Coast Native Title Claim
Group, which covers the area from Gladstone to Bundaberg, are
entitled to compensation but they are yet to see a payout.
Ms. Blackman says that has prompted moves to launch a class action
claim.
"That's left a lot of our people behind the eight ball in trying
to get business development happening, to try and put in for
tenders . . . skilling up our people and keeping future
generations employed," she said.
"There are serious talks and a lot of information has been handed
over."
Save the Reef spokeswoman Libby Conners says it is a widespread
issue.
"This has gone on now for a couple of years," she said.
"I think the Aboriginal community has been incredibly patient and
tried avenues of direct discussion both with the gas companies and
Gladstone Ports Corporation, but several members within the
community are saying enough is enough.
"I've certainly seen correspondence between the Burrungam people
on the Darling Downs and QGC [Queensland Gas Company] in which the
elders who sign the ILUA [Indigenous Land Use Agreement] objected
to the clearing of very important cultural heritage near the Cania
gas field.
"The company basically said there was nothing they could do about
it -- they've done it -- that was it, there was no redress
whatsoever."
The first CSG exports are due to start next year.
DAVID LERNER: Judge Dismisses Securities Class Action
-----------------------------------------------------
Ted Phillips, writing for Newsday, reports that a federal judge
has dismissed a class-action lawsuit against Syosset-based
financial adviser David Lerner Associates and several real estate
investment trusts.
U.S. District Judge Kiyo Matsumoto ruled that investors had
received sufficient disclosure to understand the risks of
investing in the trusts. Six investors who bought the securities
-- and unexpectedly found themselves unable to cash in their
shares -- alleged that they had been misled by the adviser about
the risks and had suffered financial harm. The Brooklyn judge
rejected those arguments.
The ruling was a victory for the financial adviser, who still
faces dozens of related arbitration proceedings and was sanctioned
last year by a regulator.
A real estate investment trust, or REIT, is a company established
to own a real estate portfolio. Shareholders receive regular
income from their investments, typically a distribution of
profits. Shares of many REITs are publicly traded, but those
involved in this case -- five REITS formed by Richmond, Va.-based
Apple REIT Companies Inc. -- were not.
"David Lerner Associates Inc. is pleased that the federal court's
decision completely dismisses all of the class action's federal
securities law claims," spokesman David Chauvin said in a
statement. Mr. Chauvin said the ruling appeared to confirm that
the Apple REITs are currently functioning as anticipated.
Andrew Stoltmann, a Chicago attorney who is representing more than
20 investors in arbitration cases against Lerner and the REITs,
said he was surprised by the ruling but that it didn't affect his
cases.
"It's not over by a long shot," Mr. Stoltmann said. "All the
arbitrations aren't impacted in the least."
Mr. Stoltmann is arguing that the investments weren't suitable for
his clients, who tend to be retired or near retirement age -- a
claim that echoes a regulatory sanction against the company.
The class-action case arose after the Financial Industry
Regulatory Authority filed a complaint against the adviser and its
chief executive, David Lerner, in 2011 in connection with its
marketing of the Apple REITs. That complaint prompted many
investors to seek to exercise an option to redeem their shares,
but the REITs only honored a small percentage of those requests.
Last year FINRA ordered the company to pay $12 million in
restitution to investors who purchased shares of Apple REIT Ten.
FINRA said that Mr. Lerner and his firm "targeted unsophisticated
and elderly customers," misled investors and failed to accurately
disclose the risks in investing in the securities.
Mr. Lerner was suspended from the securities industry for one year
and fined $250,000, and the firm agreed to change its marketing
practices. Neither Mr. Lerner nor the firm admitted to
wrongdoing.
ERA GROUP: Court Denied Fee Request Related to Class Suit
---------------------------------------------------------
Era Group Inc.'s request for payment of certain costs, expenses,
and attorneys' fees related to a class action lawsuit it was
defending was denied by a federal court in Delaware last year,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2012.
On June 12, 2009, a purported civil class action was filed against
SEACOR, Era Group Inc., Era Helicopters LLC and three other
defendants (collectively, the "Defendants") in the U.S. District
Court for the District of Delaware, Superior Offshore
International, Inc. v. Bristow Group Inc., et al., No. 09-CV-438
(D. Del.). The Complaint alleged that the Defendants violated
federal antitrust law by conspiring with each other to raise, fix,
maintain or stabilize prices for offshore helicopter services in
the U.S. Gulf of Mexico during the period January 2001 to December
2005. The purported class of plaintiffs included all direct
purchasers of such services and the relief sought included
compensatory damages and treble damages. On September 4, 2009, the
Defendants filed a motion to dismiss the Complaint. On September
14, 2010, the Court entered an order dismissing the Complaint. On
September 28, 2010, the plaintiffs filed a motion for
reconsideration and amendment and a motion for re-argument (the
"Motions"). On November 30, 2010, the Court granted the Motions,
amended the Court's September 14, 2010 Order to clarify that the
dismissal was without prejudice, permitted the filing of an
amended Complaint, and authorized limited discovery with respect
to the new allegations in the amended Complaint. Following the
completion of such limited discovery, on
February 11, 2011, the Defendants filed a motion for summary
judgment to dismiss the amended Complaint with prejudice. On
June 23, 2011, the District Court granted summary judgment for the
Defendants. On July 22, 2011, the plaintiffs filed a notice of
appeal to the U.S. Court of Appeals for the Third Circuit. On July
27, 2012, the Third Circuit Court of Appeals affirmed the District
Court's grant of summary judgment in favor of the defendants. On
August 9, 2011, Defendants moved for certain excessive costs,
expenses, and attorneys' fees under 28 U.S.C. Section 1927 (the
"Fee Motion"). On October 9, 2012, the District Court denied the
Fee Motion.
EXXONMOBIL CORP: Faces Class Action Over Mayflower Oil Spill
------------------------------------------------------------
KTHV reports that the first lawsuit relating to the ExxonMobil oil
spill in Mayflower, Arkansas, has been filed. The plaintiffs are
residents who live in two houses on Ledrick Circle in Mayflower.
The defendant is the ExxonMobil Corporation.
The Class Action lawsuit states that, "Defendants are strictly
liable for ultra-hazardous conditions that proximately cause
injuries to people" following the oil spill in Mayflower one week
ago. The suit states the "Plaintiffs and the class members
respectfully pray for damages caused by Defendants' strict
(absolute) liability in an amount in excess of $75,000.00,
exclusive of costs and interest for individual damages in excess
of $5,000,000.00 of costs and interest for damages in the
aggregate."
ExxonMobil's Pegasus Pipeline ruptured in the Northwoods
neighborhood of Mayflower, causing heavy crude oil to cover yards
and streets in the area. Exxon has said it will pay for all
cleanup costs associated with the spill; an estimated cleanup time
and cost analysis have not been provided.
Law360's Daniel Wilson reports that plaintiffs Kathryn Chunn and
Kimla Greene, the March 29 rupture of the allegedly defective
pipeline in Mayflower, Ark., was the result of negligent
operation, monitoring and maintenance by Exxon and two of its
subsidiaries. The resultant spill had caused immediate and
ongoing environmental harm.
Pegasus Pipeline Measure
The Associated Press reports that officials with an Arkansas water
supplier approved a measure on April 4 asking ExxonMobil for a
plan to move an oil pipeline away from an area that drains into
the main source of drinking water for Little Rock and several
other communities.
The move by Central Arkansas Water's Board of Commissioners comes
nearly two weeks after ExxonMobil's Pegasus pipeline ruptured and
spilled thousands of barrels of oil in Mayflower, a small city
about 25 miles northwest of Little Rock.
ExxonMobil has said the March 29 spill didn't affect Mayflower's
drinking water supply, which comes from a lake about 65 miles away
and is managed by a different supplier.
But that hasn't ended concerns about drinking water in the region,
as the pipeline runs through part of the Lake Maumelle Watershed,
the area that drains into the main drinking water supply for
hundreds of thousands of people.
Central Arkansas Water's board is also asking ExxonMobil to come
up with short-term solutions to reduce the risk of an oil spill in
the watershed.
"Even with all these measures that we're trying to do to minimize
our risk and improve our emergency response, there's really no
guarantee unless the pipeline itself is removed from the
watershed," said Robert Hart, a technical services officer with
Central Arkansas Water.
Central Arkansas Water asked ExxonMobil officials to attend the
April 4 meeting, but no one from the company showed up. During a
press conference earlier in the day, ExxonMobil on-scene
coordinator Karen Tyrone said company officials had spoken with
people from Central Arkansas Water.
"We understand their concerns," Ms. Tyrone said. ". . . They
understand that we're in a recovery effort right now and our focus
right now is the Mayflower community."
Officials said residents of four of the more than 20 homes
evacuated because of the oil spill could go home as early as
Thursday. Federal on-scene coordinator Nick Brescia said the
residents of eight or nine other homes could return in the coming
days. It's not clear when the rest could come back, but some
people may not want to return as cleanup crews and their heavy
equipment are still trying to get rid of what's left of the spill.
"We have not had a strong interest to get back into homes,"
Ms. Tyrone said.
So far, crews have recovered more than 28,000 barrels of oily
water and about 2,000 cubic yards of oiled soil and debris,
according to a statement from ExxonMobil and local officials.
Officials estimate that about 5,000 barrels of oil spilled, though
a final number isn't expected until the pipeline has been repaired
and refilled. Officials hope to remove the ruptured part of the
Pegasus pipeline in the next few days, Ms. Tyrone said. Then,
investigators may be able to piece together why it ruptured.
"You cannot know what happened until you get this piece of pipe
out and you get it to a lab," she said.
FIRST AMERICAN: Continues to Defend Various Class Suits
-------------------------------------------------------
First American Financial Corporation continues to defend various
class action lawsuits that challenge practices in the its title
insurance business, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2012.
Most of the non-ordinary course lawsuits to which the Company and
its subsidiaries are parties challenge practices in the Company's
title insurance business, though a limited number of cases also
pertain to the Company's other businesses. These lawsuits include,
among others, cases alleging, among other assertions, that the
Company, one of its subsidiaries and/or one of its agents:
* charged an improper rate for title insurance in a refinance
transaction, including:
-- Hamilton v. First American Title Insurance Company, et
al., filed on August 25, 2008 and pending in the Superior
Court of the State of North Carolina, Wake County,
-- Haskins v. First American Title Insurance Company, filed
on September 29, 2010 and pending in the United States
District Court of New Jersey,
-- Lang v. First American Title Insurance Company of New
York, filed on March 9, 2012 and pending in the United
States District Court of New York,
-- Levine v. First American Title Insurance Company, filed
on February 26, 2009 and pending in the United States
District Court of Pennsylvania,
-- Lewis v. First American Title Insurance Company, filed on
November 28, 2006 and pending in the United States
District Court for the District of Idaho,
-- Mitchell-Tracey v. First American Title Insurance
Company, et al., filed on April 30, 2012 and pending in
the United States District Court for the Northern
District of Maryland,
-- Raffone v. First American Title Insurance Company, filed
on February 14, 2004 and pending in the Circuit Court,
Nassau County, Florida, and
-- Slapikas v. First American Title Insurance Company, filed
on December 19, 2005 and pending in the United States
District Court for the Western District of Pennsylvania.
All of these lawsuits are putative class actions. A court
has only granted class certification in Hamilton, Lewis,
Raffone and Slapikas. The Company has been unable to assess
the probability of loss or estimate the possible loss or the
range of loss or, where the Company has been able to make an
estimate, the Company believes the amount is immaterial to
the financial statements as a whole.
* purchased minority interests in title insurance agents as an
inducement to refer title insurance underwriting business to
the Company or gave items of value to title insurance agents
and others for referrals of business, in each case in
violation of the Real Estate Settlement Procedures Act,
including:
-- Edwards v. First American Financial Corporation, filed on
June 12, 2007 and pending in the United States District
Court for the Central District of California.
In Edwards a narrow class has been certified. The Company
has been unable to assess the probability of loss or
estimate the possible loss or the range of loss.
* conspired with its competitors to fix prices or otherwise
engaged in anticompetitive behavior, including:
-- Klein v. First American Title Insurance Company, et al.,
filed on July 10, 2012 and pending in the United States
District Court for the District of Columbia.
Klein is a putative class action for which a class has not
been certified. The Company has not yet been able to assess
the probability of loss or estimate the possible loss or the
range of loss.
* engaged in the unauthorized practice of law, including:
-- Gale v. First American Title Insurance Company, et al.,
filed on October 16, 2006 and pending in the United
States District Court of Connecticut, and
-- Katin v. First American Signature Services, Inc., et al.,
filed on May 9, 2007 and pending in the United States
District Court of Massachusetts.
Katin is a putative class action for which a class has not
been certified. The class originally certified in Gale was
subsequently decertified. The Company has not yet been able
to assess the probability of loss or estimate the possible
loss or the range of loss.
* failed to pay required compensation and provide required
rest periods, including:
-- Bartko v. First American Title Insurance Company, filed
on November 8, 2011, and pending in the Superior Court of
the State of California, Los Angeles.
Bartko is a putative class action for which a class has not
been certified. The Company has not yet been able to assess
the probability of loss or estimate the possible loss or the
range of loss.
* overcharged or improperly charged fees for products and
services provided in connection with the closing of real
estate transactions, denied home warranty claims, recorded
telephone calls, acted as an unauthorized trustee and gave
items of value to developers, builders and others as
inducements to refer business in violation of certain other
laws, such as consumer protection laws and laws generally
prohibiting unfair business practices, and certain
obligations, including:
-- Carrera v. First American Home Buyers Protection
Corporation, filed on September 23, 2009 and pending in
the Superior Court of the State of California, County of
Los Angeles,
-- Chassen v. First American Financial Corporation, et al.,
filed on January 22, 2009 and pending in the United
States District Court of New Jersey,
-- Coleman v. First American Home Buyers Protection
Corporation, et al., filed on August 24, 2009 and pending
in the Superior Court of the State of California, County
of Los Angeles,
-- Eide v. First American Title Company, filed on
February 26, 2010 and pending in the Superior Court of
the State of California, County of Kern,
-- Gunning v. First American Title Insurance Company, filed
on July 14, 2008 and pending in the United States
District Court for the Eastern District of Kentucky,
-- Kaufman v. First American Financial Corporation, et al.,
filed on December 21, 2007 and pending in the Superior
Court of the State of California, County of Los Angeles,
-- Kirk v. First American Financial Corporation, filed on
June 15, 2006 and pending in the Superior Court of the
State of California, County of Los Angeles,
-- Muehling v. First American Title Company, filed on
December 11, 2012 and pending in the Superior Court of
the State of California, County of Alameda,
-- Sjobring v. First American Financial Corporation, et al.,
filed on February 25, 2005 and pending in the Superior
Court of the State of California, County of Los Angeles,
-- Smith v. First American Title Insurance Company, filed on
November 23, 2011 and pending in the United States
District Court for the Western District of Washington,
-- Tavenner v. Talon Group, filed on August 18, 2009 and
pending in the United States District Court for the
Western District of Washington, and
-- Wilmot v. First American Financial Corporation, et al.,
filed on April 20, 2007 and pending in the Superior Court
of the State of California, County of Los Angeles.
All of these lawsuits, except Kirk, Sjobring, and Tavenner,
are putative class actions for which a class has not been
certified. In Sjobring a class was certified but that
certification was subsequently vacated. The Company has not
yet been able to assess the probability of loss or estimate
the possible loss or the range of loss.
FULL TILT: June 14 Hearing Set for Motion to Dismiss Class Action
-----------------------------------------------------------------
Bethany Krajelis, writing for The Madison-St. Clair Record,
reports that a federal judge has set a June hearing to hear
arguments over a motion to dismiss a lawsuit that seeks to recoup
gambling losses.
Individually and on behalf of others similarly situated, Judy
Fahrner in January sued 26 defendants, both individuals and
companies associated with Full Tilt Poker, a website that offers
online poker rooms.
Ms. Fahrner claims that she and other Illinois residents invested
money into the site's poker games and then lost it all when the
Department of Justice shut down the card rooms. Her suit seeks
class action status to recover gambling losses and up to three
times the amount of losses in damages under the Illinois Loss
Recovery Act (LRA).
In a memorandum supporting their March motion to dismiss, two of
the defendants -- Erik Seidel and Tiltware LLC -- assert that the
suit should be dismissed because Ms. Fahrner failed to state a
cause of action under the LRA and is barred from bringing this
case based on a prior court-ordered settlement.
Mr. Seidel, a professional poker player from Las Vegas, and
Tiltware, the software developer and licensor for Full Tilt,
contend in their memo that Ms. Fahrner "invokes and misapplies an
ancient and arguably anachronistic gambling loss recovery
statute." They claim that Ms. Fahrner fails to allege elements of
the cause of action under the LRA by not identifying "a single
purported loser of a single quantifiable loss and a single date on
which an alleged loss occurred or could have conceivably
occurred." And even if she did allege the essential elements of
her claim, Seidel and Tiltware contend that her complaint should
still be dismissed as it is barred by the doctrine of res
judicata.
"All of the possible 'gambling losses' that could have been
purportedly incurred by Illinois residents on the Full Tilt Poker
website have already been recovered in a prior court ordered
settlement instituted by another third-party relator who shares an
identity of interests with plaintiff," the pair of defendants
assert in their memo.
The prior court-ordered settlement, the memo states, came in a
case brought by Cassandra Sobota in 2011 in the Cook County
Circuit Court. She made similar claims under the LRA and last
year, filed a motion to voluntarily dismiss her suit with
prejudice.
A judge granted her motion and wrote in an order that the LRA gave
Ms. Sobota standing to initiate civil action on behalf of all
persons who suffered gambling losses of $50 or more if they failed
to pursue their remedy under the LRA within six months, but that
she then failed to do so within six months.
The order also barred any and all future claims under the LRA
against the defendants, the majority of whom are named in Ms.
Fahrner's suit, pursuant to the settlement in Ms. Sobota's case.
Pointing to Ms. Sobota's case, the defendants assert that
"traditional qui tam principles would foreclosure a subsequent
recovery for the same losses by plaintiff in this case. [Fahrner]
cannot duplicate the recovery Sobota already claimed."
Ms. Fahrner, the defendants argue, tries to get around this hurdle
by claiming that there have been additional gambling losses since
2012 that no one has recouped. That claim is "absurd" and "wholly
unsubstantiated," they assert.
In response to these two defendants' request for a hearing on
their motion to dismiss, U.S. District Judge Michael Reagan last
month set a June 14 hearing. Since then, some of the defendants
have filed their own motions to dismiss and requests for hearings.
Court records show that Reagan also scheduled the case for a final
pre-trial conference in October 2014 and a jury trial in November
2014.
Belleville attorneys William J. Niehoff and Laura Schrick, along
with Washington D.C. attorneys A. Jeff Ifrah, David Deitch and
Rachel Hirsch, filed the memo and motion to dismiss on behalf of
Seidel and Tiltware.
Belleville attorney Lloyd M. Cueto filed the complaint on
Ms. Fahrner's behalf.
GENWORTH FINANCIAL: Unit Continues to Defend RESPA-Related Suits
----------------------------------------------------------------
One of Genworth Financial, Inc.'s mortgage insurance subsidiaries
continues to defend class action lawsuits alleging that certain
"captive reinsurance arrangements" were in violation of Real
Estate Settlement and Procedures Act of 1974, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2012.
The Company states: "Beginning in December 2011 and continuing
through January 2013, one of our U.S. mortgage insurance
subsidiaries was named along with several other mortgage insurance
participants and mortgage lenders as a defendant in twelve
putative class action lawsuits alleging that certain "captive
reinsurance arrangements" were in violation of RESPA. Those cases
are captioned as follows: Samp, et al. v. JPMorgan Chase Bank,
N.A., et al., United States District Court for the Central
District of California; White, et al., v. The PNC Financial
Services Group, Inc., et al., United States District Court for the
Eastern District of Pennsylvania; Menichino, et al. v. Citibank
NA, et al., United States District Court for the Western District
of Pennsylvania; McCarn, et al. v. HSBC USA, Inc., et al., United
States District Court for the Eastern District of California;
Manners, et al., v. Fifth Third Bank, et al., United States
District court for the Western District of Pennsylvania; Riddle,
et al. v. Bank of America Corporation, et al., United States
District Court for the Eastern District of Pennsylvania; Rulison
et al. v. ABN AMRO Mortgage Group, Inc. et al., United States
District Court for the Southern District of New York; Barlee, et
al. v. First Horizon National Corporation, et al., United States
District Court for the Eastern District of Pennsylvania;
Cunningham, et al. v. M&T Bank Corp., et al., United States
District Court for the Middle District of Pennsylvania; Orange, et
al. v. Wachovia Bank, N.A., et al., United States District Court
for the Central District of California; Hill et al. v. Flagstar
Bank, FSB, et al., United States District Court for the Eastern
District of Pennsylvania; and Moriba BA, et al. v. HSBC USA, Inc.,
et al., United States District Court for the Eastern District of
Pennsylvania. Plaintiffs allege that "captive reinsurance
arrangements" with providers of private mortgage insurance whereby
a mortgage lender through captive reinsurance arrangements
received a portion of the borrowers' private mortgage insurance
premiums were in violation of RESPA and unjustly enriched the
defendants for which plaintiffs seek declaratory relief and
unspecified monetary damages, including restitution. The Rulison
case was voluntarily dismissed by the plaintiffs on July 3, 2012.
The McCarn case was dismissed by the Court with prejudice as to
our subsidiary and certain other defendants on November 9, 2012.
We intend to vigorously defend the remaining actions."
GENWORTH FINANCIAL: Unit Awaits Ruling on Bid for Certification
----------------------------------------------------------------
One of Genworth Financial, Inc.'s non-insurance subsidiaries is
awaiting a ruling on a motion for class certification in the
lawsuit captioned Michael J. Goodman and Linda Brown v. Genworth
Financial Wealth Management, Inc., et al., according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2012.
The Company states: "In December 2009, one of our non-insurance
subsidiaries, one of the subsidiary's officers and Genworth
Financial, Inc. were named in a putative class action lawsuit
captioned Michael J. Goodman and Linda Brown v. Genworth Financial
Wealth Management, Inc., et al., in the United States District
Court for the Eastern District of New York. Plaintiffs allege
securities law and other violations involving the selection of
mutual funds by our subsidiary on behalf of certain of its Private
Client Group clients. The lawsuit seeks unspecified monetary
damages and other relief. In response to our motion to dismiss the
complaint in its entirety, the Court granted the motion to dismiss
the state law fiduciary duty claim and denied the motion to
dismiss the remaining federal claims. Oral argument on plaintiffs'
motion to certify a class, originally scheduled for January 9,
2013, was conducted on January 30, 2013, but the Court has not yet
reached a decision. We will continue to vigorously defend this
action."
HARVEST GROUP: Investors File C$500-Mil. Class Action
-----------------------------------------------------
Jason van Rassel, writing for Calgary Herald, reports that
investors have launched a class-action lawsuit seeking to recover
C$500 million they put into a series of beleaguered real estate
companies and related ventures promoted by a former Lethbridge
pastor.
A statement of claim filed in Court of Queen's Bench on April 3
alleges hundreds of people invested their savings in a scheme that
improperly siphoned millions of dollars to Ronald James Aitkens
and seven other people named in the suit.
"Most of these people are in the nature of mom-and-pop retail
investors," lawyer Blair Yorke-Slader of Bennett Jones LLP in
Calgary said in an interview.
The suit alleges Mr. Aitkens created a series of entities called
the Harvest Group of Companies, which raised C$500 million for 16
ventures in real estate development, resource development and
financial investment since 2001. However, the suit claims none of
the projects were viable; it alleges they were bait used to
solicit money from investors that wound up in the pockets of Mr.
Aitkens and other Harvest Group principals.
"Each (project) was merely a shell, sham or captive company formed
and/or incorporated with the purpose of obscuring this common
purpose and organization," reads the statement of claim.
"Although ostensibly in the business of providing legitimate real
estate investments and developments, the Harvest Group of
Companies was really in the business of improperly enriching the
personal defendants."
Mr. Aitken's lawyer couldn't be reached for comment on the
lawsuit's claims, which haven't been proven in court.
The statement of claim names 11 plaintiffs who have stepped
forward on behalf of hundreds of investors allegedly victimized by
the defendants. The precise number of investors eligible to join
the suit isn't yet known.
The suit said Harvest raised its money with a network of agents
who sold shares and bonds in its ventures, often through word-of-
mouth and free seminars. The agents themselves were misled into
providing false information to investors by the defendants, the
suit alleges.
The other defendants named in the statement of claim are: Ralph
Bennetsen, Roy Juergen Beyer, Mark McCarthy, Terressa Moore, Scott
Rohrer, Wayne Tinker and Noel Winter.
Although the plaintiffs don't claim to know the exact role each of
the defendants allegedly played, the suit describes Mr. Aitkens as
the "directing or controlling mind" of the companies involved.
"Aitkens personally moved the scheme forward, made
misrepresentations as described above to the investors and
received benefit from investors' funds. Aitkens was the 'face' of
the Harvest Group of Companies and of the investment scheme," the
statement of claim said.
The suit claims the defendants enriched themselves mainly through
"nonsensical management fees" and by transferring investors' money
out of the projects and into separate, but related, companies they
also controlled.
In the case of a proposed industrial park in the town of Millet,
south of Edmonton, the defendants raised C$35 million from
investors. The suit alleges C$22.7 million was used to buy the
land "at an inflated and improvident value" from another Harvest
Group company. The defendants "improperly paid themselves" C$9.1
million in management fees and made C$2 million in payments to
"affiliated entities and unknown parties," according to the
statement of claim. Yet despite raising C$35 million in capital,
"few if any development activities have taken place with respect
to the Railside Industrial Park project," the claim said.
Some of the other projects Harvest raised money for include an
office complex in downtown Calgary, as well as residential
developments in southwest Calgary, Airdrie and Rocky View County.
The suit alleges not only have the projects never been built,
investors' bonds were never redeemed either. Investors also put
money into a Harvest Group company, Foundation Mortgage, that
claimed to offer financing to other real estate development
companies. The suit alleges the money was used instead to make
improper loans to other Harvest Group ventures.
"By either fraudulent design or extraordinary incompetence, the
defendants, or certain of them, thereby ensured that bondholders
would never be repaid," the claim says.
Initially, some Foundation bondholders did receive a return on
their investment -- but the suit claims they were paid with money
improperly taken from elsewhere.
"In truth, (Foundation) paid investors with money from other
investors, sometimes even from other projects, in a Ponzi-like
fashion," the suit says.
The suit must be certified by a judge before it can proceed.
In addition to C$500 million restitution, the suit also seeks
unspecified damages for breach of contract, misrepresentation,
breach of trust, breach of fiduciary duty, unjust enrichment and
other alleged torts. The suit also seeks a freeze on the
defendants' assets, as well as the appointment of a receiver or
supervisor to oversee the sale of the real estate held by the
Harvest companies with any proceeds going to the plaintiffs.
The case is scheduled to be heard in Calgary.
HONDA MOTOR: Faces Class Action Over CR-V Lock Malfunctions
-----------------------------------------------------------
Jim Strickland, writing for WSBTV.com, reports that a class action
lawsuit filed in a New Jersey federal court accuses Honda Motor
Corporation of fraud and deceit in relation to the sale of 2007 to
2011 CR-V crossovers.
Channel 2 Action News has heard from several owners whose door
locks malfunction. The suit claims Honda knew of the problem and
failed to warn drivers.
A Henry County woman e-mailed consumer investigator Jim Strickland
after it happened to her. Amanda Morrison says she wanted to warm
up her 2007 Honda CR-V before leaving home with her son. She was
about to climb in with her son.
"And then I closed the door so I could go get him, and after I
came back out the spare key wouldn't unlock it," she recalled.
No tow service would bring the car to her Honda dealer because it
was still running. A locksmith took two hours and charged $175.
Ms. Morrison showed Mr. Strickland how pushing the unlock button
results in an instant relock. It happened time and again as
Strickland's photographer took video.
"It's very frustrating. It's a safety issue too. If we get
locked in the car and there's a fire or what, we can't get out in
time," Ms. Morrison said.
Tamica Gibbs showed Mr. Strickland a different problem. Her
driver's side door unlocks as soon as it's locked. Ms. Gibbs
cannot secure her car.
"What do you think Honda ought to do about it?" Mr. Strickland Ms.
asked Gibbs. "Fix it. I would like and need for them to fix it."
"They knew it was a safety issue, they had problems is prior
models of the CR-V. We're alleging both consumer fraud and breach
of warranty claims as well," said attorney Matt Schelkopf, who
filed the class action.
Honda refused to comment on the suit. Mr. Strickland gave them
contact information for the owners he spoke with.
LEBANON SCHOOL: Judge Approves Truancy Class Action Settlement
--------------------------------------------------------------
Melissa Nardo, writing for FOX43, reports that Chief Judge Yvette
Kane approved a $265,000 settlement on April 4. It's part of a
class action lawsuit filed by the Public Interest Law Center and
the NAACP against Lebanon School District for overcharging
students on truancy violations. The law states that the maximum
fine for a single truancy violation is $300. Lebanon exceeded
that fine amount hundreds of times from 2004 to 2009. "The law is
clear. A truancy fine can be $300 per citation. The school
district was giving well in excess of that number of fines," said
attorney for the victims, Michael Churchill. "Some of these fines
were astronomical particularly since most of these fines are being
paid by single mothers supporting themselves on very low incomes."
A total of 248 class members will split $108k depending on how
much they paid in fines. In one case, a single mother paid three
$9,000 fines. "One woman had three $9,000 fines in one year for
her three children because the school district was not willing to
accept the fact that her children were being home-schooled. Even
though they accepted that fact in other years," said Mr.
Churchill. "We had literally thousands of them that were more
than $300 per citation and that's why there is 108,000 dollars
that the school district is going to have to return."
The school district will also have to pay $147,000 for their legal
fees. Lower courts already reduced about 100 to 150 different
unpaid fines in the amount of $325,000.
Families who will be receiving money will be notified by mail.
They will have to fill out a claim form within six months. They
should receive their settlement money by Thanksgiving.
"For a few struggling families, a few hundred dollars would seem
like a major windfall. This is a truly fair resolution to this
case," said Chief Judge Yvette Kane.
"A lot of people have left town because it was so overwhelming
they couldn't keep up with their bills. They had to choose, do we
pay our fines, or do we pay our light bill, do we feed our family
or do we go to jail. They go to jail if they don't pay their
fines. Parents have been incarcerated for not paying their
fines," said Leticia Fuentes-Keith with the NAACP. The NAACP
joined the lawsuit because they believe the district was targeting
minorities. "They say they are not targeting minorities, but once
you read the names you can come to your own conclusion," said
Ms. Fuentes-Keith.
Dignae Rivera is not part of the lawsuit but said she has paid
hundreds of dollars in fines to the district. "He [her son] was
absent for 14 days and I would give him the excuse but you know a
youngster he wouldn't bring them to school. So I did have a
constable come to my house to arrest me."
Lebanon School District declined to comment.
LIBERTY MEDIA: Continues to Defend Shareholder Suits in Del. & NY
-----------------------------------------------------------------
Liberty Media Corporation continues to defend itself from class
action lawsuits filed by shareholders and pending in Delaware and
New York, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2012.
In re SIRIUS XM Shareholder Litigation, Consol. C.A. No. 7800-CS
(Del. Ch.). On August 21, 2012, plaintiff City of Miami Police
Relief and Pension Fund (the "Fund") filed a complaint in the
Court of Chancery of the State of Delaware against Liberty, SIRIUS
XM, Liberty Radio LLC and certain Liberty designees on the board
of directors of SIRIUS XM (David J.A. Flowers, Gregory B. Maffei,
John C. Malone, Carl E. Vogel, and Vanessa A. Wittman (together,
the "SIRIUS XM Designees")). On August 23, 2012, plaintiff Brian
Cohen filed a complaint in the Court of Chancery of the State of
Delaware against the same individuals and seeking substantially
similar relief as set forth in the complaint filed by the Fund. By
Order of the Court dated October 2, 2012, the two actions were
consolidated under the caption In re SIRIUS XM Shareholder
Litigation. Plaintiffs the Fund and Brian Cohen filed an Amended
Verified Class Action and Derivative Complaint (the "Amended
Complaint") in the consolidated action on October 5, 2012. The
Amended Complaint alleges that Liberty and the SIRIUS XM Designees
breached their fiduciary duty in connection with the investment
agreement entered into in 2009 (the "Investment Agreement")
relating to Liberty's original investment in SIRIUS XM and
Liberty's subsequent acquisition of SIRIUS XM shares and Liberty's
application to the Federal Communications Commission for consent
to the transfer of de jure control of the various FCC licenses and
authorizations held by SIRIUS XM or its subsidiaries. The Amended
Complaint also seeks a declaration that a provision in the
Investment Agreement that prohibits SIRIUS XM from adopting
certain anti-takeover provisions is invalid under Delaware law and
a declaration that upon the expiration of the three year
standstill in the Investment Agreement Liberty became an
interested stockholder subject to the restrictions and limitations
set forth by Section 203 of the Delaware General Corporation Law.
Plaintiffs have filed a series of amended complaints in the action
and the parties have agreed to a briefing schedule for motions to
dismiss the latest amended complaint.
Cohen v. SIRIUS XM Radio Inc., et al., Case No. 7806 (Del. Ch.).
On August 23, 2012, plaintiff Brian Cohen filed a complaint in the
Court of Chancery of the State of Delaware. The allegations and
relief sought in this action are against the same individuals and
are substantially similar to those in the In re SIRIUS XM
Shareholder Litigation.
Montero v. SIRIUS XM Radio Inc., Index No. 653012/2012 (N.Y. Sup.
Ct. Cnty. of New York). On August 27, 2012, plaintiff Andrew
Montero brought a shareholder class action on behalf of the
shareholders of the common stock of SIRIUS XM against SIRIUS XM,
the SIRIUS XM Designees, Liberty and Liberty Radio LLC. The action
was commenced in the Supreme Court for the State of New York in
New York County. Mr. Montero alleges breaches of fiduciary duty,
aiding and abetting breach of fiduciary duty, and seeks a
declaratory judgment, with allegations and relief sought
substantially similar to those in the City of Miami litigation.
Although the parties have discussed acceptance of service in the
matter, no agreement on service has yet been filed.
LOCKHEED MARTIN: Civil Suit Ruling Prelude to Class Action
----------------------------------------------------------
Rob Scott, writing for Moorestown Patch, reports that a decision
in a longstanding civil suit against Lockheed Martin is likely
imminent, and could be the first step in a much larger class-
action lawsuit against the company, according to an attorney
involved with the case.
Julie LaVan -- julie@jlavanlaw.com -- of LaVan Law in Moorestown,
said her clients -- Michael and Ashley Leese, and Jay and Raquel
Winkler -- filed suit against Lockheed back in July 2011, alleging
that dangerous contaminants leaked into the soil and groundwater
beneath their homes in the Wexford development across the street
from the plant on Borton Landing Road.
According to the suit, the presence of the compounds -- chiefly,
chlorinated chemical solvents trichloroethylene (TCE) and
tetrachloroethylene (PCE) -- in the ground is a result of their
use in cleaning metal parts at the Lockheed facility. Ms. LaVan
said the chemicals were most likely first used by Lockheed's
predecessors at the site, namely RCA, GE and Martin Marietta.
The lawsuit claims Lockheed Martin inherited responsibility for
the contaminants in the ground and newly discovered vapor
intrusion in the homes of the Leeses and Winklers.
Ms. LaVan said Lockheed has admitted to using the chemicals, but
only in very small amounts, and has claimed the levels detected in
some of the homes in Wexford do not post a danger. That's "a
matter of state interpretation," Ms. LaVan said, explaining some
of the homes tested had levels of TCE and PCE that exceeded state
Department of Environmental Protection guidelines, and some
didn't.
However, Ms. LaVan said, "the EPA (Environmental Protection
Agency) has determined any exposure is considered dangerous."
According to a release issued by Ms. LaVan's firm, exposure to the
chemicals -- over both long- and short-term periods of time -- can
result in eye, nose, and throat irritation; headaches; loss of
coordination; nausea; damage to liver, kidney and central nervous
systems; and may even cause cancer.
The Leeses and the Winklers are seeking unspecificed damages based
on the value of their property, and for personal injury. The suit
also seeks an injunction to facilitate the remediation of off-site
residences and to prohibit future contamination.
In accordance with New Jersey Department of Environmental
Protection (NJDEP) regulations, Lockheed implemented a remediation
plan that continues today. A series of monitoring wells were
installed at the facility, as well as along Borton Landing Road to
identify and prevent migration of contaminated groundwater.
Ms. LaVan said she anticipates a decision in the case, which is
approacing trial in U.S. District Court in Camden, in the very
near future.
"It is moving rather quickly," she said.
A spokesman for Lockheed Martin declined to comment on the case,
stating, "We do not comment on ongoing litigation."
According to Ms. LaVan, a class-action lawsuit could be in the
offing, involving more residents. The likelihood of such a case
however, could depend on the success of the existing suit.
MAKO SURGICAL: Awaits Ruling on Bid to Dismiss Securities Suit
--------------------------------------------------------------
MAKO Surgical Corp. awaits ruling on motion to dismiss the
consolidated class action lawsuit captioned In re MAKO Surgical
Corp. Securities Litigation, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2012.
The Company states: "In May 2012, two shareholder complaints were
filed in the U.S. District Court for the Southern District of
Florida against the Company and certain of its officers and
directors as purported class actions on behalf of all purchasers
of the Company's common stock between January 9, 2012 and May 7,
2012. The cases were filed under the captions James H. Harrison,
Jr. v. MAKO Surgical Corp. et al., No. 12-cv-60875 and Brian
Parker v. MAKO Surgical Corp. et al., No. 12-cv-60954. The court
consolidated the Harrison and Parker complaints under the caption
In re MAKO Surgical Corp. Securities Litigation, No. 12-60875-CIV-
Cohn/Seltzer, and appointed Oklahoma Firefighters Pension and
Retirement System and Baltimore County Employees' Retirement
System to serve as co-lead plaintiffs. In September 2012, the
co-lead plaintiffs filed an amended complaint that expanded the
proposed class period through July 9, 2012. The amended complaint
alleges the Company, its Chief Executive Officer, President and
Chairman, Maurice R. Ferr‚, M.D., and its Chief Financial Officer,
Fritz L. LaPorte, violated federal securities laws by making
misrepresentations and omissions during the proposed class period
about the Company's financial guidance for 2012 that artificially
inflated the Company's stock price. The amended complaint seeks an
unspecified amount of compensatory damages, interest, attorneys'
and expert fees, and costs. In October 2012, the Company, Dr.
Ferr‚, and Mr. LaPorte filed a motion to dismiss the amended
complaint in its entirety. The court has not ruled on that motion.
"Additionally, in June and July 2012, four shareholder derivative
complaints were filed against the Company, as nominal defendant,
and its board of directors, as well as Dr. Ferr‚ and, in two
cases, Mr. LaPorte. Those complaints allege that the Company's
directors and certain officers violated their fiduciary duties,
wasted corporate assets and were unjustly enriched by allowing the
Company to make misrepresentations or omissions that exposed the
Company to the Harrison and Parker class actions and damaged the
Company's goodwill.
"Two of the derivative actions were filed in the Seventeenth
Judicial Circuit in and for Broward County, Florida and have been
consolidated under the caption In re MAKO Surgical Corporation
Shareholder Derivative Litigation, No. 12-cv-16221. By order dated
July 3, 2012, the court stayed In re MAKO Surgical Corporation
Shareholder Derivative Litigation pending a ruling on the motion
to dismiss filed in the In re MAKO Surgical Corp. Securities
Litigation class action."
MANDA PACKING: Expands Recall of Meat, Poultry & Deli Products
--------------------------------------------------------------
Manda Packing Company, a Baker, Louisiana establishment, is
expanding its recall to include approximately 468,000 pounds of
roast beef, ham, turkey breast, tasso pork, ham shanks, hog head
cheese, corned beef, and pastrami due to possible contamination
with Listeria monocytogenes, the U.S. Department of Agriculture's
Food Safety and Inspection Service (FSIS) announced.
Various weights of these products are subject to recall:
-- Roast Beef:
* Manda Supreme Roast Beef
* Four Star Cajun Roast Beef
* Four Star Roast Beef
* Cajun Prize Roast Beef
* Manda Supreme Natural Roast Beef
* Manda Natural Roast Beef
* Manda New Orleans Style Roast Beef
* Manda Whole Wet Pack Roast Beef
* Manda Roast Beef
* S&W Roast Beef
* LA Pride Roast Beef
* Leblancs Roast Beef
* Thompsons Roast Beef
* Christiana Roast Beef
* Manda Italian Roast Beef
* Deli Pride Roast Beef
* Chef Master Roast Beef
* Scariano Roast Beef
* Marques Roast Beef
* Cajun Rite Roast Beef
Each package has a "Sell by" date of May 13-June 22, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Ham:
* Manda Ham
* Cajun Prize Ham
* Leblancs Ham
* Four Star Ham
* Christiana Ham
* S&W Ham
* Thompsons Ham
* Chef Master Ham
* Rouses Ham
Each package has a "Sell by" date of May 13-July 1, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Turkey:
* Leblancs Turkey Breast
* Manda Turkey Breast
* Cajun Prize Turkey Breast
* Christiana Turkey Breast
Each package has a "Sell by" date of May 13-June 22, 2013, and
bears the establishment number "P-8746A" inside the USDA mark
of inspection.
-- Corned Beef:
* Manda Corned Beef
* Four Star Corned Beef
Each package has a "Sell by" date of May 13-June 22, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Pastrami:
* Manda Pastrami
* Four Star Pastrami
Each package has a "Sell by" date of May 13-June 22, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Hog Head Cheese:
* Manda Hog Head Cheese
* S&W Hog Head Cheese
* Rouses Hog Head Cheese
* Big Cajun Hog Head Cheese
Each package has a "Sell by" date of May 13-June 22, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Tasso Pork:
* Manda Tasso
* Diversified Tasso
* Rouses Tasso
Each package has a "Sell by" date of May 13-July 2, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
-- Ham Shanks:
* Manda Ham Shanks
Each package has a "Sell by" date of May 13-June 9, 2013, and
bears the establishment number "EST. 8746A" inside the USDA
mark of inspection.
These products may have been sliced at retail delis, and if so
will not bear this packaging information. The products were
shipped for further distribution, for sale at retail, and to
retail deli stores in Alabama, Arkansas, Florida, Georgia,
Illinois, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma,
South Carolina, Tennessee, and Texas.
FSIS was alerted to the problem by the Tennessee Department of
Agriculture, who took an intact sample of cooked roast beef at a
retail establishment on April 5, 2013, which later confirmed
positive for Listeria monocytogenes. The recall is now being
expanded because of additional samples from additional production
dates which returned positive for Listeria monocytogenes. FSIS
and the company have received no reports of illnesses associated
with consumption of these products.
FSIS routinely conducts recall effectiveness checks to verify that
recalling firms notify their customers of the recall and that
steps are taken to make certain that the product is no longer
available to consumers. When available, the retail distribution
list(s) will be posted on the FSIS Web site at:
http://is.gd/Mxp5ng
Consumption of food contaminated with Listeria monocytogenes can
cause listeriosis, an uncommon but potentially fatal disease.
Healthy people rarely contract listeriosis. However, listeriosis
can cause high fever, severe headache, neck stiffness and nausea.
Listeriosis can also cause miscarriages and stillbirths, as well
as serious and sometimes fatal infections in those with weakened
immune systems, such as infants, the elderly and persons with HIV
infection or undergoing chemotherapy. Individuals concerned about
an illness should contact a health care provider.
Media and consumers with questions about the recall should contact
Josh Yarborough, Director of Quality Assurance and Food Safety, at
(225) 344-7636, ext. 59.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at AskKaren.gov or
via smartphone at m.askkaren.gov. "Ask Karen" live chat services
are available Monday through Friday from 10:00 a.m. to 4:00 p.m.
Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888-
MPHotline (1-888-674-6854) is available in English and Spanish and
can be reached from 10:00 a.m. to 4:00 p.m. Eastern Time Monday
through Friday. Recorded food safety messages are available 24
hours a day.
MAPLE LEAF: May Face Class Action Over Bedbug Infestation
---------------------------------------------------------
The Associated Press reports that attorneys for two people suing a
Mount Pleasant apartment complex for allegedly failing to deal
with a long-running bedbug infestation want to make it a class-
action lawsuit.
Delilah Gum and Baneeck Knquia filed their lawsuit last month on
behalf of more than 50 residents and former residents of Maple
Leaf Apartments, the Burlington Hawk Eye reported on April 5. The
lawsuit claims the federally subsidized complex failed to
eliminate the infestation despite numerous requests from tenants.
"Plaintiffs have been forced to endure bedbug bites, loss of
sleep, anxiety, aggravation, inconvenience, emotional distress and
other health-related problems as an approximate result of the bed
bug infestation," according to court documents.
Attorneys Jeffrey Lipman and Trent Henkelvig want Henry County
District Court to give the case class-action status because
numerous lawsuits could create inconsistent evidence that may
impair their case. Mr. Lipman told The Associated Press that he
and Henkelvig haven't formally requested the status change yet,
but it will take several months to complete.
Mr. Lipman said at issue is the lack of proper response from the
apartment complex.
"The fact that somebody has bed bugs in an apartment doesn't
automatically give rise to liability," he said. "The crucial
issue is if the apartment complex management was reasonable in
warning the tenants of the problem, if management's inspection of
the premises was done properly and if its response to the problem
was appropriate."
MARCHESE HOSPITAL: Chemotherapy Patients Contact Lawyers Over Suit
------------------------------------------------------------------
CTV Windsor reports that a Windsor law firm has been inundated
with phone calls as a class-action lawsuit was officially launched
on April 4 against the company that is alleged to have improperly
mixed chemotherapy drugs supplied to four Ontario hospitals.
The diluted drugs were given to nearly 1,000 Ontario patients,
including 290 at Windsor Regional Hospital, over the last year.
It also impacted patients in London, Oshawa, Peterborough and New
Brunswick.
Two law firms, including Windsor-based Sutts Strosberg LLP, name
Marchese Health Care in the class-action suit.
"Our phones been ringing off the hook," says Sharon Strosberg,
partner at Sutts Strosberg. "We are hearing from so many people
who are worried, scared. They don't understand what to do or what
the affect is."
Ms. Strosberg estimated at least 200 people have joined the class-
action suit, but that number is expected to climb much higher.
Now that it has been filed, lawyers will have about 30 days to
file a statement of claim -- a more detailed document, outlining
the allegations.
Windsor hospital officials say they have been working diligently
to make contact with every patient impacted by this error. So
far, they've reached two-thirds of the Windsor area patients.
"We've made contact with 70 per cent of patients and families,"
says Windsor Regional Hospital CEO David Musyj. "We've called all
of them, but some we've left messages, waiting for a call back and
will call back today."
Mr. Musyj says they've also received feedback from many patients.
"About half of the two-thirds have said 'Don't worry about me.
I'm comfortable with the information I have and there's no need
for me to see my oncologist right now.'"
Lawyers say they have no intention of suing any of the hospitals
involved.
Marchese Hospital Solutions issued a statement on April 3, saying:
"We are confident that we fully met all of the contract
requirements including both volume and concentrations for these
solutions. However, we share responsibility to ensure that
patients and their families are not given any reason for concern
about their treatment. We take this responsibility very
seriously."
MARCHESE HEALTH: Diluted Cancer Drug Class Actions Prompt Probe
---------------------------------------------------------------
CanIndia reports that Ontario, Premier Kathleen Wynne and Health
Minister Deb Matthews announced on April 4 that there will be a
third party investigation into the diluted cancer drugs that were
administered to patients being treated at London Health Sciences
Centre, Windsor Regional Hospital, Lakeridge Health in Oshawa and
Peterborough Regional Health Centre. "It's unacceptable that this
should have happened; that the doses would not have been
accurate," Ms. Wynne said. "The minister is pulling together all
the people necessary to get to the bottom of it."
Ms. Matthews said Health Canada, the Ontario College of
Pharmacists, hospital leaders and Cancer Care Ontario are being
consulted as "every one of those groups will bring a different
perspective." There has been no announcement on who will carry
out the investigation. Watered-down chemotherapy drugs were given
to 990 cancer patients -- some for as long as a year. Doctors
have been reassuring patients that any health consequences are
unlikely. "We must look specifically at what happened,"
Ms. Matthews said. "We owe it to cancer patients to provide the
best possible care. We need patients to have confidence they're
getting the best possible care in the world." Patients were given
lower than intended doses of cyclophosphamide and gemcitabine.
The chemotherapy is part of a regime for breast and lung cancer as
well as lymphoma and leukemia. The premixed bags contained too
much saline solution, which diluted the chemotherapy agent. On
April 3, three firms Sutts, Strosberg LLP and Siskinds LLP,
announced that their hope to launch class-action lawsuits on
behalf of the families of the more than 1,100 patients affected.
They plan to sue the company that prepared the IV bags containing
the diluted medications.
MEDICAL VISION: ASIC Asked to Probe Finances Amid Class Action
--------------------------------------------------------------
Vassil Malandris, writing for ABC News, reports the Australian
Securities and Investments Commission has been asked to
investigate the finances of the Australian distributor of faulty
PIP breast implants.
A class action against Medical Vision Australia was dropped
because the company did not have product liability insurance. But
liquidator Heard Phillips claims it made several transactions with
a related entity, including asset sales, before going into
voluntary administration. It says the total figure is unknown but
it could be hundreds of thousands of dollars.
Heard Phillips has asked ASIC to investigate the company for
possible breaches of the Corporations Act. If found in breach,
those responsible could face heavy fines and up to two years in
prison.
Tim White -- twhite@tgb.com.au -- from Adelaide law firm Tindall
Gask Bentley says an investigation would be welcomed by his
clients, who are still fighting for compensation.
"If that is the case from the liquidator's investigations, then
it's possible that the transaction or transactions involved can be
cancelled and then the creditors may be able to recover money that
they're out of pocket," he said.
More than 1300 women signed up to the class action before it was
abandoned. In Australia, there are more than 420 officially
recognized cases of the French-made implants rupturing.
In 2010 it was discovered that the implants contained industrial
grade and not medical grade silicone, prompting a recall by the
Therapeutic Goods Administration. The TGA is not charged with
demanding companies take out insurance, and there are now calls
for that to change. Mr. White says there is still the possibility
of pursuing legal action against other defendants, including the
TGA.
"Certainly against the distributor, given the lack of product
liability cover, it makes a class action not viable. However,
there are other potential defendants, whether that's medical
practitioners or the TGA."
He says the company is still selling breast implants, albeit a
different brand, and still has limited public liability cover.
"One of the entities continues to supply silicone breast implants,
and to my knowledge, from the insurance product that I've seen, it
does not cover product liability cover," he said.
NAT'L COLLEGIATE: Big 10 Chief Supports O'Bannon Class Action
-------------------------------------------------------------
According to Alex Sims of Bleacher Report, Jim Delany, the verbose
commissioner of the Big Ten Conference knows this. He also knows
that the outcome of Ed O'Bannon's class-action lawsuit against the
NCAA could completely redefine Division I collegiate athletics as
we know them.
That is why, in mid-March, Delany made a declaration in support of
the NCAA's case (via Andy Staples of Sports Illustrated). In the
declaration, he essentially stated that the Big Ten would take
it's ball and go play elsewhere, rather than abide by the pay-for-
play structure that could come as a result of the O'Bannon
lawsuit:
". . . if current NCAA rules prohibiting student-athletes from
being paid for playing in college sports did not exist, I do not
believe . . . that The Big Ten would participate in a 50/50
revenue-sharing or any other 'pay for play' model with student-
athletes. Rather, it has been my longstanding belief that The Big
Ten's schools would forgo those revenues in those circumstances
and instead take steps to downsize the scope, breadth and activity
of their athletic programs."
Mr. Delany went on to identify the Division III model as a
possibility for the conference, claiming that the D-III need-based
financial model would be more aligned with the Big Ten's
philosophy regarding student-athletes.
In all likelihood, Mr. Delany is simply blowing smoke -- using his
position atop one of the major collegiate athletics conferences as
posturing on the side of the NCAA in this lawsuit. Even Big 12
Conference commissioner Bob Bowlsby deemed his statement "a little
bit overcooked" when he talked about the issue with Ian
Fitzsimmons on the air on ESPN Radio in Dallas.
However, even if the juicy red center has been cooked out of
Delany's statement, much of his declaration had to be said.
Mr. O'Bannon -- who played basketball for the UCLA Bruins in the
early 1990s -- didn't see his professional career pan out after
winning the national title at UCLA in 1995. Now working for a car
dealership in Las Vegas, Mr. O'Bannon has decided come back to
take a slice of the ever-growing NCAA pie.
Mr. O'Bannon and the many other former collegiate athletes
represented in this lawsuit believe that monetary slice is owed to
them, and it's easy to see why. The NCAA, conferences,
broadcasting companies, video game companies and athletic apparel
companies are all reaping the commercial benefits of collegiate
athletics, while the actual athletes are compensated with a
college degree.
However, Mr. Delany -- a former basketball player at North
Carolina -- understands very well what supporters of pay-for-play
fail to see. He understands the idea of amateurism, but more
importantly, he has an idea of what would happen to collegiate
athletics if the NCAA was to implement any kind of pay-for-play or
revenue sharing model.
Mr. Delany is far from the only voice in the fight against the
pay-for-play uprising. Bowlsby, Pac-12 Conference commissioner
Larry Scott and Texas athletic directors DeLoss Dodds and
Christine Plonsky all filed declarations along with the Big Ten
boss, but none of them brought the same gusto that Delany did.
When Mr. Delany climbed atop his soapbox and made his declaration,
he had no choice but to make it count. So he made his statement
that if pushed, the Big Ten would push back.
Was it a bit outlandish and excessive? Perhaps, but it was
certainly necessary from the Big Ten's perspective.
Only 22 NCAA member institutions currently operate in the black,
while the vast majority of their peers operate at a deficit. How
can schools pay athletes with money they don't have?
Athletic departments that have already been forced to cut programs
would be saddled with yet another expense, likely leading to even
more cuts, particularly in non-revenue sports. Currently, more
than 82 percent of all athletic department revenue comes solely
from football and basketball programs -- a total that eclipses $4
billion across all of Division 1-A (via U.S. Department of
Education).
At some individual institutions, that percentage is even higher.
So, what will happen to less lucrative programs like women's
soccer and wrestling if schools start paying football players?
It's hard, even for the likes of Mr. Delany, to predict exactly
what will happen to the NCAA landscape if pay-for-play is
implemented. So instead of waiting, he knocked down the first
hypothetical domino himself.
And while it may just be posturing move, it made people talk. It
made writers like Andy Staples fire up their laptops and publish,
which will make the college sports fans think.
What if the NCAA loses its lawsuit? What if student-athletes have
to be paid by their schools? Would that really prevent boosters
from offering a little extra cash for good performances?
What if a conference as influential as the Big Ten does
deemphasize athletics?
Other conferences and institutions could certainly follow suit.
Title IX even further complicates the situation, as Mr. Delany
pointed out in his declaration. While Title IX is excellent in
creating opportunities for female student-athletes, its guidelines
would be increasingly difficult to follow under a pay-for-play
model that brings favor to football and men's basketball programs.
So whether Mr. Delany's threat is valid or not, some institutions
may have no choice but to deemphasize athletics under a pay-for-
play model.
If nothing else, many baseball, softball, field hockey, rifle,
wrestling and other programs will be cut as a result -- meaning
less opportunities for student-athletes of both genders -- all
because guys like Mr. O'Bannon are sour about their "likeness"
being used in a video game.
As the commissioner of a conference that will make money either
way, Mr. Delany could still be bluffing.
But whether he's serious or not, there's no doubt that he's using
this declaration to help paint a picture of what could happen if
the NCAA loses this lawsuit.
"We can sit around and label Delany a prickly old man, but that
doesn't make him wrong," Mr. Sims said.
NELNET INC: To Seek Permission to Appeal in Bais Yaakov Suit
------------------------------------------------------------
Nelnet, Inc., continues to contest the class action lawsuit Bais
Yaakov of Spring Valley v. Peterson's Nelnet, LLC, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2012.
On January 4, 2011, a complaint against Peterson's Nelnet, LLC
("Peterson's"), a subsidiary of the Company, was filed in the U.S.
federal District Court for the District of New Jersey (the
"District Court"). The complaint alleges that Peterson's sent six
advertising faxes to the named plaintiff in 2008-2009 that were
not the result of express invitation or permission granted by the
plaintiff and did not include certain opt out language. The
complaint also alleges that such faxes violated the federal
Telephone Consumer Protection Act (the "TCPA"), purportedly
entitling the plaintiff to $500 per violation, trebled for willful
violations for each of the six faxes. The complaint further
alleges that Peterson's had sent putative class members more than
10,000 faxes that violated the TCPA, amounting to more than $5
million in statutory penalty damages and more than $15 million if
trebled for willful violations. The complaint seeks to establish a
class action. As of the filing date of this report, the District
Court has not established or recognized any class.
On April 14, 2012, the U.S. Court of Appeals for the Third
Circuit, which has jurisdiction over the District Court, issued an
order in an unrelated TCPA case which remanded that case to the
District Court to determine whether the statutory provisions of
the TCPA limit whether or to what extent a TCPA claim can be heard
as a class action in federal court where applicable state law
would impose limitations on a class action if the claim were
brought in state court. The resolution of this issue may affect
whether the claim against Peterson's can be pursued as a class
action, and in light of the ruling, Peterson's requested and
received the District Court's permission to file a renewed motion
to dismiss the complaint. Peterson's filed that motion on May 29,
2012, and on October 17, 2012, the District Court denied the
motion. On November 7, 2012, Peterson's filed a motion for
reconsideration of the District Court's order, or in the
alternative, to certify the District Court's order for
interlocutory appeal. On February 21, 2013, the District Court
denied Peterson's motion for reconsideration, but granted the
motion to certify its order for interlocutory appeal. Accordingly,
Peterson's intends to submit a Petition for Permission to Appeal
with the 3rd Circuit Court of Appeals, and intends to continue to
contest the suit vigorously.
Due to the preliminary stage of this matter and the uncertainty
and risks inherent in class determination and the overall
litigation process, the Company believes that a meaningful
estimate of a reasonably possible loss, if any, or range of
reasonably possible losses, if any, cannot currently be made.
NEW JERSEY: Insurers Join Bid to Dismiss Storm Class Action
-----------------------------------------------------------
HarrisMartin reports that several insurers have moved to dismiss a
class action lawsuit filed in New Jersey federal court over flood
insurance payments to homeowners in the wake of Hurricane Irene
and Superstorm Sandy. In a joint motion filed March 22 in U.S.
District Court for the District of New Jersey, nine insurers argue
that the plaintiff who filed the suit lacks standing to bring the
claims because neither he nor any other plaintiff was ever insured
under a policy issued by the moving defendants.
OXFORD HEALTH: Decision on Class Action Expected in June
--------------------------------------------------------
Independent Press reports that nationally recognized trial and
class action attorney and long-time Berkeley Heights resident,
Eric D. Katz, recently argued before the United States Supreme
Court in the matter of Oxford Health Plans v. John Ivan Sutter,
M.D.
Mr. Katz represents 20,000 New Jersey physicians suing Oxford for
the insurer's alleged underpayment of medical claims. The issue
before the Supreme Court is whether a physician contract
containing an arbitration clause, but is silent as to class
arbitration, can be interpreted by an arbitrator to permit
imposition of class arbitration over the objections of one party.
The case could have very big implications for employers and their
employees' allegations of discrimination in the workplace.
Indeed, according to the April 5 issue of New Jersey Law Journal,
while "[s]ame-sex marriage had the spotlight at the U.S. Supreme
Court, [the Oxford] case . . . could have an even broader impact."
A decision is expected from the Supreme Court by the end of June.
Mr. Katz has been selected annually by his peers as one of "The
Best Lawyers in America" since 2012 and a "New Jersey Super
Lawyer" since 2007. He is a senior partner at Mazie Slater Katz &
Freeman, LLC, a leading New Jersey class action and trial law
firm. Mr. Katz has resided in Berkeley Heights since 1991. His
daughter, Alexa, a scholar-athlete and recipient of several
varsity letters, graduated Governor Livingston High School in
2011.
She is a sophomore at the prestigious Washington University in
St. Louis. Mr. Katz's son, Josh, is a freshman at Governor
Livingston, where he is the centerfielder on the freshman baseball
team.
For further information, contact Eric D. Katz, Esq., partner in of
Mazie Slater Katz & Freeman, LLC, 103 Eisenhower Parkway,
Roseland, at 973-228-9898; via email at ekatz@mskf.net or visit
provideradvocate.com
RBC DOMINION: Local Charities to Get Share of Settlement
--------------------------------------------------------
Dave Waddell, writing for The Windsor Star, reports that five
local charities will share about $250,000 as the result of the
recent settlement of a class-action lawsuit over allegedly
undisclosed fees two financial institutions charged clients on
currency exchange trades.
The suit was filed by the Windsor law firm Sutts, Strosberg and
concerned trades made by RBC Dominion Securities Inc. and RBC
Action Direct Inc. between Dec. 30, 1997, and Nov. 1, 2003.
In line for the unexpected payout are the VON Windsor-Essex,
Lawyers Feed the Hungry Windsor, the Essex Region Conservation
Authority, the University of Windsor and Transition to Betterness.
The charities should get the cash by the end of September,
according to the Feb. 13 agreement. Under terms of the
settlement, money that is unclaimed, or claims that would be less
than $25, will be donated to 10 charities listed in the agreement.
"They (local charities) should all be very happy," said Jay
Strosberg, who has been involved with a series of suits in the
class action against several financial institutions for the past
decade.
"It won't be split evenly, but each of them will be getting tens
of thousands. I'm really proud that we can distribute this money
to Windsor charities."
Any class action member who is still with RBC will have their
settlement funds directly deposited into their accounts.
Mr. Strosberg said it was fitting the area benefited. One of the
suit's original two plaintiffs is a Windsor resident and the
action was filed locally. He added because the suit affected such
a wide cross-section of citizens, an effort was made to pick
charities which also ranged across all segments of society.
"Hats off to Jay Strosberg and his firm for thinking of us," said
ERCA vice-chairman Percy Hatfield, when informed of the surprise
windfall. "This is just fantastic news."
Mr. Hatfield said the timing for getting an unexpected infusion of
money couldn't be better. ERCA has a few projects, such as
deteriorating wooden walkways in conservation areas, which could
use some attention.
"The wait was certainly worth it if for ERCA," Mr. Hatfield said.
"It'll have a huge impact for us. We've been making cuts,
scraping by the last few years."
The suit alleged Royal's clients were charged undisclosed fee on
trades which the plaintiffs argued violated the account holder's
agreement.
The overall settlement, in which Royal doesn't admit liability,
was for about $7.2 million with an expected $1.2 million being
shared by 10 charities. Just over $5.1-million will be left after
expenses to be redistributed to the class-action suit members.
ROTHMAN REALTY: Settles Class Action Over Tax Lien Rig Auctions
---------------------------------------------------------------
Joshua Alston, writing for Law360, reports that the owner of New
Jersey real estate company Rothman Realty Corp. who pled guilty to
conspiring to rig auctions of municipal tax liens has agreed to
pay $200,000 to settle a related class action, according to a
motion filed on April 4 in New Jersey federal court.
Robert E. Rothman pled guilty to violations of the Sherman Act in
March 2012, admitting he'd participated in a scheme to manipulate
auctions by colluding on bids to drive up the interest rates on
municipal tax liens.
ROYAL BANK: Shareholders File Class Action Against Ex-Directors
---------------------------------------------------------------
Domain-B reports that shareholders of Royal Bank of Scotland have
launched a class action suit against the bank and its former
directors including ex-chief executive Fred Goodwin, seeking
damages to the tune of GBP4 billion.
Thousands of shareholders belonging to the RBoS Shareholders
Action Group also has on board 100 institutional investors,
including HSBC, Deutsche Bank, Credit Agricole and Collins
Stewart, as also a number of local authority pension funds,
churches and charities, all of whom lost money in the bank's 2008
rights issue.
According to the action group, the former directors "sought to
mislead shareholders by misrepresenting the underlying strength of
the bank and omitting critical information" from the rights issue
prospectus.
The group that represents over 12,000 private shareholders, many
of whom are pensioners, has launched proceedings against Goodwin,
ex-chairman Tom McKillop, the former head of investment banking
Johnny Cameron, ex-finance director Guy Whittaker, and the bank
itself.
This comes as the second claim lodged against the lender over the
past few days. It emerged that the bank was being sued for
misleading investors, in a joint claim brought by Dutch bank ING
and several pension schemes.
The action group argued that the alleged failings meant that under
the terms of the Financial Services and Markets Act, RBS was
liable for losses that investors had sustained with their
participation in the rights issue. It added, it was estimated
that the final claim might be as much as GBP4 billion.
RBS launched the GBP12 billion rights issue to shore up its
balance sheet following its disastrous acquisition of the Dutch
bank ABN Amro. The RBS share price, however, collapsed by 95 per
cent within months, and it had to be bailed out by taxpayers in
October 2008.
According to a spokesman for the group, this was a giant step
forward for the many thousands of ordinary people who lost money
as the result of inexcusable actions taken by banks and their
directors in the financial crisis.
Now, for the first time, some of these directors would have to
answer for their actions in a British court, he added.
SENTINEL OFFENDER: Faces Class Action Over False Arrests
--------------------------------------------------------
Sandy Hodson, writing for The Augusta Chronicle, reports that
another allegation of false arrest and imprisonment has been filed
against the private probation company Sentinel Offender Services.
In the 12th legal action against Sentinel in recent months,
attorney John Long is seeking class-action status for Nathan R.
Mantooth and all others who have been or might be arrested because
Sentinel staffers say they have violated terms of their
misdemeanor probation sentences. Mr. Long is also seeking a
preliminary injunction to stop Sentinel from seeking the arrest of
anyone sentenced in Richmond County State Court without an
independent legal review of each warrant. Mr. Long contends Mr.
Mantooth and two other recent clients who say they were falsely
jailed represent the tip of an iceberg because an estimated 10,000
Sentinel warrants have not yet been served.
Mr. Mantooth pleaded guilty Jan. 23 in State Court to a traffic
offense, improper lane change. According to court documents, he
paid his $420 fine and completed a court-ordered defensive driving
class by the end of the month. According to the lawsuit, Mr.
Mantooth took time off work Jan. 31 and Feb. 15 to go to the
Sentinel office and show proof that he completed the driving
course and to attend to anything a probation officer might want of
him. On both occasions, he was told his case had not been entered
into the computer system yet.
On Feb. 26, Sentinel employee Kayla White swore under oath that
Mr. Mantooth had violated his probation by not completing his
driving class, not reporting to the probation officer and not
paying Sentinel $103. Though Sentinel has access to court records
with Mr. Mantooth's phone number and address, he contends he was
never notified of any violation of his probation.
On March 18, when Mr. Mantooth was pulled over in Columbia County
for driving without a seat belt, the officer had to arrest him on
the Sentinel warrant. He was jailed for a day, had to pay $103 to
Sentinel to get out of jail and was disgraced by the publication
of his picture on jail media sites, according to the lawsuit.
The lawsuit challenges the constitutionality of private companies
being empowered to have people jailed to collect debts the
companies claim are owed and the constitutionality of a judicial
function being turned over to for-profit businesses. The lawsuit
estimates that more than 1,000 people could be potential members
of the proposed class-action petition.
Cases against Sentinel are assigned to Judge Daniel J. Craig, who
scheduled a hearing on April 4 in a similar lawsuit filed on
behalf of a man who claims he was falsely arrested and jailed on a
Sentinel warrant.
SHIRE PHARMACEUTICALS: Adderall Maker Sued Over Inflated Prices
---------------------------------------------------------------
The Huffington Post reports that the company that makes Adderall
was artificially inflating the price of the drug for years by
trying to keep generic versions off the market, a new lawsuit
claims.
A class-action suit filed on behalf of California Adderall alleges
Shire Pharmaceuticals, the maker of AXR, or Adderall, used a
combination of anti-competitive practices to delay the
introduction of a generic version of the drug. The result,
according to the suit: consumers were forced to buy the "far more
expensive" name-brand Adderall, a drug of choice for patients
suffering from attention-deficit hyperactivity disorder.
Shire stands accused of filing "sham" patent litigation to delay
other companies from introducing their own versions of Adderall
until 2006. Shire then reached settlements with some of those
companies, which allowed the firms to introduce an "authorized
generic" version of the drug after three more years, in 2009, in
exchange for a royalty payment. But the lawsuit claims Shire
reneged on the deals by not providing the companies with enough of
the product to meet demand, forcing consumers to continue to buy
Adderall at inflated prices.
Gwen Fisher, a Shire spokeswoman, told The Huffington Post that
the lawsuit's allegations are "absolutely not true." She noted
that the deals with other drugmakers allowed for a generic version
of Adderall to reach the market earlier than had those companies
waited for FDA approval. The first unauthorized generic version
of Adderall was approved by the FDA in 2012.
Ms. Fisher added the company plans to "defend itself vigorously"
in the case. "Shire believes that the lawsuits have little
merit," she wrote in emailed statement, pointing to an antitrust
suit against the company in New York federal court that was thrown
out in March.
Once the generic version of Adderall hit the market last year,
Shire's bottom line also took a hit. According to Bloomberg, the
company's sales of Adderall dropped 35% to $82 million in the
fourth quarter of 2012 -- a period not covered by the class-action
suit.
Though they may seem unfair, many the tactics Shire allegedly used
to decrease competition aren't illegal, and they're rather common
in the pharmaceutical industry. So-called "pay for delay" deals
between drugmakers cost consumers and taxpayers $3.5 billion a
year, according to the Federal Trade Commission. The Senate is
mulling legislation that would ban the practice, which the
pharmaceutical industry prefers to call "reverse settlements," and
the Supreme Court is also weighing a case over one such deal.
Opponents of the deals argue that they violate antitrust laws
because drugmakers can come up with a settlement that benefits
them but hurts consumers by keeping cheaper versions of drugs off
the market.
SHOPPERS DRUG: Cassels Brock Discusses Ontario Court Ruling
-----------------------------------------------------------
According to Colin Pendrith, Esq. at Cassels Brock Lawyers, in a
recent decision of the Ontario Superior Court of Justice, Spina v.
Shoppers Drug Mart Inc. 2012 ONSC 5563, the Honourable Mr. Justice
Perell heard a motion for certification of a franchise class
action as well as a cross-motion by the defendant under Rule 21 to
strike various elements of the plaintiffs' amended statement of
claim. Although the decision deals with a multitude of legal
issues concerning the striking of pleadings and certification, it
provides helpful guidance to franchisors in respect of typical
claims that are brought by franchisees in rebates-related claims.
Specifically, Justice Perell held that Ontario courts will take a
serious look at boilerplate claims concerning unjust enrichment,
breach of fiduciary duty and breach of the duty of good faith to
see if such claims pass muster in light of what the parties'
franchise agreement actually reads regarding the parties' rights
concerning rebates.
The plaintiff franchisees, who were drug store pharmacists,
brought a claim that asserted breach of contract claims against
the franchisor, Shoppers Drug Mart Inc., arguing that Shoppers had
breached the terms of the "Associate Agreements" with their
franchisees in various ways. In addition, the plaintiffs alleged
that Shoppers breached the common law duty of good faith and
statutory duties of fair dealing under section 3 of the Arthur
Wishart Act (Franchise Disclosure), 2000. The plaintiffs made
further claims for breach of fiduciary duties and unjust
enrichment. Finally, the plaintiffs alleged that Shoppers had
interfered with their right to associate, as prescribed by
section 4 of the AWA.
These causes of action made by the franchisees were grounded in
various factual allegations, which included: failure by Shoppers
to remit professional allowances; failure by Shoppers to share the
advantages of bulk purchasing with associates; Shoppers'
collection of advertising contribution fees in excess of a 2% cap
prescribed by the Associate Agreements; making unauthorized
changes to the "Optimum Program"; imposing a budgeting system that
was biased against associates; imposing inventory practices that
were not reasonable; and failing to provide associates with
sufficient disclosure.
Although some of the plaintiffs' claims were permitted to proceed,
Justice Perell struck several of them, and the court's reasoning
regarding the decision to strike these claims demonstrates that
many causes of action must be examined in light of the parties'
contractual obligations in determining whether or not they can
proceed.
(a) The unjust enrichment claims
Justice Perell determined that it was plain and obvious that the
plaintiffs' unjust enrichment claim relating to volume rebates
would not succeed. Although the plaintiffs could establish an
economic loss and corresponding enrichment to Shoppers, the
franchise agreement provided a juristic reason for the enrichment.
Justice Perell's decision on this point illustrates that when
franchisors are faced with an unjust enrichment claim, the
governing agreement may provide a full stop to the cause of
action. This highlights the need to conduct a thorough
contractual review at the pleadings stage of litigation.
In contrast, Justice Perell held that Shoppers' failure to remit
professional allowances might support an unjust enrichment claim
because the associate agreement did not provide such juristic
reason. However, he further held that this claim (as well as the
plaintiffs' claims for cost recovery fees and inventory practices)
was "redundant" or "superfluous" of the claim for breach of
contract.
(b) The breach of fiduciary duty claims
Justice Perell declined to decide the issue of whether Shoppers
was in a fiduciary relationship with its franchisees, but
intimated that the Associate Agreement might preclude such a
finding. More particularly, Justice Perell referred to the clause
in the Associate Agreement which states: "This Agreement shall not
be construed so as to constitute the Associate and/or Pharmacist
as a partner, employee, joint venture, agent or representative of
the Company for any purpose whatsoever, or to create any such
relationship or any trust or fiduciary relationship". Whether
dispositive or not, as a practice point for franchisors, including
such a clause in franchise agreements will often be prudent.
Rather than focussing on the existence of a fiduciary
relationship, Justice Perell considered whether Shoppers had
breached a fiduciary duty. Quoting Justice Keenan in Varcoe v.
Sterling (1992), 7 O.R. (3d) 204, Justice Perell noted that "not
every wrong done by a fiduciary is a breach of that duty. It must
be a wrong which is a betrayal of that trust component of the
relationship". Ultimately, Justice Perell determined that it was
not an "act of disloyalty, breach of confidence or
misappropriation of the Associates' property for Shoppers to keep
the rebates for itself". Therefore, even if a fiduciary
relationship existed, there was no breach of a fiduciary duty.
Justice Perell determined that the plaintiffs could still
potentially rely on the common law duty of good faith and
Shoppers' contractual duties. Accordingly the claim for breach of
fiduciary duty was struck.
(c) The breach of the duty of good faith claims
Justice Perell struck out the plaintiffs' claim for breach of the
duty of good faith as it related to volume rebates. Justice
Perell noted that "it is a general principle that good faith is
not intended to replace that contract with another or to amend the
contract by altering the express terms of the franchise contract".
This comment will be welcomed by franchisors facing attempts by
franchisees to dress-up or elevate contractual obligations in the
guise of good faith.
Justice Perell further explained that the plaintiffs' claims
concerning volume rebates mirrored a claim for beach of an express
term of the contract, but as a matter of interpretation, the
Associates Agreement authorized Shoppers' conduct. Accordingly,
Justice Perell determined that the claim had to fail.
(d) The interference with association claims
Lastly, the plaintiffs sought injunctive relief preventing
Shoppers from interfering with an independent franchise
association. Justice Perell noted that the plaintiffs "fear but
have not actually suffered interference with their right to
associate". In this respect, Justice Perell clarified that
franchisees are not entitled to injunctive relief when
interference is merely anticipated, but has not actually occurred.
Justice Perell determined that it was plain and obvious that the
claim was not a genuine claim, but was an attempt by the
plaintiffs to add color to the amended statement of claim.
However, Justice Perell granted the plaintiffs leave to amend
their claim in the event that interference should later occur.
Conclusion
Justice Perell's decision in Spina illustrates the risk involved
in pleading a multitude of causes of action, particularly where
those claims overlap with breach of contract claims or are being
attempted despite clear contractual language that undermines them.
It is reassuring to franchisors that Ontario courts will carefully
scrutinize franchise claims on motions to strike, as such motions
can significantly pare down the claims a franchisor is forced to
defend and can simplify matters before the court. This allows the
parties to franchise litigation to better focus on the real issues
in the lawsuit and to understand the case to be met.
SHUTTLE EXPRESS: 4th Cir. Applies Concepcion Ruling in FLSA Case
----------------------------------------------------------------
Alanna Byrne, writing for Inside Counsel, reports that Concepcion
strikes again, this time dooming a shuttle driver's contention
that he should be able to sue his employer for Fair Labor
Standards Act (FLSA) violations, despite a class action waiver in
his employment agreement.
Samuel Muriithi, an employee of the airport shuttle service
Shuttle Express Inc., claimed that the company misclassified him
and other drivers as independent contractors under the FLSA, thus
depriving them of minimum wage and overtime pay. Mr. Muriithi
initially prevailed in the case when a district judge ruled in
March 2011 that Shuttle Express's arbitration agreement was
unenforceable because it contained a class action waiver. At the
time of his ruling -- which he issued before the Supreme Court's
decision in AT&T Mobility v. Concepcion -- Judge Alexander
Williams also found that the agreement would have imposed
"prohibitive costs" on employees because it required that each
party to the arbitration pay half the cost of the arbitrator.
The next month, however, the Supreme Court issued its ruling in
Concepcion, in which it found that the Federal Arbitration Act
preempted a California state law invalidating class action waivers
in arbitration agreements.
On appeal, the 4th Circuit called the district court's ruling
"directly at odds" with the Supreme Court's decision, despite
Mr. Muriithi's argument that Concepcion did not apply to FLSA
collective claims.
Writing for the unanimous three-judge panel, Judge Barbara Milano
Keenan said that Concepcion applied more broadly than Mr. Muriithi
had argued. "Contrary to Muriithi's contention, the Supreme
Court's holding was not merely an assertion of federal preemption,
but also plainly prohibited application of the general contract
defense of unconscionability to invalidate an otherwise valid
arbitration agreement under these circumstances," Judge Keenan
wrote.
SPI ELECTRICITY: Bushfire Victim Testifies in Class Action Trial
----------------------------------------------------------------
The Australia Associated Press reports a Black Saturday bushfire
victim insisted on staying home to fight a fire that ended up
killing him, his widow has told a Victorian court.
Sandra Lackas told a class action trial she pleaded with her
husband Steve Lackas to join her and leave their property of
12 years at Upper Plenty as smoke billowed in the distance.
"He said, 'I'll stay and see if I can fight the fire, then
leave,'" she told the Victorian Supreme Court on April 5.
"I didn't want him to stay but he insisted."
The couple had just received a visit from two men from the CFA
warning the fire would reach them in 20 minutes and they had 10
minutes to leave. She said the men showed no indication of how
ferocious the fire was.
"I didn't feel a great urgency," she said.
Mrs. Lackas said she had kept tabs on the situation that day
through television news and CFA website updates. She believed her
family would be okay because the CFA website said the fire was
small and just a handful of trucks were battling it. She did not
see an update on the website that stated 101 trucks were involved.
After leaving her husband behind, she called him and he told her
fire was all around and their hay shed was ablaze. She tried
frequently to call him back but couldn't reach him and learnt
later that afternoon he had died.
Mrs. Lackas said she and her husband were always conscious of fire
danger and a decision to leave depended on the day. She said she
had contacted the Department of Sustainability and Environment
annually to do fuel reduction burns in the area but had been told
the weather was inappropriate or there wasn't funding available.
Mrs. Lackas is one of 10,000 people in a class action claiming
damages against power company SPI Electricity for failing to
maintain power lines, which sparked the February 2009 blaze. They
are also suing the police, the CFA and the state's environment
department for failing to give adequate warnings about the Kilmore
East fire that killed 119 people.
All defendants deny the allegations and are fighting the claims.
STILLWATER MINING: Faces Class Action Over Improper Stock Awards
----------------------------------------------------------------
Matthew Brown, writing for The Associated Press, reports that a
federal class action lawsuit alleges that a Montana mining
company's board improperly awarded its chairman more than 104,000
shares of company stock.
The lawsuit comes as a group that includes former Gov. Brian
Schweitzer seeks to oust the leadership of Stillwater Mining Co.
for alleged mismanagement.
Billings Attorney Thomas Towe, who represents the Pennsylvania
woman named as a plaintiff in the case, said Friday that stock
awards to Stillwater Chairman and CEO Frank McAllister violated a
shareholder-approved incentive plan. That plan limited the number
of shares McAllister could receive in a given year to 250,000,
according to the suit. In 2010 he received, 337,447 shares, and
in 2012 he received 267,512 shares.
The suit, filed on April 4 in U.S. District Court in Billings,
calls for the shares to be rescinded. It also claims Stillwater
and its board violated federal securities laws by not disclosing
the stock awards. The alleged excess shares were worth almost
$1.3 million at Stillwater's most recent stock price.
Stillwater spokesman Dan Gagnier said on April 5 the company was
aware of the lawsuit and was reviewing it, but had no further
comment.
Stillwater is the only U.S. producer of platinum and palladium,
precious metals used primarily used to make catalytic converters
that reduce vehicle pollution. The company employs more than
1,664 people and operates two mines in the Beartooth Mountains of
south-central Montana. It also runs a precious metals recycling
plant in Columbus.
In recent years, Stillwater sought to expand internationally.
Under McAllister's leadership, it bought a proposed gold and
palladium mine in Canada and a vast reserve of copper in a remote
area of the Andes in Argentina.
The foreign ventures cost hundreds of millions of dollars.
Critics say they distracted from the company's core operations in
Montana and prompted potential investors to shy away.
Plaintiff's attorney Towe said he knows of no connection between
his client, Sylvia Jurgelewicz, and Schweitzer's group, which is
led by a New York hedge fund, the Clinton Group.
But the class action suit extensively cites proxy material put out
by the Clinton Group as part its corporate takeover. The group is
trying to convince shareholders to replace Stillwater's eight-
member board with a slate of nominees that includes Schweitzer,
former Stillwater CEO Charles Engles and Clinton Group managing
director Greg Taxin.
The issue will be decided by a vote of shareholders during
Stillwater's annual meeting, scheduled for May 2 in Montana.
TATA CONSULTANCY: Gets Prelim. OK of "Vedachalam" Suit Settlement
-----------------------------------------------------------------
District Judge Claudia Wilken granted preliminary approval of a
settlement in the class action lawsuit captioned GOPI VEDACHALAM
and KANGANA BERI, on behalf of themselves and all others similarly
situated, Plaintiffs, v. TATA CONSULTANCY SERVICES, LTD., an
Indian Corporation; and TATA SONS, LTD, an Indian Corporation,
Defendants, Case No. C 06-0963 CW, (N.D. Cali.).
The Court concluded that the proposed Settlement meets the
criteria for preliminary settlement approval. The Court also
approved the distribution of notice of the settlement to the
Class.
Gilardi & Company, LLC was appointed Settlement Administrator.
Any Class Member may opt out of participating in the Settlement by
e-mailing or submitting a letter to the Settlement Administrator
stating that he or she wishes to be excluded from the Settlement.
A completed opt-out request will be deemed timely submitted to the
Settlement Administrator if it is mailed to the Settlement
Administrator and postmarked by not later than 70 days after entry
of the Preliminary Order.
Objections to the Settlement must also be in writing and must be
submitted within 70 days after entry of the Preliminary Order.
The Court will convene a hearing on July 11, 2013, at 2:00 p.m.,
to determine whether to grant final approval of the Settlement.
Kelly M. Dermody, Esq. -- kdermody@lchb.com -- Daniel M.
Hutchinson, Esq. -- dhutchinson@lchb.com -- Anne B. Shaver, Esq.
-- ashaver@lchb.com -- of Lieff, Cabraser, Heimann & Bernstein,
LLP in San Francisco, CA, and Steven M. Tindall, Esq. --
stindall@rhdtlaw.com -- Rosha Jones, Esq. -- rjones@rhdtlaw.com --
of Rukin Hyland Doria & Tindall LLP, in San Francisco, CA,
represent the Plaintiffs and the National and California Classes.
A copy of the District Court's April 5, 2013 Order is available at
http://is.gd/vMYVEVfrom Leagle.com.
UNITED HEALTH: NYSPA Joins Mental Health Coverage Class Action
--------------------------------------------------------------
Psychiatric News reports The New York State Psychiatric
Association has joined a class-action lawsuit against UnitedHealth
Group and subsidiaries, including United Behavioral Health, for
alleged violations of the federal parity law and the Affordable
Care Act. NYSPA is representing members who say they have
experienced problems associated with patient access to mental
health treatment and with reimbursement for care.
The class action, filed last month in the U.S. District Court,
Southern District of New York, was brought on behalf of three
beneficiaries. NYSPA joined the suit on behalf of its members and
their patients.
Seth Stein, J.D., executive director of NYSPA, told Psychiatric
News that the district branch has fielded numerous complaints from
its members about systematic denial of mental health and substance
abuse treatment by United.
"Over the past year we have tried to work with United to resolve
these complaints but have been unsuccessful," Mr. Stein said.
"Enforcement of existing state and federal parity statutes is
necessary to ensure that individuals with mental illness have
access to appropriate care and treatment." He was echoed by NYSPA
President Glenn Martin, M.D. "Our state and national associations
have fought for years for parity legislation, and we were mostly
successful," Mr. Martin told Psychiatric News. "That was only the
first step, and now we find that we have to fight for full
implementation of the laws and regulations. This lawsuit allows
us to go on the offensive in this struggle, and we are confident
we will prevail to the benefit of our patients and colleagues."
A 100-plus-page formal complaint details the violations alleged by
NYSPA and individual beneficiaries. These include "numerous
member complaints" about United's restrictions on psychotherapy.
"NYSPA members have reported United fully curtailing psychotherapy
for patients requiring long-term treatment, allowing no more than
weekly psychotherapy for patients who have attempted suicide and
been hospitalized (in one case a patient attempted suicide five
times and was hospitalized 10 times), and refusing to cover more
than one weekly session of psychotherapy for actively suicidal
patients," according to the complaint.
The document states that NYSPA members have also complained about
United beneficiaries reporting "extreme difficulty obtaining
initial and continuing authorizations for intermediate levels of
care, such as intensive outpatient treatment and partial
hospitalization for mental health and substance abuse disorders."
Additionally, NYSPA alleges a "pattern of denying coverage for
out-of-network mental health services due to purported failures by
providers to respond to requests for back-up clinical information
when in fact no such requests have been made."
"This is not an isolated incident," according to the complaint.
"In each of the cases, UBH or OptumHealth asserts either in
writing or over the telephone that it has repeatedly contacted
either the beneficiary or the provider to obtain additional
information regarding out-of-network claims, yet none of the
parties report receiving any such requests for information. As a
result of the alleged failure to respond to requests for
information, the patient's out-of-network claims are then denied."
Additionally, the suit cites numerous complaints alleged by three
individual beneficiaries. These include a detailed history of
problems associated with obtaining treatment -- or reimbursement
for treatment -- of a child with ADHD, bipolar disorder, delusions
and hallucinations, and a history of suicidal ideation and
homicidal threats.
Meiram Bendat, J.D., an attorney and psychotherapist who founded
the mental health insurance advocacy service Psych-Appeal, told
Psychiatric News that United's violations are systematic and
pervasive.
"United has devised multilayered strategies in which it violates
parity with respect to medical necessity and level-of-care
guidelines for mental health and substance abuse and deprive
patients and providers meaningful due process required by the
Affordable Care Act," he said.
Mr. Bendat is counsel for the plaintiffs along with the New York
law firm Pomerantz Grossman Hufford Dalhstrom and Gross. At press
time, a spokesperson for United told Psychiatric News that the
company was reviewing the complaint and had no comment at the
time.
Colleen Coyle, J.D., general counsel for APA, said that the
lawsuit is the beginning of a public battle to enforce parity
laws. "Unfortunately, what the plaintiffs complain about --
insurer manipulation of nonquantitative treatment limitations, CPT
code changes, provider reimbursement rates, and documentation
requirements in order to deprive mental health patients of the
benefits for which they have paid -- is not unique to United or to
New York," she told Psychiatric News. APA has been working with
psychiatric patients, attorneys and members on these issues and on
this case and others that have been filed and will be filed in the
near future in an effort to compel carriers to stop what we
believe are flagrant violations of the law and abuse of mental
health patients and psychiatrists."
The class action complaint is posted at:
http://www.psych-appeal.org/img/Complaint.pdf
UNITED STATES: FAA to Delay Air Traffic Control Tower Closures
--------------------------------------------------------------
The U.S. Department of Transportation's Federal Aviation
Administration on April 5 disclosed it will delay the closures of
all 149 federal contract air traffic control towers until June 15.
Last month, the FAA announced it would eliminate funding for these
towers as part of the agency's required $637 million budget cuts
under sequestration.
This additional time will allow the agency to attempt to resolve
multiple legal challenges to the closure decisions. As part of
the tower closure implementation process, the agency continues to
consult with airports and operators and review appropriate risk
mitigations. Extending the transition deadline will give the FAA
and airports more time to execute the changes to the National
Airspace System.
"This has been a complex process and we need to get this right,"
said U.S. Transportation Secretary Ray LaHood. "Safety is our top
priority. We will use this additional time to make sure
communities and pilots understand the changes at their local
airports."
As of April 5, approximately 50 airport authorities and other
stakeholders have indicated they may join the FAA's non-Federal
Contract Tower program and fund the tower operations themselves.
This additional time will allow the FAA to help facilitate that
transition.
"We will continue our outreach to the user community to answer any
questions and address their concerns about these tower closures,"
said FAA Administrator Michael Huerta.
On March 22, the FAA announced that it would stop federal funding
for 149 contract towers across the country. A phased, four-week
closure process was scheduled to begin this Sunday, April 7. That
phased closure process will no longer occur. Instead, the FAA
will stop funding all 149 towers on June 15 and will close the
facilities unless the airports decide to continue operations as a
nonfederal contract tower.
Class Action
KION/KCBA previously reported that the Salinas Municipal Airport
may join a class-action lawsuit against the Federal Aviation
Administration to keep its control tower open.
The airport said the tower allows aerial applicators to spray more
than 200,000 crops in the county to prevent infestations during
the most critical times.
"The airports have exercised every available option to continue
the air traffic control operations out of the airport and to
prevent the closure," said Brett Godown, manager for the Salinas
Municipal Airport. "The city is investigating whether we have the
financial means to participate in the class-action lawsuit and to
also evaluate what the final outcome would be like if the class
action was successful."
He said the tower plays a vital role, helping coordinate air
traffic coming in and out, in addition to allowing aerial
applicators protect hundreds of thousands of crops. The money to
file would come out of the airport's operating budget.
UNITED STATES: Faces Class Action Over Albany County Rail Trail
---------------------------------------------------------------
Charles Wiff, writing for Spotlightnews.com, reports that a group
of property owners neighboring the Albany County Rail Trail are
suing the federal government over the recreational corridor.
A lawsuit filed by several homeowners in 2009 was recently
upgraded to a class action lawsuit. Some 300 neighbors of the
more than 9-mile Rail Trail corridor were mailed notices offering
them the opportunity to join the lawsuit, and about 100 of them
are signed up as of this report.
The original complaint bore the name of 12 individuals and one
company. About one month later, an amended complaint was filed
with dozens of additional plaintiffs. After months of
proceedings, Judge Lawrence Block of the United States Court of
Federal Claims granted the case class action status in early March
of this year, clearing the way for other potential plaintiffs to
be notified. The court's schedule calls for a final class member
list to be submitted later this year, with an August deadline for
potential plaintiffs to sign up.
The law firm of Baker Sterchi Cowden and Rice in St. Louis, Mo.
has also established a toll-free hotline. Class members must have
owned eligible property prior to July 8, 2003.
The lawsuit hinges on the federal Trails Act, part of which deals
with the repurposing of unused railway beds into recreational
resources. The act allows for the federal government to grant
easements and rights-of-way in some cases.
Attorney Steve Wald, who specializes in such matters and is
representing the class, said the lawsuit does not threaten the
trail itself, but rather argues landowners' Fifth Amendment rights
were bypassed when the county acquired the rail corridor.
"By analogy, think of any other time when a local government
entity takes land and turns it into your typical public park
. . . . They can do it, they just have to compensate the
landowners," he said.
The railroad company never owned the corridor, he continued, but
rather had an easement established over private land. Albany
County acquired the Rail Trail easement in 2009 from the Canadian
Pacific Railway using $700,000 in grant money. The railroad
company moved to abandon the 9-mile section of rail in 2003 and
the county at that time launched the process to acquire the
corridor through "railbanking," the term established in the 1983
Trails Act for converting disused railways.
Mr. Wald argued that law robs landowners of their property rights.
"If the government had allowed state law to run its course, then
the railroad line would have been abandoned and the landowners
would have been entitled to possession and control," he said.
The lawsuit is being leveled against the federal government and
local entities are not involved. In fact, local officials were
unaware of the lawsuit.
Bethlehem Supervisor John Clarkson said he was not familiar with
the matter, but reaffirmed the town's commitment to work with the
county and independent groups to see the entire length of the
trail opened. The Mohawk Hudson Land Conservancy, a private group
that has made efforts to open up public access to the trail, was
similarly unaware of the lawsuit. Officials in the Albany County
Executive's Office declined comment, pointing out the county is
not a party in the action.
A call to the U.S. Department of Justice, whose lawyers are
handling the defense, was not returned.
Mr. Wald declined to discuss exactly what kind of compensation
he's hoping to secure, but said his firm has reached a "tentative
agreement" with the federal government to work towards a
settlement. A joint appraisal process will get underway later
this year, he said, and that will determine what kind of damages
might be paid out.
The federal government would pay any damages awarded.
Mr. Wald said his firm keeps track of rail-to-trail projects and
examines them to see if a potential case can be made. The firm
has handled similar cases all over the country.
Much of the Rail Trail remains closed to public use. A 1.8-mile
section was opened to the public in Bethlehem in 2011 thanks to a
public-private partnership with the Mohawk Hudson Land Conservancy
and its Friends of the Rail Trail arm. In the summer of 2012, a
2.4-mile section in New Scotland and Voorheesville.
Opening the entire trail is an expensive proposition because
bridges across several spans need repair or replacement. Doing
all the work would require about $8 million, far more than what
the county has secured in grant money. County officials are
determined to pursue the trail without cost to the taxpayer.
Mr. Wald emphasized no matter what the outcome of the lawsuit, the
trail itself will not be affected.
"We couldn't stop it even if we wanted to. And we don't," he said.
UNITED STATES: South Sioux City Joins Suit v. Corps of Engineers
----------------------------------------------------------------
Bret Hayworth, writing for Sioux City Journal, reports that South
Sioux City plans to join a class-action lawsuit against the
federal government for 2011 Missouri River flooding.
City Administrator Lance Hedquist said officials hold the U.S.
Army Corps of Engineers responsible for not doing enough.
"While we would have expected a flood to happen, there is a
question about the extensiveness of it and the length of it, and
couldn't that have been shortened up by taking different actions
earlier," he said.
The St. Joseph, Mo., firm Murphy, Taylor, Siemens & Elliott is
organizing the lawsuit on behalf of landowners and municipalities
from South Dakota to Missouri.
Nancy Potter, an attorney in the firm, has said the lawsuit will
seek reimbursement for damage caused by flooding, but would not
discuss specific plaintiffs.
The Sioux City Council on April 1 voted against joining the case.
Monique Farmer, a corps spokeswoman, on April 4 said she would not
discuss pending litigation.
The U.S. Supreme Court in December ruled that the federal
government can be liable for damages from government-owned dams.
The federal government previously was exempt in certain cases.
The Missouri River flood caused billions of dollars in damage in
the summer and fall of 2011 to buildings, roads and farm fields.
The Army Corps of Engineers attributed the flooding to heavy
rainfall in Montana and North Dakota and record snowpack in the
Rocky Mountains, which overwhelmed reservoirs.
Critics said the agency should have left more room in reservoirs
when it found out about the higher water levels.
In December 2011, a four-member independent panel of hydrology and
water management experts released a 99-page report concluding that
the record rainfall and runoff left the corps with few choices and
it did all it could to handle all that water.
Mr. Hedquist estimated the flood caused $7.3 million in damage to
South Sioux City. Some parts of Scenic Park on the Missouri River
waterfront were under 4 feet of water. Residents along the
waterway were displaced.
Almost $4 million was spent trying to hold back waters.
Mr. Hedquist said the Corps of Engineers should have taken other
steps. He said he does not expect a speedy litigation process.
"This will take many years," Mr. Hedquist said.
WAL-MART DE MEXICO: Gainey McKenna & Egleston Files Class Action
----------------------------------------------------------------
Gainey McKenna & Egleston on April 5 disclosed that it filed a
class action in the United States District Court for the Southern
District of New York on behalf of purchasers of the American
Depositary Shares of Wal-Mart de Mexico SAB de CV between February
21, 2012 through April 22, 2012, inclusive. The case is brought
against Wal-Mart de Mexico and Ernesto Vega, the Chairman of the
Board of Directors, Chairman of the Audit and Corporate Practices
Committee of Wal-Mart de Mexico, seeking to pursue remedies under
the Securities Exchange Act of 1934.
If you wish to serve as lead plaintiff, you must move the Court no
later than June 4, 2013. If you wish to discuss this action or
have any questions concerning this notice or your rights or
interests, please contact Plaintiff's counsel, Thomas J. McKenna,
Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail
at tjmckenna@gme-law.com
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
The Complaint alleges that Defendants Wal-Mart de Mexico and
Ernesto Vega violated the Exchange Act by issuing during the Class
Period materially false and misleading statements regarding
Wal-Mart de Mexico's business practices with respect to unlawful
or unethical bribery conduct. Specifically, the Complaint alleges
that Wal-Mart de Mexico failed to disclose that it had been
involved in a bribery scheme, and as a result of the false and
misleading statements disseminated by Defendants, the Wal-Mart de
Mexico ADRs traded at artificially inflated prices during the
Class Period.
On April 22, 2012, The New York Times published an article
concerning bribes made by Walmart de Mexico beginning as early as
2005. According to the article Walmart de Mexico spent more than
$24 million in bribes. The article further alleged that Walmart
de Mexico executives knew about the payments and actively took
steps to conceal them.
Plaintiff seeks to recover damages on behalf of all purchasers of
Wal-Mart de Mexico ADRs during the Class Period. The Plaintiff is
represented by Gainey McKenna & Egleston --
http://www.gme-law.com-- whose attorneys have decades of
experience in prosecuting securities class actions and investor
class actions throughout the United States.
WILD BLUE: Recalls 834 Cases of Chappaqua Crunch Simply Granola
---------------------------------------------------------------
Wild Blue Yonder Foods of Lynn, MA is voluntarily recalling 834
cases of Chappaqua Crunch GF (Gluten Free) Simply Granola with
Flax & Fruit because they contain undeclared almonds. People who
have an allergy or severe sensitivity to almonds and other tree
nuts run the risk of serious or life-threatening allergic reaction
if they consume this product.
PRODUCT NAME LOTS
------------ ----
Chappaqua Crunch GF simply All Best By Date after
Granola with Flax & Fruit, 10/01/13 and up to 11/10/13
12 oz pouch 6/case
UPC: 786516-76002 6
The product was distributed to distributors in MA, CT, NJ, PA, NC,
SC, FL, MI and TX; they work beyond these states. The Best By
Date Code is located on a white label on the back of the pouch.
No injuries have been reported to date.
The recall was initiated after it was discovered that the label
failed to reveal the presence of almonds.
The company has taken action to correct the label.
Consumers who have purchased this product are urged to return them
unopened it to the place of purchase for a full refund.
Consumers with questions may contact the Company at 800-488-460
(8:00 a.m. - 4:00 p.m. Eastern Standard Time).
WPX ENERGY: To Litigate Second Reserved Claim This Year
-------------------------------------------------------
WPX Energy, Inc., expects to litigate this year the second
reserved claim stemming from a class action lawsuit originally
filed in 2006, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2012.
The Company states: "In September 2006, royalty interest owners in
Garfield County, Colorado, filed a class action suit in District
Court, Garfield County, Colorado, alleging we improperly
calculated oil and gas royalty payments, failed to account for
proceeds received from the sale of natural gas and extracted
products, improperly charged certain expenses and failed to refund
amounts withheld in excess of ad valorem tax obligations.
Plaintiffs sought to certify a class of royalty interest owners,
recover underpayment of royalties and obtain corrected payments
related to calculation errors. We entered into a final partial
settlement agreement. The partial settlement agreement defined the
class for certification, resolved claims relating to past
calculation of royalty and overriding royalty payments,
established certain rules to govern future royalty and overriding
royalty payments, resolved claims related to past withholding for
ad valorem tax payments, established a procedure for refunds of
any such excess withholding in the future, and reserved two claims
for court resolution. We have prevailed at the trial court and all
levels of appeal on the first reserved claim regarding whether we
are allowed to deduct mainline pipeline transportation costs
pursuant to certain lease agreements. The remaining claim is
whether we are required to have proportionately increased the
value of natural gas by transporting that gas on mainline
transmission lines and, if required, whether we did so and are
entitled to deduct a proportionate share of transportation costs
in calculating royalty payments.
"We anticipate litigating the second reserved claim in 2013. We
believe our royalty calculations have been properly determined in
accordance with the appropriate contractual arrangements and
Colorado law. At this time, the plaintiffs have not provided us a
sufficient framework to calculate an estimated range of exposure
related to their claims."
WPX ENERGY: Still Defending Potential Class Suits in New Mexico
---------------------------------------------------------------
WPX Energy, Inc., expects to litigate this year the second
reserved claim stemming from a class action lawsuit originally
filed in 2006, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2012.
The Company states: "In October 2011, a potential class of royalty
interest owners in New Mexico and Colorado filed a complaint
against us in the County of Rio Arriba, New Mexico. The complaint
alleges failure to pay royalty on hydrocarbons including drip
condensate, fraud and misstatement of the value of gas and
affiliated sales, breach of duty to market hydrocarbons, violation
of the New Mexico Oil and Gas Proceeds Payment Act, bad faith
breach of contract and unjust enrichment. Plaintiffs seek monetary
damages and a declaratory judgment enjoining activities relating
to production, payments and future reporting. This matter has been
removed to the United States District Court for New Mexico. In
August 2012, a second potential class action was filed against us
in the United States District Court for the District of New Mexico
by mineral interest owners in New Mexico and Colorado. Plaintiffs
claim breach of contract, breach of the covenant of good faith and
fair dealing, breach of implied duty to market both in Colorado
and New Mexico, violation of the New Mexico Oil and Gas Proceeds
Payment Act and seek declaratory judgment, accounting and
injunction. At this time, we believe that our royalty calculations
have been properly determined in accordance with the appropriate
contractual arrangements and applicable laws. We do not have
sufficient information to calculate an estimated range of exposure
related to these claims."
* Canadian Class Action Lawyer Hides Money in Offshore Tax Havens
-----------------------------------------------------------------
Agence France-Presse reports that Canada's top class-action lawyer
and husband of a senator, as well as 450 other Canadians, were
exposed in an unprecedented document leak on April 4 for hiding
money in offshore tax havens.
Tony Merchant, dubbed by local media Canada's class-action king
because of the large settlements he has won for his clients, hid
at least C$1.7 million in a Cook Islands trust set up in 1998.
The trust then used a brokerage in Bermuda called Ones Overseas
Management to buy mutual funds, the Canadian Broadcasting
Corporation reported.
Mr. Merchant's wife, Senator Pana Merchant, as well as their three
sons are named in the documents as fund beneficiaries.
The Canadian public broadcaster joined an investigation into
offshore accounts carried out by 37 media organizations around the
world in conjunction with the Washington-based International
Consortium of Investigative Journalists (ICIJ). They obtained
documents revealing 30 years of closely guarded investment
information of more than 100,000 people around the world,
including data entries, emails and more.
Offshore investments are not illicit as long as they are not used
to evade taxes or launder money. The CBC, however, said that
Merchant aimed to keep his money transfers strictly secret as he
repeatedly battled the Canadian tax agency.
"Keep correspondence to a minimum," read a note on Mr. Merchant's
Cook Islands account, warning only to communicate with him by
airmail. "Do not fax to client. He will have a stroke."
At one point Mr. Merchant also refused to be identified by
officials in Luxembourg, allowing them to temporarily freeze one
of his mutual funds rather than be exposed. The revelations come
only weeks after Finance Minister Jim Flaherty vowed to crack down
on tax cheats and to close tax loopholes "with strange names like
'Synthetic Dispositions' and 'Character Conversion Transactions,'"
in order to help balance his budget. The Canadian tax agency also
offered a bounty for information on tax evading, which Flaherty
said cost government coffers billions of dollars.
* Class Actions Over Medical Collections to Hit Industry
--------------------------------------------------------
Randall J. Groendyk -- rjgroendyk@varnumlaw.com -- at Varnum LLP
reports that several recent class action lawsuits filed against
some of West Michigan's largest medical providers, collection
agencies, and law firms may have a dramatic impact on the
collection of unpaid medical bills and the collection industry.
The facts in the cases are similar: a medical patient incurs
several medical bills, such as a hospital bill, doctors' bills,
etc. The bills are submitted to insurance, which pays most but
not all of the bills. The unpaid balances of the bills are
relatively small. The medical providers are not paid by the
patient, and the accounts are turned over to a collection agency.
The collection agency is not successful in collecting the bills,
and a law firm files a lawsuit to collect the bills.
Typically, the smaller bills are assigned to the creditor with the
largest unpaid bill, usually the hospital, and suit is filed only
in the name of the hospital. Information about the smaller
accounts is included in the collection lawsuit, but the only
creditor filing the lawsuit is the hospital.
The plaintiffs in the class action lawsuits that have been filed
claim that this method of filing collection lawsuits for unpaid
medical bills violates the Fair Debt Collection Practices Act and
similar Michigan laws. The FDCPA is a federal law designed to
protect consumers from abusive debt collectors and unfair
collection practices.
Plaintiffs in the class action lawsuits claim that the FDCPA is
violated because the assignments from the smaller creditors to the
hospital are not real or are done only for the purpose of allowing
the collection agency to file one collection lawsuit against the
patient, rather than filing a separate lawsuit for each of the
medical providers. The plaintiffs claim that this practice is
misleading, deceptive, and unfair.
The lawsuits also claim that the collection agencies committed the
unauthorized practice of law, by doing things that only lawyers
should do, such as deciding how the collection lawsuit is handled
and telling the attorney and medical providers what to do.
The lawsuits are class action lawsuits, and the plaintiffs have
asked the courts to bring into the cases all other persons who
were sued in collection cases with similar account assignments.
The plaintiffs are asking for treble damages and attorney fees.
The cases are relatively new so the courts have not decided
whether the plaintiffs' claims have validity. However, regardless
of how the cases are decided or whether or not they are settled,
it is likely that the filing of these class action lawsuits will
have a significant impact on the collection industry, including
attorneys, collection agencies, and large medical providers such
as hospitals which use collection agencies. Since damages in
class action FDCPA cases are potentially very large, medical
providers, collection agencies, and attorneys are likely to change
how they file suits to collect medical bills, rather than be
forced to defend similar class action lawsuits in the future.
* Kate Gosselin to Join Class Action Against Online Bullies
-----------------------------------------------------------
Kelly Cozzone, writing for Examiner.com, reports that a class-
action lawsuit against people who have bullied and threatened Kate
Gosselin online is getting another member. On April 3, Kate
Gosselin tweeted her support for the lawsuit. She is reportedly
joining the class-action lawsuit.
A source close to the situation reveals that, "She [Kate] is 100
percent in. She will be a plaintiff." Her support comes on the
heels of an anti-bullying group releases the names of some of her
worst attackers.
James McGibney, of BullyVille released the names of many of
Ms. Gosselin's bullies and announced the lawsuit claiming that
Ms. Gosselin was subjected to "death threats, pedophilia claims,
theft and documented stalking."
Hours after Mr. McGibney released the real identities of her
online haters, Kate tweeted, "FYI: I am in favor of any legal
actions to stop all forms of bullying-including death threats and
stalking-and if it requires a court room setting involving a class
action law suit, I support it. As always, I will do whatever it
takes to keep my family safe."
Mr. McGibney claims that the reason he released the real
identities of Kate Gosselin's Twitter haters was because they
crossed the line. By releasing the names, Mr. McGibney caused
Twitter to blow up with more accusations and brutal attacks
against not only himself but Ms. Gosselin as well.
It wasn't just the attacks on Kate Gosselin that upset him says
Mr. McGibney. It was that the attacks were being directed against
anyone who said something nice about Ms. Gosselin.
McGibney announced his lawsuit with the twitter message: "After
seeing death threats, pedophilia claims, theft and documented
stalking against @Kateplusmy8 & fans, we've decided to file a
class action lawsuit against the main offenders. The evidence is
overwhelming and the victims deserve justice."
* Louisiana Bill to Curb Class Certification Abuse at Lower Court
-----------------------------------------------------------------
Kyle Barnett, writing for Legal Newsline, reports a recent
proposal introduced in the state House would require higher
standards for certifying class action lawsuits.
HB472, authored by first term Representative Jay Morris
(R-Monroe), would put a higher burden of proof on those who bring
class action lawsuits in lower courts.
Mr. Morris said class actions are costly to defend and he believes
judges sometimes do not require enough information before allowing
them to proceed. The bill proposes that all members of the large
suits have the same claim without question from the court.
"In my view it really shouldn't be needed, but sometimes you have
to write laws in a little more mandatory fashion. It closes a few
loopholes, but I'm not looking to eliminate class actions," he
said. "This bill simply tightens up the requirements for class
certification and it makes it more clear."
Mr. Morris said he has found that sometimes plaintiff's attorneys
are wrongly lumping together dissimilar cases into one class
action.
"In my opinion, it is really unfair to the defendant because once
you get the class certified they are looking at turning what might
be a $1,000 claim into a $1 million claim or a $100,000 claim into
a $5 million claim," he said. "I think that you just need to be
fair to defendants and make sure that you just don't cherry pick a
good claim and try to extrapolate that claim across a big class
when those facts may not apply to everyone."
Mr. Morris said he has seen numerous cases be certified by a court
only to later be decertified and dismissed.
"In Louisiana at times, depending on what jurisdiction you are in,
there is not a lot of scrutiny applied to the requirements of
class action certification," he said. "A lot of cases end up
getting decertified after the defendant has spent, depending on
the situation, $100,000 to $5 million in defense costs before the
case was ultimately decertified."
The ultimate goal of HB472, according to Mr. Morris, is to keep
class action lawsuits that should have never been certified in the
first place out of the court system.
"At the end of the day either the defendants get pressured to
settle or they fight it for years on end and it is ultimately so
convoluted that it can get decertified and all that money is just
down the drain and the plaintiffs and the defendants don't come
out with anything," he said.
The bill has been assigned to the Committee on Civil Law and
Procedure who will have the first look at the legislation upon
commencement of the legislative session on April 8.
*********
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 * * *