/raid1/www/Hosts/bankrupt/CAR_Public/130506.mbx
C L A S S A C T I O N R E P O R T E R
Monday, May 6, 2013, Vol. 15, No. 88
Headlines
ALLEGHENY COUNTY, PA: To Donate $55K of Unclaimed Settlement Money
ALTRIA GROUP: $544 Mil. Restitution Sought in "Lights" Suit
BARCLAYS BANK: International Travel Scam Victims File Class Action
BC HYDRO: Class Action Mulled Against Use of Smart Meters
BP PLC: Nonprofits Have Until April 2014 to File Oil Spill Claims
CARNIVAL CORP: Seeks Dismissal of Suits Over Cruise Ship Mishap
CHELSEA THERAPEUTICS: Dismissal of "McIntyre" Action Sought
CINNABAR SERVICE: Appeals Picher Buyout Class Action Ruling
COUNCIL BLUFFS, IA: Faces Class Action Over Flag Desecration Laws
COVENTRY HEALTH: Stoll Berne Obtains Class Action Certification
CPG INTERNATIONAL: Facing Ill. Class Suit Over AZEK Warranty
CR BARD: Court Denies Motion to Remand "Browns" Class Action
CSL: CEO Answers Questions Regarding Cartel Involvement
DESSAU: Faces Class Action Over Alleged Collusion
DIESEL USA: Gets Final OK of Accord in Ass. Managers' Suit
E-BOOK ANTITRUST LITIGATION: Macmillan Settles for $26 Million
ELECTRONIC ARTS: June 10 Hearing on Athletes' Class Cert. Bid
ELECTRONIC ARTS: Gamers Get Class Action Settlement Notice
GENESIS HEALTHCARE: BLR Discusses Ruling in "Symczyk" Case
GENESIS HEALTHCARE: Duane Morris Discusses "Symczyk" Ruling
GLENS FALLS HOSPITAL: Sued Over Patient Data Security Breach
GROEB FARMS: U.S. Honey Producers File Class Action in Illinois
INTUITIVE SURGICAL: Bid for Lead Plaintiff Status Due June 25
ISRAEL ELECTRIC: Tel Aviv Judge Approves Class Action
LAKE TANSI POA: Faces Class Action Over Fund Administration
MANUFACTURERS FINANCIAL: Class Cert. Bid in Compressor Suit Denied
MERCK FROSST: Faces Class Action Over Propecia Side Effect
MONTANA POWER: Settles Workers' Compensation Suit for $1.2 Mil.
MUELLER SERVICES: Judge Tosses Class Action Over Premium Hike
NATIONAL GYPSUM: Drywall Price-Fixing Suit Goes to E.D. Pa. Court
NEW YORK: NYPD Stop-and-Frisk Trial Reveals Racist Policing
RASER TECHNOLOGIES: Court Dismisses Securities Suit vs. Ex-D&Os
SONAR CAPITAL: May 22 Settlement Fairness Hearing Set
SONY CANADA: Settles Suit Over Hacking of PSN Computer Systems
SPECTRUM PHARMACEUTICALS: Pomerantz Grossman Files Class Action
ST-CHARLES BORROMEE: Settles Class Action for C$8.5 Million
TANGOE INC: Facing Securities Class Action
THELADDERS.COM: Faces Class Action Over Deceptive Practices
THR & ASSOCIATES: Overtime Suit Obtains Class-Action Status
TRANSNET: Facing R85 Billion Class Action by Pensioners
UNITED STATES: Class Suit Over Defense of Marriage Act May Proceed
UNITED STATES: Flood Victims May Not Get Much From Settlement
UNIVERSITY OF ALABAMA: Sued Over Study Involving Premature Babies
WELLS FARGO: Court Tosses Bid to Dismiss "Minter" Class Suit
* Class Actions Continue to Pose Threat to Australian Companies
* Court Ruling Amends Class Definition of Certified Canadian Class
* Fen-Phen Class Action Lawyer Retires After Disbarment Case
* South African Court Provides Class Action Guidelines
*********
ALLEGHENY COUNTY, PA: To Donate $55K of Unclaimed Settlement Money
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Adam Brandolph, writing for TribLive, reports that more than
$55,000 in unclaimed money from a class-action settlement that
Allegheny County paid for illegally strip-searching people accused
of minor crimes was set to be donated on April 22 to a Downtown
nonprofit.
"Every penny counts," said Christine Kirby, director of
development for Neighborhood Legal Services Association, which
provided free legal services to needy people. "It couldn't have
come at a better time."
The organization's budget for the 2012-13 fiscal year is $4.6
million, down from $5.5 million in 2010.
Twenty-five staff and several volunteer attorneys served 24,000
clients in 13,000 cases last year, Ms. Kirby said. The money from
the settlement is equal to the annual salary of one staff attorney
at the nonprofit.
"Whether the legal issues our clients face are housing, personal
safety, are income or job-related, or deal with foreclosure
issues, all of our clients are facing a loss of a basic life
necessity," she said. "We like to consider ourselves the last
basic safety net -- the last resort -- for some people."
The organization also provides free representation to the elderly
and people filing Protection from Abuse orders, regardless of
their income.
Allegheny County agreed to pay $3 million to plaintiffs who said
strip searches at the jail violated their Fourth Amendment right
to be free of unreasonable searches.
Lawyers received $1 million and the rest was divided among the
1,300 people held for misdemeanor or summary offenses and strip-
searched between July 2004 and March 2008, each of whom received a
check for $1,000, said Rob Pierce, a lawyer who represented the
plaintiffs.
About 55 people never cashed their checks, Mr. Pierce said.
Neighborhood Legal Services Association, which receives most of
its funding through organizations like the Legal Services Corp.,
the Pennsylvania Legal Aid Network and local fundraising and
grants, has reduced its staff by 17 percent during the last three
years, Ms. Kirby said.
ALTRIA GROUP: $544 Mil. Restitution Sought in "Lights" Suit
-----------------------------------------------------------
Bill Callahan and Edvard Pettersson, writing for Bloomberg News,
report that Altria Group Inc.'s Philip Morris U.S.A. unit falsely
marketed its "light" cigarettes as a healthier choice than regular
cigarettes and should pay $543.6 million in restitution to
California smokers, a lawyer said at the start of a trial.
Mark Robinson, who represents smokers who brought the lawsuit as a
class action, or group case, said in state court in San Diego
today he will present internal Philip Morris documents proving its
top executives were aware that Marlboro Lights were as addictive
and dangerous to smokers as Marlboro Reds and continued selling
the Lights as a healthy alternative.
"Their own documents tell the truth," Mr. Robinson said in his
opening statement at the nonjury trial. He said financial experts
will testify in support of his request for damages for a class of
smokers from January 1998 to April 2001.
The case, filed in 1997, accused Philip Morris (PM) and other
tobacco companies of making misleading statements about the health
risks and addictiveness of smoking, and sought restitution for
money that smokers spent on cigarettes.
Philip Morris U.S.A., based in Richmond, Virginia, is the only
remaining defendant in the case and the only claim still at issue
is that it made false statements concerning light cigarettes.
California Superior Court Judge Ronald S. Prager is presiding over
the trial.
False Impression
The plaintiffs allege Philip Morris deceptively marketed and
labeled cigarettes as "light" and "low tar" because it created the
false impression that these cigarettes were less dangerous than
full-flavor ones, according to an April 19 court filing by Philip
Morris.
"People's perceptions were that Lights were healthy as a result of
a brilliant marketing campaign," Mr. Robinson said on April 22.
Mr. Robinson presented video depositions and written reports from
top-level Philip Morris executives that he said showed that they
were aware that even if smokers switched to cigarettes marketed as
low-tar or low-nicotine, scientific research showed that these
smokers would compensate to meet their body's "daily nicotine
quota" by either taking deeper puffs of the light cigarettes or
smoking more of them.
"Philip Morris had knowledge that their light cigarettes were not
only not healthy but that they were just as addictive and
dangerous as regular cigarettes," Mr. Robinson said.
Denies Misleading
Philip Morris denies that labeling cigarettes as "light" was
misleading and contends it never claimed that they were more
healthy than full-flavor cigarettes, according to court filings.
Greg Stone, an attorney for Philip Morris, said in his opening
statement that the advertising claims made by Philip Morris are
factual.
"In many ways Marlboro Lights are designed to contain lower tar
and nicotine than Marlboro Reds," he said.
Mr. Stone said the Lights are designed to contain less tobacco,
have a longer filter with more ventilation holes and offer more
resistance to the smoker's "draw," or puff.
"What is not an issue in this case is whether smoking can cause
lung cancer or that nicotine is addictive," Mr. Stone said. "This
case is about Marlboro Lights and whether Marlboro Lights have
lower tar and nicotine as it states on the label."
Mr. Stone presented statistics from research by the Federal Trade
Commission, the Massachusetts Department of Public Health and
other studies that show lower rates of tar and nicotine in
Marlboro Lights than in Marlboro Reds.
Desserts Analogy
Mr. Stone drew an analogy between Marlboro Lights and low-calorie
desserts.
"Of course, if you eat more low-calorie desserts you're going to
wind up consuming just as many calories as in the high-calorie
desserts," he said.
The San Diego court ruled in 2004 that the smokers' case couldn't
proceed as a class action because some of the plaintiffs didn't
meet a requirement that they personally suffered injury or
financial loss.
The California Supreme Court said in 2009 that even if the
plaintiffs in the case didn't meet the requirement, the case
shouldn't be decertified as a class action. Instead, the
plaintiffs should be allowed to amend the lawsuit to redefine the
group that is suing or find new class representatives.
The case is In re Tobacco Cases II, JCCP 4042, California Superior
Court, County of San Diego.
BARCLAYS BANK: International Travel Scam Victims File Class Action
------------------------------------------------------------------
Eamonn Duff, writing for The Sydney Morning Herald, reports that
Australian holidaymakers are pursuing a class action lawsuit
against one of the world's largest banks after hundreds of false
accounts were used in an international travel scam.
Over the past 18 months, tourists have wired millions of dollars
into accounts with London-based Barclays Bank to pay for luxury
accommodation in dream destinations around the world. The
vacations are booked through popular holiday rental websites
including HomeAway and FlipKey, which is mostly owned by
TripAdvisor.
However, the Barclays Bank accounts are run by criminals who,
after hacking the sites and "phishing" the original e-mail
inquiry, assume the identity of the property owner and steer
customers into making bogus bookings.
The internet is awash with blogs and forums where victims recount
how they booked holiday accommodation and travelled overseas, only
to discover the property owner had never heard of them.
In the past 12 months, Australians have become a prime target.
While some have been left stranded in Miami, Florida and Paris, it
is the luxury Balinese villas closer to home that are proving the
most popular bait.
Fairfax Media can reveal that a group of Australian victims and
Bali villa owners has enlisted London-based law firm Edwin Coe --
which has successfully tackled one of the world's largest banks in
other group actions -- to commence a legal action against Barclays
Bank.
Beth King, from Victoria, who owns a holiday rental villa in
Seminyak, Bali, said: "With their sophisticated hacking skills and
inside knowledge of travellers' booking behavior, these scammers
are trapping people daily. This could all end tomorrow, if
Barclays met its legal obligations and vetted the identity of
account holders."
Nick Hyam, another Seminyak villa owner, said: "I've had my
identity cloned five times so far -- and each time I contact
Barclays, I hit a wall of indifference. This has affected
hundreds of travellers. We are gathering documentation and a
class action suit will be filed."
On April 20, a Barclays Bank spokesman said the company "complies
with all regulatory requirements".
"When we are made aware of inappropriate conduct on accounts, we
immediately investigate and take the necessary steps to close
them," he said.
Former two-time Winter Olympian Hannah Campbell-Pegg was one of
dozens of victims to contact Fairfax Media after a report on the
scam. She presumed she had been dealing with the Australian owner
of a luxury villa in Canggu, Bali, a fortnight ago, but it was an
impostor who had intercepted their communications.
Ms. Campbell-Pegg, 30, said: "I booked through FlipKey. After
reading the article, I became skeptical because I also transferred
payment into a Barclays account in London.
She added: "I contacted the owner, only to discover I had not been
dealing with her. It seems her reply to my original email never
made it through to me. It was intercepted by the scammer who then
posed as her and sent one of his own . . . I consider myself one
of the lucky ones. Yes, I lost $1600 but we were taking my
partner's daughter on her first big trip overseas. Like countless
others, we could so easily have arrived at the villa, only to
discover we had nowhere to stay."
Criminals previously ran the scam using dozens of accounts opened
through another Britain-based bank, Lloyds. The bank subsequently
tightened its identification process.
The scammers then began swarming Barclays branches across London,
starting some 18 months ago.
Money continues to pour in from around the globe. Last November,
Jennifer Bobyk, from Sydney, booked a three-month stay in Chiang
Mai, Thailand, through online travel site TripAdvisor, forwarding
a $2000 cash transfer via Barclays.
"We took a taxi to the estate but the owner said she had not
received the booking or the money. When I Googled the address of
the account holder (in England), it was a house for sale. I
contacted TripAdvisor, our bank and the ACCC. Nobody was
interested."
Fiona Melia, from Merimbula on the NSW south coast, parted with
$2900 in February to book a luxury villa in Seminyak, where she
was due to arrive next week. When the property owner recently
contacted her to ask whether she was still interested in staying,
the truth unravelled.
"The scammer intercepted my email, then acted as the owner. He
replied to all my individual emails about particulars like
breakfast. Everything appeared normal."
The Barclays spokesman said the bank regularly provides advice to
help customers avoid fraud, including 'using reputable third-party
payment processing sites rather than making a direct transfer to
the seller's bank account'."
FlipKey failed to respond to questions from Fairfax Media but
HomeAway, which lists more than a 1000 privately owned rental
villas and apartments in Bali alone, said it had launched a
"massive education effort" and a basic rental guarantee which
reimburses phishing victims up to $1000.
General manager James Cassidy advised travellers to always "call
the owner before they send any money, to confirm their
reservation".
Stung speak out against litany of lies
Victims of the scam open up:
Anna Jaques, Sydney: "My 21-year-old daughter Laura rented a condo
in Miami advertised via Vacation Rentals [a subsidiary of
HomeAway]. This was her first trip away from home after
completing school. She rang me in hysterics. When she arrived in
March, she was told by the manager she had been scammed. The
scammer had intercepted communications between vacation rentals
and himself, subsequently taking his name to conduct business.
She is still travelling the US. I have filed a fraud complaint
with the ACCC and Barclays Bank, London. I've heard nothing."
Nicole Leighton, Sydney: "We booked and paid for a villa in Ubud,
Bali, for seven nights (in March). The villa owner had no record
of our booking . . . he had had four other cases. He helped us
contact Barclays Bank. Barclays simply said 'thanks for the call'
and advised us if we wanted our money back, we would have to hire
a lawyer to do so."
Jon Jones: owner of Villa Amrita, Ubud, Bali: "The latest person
who believed he was coming to stay with us arrived Wednesday. I
have been trying to speak to Barclays since January. I told them,
'look at the pattern. You have a bunch of accounts receiving
wires from all over the world'. They wouldn't even let me submit
any documentary evidence to demonstrate what's happening. They
don't want to know."
Robyn Graham, Melbourne: "We sent through a request on
HomeAway.com and began email exchanges with the 'owner' of a
luxury villa in Bali. We were sent a rental agreement and paid
GBP950 into an English Barclays account. We were due to arrive
this Tuesday. But we became suspicious when we had to chase the
owner to make sure the money had gone through. When we Googled
the name attached to the bank account, pages of scams appeared.
He had done the same to people around the world. The most
horrible part is, a renowned website put us in direct touch with
him. Their response, to date, has been appalling."
Nicole Harding: "In January 2013 I sent a booking request through
HomeAway.com requesting availability of dates in October for Villa
Zara in Bali. I transferred $2025 to Barclays as payment for the
accommodation on February 27, 2013, after numerous emails back and
forth between myself and 'Paul' confirming dates. As Paul never
replied, I did a Google search and found . . . sites advising of
the scam."
Full statement by Barclays Bank
"Barclays can confirm that in opening and managing accounts, it
complies with all regulatory requirements including in respect of
identification and verification. When we are made aware of
inappropriate conduct on accounts, we will immediately investigate
and take the necessary steps to close them.
"We recognize that some consumers' interests have been damaged as
a result of the conduct of some customers and that money has been
lost. Regrettably, we are unable to provide any refund for
individuals who lost money before we were made aware of the
situation.
"We regularly give advice to our customers to help them to avoid
this type of fraud for example by using reputable third party
payment processing sites rather than making a direct transfer to
the seller's bank account."
Victims are encouraged to contact:
vacationrentalscamvictims@yahoo.com
BC HYDRO: Class Action Mulled Against Use of Smart Meters
---------------------------------------------------------
CBC News reports that opponents of smart meters are preparing a
class action lawsuit against BC Hydro, alleging installation of
the high-tech devices has led to thousands of health, safety and
privacy concerns over the last two years.
Earlier this year, BC Hydro said it would not install smart meters
without the permission of residents, but those behind the lawsuit
say that is not what happened to one Peachland woman. Deborah
Stutters said she refused a smart meter last year, citing health
and privacy concerns, but BC Hydro installed one anyway.
Stutters then had an electrician replace the meter with an analog
version she bought in the U.S. But when the utility learned of the
switch, it cut her power, leaving Stutters in the dark.
"We have no BC Hydro power at all," the Peachland grandmother told
CBC News.
"We're lacking electricity. We've got a tiny wood-burning heater.
Basically, that's it."
Collecting signatures
When anti-smart meter advocates heard of Stutters's story, they
decided to take the matter to court.
"This is the final straw . . . They are infringing on our civil
rights," said Sharon Noble, Director of the Coalition to Stop
Smart Meters.
"Hydro has been doing this now for two years. Many people over the
last two years have been asking to be treated with respect," Noble
said.
"When their wishes haven't been considered important enough to
respect, they've been asking for a class action suit," she added.
The group estimates that some 200,000 homes would switch back to
analog meters if they had the choice. The coalition's lawyer is
now collecting signatures online for the class action lawsuit,
which they plan to file in court in the near future.
Unapproved meters not permitted
BC Hydro spokeswoman Cindy Verschoor says Stutters's new analog
meter isn't approved for use in Canada and if something went wrong
it could be liable. The only meters BC Hydro does approve are the
smart meters, she said.
"In cases where a meter's expiration date is up or the meter is
broken, B.C. Hydro has always had to replace the meter with a new
meter," said Verschoor.
B.C. NDP Leader Adrian Dix has promised to submit the smart meter
program to an independent review if he's elected premier.
BP PLC: Nonprofits Have Until April 2014 to File Oil Spill Claims
-----------------------------------------------------------------
Keyonna Summers, writing for Tampa Bay Times, reports that as
local governments and businesses across the Tampa Bay region file
BP oil spill claims, another potential victim has emerged:
nonprofit organizations.
In recent months, lawyers and accountants have been approaching
the groups, urging them to try to recoup donations, state funding
and other revenue lost when Florida tourism tanked after the 2010
spill.
The spill scared tourists away from the state and caused people to
lose jobs, "which affects the state revenue dollars available to
the not-for-profits," said Ellen Fontana, a Clearwater certified
public accountant who handles audits and bookkeeping for
nonprofits. "So even though they may not be a hotel on the beach,
they were indirectly impacted."
Nonprofits, which are treated like businesses under the BP class-
action lawsuit, don't have to prove that their losses are directly
attributable to the spill -- just that there were revenue
fluctuations between 2007 and 2011. They have until April 22,
2014, to file claims.
However, most Pinellas, Pasco and Hillsborough county nonprofits
contacted by the Tampa Bay Times said they aren't pursuing claims
because they don't have the equipment or financial means to track
such data, or because they feel it is unethical to embark on what
might look like a money grab. Others said they didn't notice a
loss either anecdotally or after investigating.
"The problem is the spill occurred at the same time as the
meltdown of the economy, so it's tough to correlate the spill with
the other problems they have," said Craig Gilman, a certified
public accountant with Lewis, Birch and Ricardo LLC, which has
helped at least 20 nonprofit clients explore the claims process.
"But I have no doubt that the spill is a contributor to some of
the problems they're having as far as the reduction in
contributions."
It's unclear how many area nonprofits have filed and how much
their potential losses are, as the lawyers and accountants
handling claims typically refuse to divulge the information
because of attorney-client privilege or out of fear that
identifying them might harm their cases.
Tampa Bay area groups that have pursued claims include Community
Action Stops Abuse (CASA), Family Resources Inc. and Habitat for
Humanity of Pinellas, which president Barbara Inman said lost out
on an estimated $50,000 or more in donations.
Religious Community Services, which operates a food bank in
Clearwater and shelters for families and victims of domestic
violence, said its board is investigating whether to file.
In addition to dips in donations and grants, CASA executive
director Linda Osmundson said the 30-bed domestic violence
shelter's number of clients spiked around April 2010, when the
Deepwater Horizon oil rig exploded and spewed an estimated 172
million gallons of crude oil into the Gulf of Mexico. CASA had to
turn away 1,000 people -- some of them from the Panhandle -- in
2011, and 700 last year, she said.
But BP settlement rules require a multiphase process in which
individuals, businesses and nonprofits must first meet complicated
financial, geographical and other criteria to qualify for the
class-action. The accounting firm that reviewed CASA's case said
that it believed a claim would be too difficult to prove.
Whether CASA's problems are the fault of the spill or the
recession, Ms. Osmundson said, the group is working to replace the
grants it has lost and to raise $10 million for a new 50,000-
square-foot, 100-bed shelter to handle increased demand.
According to Ms. Osmundson, unemployment tends to lead to
increases in domestic violence and child abuse because of rises in
household tensions.
"The need goes up at the same time as the dollars to serve the
vulnerable are declining," she said.
United Way Suncoast, which tends to partner on fundraising
campaigns with large employers like Raymond James financial
services and Publix supermarkets, was among groups that didn't
even try to file a claim.
"We have no way of really testing whether BP's oil spill affected
the ups and downs of our contributions," said Douglas Arnold, vice
president of communications. "The reality is there are many, many
other factors that are currently creating the economic conditions
in the Tampa Bay region."
* * *
Valerie Garman, writing for The News Herald, reports that along
with the three-year anniversary of the Deepwater Horizon oil spill
on April 19 also comes the final year to file claims against BP
under the class action settlement agreement. The agreement went
into effect in June and is open to businesses and individuals
seeking to file claims for economic loss, property damage or
personal injury resulting from the spill. The claimant's home or
businesses must fall within a specified geographic area to
qualify.
Michael Scott, a certified public accountant (CPA) with local firm
Carr, Riggs and Ingram, is encouraging individuals to complete a
free causation test to see if they qualify.
"Any business inside the geographical class should run a causation
test and look really closely to see if they had damages,"
Mr. Scott said. "If they miss the chance, this opportunity will
never be offered to them again."
Carr, Riggs and Ingram runs free causation tests for businesses
and individuals and has filed thousands of claims against BP. Mr.
Scott said those interested should complete a causation test
sooner rather than later because the claims process can take three
to four months if the individual or business qualifies.
"We want everyone out there to consider if they qualify for
compensation," Mr. Scott said. "There's no cap on the amount of
money [BP has] to pay. If someone qualifies to be paid, they will
be paid."
The last day to file a claim under the class action settlement
agreement is April 20, 2014, the four-year anniversary of the oil
spill.
"These people remember what was being shown on CNN and MSNBC,"
Mr. Scott said. "It was horrific. . . . There was a big unknown.
Many businesses suffered that hit."
The three-year oil spill anniversary also marks the expiration of
the statute of limitations for claims under the Oil Pollution Act
(OPA). April 19 was set as the final day to file suit against BP
for those that do not fall under the class action settlement
agreement, which includes government entities.
CARNIVAL CORP: Seeks Dismissal of Suits Over Cruise Ship Mishap
---------------------------------------------------------------
The Associated Press reports that Carnival Corp. is seeking the
dismissal of lawsuits filed by passengers who endured days of
difficult conditions aboard a disabled cruise ship.
The biggest is a potential class action seeking to represent about
3,000 passengers of Carnival's Triumph. Carnival said in a motion
filed in April in Miami federal court that its cruise tickets
clearly state passengers cannot file class actions.
Passengers' lawyers argue Carnival was negligent in letting the
Triumph sail with its history of past mechanical problems and so
the suits should be allowed.
The Triumph was disabled by an engine fire Feb. 10 that stranded
thousands of passengers onboard for days in the Gulf of Mexico.
The ship was ultimately towed to Mobile for repairs.
Carnival also seeks dismissal of two other lawsuits filed by
individual passengers.
CHELSEA THERAPEUTICS: Dismissal of "McIntyre" Action Sought
-----------------------------------------------------------
Lead Counsel Faruqi & Faruqi, LLP on April 19 disclosed that the
United States District Court for the Western District of North
Carolina has scheduled a hearing on the Defendants' motion to
dismiss on May 1, 2013, at 11 a.m. in McIntyre v. Chelsea
Therapeutics International, Ltd., et al., Case No. 3:12-CV-213-
MOC-DCK.
If you purchased Chelsea common stock between November 3, 2008 and
March 28, 2012 and would like to discuss your rights in regards to
the developments in the above-referenced case, please contact us
by calling Richard Gonnello or Francis McConville toll free at
877-247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com or fmcconville@faruqilaw.com
Request more information now by clicking here:
http://www.faruqilaw.com/CHTP.
There is no cost or obligation to you.
Contact: FARUQI & FARUQI, LLP
369 Lexington Avenue, 10th Floor
New York, NY 10017
Attn: Richard Gonnello, Esq.
E-mail: rgonnello@faruqilaw.com
Francis McConville, Esq.
E-mail: fmcconville@faruqilaw.com
Telephone: (877) 247-4292
(212) 983-9330
Web site: http://www.faruqilaw.com
CINNABAR SERVICE: Appeals Picher Buyout Class Action Ruling
-----------------------------------------------------------
Wally Kennedy, writing for the Joplin Globe, reports that a
decision to certify 220 former residents of Picher as a class in a
lawsuit that alleges their properties were intentionally
undervalued by appraisers working for the Lead-Impacted
Communities Relocation Assistance Trust is being appealed.
Cinnabar Service Co. Inc., of Tulsa, an appraisal company and a
defendant in the class action, recently filed the appeal with the
Oklahoma Supreme Court.
In a hearing on March 1 before Judge Dana Kuehn, with Tulsa County
District Court, Cinnabar objected to certification on grounds that
the element of "predominance/superiority" was not present for the
court to certify the residents as a class. It argued that each
plaintiff -- instead of one representative case of the plaintiffs
-- must prove that the value of the properties was "lowballed" by
the appraiser.
Those same arguments are the basis of the appeal, according to
court documents obtained from the Office of the Clerk of the
Appellate Courts in Oklahoma City.
After receiving written arguments from lawyers on both sides,
Kuehn said the actual loss in value for each property did not have
to be proven, only whether there was a conspiracy among appraisers
and the insurance companies to defraud the plaintiffs by
lowballing the appraisals.
Joe Fears, an attorney with Barber & Bartz, of Tulsa, who filed
the appeal for Cinnabar, could not be reached for comment.
Besides Cinnabar, other defendants are Van Tuyl & Associates, a
Tulsa appraisal firm, and numerous insurance agencies, including
Allstate and State Farm.
The plaintiffs have dismissed the trust and two named individuals
as defendants. The individuals are Larry Roberts, operations
manager for the trust, and J.D. Strong, former Oklahoma secretary
of the environment.
Trust Formation
The Lead-Impacted Communities Relocation Assistance Trust was
formed in 2006 after a study by the U.S. Army Corps of Engineers
found that the abandoned mines under Picher, Cardin and
Hockerville had a high risk of caving in. More than 700 pieces of
property were involved in the buyout.
COUNCIL BLUFFS, IA: Faces Class Action Over Flag Desecration Laws
-----------------------------------------------------------------
Chad Nation, writing for The Daily Nonpareil, reports that the
city of Council Bluffs is identified as a city that has wronged
the Westboro Baptist Church in a class action lawsuit filed by the
American Civil Liberties Union of Iowa on April 18.
The lawsuit alleges three members of the controversial Topeka,
Kan., church have been consistently harassed by authorities by
persisting to enforce "Iowa's unconstitutional flag desecration
statutes." However, at least one city official said he has no
recollection of flag desecration discussions with church members.
Public demonstrations held by Westboro church members often
include dragging the U.S. flag on the ground, air spitting on the
flag and other expressive acts designed to convey their belief
that the U.S. flag has become an "idolatrous symbol" representing
a country that is at odds with God.
In a press release, Ben Stone, executive director of the ACLU of
Iowa, said the ACLU filed the lawsuit because "the strength of our
democracy requires tolerance of peaceful forms of public
expression and religious activities." Mr. Stone said these
principles are paramount, even though the ACLU strongly disagrees
with the Westboro Baptist Church positions on such topics as LGBT
rights.
The lawsuit contends that various Iowa law enforcement officials
wrongly ordered Margie Phelps, Elizabeth Phelps and Timothy Phelps
to stop dragging and otherwise treating the U.S. flag
disrespectfully at protests in Des Moines, Red Oak and Council
Bluffs. Church demonstrators "will continue to suffer irreparable
harm to their personal rights of expression and religious freedom"
as a result of law enforcement's continued attempts to enforce
Iowa's unconstitutional flag abuse statutes, the lawsuit contends.
The ACLU alleges law enforcement officials at those protests cited
their duty to enforce Iowa's flag desecration laws because the
laws were "still on the books," even though those laws were ruled
unconstitutional by U.S. Southern District of Iowa Judge Robert
Pratt in 2007.
ACLU of Iowa Legal Director Randall Wilson, who is representing
the Phelps, said it is not uncommon for laws that are ruled
unconstitutional to remain on the books. In fact, he said he has
never seen the legislature vote to remove a law in his 25 years of
experience.
That is why a class action suit was needed in this case,
Mr. Wilson said, because the church members actively demonstrate
all over Iowa and should not be required to go to court again and
again every time a church demonstrator encounters another police
officer determined to enforce laws that the legislature should
have removed from the books.
"It's a matter of enforcing good-faith compliance with the
Constitution and the decisions of our courts," Mr. Wilson said.
While the two groups might appear to be "strange bedfellows,"
Mr. Wilson said he is more than happy to represent the matter.
"In this case, they are the client and we are their attorneys, and
I'm quite happy to represent their religious and expressive
freedoms," he said.
The lawsuit does not seek money, Mr. Wilson added.
Court filings allege that on April 22, 2011, members of the
Westboro Baptist Church picketed in Council Bluffs in connection
with the funeral of a soldier.
According to the lawsuit, at the April 22 picket, a Council Bluffs
Police officer advised Sam Phelps-Roper, a church member and
protestor, that a state law prohibited flag desecration.
"After checking with headquarters, the Council Bluffs Police
officer then informed Sam Phelps-Roper that the protestors' use of
the U.S. flag would be limited to displaying it upside down," the
lawsuit stated.
Council Bluffs City Attorney Richard Wade said that his office had
not seen the petition on April 18, so he could not comment on
specifics in the case, but he did say that he has no recollection
of a discussion over flag desecration.
"I am having trouble recollecting any discussions regarding flag
desecrations at all," Mr. Wade said. "We will have to talk with
the police officers allegedly involved and see if they have any
recollections."
On Dec. 8, 2012, Timothy Phelps and Elizabeth Phelps led another
demonstration in Council Bluffs, and prior to the protest, Timothy
Phelps alleges to have spoken with an official at the Council
Bluffs Police Department about the protest.
Mr. Phelps claims to have asked the official whether the Council
Bluffs Police would be applying Iowa's flag desecration statutes
to the protestors.
The Council Bluffs Police official responded that the law
prohibits destroying or destruction of the flag, and so they would
apply it to dragging the flag because of the potential for its
destruction.
The lawsuit alleges the officers in both cases were "following a
departmental decision or policy regarding continued enforcement of
Iowa's flag abuse statutes established by Ralph O'Donnell."
A message left for Mr. O'Donnell, Council Bluffs' Police chief,
was not returned on April 18.
As a result of the policy, the Westboro demonstrators "were
prevented from freely using the United States flag as they had
intended in the course of their Council Bluffs demonstrations."
Mr. Wade said to the best of his recollection the group has been
to Council Bluffs at least three times in recent years to picket
funerals. During those instances, Mr. Wade said, the only talks
he recalls having with the church members were about the Iowa law
requiring protestors to stay 500-feet away from funerals.
"That is the only law I recall discussing with them," he said.
Mr. Wilson said the next step in the matter is for all parties to
decide whether there needs to be a hearing over a temporary
injunction or if they can as a group find a suitable agreement
until the court makes a final decision on the lawsuit.
"It could shake out quickly, or it could take a long time," Wilson
said.
In a separate report, The Daily Nonpareil relates that a letter
obtained from the city sent by the organization to Council Bluffs
Police Chief Ralph O'Donnell in October would certainly suggest
otherwise.
In the letter, faxed on Oct. 29 to O'Donnell, Shirley L. Phelps-
Roper thanks the chief on behalf of herself and her church for
"every demonstration of good training that we see from most of
your officers" while the group was protesting on Aug. 13 and
Oct. 12.
"We are thankful that there are yet law enforcement personnel that
take their oath seriously, and to heart," the letter stated, "and
see the value and need, in a nation that professes to be a nation
of laws, that the peace be kept."
Ms. Phelps-Roper then thanks senior officers by name.
Assistant City Attorney Michael Sciortino said so far the city's
investigation has found no evidence that the flag desecration
issues were ever raised with the police department.
"And certainly not with the chief," he said. "The lawsuit comes
as a surprise."
Mr. O'Donnell said he could not comment on the matter on April 19
because of the ongoing litigation.
COVENTRY HEALTH: Stoll Berne Obtains Class Action Certification
---------------------------------------------------------------
Robert Goldfield, writing for Portland Business Journal, reports
that Stoll Berne is best known for playing a key role in lawsuits
related to the Exxon Valdez oil spill -- and helping win an
initial $2.5 billion settlement for plaintiffs in a case that
spanned two decades.
Now, the Portland-based law firm has set its sites on health care.
Stoll Berne has succeeded in getting certification for a class
action lawsuit against the parent company of health insurer First
Health Network. The move advances a case that Stoll Berne has
pursued for more than two years.
U.S. District Court Judge Dennis Hubel certified the action
recently on behalf of all U.S. health care providers that bill
First Health when treating people for injuries covered by workers
compensation. The lawsuit alleges that the defendant, Maryland-
based Coventry Health Care, breached its agreement with providers
by reimbursing the incorrect amount for medical services.
"It's a small amount for any one service, but over the whole
country it's gigantic," Stoel Berne Shareholder Steve Larson said
of the amounts in dispute.
Gigantic or not, Stoll Berne already lost its chance to collect
damages, as a previous effort to certify a class of health care
providers who would seek reimbursement failed. The latest class
action seeks injunctive relief only -- requesting that First
Health change its procedures for dealing with certain billings.
That means, assuming that a jury eventually agrees with the
plaintiffs, that Stoel Berne will receive attorney fees as
determined by the court. It's not as sexy as getting a share of
damages, but Mr. Larson said the fees should prove worthwhile.
CPG INTERNATIONAL: Facing Ill. Class Suit Over AZEK Warranty
------------------------------------------------------------
Harrismartin.com reports that a class action lawsuit filed
April 25 in Illinois alleges that the manufacturers of AZEK
decking has failed to honor its lifetime warranty on the product
by refusing to acknowledge that the product is susceptible to
degredation and discoloration when exposed to heat and sunlight.
The complaint, filed in U.S. District Court for the Southern
District of Illinois, accuses CPG International and Azec Building
Products of refusing to repair or replace damaged decking
purchased by consumers nationwide who believed that the synthetic
decking was superior to the traditional wood product.
CR BARD: Court Denies Motion to Remand "Browns" Class Action
------------------------------------------------------------
District Judge Gene E.K Pratter denied a motion to remand the
lawsuit captioned GOLDIE BROWN, et al., Plaintiffs, v. C.R.
BARD,INC., et al., Defendants, Civil Action No. 12-5324, (E.D.
Pa.).
Goldie and Shantel Brown commenced this action in the Philadelphia
County Court of Common Pleas against C.R. Bard, Inc. and Bard
Peripheral Vascular, Inc. In their complaint, the Browns seek
medical monitoring for a class of Pennsylvania citizens who
received inferior vena cava filters manufactured by Bard while
residing in Pennsylvania, and who still have those IVC filters
within their bodies. Bard subsequently removed the case to
Federal Court, prompting the Browns to file a motion to remand.
According to the complaint, the parties in this matter are of
diverse citizenship. However, the complaint states that "this
action . . . cannot be removed to federal court, because it does
not allege a 'case or controversy' within the meaning of Article
III of the United States Constitution. . . . This action expressly
alleges that Plaintiffs have no present injury, but rather seek
medical monitoring to hopefully prevent or at least detect the
onset of future injuries." These allegations as to standing form
the basis of the Browns' motion to remand.
The sole argument advanced by the Browns in their motion is that
their complaint alleges an injury sufficient to create standing
under Pennsylvania law, but does not allege an injury-in-fact
under federal law, which requires a higher level of injury for
standing.
Having considered case law and the arguments advanced by the
parties, the Court finds that the Browns have allegedly suffered
an injury-in-fact. "To hold otherwise would contravene the
statement of the Third Circuit Court of Appeals that "an injury
has undoubtedly occurred" once a patient is implanted with a
potentially defective medical device," ruled Judge Pratter. "The
Browns' arguments, while creative and made in apparent good faith,
provide the Court with no reason to countenance such a result."
For these reasons, the Court denies the motion to remand.
A copy of the District Court's April 26, 2013 memorandum is
available at http://is.gd/wQnJWlfrom Leagle.com.
CSL: CEO Answers Questions Regarding Cartel Involvement
-------------------------------------------------------
Eli Greenblat, writing for BusinessDay, reports that outgoing CSL
boss Brian McNamee, one of Australia's most respected CEOs who
turned the sleepy government-owned vaccines group into a global
healthcare giant, has appeared before lawyers to answer questions
about the company's alleged involvement in an international cartel
that fixed the prices of life-saving blood plasma.
Dr. McNamee was deposed by class-action lawyers representing a
handful of American hospitals, BusinessDay has learnt, where he
was asked about details of CSL's operations in the US and its
supply and pricing of plasma for international markets.
The depositions, understood to have been taken under oath, come
just two months before Dr. McNamee is due to step down from his
role at CSL after serving nearly a quarter of a century as the
healthcare company's boss.
It is believed four other senior CSL executives will be deposed by
lawyers, or have done so already, joining the long-serving
Dr. McNamee under the spotlight as US class action lawyers circle
one of Australia's biggest companies.
CSL also had a chance to depose the hospitals who are a part of
the legal case.
The depositions spring from accusations, first aired in May 2009
by the powerful US Federal Trade Commission, that CSL and its
competitors in the blood plasma industry shared information with
rivals, signaled strategic intentions and deliberately cut supply
to maximize plasma prices.
As part of its ruling over CSL's proposed AUD3.1 billion takeover
of US-based Talecris Biotherapeutics -- which was ultimately
blocked on competition grounds -- the antitrust regulator argued
the blood plasma industry operated as a "tight oligopoly".
Nowhere in the FTC ruling did it name any wrongdoing by
Dr. McNamee or any of his executives.
The accusations were jumped on by US lawyers, who quickly
attracted 19 hospitals to join in a class-action lawsuit against
CSL. Institutions such as the Mayo Clinic, one of America's most
prestigious hospital groups and a popular respite for the rich and
famous, was among dozens who signed up, claiming CSL had allegedly
engaged in a conspiracy that put lives at risk as blood plasma
supply was deliberately constrained.
However, many hospitals later dropped out of the suit, including
the Mayo Clinic, with only a handful remaining.
There are now three plaintiffs in the action: University of Utah,
the Comprehensive Blood & Cancer Centre in California and Hospital
De Damas in Puerto Rico.
Based on the evidence of Dr. McNamee and other CSL executives, the
US lawyers will decide if there is enough to sustain a class
action suit. It is understood this decision will be made by June
or July.
A spokeswoman for CSL confirmed several CSL senior executives were
deposed in April by the plaintiffs' lawyers. She confirmed CSL's
lawyers were also undertaking depositions of the plaintiffs'
witnesses in the US and Puerto Rico.
CSL has consistently said the claims are baseless and that it
intends to vigorously defend the civil action.
Dr. McNamee will leave CSL in July after guiding the company for
23 years, taking it from a government-backed agency through its
public float and tapping into international markets to become a
$29 billion company.
DESSAU: Faces Class Action Over Alleged Collusion
-------------------------------------------------
CTV Montreal reports that Quebec City lawyer David Bourgoin is
attempting to launch a class action suit against six engineering
firms that have confessed to collusion designed to score public
contracts in Montreal.
Mr. Bourgoin filed his papers on April 19 in the first step of the
process, which he hopes will return millions to Montreal
taxpayers. Mr. Bourgoin is shooting for C$38 million in punitive
damages from six engineering firms and their leaders who testified
at the commission.
Those who testified at the Charbonneau Commission thus far
include: Rosaire Sauriol (Dessau), Yves Cadotte (SNC-Lavalin),
Fran‡ois Perreault (Genivar), Pierre Lavallee (BPR), Michel
Lalonde (Genius Counseil) and Robert Marcil (SM Group).
A judge is expected to examine the file this month and a hearing
on whether the class action suit can go ahead or not should take
place sometime in the spring or fall of 2014.
Mr. Bourgoin said that regardless of possible promises of criminal
immunity, nothing should prevent the companies from being sued for
their actions.
According to CJAD Local News' Luciano Pipia, reported collusion
costs could reach 500-million dollars.
Mr. Bourgoin adds it's one thing to admit what you did, but it's
quite another to write a check.
The inquiry was set to resume on April 22.
DIESEL USA: Gets Final OK of Accord in Ass. Managers' Suit
----------------------------------------------------------
Magistrate Judge Nathanael M. Cousins issued an order granting
final approval of a settlement in the lawsuit captioned RYAN
GREKO, Plaintiff, v. DIESEL U.S.A., INC., Defendant, Case No.
10-cv-02576 NC, (N.D. Cal.).
The class covered by the Court's order is defined as: "all persons
employed by Diesel U.S.A., Inc. in California as an Assistant
Store Manager working at any time during the period from April 23,
2006 through November 7, 2012."
Judge Cousins held that the settlement is fair, reasonable, and
adequate.
Furthermore, the Court:
* confirmed as final the appointment of plaintiff Ryan Greko as
the class representative, and of the Law Offices of Daniel
Feder as class counsel.
* approves the selection of the employment unit of The Legal Aid
Foundation of Los Angeles as a cy pres beneficiary of any
unclaimed settlement benefits pursuant to the settlement
agreement.
* grants the Plaintiff's motion for attorneys' fees in the
amount of $292,446.18 in fees and $42,553.82 in costs to be
paid by Diesel in accordance with the settlement agreement.
* approves an incentive payment to Mr. Greko in the amount of
$5,000 to be paid out of the settlement fund in accordance
with the settlement agreement.
* approves a payment to the settlement administrator, Simpluris,
Inc., for its fees and expenses in connection with the
administration of this settlement in the amount of $6,500 to
be paid out of the settlement fund in accordance with the
settlement agreement.
A copy of the District Court's April 26, 2013 Order is available
at http://is.gd/cp8WX0from Leagle.com.
E-BOOK ANTITRUST LITIGATION: Macmillan Settles for $26 Million
--------------------------------------------------------------
Emily Flitter, writing for Reuters, reports that publishing house
Macmillan moved on April 26 to settle a raft of antitrust suits
accusing it of conspiring with other publishers to raise e-book
prices, hammering out a $26 million settlement with a group of
states and individuals, court filings show. The agreement
requires Macmillan to pay not only a $20 million fine, but legal
fees and a small award as well to the individual plaintiffs for
their participation.
U.S. District Judge Denise Cote ordered government to file a
motion of preliminary approval by May 24, a step toward completing
the settlement, after the sides told her in a letter on April 25
that they had hammered out the terms of a deal.
"We are extremely pleased in resolving the claims of class members
across the country in the e-book litigation and we think it was an
extremely good result," said Jeff Friedman, a partner at Hagens
Berman in San Francisco, who worked on the settlement on behalf of
the plaintiffs.
"We also appreciated working very closely in the settlement with
the state attorneys general in the action."
A lawyer for MacMillan declined to comment.
Macmillan is a unit of Verlagsgruppe Georg von Holtzbrinck GmbH,
based in Germany. It announced in February that its plans to
settle antitrust suits by the U.S. Justice Department and the
class of plaintiffs.
Four of the five publishers named in the suits, including Pearson
Plc's Penguin Group, News Corp's HarperCollins Publishers Inc and
CBS Corp-owned Simon & Schuster Inc, have now settled.
The settlement with the government requires Macmillan to lift
restrictions on discounting by e-book retailers and report to the
Justice Department its communication with other publishers.
Apple is the only remaining defendant in the Justice Department's
lawsuit, which was filed in April 2012 in U.S. District Court in
New York.
The class action case is In Re: Electronic Books Antitrust
Litigation, U.S. District Court, Southern District of New York,
No. 11-02293.
ELECTRONIC ARTS: June 10 Hearing on Athletes' Class Cert. Bid
-------------------------------------------------------------
Elizabeth Warmerdam, writing for Courthouse News Service, reports
that college athletes seek class certification in a lawsuit
claiming they were cheated out of a cut of the profits from TV
broadcasts and video games that used their names and images.
The National Collegiate Athletic Association, Electronic Arts Inc.
and College Licensing Company were accused of orchestrating a
"horizontal and vertical price-fixing conspiracy and a group
boycott" in an antitrust action led by former UCLA basketball star
Ed O'Bannon.
The complaint alleged that the NCAA forces athletes to sign away
the rights to their own images, cheating them out of a share in
the profits from DVD and video game sales.
In February, U.S. District Judge Claudia Wilken refused to strike
the athletes' motion for class certification, and in April the
athletes filed a reply brief in support of their motion.
A hearing on the certification is scheduled for June 10.
The athletes say the NCAA tried to justify the conspiracy using
the association's amateurism rules, which bar players from
receiving money during their eligibility years.
The defendants "largely (but not totally) sidestep" the issue of
conspiracy by trying to defeat class certification, the athletes
claim. For example, the defendants claimed that the identities of
the proposed class members are insufficiently ascertainable and
that the lawsuit lacks common questions required to unite the
class.
"Participants in the proposed classes can be readily identified
from defendants' own records, a fact that they conceal from the
court," the athletes argue. "The existence of common questions is
clear and among them are the questions relating to defendants'
failure to pay former [student athletes] for use of their [names,
images and likenesses] in game footage and video games and their
justification of this practice on the basis of the NCAA's
amateurism rules."
The proposed class "is appropriate for certification . . . because
it seeks prospective relief on behalf of current and former
[student athletes], all of whom are being injured by defendants'
ongoing conduct," the athletes say in their brief.
Electronics Arts and the College Licensing Company argued
separately that they were not part of any conspiracy and were only
following the NCAA's rules.
But the athletes said these arguments "are basically a rehash of
their prior unsuccessful dismissal motions and are inconsistent
with this court's prior orders, settled case law, and their own
internal documents.
"There is a wealth of evidence from defendants' own documents and
testimony that will be used to show, on a common basis, that EA,
CLC, and the NCAA colluded" to use former and current student
athletes' names and images in their video games "without
compensation," the athletes say.
"These factual issues are therefore predominantly common ones."
ELECTRONIC ARTS: Gamers Get Class Action Settlement Notice
----------------------------------------------------------
The Lawton Constitution reports that gamers across the country
checked their e-mail inboxes and discovered a legal notice
notifying them of a class-action lawsuit against publisher EA.
Much like the class-action lawsuit against Rockstar Games for the
"Hot Coffee Scandal" of "Grand Theft Auto San Andreas," this
motion gives purchasers of any EA football game "Madden NFL,"
"NCAA Football" or "Arena Football" from 2005 to 2012 the option
to include themselves in this action for a possible monetary
reimbursement in the future. The lawsuit was filed against EA in
federal court in the Northern District of California, prompting EA
to agree to pay $27 million into a fund that will reimburse gamers
for their purchases. Those who file valid claims could be
reimbursed up to $5.85 per Xbox 360, Playstation 3 or Wii title up
to $46.80 or $20.37 per Xbox, Playstation 2 or Gamecube title up
to $162.96. However, there is no guarantee purchasers will be
reimbursed this amount. The settlement still has to be approved
by the court.
The lawsuit was prompted by a claim that EA overcharged for their
products between 2005 and 2012. The e-mail stresses the court has
not decided whether EA did anything wrong. The publisher insists
that it operated lawfully and did not do anything illegal. This
is only an agreement to "eliminate the uncertainties, burden and
expense of further protracted litigation."
Class to Get More Under Modified Settlement
Jon Hood, writing for ConsumerAffairs, reports that a settlement
in a lawsuit against EA Games has been modified to triple the
amount of money that class members will be eligible to receive.
Per the modifications, each class member will receive more money
from the $27 million total settlement fund. This is apparently
because there are fewer individuals in the class than was
originally anticipated.
The modified terms provide that claimants will get $20.37 for
every last-generation game on Xbox, Windows PC, GameCube, and
PlayStation 2. This amount is considerably higher than the $6.79
that these claimants would have received under the original terms.
Similarly, the amount for the most recent generation of games for
Wii, PlayStation 3, and Xbox 360 has risen from $1.95 to $5.85.
"Blatantly anticompetitive conduct"
The suit, filed in 2011, alleged that EA Sports engaged in
"blatantly anticompetitive conduct" by entering into "an unlawful
and anticompetitive series of exclusive agreements with the
National Football League, the NFL Players Union, Arena Football
League and the National Collegiate Athletic Association ('NCAA'),"
thereby allegedly driving its competition out of the market and
driving up the price of its own games.
EA Sports April 21, 2013, 4:54 p.m. Consumers rate EA Sports
According to the suit, "[p]rior to signing the exclusive
agreements referred to above, Electronic Arts charged $29.95 for
its flagship product Madden NFL," whereas once the alleged
agreements went into effect, the price "increased nearly seventy
percent to $49.99."
The suit alleged that EA violated federal and California state
antitrust laws, as well as California consumer protection laws.
EA denied that it ever charged inflated prices for its videogames,
and also disagreed that there was a relevant market limited to
"interactive football videogames."
$27 million settlement fund
Under the original settlement agreement, announced in October, EA
would pay $27 million into a fund including money that would
include money for class members after lawyers' fees and other
costs were deducted.
In addition to the monetary changes, class members have been given
additional time to file a claim. The deadline has been extended
from March 15 to May 15. Claimants can do so at the official
settlement website.
GENESIS HEALTHCARE: BLR Discusses Ruling in "Symczyk" Case
----------------------------------------------------------
Business and Legal Resources says the Supreme Court recently
issued an important ruling regarding class action cases filed
under the Fair Labor Standards Act (FLSA). In class actions under
FLSA, members who want to join the suit must opt in. By contrast,
in civil rights class action suits, like the one against Walmart
now referred to as Dukes, all similarly situated employees are
included unless they choose to opt out.
It's an important difference, which can have a huge impact on what
happens to the suits. Here's the background on the case the high
court ruled on, Genesis HealthCare Corp. et al. v. Symczyk, No.
11-1059 (4/16/13). Like Walmart, Genesis is a nationwide
corporation operating thousands of facilities.
The plaintiff, Laura Symczyk, was a nonexempt registered nurse at
a Philadelphia nursing home. That facility automatically deducted
30 minutes from the work time of nonexempt employees for their
meal break (we don't know if that is a common or universal
practice throughout Genesis). Contending that she was usually
unable to take the full break, Symczyk sued Genesis in 2009 for
back pay, filing the suit on behalf of all nurses, secretaries,
housekeepers, respiratory therapists, and nurses' aides -- a class
of similarly situated employees. Whether she intended to include
employees beyond the Philadelphia facility is unclear.
Very promptly after learning of the suit, Genesis offered Symczyk
$7,500, which it felt would cover her back pay for the missed meal
breaks, attorney's fees, and other costs. Plaintiffs have 14 days
to respond to such an offer, and Symczyk never replied. Again,
Genesis moved promptly; it went to federal district court, asking
that the suit be dismissed. Acknowledging that no other employees
had joined the suit, and the plaintiff had ignored the settlement
offer, the judge agreed to dismiss it, reasoning that the court
had no subject matter jurisdiction over the case.
Symczyk appealed to the U.S. Court of Appeals for the 3rd Circuit,
which covers Delaware, New Jersey, and Pennsylvania. Appellate
judges disagreed with the lower court: Citing their own similar
rulings in earlier cases, they ruled that defendants like Genesis
shouldn't be allowed to frustrate the remedial purpose of the FLSA
by paying off individual plaintiffs before a class could be
formed. Genesis appealed to the Supreme Court.
The justices split 5-4. With most of their positions made clear
when they first heard arguments on the case, the conservative
justices ruled that Symczyk had no case, overcoming the
contrasting votes of the four more liberal justices. Although the
ruling was sought to resolve a long-standing split among both
federal district and federal appeals courts, it isn't as clear as
it might be.
For example, the justices refused to rule on whether Symczyk's
case was "moot," or no longer relevant, because Genesis had tried
to settle with her and there were no other plaintiffs, by the time
it reached the 3rd Circuit. That's because Symczyk dropped that
issue before going to the 3rd Circuit.
Avoid -- or manage -- FLSA class action suits
The Supreme Court's recent ruling in Genesis HealthCare Corp. may
make it somewhat easier for employers to navigate the dangerous
waters of class action lawsuits charging violation of the FLSA. We
say "may," because the decision was as narrow as the justices
could make it. But here are some guidelines that may be helpful:
First, we would strongly advise that a timekeeping system that
automatically deducts unpaid 30-minute lunch breaks for nonexempt
employees is a very risky choice in any environment where their
work time can be controlled by the needs of patients, clients, or
customers.
Remember that any unpaid meal break must, with rare exceptions, be
at least 30 minutes and be uninterrupted and completely free of
work.
In any work environment where there are frequent demands on
employees' time, employers must provide a way for workers to
record days when they were unable to take uninterrupted meal
breaks. Ideally, employees should clock out at the start and clock
back in at the end of their breaks. If the time clock is too far
away from their work spaces, employees should be provided with
forms to submit regarding when they couldn't take full breaks.
Many experts recommend that employers do exactly what Genesis did:
Faced with one or only a few plaintiffs who wish to form a class
and have filed suit, make as many fair settlement offers as there
are plaintiffs. The possible result, especially if one or two of
the plaintiffs take the offer, and still likely if they all refuse
to respond, is a dismissal according to this Supreme Court ruling.
But employment law firm Fisher & Phillips cautions that smart
plaintiffs' attorneys, may in light of this ruling try to file
motions for conditional certification of a class of plaintiffs. In
addition, they may argue that an offer that is not accepted can
never moot such a class action, as four of the justices said in
their dissent from the majority.
GENESIS HEALTHCARE: Duane Morris Discusses "Symczyk" Ruling
-----------------------------------------------------------
Kevin E. Vance, P.A. and Mark Beutler, at Duane Morris LLP, report
that Genesis clarifies that courts must dismiss collective actions
where the named plaintiff's claim is moot and no class has been
certified.
On April 16, 2013, the United States Supreme Court in Genesis
HealthCare Corp. v. Symczyk, 569 U.S. ___ (2013) (No. 11-1059),
held that a trial court properly dismissed as moot a Fair Labor
Standards Act (FLSA) overtime collective action where the employer
had made an offer of judgment to the named plaintiff for all
amounts she sought on her individual claim. However, the Supreme
Court declined to resolve a circuit split regarding when and how
an employer may "moot" an FLSA plaintiff's claims by offering full
relief. Thus, though the decision will likely be of some benefit
to employers located in certain appellate circuits, its overall
import remains yet to be determined.
Background and Procedural History
In Genesis, a nurse employed by a Philadelphia nursing home filed
an FLSA overtime suit alleging that her employer failed to pay her
all wages she was due. The FLSA allows a worker with such a
complaint to sue, not only for herself, but also for her
"similarly situated" co-workers, in what is called a "collective
action." An FLSA collective action bears some similarity to a
class action.
Before the plaintiff in Genesis filed a motion for conditional
class certification, the employer served the plaintiff with a Rule
68 offer of judgment for $7,500, which represented full relief for
the plaintiff's individual claim. The plaintiff ignored the offer,
and it expired. The defendant then moved to dismiss the lawsuit on
the basis that the plaintiff's claim was moot because there was no
longer any actual controversy.
Under the Third Circuit precedent that governed the Genesis
matter, a plaintiff cannot keep a claim alive by rejecting an
offer of judgment that provides full relief. The district court
therefore dismissed the plaintiff's claim as moot, and dismissed
her collective action.
On appeal, the Third Circuit agreed that the plaintiff's
individual claim was rendered moot, but nonetheless held that the
collective action was not moot since the plaintiff had an interest
in representing unnamed potential class members. The employer
sought review by the Supreme Court.
The Supreme Court Decision
The Supreme Court, in a 5-4 decision written by Justice Thomas,
held for the employer. Chief Justice Roberts, and Justices Scalia,
Kennedy and Alito joined Justice Thomas' majority opinion. Justice
Kagan dissented, and was joined by Justices Ginsburg, Breyer and
Sotomayor.
The majority declined to rule on the underlying issue of whether
the unaccepted offer of judgment actually mooted the plaintiff's
claim. The appellate circuits are split on that question, but the
plaintiff had conceded the point in both the district court and
the Court of Appeals for the Third Circuit; thus, the plaintiff
could not properly raise the issue for the first time before the
Supreme Court. The Third Circuit's position on the mootness issue
thus remains the law in that circuit, as well as in the Second,
Fourth, Sixth and Seventh Circuits (and possibly in the Fifth and
Eleventh Circuits as well) -- albeit with some key differences
among these circuits.
The majority concluded that because the plaintiff's claim had
become moot, the plaintiff could not serve as a representative of
unnamed putative plaintiffs. Her collective action lawsuit was
properly dismissed for lack of subject matter jurisdiction. The
majority noted that Rule 23 class actions are fundamentally
different from FLSA collective actions, and that the Rule 23 cases
relied upon by the plaintiff were inapposite.
Justice Kagan's strong dissent maintained that the Third Circuit's
position -- that an unaccepted offer of judgment that provides
complete relief moots the underlying claim -- was in error, and
that as a result, the majority opinion was based on a "bogus
premise" and addressed a situation that would not be repeated in
other cases. Justice Kagan cautioned lower courts to reject or
abandon the Third Circuit rule and, thereby, render the majority
opinion a nullity.
What This Decision Means for Employers
Employment lawyers eagerly awaited the Supreme Court's decision,
primarily because they anticipated that the Supreme Court would
resolve the circuit split regarding the effect of an unaccepted
offer of judgment that provides complete relief. However, the
majority provided no clarity on that issue.
Still, Genesis clarifies that courts must dismiss collective
actions where the named plaintiff's claim is moot and no class has
been certified. In circuits that permit an employer to moot an
individual plaintiff's claim, Genesis will be useful to employers
who seek to "pick off" the named plaintiff's claims at an early
stage in the proceeding.
As with many Supreme Court decisions, the overall significance of
the Genesis case will become more apparent over time. The majority
put significant weight on the fact that the plaintiff had yet to
file a conditional certification motion, and that there were no
other plaintiffs involved in the suit. It is unknown what would
happen if the named plaintiff's claim is mooted after the filing
of a conditional certification motion, or after other plaintiffs
opt into the suit.
The dissent compared the unaccepted offer of judgment to an
unaccepted settlement offer, and argued strongly that neither
moots a claim. Going forward, defense lawyers seeking to moot a
claim may want to consider making an unconditional tender of the
full amount of money sought by the plaintiff, as opposed to a
formal offer of judgment. An unconditional tender, such as by
sending a cashier's check for that amount to the plaintiff's
counsel, might be viewed differently than a settlement offer.
Finally, it is possible that the true import of Genesis does not
involve the mootness issue at all, but rather, may be found in the
majority's statement that "there are significant differences
between certification" of a collective action and a Rule 23 class
action. That language may prove to be an effective tool for
employers seeking to avoid collective action certification on the
basis that the claims (or damages claims) of the individual opt-in
plaintiffs are too different to qualify for collective treatment.
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counsel, benefits administrators and senior managers.
GLENS FALLS HOSPITAL: Sued Over Patient Data Security Breach
------------------------------------------------------------
The Saratogian reports that Glens Falls Hospital is being sued for
the alleged unauthorized disclosure of 2,300 patients' medical
records on the Internet. The class-action lawsuit has been
brought against the hospital and Virginia-based Portal Healthcare
Solutions LLC, which provides physician transcription services, by
the Albany law firm Dreyer Boyajian LLP. The lawsuit was filed on
April 18 in state Supreme Court in Saratoga County.
The suit says patients' records could be accessed simply by
"Googling" them, allowing access to doctor office notes that
typically include a patient's medical diagnoses, clinical
laboratory results, diagnostic imaging reports, emergency
department records and medication administration.
"The failure of the hospital to safeguard patient medical records
that were made publicly available on the Internet for over four
months constitutes a breach of patient trust that was entirely
inexcusable and 100 percent preventable," Donald W. Boyajian, lead
counsel for the plaintiffs, said in a statement.
The suit seeks monetary damages for the 2,300 affected patients
for expenses related to identity theft and credit monitoring
services. The suit also names Carpathia Hosting Inc., a server
hosting company from which Portal leased space.
Hospital spokeswoman Darlene Raynsford said no financial
information, home addresses or personal data, such as Social
Security numbers, were compromised.
"It was purely diagnostic medical information from the physician,"
she said.
Ms. Raynsford said Portal left a server open from Nov. 2, 2012,
until March 14, when the breach was discovered.
"We immediately acted to have Portal's server shut down and
launched a thorough investigation," she said.
The firm's services have been terminated, and the hospital
contacted all potentially affected patients with an April 3
letter. It's unknown if any records were actually breached.
Mr. Boyajian, however, said there has been a breach, but declined
specifics.
"The magnitude of the damage is still being assessed, he said.
"These things were out there for the world to see. People have an
expectation that information will be kept private and
confidential."
Ms. Raynsford said the hospital has made identify theft and credit
protection services available to patients and is operating a call
center to obtain information and have questions answered.
But Mr. Boyajian said, "The disclosure of private medical records
on the Internet is obviously a very personal and disturbing
matter. The area of the law is still developing. My clients want
to make sure that this problem is fully addressed and never
happens to anyone else."
He declined to comment about the amount of monetary damages being
sought. Money would be for people to hire an outside firm to
conduct identity theft monitoring to make sure records and
information have not been used for malicious purposes.
Mr. Boyajian said instances like this are growing; as more and
more information is kept electronically. His firm is now awaiting
the hospital's response before deciding on the next course of
action.
Ms. Raynsford said hospital lawyers are reviewing the case. It's
too early to tell how the case will be resolved, she said.
GROEB FARMS: U.S. Honey Producers File Class Action in Illinois
---------------------------------------------------------------
Grant & Eisenhofer P.A. on April 19 disclosed that three domestic
honey producers -- Adee Honey Farms, Bill Rhodes Honey Company,
LLC, and Hackenberg Apiaries -- filed a class action complaint in
the U.S. District Court for the Northern District of Illinois. In
addition to the three named honey producers, the lawsuit asserts
claims on behalf of a nationwide class defined as all individuals
and entities "with commercial beekeeping operations (300 or more
hives) that produced and sold honey in the United States during
the period from 2001 to the present."
The Adee complaint follows on the nearly five-year "Honeygate"
investigation led by the U.S. Immigration and Customs Enforcement
investigative arm of the U.S. Department of Homeland Security and
the investigation of the honey producers' own lawyers. The
Honeygate investigation focused on a massive conspiracy through
which participants transshipped Chinese honey through other
countries, fraudulently disguised the transshipped honey's Chinese
origin, and then illegally imported that honey into the United
States in order to avoid paying U.S. antidumping duties. The
United States Department of Commerce began imposing antidumping
duties against Chinese honey after it had determined that honey
imported from China was being sold at less than fair market value
and injuring the domestic honey industry.
The government's Honeygate investigation culminated in a series of
seizures of illegally imported honey, criminal charges, and
massive fines. Most notably, the United States Attorney for the
Northern District of Illinois filed criminal charges against two
of the country's largest industrial honey suppliers -- Groeb
Farms, Inc. and Honey Solutions -- in the wake of the Honeygate
investigation. Earlier this year, both suppliers entered into
Deferred Prosecution Agreements with the government and admitted
to knowingly facilitating the importation, purchase and sale of
mislabeled Chinese-origin honey in avoidance of U.S.-imposed
antidumping duties.
The Adee action builds on the Honeygate investigation in an
attempt to obtain redress for all domestic honey producers injured
as a result of Groeb's and Honey Solutions' conduct. The Adee
action alleges Groeb Farms and Honey Solutions knowingly and
intentionally purchased, packaged, distributed, and sold falsely
labeled honey and, in doing so, have deceived consumers and
purchasers as well as subjected those consumers to potential
health risks. The complaint further alleges that "illegally
imported Chinese honey is also heavily adulterated, containing
inexpensive sweeteners and sometimes blended with high fructose
corn syrup and other additives, despite the fact that importers,
in league with [Groeb and Honey Solutions], represent that it is
pure honey." Moreover, the Adee complaint alleges that Groeb and
Honey Solutions "continue to harm domestic producers of honey by
dumping Chinese honey into the domestic market at below fair
market prices."
An attorney representing the honey producers, James J. Pizzirusso
of the Washington, D.C. office of Hausfeld LLP, stated: "The
domestic honey industry, critically important to agriculture, has
suffered losses at the hands of these fraudulent shippers for far
too long. Through this class action, our clients seek to hold
these entities responsible for the financial harm they have
caused."
Another attorney for the plaintiffs, Adam J. Levitt, who is a
director in the Chicago office of Grant & Eisenhofer P.A and head
of its consumer practice group, added: "It is important that
American beekeepers and honey producers get to play on a level
playing field, untainted by this international transshipping
scheme that has damaged them for far too long."
In addition to Mr. Pizzirusso and Mr. Levitt, the lawyers
representing the honey producers in the Adee action include
Kenneth B. Bell of the Pensacola, Fla. office of Clark,
Partington, Hart, Larry, Bond & Stackhouse; Stephen H. Echsner and
E. Samuel Geisler of the Pensacola, Fla. office of Aylstock,
Witkin, Kreis & Overholtz PLLC; and Daniel E. Gustafson of the
Minneapolis office of Gustafson Gluek PLLC.
The lawyers representing the plaintiffs in the Adee action are
among the most successful class action lawyers in the United
States, with a proven track record of trial wins and settlements
in excess of $1 billion in the past two years alone, as well as a
history of doing cutting-edge legal work across a variety of
fields, and especially the fields of consumer law, competition law
and biotechnology. In addition to prominent national law firm
consumer practice group heads Pizzirusso and Levitt, the attorneys
representing plaintiffs in Adee include a former Justice of the
Florida Supreme Court, board-certified trial lawyers, and a lawyer
with an active beekeeping business.
The case is styled as: Adee Honey Farms et al. v. Groeb Farms,
Inc. et al., Case No. 1:13-cv-02922 (N.D. Ill.).
Grant & Eisenhofer P.A. -- http://www.gelaw.com-- represents
institutional investors and shareholders internationally in
securities class actions, corporate governance actions and
derivative litigation, in addition to its consumer class action,
antitrust and false claims practices. The firm has recovered more
than $13 billion for shareholders in the last five years and has
consistently been cited by RiskMetrics for securing among the
highest average investor recovery in securities class actions.
Grant & Eisenhofer has been named one of the country's top
plaintiffs' law firms by The National Law Journal for the past
seven years.
Contact: Ivan Alexander
Telephone: 212-262-7482
E-mail: ivan.k.alexander@gmail.com
- and -
Elise Martin
Telephone: 302-622-7004
E-mail: emartin@gelaw.com
INTUITIVE SURGICAL: Bid for Lead Plaintiff Status Due June 25
-------------------------------------------------------------
The law firm of Wohl & Fruchter LLP announces that a class action
lawsuit has been filed in the United States District Court for the
Northern District of California alleging violations of federal
securities laws by officers and directors of Intuitive Surgical,
Inc. (Intuitive) (Nasdaq: ISRG).
Any ISRG investor wishing to serve as lead plaintiff in the above
lawsuit must apply to the Court no later than June 25, 2013. If
you are an ISRG shareholder and wish to discuss this lawsuit or
have any questions concerning your rights or interests, you may
contact our Firm by calling 866.582.8140, or contacting the
attorney named below.
Intuitive manufactures and markets the da Vinci robotic surgical
system, which consists of robotic arms tipped with tiny surgical
tools that allow surgeons to perform minimally invasive surgeries
on patients remotely from a computer terminal with joy-stick-like
controls.
The complaint in the lawsuit alleges that the defendants issues a
series of materially false and misleading statements concerning
the purported safety and effectiveness of the da Vinci system. The
complaint further alleges that the true facts, concealed from the
investing public, were that, among other things, (i) defects in
the da Vinci system had caused a substantial number of patient
injuries and deaths resulting in a substantial number of adverse
incident reports; (ii) not all of the adverse incidents were
reported to the FDA; and (iii) as a result of such adverse
incidents, Intuitive exposed itself to hundreds of millions of
dollars in potential civil liability and criminal sanctions.
Since February 27, 2013, the day before the FDA announced a survey
of surgeons concerning medical complications associated with use
of the da Vinci system, ISRG stock has fallen over 15% from
$573.52/share to a close of $486.76 on April 22, 2013, resulting
in a loss of nearly $3.5 billion in shareholder value.
Additional information, including links to a recent media expose
of the da Vinci system, statements issued by the medical community
concerning the da Vinci system, and a court order denying
Intuitive's motion for summary judgment in a recent product
liability lawsuit relating to the da Vinci system, are available
on our website at http://www.wohlfruchter.com/cases/isrg
Wohl & Fruchter LLP -- http://www.wohlfruchter.com/-- represents
plaintiffs in litigation arising from fraud and other fiduciary
breaches by corporate managers, as well as other complex
litigation matters.
* * *
The law firm of Federman & Sherwood also issued a statement
announcing the filing of a Securities Class Action against
Intuitive Surgical. The firm may be reached at:
K. Lynn Nunn, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Email: kln@federmanlaw.com
http://www.federmanlaw.com/
ISRAEL ELECTRIC: Tel Aviv Judge Approves Class Action
-----------------------------------------------------
Chen Ma'anit, writing for Globes, reports that Israel Electric
Corporation is liable to pay dearly for allegedly collecting
billions of shekels illegally from the public to cover the costs
of benefits for the utility's employees. Tel Aviv District Court
Judge Drora Pilpel on April 21 approved a class-action lawsuit
against IEC for allegedly illegally collecting NIS11 billion from
the public since 2002. The petitioner alleges that IEC used the
money to finance pay hikes, bonuses, and illegal excess salaries
to employees.
Judge Pilpel rejected IEC's defense that the lawsuit was liable to
cause severe harm to the public, which would exceed any benefit
from the legal proceedings, because IEC is a government company
providing a critical public service, and legal proceedings could
undermine its financial stability.
"Yes, the size of the claim, if managed as a class action suit, is
unprecedented in scale. Nonetheless, it is necessary to take into
account the amount of money IEC has frozen for various employee
benefits, the massive NIS8.9 billion mistakenly collected for
pensions, and the millions of shekels in excess bonuses at IEC in
recent years," said Judge Pilpel.
The petition to recognize the lawsuit as a class-action suit was
filed in 2009. The petitioner alleged that, for years, IEC had
overcharged customers through the electricity tariff, which was
entirely determined on the basis of the utility's costs, including
salaries and related expenses illegally paid to its employees.
These expenses included bonuses amount to two months' salaries on
140% of the basic salary, illegal promotions and pay hikes,
promoting retirees every two years, paying car expenses regardless
of actual use, and so on.
The statement of claim says that these payments were included in
reports IEC provided for the purpose of setting the electricity
tariff. In this way, the public financed excess salaries at IEC.
IEC said that it would appeal the ruling to the Supreme Court.
LAKE TANSI POA: Faces Class Action Over Fund Administration
-----------------------------------------------------------
Heather Mullinix, writing for Crossville Chronicle, reports that a
class action lawsuit has been filed by a member of the Lake Tansi
Property Owners Association against the POA claiming negligence in
administration of POA funds and assets.
Mary Aggers filed the suit April 12 in Cumberland County Chancery
Court and names members of the board of directors, suing them in
their official capacity as board members. Those named in the suit
are Jerry Davenport, James Hellem, Michael E. Ferry, Edward
Liskovec, Marlene Reitz, Richard Holton, Dick LeClair, Ed Yoder,
Kris Burke, David Kerr, Kenneth Qualls and Claude Coyne.
The suit alleges the board of directors of the POA transferred
assets negligently to Tansi Waste Management, Inc. (TWMI). The
assets transferred were rights to utility engineering services
contracted between the POA and Environmental and Engineering
Services; a lease of about one half acre of land for 99 years at a
rate of $1; and $125,000 in cash.
It alleges a conflict of interest due to the fact Coyne was a
member of the board of directors and then presumptive president
and CEO of TWMI.
The transfer of assets was made without a two-thirds majority vote
of the membership required by TCA 48-62-102, sale of assets other
than in regular course of activities, and, according to the suit,
illegal.
Also at issue is a sewer plant purported to be capable of
processing 300,000 gallons per day, but which is only capable and
permitted for 50,000 gallons per day.
On September 1, 2009, TWMI transferred all of its assets to Tansi
Sewer Utility District (TSUD). This was done negligently, the
suit states, and without adequate consideration. At the time of
the transfer, the suit states Coyne endorsed the resolution as a
member of the TWMI board while he was general manager of Tansi
Sewer Utility District, a paid employee.
The suit states TWMI was a wholly owned subsidiary of the POA and
the transfer of assets was made without approval of two-thirds of
the POA membership, as required by law.
The POA had obtained a $1.2 million line of credit from First
National Bank to finance the construction of a sewer treatment
plant and collection system to serve the POA amenities. These
assets were transferred by TWMI to TSUD Aug. 26, 2010 "without
adequate consideration."
TWMI made one payment on the loan in the amount of $187,438.15,
with $1.275 million owed as of July 31, 2010. The loan was
unsecured.
According to the suit, TSUD agreed to pay the POA on condition of
issuing public bonds.
TWMI also allowed TSUD the right to use the office at 7004 Ute
Lane, purchased by TWMI for $100,000 and financed by a loan from
First National Bank.
"The Plaintiff alleges that the agreement of Tansi Waste
Management to pay the Defendant was conditional, speculative and
illusory. Tansi Waste Management does not have sufficient assets
to repay this debt. The Plaintiffs aver that a public entity such
as Tansi Waste Management cannot lawfully pay a private debt."
The actions of the POA board were negligent, the suit states,
because the directors failed "to exercise the care an ordinarily
prudent persons in a like position would exercise under similar
circumstances."
That has subjected plaintiffs to potential liability "for
membership assessments to cover losses, sale of POA assets to
cover losses and has caused a diminution in the market value of
properties owned by the member class."
The suit seeks damages against the defendants in their official
capacities of $1.2 million, as well as the cost of legal fees in
the matter.
J. Cott McCluen, of Harriman, is the attorney listed on the suit.
MANUFACTURERS FINANCIAL: Class Cert. Bid in Compressor Suit Denied
------------------------------------------------------------------
District Judge Sean F. Fox denied a motion for class certification
in the lawsuit captioned Compressor Engineering Corporation,
Plaintiff, v. Manufacturers Financial Corp., et al., Defendants,
Case No. 09-14444, (E.D. Mich.).
On March 14, 2013, the Court heard oral argument with respect to
pending Motions for Class Certification in three separate actions
that assert claims under the Telephone Consumer Protection Act,
including this action.
On April 26, Judge Fox denied the Plaintiff's Motion for Class
Certification in this action saying the proposed class definitions
are imprecise and amorphous.
"The proposed class definitions include all 'persons who were
sent' certain fax advertisements. It is entirely unclear who that
includes," Judge Fox held.
"[I]f this Court were to modify the proposed class definitions, to
include only those with statutory standing, there would need to be
individualized determination in order to ascertain the members of
the classes," he added. "[T]his is an individualized issue that
precludes certification."
A copy of the District Court's April 26, 2013 Opinion and Order is
available at http://is.gd/3pepQhfrom Leagle.com.
MERCK FROSST: Faces Class Action Over Propecia Side Effect
----------------------------------------------------------
Torstar Network reports that more than 500 Canadian men feel they
weren't warned properly about a prescription baldness medication
they say has left them impotent, even years after they stopped
taking it.
Two class-action lawsuits, one in Ontario and one in British
Columbia, have been filed against Merck Frosst Canada, makers of
finasteride -- the key ingredient used in Propecia, a hair loss
drug, and Proscar, a prostate drug also used to treat baldness.
The B.C. case was approved by the province's supreme court this
month.
Merck denies the claims and says it acted responsibly in all
aspects of producing and marketing the drugs.
The plaintiffs argue Merck failed to warn them of lasting sexual
dysfunction after stopping treatment, despite the product's labels
in Europe indicating a risk of "persistent erectile dysfunction
after discontinuation of treatment" as far back as 2008.
While Canadian labels at the time listed sexual dysfunction as a
rare side effect, they indicated it was resolved in men "who
discontinued therapy." A warning of persistent erectile
dysfunction didn't appear in Canada until November 2011.
"If they were telling men in Europe about this, but not Canadian
men, then the drug company was applying a double standard," said
David Klein, whose firm launched both cases. "Knowing (the full
side-effects), would you risk it? I'm 59 and I wouldn't risk it.
I'd rather be bald and so would most men."
Sean Ramsaran, 26, was prescribed Propecia by his dermatologist in
2009 when he noticed his hair was thinning and now calls himself
"a useless person."
Four years later, he wonders why neither Merck nor Health Canada
warned him of the drug's risks sooner.
"I can't get an erection no matter how I try," said the Toronto
resident, noting he quit the drug a year into treatment after his
sex drive plummeted. "I'm seeing a psychiatrist for my depression.
I have nightmares, flashbacks to experiences I had while on the
drug with my girlfriend, not being able to do anything."
Merck denies any failing in its monitoring of the drugs. "The
company acted responsibly and appropriately with respect to
Propecia and Proscar throughout the development, marketing and
post-marketing monitoring of these medicines," wrote spokeswoman
Lainie Keller in an email. She added there is no scientific data
showing the drugs cause persistent impotence after discontinuing
use.
"Sexual dysfunction is unfortunately a common condition among men
and caused by many different factors," Keller wrote.
Conservative Sen. Kelvin Ogilvie said drugs like finasteride
illustrate problems Health Canada can have in monitoring
prescription drugs and warning Canadians about possible side
effects after they hit the market.
"We're very slow to get out instructions on revised use or safety
of these drugs," said Mr. Ogilvie, who recently released a Senate
committee report on the issue. "The difference between 2008 and
2011 is three years."
Health Canada "considers any new information that may be
available" when a foreign regulator takes action on a drug, wrote
spokesman William Wells in an email earlier this month. It then
conducts an "independent review of all relevant information"
before deciding to work "with the manufacturer to update product
labeling."
"Based on the available information, it is Health Canada's
position that the therapeutic benefits of Propecia outweigh their
risks," Mr. Wells added.
Health Canada recently announced it plans to strengthen its system
for collecting and analyzing reports of adverse drug reactions.
Among the changes being considered is making the reporting
mandatory for doctors and others.
Finasteride blocks the conversion of testosterone to the more
potent sex steroid dihydrotestosterone, known for contributing to
baldness.
Since arriving on the Canadian market in 1993, finasteride has
been linked to 20 cases of erectile dysfunction, 14 cases of
sexual dysfunction, 15 cases of depression and five cases of
suicidal ideation in Health Canada's adverse drug reaction
database. Mr. Ogilvie's Senate committee report found adverse
reaction reports likely represent "1 to 5 per cent" of the total
side effects experienced by patients in the real world.
Last year, Health Canada issued a warning that finasteride may be
associated with an increased risk of developing high-grade
prostate cancer.
Dermatologist Dr. Jeff Donovan, a hair restoration specialist in
Toronto, says he prescribes finasteride to patients many times per
day. "Could there by permanent problems? It certainly is
possible, but I think it's really anyone's guess right now."
In a 2012 study, Dr. Michael Irwig, an assistant professor of
medicine at George Washington University in Washington, D.C.,
examined 54 men experiencing finasteride-related side effects and
found that 96 per cent of them continued experiencing sexual
dysfunction more than a year after stopping treatment. Another
study of 61 former users found that 44 per cent reported having
suicidal thoughts.
"What's scary is that this has had some persistent, possibly
permanent, effect on these guys," said Dr. Irwig. "Some of them
haven't taken the medicine for 10 years, and they're still having
the same problems."
For these men, all attempts at reversing the effects -- from
sexual therapy to testosterone injections to Viagra pills -- have
failed.
"If I knew there was a sliver of a possibility I'd have permanent
damage to a vital organ in my body, I definitely wouldn't have
taken the drug," said Mr. Ramsaran. "I'd rather be bald and not
have hair anywhere on my body."
MONTANA POWER: Settles Workers' Compensation Suit for $1.2 Mil.
---------------------------------------------------------------
John Grant Emeigh, writing for The Montana Standard, reports that
a settlement recently reached in a class-action lawsuit involving
the former Montana Power Co. effectively ends a legal battle that
has stretched on for more than a decade.
Through a liability insurer, the Montana Power has agreed to pay a
settlement of $1.2 million to 141 former employees who sued the
utility over unpaid workers' compensation claims. This class-
action suit was filed in Butte district court in 1998.
Judge Kurt Krueger approved the settlement after a hearing this
week with both parties and no objections were raised. Missoula
attorney Lon Dale, who represented the former employees, said his
clients ultimately agreed to take Montana Power's offer.
"The clients make the decision to accept the settlement, and we
respect the clients' decision," Mr. Dale said.
Mr. Dale noted that the settlement came at a time when the case
could have dragged on for years. The case had been locked in a
sort of legal limbo.
In February 2012, a Butte district court jury ruled 8-4 in favor
of Montana Power after a nearly month-long trial. However, the
judge threw out that verdict in May 2012 on the grounds of juror
misconduct. Krueger ordered a new trial.
Attorneys for Montana Power appealed the judge's decision for a
new trial to the Montana Supreme Court. As this appeal was
pending, mediation continued in the case and the recent settlement
was reached.
Mr. Dale said he believes one of the reasons his clients agreed to
the settlement is to quickly bring this case to an end.
"Several of our clients are over 80 years old and two have died
since the beginning of the trial," he said.
Bozeman attorney Chris Ragar also represented the former
employees.
Montana Power attorney Joe Seifert of Helena said he is glad the
lawsuit is finally settled. Mr. Seifert said Montana Power and
its employees got along "like family" in the early days of the
company.
"It's unfortunate it ended like it did," Mr. Seifert said.
Under the settlement agreement, 40 percent of the settlement went
to attorney fees. This leaves $510,000 for the plaintiff's
attorneys and $687,443 to be disbursed among the 141 clients. The
rest of the settlement went to cover other trial-related costs.
The distribution of the settlement money will vary among the
former employees. The amount was determined by how much workers'
compensation was due the employee and the amount of interest that
had accumulated.
The lawsuit claimed the now defunct utility neglected to attempt
to pay its workers' compensation benefits when liability was
reasonably clear going back to 1977.
MUELLER SERVICES: Judge Tosses Class Action Over Premium Hike
-------------------------------------------------------------
Kathryn Brenzel, writing for Law360, reports that a Florida
federal judge on April 19 shot down a proposed class action
accusing Mueller Services Inc. of raising premiums through faulty
wind mitigation inspections, finding that homeowner plaintiffs'
parameters for class size were too broad and failed to prove that
the class shared common injuries under the alleged unfair
insurance hikes. U.S. District Judge Donald Middlebrooks declined
to certify a class of more than 89,000 customers, finding that
plaintiffs failed to present enough evidence to show that Mueller
tricked them into paying higher premiums.
NATIONAL GYPSUM: Drywall Price-Fixing Suit Goes to E.D. Pa. Court
-----------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reports that
another drywall price-fixing antitrust complaint has surfaced at
the Eastern District of Pennsylvania, this one transferred from
the federal court in western North Carolina.
The United States Judicial Panel on Multidistrict Litigation on
April 29 transferred a case initiated by New York-based Ashford
Gypsum Services Inc., which is suing on behalf of itself and
others similarly situated, to the federal courthouse in
Philadelphia, where U.S. District Judge Michael M. Baylson is
overseeing pretrial proceedings in an MDL docket containing
consolidated cases that allege gypsum board manufacturers
conspired, from at least 2008 to the present, to fix, raise,
maintain and stabilize the price of drywall sold in the country.
There are a number of defendants listed in the lawsuit, which
include, but aren't limited to, National Gypsum Co., LaFarge North
America Inc., American Gypsum Co., Georgia-Pacific LLC, USG Corp.
and Certainteed Corp.
The latest lawsuit, which contains near identical claims to those
complaints that have come before it, alleges that the drywall
price-fixing conspiracy is an outgrowth of what it calls the
largest housing crash in U.S. history back in late 2007.
"The decline in demand for housing during real estate downturn
produced a corresponding decline in demand for drywall, resulting
in tremendous overcapacity," the suit reads. "The decline in
demand translated to lost profits and the threat of further lost
profits to Defendants. In the face of this decreased demand,
Defendants attempted to, and actually did, increase prices --
something that they would not, nor could not, have done in a
competitive market."
The lawsuit accuses the defendant companies of defying the "laws
of economics, by increasing prices and threatening to continue to
increase prices.
"Absent the alleged conspiracy, this could not, and would not,
have happened," the complaint reads. "Drywall prices would have
languished with housing prices."
The lawsuit says that the defendants reached what it terms illegal
agreements to increase prices and restrain trade during trade
association meetings and other industry functions. Because the
plaintiffs had no alternatives available to them, the suit claims,
the direct purchaser plaintiff class paid, and continues to pay,
the "supra-competitive high prices to Defendants, who reaped, and
continue to reap, artificially high profits." The suit says that
drywall, also known as gypsum board and sheetrock, possesses many
of the characteristics of a commodity product, and that drywall
produced by one defendant doesn't differ significantly in quality,
appearance or use from that produced by another defendant.
Coinciding with the alleged conspiracy, the complaint states, the
defendants also engaged in a "drastic departure" from prior
industry practice in which customers were able to lock in drywall
prices for the duration of a construction project, a process
referred to as "job quotes."
"The primary effect of Defendants' agreement to eliminate job
quotes was to increase the price of drywall," the suit states.
The complaint accuses the defendants of engaging in fraudulent
concealment, and it also alleges that the drywall manufacturers
violated the Sherman and Clayton Antitrust Acts. The plaintiffs
seek monetary damages as well as injunctive relief against each of
the defendants.
The latest lawsuit was filed by North Carolina attorneys Larry S.
McDevitt and David M. Wilkerson, of The Van Winkle Law Firm, and
Minnesota lawyers David M. Cialkowski, Anne T. Regan and Brian C.
Gudmundson, of Zimmerman Reed LLP.
The federal case number is 2:13-cv-02295-MMB.
NEW YORK: NYPD Stop-and-Frisk Trial Reveals Racist Policing
-----------------------------------------------------------
The Daily Chronic reports that the city of New York is in the
midst of a landmark class-action lawsuit. The suit, Floyd v. the
City of New York, alleges that the NYPD has routinely violated the
Constitution by stopping and searching black and Latino New
Yorkers based on their skin color.
Since Michael Bloomberg became mayor of New York City in 2002,
stop-and-frisk increased by 600%, from 100,000 New Yorkers
targeted to almost 685,000 in 2011. Nearly 90% of those stopped
are black or Latino, and police are more likely to use force while
stopping New Yorkers of color.
Grassroots community groups and national civil rights
organizations have claimed for years that the NYPD's aggressive
tactics have inflicted too high a price on the "high-crime" areas
affected. But the trial, expected to run well into May, has
already presented some unbelievable revelations of police
misconduct and abuse, with high-profile witnesses, including high-
ranking NYPD officers, delivering gut-wrenching and shocking
testimony. Here are five revelations from the trial.
1. Police are forced by their superiors to make up (illegal)
quotas, encouraged to make bogus stops.
NYPD whistleblowers Pedro Serrano and Adhyl Polanco put their
careers on the line when they secretly recorded supervisors
demanding officers conduct a set amount of stops (five), summonses
(20), and arrests (one) per month. Quotas for NYPD activity are
illegal under New York labor law, but the city maintains that
"performance standards" or "goals" that do not include punishments
for officers who fail to meet them are perfectly legal. According
to Messrs. Polanco and Serrano, "performance standard" is just a
euphemism for a quota forcing officers to meet numbers. Sometimes
this requires them to break the law.
"We were handcuffing kids for no reason," Mr. Polanco testified
about the 41st Precinct in the Bronx. He said that supervisors
questioning quantity "will never question the quality." "They just
want to make sure we have them. How we got them, they don't
really care about," said Mr. Polanco.
In one of Mr. Polanco's recordings, a supervisor says, "The goal
is at least one arrest per month and 20 summons," and an officer
who fails to meet the quota may become a "Pizza Hut delivery man."
"Things are not going to get any better. It is going to get a lot
worse," the supervisor says about numbers.
Mr. Polanco explained that superiors retaliated against officers
who failed to meet or complained about quotas.
"They said, if we were willing to keep working with our partners,
we better come up with the numbers; that if we want to ask for
days off, we better come up with the numbers; that if we wanted
overtime, the chiefs control the overtime, and that if we don't do
our numbers, we are not going to get it. We were told that it was
non-negotiable, that they are going to force us to do it if we
didn't do it."
"They can make your life very miserable," he said.
2. NYPD cop admits to setting quotas.
Deputy Chief Michael Marino testified that when he became
Commanding Officer of the 75th Precinct in 2002, he set
"performance goals" or "standards" of 10 summonses and one arrest
per month. When the judge asked, "So was there a performance goal
of 10 summonses and one arrest?" Mr. Marino responded, "As per an
administrative guide that was present at the time, I set the
standards as was mandated to me by the police department, yes."
Mr. Marino testified that upon entering the 75th Precinct, he
learned that, "Surprisingly enough, the 400 or so officers
assigned to patrol all saw exactly five summonses every month, no
more, no less," adding that "It told me that they had set their
own quota."
Mr. Marino testified that he did an analysis of crime conditions
in the area and then, "I asked them to increase their summons
production from five to 10. I asked them to try to make two good
stops a month and to attempt to make one arrest a month."
Still, he denied ever punishing officers solely for failing to
meet his numbers.
3. Spinning evidence.
In 2007, the NYPD's Office of Management Analysis and Planning
(OMAP) commissioned a study by the RAND Corporation to determine
whether the department's stop-and-frisk tactic was driven by
racial bias.
Given that close to 90% of police encounters involved non-whites,
the report asked, "Do these statistics point to racial bias in
police officers' decisions to stop particular pedestrians? Do they
indicate that officers are particularly intrusive when stopping
nonwhites?"
In a summary of the report's findings, RAND found, "small racial
differences in these rates" based on which they made
"communication, recordkeeping, and training recommendations to the
NYPD for improving police-pedestrian interactions."
That was the final report. But testimony at Thursday's stop-and-
frisk trial suggests that the NYPD pressured the reports' authors
to soften some of their original language. The project's
coordinator, Terry Riley, testified that in their contract the
RAND Corporation agreed to take the NYPD's concerns "into
consideration." The NYPD did indeed voice concerns about early
drafts of the report, which plaintiffs say led to several
alterations to the final product.
In the first draft, the report's authors wrote of "disturbing
evidence" that there was unequal treatment across race groups.
After the NYPD objected to the language, that section was
rewritten to say that there was "some evidence" of this. In
another version of the report, they originally asked whether every
stop that uncovered wrongdoing was worth stopping nine "innocent
pedestrians." The department apparently found the language
offensive, and it was changed to "suspects who committed no
crime."
Darius Charney from the Center for Constitutional Rights, an
attorney representing the plaintiffs, claims that the evidence
they presented of emails complaining about these aspects of the
report, and susbsequent changes, show that the NYPD "clearly had a
hand in spinning the results" even if they didn't doctor the data.
4. Searching groins and socks . . . for guns?
Stop-and-frisk is supposed to get guns off the streets. Yet
officers allegedly search areas where a gun cannot be reasonably
hidden, and these searches are often the most invasive and
humiliating.
There have been widespread allegations that NYPD frisks and
searches go too far. As recently reported, people have complained
that police search their genital areas and buttocks for drugs,
even though police are only allowed to search an area where they
have observed a bulge and need to confirm it's not a weapon.
A plaintiff in the case, 24-year-old Nicholas Peart, testified
that, on two separate stops, officers searched him
inappropriately. One day police demanded he and some relatives
get down on the ground. He broke down when he described what
happened next.
"They patted over my basketball shorts and I was touched," he
said, adding that they felt his groin.
In April 2011 Mr. Peart was on his way to pick up milk for his
siblings. A police officer handcuffed him, removed his shoes and
felt his socks, asking "if I had weed on me," he said.
Queens College sociologist Harry Levine, an expert on stop-and-
frisk, has linked the NYPD's astonishing marijuana arrest rate to
its use of stop-and-frisk. The NYPD arrests about 50,000 people
annually for marijuana, the vast majority of them black or Latino
and in the same neighborhoods where stop-and-frisk is prevalent.
It's telling that in 2012, after controversy surrounding stop-and-
frisk heated up, both the policing tactic and marijuana arrests
dropped by the same amount -- 22% percent.
5) NY Senator: NYPD Commissioner told me stop-and-frisk is a
fear tactic.
New York Senator Eric Adams (D-20th District) testified on April 1
that at a July 2010 meeting with Governor Andrew Cuomo about a
bill (which he co-sponsored) to ban a database of persons stopped
but not charged, he raised his concern about the
"disproportionate" number of young black and Latino men stopped by
police, prompting the Commissioner to say the tactic is crucial
for controversial reasons. "[Commissioner Kelly] stated that he
targeted or focused on that group because he wanted to instill
fear in them, every time they leave their home, they could be
stopped by the police," Mr. Adams testified.
"I told him that I believe it was illegal and that that was not
what stop-and-frisk was supposed to be used for," he testified,
adding that Kelly responded by asking, "How else are we going to
get rid of guns?"
Mr. Adams later told reporters he considered Commissioner Kelly's
statement evidence that, "It was not the people on the ground,"
provoking illegal stops but "a policy being blessed from the top
down."
Other Cities Also Battling Racial Profiling
Hillary Crosley, writing for The Root, reports that stop and frisk
is a controversial term, mostly associated with New York City, but
New Yorkers aren't the only ones battling racial profiling by law
enforcement.
"Mayor Bloomberg and Commissioner Kelly have championed the stop-
and-frisk model outside of New York," Ezekiel Edwards, head of the
national ACLU's criminal-law reform project tells The Root.
"Other cities have asked the New York Police Department to train
them, and it's certainly caught on in other places. Also, cities
like Los Angeles and New York have had police personnel swaps,
spreading the practice."
The New York Police Department is currently fighting a federal
class-action lawsuit by the NYCLU alleging that the practice of
stopping a person who an officer merely suspects has committed a
crime, is committing a crime or is about to commit one is
unconstitutional. Police Commissioner Ray Kelly is under the
microscope as a judge reviews statistics showing that of the
530,000 people stopped and searched in 2012, only 10 percent were
white, and 89 percent of the stops did not lead to an arrest or
even a citation. Recently, Kelly defended himself and the police
procedure at Rev. Al Sharpton's 15th Annual National Action
Network convention in New York, calling it "lifesaving" and
"constitutional."
Meanwhile, stop-and-frisk procedures are showing up under
different names around the nation. Here's how they play out in
four major cities with significant black populations.
New Orleans
While the Big Easy is known for strong drinks and delicious food,
the New Orleans police are also known for disproportionately
arresting African-American youth. In 2011, 704 black teens were
arrested by NOPD, compared with 47 whites. Recently, New Orleans
Police Superintendent Ronal Serpas was taken to task for the large
number of minorities arrested under the city's curfew law, stating
that minors under 16 years old and unaccompanied by a guardian
must be home by 8:00 p.m. Sunday through Thursday during the
school year and 9:00 p.m. during the summer. Leeway comes on
Friday and Saturday, but minors are still required to be home by
11:00 p.m. unless they are in the French Quarter, where the curfew
remains at 8 p.m.
While exceptions are made for kids on errands or commuting from
work, statistics from city officials, as reported by the Times-
Picayune, show that 93 percent of youths detained under the city's
curfew center were African American. The 2010 census shows that
blacks make up 60.2 percent of the city's population. When faced
with the numbers, Serpas defended the curfew, telling press that
under curfew, children are "less likely to get hurt or hurt
someone else."
Philadelphia
In Philadelphia, litigation by the ACLU helped to curb stop-and-
frisk-style policing, says Mr. Edwards. In 1996, the NAACP
settled a suit against the Philadelphia Police Department (pdf)
for racial profiling, resulting in adjusted officer training and
the vacation of a number of drug-related sentences. In 2010, the
ACLU followed with their own class-action lawsuit, resulting in a
settlement, as well as a court-appointed monitor who regulated the
police's stops and searches in 2011.
While stop and frisks overall have declined in the City of
Brotherly Love, Mr. Edwards notes that "in 2012, 47 percent of the
frisks conducted were without reasonable suspicion, 76 percent of
the stops were minorities and 85 percent of the frisks were of
minorities."
Baltimore
Baltimore's residents are affected by racial profiling in motorist
stops, which is part of a statewide issue. In January, the
state's high court ruled that state police must open their records
to the Maryland NAACP so the organization could monitor law-
enforcement practices and racial profiling complaints from
motorists.
But this is only the latest in the Maryland State Police
Department's struggle with complaints about profiling procedures,
which began in the 1990s, including 1993's ACLU class-action
lawsuit against MSP on behalf of Robert L. Wilkins, an African-
American attorney who was stopped, detained and searched.
Oakland
In Oakland, Calif., some are asking if stop and frisk is on the
way, after city council members recently approved hiring stop-and-
frisk champion William Bratton to consult their police department
on a public-safety plan. Crime has risen overall in the Northern
California city by 17 percent, according to city statistics (pdf),
and some say the bump is due to slim local police forces.
Mr. Bratton, a retired police chief of Los Angeles and New York
City, told CBS News earlier this year that "when [a cop] stops
somebody for a traffic violation . . . he has a reasonable
suspicion that [person] committed a crime or is about to commit a
crime.
"Any police department in America that tries to function without
some form of stop and frisk . . . is doomed to failure," he added.
From 1994 to 1996, Mr. Bratton was the New York police
commissioner, and he later became chief of the Los Angeles Police
Department from 2002 to 2009. While he's credited with reducing
crime in both cities, he's also known for implementing the racial-
profiling practice that has gotten current New York Commissioner
Kelly in so much trouble. Mr. Bratton is also the co-creator of
Compstat, the crime-mapping system that uses data to direct police
to high-crime areas.
Though statistic-driven policing techniques like Compstat might be
effective in identifying problem areas in some cities, the
overwhelmingly skewed numbers show this tactic falls flat in
places like Philadelphia, New Orleans and New York, where
minorities are picked up by police often and unnecessarily.
"Police don't just stop any white guy walking to work, but when
they are stopping white guys, maybe they're acting on suspicious
tips or acting on suspicious behavior," Mr. Edwards says. "I
think that increases the chances that something is up. When it
comes to people of color, it's often race-based."
As some American cities face rising violence, time will tell how
local authorities will combat the problems in safe, respectful
ways. For some in the policing community, though, the answer is
clear.
"For any city to say they don't do stop and frisk . . . they don't
know what the hell they're talking about," Mr. Bratton told CBS in
January. "Every police department in America does it. The
challenge is to do it constitutionally within the law . . .
compassionately; you're dealing with human beings."
RASER TECHNOLOGIES: Court Dismisses Securities Suit vs. Ex-D&Os
---------------------------------------------------------------
Delaware District Judge Richard D. Andrews granted a motion to
dismiss the class action lawsuit captioned MARTIN BARTESCH, FRED
BRYANT And JOSEPH P. CRAIG, Individually And On Behalf Of All
Others Similarly Situated, Plaintiffs, v. BRENT M. COOK, MARTIN F.
PETERSEN, JOHN T. PERRY, RICHARD D. CLAYTON, NICHOLAS GOODMAN,
KRAIG T. HIGGINSON, REYNOLD ROEDER, BARRY MARKOWITZ, ALAN G.
PERRITON, JAMES A. HERICKHOFF, and SCOTT E. DOUGHMAN, Defendants,
Civil Action No. 11-1173-RGA (D. Del.).
Mr. Bartesch filed this putative class action alleging violations
of the Securities Exchange Act of 1934 on November 29, 2011. On
March 1, 2012, the Court issued an order appointing Mr. Bartesch,
Fred Bryant and Joseph Craig as co-lead plaintiffs. On April 30,
2012, plaintiffs filed an amended class action complaint and the
Defendants filed a motion to dismiss on July 13, 2012.
The Defendants are former officers and directors of Raser
Technologies Inc., an energy company focused on geothermal power
development and technology l licensing, which filed for Chapter 11
protection on April 29, 2011. The Plaintiffs are three former
Raser shareholders who are suing on behalf of a putative class of
purchasers of Raser's common stock between May 11, 2009 and April
29, 2011. The Plaintiffs allege that Raser's SEC filings were
false and misleading in violation of Section 10(b) of the
Securities Exchange Act of 1934.
The Plaintiffs contend that Raser's SEC filings were false and
misleading because the Defendants failed to disclose that Raser
did not "conduct any traditional and adequate early well field
development activities" and, therefore, did not discover that "the
temperature of the water from the Thermo No. 1 production wells
was too low to operate the plant at maximum capacity," and that
Raser's "rapid-deployment design and construction system was a
failure." The Plaintiffs argue that the Defendants should have
described their development strategy as a "failure" and based on
"little more than intuition and stretched imagination."
"The law, however, does not require companies to frame their
disclosures in such a pejorative manner," ruled Judge Andrews.
The Court concluded that the Plaintiffs failed to allege any
fraudulent statement or omission when considering the "total mix
of information" available to investors.
Plaintiffs' Section 10(b) claim also rests on the theory that the
final write-down taken by Raser, which reduced the plant's value
to $14.6 million, should have been recorded at the beginning of
the class period, just a few months after the plant began
operations.
However, Judge Andrews continued, the Plaintiffs allege nothing in
support of this claim. The Court concluded that the Plaintiffs
have failed to state a Section 10(b) claim for statements
concerning Raser's accounting for Thermo No. 1.
The Court further held that the Plaintiffs fail to adequately
plead the requisite element of scienter and that the amended
complaint's scienter allegations are generalized and conclusory.
The Court believes any amendment is likely futile, but cannot
completely rule out that the Plaintiffs could amend the amended
complaint to overcome the numerous and substantial shortcomings
the Court has identified in the amended complaint, said Judge
Andrews.
Accordingly, the Court gave the Plaintiffs two weeks from the date
of the Opinion to file a motion for leave to amend the amended
complaint. Should the plaintiffs not file such a motion, the
Court will enter an order dismissing with prejudice the amended
complaint, Judge Andrews said.
Timothy J. MacFall, Esq. -- tjm@rigrodskylong.com -- at RIGRODSKY
& LONG, P.A., in Garden City, N.Y. and Brian D. Long, Esq. --
bdl@rigrodskylong.com -- at RIGRODSKY & LONG, P.A., in Wilmington,
DE, represented the Plaintiffs.
Kelly M. Hnatt, Esq. -- khnatt@willkie.com -- at WILLKIE FARR &
GALLAGHER LLP, in New York, N.Y. and S. Mark Hurd, Esq. --
shurd@mnat.com -- at MORRIS NICHOLS ARSHT & TUNNELL LLP, in
Wilmington, DE, represented the Defendants.
A copy of the District Court's April 23, 2013 Opinion is available
at http://is.gd/khzLhbfrom Leagle.com.
About Raser Technologies
Raser Technologies Inc. (NYSE: RZ) is a renewable energy company
focusing on geothermal power development. The Company has one
operating plant in Utah and another eight early and development
stage projects in Utah, New Mexico, Nevada and Oregon. The
Company invested $120 million in Thermo No. 1, its sole operating
plant, which is near Beaver, Utah, and has a power generation
capacity of 10 megawatts. The City of Anaheim, California, agreed
in 2008 to buy the generated electricity for 20 years.
Provo, Utah-based Raser Technologies, also known as Wasatch Web
Advisors, Inc., filed for Chapter 11 protection (Bankr. D. Del.
Case No. 11-11315) on April 29, 2011. Other affiliates filed for
separate Chapter 11 protection on April 29, 2011, (Bankr. D. Del.
Case Nos. 11-11319 to 11-11350). Peter S. Partee, Sr., Esq., and
Richard P. Norton, Esq., at Hunton & Williams LLP, represent the
Debtors in their restructuring efforts. The Debtors' local
counsel is Bayard, P.A. Sichenzia Ross Friedman Ference LLP
serves as the Debtors' corporate counsel. The Debtors' financial
advisor is Canaccord Genuity.
A three-member official committee of unsecured creditors was
formed in the Chapter 11 case. Foley & Lardner LLP represents the
Committee. The Committee also tapped Womble Carlyle Sandridge &
Rice, PLLC, as co-counsel, BDO Consulting, a division of BDO USA,
LLP, as its financial advisor and accountant; and BDO Capital
Advisors, LLC its investment banker.
The Company reported a net loss of $101.80 million on
$4.25 million of revenue for the fiscal year ended Dec. 31, 2010,
compared with a net loss of $20.90 million on $2.19 million of
revenue during the prior year.
The Company's balance sheet at Dec. 31, 2010, showed
$41.84 million in total assets and $107.78 million in total
liabilities.
Raser Technologies and its debtor affiliates emerged from
bankruptcy protection when their Third Amended Plan of
Reorganization became effective Sept. 9, 2011.
SONAR CAPITAL: May 22 Settlement Fairness Hearing Set
-----------------------------------------------------
Brower Piven, A Professional Corporation and Shapiro Haber & Urmy
LLP on April 22 issued a statement regarding the Sonar Capital
Management Securities Class Action.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SIDNEY GORDON and JEFFREY TAUBER, Plaintiffs, v. SONAR CAPITAL
MANAGEMENT LLC, et al., Defendants. DOCKET NO. 1:11-CV-09665 (JSR)
SUMMARY NOTICE OF PROPOSED PARTIAL SETTLEMENT OF CLASS ACTION
To: All persons and entities who sold shares of common stock of
Sigma Designs, Inc. between July 13, 2007 and November 28, 2007,
both dates inclusive.
This Summary Notice is given pursuant to Rule 23 of the Federal
Rules of Civil Procedure and an Order of the United States
District Court for the Southern District of New York, dated March
8, 2013. The purpose of this Summary Notice is to inform you of
the proposed partial settlement of the above-entitled class action
against Defendant Noah Freeman.
A Settlement Hearing will be held before the Honorable Jed S.
Rakoff, United States District Judge, at the Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street, New York, NY
10007, at 4:00 p.m. on May 22, 2013 in order: (1) to determine
whether the Court should grant certification to the Settlement
Class pursuant to Fed. R. Civ. P. 23(a) and (b)(3); (2) to
determine whether the Settlement consisting of $550,000 in cash,
together with Defendant Freeman's agreement to cooperate in the
continuing litigation against the non-settling Defendants (Sonar
Capital Management, LLC Neil Druker, Primary Global Research, LLC,
The John Doe Hedge Fund(s), and John and Jane Does 1 Through 100),
should be approved as fair, reasonable, and adequate to the
Settlement Class and the proposed Judgment entered; (3) to
determine whether the proposed Plan of Allocation for the proceeds
of the partial Settlement is fair and reasonable, and should be
approved by the Court; (4) to determine whether the applications
by Plaintiffs' Counsel for an award of attorneys' fees and
expenses equal to up to one-third of the Settlement Amount should
be approved; and (5) to rule upon such other matters as the Court
may deem appropriate.
If you sold shares of Sigma Designs, Inc. common stock between
July 13, 2007 and November 28, 2007 (both dates inclusive), and
are not otherwise excluded from the Settlement Class, you are a
Settlement Class Member. Settlement Class Members will be bound
by the final judgment of the Court. If you are a Settlement Class
Member, you do not need to submit a Proof of Claim at this time.
This is only a partial Settlement with one of the Defendants in
this Action. At this time, no funds are available to Class
Members. If funds become available, you will be notified as to
how the claim process will work.
If you do not wish to be included in the Settlement Class and you
do not wish to participate in the proposed Settlement, you may
request to be excluded, in the manner set forth in the full Notice
of Proposed Partial Settlement of Class Action, no later than May
7, 2013. If you do wish to be included in the Settlement Class
and do not timely and validly request exclusion from the
Settlement Class, but you wish to object to the Settlement, the
Plan of Allocation, and/or Plaintiffs' Counsel's application for
an award of attorneys' fees and/or reimbursement of expenses, you
may submit a written objection. You also may, but are not
required to, appear at the Settlement Hearing. You must file and
serve your written objection, in the manner specifically set forth
in the Notice, no later than May 7, 2013. The procedures that
MUST be followed for Settlement Class Members to request exclusion
from the Settlement Class or to object to the Settlement, the Plan
of Allocationand/or application for attorneys' fees and/or
reimbursement of expenses are set forth in full in the Notice.
You are urged to obtain a copy of the Notice, which includes,
among other things, a description of: (1) the litigation in the
Action prior to the Settlement; (2) the terms of the proposed
partial Settlement; (3) the benefits of the partial Settlement to
the Settlement Class; (4) the Plan of Allocation for the proceeds
of the partial Settlement; (5) the rights of Settlement Class
Members; (6) the release of claims against Defendant Freeman and
his Related Parties; (7) the application for an award of
attorneys' fees and expenses; and (8) additional details
concerning the Settlement Hearing, excluding oneself from the
Settlement Class and/or objecting to the partial Settlement, the
Plan of Allocation, and/or the application for attorneys' fees
and/or reimbursement of expenses.
PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
For additional information, you may contact the Claims
Administrator at the following address:
Sonar Capital Management Securities Class Action
Claims Administrator
c/o GCG
PO Box 9349
Dublin, OH 43017-4249
1-800-231-1815
This is only a summary notice. The full notice may be accessed
at: http://www.gcginc.com
Dated: April 22, 2013.
Jed S. Rakoff
UNITED STATES DISTRICT JUDGE
CONTACT: Brian C. Kerr,
Brower Piven, A Professional Corporation
Telephone: (212) 501-9000
Web site: http://www.gcginc.com
SONY CANADA: Settles Suit Over Hacking of PSN Computer Systems
--------------------------------------------------------------
Sony of Canada disclosed that a settlement has been reached with
the Sony Entities in a class action lawsuit about the illegal and
unauthorized attacks in April of 2011 on the computer network
systems used to provide the PlayStation Network ("PSN"), Qriocity,
and Sony Online Entertainment ("SOE") services (the "Intrusions").
The settlement provides benefits to eligible Canadian consumers
who file a valid claim.
The Ontario Superior Court of Justice will have a hearing to
decide whether to give final approval to the settlement, so that
the benefits can be issued. The included consumers have legal
rights and options, such as excluding themselves from the
settlement, or alternatively, objecting to and/or submitting a
claim for benefits from the settlement.
The Sony Entities deny any claims of wrongdoing in this case, and
the settlement does not mean that the Sony Entities violated any
laws or did anything wrong.
What is the settlement about?
The lawsuit challenges Defendants' protection of the computer
network systems used to provide the Sony PlayStation Network, the
Qriocity service, and the Sony Online Entertainment ("SOE")
services, which were attacked by criminal intruders in April 2011.
Plaintiffs claim that Defendants failed to adequately safeguard
the Network Platforms and, as a result, unauthorized people gained
access to certain accountholder information. Plaintiffs also
claim that the accountholders were legally injured by the
unavailability of the PSN, the Qriocity Service, and the SOE
services while those services were temporarily offline following
discovery of the Intrusions.
Defendants deny all of Plaintiffs' claims and say that they did
nothing wrong.
Who is eligible to receive benefits from the Settlement?
The Court decided that the Settlement Class includes anyone
residing in Canada who had a PSN account or sub-account, a
Qriocity account, or an SOE account at any time prior to May 15,
2011.
The Sony Entities and their officers and directors are not
included in the Settlement Class.
What Account Benefits are available?
A. Were you a PlayStation Network Accountholder prior to May 15,
2011?
If so, there are various types of benefits you might be eligible
for:
1. Unused Wallet Balance Payment. If you had logins in any of
your PSN accounts (including any linked accounts) any time from
January 1, 2011 through May 14, 2011, but after that (through
January 24, 2013) you did not have any logins in any of them (and
did not open any new accounts) because of the Intrusions, you can
get a payment equal to any paid virtual currency in your account
wallet if that balance is at least U.S. $2.
Please note, this benefit is not available to PSN accountholders
whose only PSN account is a sub-account, since sub-accounts do not
have a wallet separate from the corresponding master account.
Even if you are eligible for this benefit, you are not required to
select it. If you wish, you can instead choose to activate any of
your PSN accounts and submit a claim for any other PSN
accountholder benefit.
When you submit a claim for this benefit, your existing PSN
accounts (including any linked accounts) will be locked so that
any wallet balances can be calculated, and, upon payment, all such
wallet balances will be extinguished and your existing accounts
(including any linked accounts) will be closed. If you do not
submit a claim or your claim is invalid, the credit balance in
your individual account wallet will be available to you for future
use.
2. Account Benefits. If you were a PlayStation Network
Accountholder prior to May 15, 2011 and you are continuing as an
active PlayStation Network Accountholder, the benefits you may be
eligible for are as follows:
a. If you participated in the PSN "Welcome Back" program that
followed the restoration of PSN service on May 15, 2011, you can
get one of these three benefits:
1. either a free game for your PS3 or PSP
2. or 3 free PS3 themes,
3. or a 50% discount on PlayStation Plus online services for 3
months (if you are not already a PlayStation Plus subscriber)
If you did not participate in the PSN "Welcome Back" program
following the restoration of PSN service on May 15, 2011, you can
submit a claim for two of the benefits.
These PSN benefits are limited to three per household.
If the settlement is approved and becomes effective, valid claims
for these benefits will be honored on a first-come, first-served
basis, starting from the date of notice. These benefits will be
available, calculated at U.S. $9 per valid claim for one benefit
(or U.S. $18 for valid claims for two benefits) until the total
available amounts have been reached. Later claimants can get a 50%
discount on PlayStation Plus online services for one month
(whether or not the claimant is already a PlayStation Plus
subscriber).
b. In addition, if you paid other companies for certain media
services (specifically, Netflix or Hulu Plus) that you could not
access through the PSN while the PSN was temporarily offline from
April 20 through May 14, 2011, you can get 3 free PS3 themes. Or,
you can get a 50% discount on PlayStation Plus online services for
3 months. This option is available only if you are not already a
PlayStation Plus subscriber. You must provide documentary evidence
in the form of credit card or other payment receipts or statements
that you paid Netflix or Hulu Plus for media services during the
PSN Offline Period that you could have accessed through the PSN.
You are not eligible for this benefit if you received a credit or
reimbursement offsetting your payment and you must also certify
that you did not access those media services during the PSN
Offline Period through some other means, such as by streaming
media through internet-connected computers or ordering it on disc
through the mail. Up to U.S. $100,000 in benefits for such claims
will be available, calculated at a value of U.S. $9 per valid
claim.
B. Were you a Sony Online Entertainment Accountholder prior to May
15, 2011?
If so, there are various types of benefits you might be eligible
for:
1. Unused Wallet Balance Payment. If you had logins in any of
your SOE accounts at any time from January 1, 2011 through May 14,
2011, but after that through January 24, 2013 you did not have any
logins in any of them (and did not open any new accounts) because
of the Intrusions, you can get a payment equal to any balance of
paid virtual currency in your account wallet if that balance is at
least U.S. $2. If you do not submit a claim or your claim is
invalid, the credit balance in your individual account wallet will
be available to you for future use.
Even if you are eligible for this benefit, you are not required to
select this option. If you wish, you can instead choose to
activate any of your SOE accounts and submit a claim for the other
SOE accountholder benefits.
When you submit a claim for this benefit, your existing SOE
accounts will be locked so that any wallet balances can be
calculated, and, upon payment, all such wallet balances will be
extinguished and your existing accounts will be closed.
2. Account Benefit. If you were a Sony Online Entertainment
Accountholder prior to May 15, 2011 and you are continuing as an
active Sony Online Entertainment Accountholder, you can get a U.S.
$4.50 deposit of "Station Cash" into your SOE account (in other
words, 450 units of Station Cash), usable for SOE digital products
and services.
C. Were you a Qriocity Accountholder prior to May 15, 2011?
If so, the benefit you might be eligible for is as follows:
If you had a Qriocity account at the time of the April 2011
service outage, but you were not a PlayStation Network
Accountholder, you can get one free month of Music Unlimited, an
online music service that is a successor to Qriocity.
What do I have to do to obtain cash payments or benefits?
If you qualify for any of the benefits described in your notice
you must submit a Claim Form and required documentation by the
relevant deadline. You can get Claim Forms on this website on the
Claim Forms page, or a copy can be mailed to you.
There are different Claim Forms for benefits available to PSN
accountholders, to Qriocity accountholders, to SOE accountholders,
and to claimants eligible for reimbursement for identity theft
related charges. You can submit only one of each Claim Form.
Please read the instructions carefully, fill out the relevant
Claim Form(s), attach the required documentation and mail it
postmarked no later than the relevant deadline, to:
PSN-SOE Canada Settlement
P.O. Box #2080
Toronto, Ontario
M5T 0A4
Please note that benefits are available on a per person basis, not
a per account basis. For example, even if you had multiple PSN
accounts, you are eligible for only one set of PSN account
benefits. Similarly, if you had multiple Qriocity accounts, you
are eligible for only one set of Qriocity account benefits, and if
you had multiple SOE accounts, you are eligible for only one set
of SOE account benefits. However, if you had both a PSN account
and an SOE account, for example, you are eligible for both sets of
benefits.
What is the deadline for returning my Claim Form?
If you are submitting a claim for Account Benefits under the
settlement, the deadline for mailing in a claim is 60 days after
the settlement becomes final and effective, which will be posted
on the settlement website.
If you are submitting a claim for reimbursement of out of pocket
expenses due to actual identity theft, the deadline for mailing in
a reimbursement claim will depend on when the settlement becomes
final and effective, which will be posted on the settlement
website. For identity theft reimbursement claims based on actual
identity theft that you discover prior to the effective date of
the settlement, the deadline will be 90 days after the effective
date of the settlement. For identity theft reimbursement claims
based on actual identity theft that you discover after the
effective date of the settlement, the deadline will be 60 days
from the date you discover the identity theft, or May 15, 2014,
whichever is sooner.
When and where will the Court decide whether to approve the
Settlement?
June 10, 2013 at 10:00 a.m. at Ontario Superior Court of Justice.
At this hearing, the Court will consider whether the settlement is
fair, reasonable and adequate. If there are objections, the Court
will consider them. After the hearing, the Court will decide
whether to approve the settlement. It is not known how long that
decision will take.
Further details about the settlement in Maksimovic and Others v.
Sony of Canada and Others are available at the case's website --
http://www.psn-soe-canadasettlement.com/
The Court has appointed Bryan C. McPhadden, McPhadden Samac Tuovi
LLP of Toronto, Ontario; Stephen Osborne, Merchant Law Group LLP
of St. Catharines, Ontario; Careen Hannouche, Lauzon Belanger
Lesperance Inc. of Montreal, Quebec; and David Assor, Lex Group
Inc. of Montreal, Quebec as "Class Counsel" to represent Class
Members.
SPECTRUM PHARMACEUTICALS: Pomerantz Grossman Files Class Action
---------------------------------------------------------------
Pomerantz Grossman Hufford Dahlstrom & Gross LLP has filed a class
action lawsuit against Spectrum Pharmaceuticals, Inc. and certain
of its officers. The class action filed in United States District
Court, District Of Nevada, and docketed under 2:13-cv-00502, is on
behalf of a class consisting of all persons or entities who
purchased or otherwise acquired securities of Spectrum between
August 8, 2012 and March 12, 2013, both dates inclusive. This
class action seeks to recover damages against the Company and
certain of its officers and directors as a result of alleged
violations of the federal securities laws pursuant to Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder.
If you are a shareholder who purchased Spectrum securities during
the Class Period, you have until May 13, 2013 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at http://www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Spectrum is a biotechnology company with integrated commercial and
drug development operations with a focus on hematology and
oncology in the United States. Spectrum primarily markets two
oncology drugs, FUSILEV(R) (levoleucovorin) ("FUSILEV") and
ZEVALIN.
The Complaint alleges that throughout the Class Period, Defendants
made false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business, and
operations. Specifically, throughout the Class Period, defendants
violated the federal securities laws by disseminating false and
misleading statements to the investing public in connection with
Spectrum's oncology drug FUSILEV, a folate analog used for the
treatment of patients with advanced metastatic colorectal cancer,
and concealed the impact that the increased availability of a
competing generic drug (leucovorin) would have on sales of
FUSILEV. As a result of defendants' false statements, Spectrum's
stock traded at artificially inflated prices during the Class
Period, reaching a high of $13.05 per share on September 18, 2012.
On March 12, 2013, after the market closed, Spectrum issued a
press release providing its full-year revenue outlook. The
Company reported that sales of FUSILEV, the Company's highest
revenue-generating drug, would be dropping significantly due to
anticipated changes in ordering patterns for FUSILEV, due in part
to the recent stabilization of the folate analog market. The
Company reported sales would be approximately $10 to $15 million
for the first quarter of 2013, and approximately $80 to $90
million for the fiscal year 2013. Additionally, the Company
forecast full-year 2013 revenues in the range of $160 to $180
million, much lower than analysts' revenue expectations of $297.33
million for 2013.
On this news, Spectrum's stock plummeted $4.64 per share, to close
at $7.79 per share on March 13, 2013, a one-day decline of 37% on
volume of 22.5 million shares.
The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates
its practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. It has offices in New
York, Chicago, Florida, and San Diego.
CONTACT: Robert S. Willoughby
Pomerantz Grossman Hufford Dahlstrom & Gross LLP
ST-CHARLES BORROMEE: Settles Class Action for C$8.5 Million
-----------------------------------------------------------
Charlie Fidelman, writing for The Montreal Gazette, reports that
after years of litigation, a Montreal nursing home at the center
of several patient-abuse scandals has agreed to pay record damages
for negligence and abuse.
The C$8.5-million out-of-court settlement for an estimated 600
disabled residents and former residents ends a class-action suit
that highlighted systemic abuse at St-Charles Borromee Hospital, a
long-term-care institution that changed its name to CHSLD Centre-
ville de Montreal and is now part of Centre de sante et des
services sociaux (CSSS) Jeanne Mance.
"This is the highest ever compensation paid in Canada for a class-
action against a public health facility," said malpractice lawyer
Jean-Pierre Menard.
"It's an important day today for people who are extremely
vulnerable and who have no voice in the health system," he said.
"We hope this will be a warning to everyone in the health system
-- don't go to far or you will have to explain what you did."
Under the agreement, an estimated 600 people who were residents of
the facility between January 1995 and March 2006 will share $7
million in damages, roughly C$2,500 for every year spent there.
Heirs of victims who died before the suit was settled will be
eligible for one-third of the damages, with the balance of their
share being redistributed among the remaining claimants.
One million dollars will pay for administration and legal fees of
claims.
Another C$500,000 will be shared between two organizations: the
Gisele Allard Foundation, which aims to improve patient well-
being, and the Helene Rumak Foundation, which is dedicated to
patients' rights.
Mr. Menard was approached by health advocates Helene Rumak and
Johanne Ravenda in 1991. Ms. Rumak and Ms. Ravenda were appalled
by conditions at the facility and negligent treatment of many
patients, including Gisele Allard.
Ms. Allard was then a young woman with a Friedreich's ataxia, a
progressive illness that destroys muscle and nerve, who was
wasting away because of severe neglect and malnourishment.
A lawsuit was filed in 1998 in Ms. Allard's name on behalf of
about 300 patients. It alleged the hospital on Rene Levesque
Blvd. E. failed to fulfill patients' basic needs. Incidents
described in the suit included falls, burns, poor hygiene, deep
bed-sores, infections, overmedication, undernourishment and
patients who were left in their beds without activity, often in
soiled diapers.
The lawsuit was enlarged to include another 300 residents in 2003
after new allegations of abuse surfaced. Patients' relatives made
public secretly recorded audiotapes in which two orderlies could
be heard taunting Danielle, a 51-year-old patient left disabled
after a car accident. In the recording, the orderlies call her a
pig, refuse her requests for water, and tell her a man is
masturbating outside her window.
Leon Lafleur, who was director of the hospital at the time,
committed suicide in November 2003 after the recording surfaced.
A provincial investigation was launched and the facility was
placed under Quebec government trusteeship between December 2003
and July 2004. But abuse at the facility had been documented as
early as 1971. Claude Brunet, a paraplegic man living at the
hospital, sued unionized workers at St-Charles Borromee in a
class-action suit in 1978 after a series of work stoppages
deprived patients of services for days at a time.
"He won -- about $300 per patient -- and that was the legal
precedent for neglect," said patient advocate Paul Brunet, head of
the Quebec Patients Rights Committee that his brother established
in 1972.
"This (current) case sends a good message," Mr. Brunet said,
adding that there are other cases pending, including a class-
action suit against 87 chronic-care facilities that charged their
residents for laundry services.
Ms. Allard died in November 2009, long before the lawsuit was
settled, but health advocate Ravenda said her friend is surely
dancing for joy.
"This is not a case of 'justice delayed, justice denied,'"
Ms. Ravenda said of legal obstacles that dragged the suit out for
years. In Ms. Allard's last years at the facility, living
conditions improved sharply for patients, she said.
"There are still problems everywhere. But at least now we are
saying that there are problems," Ms. Ravenda said.
Michel Allard said his sister suffered greatly. "She had the will
to live because somebody was taking care of her," Mr. Allard said
of Ms. Ravenda and Ms. Rumak. "I'm just happy for that. If it
wasn't for them, we wouldn't be here today."
Officials at CHSLD Centre-Ville de Montreal said on April 19 they
were pleased with the agreement and have taken steps to make sure
patients are at the heart of their caregiving.
The next step in the settlement process is set for May 28 when the
agreement goes to Quebec Superior Court for approval.
Residents or their heirs can apply to be part of the suit by
consulting menardmartinavocats.com
TANGOE INC: Facing Securities Class Action
------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm,
reminds Tangoe, Inc. (NasdaqGS: TNGO) investors of the April 30,
2013 deadline to seek the role of lead plaintiff in a federal
securities class action lawsuit filed against the Company and
certain executives.
A complaint has been filed on behalf of all persons who purchased
or otherwise acquired Tangoe securities between December 20, 2011
and September 5, 2012. The complaint focuses on whether the
Company and its executives violated federal securities laws by
failing to disclose that: (1) Tangoe was overstating its organic
growth by underreporting the percentage of revenue derived from
recent acquisitions; and (2) the Company was failing to increase
its customers as its deferred implementation fees failed to grow.
On August 28, 2012, a report was published by thestreetsweeper.org
that described the Company as having a "risky acquisition-driven
growth strategy." On this news, Tangoe shares declined $3.39 per
share, or nearly 17%, to close at $16.70 per share on August 28,
2012.
On September 6, 2012, Copperfield Research published a report
concluding that the Company had materially misrepresented its
organic growth rate. On this news, Tangoe shares declined $1.03
per share, or 6%, on September 6, 2012. The stock continued to
decline an additional $1.68 per share or 10.5%, to close at $14.29
per share on September 7, 2012.
Take Action
If you invested in Tangoe stock or options between December 20,
2011 and September 5, 2012 and would like to discuss your legal
rights, visit www.faruqilaw.com/TNGO. You can also contact us by
calling Richard Gonnello or Francis McConville toll free at 877-
247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com or fmcconville@faruqilaw.com Faruqi &
Faruqi, LLP also encourages anyone with information regarding
Tangoe's conduct to contact the firm, including whistleblowers,
former employees, shareholders and others.
The firm may be reached at:
FARUQI & FARUQI, LLP
369 Lexington Avenue
10th Floor New York, NY 10017
Attn: Richard Gonnello, Esq.
Francis McConville, Esq.
Telephone: (877) 247-4292
(212) 983-9330
E-mail: rgonnello@faruqilaw.com
fmcconville@faruqilaw.com
THELADDERS.COM: Faces Class Action Over Deceptive Practices
-----------------------------------------------------------
Brenda Craig, writing for LawyersandSettlements.com, reports that
documents in the class-action suit filed against TheLadders.com
couldn't be clearer. "From its inception until September 2011,"
the complaint reads, "The Ladders job website scammed its
customers into paying for its job board service by misrepresenting
itself to be a 'premium job site.'"
Ladders Job Site a "Scam," Say SubscribersFor a fee,
TheLadders.com promises to provide subscribers with lists of
employers looking to fill six-figure jobs. The site guarantees
that the jobs are "hand-screened" and that the companies listed
are looking for applicants in their part of the country.
Over the last several years, Ladders has pursued an aggressive
print, TV and Internet advertising campaign, signing up thousands
and thousands of job hunters.
Most Internet job sites do not charge a subscriber fee.
TheLadders.com offered a different tack. During the 2009 Super
Bowl, with an audience of close to 100 million viewers, Ladders
hit the airwaves with a blockbuster ad claiming it was massively
superior to other Internet job boards.
"Ordinary job sites," the advertisements said, "let everyone play,
so nobody wins." Subscribers could view the job postings at no
cost. But to actually apply for the jobs, they had to pay $25 for
a premium membership. A premium-plus membership came with extra
advantages and cost up to $149 for a year. Subscribers would also
get a "free resume critique."
It is estimated that thousands of people like the lead plaintiff
in the class-action suit, Barbara Ward, from Arkansas, represented
by Yitzak Kopel -- ykopel@bursor.com -- from Bursor and Fisher in
New York, found that the job site led to stale job postings or
jobs that paid well below the 100K a year she was expecting. The
jobs that were on TheLadders.com website were not in fact "hand-
screened" according to the allegations in the suit. They were, in
fact, scrapped from free Internet job sites.
The resume critique offer, which promised TheLadders.com writers
would help job seekers handcraft a winning executive resume, was a
form letter that offered to sell Barbara Ward a resume writing
service.
According to Businessinsider.com, quoted in the class-action
complaint, Ladders signed up 5 million jobseekers and generated as
much as $80 million in revenues. The numbers are easy to believe
given the number of complaints about Ladders currently circulating
on Internet forums.
Message boards on the Internet are crammed with postings by
disgruntled Ladders' clients complaining they had been led down
the garden path. Posters complain they were steered to employers
that were either not looking for prospective employees or
employers who had filled the job, sometimes years before.
Even the employers and recruiters who received inquiries from job
seekers are complaining about Ladders.com. Barbara Ward's lawsuit
quotes an employer listed on TheLadders.com as saying, "My biggest
complaint is when people would call to ask about a job they saw on
Ladders, or to follow up on an application, I would have to
explain we didn't list on Ladders, and that the job had been
closed for months (in a few cases, for over a year), and that the
job paid well less than six figures."
The suit alleges breach of contract, violation of the Arkansas
Deceptive and Unconscionable Trade Practices Act, plus breach of
good faith and unjust enrichment.
TheLadders.com was contacted by LawyersandSettlements.com for
comment but failed to respond to our inquiry.
Yitzak Kopel is an attorney with Bursor and Fisher in New York
City. His practice is focused on complex litigation and consumer
class actions.
THR & ASSOCIATES: Overtime Suit Obtains Class-Action Status
-----------------------------------------------------------
Tim Landis, writing for The State Journal-Register, reports that a
federal judge has granted class-action status to a group of former
THR & Associates employees who claim the now-bankrupt Springfield
company repeatedly and knowingly violated overtime and other
federal labor laws.
The judge, however, dismissed THR and founder Jeff Parsons from
the case as a result of the pending bankruptcy. Two former THR
managers, Jason and Mike DeLong, remain as defendants.
About 140 former THR workers already have joined the lawsuit, and
their attorneys believe at least 300 more were employed by the
company, according to the ruling early this month by U.S. District
Judge Richard Mills in Springfield.
The lawsuit seeks back wages, overtime, unspecified damages and
attorney fees. Attorneys for both sides were not available on
April 19.
Former THR employee Shannon Lee, who is from Florida, filed the
lawsuit in April 2012 claiming employees routinely worked more
than 40 hours a week without overtime, that workers were
improperly classified as management, and that they should have
been paid during training.
Prior to filing for corporate and personal bankruptcy in
September, THR and Mr. Parsons operated "road shows" across the
country where THR employees purchased precious metals, jewelry,
antiques, coins and collectibles.
A series of auctions of Mr. Parsons' collection was held recently
as part of the bankruptcy case.
The lawsuit claims employees classified as "buyers," "managers,"
auditors," "greeters" and others were treated as salaried workers
exempt from overtime, even though duties for each job were
basically the same.
'Moreover, the plaintiffs (employees) did not regularly and
customarily perform the duties to qualify for any exemption," the
lawsuit states.
The workers also claim they were not paid for mandatory training
at THR University in Springfield, and that THR intentionally
failed to keep proper records of hours worked.
"The plaintiffs contend that, because of THR's unlawful
compensation scheme, it has reaped an enormous and unwarranted
financial windfall by saving millions of dollars in payroll
costs," according to the lawsuit.
Employees were paid a flat rate, based on the number of days a
buying show lasted, the lawsuit alleges, and workers who missed a
day or left early were not paid for that day. The lawsuit also
gave an example of "managers" who were required to work on off
days following buying shows.
"THR required managers to send all items that were purchased at
the shows back to Springfield, Illinois after every show, on
Mondays," the lawsuit states. "Because that is there 'off day,'
managers were not compensated for such work."
Judge Mills ordered the DeLongs to provide names, addresses and
phone numbers for former THR employees who could potentially join
the class-action lawsuit. He also directed that the employees be
notified of possible eligibility.
TRANSNET: Facing R85 Billion Class Action by Pensioners
-------------------------------------------------------
Ann Crotty, writing for Independent Online's Business Report,
reports that Transnet has not yet been served papers relating to
the R85 billion class action taken against it by a group of
pensioners and so on April 29 it was unable to comment on an
application dated April 26 to the North Gauteng High Court in
South Africa.
The pensioners have called on the court to sanction the
institution of a class action against two Transnet pension funds
and Transnet.
Piet Maritz, the principal officer of the Transnet Second Defined
Benefit Fund (TSDBF), told Business Report on April 29 that the
company would have to look at the legal documents before
commenting. However Maritz did state, contrary to some claims,
that both the TSDBF and the Transnet Pension Fund had always paid
the annual increases -- of 2 percent -- due to the members and
they had also made a number of bonus payments to members.
News that a group of pensioners belonging to the TSDBF had
launched a high court action is the latest development in a saga
that dates back to the corporatisation of Transnet, previously SA
Transport Services (SATS), in 1990. The subsequent restructuring
of the Transnet Pension Fund into three entities involved a major
and ongoing rearrangement of assets and liabilities in a bid to
secure the solvency of the pension funds. The long-running saga
includes grim accounts of pensioners forced to survive on less
than R2 500 a month.
According to lawyers acting for the pensioners, "the most shocking
figure is that 45 percent of pensioners earn less than the state
old age pension". As part of the corporatisation, the government
guaranteed all of SATS's pension obligations, which were estimated
to amount to R17.1bn at the time. To redeem the debt owed to the
pension fund, Transnet issued T011 stock to the value of R10.4bn
at the time of corporatisation.
However, by 1994 it was apparent Transnet could no longer
guarantee the financial viability of the pension fund.
The pensioners are arguing in court that both the state and
Transnet refused to address their legal obligations to the fund
and that the pension obligations now amounted to R80bn. This is
termed Transnet's "legacy debt".
The pensioners contend that an aggravating factor behind the
growth in obligations was the 2001 decision to swop the T011 stock
for 75 million M-Cell shares. With regard to this transaction,
lawyers for the pensioners state: "The conduct by the investment
committee acting in concert with Transnet caused a strain to the
fund of R4.9bn.
"In total, T011 bonds worth R7.7bn were cancelled, saving Transnet
R1.2bn a year in interest and R7.3bn in redemption payments. The
fund failed to get any dividends from these shares as the shares
were held in a trust, of which the fund was allegedly a
beneficiary.
"The shares were sold in 2006 and the cumulative loss that was
suffered by the TSDBF in the process amounts to approximately
R5.5bn."
Lawyers have called on pensioners to indicate support for court
action.
UNITED STATES: Class Suit Over Defense of Marriage Act May Proceed
------------------------------------------------------------------
The Associated Press reports that a lesbian couple facing
immigration troubles has the standing to challenge the federal
Defense of Marriage Act because it violates the constitutional
rights of immigrants in same-sex marriages, a federal judge has
ruled.
U.S. District Judge Consuelo Marshall also ordered on April 19
that the lawsuit, filed last year on behalf of Philippines citizen
Jane DeLeon and her spouse Irma Rodriguez, can proceed as a class-
action case.
Ms. DeLeon claimed in the lawsuit that she was eligible to obtain
a green card, but wasn't able to get a waiver she needs to obtain
residency because the U.S. government doesn't recognize her same-
sex marriage to an American.
Peter Schey, president of the Los Angeles-based Center for Human
Rights and Constitutional Law, which filed the suit, said he hopes
the decision will lead the government to reconsider visa
applications by same-sex couples.
Ms. DeLeon asserted in a statement on April 20 that her visa
application was denied "solely because we have a same-sex
marriage."
"Hopefully our long ordeal is now close to an end and we can stop
living in fear of being forced to leave the country," she said.
The case is one of a number of challenges brought by same-sex
couples -- some of them facing immigration troubles -- over the
1996 law that prohibits the U.S. government from recognizing same-
sex marriages. It is now under review by the Supreme Court.
UNITED STATES: Flood Victims May Not Get Much From Settlement
-------------------------------------------------------------
Fox 8 reports that victims of hurricanes Katrina and Rita must
soon decide whether to join a class action lawsuit that may be
their last chance to recover monetary damages. But any checks
they receive may be much skimpier than many expect, according to
Fox 8 News reporter Jennifer Hale.
The lawsuit notices are now appearing in mailboxes across the
region. But for recipient Shannon Evans, they're triggering more
questions than answers.
"I don't know, to be honest with you," Ms. Evans said. "I just
received the letter about it."
The courts have consolidated many of the lawsuits from hurricanes
Katrina and Rita down to one class action, and then tapped 20 law
firms -- including Bruno and Bruno in New Orleans -- to work
together to reach settlements.
"This was a difficult, if not impossible task," said attorney
Joseph Bruno.
Mr. Bruno said it was difficult because the Corps of Engineers is
immune to prosecution when it comes to the levees, and judgments
against levee boards cannot be collected. That leaves few
options. But Mr. Bruno and his counterparts did find one source
of funds: insurance policies covering the Orleans, East Jefferson
and Lake Borgne Levee Districts, including $10 million in coverage
for Orleans, $5 million for Jefferson and $2 million for Lake
Borgne -- plus interest -- adds up to just over $20 million
dollars.
"What this piece of paper is about, it's a notice to everybody
that the insurance companies and plaintiffs have asked the court
to approve this as a fair settlement," Mr. Bruno said. "We can't
get any more money, so for us, something is better than nothing."
Depending on how many people join, individual checks could total
from $1 to $1,000 for families who lost a loved one. Victims must
now decide whether to join the class action, sit out or object.
One potential plaintiff said the amounts aren't really worth the
trouble.
"That's very insulting," he said. "We lost a lot of stuff -- our
houses, but mostly our people."
Mr. Bruno agreed.
"That little $10 check -- cash it, staple it to the wall as a
reminder that this is what our government does for us when they
admit they built a defective levee."
The court will hold its fairness hearing on the proposed
settlement September 23.
In the meantime, attorneys representing the plaintiffs in this
case have agreed not to take any fees. The court is awarding the
various law firms $3.5 million for expenses, which Mr. Bruno said
is actually millions less than their out-of-pocket costs.
UNIVERSITY OF ALABAMA: Sued Over Study Involving Premature Babies
-----------------------------------------------------------------
Birmingham Business Journal reports that parents of premature
babies involved in a clinical research study led by the University
of Alabama at Birmingham filed a class-action lawsuit on April 18
in U.S. District Court. The suit claims the nationwide study,
which included 23 hospitals and aimed to determine the best amount
of oxygen to treat premature babies, was "unethical by design" and
accused defendants of negligence and a failure to properly
disclose the risks of the study.
The lawsuit claims participants in the study suffered visual and
respiratory issues, brain damage and other permanent impairments
as a result of wrongdoing in the study, known as the Surfactant,
Positive Pressure and Oxygenation Randomized Trial.
More than 1,300 premature infants were enrolled in the study,
which lasted from 2004 to 2009, according to the lawsuit.
Defendants listed in the suit include the University of Alabama
Institutional Review Board, members of the board and others.
Birmingham attorney Reginald D. McDaniel filed the suit for the
plaintiffs. UAB said it does not comment on pending litigation.
The suit seeks class-action status and said claims would total
more than $5 million. The plaintiffs are seeking compensatory,
pre- and post-judgment interest, dignity damages and legal costs.
The lawsuit comes after a letter from the Department of Health and
Human Services' Office for Human Research Protections sent a
letter to UAB in March concluding that the informed consent
documents the parents of the 1,300 premature babies were required
to sign didn't fully explain the risks. But several members of
the medical community have defended the study, including an
editorial in the New England Journal of Medicine that strongly
disagreed with the report and called the study a model of how to
make medical progress.
In April, UAB Vice President for Research and Economic Development
Richard Marchase told the Birmingham Business Journal that
"infants in both of the study groups survived at the same or
better rates than infants not enrolled in the study, even when
controlled for the seriousness of their condition."
Mr. Marchase also said the National Institutes of Health described
the trial as ethical, and noted the OHRP stated that the study was
important in helping doctors determine how much oxygen to provide
to extremely low birth weight infants, Mr. Marchase.
Mr. Marchase previously said "OHRP's issue was not with the
medical best practices or outcomes, but with the specificity of
outlining possible risks on the consent forms."
He said a higher mortality rate for infants that received a lower
oxygen saturation level was an unexpected finding of the study,
which is why it could not be communicated as a potential risk on
the parents' consent forms.
WELLS FARGO: Court Tosses Bid to Dismiss "Minter" Class Suit
------------------------------------------------------------
District Judge William M. Nickerson denied a motion to certify a
question of law and a motion to dismiss for lack of subject matter
jurisdiction in the lawsuit captioned DENISE MINTER et al, v.
WELLS FARGO BANK, N.A. et al, Civil Action No. WMN-07-3442,
(D. Md.).
This case has been pending for over five years. Since May 2011, it
has been proceeding as a class action and, presently, there are
more than 150,000 class members divided between the certified
Timely and Tolling Classes. Over the years, the case has been
pared down by Plaintiffs, and the Court. Most recently, the Court
granted, in part, and denied, in part, motions for summary
judgment filed by Defendants. Following that ruling, the
Plaintiffs' only remaining claims are for violations of certain
provisions of the Real Estate Settlement Procedures Act (RESPA),
12 U.S.C. Sections 2601 et seq., specifically, 12 U.S.C. Section
2607(a)1 and 2607(c). A four-week jury trial on liability issues
is scheduled to start in less than two weeks.
Pending before the Court are three motions filed by the
Defendants: (i) a conditional motion to certify a Question of Law
to the Fourth Circuit Court of Appeals; (ii) a motion to dismiss
for lack of subject matter jurisdiction; and (iii) a motion to
decertify Tolling and Timely Classes.
"Upon consideration of the papers, the parties' arguments, and the
applicable law, the Court determines that (1) Defendants'
conditional motion to certify a question of law and Defendants'
motion to dismiss will be denied, and (2) Defendants' motion to
decertify will be granted, in part, and denied, in part," ruled
Judge Nickerson.
"Defendants' motion to certify a question of law and their motion
to dismiss offer little more than an additional confirmation that
Defendants dispute Plaintiffs' theory of this case, this Court's
prior holdings affirming that theory as valid, and the case law
relied upon by the Court to make those determinations," he said.
The Court further held that it will grant the motion to decertify
as it relates to the Tolling Class, and deny the motion as it
relates to the Timely Class, but limit the Timely Class so as to
cure some of the Defendants' overbreadth concerns.
According to Judge Nickerson, the Court has determined that "the
likely difficulties in managing a class action," by the Tolling
Class, under the circumstances of this case, warrant
decertification. The Court's concern about manageability revolves
around the concealment and due diligence elements of tolling, he
said.
With respect to the Timely Class, Judge Nickerson concluded that
decertification is not appropriate because the Defendants'
arguments are insufficient for the Court to reverse its earlier
conclusion that "the questions of . . . fact common to class
members predominate over any questions affecting only individual
members" and that "a class action is superior to other available
methods for fairly and efficiently adjudicating [this]
controversy."
However, to address the Defendants' concern that the Timely Class
is overbroad, the Court said it will modify the Timely Class to
exclude those individuals whose loans were not transferred to
Wells Fargo.
A copy of the District Court's April 26, 2013 Memorandum is
available at http://is.gd/QlxgGTfrom Leagle.com.
* Class Actions Continue to Pose Threat to Australian Companies
---------------------------------------------------------------
Insurance Business reports that commercial clients should expect
more class action activity in the coming years as lawyers and
funders seek to capitalize on the "lucrative form of business".
In recent years, the increasing prominence of securities class
actions and evolving continuous disclosure requirements has
irrevocably altered the risk profile for Australian companies,
according to K&WM's Class Actions in Australia -- The Year in
Review 2012.
2012 proved to be a "watershed" year, with the record AUD200
million settlement in the Centro class actions bringing the total
value of securities class action settlements over the past 20
years to more than AUD1 billion. 2012 also saw more settlements
than any other year in the history of Australia's class action
regimes, with a total of 13 class actions settled.
"With the substantial returns involved, it's not surprising that
new players -- both funders and plaintiff lawyers -- are pursuing
opportunities to capitalize on this highly lucrative form of
business," Law firm partner Beau Deleuil said. "We are advising
our clients to expect more class action activity as these
participants compete for market share -- including by pushing new
boundaries of liability and damages quantification."
Moira Saville, partner and co-author of the report warned the
industry to brace itself for "a resurrection in the number of mass
tort and product liability and other consumer class actions".
But there is still a lack of certainty as to whether directors &
officers insurance (D&O) can be used to fund defense costs,
according to law firm King & Wood Malleson, not helped by the
recent New Zealand Court of Appeal Bridgecorp decision.
The court overturned an earlier ruling, preventing NZ finance
company Bridgecorp's directors and officers from accessing their
D&O defense costs in circumstances where the third party claims
were likely to exceed the available limit.
Although the NZ decision is not binding on Australia, they may be
considered persuasive in Australian jurisdictions, and insurers
are keen to have the position in Australia clarified.
If the NSW Court of Appeal takes similar position, the law firm
states class action claimants will "obtain no relief" from the
dilemma of how to access insurance funds before they are eroded by
defense costs.
"The converse result will have significant impact for defendants,
although policies going forward have been restructured to deal
with the problem," it said.
Mr. Deleuil, responsible for the firm's dispute resolution
practice, said it was possible that the courts "provide some much
needed clarity on causation issues and the on-going bank fees
class action".
"Class actions continue to pose a significant threat to any listed
companies and its directors and officers, and class actions should
be firmly and permanently on their radar," Ms. Saville concluded.
Australia to Become Securities Class Action Center
Leanne Mezrani, writing for Lawyers Weekly, reports that an
international study has named Australia as a frontrunner to become
a regional center for securities class action litigation.
The predictive study by consultancy firm Goal Group has forecast
that class action settlements in the Asia-Pacific are expected to
be worth AUD3.4 billion by 2020.
"Australia could be responsible for a fair amount [of that]," said
Andreas Costi, Goal Group's director of sales for Australia and
New Zealand.
Australia was nominated among only a handful of countries,
including The Netherlands and Canada, as potential venues for
non-US class actions, which are expected to produce a total of
AUD8.3 billion in settlements by 2020.
The US currently attracts the highest volume of class action
settlements, according to the study. But a recent US Supreme
Court decision has limited non-US investors from obtaining
compensation from foreign companies through the US court system.
In 2010, the Court ruled that securities laws only apply to
companies listed on US exchanges during an investor class action
against the National Australia Bank.
The ruling has resulted in "an unofficial battle" to be the home
of non-US securities class actions, said Mr. Costi, with
Australia's "lively class action scene" placing it among the
frontrunners vying to become regional centers for this type of
litigation.
"This is a growth area within the legal industry," he said.
Researchers also claimed the fallout from restrictions to overseas
plaintiffs under US law could mean the non-participation rate is
"probably considerably higher" than the 24 per cent figure taken
from Goal analysis of its securities class action database.
If non-participation rates seen in US class actions are
experienced in non-US activity, more than AUD2 billion of
investors' rightful returns will be unreclaimed each year by the
end of the decade, according to the study.
* Court Ruling Amends Class Definition of Certified Canadian Class
------------------------------------------------------------------
Kirk Baert, writing for Canadian Lawyer, reports that a recent
Ontario Superior Court decision amended the class definition of a
certified Canadian class proceeding to carve out the settled
claims of a parallel U.S. class action. This was done in the face
of vehement arguments from Canadian class counsel that the U.S.
settlement was inadequate and improvident. This decision provides
a powerful demonstration of the risks associated with litigating a
class action on behalf of a global class where there are parallel
proceedings in a foreign jurisdiction. As a result of the
amendment to the class definition, the Canadian class was reduced
by 85 per cent.
In 2006, eight lawsuits were filed in the United States against
IMAX, alleging misrepresentations and omissions regarding revenue
recognition. These proceedings were consolidated into a single
action. The U.S. plaintiffs had originally sought to certify a
global class on behalf of all purchasers of IMAX shares,
regardless of where the shares were purchased, but the release of
the U.S. Supreme Court's decision in Morrison v. National
Australian Bank Ltd. precluded them from certifying on behalf of
purchasers on foreign exchanges. As a result, the U.S. class was
limited to purchasers on the NASDAQ, an American stock exchange.
One lawsuit was commenced in Ontario, based on facts that were
substantially identical to the U.S. actions. In contrast to the
U.S. claim, the Ontario action, Silver v. Imax, was certified on
behalf of a global class of purchasers who acquired IMAX
securities on both the Toronto Stock Exchange and the NASDAQ. As
a result, there was significant overlap between the Ontario and
the U.S. class definition.
The Ontario class action proceeded much more rapidly than the U.S.
proceeding. However, unbeknownst to Ontario class counsel, a
round of negotiations between U.S. counsel and the defendants took
place without inviting the participation of Ontario class counsel,
and without their knowledge.
As a result of this negotiation, the parties to the U.S.
proceeding entered into a settlement agreement for the benefit of
only the U.S. class. The settlement agreement was valued at US$12
million. On June 14, 2012, a final approval hearing of the U.S.
settlement was held and it was approved on condition the class
definition in the Ontario proceeding was amended to exclude NASDAQ
purchasers. This amendment, opposed by Ontario class counsel,
would exclude approximately 85 per cent of the Ontario class.
In order to determine whether to amend the Ontario class, Justice
Katherine van Rensburg undertook a two-step process. First, she
undertook to determine whether the U.S. settlement ought to be
recognized by the Ontario court. Second, she undertook to
determine whether the Ontario action remained the preferable
procedure to determine the claims of NASDAQ purchasers.
In determining the issue of recognition, Justice van Rensburg
applied the factors set out in Currie v. McDonald's Restaurants of
Canada Ltd., which established the test for recognition of a
foreign judgment approving a class action settlement. The Currie
factors are:
(a) whether there was a real and substantial connection linking
the cause of action to the foreign court;
(b) whether the rights of the absent class members were
adequately represented; and
(c) whether absent class members were accorded procedural
fairness, including adequate notice.
Justice van Rensburg found the Currie factors were satisfied in
this case and the U.S. fairness decision should be recognized in
Canada. There was a real and substantial connection between the
cause of action of the overlapping class members and the U.S.
court, U.S. counsel fairly represented the rights of the NASDAQ
purchasers, notice in the U.S. proceeding was found to be
sufficient to accord the NASDAQ purchasers with adequate
procedural fairness, and the U.S. settlement was held to be fair,
reasonable, and adequate by the U.S. court.
The next step was to determine whether the certification order
should be amended to remove the NASDAQ purchasers from the Ontario
class definition. The Ontario judge found the court had
jurisdiction to amend a class definition in order to respond to
changing circumstances where the criteria of s. 5(1) of the Class
Proceedings Act, 1992, were no longer satisfied. In this case,
the Ontario action was found to no longer be the preferable
procedure for the determination of the claims of NASDAQ
purchasers.
As a result, Justice van Rensburg amended the Ontario
certification order to exclude NASDAQ purchasers.
In high stakes litigation where plaintiffs' counsel fees are
typically paid only on a contingency basis, the dangers of
pursuing overlapping parallel proceedings are amplified. Because
the costs associated with prosecuting a securities class action,
including expert fees, are fixed, unilateral reduction in class
size can change the economic viability of pursuing these claims.
Since Ontario courts will not look at the substance of the foreign
settlement, but only the process that was followed in protecting
the interests of absent class members, this invites the danger of
a "reverse auction." A reverse auction may occur where the
defendant in a parallel class action "picks the most ineffectual
class lawyers to negotiate with, in the hope that the applicable
court will approve a weak settlement that will preclude other
claims against the defendant"
Finally, there is also a concern for a "race-to-the-bottom," where
the foreign representative plaintiff's interest may conflict with
those of the Ontario class, and foreign class counsel may accept a
sharply discounted recovery rate for non-resident plaintiffs.
These concerns recognize that class action settlements in cross-
border litigation may be susceptible to manipulation.
Although there was no evidence of manipulation in Silver v. Imax,
Ontario class counsel raised the concern that granting the relief
sought without examining the U.S. settlement on a fairness basis
would encourage this kind of behavior by competing class counsel
in other cases. If nothing more, this decision will weigh on the
future calculus in seeking to certify class action on behalf of a
global class.
* Fen-Phen Class Action Lawyer Retires After Disbarment Case
------------------------------------------------------------
Kimball Perry, writing for The Cincinnati Enquirer, reports that a
lawyer known as the "master of disaster" for representing victims
of fires, plane crashes and medical malfeasance permanently
retired before he could be disbarred in his home state.
Stan Chesley, 77, was disbarred earlier this year in Kentucky
after that state's Supreme Court said he took $7.5 million in fees
that should have gone to his clients in a $200 million case
involving the diet drug fen-phen.
"He's no longer a lawyer, so there is no longer a disbarment
proceeding," Jonathan Coughlan, Ohio Supreme Court disciplinary
counsel, said on April 19.
When reached at his home in the Cincinnati suburb of Indian Hill,
Ohio, Chesley declined to elaborate. Instead, his lawyer sent an
email later confirming Mr. Chesley's retirement and noting that
Ohio courts never have disciplined Mr. Chesley -- although Mr.
Chesley faced Ohio disbarment had he not retired.
The Ohio Supreme Court's rules note any such retirement "is
unconditional, final and irrevocable."
In the fen-phen case, Mr. Chesley received a $20 million fee,
$7.5 million more than he was supposed to get, the Kentucky Bar
Association found. It blistered Mr. Chesley in its recommendation
to have him disbarred, stating he played a vital role in helping
the lawyers get exorbitant fees, cheat their clients, then lie and
threaten in an attempted cover-up it called "a sordid tale worthy
of Charles Dickens."
Like many states, Kentucky has a reciprocal agreement with Ohio
that usually means any lawyer disbarred in Kentucky also is
disbarred in Ohio. Mr. Chesley was one of at least five lawyers
disbarred -- two were imprisoned -- for their actions representing
clients in the fen-phen case.
His retirement marks the end of his 53-year career as a lawyer.
He resigned from the Board of Trustees at the University of
Cincinnati, where he had served since 2009 and previously served
from 1985 to 1994, after pressure from fellow trustees.
Mr. Chesley also resigned from practicing law in federal courts in
Indiana and Michigan but indicated he intended to fight his
disbarment in most other courts.
"There seem to be a lot of people gleeful over Stan's career
ending. But I wonder how many of those people even know or care
about all the good he did in his career," said Paul DeMarco, a
lawyer who worked for Mr. Chesley but spun off another firm last
year.
"He bettered the lives of a lot of people when no one else would
stand up for them -- nuclear workers wracked with cancer, prison
inmates, people whose land was wrecked by radioactive
contamination," Mr. DeMarco said. "These were tough cases, and
when no one else had the guts to take them on, Stan did. And very
often, as in the case of Holocaust victims standing up to powerful
Swiss banks, Stan represented them without compensation."
Among the cases that Mr. Chesley took on through the years:
* Pan Am over the 1988 Lockerbie, Scotland, terrorist attack.
* Dow Corning over silicone breast implants.
* Tobacco companies for a settlement on behalf of state
governments.
* Aluminium wire manufacturers on behalf of the dead and
injured in the 1977 Beverly Hills Supper Club fire in Kentucky
that killed 165 people.
"Stan can still teach and do stuff like that, but he can't
practice law," said Hamilton County Prosecutor Joe Deters, who has
worked as a private lawyer in Mr. Chesley's firm for five years.
In a two-page retirement application, Mr. Chesley checked one box
and added some personal information. The application is notarized
by U.S. District Court Judge Susan Dlott, Mr. Chesley's wife.
* South African Court Provides Class Action Guidelines
------------------------------------------------------
According to an article at International Law Office, the Supreme
Court of Appeal recently delivered an important judgment on class
actions in South Africa, confirming that they are permitted not
only in case of the infringement of a constitutional right, but
also more generally. This is in line with the approach adopted in
the new Companies Act, which expressly approves class actions in a
more general, commercial context. While the court welcomed
legislative intervention, it set out a broad set of procedural
parameters for the pursuit of class actions. The case, The
Trustees for the time being of the Children Resource Centre Trust
v Pioneer Food (Pty) Limited, arose pursuant to an attempt to
certify a class action for the recovery of losses suffered by
bread consumers as a result of a price-fixing cartel.
The court set out the following parameters for the pursuit of
class action proceedings:
-- The claimant should apply to the court for certification
of the class action proceedings, in which the court effectively
approves or delineates the class of persons affected. However,
certification in no way affirms the merits of the claim.
The application should provide a clear and precise definition of
the class, so that its membership can be determined objectively
with reference to the definition of a 'class action'. This test,
along with commonality, is the most difficult to establish in
obtaining certification.
-- There must be issues of fact or law that are common to all
class members and can appropriately be determined in one action.
-- There must exist evidence as to a valid cause of action
and a case with reasonable prospects of success. The threshold is
the establishment of a prima facie case and is akin to that
required for the existence of a defence in a summary judgment
proceedings. The party seeking certification must set out the
basis for the proposed action in a draft pleading and in
affidavits.
-- The court must satisfy itself that the representatives
have both the resources and the inclination to represent the class
properly, and have no ulterior motives or conflict of interest in
so doing.
-- The court must be satisfied that proceeding by way of
class action is the most suitable remedy in the circumstances.
-- The court must satisfy itself that adequate funding has
been secured.
-- Further detail on this issue from the courts and the
legislature is awaited. Of particular interest is how the pursuit
of class actions will interface with the new Companies Act, which
apart from expressly approving class action proceedings stipulates
specific actionable offences giving rise to potential civil
liability on the part of directors. The extent to which class
actions will extend directors' liability under the Companies Act
is not yet known.
For further information on this topic please contact Gerhard
Rudolph at Rudolph Bernstein & Associates by telephone (+27 11 669
7600), fax (+ 27 11 669 7601) or email gerhard@rba-law.co.za
A copy of the Court ruling is available at http://is.gd/lfoyRi
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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