/raid1/www/Hosts/bankrupt/CAR_Public/130530.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 30, 2013, Vol. 15, No. 106
Headlines
ALTRIA GROUP: Appeals in "Smith" Price-Fixing Class Suit Pending
ALTRIA GROUP: Class Definition in Medical Monitoring Suit Amended
ALTRIA GROUP: "Scott" Class Action Litigation Now Concluded
ALTRIA GROUP: Smoking and Health Class Actions Remain Pending
ALTRIA GROUP: Still Defends "Lights/Ultra Lights" Class Suits
AMYRIS INC: Milberg LLP Files Federal Securities Class Action
BMW AG: Recalls 79 C650GT Motorcycles Due to Defective Fasteners
CARLYLE BAKERY: Recalls Fruit Cakes Due to Undeclared Allergens
CHICAGO: CBE Sued Over Plan to Shutter 53 Elementary Schools
CMS ENERGY: Considering Sup. Ct. Appeal in Gas Index Price Suit
COINSTAR INC: Redbox Seeks Summary Judgment in Privacy Class Suit
COINSTAR INC: Response in "DiSimone/Sinibaldi" Appeal Due May 31
COINSTAR INC: Still Awaits Ruling on Cert. Bid in "Piechur" Suit
COLGATE-PALMOLIVE: Still Defends ERISA Litigation in New York
ECO-CUISINE: Recalls Brownie, Cookie and Other Mix Products
EQUIFAX INC: 9th Cir. Remands Class Suit to Calif. Dist. Court
FACEBOOK INC: Faces Class Action Over Unsolicited Text Messages
GENERAL MOTORS: Recalls 118 ATS, IMPALA and XTS Vehicles
GOOGLE INC: Judge Denies Class Action Status to Copyright Owners
HEARST CORP: Judge Says Former Interns Cannot Proceed as Class
HEWLETT-PACKARD: 9th Cir. Appeals Court Voids Printer Settlement
HEWLETT-PACKARD: Judge Rejects Claims in "Copeland" Suit
HOT TOPIC: Being Sold to Sycamore for Too Little, Suit Claims
IMAX CORP: Canadians Support Bid to Exclude Members in Class Suit
JM SMUCKER: Faces Suit Over Misrepresenting Crisco Products
K-V PHARMACEUTICAL: Bid to Modify in PPFG Securities Suit Granted
K-V PHARMACEUTICAL: Defends Suits in Multiple Jurisdictions
K-V PHARMACEUTICAL: Still Defends 2011 Securities Litigation
KELLOGG CO: Explanation Sought Why Consumers Get Less in New Deal
KOHL'S DEPARTMENT: 9th Cir. Reinstates Suit Over False Advertising
LEAR CORP: Still Awaits Order on Bid to Junk Suits Over Harnesses
LOBLAW COS: Recalls President's Choice(R) White Grape Juice
LOCKHEED MARTIN: 401(k) Plan Suit Proceedings No Longer Material
LOCKHEED MARTIN: Final Hearing on "Pontiac" Suit Deal on June 3
MARCO VISIC: 80+ Fire Victims Opt Out of Class Action
MARK CIAVARELLA: Suits v. Imprisoned State Judges Get Class Status
MCKESSON CORP: Faces Class Action Over Unsolicited Faxes
MERCK: Discriminates Female Sales Reps, Suit Says
NATIONAL FINANCIAL: Being Sold for Too Little, Suit Claims
NEW FLYER: Recalls 56 XD40 and XDE60 Buses Due to Switch Failure
NIKE INC: Faces Class Action Over Bogus Fitness Device
NORTHWEST AIRLINES: Supreme Court to Review Rabbi's Suit
NEW YORK: Expert Describes Way to Reform Stop-and-Frisk Policy
NEW YORK: NYPD Faces Suit Over "Operation Lucky Bag"
ONITY: Faces Suit Over Defective Keycard-Operated Locks
PACCAR: Recalls Various Models of Kenworth and Peterbilt Vehicles
PIONEER NA: Faces Suit Over Price-Fixing of Optical Disk Drives
PRIMA MARKETING: Faces Class Action Over WPCA Violation
PROTECTIVE PRODUCTS: September 1 Settlement Opt-Out Deadline Set
PROVIDENCE HEALTH: Faces Suit for Excluding Autism Therapy
RBS BANK: Faces Class Action for Diverting Money in Own Account
REHOBOTH BEACH: Faces Suit Over $40 Park Permit on Scooters
REVLON INC: Gets Prelim. OK of Exchange Offer Suit Settlement
ROAD RUNNER: Subscribers Ruin Class Action by Misquoting Ad
ROYAL CARIBBEAN: Attendants' Bid to Renew Junked Appeal Pending
ROYAL CARIBBEAN: Bid to Dismiss Securities Suit Granted in April
RUSSELL STOVER: Faces Overtime Class Action
SAINT PETER'S: Faces Class Action Over Underfunded Pension Plan
SALMOLUX: Recalls Cold Smoked Salmon Products Over Listeria Risk
SAMSUNG ELECTRONICS: Faces Suit Over Deceptive S4 Phone Storage
SHELL OIL: 5th Cir. Rejects Gulf Coast Residents' Repeat Suit
SERVICE CORPORATION: Appeal From "Garcia" Cert. Order Pending
SERVICE CORPORATION: Continues to Defend Wage and Hour Suits
SERVICE CORPORATION: "Niven" Suit Voluntarily Dismissed in Feb.
SERVICE CORPORATION: "Sands" Suit Scheduled for Trial in July
SERVICE CORPORATION: "Schwartz" Suit Claims Dismissed in March
TACO BELL: Faces Overtime Class Action in Solano County Court
TELEFLORA: Faces Class Action Over Mishaps on Flower Delivery
TEREX: Recalls XL4000 Model of Truck-Mounted Digger Derricks
TRUE RELIGION: Being Sold for Too Little, Suit Claims
UNITED STATES: IRS Faces Suit From Tea Party Patriots Group
VIACOM INC: Faces Suit Over MTV Video Music Awards Spam Texts
WAL-MART: Faces Suit Over False Claims on Lipozene & MetaUp
WELLS FARGO: Fined $203MM in "High-To-Low" Debit Posting Suit
* Only 14% of Class Action Participants Get Meaningful Value
*********
ALTRIA GROUP: Appeals in "Smith" Price-Fixing Class Suit Pending
----------------------------------------------------------------
As of April 25, 2013, one case remains pending in Kansas (Smith)
in which the plaintiffs allege that the defendants, including
Altria Group, Inc. and its subsidiary, Philip Morris USA Inc. ("PM
USA"), conspired to fix cigarette prices in violation of antitrust
laws. The Plaintiffs' motion for class certification was granted.
In March 2012, the trial court granted the defendants' motions for
summary judgment. The Plaintiffs sought the trial court's
reconsideration of its decision, but in June 2012, the trial court
denied the plaintiffs' motion for reconsideration. The Plaintiffs
have appealed the decision, and the defendants have cross-appealed
the trial court's class certification decision, to the Court of
Appeals of Kansas.
No further updates were reported in the Company's April 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
Based in Richmond, Virginia, Altria Group, Inc. --
http://www.altria.com/-- (previously named Philip Morris
Companies Inc.) is a holding company incorporated in Virginia in
1985. Altria's subsidiaries included Philip Morris USA Inc.,
which is engaged in the manufacture and sale of cigarettes and
certain smokeless products in the United States; John Middleton
Co., which is engaged in the manufacture and sale of machine-made
large cigars and pipe tobacco; and UST LLC, which through its
subsidiaries, including U.S. Smokeless Tobacco Company LLC and
Ste. Michelle Wine Estates Ltd., is engaged in the manufacture and
sale of smokeless products and wine. Philip Morris Capital
Corporation maintains a portfolio of leveraged and direct finance
leases. Philip Morris International Inc. was spun off in 2008.
ALTRIA GROUP: Class Definition in Medical Monitoring Suit Amended
-----------------------------------------------------------------
A Massachusetts court amended the class definition in one of two
medical monitoring lawsuits pending against a subsidiary of Altria
Group, Inc., according to the Company's April 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Two purported medical monitoring class actions are pending against
Altria Group, Inc.'s subsidiary, Philip Morris USA Inc. ("PM
USA"). These two cases were brought in New York (Caronia, filed
in January 2006 in the U.S. District Court for the Eastern
District of New York) and Massachusetts (Donovan, filed in
December 2006 in the U.S. District Court for the District of
Massachusetts) on behalf of each state's respective residents who:
are age 50 or older; have smoked the Marlboro brand for 20 pack-
years or more; and have neither been diagnosed with lung cancer
nor are under investigation by a physician for suspected lung
cancer. The Plaintiffs in these cases seek to impose liability
under various product-based causes of action and the creation of a
court-supervised program providing members of the purported class
Low Dose CT Scanning in order to identify and diagnose lung
cancer. The Plaintiffs in these cases do not seek punitive
damages. A case brought in California (Xavier) was dismissed in
July 2011, and a case brought in Florida (Gargano) was voluntarily
dismissed with prejudice in August 2011.
In Caronia, in February 2010, the district court granted in part
PM USA's summary judgment motion, dismissing plaintiffs' strict
liability and negligence claims and certain other claims, granted
plaintiffs leave to amend their complaint to allege a medical
monitoring cause of action and requested further briefing on PM
USA's summary judgment motion as to the plaintiffs' implied
warranty claim and, if the plaintiffs amend their complaint, their
medical monitoring claim. In March 2010, the plaintiffs filed
their amended complaint and PM USA moved to dismiss the implied
warranty and medical monitoring claims. In January 2011, the
district court granted PM USA's motion, dismissed plaintiffs'
claims and declared the plaintiffs' motion for class certification
moot in light of the dismissal of the case. The plaintiffs have
appealed that decision to the U.S. Court of Appeals for the Second
Circuit. Argument before the Second Circuit was heard in March
2012.
In Donovan, the Supreme Judicial Court of Massachusetts, in
answering questions certified to it by the district court, held in
October 2009 that under certain circumstances state law recognizes
a claim by individual smokers for medical monitoring despite the
absence of an actual injury. The court also ruled that whether or
not the case is barred by the applicable statute of limitations is
a factual issue to be determined by the trial court. The case was
remanded to federal court for further proceedings. In June 2010,
the district court granted in part the plaintiffs' motion for
class certification, certifying the class as to the plaintiffs'
claims for breach of implied warranty and violation of the
Massachusetts Consumer Protection Act, but denying certification
as to the plaintiffs' negligence claim. In July 2010, PM USA
petitioned the U.S. Court of Appeals for the First Circuit for
appellate review of the class certification decision. The
petition was denied in September 2010. As a remedy, the
plaintiffs have proposed a 28-year medical monitoring program with
an approximate cost of $190 million. In June 2011, the plaintiffs
filed various motions for summary judgment and to strike
affirmative defenses, which the district court denied in March
2012 without prejudice. In October 2011, PM USA filed a motion
for class decertification, which motion was denied in March 2012.
On February 28, 2013, the district court amended the class
definition to extend to individuals who satisfy the class
membership criteria through February 26, 2013, and to exclude any
individual who was not a Massachusetts resident as of
February 26, 2013. A trial date has not been set.
The Company says evolving medical standards and practices could
have an impact on the defense of medical monitoring claims. For
example, the first publication of the findings of the National
Cancer Institute's National Lung Screening Trial (NLST) in June
2011 reported a 20% reduction in lung cancer deaths among certain
long-term smokers receiving Low Dose CT Scanning for lung cancer.
Since then, various public health organizations have begun to
develop new lung cancer screening guidelines. Also, a number of
hospitals have advertised the availability of screening programs
and some insurance companies now cover screening for some
individuals. Other studies in this area are ongoing.
Based in Richmond, Virginia, Altria Group, Inc. --
http://www.altria.com/-- (previously named Philip Morris
Companies Inc.) is a holding company incorporated in Virginia in
1985. Altria's subsidiaries included Philip Morris USA Inc.,
which is engaged in the manufacture and sale of cigarettes and
certain smokeless products in the United States; John Middleton
Co., which is engaged in the manufacture and sale of machine-made
large cigars and pipe tobacco; and UST LLC, which through its
subsidiaries, including U.S. Smokeless Tobacco Company LLC and
Ste. Michelle Wine Estates Ltd., is engaged in the manufacture and
sale of smokeless products and wine. Philip Morris Capital
Corporation maintains a portfolio of leveraged and direct finance
leases. Philip Morris International Inc. was spun off in 2008.
ALTRIA GROUP: "Scott" Class Action Litigation Now Concluded
-----------------------------------------------------------
Altria Group, Inc. disclosed in its April 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013, that the "Scott" class action
lawsuit is now concluded.
Following a 2004 verdict that awarded the plaintiffs approximately
$590 million to fund a 10-year smoking cessation program and a
series of appeals and other post-trial motions, Altria Group,
Inc.'s subsidiary, Philip Morris USA Inc. ("PM USA") recorded in
the second quarter of 2011 a provision on its condensed
consolidated balance sheet of approximately $36 million related to
the judgment and approximately $5 million related to interest,
which was in addition to a previously recorded provision of
approximately $30 million. In August 2011, PM USA paid its share
of the judgment and interest in an amount of approximately $70
million.
In October 2011, the plaintiffs' counsel filed a motion for an
award of attorneys' fees and costs. In December 2012, the trial
court awarded the plaintiffs' counsel attorneys' fees in an amount
of approximately $103 million, all of which have now been paid
from the court supervised fund. This litigation has concluded.
Based in Richmond, Virginia, Altria Group, Inc. --
http://www.altria.com/-- (previously named Philip Morris
Companies Inc.) is a holding company incorporated in Virginia in
1985. Altria's subsidiaries included Philip Morris USA Inc.,
which is engaged in the manufacture and sale of cigarettes and
certain smokeless products in the United States; John Middleton
Co., which is engaged in the manufacture and sale of machine-made
large cigars and pipe tobacco; and UST LLC, which through its
subsidiaries, including U.S. Smokeless Tobacco Company LLC and
Ste. Michelle Wine Estates Ltd., is engaged in the manufacture and
sale of smokeless products and wine. Philip Morris Capital
Corporation maintains a portfolio of leveraged and direct finance
leases. Philip Morris International Inc. was spun off in 2008.
ALTRIA GROUP: Smoking and Health Class Actions Remain Pending
-------------------------------------------------------------
Since the dismissal in May 1996 of a purported nationwide class
action brought on behalf of allegedly addicted smokers, plaintiffs
have filed numerous putative smoking and health class action
lawsuits in various state and federal courts. In general, these
cases purport to be brought on behalf of residents of a particular
state or states (although a few cases purport to be nationwide in
scope) and raise addiction claims and, in many cases, claims of
physical injury as well.
Class certification has been denied or reversed by courts in 59
smoking and health class actions involving Altria Group, Inc.'s
subsidiary, Philip Morris USA Inc. ("PM USA"), in Arkansas (1),
California (1), the District of Columbia (2), Florida (2),
Illinois (3), Iowa (1), Kansas (1), Louisiana (1), Maryland (1),
Michigan (1), Minnesota (1), Nevada (29), New Jersey (6), New York
(2), Ohio (1), Oklahoma (1), Pennsylvania (1), Puerto Rico (1),
South Carolina (1), Texas (1) and Wisconsin (1).
As of April 22, 2013, PM USA and Altria Group, Inc. are named as
defendants, along with other cigarette manufacturers, in seven
class actions filed in the Canadian provinces of Alberta,
Manitoba, Nova Scotia, Saskatchewan, British Columbia and Ontario.
In Saskatchewan, British Columbia (two separate cases) and
Ontario, the plaintiffs seek class certification on behalf of
individuals who suffer or have suffered from various diseases,
including chronic obstructive pulmonary disease, emphysema, heart
disease or cancer, after smoking defendants' cigarettes. In the
actions filed in Alberta, Manitoba and Nova Scotia, the plaintiffs
seek certification of classes of all individuals who smoked
defendants' cigarettes.
No further updates were reported in the Company's April 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
Based in Richmond, Virginia, Altria Group, Inc. --
http://www.altria.com/-- (previously named Philip Morris
Companies Inc.) is a holding company incorporated in Virginia in
1985. Altria's subsidiaries included Philip Morris USA Inc.,
which is engaged in the manufacture and sale of cigarettes and
certain smokeless products in the United States; John Middleton
Co., which is engaged in the manufacture and sale of machine-made
large cigars and pipe tobacco; and UST LLC, which through its
subsidiaries, including U.S. Smokeless Tobacco Company LLC and
Ste. Michelle Wine Estates Ltd., is engaged in the manufacture and
sale of smokeless products and wine. Philip Morris Capital
Corporation maintains a portfolio of leveraged and direct finance
leases. Philip Morris International Inc. was spun off in 2008.
ALTRIA GROUP: Still Defends "Lights/Ultra Lights" Class Suits
-------------------------------------------------------------
Altria Group, Inc., continues to defend itself and its
subsidiaries from class action lawsuits alleging, among other
things, that the use of the terms "Lights" and "Ultra Lights"
constitute deceptive and unfair trade practices, according to the
Company's April 25, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2013.
"Lights/Ultra Lights" Cases
The Plaintiffs in certain pending matters seek certification of
their cases as class actions and allege, among other things, that
the uses of the terms "Lights" and/or "Ultra Lights" constitute
deceptive and unfair trade practices, common law or statutory
fraud, unjust enrichment or breach of warranty, and seek
injunctive and equitable relief, including restitution and, in
certain cases, punitive damages. These class actions have been
brought against Altria Group, Inc.'s subsidiary, Philip Morris USA
Inc. ("PM USA") and, in certain instances, Altria Group, Inc. or
its subsidiaries, on behalf of individuals who purchased and
consumed various brands of cigarettes, including Marlboro Lights,
Marlboro Ultra Lights, Virginia Slims Lights and Superslims, Merit
Lights and Cambridge Lights.
Defenses raised in these cases include lack of misrepresentation,
lack of causation, injury and damages, the statute of limitations,
non-liability under state statutory provisions exempting conduct
that complies with federal regulatory directives, and the First
Amendment. As of April 22, 2013, a total of 14 such cases were
pending in the United States. Three of these cases were pending
in U.S. federal courts. The other cases were pending in various
U.S. state courts. In addition, a purported "Lights" class action
is pending against PM USA in Israel.
In the one "Lights" case pending in Israel (El-Roy), hearings on
plaintiffs' motion for class certification were held in November
and December 2008, and an additional hearing on class
certification was held in November 2011. On November 28, 2012,
the trial court denied the plaintiffs' motion for class
certification and ordered the plaintiffs to pay defendants
approximately $100,000 in attorney fees. The Plaintiffs in that
case have noticed an appeal.
The Good Case
In May 2006, a federal trial court in Maine granted PM USA's
motion for summary judgment in Good, a purported "Lights" class
action, on the grounds that the plaintiffs' claims are preempted
by the Federal Cigarette Labeling and Advertising Act ("FCLAA")
and dismissed the case. In December 2008, the United States
Supreme Court ruled that the plaintiffs' claims are not barred by
federal preemption. Although the Court rejected the argument that
the Federal Trade Commission's actions were so extensive with
respect to the descriptors that the state law claims were barred
as a matter of federal law, the Court's decision was limited: it
did not address the ultimate merits of the plaintiffs' claim, the
viability of the action as a class action, or other state law
issues. The case was returned to the federal court in Maine and
consolidated with other federal cases in the multidistrict
litigation proceeding. In June 2011, the plaintiffs voluntarily
dismissed the case without prejudice after the district court
denied the plaintiffs' motion for class certification, concluding
the litigation.
Federal Multidistrict Proceeding
and Subsequent Developments
Since the December 2008 United States Supreme Court decision in
Good, and through April 22, 2013, 26 purported "Lights" class
actions were served upon PM USA and, in certain cases, Altria
Group, Inc. These cases were filed in 15 states, the U.S. Virgin
Islands and the District of Columbia. All of these cases either
were filed in federal court or were removed to federal court by PM
USA and were transferred and consolidated by the Judicial Panel on
Multidistrict Litigation ("JPMDL") before the U.S. District Court
for the District of Maine for pretrial proceedings ("MDL
proceeding").
In November 2010, the district court in the MDL proceeding denied
the plaintiffs' motion for class certification in four cases,
covering the jurisdictions of California, the District of
Columbia, Illinois and Maine. These jurisdictions were selected
by the parties as sample cases, with two selected by plaintiffs
and two selected by defendants. The Plaintiffs sought appellate
review of this decision but, in February 2011, the U.S. Court of
Appeals for the First Circuit denied plaintiffs' petition for
leave to appeal. Later that year, the plaintiffs in 13 cases
voluntarily dismissed without prejudice their cases. In April
2012, the JPMDL remanded the remaining four cases (Phillips, Tang,
Wyatt and Cabbat) back to the federal district courts in which the
lawsuits originated. In Tang, which was pending in the U.S.
District Court for the Eastern District of New York, the
plaintiffs voluntarily dismissed the case without prejudice in
July 2012, concluding the litigation.
In Phillips, which is now pending in the U.S. District Court for
the Northern District of Ohio, the defendants filed in June 2012 a
motion for partial judgment on the pleadings on the plaintiffs'
class action consumer sales practices claims and a motion for
judgment on the pleadings on the plaintiffs' state deceptive trade
practices claims. On March 21, 2013, the court granted
defendants' motions, dismissing with prejudice the associated
claims. The Plaintiffs' non-statutory claims of fraud, unjust
enrichment, and express and implied warranty were not dismissed.
A hearing on plaintiffs' motion for class certification currently
is set for August 30, 2013.
In Cabbat, which is pending in the U.S. District Court for the
District of Hawaii, the plaintiffs in July 2012 amended their
complaint, adding a claim for unjust enrichment and dropping their
claims for breach of express and implied warranty. The Plaintiffs
filed a motion for class certification on April 1, 2013. The
trial court scheduled a hearing on plaintiffs' motion on July 1,
2013, and set a February 11, 2014 trial date.
In Wyatt, which is pending in the U.S. District Court for the
Eastern District of Wisconsin, plaintiffs filed a motion for class
certification on January 11, 2013.
"Lights" Cases Dismissed,
Not Certified or Ordered De-Certified
To date, in addition to the district court in the MDL proceeding,
16 courts in 17 "Lights" cases have refused to certify class
actions, dismissed class action allegations, reversed prior class
certification decisions or have entered judgment in favor of PM
USA.
Trial courts in Arizona, Illinois, Kansas, New Jersey, New Mexico,
Oregon, Tennessee and Washington have refused to grant class
certification or have dismissed the plaintiffs' class action
allegations. The Plaintiffs voluntarily dismissed a case in
Michigan after a trial court dismissed the claims the plaintiffs
asserted under the Michigan Unfair Trade and Consumer Protection
Act.
Several appellate courts have issued rulings that either affirmed
rulings in favor of Altria Group, Inc. and/or PM USA or reversed
rulings entered in favor of the plaintiffs. In Florida, an
intermediate appellate court overturned an order by a trial court
that granted class certification in Hines. The Florida Supreme
Court denied review in January 2008. The Supreme Court of
Illinois has overturned a judgment that awarded damages to a
certified class in the Price case. In Louisiana, the U.S. Court
of Appeals for the Fifth Circuit dismissed a purported "Lights"
class action brought in Louisiana federal court (Sullivan) on the
grounds that the plaintiffs' claims were preempted by the FCLAA.
In New York, the U.S. Court of Appeals for the Second Circuit
overturned a decision by a New York trial court in Schwab that
granted the plaintiffs' motion for certification of a nationwide
class of all U.S. residents that purchased cigarettes in the
United States that were labeled "Light" or "Lights." In July
2010, the plaintiffs in Schwab voluntarily dismissed the case with
prejudice. In Ohio, the Ohio Supreme Court overturned class
certifications in the Marrone and Phillips cases. The Plaintiffs
voluntarily dismissed without prejudice both cases in August 2009,
but refiled in federal court. The Supreme Court of Washington
denied a motion for interlocutory review filed by the plaintiffs
in the Davies case that sought review of an order by the trial
court that refused to certify a class. The Plaintiffs
subsequently voluntarily dismissed the Davies case with prejudice.
In August 2011, the U.S. Court of Appeals for the Seventh Circuit
affirmed the Illinois federal district court's dismissal of
"Lights" claims brought against PM USA in the Cleary case. In
Curtis, a certified class action, in May 2012, the Minnesota
Supreme Court affirmed the trial court's entry of summary judgment
in favor of PM USA, concluding this litigation.
In Lawrence, in August 2012, the New Hampshire Supreme Court
reversed the trial court's order to certify a class and
subsequently denied the plaintiffs' rehearing petition. In
October 2012, the case was dismissed after the plaintiffs filed a
motion to dismiss the case with prejudice, concluding this
litigation.
In Oregon (Pearson), a state court denied plaintiffs' motion for
interlocutory review of the trial court's refusal to certify a
class. In February 2007, PM USA filed a motion for summary
judgment based on federal preemption and the Oregon statutory
exemption. In September 2007, the district court granted PM USA's
motion based on express preemption under the FCLAA, and the
plaintiffs appealed this dismissal and the class certification
denial to the Oregon Court of Appeals. Argument was held in April
2010. On April 23, 2013, the plaintiffs filed a motion in the
Oregon Court of Appeals to certify the appeal to the Oregon
Supreme Court.
Other Developments
In December 2009, the state trial court in the Carroll (formerly
known as Holmes) case (pending in Delaware) denied PM USA's motion
for summary judgment based on an exemption provision in the
Delaware Consumer Fraud Act. In January 2011, the trial court
allowed the plaintiffs to file an amended complaint substituting
class representatives and naming Altria Group, Inc. and PMI as
additional defendants. In July 2011, the parties stipulated to
the dismissal without prejudice of Altria Group, Inc. and PMI. On
February 6, 2013, the trial court approved the parties'
stipulation to the dismissal without prejudice of Altria Group,
Inc. and PMI. PM USA is now the sole defendant in the case.
In June 2007, the United States Supreme Court reversed the lower
court rulings in the Miner (formerly known as Watson) case that
denied the plaintiffs' motion to have the case heard in a state,
as opposed to federal, trial court. The Supreme Court rejected
defendants' contention that the case must be tried in federal
court under the "federal officer" statute. The case was removed
to federal court in Arkansas and the case was transferred to the
MDL proceeding. In November 2010, the district court in the MDL
proceeding remanded the case to Arkansas state court. In December
2011, the plaintiffs voluntarily dismissed their claims against
Altria Group, Inc. without prejudice. A hearing on the
plaintiffs' March 13, 2013 class certification motion is scheduled
to begin on October 22, 2013.
The Price Case
Trial in the Price case commenced in state court in Illinois in
January 2003, and in March 2003, the judge found in favor of the
plaintiff class and awarded $7.1 billion in compensatory damages
and $3 billion in punitive damages against PM USA. In December
2005, the Illinois Supreme Court reversed the trial court's
judgment in favor of the plaintiffs. In November 2006, the United
States Supreme Court denied plaintiffs' petition for writ of
certiorari and, in December 2006, the Circuit Court of Madison
County enforced the Illinois Supreme Court's mandate and dismissed
the case with prejudice.
In December 2008, the plaintiffs filed with the trial court a
petition for relief from the final judgment that was entered in
favor of PM USA. Specifically, the plaintiffs sought to vacate
the judgment entered by the trial court on remand from the 2005
Illinois Supreme Court decision overturning the verdict on the
ground that the United States Supreme Court's December 2008
decision in Good demonstrated that the Illinois Supreme Court's
decision was "inaccurate." PM USA filed a motion to dismiss
plaintiffs' petition and, in February 2009, the trial court
granted PM USA's motion on the basis that the petition was not
timely filed. In March 2009, the Price plaintiffs filed a notice
of appeal with the Fifth Judicial District of the Appellate Court
of Illinois. In February 2011, the intermediate appellate court
ruled that the petition was timely filed and reversed the trial
court's dismissal of the plaintiffs' petition and, in September
2011, the Illinois Supreme Court declined PM USA's petition for
review. As a result, the case was returned to the trial court for
proceedings on whether the court should grant the plaintiffs'
petition to reopen the prior judgment. In February 2012, the
plaintiffs filed an amended petition, which PM USA opposed.
Subsequently, in responding to PM USA's opposition to the amended
petition, the plaintiffs asked the trial court to reinstate the
original judgment. The trial court denied the plaintiffs'
petition in December 2012. On January 8, 2013, the plaintiffs
filed a notice of appeal with the Fifth Judicial District. On
January 16, 2013, PM USA filed a motion asking the Illinois
Supreme Court to immediately exercise its jurisdiction over the
appeal. On February 15, 2013, the Illinois Supreme Court denied
PM USA's motion.
In June 2009, the plaintiff in an individual smoker lawsuit
(Kelly) brought on behalf of an alleged smoker of "Lights"
cigarettes in Madison County, Illinois state court filed a motion
seeking a declaration that his claims under the Illinois Consumer
Fraud Act are not (i) barred by the exemption in that statute
based on his assertion that the Illinois Supreme Court's decision
in Price is no longer good law in light of the decisions by the
United States Supreme Court in Good and Watson, and (ii) preempted
in light of the United States Supreme Court's decision in Good.
In September 2009, the court granted the plaintiff's motion as to
federal preemption, but denied it with respect to the state
statutory exemption.
State Trial Court Class Certifications
State trial courts have certified classes against PM USA in
several jurisdictions. Over time, several such cases have been
dismissed by the courts at the summary judgment stage. Certified
class actions remain pending in California (Brown), Massachusetts
(Aspinall) and Missouri (Larsen). Significant developments in
these cases include:
* Aspinall: In August 2004, the Massachusetts Supreme Judicial
Court affirmed the class certification order. In August
2006, the trial court denied PM USA's motion for summary
judgment and granted the plaintiffs' motion for summary
judgment on the defenses of federal preemption and a state
law exemption to Massachusetts' consumer protection statute.
On motion of the parties, the trial court subsequently
reported its decision to deny summary judgment to the
appeals court for review and stayed further proceedings
pending completion of the appellate review. In December
2008, subsequent to the United States Supreme Court's
decision in Good, the Massachusetts Supreme Judicial Court
issued an order requesting that the parties advise the court
within 30 days whether the Good decision is dispositive of
federal preemption issues pending on appeal. In January
2009, PM USA notified the Massachusetts Supreme Judicial
Court that Good is dispositive of the federal preemption
issues on appeal, but requested further briefing on the
state law statutory exemption issue. In March 2009, the
Massachusetts Supreme Judicial Court affirmed the order
denying summary judgment to PM USA and granting the
plaintiffs' cross-motion. In January 2010, the plaintiffs
moved for partial summary judgment as to liability claiming
collateral estoppel from the findings in the case brought by
the Department of Justice. In March 2012, the trial court
denied the plaintiffs' motion. On February 1, 2013, the
trial court, upon agreement of the parties, dismissed
without prejudice the plaintiffs' claims against Altria
Group, Inc. PM USA is now the sole defendant in the case.
* Brown: In June 1997, the plaintiffs filed a lawsuit in
California state court alleging that domestic cigarette
manufacturers, including PM USA and others, violated
California law regarding unfair, unlawful and fraudulent
business practices. In May 2009, the California Supreme
Court reversed an earlier trial court decision that
decertified the class and remanded the case to the trial
court. The class consists of individuals who, at the time
they were residents of California, (i) smoked in California
one or more cigarettes manufactured by PM USA that were
labeled and/or advertised with the terms or phrases "light,"
"medium," "mild," "low tar," and/or "lowered tar and
nicotine," but not including any cigarettes labeled or
advertised with the terms or phrases, "ultra light" or
"ultra low tar," and (ii) who were exposed to defendant's
marketing and advertising activities in California. The
Plaintiffs are seeking restitution of a portion of the costs
of "light" cigarettes purchased during the class period and
injunctive relief ordering corrective communications. In
September 2012, at the plaintiffs' request, the trial court
dismissed all defendants except PM USA from the lawsuit.
Trial began on April 22, 2013.
* Larsen: In August 2005, a Missouri Court of Appeals
affirmed the class certification order. In December 2009,
the trial court denied the plaintiffs' motion for
reconsideration of the period during which potential class
members can qualify to become part of the class. The class
period remains 1995 through 2003. In June 2010, PM USA's
motion for partial summary judgment regarding the
plaintiffs' request for punitive damages was denied. In
April 2010, the plaintiffs moved for partial summary
judgment as to an element of liability in the case, claiming
collateral estoppel from the findings in the case brought by
the Department of Justice. The plaintiffs' motion was
denied in December 2010. In June 2011, PM USA filed various
summary judgment motions challenging the plaintiffs' claims.
In August 2011, the trial court granted PM USA's motion for
partial summary judgment, ruling that the plaintiffs could
not present a damages claim based on allegations that
Marlboro Lights are more dangerous than Marlboro Reds. The
trial court denied PM USA's remaining summary judgment
motions. Trial in the case began in September 2011 and, in
October 2011, the court declared a mistrial after the jury
failed to reach a verdict. The court has continued the new
trial through January 2014, with an exact date to be
determined.
Based in Richmond, Virginia, Altria Group, Inc. --
http://www.altria.com/-- (previously named Philip Morris
Companies Inc.) is a holding company incorporated in Virginia in
1985. Altria's subsidiaries included Philip Morris USA Inc.,
which is engaged in the manufacture and sale of cigarettes and
certain smokeless products in the United States; John Middleton
Co., which is engaged in the manufacture and sale of machine-made
large cigars and pipe tobacco; and UST LLC, which through its
subsidiaries, including U.S. Smokeless Tobacco Company LLC and
Ste. Michelle Wine Estates Ltd., is engaged in the manufacture and
sale of smokeless products and wine. Philip Morris Capital
Corporation maintains a portfolio of leveraged and direct finance
leases. Philip Morris International Inc. was spun off in 2008.
AMYRIS INC: Milberg LLP Files Federal Securities Class Action
-------------------------------------------------------------
Milberg LLP has filed a federal securities class action against
Amyris, Inc. alleging violations of the Securities Exchange Act of
1934. The action, filed in the United States District Court for
the Northern District of California, is on behalf of purchasers of
Amyris securities between April 29, 2011 and February 8, 2012,
inclusive.
Defendants' are alleged to have violated the federal securities
laws, specifically Section 10(b) and 20(a) of the Securities
Exchange Act of 1934. Defendants in the case are Amyris and CEO
John G. Melo.
According to the complaint, throughout the Class Period Amyris's
priority was the commercialization and production of Biofene and
its derivatives for sale in a range of specialty chemical
applications. The complaint further alleges that defendants
represented to investors that it had the ability to produce
Biofene in commercially meaningful volumes, and that such
representations were materially false and misleading because in
fact Amyris could not produce Biofene in the amounts represented.
On November 1, 2011, Amyris disclosed that it would not be able to
produce Biofene in the quantities previously represented but that
it had identified and learned to address issues that would allow
it to raise the volumes. In reaction to the news, Amyris' share
price fell over 20% from $19.36 per share to $15.47 per share. On
February 9, 2012, Amyris executives reported a further slowdown in
Biofene production and announced the need to raise funds. Amyris
shares fell an additional 28%, from $9.73 per shares to $6.99 per
share.
If you purchased Amyris common stock during the Class Period you
may, no later than July 15, 2013, request that the Court appoint
you lead plaintiff of the proposed class. A lead plaintiff is a
class member that represents other class members in directing the
litigation. Your share in any recovery will not be affected by
serving as a lead plaintiff, however, lead plaintiffs make
important decisions that could affect the overall recovery for
class members. You do not need to be a lead plaintiff to recover
as an absent class member. You may retain Milberg LLP, or other
attorneys, for this action, but do not need to retain counsel to
recover. If this action is certified as a class action, class
members will be automatically represented by Court-appointed
counsel.
Milberg LLP has represented individual and institutional investors
for over four decades and serves as lead counsel in Courts
throughout the United States. Visit the Milberg website
http://www.milberg.comfor more information about the firm. If
you wish to discuss this matter with us, please contact the
following attorney:
Andrei Rado, Esq.
Milberg LLP
One Pennsylvania Plaza, 49th Fl.
New York, NY 10119-0165
Telephone: 800-320-5081
E-mail: arado@milberg.com
BMW AG: Recalls 79 C650GT Motorcycles Due to Defective Fasteners
----------------------------------------------------------------
Starting date: May 23, 2013
Type of communication: Recall
Subcategory: Minibike/ Moped /Scooter, Motorcycle
Notification type: Safety Mfr
System: Other
Units affected: 79
Source of recall: Transport Canada
Identification number: 2013174
TC ID number: 2013174
On certain motorcycles, the fasteners which secure the accessory
luggage rack may loosen over time. This could allow the luggage
rack to separate from the scooter and strike another vehicle, a
stationary object, or a bystander, causing property damage and/or
personal injury. Correction: Dealers will install locking nuts
and apply thread locking compound to the fasteners. The luggage
rack brackets will be replaced with stronger versions.
Makes and models affected
-----------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------
BMW C650GT 2011, 2012, 2013
CARLYLE BAKERY: Recalls Fruit Cakes Due to Undeclared Allergens
---------------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergens - Milk and Sulphites
Hazard classification: Class 1
Source of recall: Canadian Food Inspection Agency
Recalling firm: Carlyle Bakery Ltd.
Distribution: Saskatchewan
Extent of the product
distribution: Retail
CFIA reference number: 8030
The Canadian Food Inspection Agency (CFIA) and Carlyle Bakery Ltd.
are warning people with allergies to milk and sensitivity to
sulphites not to consume the Light Fruit Cake. The affected
product contains milk and sulphites which are not declared on the
label.
There have been no reported illnesses associated with the
consumption of this product.
Consumption of this product may cause a serious or life-
threatening reaction in persons with allergies to milk and
sensitivity to sulphites.
The manufacturer, Carlyle Bakery Ltd., Carlyle, SK, is voluntarily
recalling the affected product from the marketplace. The CFIA is
monitoring the effectiveness of the recall.
Affected products:
Brand name Common name Size
---------- ----------- ----
Carlyle Bakery Carlyle Bakery Ltd. 555 g
Ltd. Light Fruit Cake
Picture of the recalled products' label is available at:
http://is.gd/PS8IDS
CHICAGO: CBE Sued Over Plan to Shutter 53 Elementary Schools
------------------------------------------------------------
Ellyn Fortino, writing for Progress Illinois, reports that two
class action lawsuits looking to put a stop to the Chicago Public
Schools' (CPS) plan to shutter 53 elementary schools at the end of
the academic year were filed in federal court on May 15.
The lawsuits against the Chicago Board of Education on behalf of
CPS parents allege the district's school closure plan
discriminates against African-American students and puts children
with special needs in harm's way.
The Chicago Teachers Union (CTU) is in support of the litigation
and provided some financial assistance to cover legal costs, said
Thomas Geoghegan, one of the lawyers representing the seven
parents who filed the suits. The lawsuits are not on behalf of
CTU, he stressed, but on behalf of Chicago's children.
Mr. Geoghegan said the plaintiffs will seek a preliminary
injunction sometime after the board votes.
"We don't know for certain what the board's actions are going to
be," he said.
The Chicago Board of Education were set to vote on school closings
and other related actions on May 22.
Mr. Geoghegan said the plaintiffs see the 53 closings as a
violation of the Americans with Disabilities Act due to the
"significant" and "irreparable" harm that will be done to children
in special education programs.
The plaintiffs say the proposed closings are also in violation of
the Illinois Civil Rights Act, because they continue a pattern of
singling out African-American children when it comes to bearing
the brunt of school closings, Mr. Geoghegan said.
"If the board and Barbara Byrd-Bennett and the mayor of the city
of Chicago want to save costs, they ought to find another way of
doing so than singling out African-American children over and over
and over and over, over the years to bear the costs of these
school closings," he said.
Since 2001, 72 schools have closed in the city, Mr. Geoghegan
said, and more than 90 percent of the displaced children have been
black.
Under the current proposed school closing plan, 88 percent of the
children in the closing schools are African-American, he said.
African-American students, however, make up about 42 percent of
all children in the city's public schools, he noted.
The first suit, called Swan and named after one of the plaintiffs,
says if the closings were to occur, they need to be slowed down.
About 5,200 special education children will be involved in the
closings, Mr. Geoghegan said.
A little more than two months to transition after the proposed
closings is not enough time to ensure each student will be safe
and have their specific needs met, according to the suit.
Kristine Mayle, CTU financial secretary and a former special
education teacher, said students with autism and other severe
disabilities in particular need more time to transition.
"For students with autism especially, change and transition is one
of the primary problems that they are suffering from," she said.
Teachers typically introduce a child with autism to a new school
slowly, Ms. Mayle explained. Sometimes it is a six-month process,
she added.
The Swan suit calls on the board to have the "decency and
conscious" to put off school closings at least until next year,
Mr. Geoghegan said.
"Slow down the process, so we don't have a tragedy," he said.
The second suit called McDaniel, also named after one of the
plaintiffs, looks to stop the closings completely.
"If you have to save money, find some other way to save money,"
Mr. Geoghegan said. "You can begin with some of these charter
school operators like UNO who don't take any cuts. It's time to
lay off the kids."
Despres, Schwartz and Geoghegan, Ltd., Robin Potter & Associates,
P.C. and the Edwin F. Mandel Legal Aid Clinic at the University of
Chicago are handling the litigation.
CMS ENERGY: Considering Sup. Ct. Appeal in Gas Index Price Suit
---------------------------------------------------------------
CMS Energy Corporation said in its April 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013, that it is considering further
appeals to the U.S. Supreme Court in the Gas Index Price Reporting
Litigation.
CMS Energy, along with CMS Marketing, Services and Trading Company
(CMS MST), CMS Field Services, Cantera Natural Gas, Inc., and
Cantera Gas Company, are named as defendants in various lawsuits
arising as a result of alleged inaccurate natural gas price
reporting to publications that report trade information.
Allegations include manipulation of NYMEX natural gas futures and
options prices, price-fixing conspiracies, restraint of trade, and
artificial inflation of natural gas retail prices in Colorado,
Kansas, Missouri, and Wisconsin. The following provides more
detail on these proceedings:
* In 2005, CMS Energy, CMS MST, and CMS Field Services were
named as defendants in a putative class action filed in
Kansas state court, Learjet, Inc., et al. v. Oneok, Inc., et
al. The complaint alleges that during the putative class
period, January 1, 2000, through October 31, 2002, the
defendants engaged in a scheme to violate the Kansas
Restraint of Trade Act. The plaintiffs are seeking
statutory full consideration damages consisting of the full
consideration paid by plaintiffs for natural gas allegedly
purchased from defendants.
* In 2007, a class action complaint, Heartland Regional
Medical Center, et al. v. Oneok, Inc. et al., was filed as a
putative class action in Missouri state court alleging
violations of Missouri antitrust laws. The Defendants,
including CMS Energy, CMS Field Services, and CMS MST, are
alleged to have violated the Missouri antitrust law in
connection with their natural gas reporting activities.
The Plaintiffs are seeking full consideration damages and
treble damages.
* Breckenridge Brewery of Colorado, LLC and BBD Acquisition
Co. v. Oneok, Inc., et al., a class action complaint brought
on behalf of retail direct purchasers of natural gas in
Colorado, was filed in Colorado state court in 2006. The
Defendants, including CMS Energy, CMS Field Services, and
CMS MST, are alleged to have violated the Colorado Antitrust
Act of 1992 in connection with their natural gas reporting
activities. The Plaintiffs are seeking full refund damages.
* A class action complaint, Arandell Corp., et al. v. XCEL
Energy Inc., et al., was filed in 2006 in Wisconsin state
court on behalf of Wisconsin commercial entities that
purchased natural gas between January 1, 2000, and
October 31, 2002. The defendants, including CMS Energy, CMS
ERM, and Cantera Gas Company, are alleged to have violated
Wisconsin's antitrust statute. The plaintiffs are seeking
full consideration damages, plus exemplary damages and
attorneys' fees. After dismissal on jurisdictional grounds
in 2009, the plaintiffs filed a new complaint in the U.S.
District Court for the Eastern District of Michigan. In
2010, the MDL judge issued an opinion and order granting the
CMS Energy defendants' motion to dismiss the Michigan
complaint on statute-of-limitations grounds and all CMS
Energy defendants have been dismissed from the Arandell
(Michigan) action.
* Another class action complaint, Newpage Wisconsin System v.
CMS ERM, et al., was filed in 2009 in circuit court in Wood
County, Wisconsin, against CMS Energy, CMS ERM, Cantera Gas
Company, and others. The plaintiff is seeking full
consideration damages, treble damages, costs, interest, and
attorneys' fees.
* In 2005, J.P. Morgan Trust Company, in its capacity as
Trustee of the FLI Liquidating Trust, filed an action in
Kansas state court against CMS Energy, CMS MST, CMS Field
Services, and others. The complaint alleges various claims
under the Kansas Restraint of Trade Act. The plaintiff is
seeking statutory full consideration damages for its
purchases of natural gas in 2000 and 2001.
After removal to federal court, all of the cases described above
were transferred to the MDL. CMS Energy was dismissed from the
Learjet, Heartland, and J.P. Morgan cases in 2009, but other CMS
Energy defendants remained parties. All CMS Energy defendants
were dismissed from the Breckenridge case in 2009. In 2010, CMS
Energy and Cantera Gas Company were dismissed from the Newpage
case and the Arandell (Wisconsin) case was reinstated against CMS
ERM. In 2011, all claims against remaining CMS Energy defendants
in the MDL cases were dismissed based on Federal Energy Regulatory
Commission (FERC) preemption. The Plaintiffs have filed appeals
in all of the cases. The issues on appeal are whether the
district court erred in dismissing the cases based on FERC
preemption and denying the plaintiffs' motions for leave to amend
their complaints to add a federal Sherman Act antitrust claim.
The plaintiffs did not appeal the dismissal of CMS Energy as a
defendant in these cases, but other CMS Energy entities remain as
defendants. Oral argument on the appeal was held before the Ninth
Circuit Court of Appeals in San Francisco in 2012.
In April 2013, the Ninth Circuit Court of Appeals reversed the MDL
decision and remanded the case to the MDL judge for further
proceedings. The appellate court found that FERC preemption does
not apply under the facts of these cases. The Court affirmed the
MDL court's denial of leave to amend to add federal antitrust
claims. CMS Energy and the other defendants are considering
further appeals to the U.S. Supreme Court.
These cases involve complex facts, a large number of similarly
situated defendants with different factual positions, and multiple
jurisdictions. Presently, any estimate of liability would be
highly speculative; the amount of CMS Energy's possible loss would
be based on widely varying models previously untested in this
context. If the outcome after appeals is unfavorable, these cases
could have a material adverse impact on CMS Energy's liquidity,
financial condition, and results of operations.
CMS Energy Corporation -- http://www.cmsenergy.com/-- is an
energy company operating primarily in Michigan. CMS Energy is the
parent holding company of several subsidiaries, including
Consumers Energy Company and CMS Enterprises Company. Consumers
is an electric and gas utility, and CMS Enterprises is primarily a
domestic independent power producer.
COINSTAR INC: Redbox Seeks Summary Judgment in Privacy Class Suit
-----------------------------------------------------------------
Coinstar, Inc.'s Redbox subsidiary is seeking summary judgment in
its favor on all remaining claims in the consolidated class action
lawsuit alleging violations of the Video Privacy Protection Act,
according to the Company's April 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In March 2011, a California resident, Blake Boesky, individually
and on behalf of all others similarly situated, filed a putative
class action complaint against the Company's Redbox subsidiary in
the U.S. District Court for the Northern District of Illinois.
The plaintiff alleges that Redbox retains personally identifiable
information of consumers for a time period in excess of that
allowed under the Video Privacy Protection Act, 18 U.S.C. Sections
2710, et seq. A substantially similar complaint was filed in the
same court in March 2011 by an Illinois resident, Kevin Sterk.
Since the filing of the complaint, Blake Boesky has been replaced
by a different named plaintiff, Jiah Chung, and an amended
complaint has been filed alleging disclosures of personally
identifiable information, in addition to plaintiffs' claims of
retention of such information. The Plaintiffs are seeking
statutory damages, injunctive relief, attorneys' fees, costs of
lawsuit, and interest. The court has consolidated the cases. The
court denied Redbox's motion to dismiss the plaintiffs' claims
upon interlocutory appeal. The U.S. Court of Appeals for the
Seventh Circuit reversed the district court's denial of Redbox's
motion to dismiss plaintiff's claims involving retention of
information, holding that the plaintiffs could not maintain a
lawsuit for damages under this theory.
On April 25, 2012, the plaintiffs amended their complaint to add
claims under the Stored Communications Act, 18 U.S.C. Section
2707, and for breach of contract. On May 9, 2012, Redbox moved to
dismiss the amended complaint. On July 23, 2012, the court
dismissed the added retention claims, except to the extent that
the plaintiffs seek injunctive, non-monetary relief.
On April 8, 2013, Redbox filed a motion seeking summary judgment
in its favor on all remaining claims, and requested that the court
stay further class proceedings pending resolution of the summary
judgment motion. The court has yet to set a briefing schedule on
the two motions.
The Company believes that the claims against it are without merit
and intends to defend itself vigorously in this matter.
Currently, no accrual has been established as it is not possible
to estimate the possible loss or range of loss because this matter
had not advanced to a stage where the Company could make any such
estimate.
Coinstar, Inc. provides automated retail solutions, including
Redbox and Coin segments. The Company is based in Bellevue,
Washington.
COINSTAR INC: Response in "DiSimone/Sinibaldi" Appeal Due May 31
----------------------------------------------------------------
Redbox's response in the appeal in "DiSimone/Sinibaldi" class
action lawsuit is due May 31, 2013, according to Coinstar, Inc.'s
April 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In February 2011, a California resident, Michael Mehrens,
individually and on behalf of all others similarly situated, filed
a putative class action complaint against the Company's Redbox
subsidiary in the Superior Court of the State of California,
County of Los Angeles. The plaintiff alleges that, among other
things, Redbox violated California's Song-Beverly Credit Card Act
of 1971 ("Song-Beverly") with respect to the collection and
recording of consumer personal identification information, and
violated the California Business and Professions Code Section
17200 based on the alleged violation of Song-Beverly. A similar
complaint alleging violations of Song-Beverly and the right to
privacy generally was filed in March 2011 in the Superior Court of
the State of California, County of Alameda, by a California
resident, John Sinibaldi. A third similar complaint alleging only
a violation of Song-Beverly, was filed in March 2011 in the
Superior Court of the State of California, County of San Diego, by
a California resident, Richard Schiff. The Plaintiffs are seeking
compensatory damages and civil penalties, injunctive relief,
attorneys' fees, costs of lawsuit, and interest. Redbox removed
the Mehrens case to the U.S. District Court for the Central
District of California, the Sinibaldi case to the U.S. District
Court for the Northern District of California, and the Schiff case
to the U.S. District Court for the Southern District of
California. The Sinibaldi case was subsequently transferred to
the U.S. District Court for the Central District of California,
where the Mehrens case is pending, and these two cases have been
consolidated. At the same time, the plaintiffs substituted
Nicolle DiSimone as the named plaintiff in the Mehrens case.
After Redbox filed a motion to dismiss, stay, or transfer, the
Schiff case was transferred to the U.S. District Court for the
Central District of California.
On January 4, 2013, the Court dismissed with prejudice the Schiff
case for failure to prosecute and failure to comply with court
rules and orders. Redbox moved to dismiss the DiSimone/Sinibaldi
case, and DiSimone/Sinibaldi moved for class certification. In
January 2012, the Court granted Redbox's motion to dismiss with
prejudice and denied DiSimone/Sinibaldi's motion for class
certification as moot. On February 2, 2012, the Plaintiffs filed
their notice of appeal. After a stay pending the California
Supreme Court's decision in a case presenting similar issues
involving Song-Beverly in a case to which Redbox is not a party,
the Plaintiffs filed their opening brief on April 15, 2013.
Redbox's response is due May 31, 2013.
The Company believes that the claims against it are without merit
and intends to defend itself vigorously in this matter.
Currently, no accrual has been established as it is not possible
to estimate the possible loss or range of loss because this matter
had not advanced to a stage where the Company could make any such
estimate.
Coinstar, Inc. provides automated retail solutions, including
Redbox and Coin segments. The Company is based in Bellevue,
Washington.
COINSTAR INC: Still Awaits Ruling on Cert. Bid in "Piechur" Suit
----------------------------------------------------------------
Coinstar, Inc., is still awaiting a court decision on Laurie
Piechur's motion for class certification, according to the
Company's April 25, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2013.
In October 2009, an Illinois resident, Laurie Piechur,
individually and on behalf of all others similarly situated, filed
a putative class action complaint against the Company's Redbox
subsidiary in the Circuit Court for the Twentieth Judicial
Circuit, St. Clair County, Illinois. The plaintiff alleges that,
among other things, Redbox charges consumers illegal and excessive
late fees in violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act, and that Redbox's rental terms
violate the Illinois Rental Purchase Agreement Act or the Illinois
Automatic Contract Renewal Act and the plaintiff is seeking
monetary damages and other relief. In November 2009, Redbox
removed the case to the U.S. District Court for the Southern
District of Illinois. In February 2010, the District Court
remanded the case to the Circuit Court for the Twentieth Judicial
Circuit, St. Clair County, Illinois. In May 2010, the court
denied Redbox's motion to dismiss the plaintiff's claims, and also
denied the plaintiff's motion for partial summary judgment. In
November 2011, the plaintiff moved for class certification, and
Redbox moved for summary judgment. The court denied Redbox's
motion for summary judgment in February 2012. The plaintiff filed
an amended complaint on April 19, 2012, and an amended motion for
class certification on June 5, 2012. The court denied Redbox's
motion to dismiss the complaint. The class certification motion
has been briefed and argued, and the court has not yet ruled on
the motion for class certification. The plaintiff has dismissed
its claims regarding Redbox's fees and is only pursuing its claims
under the Illinois Rental Purchase Agreement Act and the Illinois
Automatic Contract Renewal Act.
The Company believes that the claims against it are without merit
and intends to defend itself vigorously in this matter.
Currently, no accrual has been established as it was not possible
to estimate the possible loss or range of loss because this matter
had not advanced to a stage where the Company could make any such
estimate.
Coinstar, Inc. provides automated retail solutions, including
Redbox and Coin segments. The Company is based in Bellevue,
Washington.
COLGATE-PALMOLIVE: Still Defends ERISA Litigation in New York
-------------------------------------------------------------
In October 2007, a putative class action claiming that certain
aspects of the cash balance portion of the Colgate-Palmolive
Company Employees' Retirement Income Plan (the Plan) do not comply
with the Employee Retirement Income Security Act was filed against
the Plan and the Company in the United States District Court for
the Southern District of New York. Specifically, Proesel, et al.
v. Colgate-Palmolive Company Employees' Retirement Income Plan, et
al. alleges improper calculation of lump sum distributions, age
discrimination and failure to satisfy minimum accrual
requirements, thereby resulting in the underpayment of benefits to
Plan participants.
Two other putative class actions filed earlier in 2007, Abelman,
et al. v. Colgate-Palmolive Company Employees' Retirement Income
Plan, et al., in the United States District Court for the Southern
District of Ohio, and Caufield v. Colgate-Palmolive Company
Employees' Retirement Income Plan, in the United States District
Court for the Southern District of Indiana, both alleging improper
calculation of lump sum distributions and, in the case of Abelman,
claims for failure to satisfy minimum accrual requirements, were
transferred to the Southern District of New York and consolidated
with Proesel into one action, In re Colgate-Palmolive ERISA
Litigation. The complaint in the consolidated action alleges
improper calculation of lump sum distributions and failure to
satisfy minimum accrual requirements, but does not include a claim
for age discrimination. The relief sought includes recalculation
of benefits in unspecified amounts, pre- and post-judgment
interest, injunctive relief and attorneys' fees. This action has
not been certified as a class action as yet. The parties are in
discussions via non-binding mediation to determine whether the
action can be settled. The Company and the Plan intend to contest
this action vigorously should the parties be unable to reach a
settlement.
No further updates were reported in the Company's April 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
Colgate-Palmolive Company is a consumer products company.
Colgate's products are marketed in over 200 countries and
territories worldwide. It operates in two product segments: Oral,
Personal and Home Care; and Pet Nutrition.
ECO-CUISINE: Recalls Brownie, Cookie and Other Mix Products
-----------------------------------------------------------
Eco-Cuisine of Boulder, Colorado, is recalling all lots of T3314
Basic Brownie Mix, T3333 Betty Brownie Mix with Vanilla, T3388
Ground Beef Style Quick Mix, T3394 Sausage Style Quick Mix, T3416
Chocolate Cookie Mix, T3417 Lemon Muffin Mix, and T3418 English
Scone Mix, CM25COOK Basic Cookie Mix 25 lb. bag, CM25MUFF Basic
Muffin Mix 25 lb. bag, CM25SCON Basic Scone Mix 25 lb. Bag,
because it has the potential to be contaminated with Salmonella,
an organism which can cause serious and sometimes fatal infections
in young children, frail or elderly people, and others with
weakened immune systems. Healthy persons infected with Salmonella
often experience fever, diarrhea (which may be bloody), nausea,
vomiting and abdominal pain. In rare circumstances, infection
with Salmonella can result in the organism getting into the
bloodstream and producing more severe illnesses such as arterial
infections (i.e., infected aneurysms), endocarditis and arthritis.
The baking mix products were distributed nationwide through direct
sales and food service distribution centers.
Products affected are:
Product Code Description Packaging Size
------------ ----------- --------------
T3314 Eco-Cuisine Basic 1 lb. bag/10 bags per box
Brownie Mix or 25 lb. bulk box
T3333 Eco-Cuisine Betty 17.5 oz bag/10 bags
Brownie Mix with per box
Vanilla
T3388 Eco-Cuisine Ground 10 lb box
Beef Style Quick Mix
T3394 Eco-Cuisine Sausage 10 lb box
Style Quick Mix
T3416 Eco-Cuisine Chocolate 1 lb. bag/10 bags per case
Cookie Mix
T3417 Eco-Cuisine Lemon 1 lb. bag/10 bags per case
Muffin Mix
T3418 Eco-Cuisine English 1 lb. bag/10 bags per case
Scone Mix
CM25COOK Eco-Cuisine Basic 25 lb bag
Cookie Mix
CM25MUFF Eco-Cuisine Basic 25 lb bag
Muffin Mix
CM25SCON Eco-Cuisine Basic 25 lb bag
Scone Mix
TV25PANC Eco-Cuisine Basic 25 lb bag
Pancake Mix
TV10GBQM Eco-Cuisine "Ground 10 lb box
Beef Style" Quick Mix
TV10CKQM Eco-Cuisine "Chicken 10 lb box
Style" Quick Mix
RM10CKQM Eco-Cuisine "Chicken 10 lb box
Style" Quick Mix
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm353927.htm
No illnesses have been reported to date.
The recall was as the result of notification by CHS Foods that
ingredients used in the aforementioned products were being
recalled for Salmonella. The Company has ceased the production
and distribution of the product as FDA and the Company continue
their investigation as to what caused the problem.
Consumers who have purchased the above listed products are urged
to return it to the place of purchase for a full refund.
Consumers with questions may contact Eco-Cuisine Monday through
Friday 8:00 a.m. to 5:00 p.m. Mountain Daylight Time at 303-402-
0289.
EQUIFAX INC: 9th Cir. Remands Class Suit to Calif. Dist. Court
--------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit remanded the
consolidated class action lawsuit to the U.S. District Court for
the Central District of California for further proceedings,
according to Equifax Inc.'s April 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In consolidated actions filed in the U.S. District Court for the
Central District of California, captioned Terri N. White, et al.
v. Equifax Information Services LLC, Jose Hernandez v. Equifax
Information Services LLC, Kathryn L. Pike v. Equifax Information
Services LLC, and Jose L. Acosta, Jr., et al. v. Trans Union LLC,
et al., the plaintiffs asserted that Equifax violated federal and
state law (the Fair Credit Reporting Act, the California Credit
Reporting Act and the California Unfair Competition Law) by
failing to follow reasonable procedures to determine whether
credit accounts are discharged in bankruptcy, including the method
for updating the status of an account following a bankruptcy
discharge. On August 20, 2008, the District Court approved a
Settlement Agreement and Release providing for certain changes in
the procedures used by defendants to record discharges in
bankruptcy on consumer credit files. That settlement resolved
claims for injunctive relief, but not the plaintiffs' claims for
damages. On May 7, 2009, the District Court issued an order
preliminarily approving an agreement to settle remaining class
claims. The District Court subsequently deferred final approval
of the settlement and required the settling parties to send a
supplemental notice to those class members who filed a claim and
objected to the settlement or opted out, with the cost for the re-
notice to be deducted from the plaintiffs' counsel fee award.
Mailing of the supplemental notice was completed on February 15,
2011. The deadline for this group of settling plaintiffs to
provide additional documentation to support their damage claims or
to opt-out of the settlement was March 31, 2011.
On July 15, 2011, following another approval hearing, the District
Court approved the settlement. Several objecting plaintiffs
subsequently filed notices of appeal to the U.S. Court of Appeals
for the Ninth Circuit, which, on April 22, 2013, issued an order
remanding the case to the District Court for further proceedings.
Atlanta, Georgia-based Equifax Inc. -- http://www.equifax.com/--
is a global provider of information solutions and human resources
business process outsourcing services for businesses and
consumers. The Company has a large and diversified group of
clients, including financial institutions, corporations,
governments and individuals.
FACEBOOK INC: Faces Class Action Over Unsolicited Text Messages
---------------------------------------------------------------
David Cohen, writing for AllFacebook, reports that an Illinois
woman is leading a class-action suit against Facebook, claiming
that she received an unsolicited text message from the social
network in February, and her lawyers are actively seeking more
plaintiffs who had similar experiences.
Independent.ie reported that Darya Ivankina of Illinois received a
junk text message asking her to friend someone on Facebook, adding
that according to U.S. law, the social network is potentially
liable for up to $1,500 per text message.
Ms. Ivankina's court filing claimed that Facebook "engaged in an
especially pernicious form of marketing: the transmission of
unauthorized advertisements in the form of "text message" calls,"
and her lawyers added:
Over the course of an extended period beginning in at least 2013,
defendants and their agents directed the mass transmission of
wireless spam to cell phone numbers in Illinois and throughout the
U.S. in an unlawful effort to market and promote defendants'
social networking website.
Facebook responded that it only sends text messages to users who
have authorized the social network to do so.
GENERAL MOTORS: Recalls 118 ATS, IMPALA and XTS Vehicles
--------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Subcategory: Car
Notification type: Safety Mfr
System: Lights And Instruments
Units affected: 118
Source of recall: Transport Canada
Identification number: 2013176
TC ID number: 2013176
Manufacturer recall number: 13158
On certain vehicles, the brake lamps could flash intermittently
without the brake pedal being depressed. This would convey a
confusing message to following road users who, in turn, may not
react in a timely manner when the driver does apply the brakes.
As such, this could result in a crash causing property damage
and/or personal injury. Correction: Dealers will reprogram the
Body Control Module.
Affected products:
Makes and models affected
----------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------
CHEVROLET IMPALA 2014
CADILLAC XTS 2013
CADILLAC ATS 2013
GOOGLE INC: Judge Denies Class Action Status to Copyright Owners
----------------------------------------------------------------
Reuters reports that a US judge on May 15 denied class-action
status to copyright owners suing Google over the use of material
posted on YouTube without their permission.
US district judge Louis Stanton in Manhattan denied a motion to
certify a worldwide class of copyright owners in a long-running
lawsuit over videos and music posted to the popular Web site.
Click here
"The suggestion that a class action of these dimensions can be
managed with judicial resourcefulness is flattering, but
unrealistic," Judge Stanton wrote.
The case ran in parallel with a $1 billion lawsuit filed in 2007
by Viacom over Google's alleged unauthorized hosting on YouTube of
clips uploaded by users from "The Daily Show with Jon Stewart",
"South Park", and "SpongeBob SquarePants". Judge Stanton threw
Viacom's case out on April 18, a year after the second US Circuit
Court of Appeals reinstated the copyright infringement case.
The proposed class action lawsuit was filed in 2007 and included
as named plaintiffs the English Premier League, the French Tennis
Federation, the National Music Publishers' Association (NMPA) and
individual music publishers.
However, NMPA settled with YouTube in 2011.
One part of the proposed class would have included any copyright
owner whose allegedly infringed videos were blocked by YouTube
after it received a so-called takedown notice and blocked it.
Another part of the proposed class covered music publishers whose
compositions were allowed to be used on YouTube without proper
permission.
But Judge Stanton said while the legal analyses he would have had
to apply in the case would have been similar for the various
plaintiffs, each copyright owner's case would need to be decided
based on facts particular to their individual claims.
"Generally speaking, copyright claims are poor candidates for
class-action treatment," he said.
Allowing the case to move forward as a class action would turn it
into a "mammoth proceeding," Judge Stanton said. The plaintiffs
said the members in their proposed worldwide class action would
have numbered in the thousands.
Charles Sims, a lawyer for the plaintiffs at the law firm
Proskauer Rose, said his clients were "going to think about their
options," including asking the court for permission to appeal.
Abbi Tatton, a spokesperson for Google, declined to comment. The
ruling marked the second major defeat in recent weeks for
litigants suing Google over the unauthorized hosting of
copyrighted material on YouTube.
In the Viacom case decided last month, Stanton sided with Google
in finding that it was protected from Viacom's copyright claims
thanks to the "safe harbor" provisions of the Digital Millennium
Copyright Act. The 1998 federal law made it illegal to produce
technology that could circumvent anti-piracy measures, but also
limited the liability of online service providers over copyright
infringement by their users.
Viacom has filed a notice of appeal from Judge Stanton's ruling.
HEARST CORP: Judge Says Former Interns Cannot Proceed as Class
--------------------------------------------------------------
Adam Klasfeld at Courthouse News Service reports that unpaid
former interns of Hearst-owned magazines cannot proceed as a
class, nor will they get a trial any time soon, a federal judge
ruled this month.
Harper's Bazaar employee Xueden "Diana" Wang filed a federal
complaint against the publishing empire last year, hoping to
represent more than 3,000 other interns hired by Hearst over the
past six years.
U.S. District Judge Harold Baer adjourned their trial "sine die,"
Latin for "without [a future set] day," in a 13-page order
summarizing what Wang and the co-plaintiffs learned about Hearst's
business practices during discovery.
"Since 2008, Hearst worked to reduce costs by decreasing its
headcount and expenses at the magazines as a response to the
recession, and internal emails within Harper's Bazaar and Marie
Claire instructed the staff to use interns rather than paid
messengers to save costs," the order states.
That year, Hearst sacked 229 full-time time employees -- laying
off 109 by shuttering three magazines and firing 88 middle- to
senior-level and 32 entry-level staffers, according to the order.
Its human resources department tried to fill this gap by hiring
interns willing to work for college credit.
Wang, who sometimes worked from 9 a.m. to 8 p.m., served as a go-
between between editors and publicists, performed online research,
catalogued samples, and laid out storyboards, from August to
December 2011. She also maintained the accessories closet.
Other interns from Cosmo, Marie Claire, Esquire, Redbook and
Seventeen joined the suit, regaling the court with similar tales
of performing substantial and menial work for no pay. They
claimed that the Fair Labor Standards Act and New York Labor Law
made no exception for unpaid internships.
Agreeing on that point, Judge Baer said that the interns' lawsuit
turned on the 1947 case of Walling v. Portland Terminal.
The Supreme Court ruled in that case that a railroad company could
make workers put in roughly a week of unpaid "practical training,"
and found that the company did not get "immediate advantage" from
its employees.
The Department of Labor issued a fact sheet three years ago that
put "some meat on the Walling bones," according to the ruling.
In a six-point "Test for Unpaid Interns," the fact sheet says that
internships should be similar to educational training, benefit the
intern, not displace regular employees, not derive immediate
advantage from the intern, not come with the promise of a job and
not dance around the lack of wages.
Despite these criteria, Baer found that "there is no one-
dimensional test; rather, the prevailing view is the totality of
circumstances test."
This multidimensional test would be impossible to apply to a class
of 3,000 members, fatally thwarting the "commonality" needed for a
class action, he added.
"The duties performed by lead and opt-in plaintiffs -- to say
nothing of the variation within each magazine and corporate
department -- clearly suggest that internships varied greatly from
magazine to magazine," Baer wrote.
Finding that "case management would be difficult, if not near
impossible," Baer suggested that "separate actions may be more
appropriate."
Neither set of attorneys immediately responded to a request for
comment.
HEWLETT-PACKARD: 9th Cir. Appeals Court Voids Printer Settlement
----------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that a divided
federal appeals court on May 15 voided a class action settlement
between Hewlett-Packard Co. and millions of consumers who bought
its inkjet printers over nearly a decade, saying the fees awarded
to the consumers' lawyers must be recalculated.
The decision by the 9th U.S. Circuit Court of Appeals in San
Francisco could discourage class action settlements involving
"coupons" rather than cash, saying Congress intended that class
action lawyers not be awarded fees "grossly disproportionate" to
relief obtained by the people they represent.
In the HP case, Circuit Judge Milan Smith wrote for a 2-1 majority
that fees should take into account the value of coupons actually
being redeemed, not the total coupon relief offered. The 9th
Circuit returned the case to U.S. District Judge Jeremy Fogel in
San Jose, California, for further proceedings.
The settlement was intended to resolve claims that consumers who
bought HP printers between September 2001 and September 2010 were
misled into spending too much on or misusing ink cartridges.
HP agreed to provide up to $5 million of coupons, known as
"e-credits," for future printers and printer supplies on its
website, and to improve disclosures. Lawyers for the consumers
were awarded $1.5 million of fees and $597,000 of costs.
About 122,000 of the millions of class members filed claims before
Judge Fogel granted final settlement approval in March 2011.
But the accord drew objections from people including Ted Frank, a
longtime advocate against high legal fees. They said the
settlement was the product of collusion between lawyers for HP and
consumers, and violated portions of the federal Class Action
Fairness Act that govern fees in settlements that have coupon
components.
Dissent
While acknowledging that CAFA was "poorly drafted," Judge Smith
said the law was clear that legal fees should be attributable to
the value of coupons that are actually used.
He said it is not enough that plaintiffs' lawyers work hard, or
even achieve victory, to justify higher payouts.
"By tying attorney compensation to the actual value of the coupon
relief, Congress aimed to prevent class counsel form walking away
from a case with a windfall, while class members walk away with
nothing," Judge Smith wrote, in an opinion joined by Circuit Judge
Ronald Gould.
"Although a class counsel's hard work on an action is presumably a
necessary condition to obtaining attorney's fees, it is never a
sufficient condition," he continued. "Plaintiffs attorneys don't
get paid simply for working; they get paid for obtaining results."
Judge Smith said Judge Fogel erred by making a "rough estimate of
the ultimate value" of the settlement when setting legal fees.
Circuit Judge Marsha Berzon dissented. She said the majority
erred in demanding that a court "must award fees as a percentage
of the coupons actually redeemed," rather than taking into account
the time reasonably spent by lawyers on the matter.
In a phone interview, Mr. Frank said he was reviewing the decision
but that "we're obviously pleased to get a victory."
Niall McCarthy -- nmccarthy@cpmlegal.com -- a partner at Cotchett,
Pitre & McCarthy representing the consumers, said in an e-mail the
decision "does not in any way criticize the fairness of the
settlement to class members or the amount of attorneys' fees. We
view this decision as procedural and not substantive."
Samuel Liversidge -- sliversidge@gibsondunn.com -- a partner at
Gibson, Dunn & Crutcher representing HP, did not immediately
respond to a request for comment.
The case is In re HP Inkjet Printer Litigation, 9th U.S. Circuit
Court of Appeals, No. 11-16097.
For plaintiffs: Niall McCarthy of Cotchett, Pitre & McCarthy.
For HP: Samuel Liversidge of Gibson, Dunn & Crutcher.
For Center for Class Action Fairness: Ted Frank.
* * *
According to The Recorder's Scott Graham, on the surface, In re HP
Inkjet Printer Litigation doesn't seem like the kind of class
action settlement that would get a thumbs-down from the Ninth
Circuit.
Cotchett, Pitre & McCarthy and other plaintiffs firms submitted
bills for more than $7 million in fees and expenses, but agreed
with Hewlett-Packard Co. to accept $2.9 million. Judge Fogel, now
the director of the Federal Judicial Center, appears to have
conducted a thorough fairness hearing before reducing the fee
award further, to $1.5 million.
But the U.S. Court of Appeals for the Ninth Circuit sent the case
back to district court on May 15 for one simple reason: The
settlement compensated class members primarily with coupons, not
cash. A divided Ninth Circuit ruled that under the 2005 Class
Action Fairness Act, attorney fees for coupon relief must be based
on the actual redemption value of the coupons, not their
potentially inflated face value, as may have been the case with
the HP settlement.
"Unlike a cash settlement, coupon settlements involve variables
that make their value difficult to appraise, such as redemption
rates and restrictions," Judge Smith wrote. "Consideration of
these variables necessarily increases the complexity of the
district court's task. . . . And perhaps more importantly, the
additional complexity also provides class counsel with the
opportunity to puff the perceived value of the settlement so as to
enhance their own compensation."
Judge Berzon dissented, saying the "rigid" new rules laid down by
the court are unworkable, particularly in settlements that combine
coupons with other forms of relief like injunctions.
"The plaintiffs in their submission did not distinguish between
hours worked toward the coupon portion of the settlement and hours
worked toward the injunctive relief," she wrote. "Nor could they
have."
In re HP Inkjet Printer Litigation is a clash of class action
titans. The Cotchett firm is one of California's preeminent class
action shops and was represented before the Ninth Circuit by name
partner Niall McCarthy, a former president of Consumer Attorneys
of California. Representing himself and another objector to the
settlement was Ted Frank of Washington, D.C.'s Center for Class
Action Fairness. Gibson, Dunn & Crutcher partner Peter Sullivan
represented HP.
The case involves three separate actions brought on behalf of a
nationwide class of consumers who bought HP printers between 2001
and 2010. The actions alleged that HP misled consumers into
buying replacement printer cartridges before their cartridges were
empty, concealed expiration dates, and engaged in other unfair
practices. The actions were "aggressively litigated" for several
years, according to the Ninth Circuit, with the Cotchett firm,
Chavez & Gertler and Berk Law facing off against Gibson Dunn. It
didn't go well for plaintiffs, as class certification was denied
in one action and Judge Fogel saw evidence of injury and causation
as "weak."
A global settlement was reached in August 2010 whereby HP provided
consumers $5 million worth of "e-credits" -- essentially online
coupons -- plus $950,000 for class notice and settlement
administration and up to $2.9 million in attorney fees. HP also
agreed to make additional disclosures to purchasers of HP printers
and ink. Class claims were filed by 122,000 members, while three
objected and 810 opted out.
Plaintiffs counsel, who logged 17,000 hours of time, estimated the
settlement value at $16 million to $41 million, but Judge Fogel
pegged it closer to $1.5 million, even when combining the coupons
with the injunctive relief. He reduced the award to $1.5 million
in fees and about $600,000 in costs.
On May 15, Judge Smith acknowledged that Judge Fogel had
"meaningfully reduced the proposed award." But under CAFA, he
held, Judge Fogel was required to make a specific finding on the
value of the coupons and determine a reasonable contingency award
for them, then determine a reasonable hourly "lodestar" amount for
noncoupon relief.
The HP case was instructive, Judge Smith wrote. The coupons,
worth between $2 and $6 off HP merchandise, were redeemable only
through HP.com, which charges higher prices than some other
retailers like Amazon.com, rendering their value illusory.
"If the legislative history of CAFA clarifies one thing, it is
this," Judge Smith wrote. "The attorneys' fees provisions of Sec.
1712 [of CAFA] are intended to put an end to the 'inequities' that
arise when class counsel receive attorneys' fees that are grossly
disproportionate to the actual value of the coupon relief obtained
for the class."
Judge Gould concurred in Judge Smith's opinion, which refers to
"the majority" at one point, indicating it may have originated as
a dissent.
In dissent, Judge Berzon wrote that CAFA does not impose such
rigid rules, particularly in cases where coupons are involved with
other forms of class relief.
"Our uniform case law, both before and after CAFA, affords
district courts discretion to calculate attorney's fees in common
fund cases either on a percentage-of-recovery basis, according to
which the court sets fees as a percentage of the overall fund, or
on a lodestar basis," Judge Berzon wrote.
"Here, the district court proceeded exactly as required by our
class action settlement case law and as permitted by Sec. 1712,"
she added.
Judge Rejects Award of $2MM Attorney Fees & Costs
Tim Hull at Courthouse News Service reports that the 9th Circuit
rejected an award of more $2 million in attorneys' fees and costs
in a class-action settlement over Hewlett Packard inkjet printers.
The federal appeals court in San Francisco found that a lower
court had used the wrong method to calculate fees and costs in a
settlement that gave the plaintiffs coupons worth between $2 and
$6.
HP had faced three proposed class actions by 2007 alleging that it
had misled consumers. One case claimed the company had duped
customers into buying replacement ink cartridges before their
current one had run dry. Another claimed that the company had
neglected to tell customers that its printers combined colors from
ink cartridges to print black and white text, a practice known as
"underprinting." The third lawsuit claimed that HP had hidden the
fact that some its cartridges had expiration dates.
U.S. District Judge Jeremy Fogel in Sacramento approved the
parties' approximately $6 million settlement in 2010. The
agreement called for HP to make disclosures about its printers, to
hand out up to $5 million in "e-credits" for HP products, and to
pay another $1 million in notice and administration costs. The
value of the e-credits would range from $2 to $6.
The class conceivably contains millions of people, but 122,000
filed claims after a notice campaign.
The District Court also approved about $2 million in attorneys'
fees and costs, a significant step-down from the more than
$7 million in bills class counsel submitted, and a slight
reduction in the nearly $3 million that the lawyers eventually
requested.
While two members of the class, Kimberly Schratwieser and Theodore
Frank, objected to the settlement on a number of grounds, the 9th
Circuit reached only the attorneys' fees question in a divided
reversal.
The question came down to differing interpretations of Section 3
of the Class Action Fairness Act (CAFA), which sets down specific
rules for calculating fees and costs in class-action cases where
the lawyers get cash and the plaintiffs get a coupon.
"When a settlement provides for coupon relief, either in whole or
in part, any attorney's fee 'that is attributable to the award of
coupons' must be calculated using the redemption value of the
coupons," Judge Milan Smith wrote for the San Francisco-based
majority.
Instead, the lower court "estimated the 'ultimate value' of the
settlement to the class at roughly $1.5 million," Judge Smith
wrote, noting that it recognized "that it would be improper to
award fees that outstrip the calculated class benefit."
"Since the district court awarded fees that were 'attributable to'
the coupon relief, but failed to first calculate the redemption
value of those coupons, we reverse the orders of the district
court and remand for further proceedings consistent with this
opinion," the ruling states.
Judge Marsha Berzon disagreed with the majority's reading in a
lengthy dissent.
"On my reading of the statute, CAFA allows the use of a lodestar
to calculate attorney's fees on the basis of hours reasonably
expended on the class action as a whole, rather than as a
percentage of the value of the class recovery," Judge Berzon
wrote. "That permission applies whether the relief obtained for
the class involves, in whole or in part, coupons, or whether it
does not. The limit CAFA imposes with regard to cases in which
there is a coupon recovery is a limit on the district court's
method of calculating percentage-of-recovery fees, should it
choose that approach."
HEWLETT-PACKARD: Judge Rejects Claims in "Copeland" Suit
--------------------------------------------------------
Angela Watkins at Courthouse News Service reports that a federal
judge dismissed claims that Hewlett-Packard lied to shareholders
and ignored reports of "widespread illegality" within the company.
A.J. Copeland, a Hewlett-Packard shareholder, had claimed that
Hewlett-Packard faced financial losses in the billions because its
board of directors violated the Securities Exchange Act, breached
their fiduciary duty to shareholders and depleted corporate
assets. Copeland sought to overturn the election of Hewlett-
Packard's board of directors because proxy statements used to
solicit votes from HP shareholders allegedly failed to disclose
"wrongdoing" perpetuated by the board.
Hewlett-Packard's board of directors failed to disclose that it
ignored reports of the company's "illegal payment of bribes,"
according to the complaint, which also said they tried to cover up
illegal conduct when investigated by the Securities Exchange
Commission and Justice Department.
The complaint also accused Hewlett-Packard of concealing its waste
of significant company assets, which included $12 million to
silence a former director after a scandal, reckless bidding to the
tune of $2.3 billion, exposure of the company to massive fines,
and excessive compensation for the board of directors.
U.S. District Judge Edward Davila concluded on May 6, 2013,
however, that Copeland could not advance his claims because he
failed to show that the board acted in bad faith when it
investigated and rejected Copeland's allegations. Copeland had
additionally been too late to request a revote for the 2012 board
since the directors had already served most of their terms,
according to the ruling.
Judge Davila barred Copeland from amending his complaint for a
third time to include allegations related HP's actions with
respect to its acquisition of Autonomy Corp. Since HP announced
plans of an $8.8 billion write-down related to this acquisition,
Copeland said it presented new evidence of waste.
Judge Davila found, however, that it would introduce new and
separate causes of action related to a different board of
directors.
Hewlett-Packard meanwhile faces a federal class action from
shareholders in San Francisco alleging that the company ignored
evidence from whistle-blowers and hid concerns about the
$11.1 billion acquisition of the software company Autonomy.
HOT TOPIC: Being Sold to Sycamore for Too Little, Suit Claims
-------------------------------------------------------------
Courthouse News Service reports that directors of Hop Topic are
selling the clothing company too cheaply through an unfair process
to Sycamore Partners, for $14 a share or $600 million,
shareholders claim in a federal class action.
IMAX CORP: Canadians Support Bid to Exclude Members in Class Suit
-----------------------------------------------------------------
The Canadian Action issued a decision in support of IMAX
Corporation's motion to exclude from the class in the Canadian
Action every member of the class in both the securities actions in
the U.S. and Canada, who has not opted out of the U.S. settlement,
according to the Company's April 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
The Company and certain of its officers and directors were named
as defendants in eight purported class action lawsuits filed
between August 11, 2006, and September 18, 2006, alleging
violations of U.S. federal securities laws. These eight actions
were filed in the U.S. District Court for the Southern District of
New York (the "Court"). On January 18, 2007, the Court
consolidated all eight class action lawsuits and appointed
Westchester Capital Management, Inc. as the lead plaintiff and
Abbey Spanier Rodd & Abrams, LLP as lead plaintiff's counsel. On
October 2, 2007, plaintiffs filed a consolidated amended class
action complaint. The amended complaint, brought on behalf of
shareholders who purchased the Company's common stock on the
NASDAQ between February 27, 2003, and July 20, 2007 (the "U.S.
Class"), alleges primarily that the defendants engaged in
securities fraud by disseminating materially false and misleading
statements during the class period regarding the Company's revenue
recognition of theater system installations, and failing to
disclose material information concerning the Company's revenue
recognition practices. The amended complaint also added
PricewaterhouseCoopers LLP, the Company's auditors, as a
defendant. On April 14, 2011, the Court issued an order
appointing The Merger Fund as the lead plantiff and Abbey Spanier
Rodd & Abrams, LLP as lead plantiff's counsel. On November 2,
2011, the parties entered into a memorandum of understanding
containing the terms and conditions of a settlement of this
action.
On January 26, 2012, the parties executed and filed with the Court
a formal stipulation of settlement and proposed form of notice to
the class, which the Court preliminarily approved on February 1,
2012. Under the terms of the settlement, members of the U.S.
Class who did not opt out of the settlement will release
defendants from liability for all claims that were alleged in this
action or could have been alleged in this action or any other
proceeding, including the action in Canada (the "Canadian Action")
relating to the purchase of IMAX securities on the NASDAQ from
February 27, 2003, and July 20, 2007, or the subject matter and
facts relating to this action. As part of the settlement and in
exchange for the release, the defendants will pay $12.0 million to
a settlement fund which amount will be funded by the carriers of
the Company's directors and officers insurance policy and by
PricewaterhouseCoopers LLP. On March 26, 2012, the parties
executed and filed with the Court an amended formal stipulation of
settlement and proposed form of notice to the class, which the
court preliminarily approved on March 28, 2012.
On June 20, 2012, the Court issued an order granting final
approval of the settlement. The settlement is conditioned on the
Company's receipt of an order from the court in the Canadian
Action (the "Canadian Court") excluding from the class in the
Canadian Action every member of the class in both actions who has
not opted out of the U.S. settlement. A hearing on the motion for
the order occurred on July 30, 2012, before the Canadian Court and
on March 19, 2013, the Canadian Action issued a decision in
support of the Company's motion to exclude from the class in the
Canadian Action every member of the class in both actions who has
not opted out of the U.S. settlement. However, no final order
will be granted by the court until the plaintiffs in the Canadian
Action have exhausted their appeals.
Canadian Action
A class action lawsuit was filed on September 20, 2006, in the
Ontario Superior Court of Justice (the "Canadian Court") against
the Company and certain of its officers and directors, alleging
violations of Canadian securities laws. This lawsuit was brought
on behalf of shareholders who acquired the Company's securities
between February 17, 2006, and August 9, 2006. The lawsuit seeks
$210.0 million in compensatory and punitive damages, as well as
costs. For reasons released December 14, 2009, the Canadian Court
granted leave to the plaintiffs to amend their statement of claim
to plead certain claims pursuant to the Securities Act (Ontario)
against the Company and certain individuals and granted
certification of the action as a class proceeding. These are
procedural decisions, and do not contain any conclusions binding
on a judge at trial as to the factual or legal merits of the
claim. Leave to appeal those decisions was denied.
The Company believes the allegations made against it in the
statement of claim are meritless and will vigorously defend the
matter, although no assurance can be given with respect to the
ultimate outcome of such proceedings. The Company's directors and
officers insurance policy provides for reimbursement of costs and
expenses incurred in connection with this lawsuit as well as
potential damages awarded, if any, subject to certain policy
limits, exclusions and deductibles.
Ontario, Canada-based IMAX Corporation -- http://www.imax.com/--
is an entertainment technology companies, specializing in motion
picture technologies and presentations. The Company's principal
business is the design and manufacture of premium theater systems
(IMAX theater systems) and the sale, lease or contribution to
customers under revenue-sharing arrangements of IMAX theater
systems.
JM SMUCKER: Faces Suit Over Misrepresenting Crisco Products
-----------------------------------------------------------
Courthouse News Service reports that a federal class action claims
J.M. Smucker Co. misrepresents its heavily processed Crisco
products, some of them made with genetically modified crops, as
"all natural."
K-V PHARMACEUTICAL: Bid to Modify in PPFG Securities Suit Granted
-----------------------------------------------------------------
The United States District Court for the Eastern District of
Missouri granted in March 2013 the PPFG Litigation Lead
Plaintiff's motion to modify a stay order, according to K-V
Pharmaceutical Company's Form 8-K filing with the U.S. Securities
and Exchange Commission.
On December 2, 2008, Joseph Mas filed a securities class action in
the United States District Court for the Eastern District of
Missouri (the "Missouri District Court"), on behalf of himself and
all others similarly situated, against KV and certain then current
and former officers and directors of KV, alleging violations of
Sections 10(b), and Rule 10b-5 promulgated thereunder, and 20(a)
of the Securities Exchange Act of 1934 (collectively, the "Federal
Securities Laws"). Thereafter, two additional securities class
actions (Herman Unvericht, Individually and on Behalf of All
Others Similarly Situated v. KV Pharmaceutical Co., et al., Civil
Action No. 4:09-cv-00061-RWS, and Norfolk County Retirement
System, on Behalf of Itself and All Others Similarly Situated v.
KV Pharmaceutical Co., et al., Civil Action No. 4:09-cv-00138-CAS)
were filed in the Missouri District Court against KV and certain
then current and former officers and directors of KV alleging
similar violations of the Federal Securities Laws. On April 15,
2009, the Missouri District Court consolidated these securities
class actions into the PPFG Securities Litigation and appointed
the Public Pension Fund Group (comprised of the State-Boston
Retirement System and the Norfolk County Retirement System) as
Lead Plaintiff (the "PPFG Litigation Lead Plaintiff").
On May 22, 2009, the PPFG Litigation Lead Plaintiff, on behalf of
all persons who purchased publicly traded securities of KV between
June 14, 2004, and January 23, 2009, filed a consolidated amended
complaint for alleged violations of the Federal Securities Laws
against KV and certain current or former officers and directors of
KV (the "Non-Debtor Defendants"). Thereafter, the Missouri
District Court entered an order granting motions to dismiss the
consolidated amended complaint filed by KV and the Non-Debtor
Defendants. On June 4, 2012, the United States Court of Appeals
for the Eighth Circuit affirmed in part and reversed in part the
Missouri District Court order and remanded the matter to the
Missouri District Court.
On August 10, 2012, following the Company and its affiliated
Debtors' bankruptcy filing, the Missouri District Court issued an
order, sua sponte, staying the PPFG Securities Litigation as to
the Non-Debtor Defendants (the "PPFG Stay Order"). On
December 6, 2012, PPFG Litigation Lead Plaintiff filed a motion in
the PPFG Securities Litigation (the "PPFG Stay Order Modification
Motion") to modify the PPFG Stay Order so as to proceed against
Mr. M. Hermelin (the sole-remaining Non-Debtor Defendant). Mr. M.
Hermelin and KV objected to the PPFG Stay Order Modification
Motion.
On March 22, 2013, the Missouri District Court issued a Memorandum
and Order granting the PPFG Stay Order Modification Motion and
vacating the PPFG Stay Order solely as to Mr. M. Hermelin, thereby
permitting PPFG Litigation Lead Plaintiff to proceed with the PPFG
Securities Litigation in the Missouri District Court solely as to
Mr. M. Hermelin. The PPFG Litigation Lead Plaintiff and the
individual members thereof (State-Boston Retirement System and the
Norfolk County Retirement System) timely filed class and
individual proofs of claim against KV for, inter alia, alleged
violations of the Federal Securities Laws. The Debtors dispute
the allegations underlying this litigation.
K-V Pharmaceutical Company -- http://www.kvpharmaceutical.com/--
is a fully integrated specialty pharmaceutical company that
develops, manufactures, markets, and acquires technology-
distinguished branded and generic/non-branded prescription
pharmaceutical products. The Company is headquartered in
Chesterfield, Missouri.
K-V PHARMACEUTICAL: Defends Suits in Multiple Jurisdictions
-----------------------------------------------------------
In 2008 and thereafter, a number of investors commenced
stockholder class actions against K-V Pharmaceutical Company and
certain of its current and former directors and officers for
purportedly making false or misleading statements to the U.S. Food
and Drug Administration ("FDA") related to inspections of the
Company's facilities in violation of the federal securities laws.
As of August 4, 2012 (the "Petition Date"), several other class
actions, or purported class actions, are pending against the
Company and certain current and former officers and directors in
multiple jurisdictions.
No further updates were reported in the Company's Form 8-K filing
with the U.S. Securities and Exchange Commission.
K-V Pharmaceutical Company -- http://www.kvpharmaceutical.com/--
is a fully integrated specialty pharmaceutical company that
develops, manufactures, markets, and acquires technology-
distinguished branded and generic/non-branded prescription
pharmaceutical products. The Company is headquartered in
Chesterfield, Missouri.
K-V PHARMACEUTICAL: Still Defends 2011 Securities Litigation
------------------------------------------------------------
K-V Pharmaceutical Company continues to defend itself against the
2011 Securities Litigation, according to the Company's Form 8-K
filing with the U.S. Securities and Exchange Commission.
On July 24, 2012, Lori Anderson, as Court-appointed lead plaintiff
pursuant to the Private Securities Litigation Reform Act of 1995,
filed in the United States District Court for the Eastern District
of Missouri a Consolidated Amended Class Action Complaint for
Violations of Federal Securities Laws (the "2011 Securities
Litigation Complaint") in the 2011 Securities Litigation (which is
captioned In re K-V Pharmaceutical Company Securities Litigation,
11-cv-01816-AGF) on behalf of all those who purchased or otherwise
acquired KV securities between February 14, 2011, and April 4,
2011, inclusive, and were allegedly damaged thereby. The 2011
Securities Litigation Complaint asserts violations of the federal
securities laws, including Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, against one of the Debtors, KV,
and against certain non-Debtor individuals identified in the 2011
Securities Litigation Complaint as being officers of one or more
of the Debtors, including Gregory Divis, Thomas McHugh; and Scott
Goedeke. The lead plaintiff in the 2011 Securities Litigation and
the class of investors she seeks to represent seek to recover for
the harm allegedly suffered as a result of the alleged misconduct
described in the 2011 Securities Litigation Complaint from
applicable insurance, including any directors and officers
insurance maintained for the benefit of any of defendants
currently named in the 2011 Securities Litigation Complaint or who
may be added through the filing of a future complaint, among other
sources of potential recovery. In order to participate in any
potential recoveries obtained in the 2011 Securities Litigation,
each member of the putative class will be required to submit a
proof of claim form in the 2011 Securities Litigation
demonstrating a recognized loss. The Debtors dispute the
allegations set forth in the 2011 Securities Litigation Complaint.
K-V Pharmaceutical Company -- http://www.kvpharmaceutical.com/--
is a fully integrated specialty pharmaceutical company that
develops, manufactures, markets, and acquires technology-
distinguished branded and generic/non-branded prescription
pharmaceutical products. The Company is headquartered in
Chesterfield, Missouri.
KELLOGG CO: Explanation Sought Why Consumers Get Less in New Deal
-----------------------------------------------------------------
Elizabeth Warmerdam at Courthouse News Service reports that a
federal judge wants to know why a revised $4 million class-action
settlement over claims that Kellogg falsely advertised its Frosted
Mini-Wheats slashed the cash value to consumers but not to
attorneys.
U.S. District Judge Irma Gonzalez in San Diego granted preliminary
approval to the new $4 million settlement on May 3, saying it
"appears to fall within the range of possible approval."
However, she expressed concern that the cash value to consumers
dropped by about $6 million -- from $8.5 million to around
$2.5 million -- since the 9th Circuit remanded the settlement.
The district court originally approved the $10.5 million
settlement of a 2009 class action accusing Kellogg of falsely
advertising its Frosted Mini-Wheats as boosting kids' memory and
attentiveness by 20 percent.
After subtracting approximately $2 million in attorneys' fees and
administration costs, the cash value to consumers was about
$8.5 million. Of that amount, $5.5 million would go to charities
under the cy pres doctrine, which allows unclaimed settlement
funds to be distributed to organizations most likely to benefit
class members.
The 9th Circuit reversed the settlement, saying the cy pres award
"failed to target the plaintiff class" because it was slated for
charities that feed the needy instead of consumer protection
agencies. The federal appeals court remanded with instructions to
identify a proper recipient for the $5.5 million.
The revised settlement calls for a $4 million cash fund to be
distributed to class members, with any extra money to be
distributed to Consumers Union, Consumer Watchdog and the Center
for Science in the Public Interest.
About half of the new settlement will still go toward attorneys'
fees and costs, according to the ruling.
Judge Gonzalez granted preliminary approval, but questioned why
the cash value to consumers took a 75 percent hit "while requested
attorneys' fees appear nearly constant." "How did mere
identification of proper cy pres recipients result in such a
severe drop in the value of the class's claims?" she asked.
Judge Gonzalez said that if these concerns are left unresolved,
they "could result in a finding of inadequacy" at the final
approval stage.
"These concerns are especially troubling given the 9th Circuit
previous admonishments to the parties over both illusory dollar
values and excessive attorneys' fees," Judge Gonzalez wrote.
Finding the original settlement amount "unacceptably vague and
possibly misleading," the 9th Circuit had cautioned that the
valuation "must be examined with great care to eliminate the
possibility that it serves only the 'self-interests' of the
attorneys and the parties, and not the class."
Judge Gonzalez ordered the parties to address her concerns during
the final approval hearing scheduled for July 30.
KOHL'S DEPARTMENT: 9th Cir. Reinstates Suit Over False Advertising
------------------------------------------------------------------
Lorraine Bailey at Courthouse News Service reports that consumers
have standing to sue Kohl's Department Stores for allegedly
falsely advertising goods as on sale, when they were routinely
sold at that price, the 9th Circuit ruled.
Antonio Hinojos bought a Samsonite suitcase from Kohl's advertised
as 50 percent off its "original" price of $299.99. He also bought
a number of shirts that were marked down between 32 and 40 percent
from their "original" prices. But in reality, the items were not
on special sale, and Kohl's routinely sold them at the advertised
"sale" price.
Hinojos claims that he "would not have purchased [these] products
at Kohl's in the absence of Kohl's misrepresentations."
The district court dismissed Hinojos' class action, finding that
he had not lost money as a result of Kohl's alleged false
advertising, because he acquired the items he wanted.
But the 9th Circuit reversed the decision on May 21, 2013, based
on its reading of the California Supreme Court's ruling in Kwikset
Corp. v. Superior Court.
"Hinojos has done everything Kwikset requires to allege an
economic injury under the UCL [Unfair Competition Law] and FAL
[False Advertising Law]. He alleges that the advertised discounts
conveyed false information about the goods he purchased, i.e.,
that the goods he purchased sold at a substantially higher price
at Kohl's in the recent past and/or in the prevailing market. He
also alleges that he would not have purchased the goods in
question absent this misrepresentation,'" Judge Stephen Reinhardt
said, writing for the three-judge panel.
The lowers court's ruling limited Kwikset only to cases involving
"factual misrepresentations about the composition, effects,
original, and substance of advertised product."
But, "Kwikset cannot be so easily limited," the 21-page circuit
opinion said.
"In fact, the deceived bargain hunter suffers a more obvious
economic injury as a result of false advertising than the Kwikset
consumer who was duped into buying foreign-made goods, because the
bargain hunter's expectations about the product he just purchased
is precisely that it has a higher perceived value and therefore
has a higher resale value," Judge Reinhardt said.
Under the district court's read of precedent, advertisements such
as "not available in stores," "available for a limited time only,"
"the same model of shoe worn by LeBron James," and "more doctors
recommend our product that any other brand," would not be examples
of false advertising, the 9th Circuit said.
"Here, Hinojos specifically and plausibly alleges that Kohl's
falsely markets its products at reduced prices precisely because
consumers such as himself reasonably regard price reductions as
material information when making purchasing decisions," Judge
Reinhardt said.
The court also rejected Kohl's motion to certify the matter to the
California Supreme Court, especially as it did so after oral
argument, when it gathered that the judges were not favorable to
its position. "Kohl's conduct regarding certification violated
both our rule against belated certification requests and our long-
standing prohibition against a party's use of procedural motions
to avoid having its appeal decided by a panel it perceives as
unfavorable," the court said.
LEAR CORP: Still Awaits Order on Bid to Junk Suits Over Harnesses
-----------------------------------------------------------------
Lear Corporation is still awaiting a court decision on its motion
to dismiss class action lawsuits brought against suppliers of
automotive wire harnesses in the U.S., according to the Company's
April 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 30, 2013.
On October 5, 2011, a plaintiff filed a putative class action
complaint in the United States District Court for the Eastern
District of Michigan against the Company and several other global
suppliers of automotive wire harnesses alleging violations of
federal and state antitrust and related laws. Since that time, a
number of other plaintiffs have filed substantially similar class
action complaints against the Company and these and other
suppliers and individuals in a number of different federal
district courts, and it is possible that additional similar
lawsuits may be filed in the future. The Plaintiffs purport to be
direct and indirect purchasers of automotive wire harnesses
supplied by the Company and/or the other defendants during the
relevant period. The complaints allege that the defendants
conspired to fix prices at which automotive wire harnesses were
sold and that this had an anticompetitive effect upon interstate
commerce in the United States. The complaints further allege that
defendants fraudulently concealed their alleged conspiracy. The
plaintiffs in these proceedings seek injunctive relief and
recovery of an unspecified amount of damages, as well as costs and
expenses relating to the proceedings, including attorneys' fees.
On February 7, 2012, the Judicial Panel on Multidistrict
Litigation entered an order transferring and coordinating the
various civil actions, for pretrial purposes, into one proceeding
in the United States District Court for the Eastern District of
Michigan. On May 14, 2012, three purported classes of plaintiffs
-- direct purchasers of automotive wire harnesses; automotive
dealers that indirectly purchased automotive wire harnesses or
vehicles containing such harnesses; and indirect purchasers that
purchased or leased vehicles containing automotive wire harnesses
(or purchased replacement automotive wire harnesses for their
vehicles) -- filed consolidated amended complaints in the
consolidated proceeding.
With respect to the Company, the consolidated amended complaints
are substantially similar to the individual complaints that had
been filed in the various jurisdictions. On July 13, 2012, the
Company filed a motion to have these actions dismissed for failure
to state a claim for relief, because plaintiffs failed to plead a
plausible claim against the Company and because, even if it
existed, such a claim would be barred following the Company's
emergence from bankruptcy. The Company expects the court to rule
on its motion to dismiss in 2013.
Beginning in early 2012, single putative class action complaints
were filed in the Superior Courts of Justice in Ontario, Quebec
and British Columbia against the Company and several other global
suppliers of automotive wire harnesses alleging violations of
Canadian laws related to competition. The allegations in the
complaints are substantially similar to those complaints that have
been filed in the United States.
On November 17, 2011, the Company filed a motion with the United
States Bankruptcy Court for the Southern District of New York
seeking entry of an order enforcing the Company's 2009 Plan of
Reorganization and directing dismissal of the pending class action
complaints. The bankruptcy court heard oral argument on the
motion and, on February 10, 2012, ruled that claims against the
Company alleging violation of antitrust law are enjoined to the
extent that they arose prior to the Company's emergence from
Chapter 11 bankruptcy proceedings on November 9, 2009. The
bankruptcy court further held that the District Court was the
appropriate forum to address antitrust claims arising after the
Company's emergence from Chapter 11 bankruptcy proceedings. The
Company appealed the bankruptcy court's decision on this issue,
and in November 2012, the appellate court ruled in favor of the
Company and remanded for consideration by the bankruptcy court the
possible effects of certain alleged antitrust claims arising after
November 9, 2009. This issue, however, has been stayed by the
bankruptcy court until a decision has been entered with respect to
the motion to dismiss pending in the United States District Court
for the Eastern District of Michigan.
The ultimate outcome of this litigation, and consequently, an
estimate of the possible loss, if any, related to this litigation,
cannot reasonably be determined at this time. However, the
Company believes the plaintiffs' allegations against it are
without merit and intends to continue to vigorously defend itself
in these proceedings.
Lear Corporation was incorporated in Delaware in 1987 and is
headquartered in Southfield, Michigan. The Company is a Tier 1
supplier to the global automotive industry, supplying its products
to virtually every major automotive manufacturer in the world.
The Company supplies automotive manufacturers with complete
automotive seat systems and related components, as well as
electrical distribution systems and related components.
LOBLAW COS: Recalls President's Choice(R) White Grape Juice
-----------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Sulphites
Hazard classification: Class 1
Source of recall: Canadian Food Inspection Agency
Recalling firm: Loblaw Companies Ltd.
Distribution: British Columbia, Alberta, Saskatchewan,
Manitoba, Ontario, New Brunswick,
Newfoundland and Labrador, Prince Edward
Island, Nova Scotia, Quebec
Extent of the product
distribution: Retail
The Canadian Food Inspection Agency (CFIA) and Loblaw Companies
Limited (Loblaw) are warning people with sensitivity to sulphites
not to consume 1.36 L size President's Choice(R) White Grape
Juice. The affected product contains sulphites which are not
declared on the label.
This product has been distributed nationally in Loblaw banner
stores http://loblawstores.ca/LCLOnline/
The product was sold at:
* BC, AB, SK, MB: Extra Foods(R), nofrills(R), Real Canadian
Superstore(R), Shop Easy(R), SuperValu(R), Your Independent
Grocer(R), Real Canadian Wholesale Club(R)
* ON: Fortinos, Loblaws(R), nofrills(R), Real Canadian
Superstore(R), Real Canadian Wholesale Club(R), Cash &
Carry, valu-mart(R), Your Independent Grocer(R), Zehrs(R),
Freshmart
* Atlantic: Cash & Carry, Real Canadian Wholesale Club(R),
Dominion, Freshmart, Red & White, nofrills(R), Save Easy,
Real Canadian Superstore(R)
* Quebec: AXEP, Group Distribution, L'Intermarche, Loblaws,
Maxi & Cie, Maxi, Provigo, a plein gaz
For a complete list of store information please visit:
http://loblawstores.ca/LCLOnline/
There have been no reported illnesses associated with the
consumption of this product.
Consumption of this product may cause a serious or life-
threatening reaction in persons with sensitivity to sulphites.
The importer, Loblaw Companies Limited, Brampton, ON is
voluntarily recalling the affected product from the marketplace.
The CFIA is monitoring the effectiveness of the recall.
Affected products:
Code(s)
Brand name Common name Size on product
---------- ----------- ---- ----------
President's White Grape Juice 1.36 LT Best Before:
Choice 2014 AL 17
UPC: 060383036607
NG #: 942847
Pictures of the recalled products' labels are available at:
http://is.gd/BubIIx
LOCKHEED MARTIN: 401(k) Plan Suit Proceedings No Longer Material
----------------------------------------------------------------
Lockheed Martin Corporation said in its April 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013, that the proceedings in the class
action lawsuit brought on behalf of participants and beneficiaries
in two of its 401(k) plans are no longer material.
On September 11, 2006, the Company and Lockheed Martin Investment
Management Company, the Company's wholly-owned subsidiary, were
named as defendants in a lawsuit filed in the U.S. District Court
for the Southern District of Illinois, alleging putative classes
of participants and beneficiaries in two of the Company's 401(k)
plans, as well as subsequent developments in that lawsuit. As a
consequence of the Court's dismissal of a number of plaintiffs'
claims and related decisions by the Court on class certification
with respect to the remaining claims, the Company believes that
the proceedings are no longer material and, accordingly, do not
anticipate reporting on them in future periods.
Lockheed Martin Corporation -- http://www.lockheedmartin.com/--
is a global security company and engages in the research, design,
development, manufacture, integration, and sustainment of advanced
technology systems and products. The Company is headquartered in
Bethesda, Maryland.
LOCKHEED MARTIN: Final Hearing on "Pontiac" Suit Deal on June 3
---------------------------------------------------------------
The final hearing on Lockheed Martin Corporation's settlement of
the class action lawsuit filed by the City of Pontiac General
Employees' Retirement System is currently scheduled for June 3,
2013, according to the Company's April 25, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
The Company previously disclosed an agreement in principle to
settle, without material effect on the Corporation's consolidated
financial statements, the class action lawsuit filed by the City
of Pontiac General Employees' Retirement System. On March 27,
2013, the U.S. District Court for the Southern District of New
York granted preliminary approval of the settlement. The final
hearing on the settlement is currently scheduled for June 3, 2013.
Lockheed Martin Corporation -- http://www.lockheedmartin.com/--
is a global security company and engages in the research, design,
development, manufacture, integration, and sustainment of advanced
technology systems and products. The Company is headquartered in
Bethesda, Maryland.
MARCO VISIC: 80+ Fire Victims Opt Out of Class Action
-----------------------------------------------------
ABC News reports that more than 80 Eyre Peninsula residents have
opted-out of a class action lawsuit over a bushfire near Wangary
in 2005.
Nine people died, 115 were injured and 93 houses were destroyed in
the blaze.
The lawsuit is against Marco Visic, whose four-wheel-drive was
found to have caused the bushfire, and the Country Fire Service,
which was criticized during a coronial inquest.
About 300 victims were included automatically in the class action,
but had until late last week to pull out.
A courts official confirmed 81 people had given opt-out notices to
the Registrar of the South Australian Supreme Court.
The legal case is expected to be heard within months, pending an
appeal by Mr. Visic.
MARK CIAVARELLA: Suits v. Imprisoned State Judges Get Class Status
------------------------------------------------------------------
Rose Bouboushian at Courthouse News Service reports that a federal
judge certified classes of thousands of parents and children who
say two imprisoned state judges made millions by sending the kids
to profit-making detention centers.
Former Luzerne County Judges Mark A. Ciavarella Jr. and Michael T.
Conahan pleaded guilty in federal court in February 2009 to taking
$2.6 million in kickbacks for sending juveniles to privately run
detention centers, PA Child Care and Western PA Child Care,
between 2003 and May 2008.
Hundreds of children and parents who say they were victimized by
the corruption filed two federal RICO (Racketeer Influenced and
Corrupt Organizations) class actions a week later.
In one case, lead plaintiff Florence Wallace says her 14-year-old
daughter was taken from Ciavarella's courtroom in shackles in a
case involving alleged threats on MySpace, and sent to a PA Child
Care camp
Plaintiffs in another class action also sued 15 defendants,
including attorney Robert Powell, a former co-owner of PA Child
Care and Western PA Child Care, and Robert Mericle, who owns a
major construction firm that built the children's prisons.
Along with wrongful imprisonment claims, some of the plaintiff
parents complained their wages were garnished or their Social
Security benefits were seized to pay for their childrens'
imprisonment.
In the face of mounting litigation, the Pennsylvania Supreme Court
authorized a special master to review and possibly expunge the
detained children's records. Yet the scandal continued to unfold.
In February 2012, U.S. District Judge A. Richard Caputo refused to
dismiss some of the claims against Ciavarella and Western PA Child
Care. Then earlier this year, former state judge Ann H. Lokuta
claimed in federal court that she was defamed and fired because
she was an FBI informant in the case.
At about the same time, in February 2013, plaintiffs in seven
separate actions moved to certify two classes: Class A includes
about 2,421 children whose adjudications were dismissed by the
state Supreme Court on Oct. 29, 2009 or March 29, 2010. At least
1,855 juveniles -- who were not informed of their rights before
waiving counsel and/or pleading guilty -- form one subclass, and
roughly 1,442 children who were referred to the detention centers,
form another. Class B includes an estimated group of 2,400
juveniles and parents who paid any fees related to the placements.
The master complaint also asserts claims against the judges'
companies, Pinnacle Group of Jupiter LLC and Beverage Marketing of
PA Inc., Powell's firm, Vision Holdings LLC; and Mid-Atlantic
Youth Services Corp. The claims against Luzerne County; the
judges' wives; Mericle and his firm; and former prison co-owner
Gregory Zappala, the brother of Allegheny County D.A. Stephen
Zappala, were dismissed or resolved by the parties.
Caputo granted the motion, tossing aside the claims that there
"are no more than 1,787 actual class members, and as many as 535
have opted out" and that certain damages claims would have to be
tried twice.
"As noted by class plaintiffs, 'the type and amount of damages
will not be a part of the liability determination under the
substantive law of class plaintiffs' claims,' Caputo wrote.
"Instead, individualized damages will be addressed only once (if
defendants are found liable). Moreover, provider defendants
improperly conflate 'injury' and 'damages,' as they claim that
'proof of the cause and fact of class plaintiffs' emotional,
medical, educational, employment and monetary injuries, and the
defenses thereto, require assessments too individualized and
divergent to warrant class certification under Rule 23(c)(4).'
These individualized assessments impact on the computation of
damages, not whether each plaintiff was in fact injured and denied
their rights as a result of defendants' conduct."
"The plaintiffs met all requirements for class certification."
Plaintiffs aptly note, the instant litigation is premised on
claims by juveniles relating to the denial of their constitutional
rights during the course of their adjudication proceedings,"
Caputo wrote. "As a result of their experiences during these
proceedings, many class members harbor a distrust of the judicial
system, rendering it unlikely that they will seek redress
individually. Thus, allowing 'this to proceed as a class action
would not be removing claims from the hands of the class members,
but would instead afford them an opportunity to pursue them.' The
presence of numerous common questions of law and fact as to class
members' claims also supports class treatment as it will promote
efficiency and preserve judicial resources. Lastly, the court
envisions no practical difficulties in managing this class action.
The superiority requirement of Rule 23(b)(3) is therefore
satisfied."
MCKESSON CORP: Faces Class Action Over Unsolicited Faxes
--------------------------------------------------------
Courthouse News Service reports that McKesson sent unsolicited
faxes to at least 40 recipients, even though the FCC informed it
in 2008 that such actions violate the Telephone Consumer
Protection Act, a class claims.
MERCK: Discriminates Female Sales Reps, Suit Says
-------------------------------------------------
Courthouse News Service reports that Merck discriminates against
female sales reps, telling them they "can't be a mother and a
senior representative," a class action claims in Federal Court.
NATIONAL FINANCIAL: Being Sold for Too Little, Suit Claims
----------------------------------------------------------
Courthouse News Service reports that National Financial Partners
Corp. is selling itself too cheaply through an unfair process to
Madison Dearborn Partners, for $25.35 a share or $1 billion,
shareholders claim in New York County Supreme Court.
NEW FLYER: Recalls 56 XD40 and XDE60 Buses Due to Switch Failure
----------------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Subcategory: Bus
Notification type: Safety Mfr
System: Electrical
Units affected: 56
Source of recall: Transport Canada
Identification number: 2013177
TC ID number: 2013177
On certain buses, the push-button ignition switch could fail to
return after being depressed. This would allow the engine to
start unexpectedly when the ignition circuit is re-energized,
which could injure someone working in the engine compartment.
Correction: New Flyer will provide fleet operators with directives
to inspect and replace both ignition switches (in the driver's
area, and in the engine compartment).
Affected products:
Makes and models affected
---------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------
NEW FLYER XD40 2012, 2013
NEW FLYER XDE60 2012
NIKE INC: Faces Class Action Over Bogus Fitness Device
------------------------------------------------------
Rebekah Kearn at Courthouse News Service reports that Nike and
Apple charge $150 for a bogus fitness device that claims to, but
cannot, tell how many calories its owner has burned, a class
action claims in Superior Court.
Lead plaintiff Carolyn Levin sued Nike and Apple on behalf of
people who bought their Nike+FuelBands to calorie counter.
The retail giants defraud people by claiming the gizmo "'measures
each step taken and calorie burned,' '[t]racks steps, calories,
and time of day' and 'tracks calories burned, steps taken and
more,'" the complaint states.
However, "In truth, the Nike+FuelBand cannot and does not track
each calorie burned, and users experience wildly inaccurate
calorie burn readings when using the FuelBand," the complaint
states. "Defendants were aware when the FuelBand was first
marketed, advertised and sold to Levin and the buying public, and
remained aware throughout the class period, that the FuelBand was
incapable of accurately tracking every calorie burned by FuelBand
users, and that their advertising was therefore false and
misleading . . . and damaging [to] consumers."
Nike says on its website that the FuelBand is a wristband gadget
that "uses a sports-tested accelerometer to measure your movement
in NikeFuel, a universal metric of activity." Nike claims users
can set a daily NikeFuel goal and track calories burned and steps
taken by synching to an app on an iPhone. Users can share their
progress and achievements on Facebook, Twitter and Path, the
website claims.
A FuelBand sells for $149 at Nike and Apple online stores, but
range in price from $190 to $280 on eBay, according to a Google
search.
Levin claims that "hundreds of thousands of Nike+FuelBands [have
been] sold throughout the world," including tens of thousands in
California. She claims that "the FuelBand remains wholly unable
to calculate or provide an accurate calories burn reading, no
matter who the user of the FuelBand is, and no matter what type of
activity that user engages in."
A calorie is the amount of heat needed to raise the temperature of
1 gram of water 1 degree centigrade at a specified beginning
temperature.
Given the range in human body types, metabolism and fitness
levels, elementary science indicates that an off-the shelf device
would need to be extraordinarily sophisticated to be able to
measure calorie consumption.
Levin seeks an injunction, disgorgement, restitution, and punitive
damages for negligent misrepresentation, fraudulent
misrepresentation and violations of California business laws.
She is represented by Thomas Girardi with Girardi & Keese.
NORTHWEST AIRLINES: Supreme Court to Review Rabbi's Suit
--------------------------------------------------------
Barbara Leonard at Courthouse News Service reports that Northwest
Airlines persuaded the Supreme Court to consider tossing claims
that it booted a rabbi from its frequent-flier program for
complaining too much.
After being dismissed from the Northwest's WorldPerks frequent-
flier program, Rabbi S. Binyomin Ginsberg filed a class action
against the airline, now part of Delta in 2009. He claimed that
Northwest had "revoked his membership arbitrarily because he
complained too frequently about the services," according to the
ruling.
U.S. District Judge Janis Sammartino in San Diego dismissed the
case, finding that the Airline Deregulation Act (ADA) pre-empted
the rabbi's contract claims.
A three-judge appellate panel of the 9th Circuit reversed in 2011,
however, cautioning the lower court that the virtues of
deregulation do not trump the common law.
"When Congress passed the ADA, it dismantled a federal regulatory
structure that had existed since 1958," Judge Robert Beezer wrote
for the Pasadena-based panel. "By including a preemption clause,
congress intended to ensure that the states would not undo the
deregulation with regulation of their own. Congress's 'manifest
purpose' was to make the airline industry more efficient by
unleashing the market forces of competition -- it was not to
immunize the airline industry from liability for common law
contract claims. Congress did not intend to convert airlines into
quasi-government agencies, complete with sovereign immunity."
In granting Northwest a writ of certiorari, the Supreme Court
issued no comment, as is its custom.
NEW YORK: Expert Describes Way to Reform Stop-and-Frisk Policy
--------------------------------------------------------------
Adam Klasfeld at Courthouse News Service reported that an
accountability expert described a possible way to reform New York
City's controversial stop-and-frisk policy as the evidence phase
in a trial on the issue wound down on May 15, 2013.
U.S. District Judge Shira Scheindlin, who is deciding the case
without a jury, has heard roughly two months worth of evidence
about whether the city has allowed police to trample on the
constitutional rights of blacks and Latinos.
Under the Supreme Court's decision in Terry v. Ohio, police cannot
stop and search a suspect without reasonable suspicion that he is
about to commit, is committing or has committed a crime.
David Floyd and three other black men, who filed the class action
five years ago, claim that the city regularly frisks based on
racial profiling. They have presented NYPD data showing that only
a sliver, 12 percent, of those targeted for stops were white.
Late Wednesday (May 15), marked the beginning of the end for
testimonial evidence.
The last two witnesses, one representing the challengers and the
other the city, are testifying about what reforms the judge should
order if she finds the police in violation of the Constitution.
Up first was Samuel Walker, an emeritus professor at the
University of Nebraska at Omaha and author of 14 books related to
policing and police accountability. He has acted as a consulted
for the Chicago Police Department, the Los Angeles Sheriff's
Department, the Phoenix Police Department and other law-
enforcement agencies.
Since retiring as a professor, he said he largely has stepped
aside from offering expert testimony to spend time writing a new
book, but agreed to testify for Floyd pro bono because "this is an
extremely important case."
"The outcome of this case will have enormous national
ramifications," Walker said. He framed the issue as an evolution
in the law profession that began with the idea to hold police to
codified standards. "There was a time when it was considered a
great [development] to have written standards," he said. The next
step, he said, was the creation of an auditing system.
In 2003, the NYPD agreed to institute a series of written reforms
aimed to audit street stops in the case of Daniels v. The City of
New York, a case filed weeks after the police killing of Amadou
Diallo, an unarmed immigrant. The settlement in that case
included instructions on how police would record all stops on
forms known as UF-250s, cataloguing the basis for reasonable
suspicion. But Walker said that the form didn't have leave police
room to describe the circumstances that justified the stops.
Walker was to continue his testimony May 16, and former National
Institute of Justice director James Stewart will be called to deny
the need for reform.
Meanwhile, a leak of an internal document from Mayor Michael
Bloomberg's office to the New York Daily News suggests that the
city is preparing for Judge Scheindlin to rule against it, and has
been characterizing her as biased against police.
The mayor's "study," as the tabloid described it, analyzed Judge
Scheindlin's written opinions on "search-and-seizure" issues and
found that 60 percent of those rulings were unfavorable to the
NYPD.
The Daily News reported that the study ranked that percentage as
the highest of any other federal judge on the Manhattan bench.
Calling the study "completely misleading," Judge Scheindlin told
the paper that the mayor's study only accounted for her written
opinions and ignored her bench rulings, "nearly all" of which
favored the city.
Only one of the rulings the city cited as evidence of bias was
reversed on appeal.
At a press conference, Center for Constitutional Rights senior
staff attorney Darius Charney called the mayor's study
"despicable."
"I've heard some ridiculous, outrageous accusations from the city
over the years, but this is the most ridiculous one I ever heard,"
said Charney, who represents the stop-and-frisk challengers.
"They are blatantly, deliberately trying to influence the outcome
of the trial that they are a party to, and they are trying to do
it through the press, and they're trying to do it through baseless
accusations."
Defense Witness Reinstated
In a separate report, Courthouse News' Mr. Klasfeld reports that a
federal judge who will not preside over the trial on New York
City's controversial stop-and-frisk policy reinstated a defense
witness in what he called a "somewhat unusual procedural posture."
The ruling adds another twist to the nearly three-month long trial
of Floyd v. The City of New York, a class action filed in 2008 by
four black men who say they were targeted for racially
discriminatory stops.
Represented by the Center for Constitutional Rights, they want the
New York City Police Department to face court oversight so that
police officers comply with the U.S. Constitution in stopping and
searching New Yorkers and visitors.
Under the Supreme Court's decision in Terry v. Ohio, police cannot
stop and search a suspect without reasonable suspicion that he is
about to commit, is committing or has committed a crime.
With the evidence phase of trial set to close before U.S. District
Judge Shira Scheindlin, both parties are preparing to offer
"remedies experts" for Scheindlin to consider if she deems that
the NYPD in violation of this standard and must be punished.
The Floyd plaintiffs recently scored a major victory when the
federal magistrate assigned to the case green-lit a report from
their expert Samuel Walker, an emeritus professor of criminal
justice at the University of Nebraska at Omaha. The magistrate
meanwhile rejected a report by the city's expert, James Stewart, a
former director at the National Institute of Justice.
Since considering the city's appeal could have exposed Scheindlin
to potentially impermissible evidence, she punted the matter to
U.S. District Judge John Keenan. He overruled the magistrate's
decision and returned the report to evidence.
"A review of the Stewart report shows that it merely serves as a
rebuttal to the plaintiffs' expert report, and therefore should
not be excluded," Judge Keenan wrote. "At root, the Stewart
report simply summarizes the recommendations of the Walker Report
and then proceeds to explain why each is unfeasible, redundant, or
ill-advised."
Stewart plans to argue that the ordering further training of NYPD
officers would be "redundant," and he will defend the force's
institution of "performance indicators," which have been panned as
euphemisms for quotas.
"Such information would be extremely helpful should Judge
Scheindlin reach the issue of remedies and wish to consider the
possibility of requiring additional officer training," Judge
Keenan's six-page order states.
While the remedies report is meant to discuss the penalty for
constitutional violations, the plaintiffs argued that Stewart's
report impermissibly delved into issues of liability.
Judge Keenan said his colleague Judge Scheindlin would not to
confuse the issues.
"The District Court would not be swayed in the same way a jury
might be, in the event it viewed evidence that was ultimately
inadmissible," the order states. "Moreover, if the district court
reaches the point where it is reviewing the remedies expert
reports, then it has necessarily already made a determination as
to liability. Accordingly, any inadvertent reference to issues
relating to liability in either expert report would be viewed too
late to affect the court's decision making on the issue of
liability."
New York City Law Department spokeswoman Kate Ahlers wrote, "We
are pleased that the judge recognized that our expert report was
an appropriate document for the court to consider."
Representatives from the Center for Constitutional Rights could
not immediately be reached for comment.
Lawyers Argue on Monitoring Racial Profiling
On May 21, Mr. Klasfeld reported that at the end of a 10-week
trial, lawyers faced sharp questioning from a federal judge who
will determine whether a monitor is needed to restrain the New
York City Police Department from racially profiling in street
stops.
Judge Scheindlin, who is deciding the case without a jury, has
heard roughly two months of testimony in the case of Floyd v. The
City of New York, a class action to determine whether the NYPD's
stop, question and frisk tactic unconstitutionally targets blacks
and Latinos.
The grueling trial ended May 20 with lawyers struggling to sum up
their cases in the span of a day, as Judge Scheindlin kept both
sides to their time limits while peppering them with questions.
The closing arguments recapped testimony by 12 named plaintiffs
about 19 stops they claimed violated their constitutional rights.
Many of the plaintiffs sat in the packed courtroom.
To the city's lawyers, they were New Yorkers biased against the
police and of dubious credibility.
To those who are challenging stop-and-frisk policy, they were
brave individuals putting themselves through grueling litigation
for no personal gain.
During the challengers' case, two Bronx police officers -- Pedro
Serrano and Adhil Polanco -- testified that they secretly recorded
their supervisors out of frustration of having to fulfill quotas.
A third, Adrian Schoolcraft, was unable to take the stand because
he has a pending case against the NYPD in the same court, but his
clandestine tapes were entered into evidence.
In Serrano's tape, he caught Deputy Inspector Christopher
McCormick telling him to stop the "right people, at the right
place, at the right time," and pressed him to elaborate until the
inspector replied, "I don't have any trouble telling you this,
male blacks 14 to 20, 21."
Dismissing "quotas" as a "sideshow," City Attorney Heidi Grossman,
deputy chief of the city Law Department's Social Federal
Litigation Division, contended that what the NYPD calls
"performance goals" is appropriate to keep New York "the safest
city of its size."
Grossman's argument then took a philosophical turn, as she
characterized the controversy as one of imperfect language.
"This is not surprising because language is inherently imperfect,"
Grossman said. She asserted that Serrano "baited" his boss to
make racial remarks on the tape, and she downplayed the men as
"purported whistle-blowers."
But Judge Scheindlin disputed the premise of her argument. "Even
if these guys have no credibility, the tape says what the tape
says," the judge noted.
The parties also wrestled over police officer's so-called "hit
rate" for finding weapons, drugs or contraband during a stop.
Analysis by Columbia University Professor Jeffrey Fagan found that
12 percent of 4.3 million stops between 2004 and 2012 resulted in
a seizure of a weapon, a statistic that the judge said
"trouble[d]" her.
"What troubles me is that suspicion appears to be wrong 90 percent
of the time," Judge Scheindlin said. "That's a high error rate."
Grossman replied that reasonable suspicion is lower standard for
making a stop.
At one point, Judge Scheindlin pointed out that each of the
plaintiffs that Grossman alluded to was stopped on suspicion of
possessing a gun, and none of them had one.
Grossman deflected that observation by replying, "That's true. We
haven't found any gun. Thankfully,"
Her colleague, Brenda Cooke, handled most of the arguments about
Fagan's research. In his research, Fagan drew from forms known as
UF-250s that NYPD officers fill out after every stop. He found
that black and Latino men accounted for 87 percent of those
stopped, questioned and frisk, a disparity that he found lacked
any non-racial explanation.
Throughout the trial, city lawyers have faulted him for not
including the race of crime suspects in his analysis. Fagan
called that approach misleading because the race is unknown for a
large percentage of crime suspects.
Judge Scheindlin said that race-based analysis "worrisome" because
its logic was a "little circular," possibly leading to "self-
fulfilling" results.
While the city is trying to prevent court-ordered monitoring,
Judge Scheindlin suggested that hiring a consultant might do the
trick, if she finds against them. She noted the city's own
witness proposed such a remedy.
The city insists that the NYPD can police itself.
Grossman quoted the department's Chief Joseph Esposito as saying,
"The NYPD is a big ship, but it's slowly turning."
Gretchen Ann Hoff Varner, a lawyer from Covington & Burling LLP
representing the plaintiffs, began her arguments by describing her
clients. She gestured to Leroy Davis, where is the lead plaintiff
in a similar case over "vertical patrols."
She said that police told Davis, "Hey buddy, you look like you're
smoking weed," when he only had a cell phone. The next person she
mentioned, Devin Almonar, a 13-year-old from Harlem, was taken
into a police car for allegedly jaywalking. There, a police
officer taunted him, "Why are you crying like a little girl," the
officer admitted.
Police justified the arrest of another young man, Lalit Clarkson,
on the allegation that he was drinking Hennessey in public, but
testimony revealed that police did not preserve the alleged bottle
or the plastic cup. After recounting several similar stories, she
said, "These witnesses have no reason to lie."
NEW YORK: NYPD Faces Suit Over "Operation Lucky Bag"
----------------------------------------------------
Iulia Filip at Courthouse News Service reports that fresh off a
trial for racial profiling, the NYPD faces another class action
accusing it of giving people "an unfair enticement to commit
crime" by leaving valuables in public places and arresting people
who pick them up.
Lead plaintiff Spiridon Argyros sued New York City, Police Officer
Daniel Fody, and other unidentified members of the NYPD, in
Federal Court. He claims the NYPD, through its "Operation Lucky
Bag," treats good Samaritans as criminals, giving people "an
unfair enticement to commit crime," arresting them without proof
they had any intent to steal.
"This is a civil rights class action that challenges the
constitutionality of a widespread and ongoing New York City Police
Department ('NYPD') operation known as 'Operation Lucky Bag,'
which entraps its victims, presumes their guilt and results in
their unlawful arrest and detention," the complaint states.
"Operation Lucky Bag is a policy and practice of the NYPD in which
police officers intentionally place a bag that contains a valuable
item such as a wallet or laptop in a public place, and lay in
wait, often out of sight, until someone picks up the bag and/or
removes or attempts to remove the valuable. The police then
arrest the person, presuming s/he intends to retain the valuable,
rather than to return the property to the rightful owner or turn
it in to the proper authority. Though the policy and practice is
purportedly intended to catch thieves and deter crime, it is
overbroad and treats honest individuals acting as good Samaritans
as criminals."
Argyros says he was arrested on May 29, 2012, in Queens, for
picking up a bag the police had left on a sidewalk as bait. He
claims he took the wallet that was sticking out from the bag's
side pocket and put it in a plastic bag, and intended to find its
owner, but undercover police gave him no chance to explain and
arrested him without probable cause.
Four or five NYPD officers, including defendant Fody of the 109th
Precinct, handcuffed Argyros, took him to the station, and
detained him for about four hours, he says in the complaint.
A judge dismissed the petit larceny charges against Argyros in
August 2012, he says in the complaint. Argyros seeks to represent
everyone who was arrested and jailed under "Operation Lucky Bag"
after May 16, 2010. He estimates the class may be in the
hundreds.
"Operation Lucky Bag is a policy and practice of the NYPD of
leaving an unattended bag that contains a valuable item -- such as
a wallet, cash, cell phone, or credit card -- in a public place,
and arresting persons who pick up the bag and/or remove or attempt
to remove the valuable," the complaint states.
"Operation Lucky Bag is overly broad and results in the arrest and
detention of persons who intend to return the property to the
rightful owner. In operation, the program presumes, without
basis, that anyone who picks up the bag and/or removes or attempts
to remove its contents intends to steal the valuable item, rather
than return it.
"Upon information and belief, the public locations where the NYPD
has left the bags with valuables pursuant to Operation Lucky Bag
include subway platforms, department stores, sidewalks, and
Central Park.
"According to The New York Times, in 2007 an earlier version of
the program was 'effectively shut down by prosecutors and judges'
who were concerned that the program was ensnaring good Samaritans
in addition to those who intended to commit a crime or
misdemeanor.
"Upon information and belief, the policy and practice resulted in
34 arrests within Central Park alone between March and June 2011.
Also, upon information and belief, under a prior iteration of the
program, there were at least 220 arrests between February 2006 and
November 2007."
Argyros claims the program violates state law and the New York
City Administrative Code, which give people 10 days to return
items worth more than $10 to the rightful owner or turn them in to
a police station.
He claims courts dismissed previous cases, finding the program was
inconsistent with state and local laws, and constituted "an unfair
enticement to commit crime."
What's more, NYPD's Deputy Commissioner of legal matters S. Andrew
Schaffer admitted in a January 2012 memorandum that the operation
was illegal and did not establish intent to commit a crime,
according to the complaint.
"A review of existing law shows that this method of conducting
Lucky Bag operations is not sufficient to establish that the
perpetrator actually had the intent to commit a larceny," Schaffer
wrote in the memorandum, according to the complaint.
The complaint adds: "Accordingly, the Deputy Commissioner's
memorandum proposed certain changes to the program. For example,
the memorandum recommended that the NYPD members arrest people
after they observe them 'remove the valuable portion of the
property, such as the cash or credit cards in a wallet, and
discard the rest of it.' It also recommended that the NYPD 'have
a person in civilian clothes approach the person who picks up the
property and state that they lost the property. They would then
ask the perpetrator if they have seen it.' It recommends the NYPD
can arrest the perpetrator if she or he denies having seen the
property."
Argyros claims the city and its police department failed to train
and supervise employees, showing "deliberate indifference to the
rights of persons with whom NYPD personnel came into contact."
He claims NYPD officers arrested him months after the deputy
commissioner issued the memorandum.
And, he says that as a diner manager who often finds items that
customers leave behind, he is in danger of being arrested again if
the program continues.
Argyros seeks class certification, an injunction, and compensatory
and punitive damages for constitutional violations, negligent
hiring, training and supervision, false arrest, malicious
prosecution, assault and battery.
His lead counsel is Norman Siegel with Siegel Teitelbaum & Evans.
Yakov Dubin, a tourist from Atlanta, sued the city for $1 million
last year, after being arrested in Central Park in 2011 for
picking up an abandoned purse with $27.
The New York City Police Department did not return a request for
comment.
A spokesperson for the city Law Department released a statement,
"We are awaiting formal service of the complaint."
Similar police programs in Albuquerque and other cities also have
been challenged in lawsuits.
ONITY: Faces Suit Over Defective Keycard-Operated Locks
-------------------------------------------------------
Courthouse News Service reports that Onity sold 4 million
defective keycard-operated locks that can be opened easily with
"commercially available items," subjecting hotels and their guests
to liability and break-ins, a hotelier claims in a federal class
action.
PACCAR: Recalls Various Models of Kenworth and Peterbilt Vehicles
-----------------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Electrical
Units affected: 905
Source of recall: Transport Canada
Identification number: 2013178
TC ID number: 2013178
Manufacturer recall number: 13KWF, 513-E
Affected products:
Makes and models affected
-----------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------
KENWORTH T800 2014
KENWORTH W900 2014
PETERBILT 330 2014
PETERBILT 388 2014
PETERBILT 367 2014
PETERBILT 386 2014
PETERBILT 365 2014
KENWORTH T660 2014
PETERBILT 389 2014
PETERBILT 384 2014
PETERBILT 389K 2014
KENWORTH T370 2014
KENWORTH T270 2014
PETERBILT 337 2014
PETERBILT 348 2014
KENWORTH T470 2014
PETERBILT 587 2014
KENWORTH 2 T170 2014
PETERBILT 382 2014
KENWORTH T680 2014
PETERBILT 579 2014
PETERBILT 567 2014
PIONEER NA: Faces Suit Over Price-Fixing of Optical Disk Drives
---------------------------------------------------------------
Courthouse News Service reports that Pioneer and its subsidiaries
conspired to fix the price of optical disk drives, a class claims.
PRIMA MARKETING: Faces Class Action Over WPCA Violation
-------------------------------------------------------
Kyla Asbury, writing for The West Virginia Record, reports that a
former employee is suing Prima Marketing LLC for violating the
West Virginia Wage Payment and Collection Act in a class action
suit.
Prima is doing business as Prima 7-11 #5722 and Prima 7-11.
The other defendants named in the suit are 7-Eleven Inc., which is
doing business as 7-Eleven and 7-Eleven 35901-35969; and 7-Eleven
Sales Corporation.
Lisa D. Jenkins' employment with Prima was terminated on Oct. 5,
according to a complaint filed May 9 in Kanawha Circuit Court.
Ms. Jenkins claims the defendants failed to pay her final wages
within 72 hours of discharge and she did not receive her final
wages until Oct. 11.
The defendants not only failed to pay Ms. Jenkins' final wages in
a timely manner, but also failed to pay others similarly situated
when their employment ended, according to the suit.
Ms. Jenkins claims the defendants' actions violated the West
Virginia Wage Payment Act.
The defendants' actions caused Jenkins to be damaged, according to
the suit.
Ms. Jenkins is seeking compensatory damages and injunctive relief.
She is being represented by Todd S. Bailess --
bailesslaw@gmail.com -- and Joy B. Mega of Bailess Law PLLC and
Rodney A. Smith and Jonathan R. Marshall of Bailey & Glasser LLP.
The case has been assigned to Circuit Judge Carrie Webster.
Kanawha Circuit Court case number: 13-C-919
PROTECTIVE PRODUCTS: September 1 Settlement Opt-Out Deadline Set
----------------------------------------------------------------
Notice of Certification and Authorization and the Granting of
Leave to proceed with Statutory Secondary Market Misrepresentation
Claims
Read this notice carefully as it may affect your legal rights
This notice is directed to all persons, wherever they may reside
or be domiciled, who sold shares of Protective Products of
America, Inc. during the period from and including October 8, 2009
to and including January 13, 2010 or who held shares of PPA at the
end of the Class Period, other than certain excluded persons
associated with the defendants described below.
THE CERTIFICATION ORDERS
On April 24, 2013, the Ontario Superior Court of Justice certified
the action Michael Frank et al. v. R. Patrick Caldwell et al.,
Court File # CV-10-415821-CP00 as a class proceeding and appointed
Michael Frank, Sheldon Zamick, and Norman Spurgeon as
representative plaintiffs.
The defendants in the Class action are R. Patrick Caldwell, Larry
Moelller, Neil E. Schwartzman, Jason A. Williams, Brian L.
Stafford, Henry H. Shelton, Frank E. Jaumot, Keith J. Engel,
Richard P. Torykian, Sr., Charles E. Peters, Jr., and Deon
Vaughan.
The Class Action has been certified on behalf of the following
class: all persons, wherever they may reside or be domiciled, who
sold shares of PPA or held shares of PPA at the end of the Class
Period, except for PPA's past or present subsidiaries, affiliates,
legal representatives, heirs, predecessors, successors and
assigns, and all members of the Defendants' immediate families,
and any entity in which any of the Defendants has or had a
controlling interest
The certification order means that the Class Action may proceed to
trial as a class action involving claims under securities
legislation described below for damages for misrepresentations in
PPA's disclosure documents and public oral statements and for its
failure to make timely disclosure of a material change.
Certification is a preliminary procedural matter. The merits of
the claims in the Class Action, or the allegations of fact on
which the claims are based, have not been finally determined by
the courts. The Defendants deny that the claims in the actions
have merit.
THE LEAVE ORDERS
On April 24, 2013, the Ontario Superior Court of Justice also
granted leave to the plaintiffs in the Class Action to commence an
action under the secondary market liability provisions of the
Ontario Securities Act and the analogous provisions of the
securities legislation of each other Canadian jurisdiction.
The only claims being pursued in the Class Action are claims under
the secondary market liability provisions of the Securities Act of
each Canadian province and territory. These claims may be subject
to damages caps, which limit the amount of damages that can be
recovered from the Defendants. Class counsel believes that the
potential damages in this case exceed the damages caps. If you
wish to pursue other claims against the Defendants relating to the
matters at issue in the Class Action, you should immediately seek
independent legal advice because these claims will be compromised
if you do not opt out.
DO NOTHING IF YOU WANT TO PARTICIPATE IN THE CLASS ACTION
Class Members who want to participate in the Class Action are
automatically included and need not do anything at this time.
YOU MUST OPT OUT IF YOU DO NOT WANT TO PARTICIPATE IN THE CLASS
ACTION
Class Members who do not want to participate in the Class Action
must opt out. If you want to opt out of the Class Action, you
must send a signed letter stating that you elect to opt out of the
class in the Class Action and provide the additional information
described below.
In order for your opt out request to be valid, it must include all
of the following information: (i) the date(s) on which you
purchased and sold PPA shares; (ii) the number of shares purchased
and sold; (iii) the price at which you purchased and sold PPA
shares; and (iv) your name, address, telephone number and
signature. If you are submitting an opt out request on behalf of
a corporation or other entity, you must state your position and
provide your authority to bind the corporation or entity.
Your opt out request may be sent by fax or mail to:
NPT RicePoint Class Action Services Re: PPA Securities Litigation
P.O. Box 3355 London, ON N6A 4K3 Canada Fax: (519) 432-6544
In order for your opt out request to be valid, it must be
postmarked or received no later than September 1, 2013 and it must
contain all the requested information.
Each Class Member who does not opt out of the Class Action will be
bound by the terms of any judgment or settlement, whether
favourable or not, and will not be allowed to prosecute an
independent action against any of the Defendants for any of the
factual matters raised in the Class Action. If the Class Action
is successful, you may be entitled to share in the amount of any
award or settlement recovered. In order to determine if you are
entitled to share in the award or settlement and the amount, if
any, of your share, it may be necessary to conduct an individual
determination. If there is an individual determination, there may
be costs payable by you if it is determined that you are not
entitled to share in the award or settlement. You will have the
opportunity to decide if you wish to proceed with your individual
determination before it begins.
No person may opt out a minor or a mentally incapable member of
the class without permission of the courts after notice to The
Children's Lawyer and/or the Public Guardian and Trustee, as
appropriate.
A Class Member who opts out will not be entitled to participate in
the Class Action and will not be entitled to share in the amount
of any award, if the Class Action are successful, or in any
settlement achieved, if any.
CLASS COUNSEL AND LEGAL FEES
The plaintiffs and the class in the Class Action are represented
by Rochon Genova LLP.
Rochon Genova LLP is acting on a contingency basis, such that
legal fees, disbursements and applicable taxes will be payable
only in the event of success in the Class Action. Rochon Genova
LLP is also paying all disbursements incurred in the Class Action.
In the event of success in the Class Action, Rochon Genova LLP
will make a motion to the courts to have their fees and
disbursements approved.
As a Class Member, you will not be required to pay any costs in
the event that the Class Action is unsuccessful.
ADDITIONAL INFORMATION
This notice was approved by the Ontario Superior Court of Justice.
The court offices cannot answer any questions about the matters in
this notice. The order of the Court and other information is
available on class counsel's websites at
http://www.rochongenova.com
The publication of this notice was authorized by the Ontario
Superior Court of Justice
PROVIDENCE HEALTH: Faces Suit for Excluding Autism Therapy
----------------------------------------------------------
Courthouse News Service reports that Providence Health Plan
wrongfully refuses to cover applied behavior analysis therapy for
autism-related spectrum disorder, according to an ERISA class
action in Federal Court.
RBS BANK: Faces Class Action for Diverting Money in Own Account
---------------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that RBS
Citizens Bank makes millions of dollars by keeping mum when
customers make deposits with errors in the bank's favor, a
depositor says in a class action.
Lead plaintiff Michael Stinson dba Dial DJ Service sued RBS
Citizens Bank and its subsidiary, Citizens Bank of Pennsylvania,
in Cook County Court.
RBS Citizens Bank operates 1,400 branches in 12 states.
"Errors in customer deposits occur daily," Stinson says in the
complaint. "Customers depositing currency, coins and checks are
required to complete a deposit slip detailing the amount of
currency, coins, and individual checks. Customer calculations and
tabulations frequently are in error; the customer inaccurately
adds the items to be deposited, noting a lesser amount to be
deposited whereas the actual amount is greater.
"Customers are given confirming deposits slips from Citizens Bank
reflecting the amount the customer believed it deposited, which
coincides with the customer's deposit slip. Upon information and
belief, it is Citizens Bank's policy to discourage branch tellers
from adding or calculating the currency, coins and checks to
confirm the amount set forth by the customer on their deposit
slip.
"Deposits by customers into their Citizens Bank accounts are
retrieved daily from each branch location and delivered to
Citizens Bank's various regional Proof Departments which then adds
or calculates the actual deposit, crediting the customer account
accordingly. Citizens Bank's Proof Departments confirm the actual
amount deposited based upon the currency, coin and checks
submitted.
"When Citizens Bank discovers an error in the banks' favor
reflecting that the customer noted a lesser amount on the deposit
slip than actually deposited, the differential is retained by
Citizens Bank and diverted to, upon information and belief, at
least two (2) different non-customer accounts maintained and
controlled by Citizens Bank."
Stinson says that "as an example of one of likely thousands of
transactions, on January 31, 2011, plaintiff deposited a single
check into his Citizens Bank account noting what he believed to be
a deposit of $100.00. Plaintiff erred in its calculation; the
actual deposit was $150.00. However, Citizens Bank credited
plaintiff $100.00 and credited account number 9344820186 with
$50.00. Account 9344820186 is not plaintiff's account but an
account controlled and maintained by Citizens Bank."
Stinson claims the bank has diverted millions of dollars into its
accounts this was.
He seeks restitution and punitive damages for breach of contract,
conversion, misappropriation of funds, conspiracy, and unjust
enrichment.
He is represented by David Thollander, of Lombard, Ill.
A similar federal class action against the bank last year was
dismissed with prejudice. Plaintiffs in that case also were
represented by Thollander.
REHOBOTH BEACH: Faces Suit Over $40 Park Permit on Scooters
-----------------------------------------------------------
Courthouse News Service reports that Rehoboth Beach, Del. requires
a $40 annual permit to park motor scooters on the street, but
doesn't make owners of other vehicles pay such a fee, a class
action claims in Federal Court.
REVLON INC: Gets Prelim. OK of Exchange Offer Suit Settlement
-------------------------------------------------------------
Revlon, Inc. disclosed in its April 25, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013, that it received preliminary approval of its
settlement of the class action lawsuit arising from the 2009
Exchange Offer.
As previously disclosed in Revlon, Inc.'s 2012 Form 10-K, Revlon,
Inc., certain of its current and former directors and MacAndrews &
Forbes Holdings Inc. entered into settlement agreements with the
plaintiffs in class and derivative actions related to the
voluntary exchange offer Revlon, Inc. launched and consummated in
2009 (the "2009 Exchange Offer"). In March 2013, the parties
executed an amendment to one of the settlement agreements,
specifically the class action settlement agreement. The amendment
did not affect the financial terms of the class action settlement;
rather, it modified the scope of the releases given by those class
members who did not participate in the 2009 Exchange Offer. Later
in March 2013, the class action settlement, as amended, was
presented to the Delaware Court of Chancery, and approved. The
class action settlement is conditioned, and will be effective,
upon final approval of the derivative action settlement and final
dismissal of the actions pending outside of the Delaware Court of
Chancery. The derivative action settlement is awaiting approval
of the U.S. District Court for the District of Delaware, before
which that action is pending.
New York-based Revlon, Inc. -- http://www.revloninc.com/--
manufactures, markets and sells an extensive array of cosmetics,
women's hair color, beauty tools, anti-perspirant deodorants,
fragrances, skincare and other beauty care products. Revlon
conducts its business exclusively through its direct wholly-owned
operating subsidiary, Revlon Consumer Products Corporation, and is
a direct and indirect majority-owned subsidiary of MacAndrews &
Forbes Holdings Inc., a corporation wholly-owned by Ronald O.
Perelman.
ROAD RUNNER: Subscribers Ruin Class Action by Misquoting Ad
-----------------------------------------------------------
Adam Klasfeld at Courthouse News Service reports that Road Runner
Internet subscribers ruined their class action by misquoting an
advertisement they claimed to be deceptive, the 2nd Circuit ruled.
Lead plaintiffs Jessica Fink and Brett Noia said they signed up
with Time Warner, and paid up to 100 percent more than competitors
charged, because of misleading advertisements about Road Runner's
"blazing speed" and "always-on connection" that made it the
"fastest, easiest way to get online."
Those speeds slowed, the subscribers said, when a user tries to
share content on peer-to-peer (or P2P) file-sharing networks like
BitTorrent, Gnutella and Skype. The lawsuit blamed this on
"throttling," a tactic supposedly used to limit bandwidth.
Though they advanced on two of their claims in September 2011,
U.S. District Judge Laura Taylor Swain eventually dismissed the
second amended complaint, prompting an appeal.
A three-judge panel of the 2nd Circuit affirmed.
The unsigned opinion states that New York and California law
requires those who sue a company for consumer fraud to show that
its advertisements would mislead a reasonable consumer. But the
judges said they found the allegedly deceptive ads that the
plaintiffs submitted "perplexing."
"The advertisement that they offer is dated August 7, 2009 -- nine
months after plaintiffs filed suit," the judges wrote. "In
addition, the advertisement contains only one of the four
misstatements alleged in the complaint. The 'always-on,' 'blazing
speed,' and 'fastest, easiest way to get online' allegations are
still missing any source document." (Emphasis in original.)
In a footnote, the judges said they requested a copy of an
Internet ad that Time Warner printed out less than a week after
being sued. Couched in "multiple disclaimers and explanatory
language," the ad said, "Actual speeds may vary," according to the
ruling.
"A plaintiff who alleges that he was deceived by an advertisement
may not misquote or misleadingly excerpt the language of the
advertisement in his pleadings and expect his action to survive a
motion to dismiss or, indeed, to escape admonishment," the opinion
states.
Attorneys for neither party immediately responded to a request for
comment.
Judges Jose Cabranes, Denny Chin and Susan Carney issued the
opinion.
ROYAL CARIBBEAN: Attendants' Bid to Renew Junked Appeal Pending
---------------------------------------------------------------
The plaintiffs' motion to renew their dismissed appeal in the
class action lawsuit brought on behalf of stateroom attendants
remains pending, according to Royal Caribbean Cruises Ltd.'s April
25, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
A class action complaint was filed in June 2011 against Royal
Caribbean Cruises Ltd. in the United States District Court for the
Southern District of Florida on behalf of a purported class of
stateroom attendants employed onboard Royal Caribbean
International cruise vessels alleging that they were required to
pay other crew members to help with their duties in violation of
the U.S. Seaman's Wage Act. The lawsuit also alleges that certain
stateroom attendants were required to work back of house
assignments without the ability to earn gratuities in violation of
the U.S. Seaman's Wage Act. The Plaintiffs seek judgment for
damages, wage penalties and interest in an indeterminate amount.
In May 2012, the Court granted the Company's motion to dismiss the
complaint on the basis that the applicable collective bargaining
agreement requires any such claims to be arbitrated. The
Plaintiffs' appeal of this decision was dismissed for lack of
jurisdiction by the United States Court of Appeals, 11th Circuit.
The Plaintiffs are seeking to renew their appeal. The Company
believes the appeal is without merit as are the underlying claims
made against it and the Company intends to vigorously defend
itself against them.
Because of the inherent uncertainty as to the outcome of the
proceeding, the Company says it is unable at this time to estimate
the possible impact of these matters on it.
Miami, Florida-based Royal Caribbean Cruises Ltd. --
http://www.rclinvestor.com/-- is a global cruise company
incorporated in July 1985 in the Republic of Liberia. The Company
owns Royal Caribbean International, Celebrity Cruises, Pullmantur,
Azamara Club Cruises, CDF Croisieres de France as well as TUI
Cruises.
ROYAL CARIBBEAN: Bid to Dismiss Securities Suit Granted in April
----------------------------------------------------------------
Royal Caribbean Cruises Ltd.'s motion to dismiss a consolidated
securities class action lawsuit was granted in April 2013,
according to the Company's April 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Between August 1, 2011, and September 8, 2011, three similar
purported class action lawsuits were filed against the Company and
certain of its current and former officers in the United States
District Court of the Southern District of Florida. The cases
have since been consolidated and a consolidated amended complaint
was filed on February 17, 2012. The consolidated amended
complaint was filed on behalf of a purported class of purchasers
of the Company's common stock during the period from October 26,
2010, through July 27, 2011, and names the Company, its Chairman
and chief executive officer, its chief financial officer, the
President and CEO of the Company's Royal Caribbean International
brand and the former President and CEO of its Celebrity Cruises
brand as defendants. The consolidated amended complaint alleges
violations of Section 10(b) of the Securities Exchange Act of 1934
and SEC Rule 10b-5 as well as, in the case of the individual
defendants, the control person provisions of the Securities
Exchange Act. The complaint principally alleges that the
defendants knowingly made incorrect statements concerning the
Company's outlook for 2011 by not taking into proper account
lagging European and Mediterranean bookings. The consolidated
amended complaint seeks unspecified damages, interest, and
attorneys' fees. The Company filed a motion to dismiss the
complaint for failure to state a claim on April 9, 2012. On April
18, 2013, the district judge granted the Company's motion and
ordered the case dismissed with prejudice. The Plaintiffs have
the right to file a notice to appeal within thirty days from the
date the order is entered.
Because of the inherent uncertainty as to the outcome of the
proceedings, the Company says it is unable at this time to
estimate the possible impact of these matters on it.
Miami, Florida-based Royal Caribbean Cruises Ltd. --
http://www.rclinvestor.com/-- is a global cruise company
incorporated in July 1985 in the Republic of Liberia. The Company
owns Royal Caribbean International, Celebrity Cruises, Pullmantur,
Azamara Club Cruises, CDF Croisieres de France as well as TUI
Cruises.
RUSSELL STOVER: Faces Overtime Class Action
-------------------------------------------
Courthouse News Service reports that Russell Stover Candies stiffs
workers for overtime, delivery/store stockers claim in a federal
class action.
SAINT PETER'S: Faces Class Action Over Underfunded Pension Plan
---------------------------------------------------------------
Courthouse News Service reports that Saint Peter's Healthcare
System is underfunding its pension plan by more than $70 million,
falsely claiming a "church plan" exemption to ERISA, employees
claim in a federal class action.
SALMOLUX: Recalls Cold Smoked Salmon Products Over Listeria Risk
----------------------------------------------------------------
Salmolux of Federal Way, Washington, is recalling its cold smoked
salmon products because it has the potential to be contaminated
with Listeria monocytogenes, an organism which can cause serious
and sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Although healthy
individuals may suffer only short-term symptoms such as high
fever, severe headache, stiffness, nausea, abdominal pain and
diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
No illnesses have been reported.
Products affected by this recall are:
Size Product Description Lot No Brands
---- ------------------- ------ ------
4 oz Sockeye Nova Lox 10803 Jensen's Old Fashion
Smokehouse
UPC: 6 33243 24684 5
500 g Cold Smoked Sockeye 10803 No brand - Food Service
Salmon Tray
UPC: No UPC
4 oz Atlantic Lox 10803 Raley's
UPC: 0 46567 50029 4
1 lb Keta Lox 10803 Sea Passion
UPC: 0 16468 44294 8
2 lb Keta Lox Trim 10803 Sea Passion
UPC: No UPC
2 lb Salmon Lox Trim 10803 Sea Passion
UPC: No UPC
2 lb Sockeye Lox Trim 10803 Sea Passion
UPC: No UPC
3 oz Keta Retail Box 10803 Sea Passion
UPC: 0 16468 44543 7
3 lb Atlantic Salmon Tray 10803 Sea Passion
UPC: NO UPC
4 oz Wild Keta Lox 10803 Sea Passion
UPC: 0 16468 44305 1
8 oz Salmon Lox Norwegian 10803 Sea Passion
Style
UPC: 0 16468 44328 0
All the affected products are frozen, except the Raley's products,
which are fresh.
Products, a total of approximately 4,930 lb, were distributed in
AR, AZ, CA, ID, MI, NV, NY, OH, OR, WA states through retail
stores.
Product is packed in vacuum bags and lot number information is on
the back of the pack.
The recall was the result of a routine sampling program by FDA
which revealed that the finished products contained the bacteria.
Salmolux has voluntarily initiated the recall and is continuing
its investigation. The Company is currently contacting its
customers who are affected by this recall.
Consumers who have purchased the products are urged to return it
to the place of purchase for a full refund. Consumers with
questions may contact the Company at 253.874.2026 (Business hours:
Monday - Friday 7:30 - 4:30 Pacific Standard Time)
SAMSUNG ELECTRONICS: Faces Suit Over Deceptive S4 Phone Storage
---------------------------------------------------------------
Courthouse News Service reports that Samsung claims its GB Galaxy
S4 mobile phone has 16 gigabytes of storage, but half of it is
consumed by operating software, a class action claims in Federal
Court.
SHELL OIL: 5th Cir. Rejects Gulf Coast Residents' Repeat Suit
-------------------------------------------------------------
Sam Reynolds at Courthouse News Service reports that the 5th
Circuit had little patience for a repeat suit brought by Gulf
Coast residents who blamed major emissions producers for fueling
Hurricane Katrina.
Ned and Brenda Comer and nine other Mississippi residents who lost
property in the hurricane claimed that energy companies including
Shell, Chevron, ExxonMobil and BP had set the stage for a super
storm by pumping greenhouse gases into the atmosphere. They sued
the oil and gas giants for civil conspiracy, fraud and negligence,
among other claims, in the Southern District of Mississippi in
2005. Their class action didn't survive a lengthy legal process
that ultimately ended with the U.S. Supreme Court denying the
property owners a writ of mandamus in 2011.
In between, the 5th Circuit had thrown the Gulf residents a
temporary lifeline when it ruled that their claims for negligence,
trespass and nuisance should be heard. The circuit later
scheduled an en banc rehearing of the case but dismissed it for
lack of quorum.
The class resurfaced later in 2011 with a similar complaint that
named many of the same energy companies as defendants, again in
the Southern District of Mississippi.
"The earth's climate has 'demonstrably changed' as a result of
defendants' greenhouse gas emissions," the complaint stated.
"Rising sea levels and increasing hurricane intensity are among
the observable impacts of this climate shift.
"Defendants' activities are among the largest sources of the
greenhouse gases that cause global warming. Numerous defendants
have admitted the validity of mainstream global warming science as
well as their role in contributing to the harmful effects of
global warming."
The Mississippians said Katrina morphed into a "cyclonic storm of
unprecedented strength and destruction, fueled by the warm waters
and warm environmental conditions present in the Atlantic Ocean,
Caribbean Sea and the Gulf of Mexico."
"These high surface temperatures, which were a direct and
proximate result of the defendants' greenhouse gas emissions,
increased the intensity and magnitude of Hurricane Katrina," they
alleged.
But when faced with "essentially several of the same claims" that
it had dismissed in 2005, the District Court ruled that the new
class action was barred by res judicata.
A three-judge appellate panel in New Orleans affirmed. "Here, the
district court's judgment in Comer I was final for the purpose of
res judicata because the district court properly entered final
judgment, and that judgment never was modified on appeal," Judge
Stephen Higginson wrote for the court.
"Although this court issued a panel opinion reversing and
remanding, in part, the district court . . . a member of this
court 'held mandate' before the scheduled 'mandate pull date,'
Judge Higginson added. "This court then voted to grant rehearing
en banc, in the process staying the issuance of a mandate and
vacating the panel decision. . . . Once this court determined that
it lacked quorum, it issued an order dismissing the case . . . and
the clerk's office terminated the appeal 'without judicial
action.' The Supreme Court, in turn denied plaintiffs' petition
for writ of mandamus.
At no point was the district court's judgment disturbed."
The three-judge panel also denied the class's claim for equitable
exception on the basis that their 2005 action didn't receive
"meaningful appellate review," ruling that "such an exception is
contrary to 'the well-known rule that a federal court may not
abrogate principles of res judicata out of equitable concerns.'"
SERVICE CORPORATION: Appeal From "Garcia" Cert. Order Pending
-------------------------------------------------------------
Service Corporation International's appeal from an order
certifying a class in the lawsuit initiated by Reyvis Garcia and
Alicia Garcia remains pending, according to the Company's
April 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Reyvis Garcia and Alicia Garcia v. Alderwoods Group, Inc., Osiris
Holding of Florida, Inc., a Florida corporation, d/b/a Graceland
Memorial Park South, f/k/a Paradise Memorial Gardens, Inc., was
filed in December 2004, in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County, Florida, Case No.
04-25646 CA 32. The Plaintiffs are the son and sister of the
decedent, Eloisa Garcia, who was buried at Graceland Memorial Park
South in March 1986, when the cemetery was owned by Paradise
Memorial Gardens, Inc. Initially, the lawsuit sought damages on
the individual claims of the plaintiffs relating to the burial of
Eloisa Garcia. The Plaintiffs claimed that due to poor
recordkeeping, spacing issues and maps, and the fact that the
family could not afford to purchase a marker for the grave, the
burial location of the decedent could not be readily located.
Subsequently, the decedent's grave was located and verified. In
July 2006, the plaintiffs amended their complaint, seeking to
certify a class of all persons buried at this cemetery whose
burial sites cannot be located, claiming that this was due to poor
recordkeeping, maps, and surveys at the cemetery. The Plaintiffs
subsequently filed a third amended class action complaint and
added two additional named plaintiffs. The plaintiffs are seeking
unspecified monetary damages, as well as equitable and injunctive
relief. On May 4, 2011, the trial court certified a class and the
Company is appealing that ruling.
The Company says it cannot quantify its ultimate liability, if
any, for the payment of any damages. The Company adds that the
ultimate outcome of the matter cannot be determined at this time.
The Company intends to vigorously defend all of the lawsuits;
however, an adverse decision in one or more of such matters could
have a material effect on the Company, its financial condition,
results of operations, and cash flows.
Service Corporation International -- http://www.sci-corp.com/--
is a North American provider of deathcare products and services,
with a network of funeral service locations and cemeteries
primarily operating in the United States and Canada. The
operations of the Houston, Texas-based Company consist of funeral
service locations, cemeteries, funeral service/cemetery
combination locations, crematoria, and related businesses.
SERVICE CORPORATION: Continues to Defend Wage and Hour Suits
------------------------------------------------------------
Service Corporation International continues to defend itself
against wage and hour class action lawsuits, according to the
Company's April 25, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2013.
The cases captioned Bryant, et al. v. Service Corporation
International, et al.; Case No. RG-07359593; and Helm, et al. v.
AWGI & SCI; Case No. RG-07359602; in the Superior Court of the
State of California, County of Alameda, were filed on December 5,
2007. These cases were removed to federal court in the U.S.
District Court for the Northern District of California, San
Francisco/Oakland Division. The Bryant case is now Case No. 3:08-
CV-01190-SI and the Helm case is now Case No. C 08-01184-SI. On
December 29, 2009, the court in the Helm case denied the
plaintiffs' motion to certify the case as a class action. The
plaintiffs modified and refiled their motion for certification.
On March 9, 2011, the court denied the plaintiffs' renewed motions
to certify a class in both of the Bryant and Helm cases and
dismissed the Helm case. The Helm plaintiff is appealing the
court's order decertifying her claims. The individual claims in
the Bryant case are still pending. The plaintiffs have also (i)
filed additional lawsuits with similar allegations seeking class
certification of state law claims in different states, and (ii)
made a large number of demands for arbitration.
The Company says ultimate outcome of the matters cannot be
determined at this time. The Company intends to vigorously defend
all of the lawsuits; however, an adverse decision in one or more
of such matters could have a material effect on the Company, its
financial condition, results of operations, and cash flows.
Service Corporation International -- http://www.sci-corp.com/--
is a North American provider of deathcare products and services,
with a network of funeral service locations and cemeteries
primarily operating in the United States and Canada. The
operations of the Houston, Texas-based Company consist of funeral
service locations, cemeteries, funeral service/cemetery
combination locations, crematoria, and related businesses.
SERVICE CORPORATION: "Niven" Suit Voluntarily Dismissed in Feb.
---------------------------------------------------------------
Janie Niven & Jennifer Mazzo voluntarily dismissed their claims
without prejudice in February 2013, according to Service
Corporation International's April 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Janie Niven & Jennifer Mazzo, Individually and on behalf of all
others similarly situated v. SCI Funeral Services of Florida,
Inc., et al.; Case No. 2012CA015951, In the Circuit Court of the
15th Judicial District in and for Palm Beach County, Florida, was
filed by the plaintiffs in the Sands and Schwartz cases regarding
Beth David Memorial Gardens and Chapel located in Hollywood,
Florida. Although the Company acquired the cemetery in connection
with the Company's 2006 acquisition of Alderwoods Group, Inc., the
Company never managed the cemetery and sold it to a third-party
shortly after closing on the Alderwoods acquisition. The
Plaintiffs seek to certify a class of cemetery plot owners and
their families. The Plaintiffs allege the cemetery engaged in
wrongful burial practices and did not disclose them to customers.
The Plaintiffs seek compensatory, consequential and punitive
damages as well as the appointment of a receiver to oversee the
cemetery operations. In February 2013, the plaintiffs voluntarily
dismissed their claims without prejudice.
The Company says ultimate outcome of the matters cannot be
determined at this time. The Company intends to vigorously defend
all of the lawsuits; however, an adverse decision in one or more
of such matters could have a material effect on the Company, its
financial condition, results of operations, and cash flows.
Service Corporation International -- http://www.sci-corp.com/--
is a North American provider of deathcare products and services,
with a network of funeral service locations and cemeteries
primarily operating in the United States and Canada. The
operations of the Houston, Texas-based Company consist of funeral
service locations, cemeteries, funeral service/cemetery
combination locations, crematoria, and related businesses.
SERVICE CORPORATION: "Sands" Suit Scheduled for Trial in July
-------------------------------------------------------------
The class action lawsuit commenced by F. Charles Sands is
scheduled for trial in July 2013, according to Service Corporation
International's April 25, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
F. Charles Sands, individually and on behalf of all others
similarly situated, v. Eden Memorial Park, et al.; Case No.
BC421528; in the Superior Court of the State of California for the
County of Los Angeles - Central District, was filed in September
2009 against SCI and certain subsidiaries regarding the Company's
Eden Memorial Park cemetery in Mission Hills, California. The
plaintiff seeks compensatory, consequential and punitive damages
as well as the appointment of a receiver to oversee cemetery
operations. The plaintiff alleges the cemetery engaged in
wrongful burial practices and did not disclose them to customers.
After a hearing in February 2012, the court in May 2012 issued an
order certifying classes of cemetery plot owners and their
families based on alleged Company misrepresentation, concealment
or nondisclosure of material facts regarding alleged improper
burial practices pertaining to the period from February 1985 to
September 2009. Pursuant to a court order, the Company may be
precluded from making certain arguments that challenge the
sufficiency of plaintiff's physical evidence, although the extent
to which that order will apply at trial remains unclear. The case
is scheduled for trial in July 2013.
The Company says it cannot quantify its ultimate liability, if
any, for the payment of any damages. The Company adds that the
ultimate outcome of the matter cannot be determined at this time.
The Company intends to vigorously defend all of the lawsuits;
however, an adverse decision in one or more of such matters could
have a material effect on the Company, its financial condition,
results of operations, and cash flows.
Service Corporation International -- http://www.sci-corp.com/--
is a North American provider of deathcare products and services,
with a network of funeral service locations and cemeteries
primarily operating in the United States and Canada. The
operations of the Houston, Texas-based Company consist of funeral
service locations, cemeteries, funeral service/cemetery
combination locations, crematoria, and related businesses.
SERVICE CORPORATION: "Schwartz" Suit Claims Dismissed in March
--------------------------------------------------------------
The claims in the class action lawsuit filed by Barbara Schwartz
and Carol Neitlich was dismissed in March 2013, according to
Service Corporation International's April 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Barbara Schwartz & Carol Neitlich, Individually and on behalf of
all others similarly situated v. SCI Funeral Services of Florida,
Inc., et al.; Case No. 2012CA015954, In the Circuit Court of the
15th Judicial District in and for Palm Beach County, Florida, has
been removed to the U.S. District Court for the Southern District
of Florida and is now Case No. 9:12-CV-80180-DMM. This case was
filed by counsel for the plaintiffs in the Sands case regarding
the Company's Star of David Memorial Gardens Cemetery and Funeral
Chapel and Bailey Memorial Gardens located in North Lauderdale,
Florida. The Plaintiffs seek to certify a class of cemetery plot
owners and their families. The Plaintiffs allege the cemetery
engaged in wrongful burial practices and did not disclose them to
customers. The Plaintiffs seek compensatory, consequential and
punitive damages as well as the appointment of a receiver to
oversee the cemetery operations. On the Company's motion, the
court dismissed the plaintiffs' claims in March 2013.
The Company says it cannot quantify its ultimate liability, if
any, for the payment of any damages. The Company adds that the
ultimate outcome of the matter cannot be determined at this time.
The Company intends to vigorously defend all of the lawsuits;
however, an adverse decision in one or more of such matters could
have a material effect on the Company, its financial condition,
results of operations, and cash flows.
Service Corporation International -- http://www.sci-corp.com/--
is a North American provider of deathcare products and services,
with a network of funeral service locations and cemeteries
primarily operating in the United States and Canada. The
operations of the Houston, Texas-based Company consist of funeral
service locations, cemeteries, funeral service/cemetery
combination locations, crematoria, and related businesses.
TACO BELL: Faces Overtime Class Action in Solano County Court
-------------------------------------------------------------
Courthouse News Service reports that Taco Bell stiffs workers for
overtime, a class action claims in Solano County Court.
TELEFLORA: Faces Class Action Over Mishaps on Flower Delivery
-------------------------------------------------------------
Courthouse News Service reports that Teleflora delivered inferior
flowers than customers ordered, late, or did not deliver them at
all, a class action claims in Federal Court.
TEREX: Recalls XL4000 Model of Truck-Mounted Digger Derricks
------------------------------------------------------------
Starting date: May 24, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Other
Units affected: 12
Source of recall: Transport Canada
Identification number: 2013175
TC ID number: 2013175
Manufacturer recall number: SN602
On certain truck-mounted digger derricks, metal shims used on the
hydraulic lift cylinder may be too soft and could compress under
load. As a result, the rod eye casting could fail. This would
allow the boom to fall, placing anyone near or beneath at risk of
personal injury. Correction: Dealers will replace the existing
shims and spacer with one hardened spacer.
Makes and models affected
-----------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------
TEREX XL4000 DIGGER 1999, 2000, 2001, 2002, 2003, 2004,
DERRICK 2005, 2007, 2009, 2010, 2011, 2012
TRUE RELIGION: Being Sold for Too Little, Suit Claims
-----------------------------------------------------
Courthouse News Service reports that True Religion Apparel is
selling itself too cheaply to TowerBrook Capital Partners, for
$32 a share or $835 million, shareholders claim in Superior Court.
UNITED STATES: IRS Faces Suit From Tea Party Patriots Group
-----------------------------------------------------------
Courthouse News Service reports that a Tea Party Patriots group
filed a federal class action against the Internal Revenue Service,
claiming the tax agency singled out it and others for scrutiny
"based upon their names or policy positions."
The NorCal Tea Party Patriots sued the IRS, the Department of the
Treasury and Does 1-100 in Federal Court.
The plaintiffs, based in Colfax, Calif., sued in Cincinnati,
presumably because that's where the scrutiny of class members'
requests for tax-exempt status began.
Specifically, the scrutiny allegedly came in the IRS' Exempt
Organizations Rulings and Agreement Office's Determinations Unit
in Cincinnati.
"NorCal has, from time to time, been comprised of a six-member
board of directors, including its chairman/secretary, Virginia
('Ginny') Rapini, who associated together in a corporate, tax-
exempt form to maximize the effectiveness of their expression,"
the complaint states. "As discussed below, the Internal Revenue
Service exceeded the bounds of the United States Constitution and
the Privacy Act of 1974 in deciding to charge a special 'price' to
Mrs. Rapini and her associates because of their decision to join
their voices together. That price was two-fold: a lengthy and
costly delay in recognition of their tax-exempt status, and the
required disclosure of the personal political beliefs, writings,
thoughts, and activities of Mrs. Rapini and her associates in
Norcal."
The plaintiff claims in the complaint that it is a nonpartisan,
nonprofit organization: "Its purpose is expressive -- to support
and conduct non-partisan research, education, and informational
activities to increase public awareness of legislation and
legislators. Its mission is three-fold: (1) fiscal
responsibility; (2) constitutionally limited government; and (3)
free markets."
The complaint adds: "Beginning in or about March 2010, the
Determinations Unit began singling out for special scrutiny
requests for tax exemption for groups identified as 'Tea Party,'
'Patriots,' '912 Project,' and applications involving political-
sounding names that seemed to identify with the Tea Party, such as
'We the People' or 'Take Back the Country.'
"These criteria were later expanded to single out groups whose
issues included government spending, government debt, or taxes.
"Groups dedicated to educating the public by advocacy/lobbying to
'make America a better place to live' were also singled out.
"Also singled out for special scrutiny were groups who had a
statement in the case file criticizing 'how the country is being
run.'
"The IRS's knowledge that this discrimination was illegal is
evidenced by their scheme to keep the people's duly elected
representatives in the dark about it. When members of Congress
asked IRS officials whether the IRS was singling out conservative
or libertarian groups for different treatment, the IRS officials
provided misleading and deceptive responses to conceal the scheme.
Further, the White House denied any knowledge of the IRS targeting
conservative or libertarian groups until April or May of 2013.
"On May 14, 2013, the Treasury Inspector General for Tax
Administration issued a report entitled, 'Inappropriate Criteria
Were Used to Identify Tax-Exempt Applications for Review'
(hereinafter, 'IGR').
"There is no evidence that liberal or 'progressive' political
groups or groups supporting the re-election of President Barack
Obama or the election of Democrats were singled out for special
scrutiny. Indeed, a May 15, 2013 Washington Post analysis of the
IRS public database of nonprofit organizations showed that groups
with the word 'progressive' in their names 'suffered no similar
slowdown pattern,' and their number of approvals 'increased each
year from 17 in 2009 to 20 in 2012.'
"The IGR identifies 296 applications singled out for review based
on the groups' name or conservative or libertarian political
views. Other reports suggest the number may exceed 500. Only
through discovery will the full scope of this discrimination be
identifiable. . . .
"Once forwarded to the specialist for greater review, the
organization was subjected to unreasonable delays and often
harassing, illegal, and discriminatory demands for private
information.
"The intent of the IRS to focus on view point discrimination is
further evidenced by the fact that from March 2010 until July 2011
the IRS simply referred to these cases as the 'tea party cases.'"
(Citation to Washington Post URL omitted.)
The plaintiff claims: "The IRS engaged in a tactic of suffocating
NorCal Tea Party Patriots and other similarly situated groups with
requests that were so searching and extensive that they would have
presented a serious challenge even for sophisticated businesses."
The plaintiffs seek declaratory judgment, destruction of any and
all records obtained illegally, corrective training for IRS
officers, monetary damages and costs. They are represented by
David Langdon of West Chester, Ohio.
VIACOM INC: Faces Suit Over MTV Video Music Awards Spam Texts
-------------------------------------------------------------
Tim Kenneally and Pamela Chelin, writing for The Wrap TV, report
that MTV's parent company, Viacom, was hit with a class-action
lawsuit on May 14 that alleges it violated the Telephone Consumer
Protection Act by sending promotional texts to people who voted in
the 2011 Video Music Awards.
According to the suit, filed in U.S. District Court in Tennessee,
Davidson County, Tenn., resident Erin Mock voted in the 2011 Video
Music Awards via text message, and was hit shortly thereafter with
promotional text messages.
"MTV: 'Jersey Shore' sneak peek of tonight's episode - why is
Snooki lying in a bush? Watch," one message read, according to the
suit.
Another message read, "MTV: 'Real World San Diego' premieres
Wednesday, Sept. 28 at 10/9c," another message read, the suit
claims. "Get to know the cast here."
"At no point during this [VMAs vote] solicitation, did Defendant
advise its viewers, including Plaintiff, that by voting, they
would be consenting to receipt of future text SPAM advertisements
from Defendant and/or its subsidiaries and/or employees and/or
agents," the suit reads.
The suit goes on to claim that the VMAs voter sent a message
asking to stop the text messages, and received confirmation that
the messages would stop, but another message -- this one with a
link to a "Real World" trailer -- was sent after the confirmation.
"Plaintiff and the members of the Class and Sub-Class have all
suffered irreparable harm as a result of the Defendant's unlawful
and wrongful conduct," the suit reads.
The suit seeks $1,500 per alleged violation for each member of the
class, plus injunctive relief prohibiting such conduct in the
future, and [a]ny other relief the Court may deem just and
proper."
Viacom has no comment for TheWrap on the suit at this time.
WAL-MART: Faces Suit Over False Claims on Lipozene & MetaUp
-----------------------------------------------------------
Courthouse News Service reports that Wal-Mart and the Obesity
Research Institute dishonestly push snake oil called Lipozene and
MetaUp as "clinically proven to help you lose weight and pure body
fat," a class action claims in San Diego County Court.
WELLS FARGO: Fined $203MM in "High-To-Low" Debit Posting Suit
-------------------------------------------------------------
Tim Hull at Courthouse News Service reports that a federal judge
slapped Wells Fargo with a $203 million restitution order and a
new injunction in a class action over "high-to-low" debit posting.
After paying hundreds of dollars in fees on relatively small
overdrafts, lead plaintiffs Veronica Gutierrez and Erin Walker
sued Wells Fargo to get their money back and stop the "high-to-
low" practice, which the bank started in California more than a
decade ago. The bookkeeping method processes account debits in
the order of the highest amount to the lowest, emptying customer
accounts by multiplying overdraft fees that the bank then collects
in the billions of dollars.
U.S. District Judge William Alsup had previously ruled against
Wells Fargo on several issues after a two-week bench trial on the
issue in San Francisco. He found that the bank had acted in bad
faith and violated several prongs of the California Business and
Professions Code. The court ordered the bank to stop using the
high-to-low method and to pay back some $203 million in overdraft
fees.
A three-judge panel of the 9th Circuit reversed most of that
decision late last year, and vacated the injunction and the
restitution order.
The federal appeals court found that federal banking law pre-
empted most of the claims. It was not an entire loss for the
class, however, as the appeals court affirmed that Wells Fargo had
made misleading statements to consumers regarding the accounting
method, and had engaged in deceptive and false advertising.
On remand to District Court, the plaintiffs moved for a new
injunction and restitution award based on the two claims upheld on
appeal.
Judge Alsup reinstated the restitution order on Tuesday and
permanently enjoined the bank from misleading customers about its
posting-order practices.
"This order agrees that the injunction and restitution order
should be reinstated and re-anchored solely in the fraudulent
affirmative misrepresentation," Judge Alsup wrote.
Wells Fargo claimed unsuccessfully that the plaintiffs had waived
the restitution issue. The bank also argued that the injunction
was unnecessary because it has already stopped using the high-to-
low method, but Judge Alsup found that without one the bank could
"return to its prior practice of misleading customers."
* Only 14% of Class Action Participants Get Meaningful Value
------------------------------------------------------------
The U.S. Chamber Institute for Legal Reform (ILR) on May 15
released a study by NERA Economic Consulting showing that the U.S.
has the world's most costly legal system as a share of its
economy. The study compared liability costs as a percentage of
GDP using general liability insurance sold to companies in Canada,
Eurozone countries, and the U.S. because it covers similar types
of costs in each country. Data shows that as a percentage of its
economy, the U.S. legal system costs over 150 percent more than
the Eurozone average, and over 50 percent more than the United
Kingdom.
"America is known as the land of the free, but it is also the land
of unnecessary lawsuits," said Lisa A. Rickard, president of the
ILR. "As the U.S. experience has shown, excessive litigation
creates enormous costs for businesses, workers, consumers, and the
overall economy."
The study controlled for factors across countries that could
account for significant differences in liability costs including
the mix of businesses in a country, spending on government social
programs, and the cost of private healthcare. It concludes that
features of a country's legal system explain most of the variation
in liability costs.
In conjunction with the study, ILR also unveiled the results of a
new national opinion survey showing that voters overwhelmingly
view the civil legal system negatively, see it as more abuse-prone
than a decade ago, and are concerned that it primarily benefits
lawyers.
The national opinion survey of voters was conducted in April 2013
by leading polling firms Penn Schoen Berland and Public Opinion
Strategies. The poll showed that 87% of voters view the number of
lawsuits in the country as a problem and that 69% say that there
has been increased abuse of the legal system over the past decade.
Furthermore, one-in-three voters -- and 43% of small business
owners -- report having either been threatened with or involved in
a civil lawsuit.
Only 14% of those who were part of a class action lawsuit report
having received something of meaningful value, such as a cashed
check or redeemed coupon, as a result of the lawsuit. In
contrast, four-in-five voters that had been involved in a civil
lawsuit said that lawyers benefit the most from class action
lawsuits.
"America's costly legal system inhibits our global
competitiveness, and impedes our ability to grow our economy and
create jobs," said Ms. Rickard. "Global businesses consider the
cost of litigation in deciding where to locate. These results
underscore that our system puts us at a competitive disadvantage."
ILR seeks to promote civil justice reform through legislative,
political, judicial, and educational activities at the national,
state, and local levels.
The U.S. Chamber of Commerce is the world's largest business
federation representing the interests of more than 3 million
businesses of all sizes, sectors, and regions, as well as state
and local chambers and industry associations.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200.
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