/raid1/www/Hosts/bankrupt/CAR_Public/130605.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, June 5, 2013, Vol. 15, No. 110
Headlines
14051 MANCHESTER: Court Denies Protective Order Bid in White Suit
ALLEGHANY CORPORATION: Suits Over Shoreline Merger Discontinued
AMAG PHARMACEUTICALS: Remand Order in "Silverstrand" Stayed
AMERICAN REALTY: Enters Into MOU With ARCT III Stockholders
ANADARKO PETROLEUM: Awaits Ruling on Motion to Dismiss Stock Suit
APPLE INC: Faces Class Action Over iPad 3 "Planned Obsolescence"
APPLE REIT: N.Y. Court Dismisses Consolidated Securities Suit
ARTIO GLOBAL: Reaches Accord in N.Y. Suit Over Aberdeen Merger
ASSOCIATED BANC-CORP: Gets $2.5MM From Insurer for Overdraft Suit
BEAM INC: Faces Suits Over Ailments Caused by Tobacco
BELL MOBILITY: To Appeal 911 Service Class Action Ruling
BP: Mexican Citizens Prepare Class Action Over 2010 Oil Spill
CAREER EDUCATION: June 13 Hearing in Illinois Securities Suit
CAREER EDUCATION: Expects Trials on CCA Test Cases This Year
CAREER EDUCATION: Students' Suit Returns to Ill. Circuit Court
CAREER EDUCATION: Proceedings in Suit Related to WCI Stayed
CAREER EDUCATION: Suit Over CSCA's Admission Process in Discovery
CAREER EDUCATION: Moves to Compel Arbitration in Suit Over IADT
CAREER EDUCATION: Seeks Arbitration in "Cohen" Lawsuit
CAREER EDUCATION: "Brainard" Suit Stayed Pending Arbitration
CAREER EDUCATION: "Cernohorsky" Suit Goes to Judge Kovachevich
CAREER EDUCATION: AIU Denies TCPA Violation in "Stafford" Suit
CAREER EDUCATION: Plaintiffs Appeal Dismissal of "Wilson" Suit
CB TRANSPORT: Court Denies Summary Judgment Plea in "Sturm" Suit
CELITE CORP: Calif. Court of Appeals Reverses Judgment
COASTAL GULF: Court Conditionally Certifies "Wischnewsky" Suit
COMMERCE BANCSHARES: Mo. Suit Against Overdraft Fees Stayed
CRANE CO: Has $2MM Accord to Settle Suit Over Merrimac Buyout
CRANE CO: New Claim Added to Suit Related to Roseland Plant
FEDERAL SIGNAL: Firefighters' Suit Stayed Pending Appeal
FEMA TRAILER: Court Approves Allocation of Benefit Fees
FISHER COMMUNICATIONS: Faces Suit Over Merger With Sinclair
IMAX: Bennett Jones Discusses Securities Class Action Ruling
INTERLINE BRANDS: Still Faces Suit Over Alleged TCPA Violation
ISTAR FINANCIAL: Wins Final Approval of "Citiline" Settlement
MCMORAN EXPLORATION: Faces Consolidated Suit Over FCX/MMR Merger
MICHIGAN: Court Dismissed Suit v. Dept. of Corrections Officers
MOHAWK INDUSTRIES: Still Faces Polyurethane Foam Antitrust Suit
MURPHY USA: Calif. Cases by Motor Fuel Retail Purchasers Remanded
NEW YORK: Court Adopts Recommendations in Priority Hiring Case
PNM RESOURCES: Navajo Nation Allottee Members Bring Appeal to DOI
POSITIVE SINGLES.COM: Judge Certifies Privacy Class Action
SKILLED HEALTHCARE: $3MM Added to Settlement Fund in Labor Suit
SPRINT NEXTEL: Discovery Proceeds in "Bennett" Securities Suit
SPRINT NEXTEL: Opposes Certification Bid in SoftBank Merger Suit
STATE STREET: Continues to Face Suit Over SSgA-Managed Funds
STATE STREET: Faces ERISA Lawsuits by Custodial Clients
STATE STREET: Faces Various Stockholder Suits in Federal Court
STATE STREET: Suit by Clients of TAG Virgin Islands Dismissed
STERLING BANCORP: Faces Suit in N.Y. Over Provident Merger
SUPPORT.COM INC: Awaits Court OK of Accord in Suit Over Software
TAKEDA: Australian Diabetes Patients to Join Actos Class Action
TD AMERICAN: Motion to Dismiss "Ross" Securities Suit Pending
UNITED PARCEL: Fasken Martineau Discusses Class Action Ruling
UNITEDHEALTH GROUP: Continues to Face Suit Over Underpayments
UNITEDHEALTH GROUP: Health Plan Meted $524MM Damages Ruling
WESTERN UNION: Consumer Suit Accord Awaits Final Court Approval
XCEL ENERGY: "Comer" Plaintiffs Argue Against Suit's Dismissal
YOUTUBE: Copyright Owners' Class Action Can't Proceed
ZIPREALTY INC: Court Grants Conditional FLSA Certification
* More Than 600 Dunedin Residents Join Bank Fee Class Action
*********
14051 MANCHESTER: Court Denies Protective Order Bid in White Suit
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District Judge John A. Ross in a May 2, 2013, Memorandum and Order
denied Plaintiffs' Motion for Protective Order in the case: Thelma
White and Nicole Carroll, Plaintiffs, v. 14051 Manchester, Inc.
d/b/a Hotshots Sports Defendants, No. 4:12-CV-469 JAR, United
States District Court, E.D. Missouri, Eastern Division.
In their Motion, Plaintiffs ask for a protective order limiting
the scope of discovery which Defendants may propound on the opt-in
Plaintiffs in the FLSA collective action and the opt-out
Plaintiffs in the Rule 23 class action.
A copy of the May 2, 2013, Memorandum and Order is available at
http://is.gd/xruUqRfrom Leagle.com
ALLEGHANY CORPORATION: Suits Over Shoreline Merger Discontinued
---------------------------------------------------------------
Securities fraud lawsuits filed against Alleghany Corporation were
either dismissed or discontinued, according to the company's May
6, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On November 20, 2011, Alleghany entered into an Agreement and Plan
of Merger (the "Merger Agreement") with its wholly-owned
subsidiary Shoreline Merger Sub, LLC (subsequently converted into
a corporation) ("Merger Sub") and Transatlantic Holdings, Inc.
("Old TransRe").
On March 6, 2012, Old Transatlantic was merged with and into
Merger Sub, which was renamed "Transatlantic Holdings, Inc.," and
became a wholly-owned subsidiary of Alleghany. In connection with
the merger, Alleghany, Merger Sub and Old TransRe, among others,
were named as defendants in three putative stockholder class
action lawsuits, one consolidated lawsuit filed in the Court of
Chancery of the State of Delaware (the "Court") and two lawsuits
filed in the Supreme Court of the State of New York.
Such lawsuits challenged the merger and alleged that Alleghany,
Merger Sub and Old TransRe aided and abetted an alleged breach of
fiduciary duty by Old TransRe's board of directors in connection
with the merger, among other allegations.
On January 30, 2012, Alleghany and the other defendants entered
into a memorandum of understanding with the plaintiffs regarding
the settlement of these three putative stockholder class actions
against Alleghany, Merger Sub, Old TransRe, Old TransRe's
directors, and Allied World Assurance Company Holdings, AG, among
others.
Pursuant to the terms of the proposed settlement, certain
supplemental disclosures were made related to the merger. The
memorandum of understanding contemplated that the parties would
enter into a stipulation of settlement. On October 12, 2012, the
parties entered into a stipulation of settlement that includes
customary conditions, including court approval following notice to
Old TransRe's stockholders.
On January 10, 2013, a hearing was held before the Court to
consider the fairness, reasonableness, and adequacy of the
settlement, as well as plaintiffs' counsel's petition for an award
of attorneys' fees and expenses not to exceed $0.5 million, to be
paid, or cause to be paid, by TransRe.
At the hearing, the Chancellor declined to approve the settlement,
but granted plaintiffs' counsel an opportunity to make a
supplemental submission addressing, among other things, the
materiality of the supplemental disclosures made in connection
with the settlement. On January 29, 2013, the plaintiffs filed
such supplemental submission.
On February 28, 2013, another hearing was held before the Court to
consider the proposed settlement. At that hearing, the Court
declined to approve the settlement and, on March 13, 2013, the
Court entered an order dismissing the consolidated Delaware action
without prejudice. On April 25, 2013, one of the two lawsuits
filed in the Supreme Court of the State of New York was
discontinued. On April 26, 2013, the remaining lawsuit was also
discontinued.
AMAG PHARMACEUTICALS: Remand Order in "Silverstrand" Stayed
-----------------------------------------------------------
An order by the U.S. Court of Appeals for the First Circuit to
remand a purported securities suit filed against AMAG
Pharmaceuticals, Inc. is stayed pending a review, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended
March 31, 2013.
A purported class action complaint was originally filed on March
18, 2010 in the U.S. District Court for the District of
Massachusetts, entitled Silverstrand Investments et. al. v. AMAG
Pharm., Inc., et. al., Civil Action No. 1:10-CV-10470-NMG, and was
amended on September 15, 2010 and on December 17, 2010.
The second amended complaint, or SAC, filed on December 17, 2010
alleged that the company and the company's former President and
Chief Executive Officer, former Chief Financial Officer, the then
members of the company's Board, and certain underwriters in the
company's January 2010 offering of common stock violated certain
federal securities laws, specifically Sections 11 and 12(a)(2) of
the Securities Act of 1933, as amended, and that the company's
former President and Chief Executive Officer and former Chief
Financial Officer violated Section 15 of such Act, respectively,
by making certain alleged false and misleading statements and
omissions in a registration statement filed in January 2010.
The plaintiffs sought unspecified damages on behalf of a purported
class of purchasers of the company's common stock pursuant to the
company's common stock offering on or about January 21, 2010. On
August 11, 2011, the District Court issued an Opinion and Order
dismissing the SAC in its entirety for failure to state a claim
upon which relief could be granted.
A separate Order of Dismissal was filed on August 15, 2011. On
September 14, 2011, the plaintiffs filed a Notice of Appeal to the
U.S. Court of Appeals for the First Circuit, or the Court of
Appeals. After briefing was completed by all parties, the Court of
Appeals heard oral argument on May 11, 2012.
On February 4, 2013, the Court of Appeals affirmed in part and
reversed in part the District Court's Opinion and Order, and
remanded the case to the District Court. On February 19, 2013, the
company filed a Petition for Panel Hearing Rehearing or Rehearing
En Banc, asking the Court of Appeals to reconsider its decision.
On March 15, 2013, the Court of Appeals denied this petition. On
March 22, 2013, the company filed a Motion to Stay the Mandate
remanding the case to the District Court pending review of the
Court of Appeals' February 4, 2013 decision by the U.S. Supreme
Court. The Court of Appeals granted this Motion to Stay the
Mandate on April 8, 2013, and any petition for writ of certiorari
must be filed by June 13, 2013.
AMERICAN REALTY: Enters Into MOU With ARCT III Stockholders
-----------------------------------------------------------
Parties in a suit filed over the merger of American Realty Capital
Trust III, Inc. and American Realty Capital Properties, Inc.
agreed to a memorandum of understanding regarding a settlement of
all claims asserted on behalf of the alleged class of ARCT III
stockholders, according to the company's May 6, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Since the announcement of the Merger Agreement on December 17,
2012, Randell Quaal filed a putative class action lawsuit filed on
January 19, 2013 against the Company, the OP, ARCT III, ARCT III
OP, the members of the board of directors of ARCT III and certain
subsidiaries of the Company in the Supreme Court of the State of
New York.
The lawsuit alleges, among other things, that the board of ARCT
III breached its fiduciary duties in connection with the
transactions contemplated under the Merger Agreement.
In February 2013, the parties agreed to a memorandum of
understanding regarding settlement of all claims asserted on
behalf of the alleged class of ARCT III stockholders.
In connection with the settlement contemplated by that memorandum
of understanding, the class action and all claims asserted therein
will be dismissed, subject to court approval. The proposed
settlement terms required ARCT III to make certain additional
disclosures related to the Merger, which were included in a
Current Report on Form 8-K filed by ARCT III with the SEC on
February 21, 2013.
The memorandum of understanding also added that the parties will
enter into a stipulation of settlement, which will be subject to
customary conditions, including confirmatory discovery and court
approval following notice to ARCT III's stockholders. If the
parties enter into a stipulation of settlement, a hearing will be
scheduled at which the court will consider the fairness,
reasonableness and adequacy of the settlement.
There can be no assurance that the parties will ultimately enter
into a stipulation of settlement, that the court will approve any
proposed settlement, or that any eventual settlement will be under
the same terms as those contemplated by the memorandum of
understanding, therefore any losses that may be incurred to settle
this matter are not determinable.
ANADARKO PETROLEUM: Awaits Ruling on Motion to Dismiss Stock Suit
-----------------------------------------------------------------
Anadarko Petroleum Corporation is still awaiting a ruling on its
motion to dismiss a consolidated securities lawsuit filed against
it in relation to the Deepwater Horizon events, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
Two separate class action complaints were filed in June and August
2010, in the U.S. District Court for the Southern District of New
York (New York District Court) on behalf of purported purchasers
of the Company's stock between June 9, 2009, and June 12, 2010,
against Anadarko and certain of its officers.
The complaints allege causes of action arising pursuant to the
Securities Exchange Act of 1934 for purported misstatements and
omissions regarding, among other things, the Company's liability
related to the Deepwater Horizon events.
In March 2012, the New York District Court granted the Lead
Plaintiff's motion to transfer venue to the U.S. District Court
for the Southern District of Texas - Houston Division (Texas
District Court). In May 2012, the Texas District Court granted the
defendants' motion to transfer the consolidated action within the
district to Judge Keith P. Ellis. In July 2012, the plaintiffs
filed their First Amended Consolidated Class Action Complaint. The
defendants filed a renewed motion to dismiss in the Southern
District Court of Texas in September 2012. In April 2013, Judge
Ellis heard oral arguments on the motion to dismiss, but has not
yet issued a ruling.
APPLE INC: Faces Class Action Over iPad 3 "Planned Obsolescence"
----------------------------------------------------------------
The Nation reports that Apple has been hit by a class action
lawsuit in Brazil for releasing the 4th generation iPad, which the
plaintiffs claim has made the 3rd generation iPad obsolete.
The group behind the lawsuit, led by Institute of Politics and Law
Software (IBDI), claims that releasing the iPad 4 just seven
months after the iPad 3 launch rather than following the usual
annual product release cycle, amounts to "planned obsolescence"
that harms customers who purchased the iPad 3.
The institute claims that the iPad 4 is not effective
technological evolution [as compared to] the iPad 3 or 'New iPad',
characterizing what sort of "planned obsolescence". In practice,
the accusation is that the Apple iPad 3 could have reached the
shelves with the characteristics presented in the fourth
generation -- a processor, a connector and a camera a bit more
advanced.
The group further alleges that the iPad 4 launch wasn't
effectively communicated to buyers, who ended up buying the older
iPad 3 in the period between the announcement and the actual
launch. The lawsuit demands free replacements for iPad 3 buyers,
a reimbursement of 50 percent of the original price of the device
and a fine amounting to 30 percent of the total value of iPad 3
units sold in the country.
While there had been some outrage following Apple's decision to
update the iPad line within just seven months, it is the first
time we've heard Apple getting sued for it. Apple did exchange
iPad 3 bought within the 30-day window before the announcement for
newer iPads in the US, but doesn't seem to have done something
similar in Brazil. News of the lawsuit follows Apple's
unsuccessful attempts to gain an exclusive trademark over the
"iPhone" brand in Brazil. Presently, the "official" iPhone that
sells in Brazil is actually an Android phone by a local
manufacturer.
APPLE REIT: N.Y. Court Dismisses Consolidated Securities Suit
-------------------------------------------------------------
Plaintiffs in In re Apple REITs Litigation filed a notice of
appeal against an order dismissing the case, according to Apple
REIT Six, Inc.'s May 6, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2013.
On December 13, 2011, the United States District Court for the
Eastern District of New York ordered that three putative class
actions, Kronberg, et al. v. David Lerner Associates, Inc., et
al., Kowalski v. Apple REIT Ten, Inc., et al., and Leff v. Apple
REIT Ten, Inc., et al., be consolidated and amended the caption of
the consolidated matter to be In re Apple REITs Litigation.
The District Court also appointed lead plaintiffs and lead counsel
for the consolidated action and ordered lead plaintiffs to file
and serve a consolidated complaint by February 17, 2012. The
Company was previously named as a party in the Kronberg, et al. v.
David Lerner Associates, Inc., et al. putative class action
lawsuit, which was filed on June 20, 2011.
On February 17, 2012, lead plaintiffs and lead counsel in the In
re Apple REITs Litigation, Civil Action No. 1:11-cv-02919-KAM-JO,
filed an amended consolidated complaint in the United States
District Court for the Eastern District of New York against the
Company, Apple Suites Realty Group, Inc., Apple Eight Advisors,
Inc., Apple Nine Advisors, Inc., Apple Ten Advisors, Inc., Apple
Fund Management, LLC, Apple REIT Seven, Inc., Apple REIT Eight,
Inc., Apple REIT Nine, Inc. and Apple REIT Ten, Inc., their
directors and certain officers, and David Lerner Associates, Inc.
and David Lerner.
The consolidated complaint, purportedly brought on behalf of all
purchasers of Units in the Company and the other Apple REIT
Companies, or those who otherwise acquired these Units that were
offered and sold to them by David Lerner Associates, Inc., or its
affiliates and on behalf of subclasses of shareholders in New
Jersey, New York, Connecticut and Florida, asserts claims under
Sections 11, 12 and 15 of the Securities Act of 1933. The
consolidated complaint also asserts claims for breach of fiduciary
duty, aiding and abetting breach of fiduciary duty, negligence,
and unjust enrichment, and claims for violation of the securities
laws of Connecticut and Florida. The complaint seeks, among other
things, certification of a putative nationwide class and the state
subclasses, damages, rescission of share purchases and other costs
and expenses.
On February 16, 2012, one shareholder of the Company and Apple
REIT Seven, Inc., filed a putative class action lawsuit captioned
Laurie Brody v. David Lerner Associates, Inc., et al., Case No.
1:12-cv-782-ERK-RER, in the United States District Court for the
Eastern District of New York against the Company, Apple REIT
Seven, Inc., Glade M. Knight, Apple Suites Realty Group, Inc.,
David Lerner Associates, Inc., and certain executives of David
Lerner Associates, Inc.
The complaint, purportedly brought on behalf of all purchasers of
Units of the Company and Apple REIT Seven, Inc., or those who
otherwise acquired these Units, asserts claims for breach of
fiduciary duty and aiding and abetting breach of fiduciary duty,
unjust enrichment, negligence, breach of written or implied
contract (against the David Lerner Associates, Inc. defendants
only), and for violation of New Jersey's state securities laws.
On March 13, 2012, by order of the court, Laurie Brody v. David
Lerner Associates, Inc., et al. was consolidated into the In re
Apple REITs Litigation.
On April 18, 2012, the Company, and the other defendants moved to
dismiss the consolidated complaint in the In re Apple REITs
Litigation. The briefing period for the motions to dismiss was
completed on July 13, 2012.
By Order entered on March 31, 2013 and opinion issued on April 3,
2013, the Court dismissed the consolidated complaint in its
entirety with prejudice and without leave to amend. Plaintiffs
filed a Notice of Appeal to the Second Circuit Court of Appeals on
April 12, 2013.
ARTIO GLOBAL: Reaches Accord in N.Y. Suit Over Aberdeen Merger
--------------------------------------------------------------
Parties to the New York Actions filed over a 2013 agreement by
Artio Global Investors Inc. to merge with Aberdeen Asset
Management PLC, reached an agreement in principle providing for
the settlement of the New York Actions, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Starting on or about February 21, 2013, five putative shareholder
class action complaints (the "Class Action Complaints") were filed
against the Company's Board of Directors, the Company, Aberdeen
Asset Management PLC ("Aberdeen"), a public limited company
organized under the laws of the United Kingdom, and Guardian
Acquisition Corporation ("Merger Subsidiary"), a Delaware
corporation, challenging the proposed transaction.
Three of the Class Action Complaints were filed in the Delaware
Court of Chancery (the "Delaware Actions"): Velvart v. Artio
Global Investors, Inc., et al., Case No. 8347-VCL, Waldner v.
Artio Global Investors Inc., et al., No. 8376 and Hunt v.
Williams, et al., No. 8389. Two of the Class Action Complaints
were filed in the Supreme Court of New York, New York County (the
"New York Actions"): Fernicola v. Artio Global Investors Inc., et
al., No. 650625/2013 and Dart Seasonal Products Retirement Plan v.
Robert Jackson, et al., No. 650713/2013.
The Class Action Complaints generally allege, among other things,
that the Company's Board of Directors breached their fiduciary
duties to the public shareholders of the Company by approving the
proposed transaction and by failing to take steps to maximize the
value of the Company, and that the Company, Aberdeen, and Merger
Subsidiary aided and abetted such breaches.
On March 25, 2013, the plaintiffs in the Fernicola litigation
filed an Amended Class Action Complaint, which, in addition to
reiterating the allegations generally made in the Class Action
Complaints, also alleges that the Board of Directors breached
their fiduciary duties owed to the Company's public shareholders
by authorizing the filing of a preliminary proxy statement that,
in the plaintiffs' view, omitted certain material information.
On March 26, 2013, the plaintiffs in the Delaware Actions filed
notices and proposed orders of voluntary dismissal seeking to
dismiss the Delaware Actions. On April 3, 2013, the parties to
the New York Actions, along with plaintiffs in the previously
filed Delaware Actions, filed a stipulation and proposed order for
the intervention of additional plaintiffs and their counsel in the
New York Actions.
On April 10, 2013, the parties to the New York Actions (including
the plaintiffs in the previously filed Delaware Actions) reached
an agreement in principle providing for the settlement of the New
York Actions on the terms and conditions set forth in a memorandum
of understanding (the "MOU").
Pursuant to the MOU, the Company included certain supplemental
disclosures in its definitive proxy statement filed April 11,
2013, in exchange for dismissal of the New York Actions on the
merits and a customary release of defendants.
The proposed settlement is conditioned on, among other things,
consummation of the proposed transaction, completion of certain
confirmatory discovery, class certification, and final approval by
the Supreme Court of New York, New York County following notice to
the Company's shareholders. The proposed settlement does not
affect the form or amount of consideration to be paid in the
Merger. (All references to "Merger" refer to the merger of Merger
Subsidiary with and into Artio Global with Artio Global surviving
as an indirect wholly owned subsidiary of Aberdeen.)
ASSOCIATED BANC-CORP: Gets $2.5MM From Insurer for Overdraft Suit
-----------------------------------------------------------------
Associated Banc-Corp is in the process of settling In re: Checking
Account Overdraft Litigation MDL No. 2036, according to the
company's May 3, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended
March 31, 2013.
A putative class action lawsuit, Harris v. Associated Bank, N.A.
(the "Bank"), was filed in the United States District Court for
the Western District of Wisconsin in April 2010, alleging that the
Bank unfairly assessed and collected overdraft fees and seeking
restitution of the overdraft fees, compensatory, consequential and
punitive damages, and costs.
The case was subsequently consolidated into the Multi District
Litigation ("MDL"), In re: Checking Account Overdraft Litigation
MDL No. 2036 in the United States District Court for the Southern
District of Florida. A settlement agreement which requires payment
by the Bank of $13 million for a full and complete release of all
claims brought against the Bank received preliminary approval from
the court on July 26, 2012.
In the second quarter of 2012, the Bank settled with an insurer
for $2.5 million as contribution to the settlement amount and
received approximately $1.5 million as partial reimbursement for
defense costs. By entering into such an agreement, the company is
not admitting any liability with respect to the lawsuit. The
settlement amount was previously accrued for in the financial
statements.
BEAM INC: Faces Suits Over Ailments Caused by Tobacco
-----------------------------------------------------
Numerous legal actions, proceedings and claims are pending in
various jurisdictions against leading tobacco manufacturers,
including Brown & Williamson Tobacco Corporation (now known as
Brown & Williamson Holding, Inc.) both individually and as
successor by merger to The American Tobacco Company, based upon
allegations that cancer and other ailments have resulted from
tobacco use.
Beam Inc. has been named as a defendant in some of these cases,
according to the company's May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013. These claims have generally fallen within three
categories: (i) smoking and health cases alleging personal injury
brought on behalf of individual plaintiffs, (ii) smoking and
health cases alleging personal injury and other damages and
purporting to be brought on behalf of classes of individual
plaintiffs, and (iii) health care cost recovery cases, including
class actions, brought by foreign governments, unions, health
trusts, taxpayers and others seeking reimbursement for health care
expenditures allegedly caused by cigarette smoking. Damages
claimed in some of the cases range into the billions of dollars.
BELL MOBILITY: To Appeal 911 Service Class Action Ruling
--------------------------------------------------------
CBC News reports that Bell Mobility says the company plans to
appeal a Northwest Territories Supreme Court ruling on a matter it
believes "hadn't even been certified for trial."
On May 17, Justice Ron Veale ruled Bell is liable to nearly 30,000
cellphone users in the N.W.T., Yukon and Nunavut who paid for 911
services they didn't receive.
The class-action lawsuit dates back to 2007, when Yellowknifers
James Anderson and his son Samuel first filed the case. They
complained Bell Mobility was charging customers 75 cents a month
-- or $9 a year -- for a service that isn't available.
A 911 operator isn't available anywhere in the territories, except
Whitehorse. Instead, residents call a 10-digit number for
emergency services.
Court documents show that while Bell doesn't have the
responsibility to provide 911 services, it shouldn't charge
customers if that service isn't available.
Jason Laszlo, a representative from Bell Media relations, said the
May 17 ruling goes beyond what he initially thought the trial was
about.
"We're pleased the court ruled in our favor on the main issues
certified for trial, and found that Bell Mobility is not required
to provide live 911 operators. That is the responsibility of
local governments," he said in an e-mail.
"But we will certainly appeal its decision on a matter that hadn't
even been certified for trial -- i.e. whether customers in those
areas are exempt from paying the fees charged to all customers
nationally."
Keith Landy, the lawyer for the Andersons, said the May 17 ruling
sets a precedent. As far as he knows, this is the first class-
action lawsuit in the Northwest Territories.
"Cellphone has become a necessity today. And by virtue of them
having monthly fees to pay, and then having to pay a charge where
the service isn't provided, is certainly something that needed to
be corrected in our view."
Mr. Laszlo says the company expects its appeal to the Court of
Appeal in the Northwest Territories to happen this year or early
next year.
If the court accepts it, the next step would be to take the case
to the Supreme Court of Canada.
The lawsuit affects customers across the North, who signed a
contract with Bell before April 13, 2010.
BP: Mexican Citizens Prepare Class Action Over 2010 Oil Spill
-------------------------------------------------------------
Emilio Godoy, writing for Inter Press Service, reports that a
group of Mexican citizens are preparing the first civil lawsuit in
the Mexican courts against British oil company BP for the 2010
Gulf of Mexico oil spill.
The plaintiffs are bringing the class action lawsuit under a 2011
reform of the Mexican constitution that allows a large number of
people with a common interest in a matter to sue as a group.
The civil lawsuit encompasses "damages to people living in the
area or who own residential and commercial property along the
coast, and people indirectly affected" by the spill, lawyer Oscar
Preciado, with the law firm RincOn Mayorga Roman Illanes Soto y
Compania, told IPS.
"Without a doubt, this will set an important precedent. Class
action lawsuits have been brought, but in questions relating to
consumer, rather than environmental, rights," said the lawyer,
whose firm is representing the plaintiffs.
On Apr. 20, 2010, the Deepwater Horizon oil rig, owned by Swiss-
based Transocean Ltd and under lease to BP, exploded off the coast
of Louisiana, leaving 11 workers dead and 17 injured. It sank two
days later.
By Jul. 15, 2010, when the oil leak was finally sealed, nearly
five million barrels of oil had been spilled -- only 800,000 of
which were recovered -- and at least 1.9 million gallons of toxic
chemical dispersants had been injected into the Gulf of Mexico.
The spill poses a long-term threat to flora, fauna and fishing
resources in the Gulf of Mexico, which bathes the coasts of the
Mexican states of Tamaulipas, Veracruz and Quintana Roo, and to
tourist sites, although the final extent of the damage is unknown,
experts say.
"The government and BP can be sued in Mexico. The government was
guilty of omission in this case," Rene Sanchez, the coordinator of
Colectivas, told IPS. The non-governmental organization was born
in November 2012 to provide advice to organizations and
individuals with respect to filing class action lawsuits.
However, the 2011 law on collective action, which allows groups of
consumers and PROFECO, Mexico's federal consumer protection
agency, to sue public and private companies, does not contemplate
reparations.
The Gulf of Mexico disaster gave rise to a massive class action
lawsuit involving more than 130,000 plaintiffs, known as multi-
district litigation 2179 (MDL-2179), overseen by federal Judge
Carl Barbier in New Orleans.
In January, BP pleaded guilty to 14 criminal counts and was
sentenced to pay 4.5 billion dollars in penalties and fines.
However, the amount is expected to climb as the lawsuit continues
to wind its way through the courts.
The following month, TransOcean was found guilty by a U.S. federal
judge of violating the U.S. Clean Water Act, and was fined 1.4
billion dollars.
Judge Barbier set a Jun. 21 deadline for the attorneys to file
their conclusions about evidence presented in the first phase of
the trial.
In April, the government of conservative Mexican President Enrique
Pena Nieto sued BP and other companies in a U.S. court, after his
predecessor Felipe Calderon (2006-December 2012) failed to do so.
The government's lawsuit will fall under MDL-2179.
In 2010, the state governments of Tamaulipas, Veracruz and
Quintana Roo, as well as several companies, had brought legal
action against BP and TransOcean for damages to the marine
environment, the coastline, and local estuaries.
Government agencies in Mexico spent more than 11 million dollars
on studies, assessments, lab tests, training and overflights
related to the disaster, the state governments argued.
BP Mexico did not respond to IPS' queries about the government or
class action lawsuits.
The dearth of studies on the magnitude of the damages in the Gulf
of Mexico has been the Achilles' heel of the environmental
organizations and lawyers involved in preparing the class action
lawsuit in Mexico.
"That is the question that has limited us the most," Mr. Preciado
said. "The Mexican state has not been very participative.
"The damages will appear over the course of years, and this won't
be easily resolved. But we are not frightened of taking on BP --
on the contrary, we are very motivated," added the lawyer, who is
working on another class action lawsuit against Mexico's state-
owned oil monopoly Petroleos Mexicanos (Pemex) involving oil
spills in the southeast state of Tabasco.
The class action suit will pose a challenge to the Mexican judges,
who are not accustomed to environmental litigation, when it is
presented to a federal court in the capital on a date that has not
yet been established.
Colectivas' Sanchez said "we have to see how the judges prepare,
and the state of the judiciary's bureaucracy. One of the first
steps is for the plaintiffs to be recognized as a class," as
occurs under the U.S. justice system.
Sanchez is also preparing a collective lawsuit against the
eventual approval of commercial planting of genetically modified
maize in Mexico.
Despite the 2010 Gulf of Mexico disaster and a September 2008
blow-out on a BP rig in the Caspian Sea off the coast of
Azerbaijan -- which was covered up -- Pemex signed a technological
agreement with the British company in 2012 for deep-sea operations
in this country's Gulf of Mexico waters.
"It is an aberration," Mr. Preciado remarked.
CAREER EDUCATION: June 13 Hearing in Illinois Securities Suit
-------------------------------------------------------------
A status hearing is set June 13, 2013 in a securities suit filed
against Career Education Corporation in the U.S. District Court
for the Northern District of Illinois, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Ross, et al. v. Career Education Corporation, et al. On January
13, 2012, a class action complaint was filed in the U.S. District
Court for the Northern District of Illinois, naming the Company
and various individuals as defendants and claiming that the
defendants violated Section 10(b) of the Securities Exchange Act
of 1934 (the "Exchange Act") by making material misstatements in
and omitting material information from the Company's public
disclosures concerning its schools' job placement rates and its
compliance with accreditation standards.
The complaint further claimed that the individual defendants
violated Section 20(a) of the Exchange Act by virtue of their
positions as control persons of the Company. Plaintiff asks for
unspecified amounts in damages, interest, and costs, as well as
ancillary relief.
On March 23, 2012, the Court appointed KBC Asset Management NV,
the Oklahoma Police Pension & Retirement Systems, and the Oklahoma
Law Enforcement Retirement System, as lead plaintiffs in the
action. On May 3, 2012, lead plaintiffs filed a consolidated
amended complaint, asserting the same claims alleged in the
initial complaint, and naming the Company and two former executive
officers as defendants.
Lead plaintiffs seek damages on behalf of all persons who
purchased the Company's common stock between February 19, 2009 and
November 21, 2011. On October 30, 2012, the Court ruled on
defendants' motion to dismiss, granting it as to one of the former
executive officer defendants and denying it as to the other
defendants.
On January 28, 2013, defendants filed answers to the consolidated
amended complaint. A status hearing is scheduled for June 13,
2013.
CAREER EDUCATION: Expects Trials on CCA Test Cases This Year
------------------------------------------------------------
Trial dates on test cases in relation to complaints filed by
former students of the California Culinary Academy against Career
Education Corporation may be set for some time in late 2013 or
early 2014, according to the company's May 6, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
The Court is expected to set a trial date on certain test cases (8
to 10 plaintiffs) for some time in late 2013 or early 2014
Amador, et al. v. California Culinary Academy and Career Education
Corporation; Adams, et al. v. California Culinary Academy and
Career Education Corporation. On September 27, 2007, Allison
Amador and 36 other current and former students of the California
Culinary Academy ("CCA") filed a complaint in the California
Superior Court in San Francisco.
Plaintiffs plead their original complaint as a putative class
action and allege four causes of action: fraud; constructive
fraud; violation of the California Unfair Competition Law; and
violation of the California Consumer Legal Remedies Act.
Plaintiffs contend that CCA made a variety of misrepresentations
to them, primarily oral, during the admissions process. The
alleged misrepresentations relate generally to the school's
reputation, the value of the education, the competitiveness of the
admissions process, and the students' employment prospects upon
graduation, including the accuracy of statistics published by CCA.
On April 3, 2008, the same counsel representing plaintiffs in the
Amador action filed the Adams action on behalf of Jennifer Adams
and several other unnamed members of the Amador putative class.
The Adams action also was styled as a class action and was based
on the same allegations underlying the Amador action and attempted
to plead the same four causes of action pled in the Amador action.
The Adams action was deemed related to the Amador action and was
being handled by the same judge.
The parties executed a formal settlement agreement as of
November 1, 2010. On April 18, 2012, the Court issued an order
granting final approval of the settlement and on April 19, 2012,
the Court entered a final judgment on the settlement.
On June 3, 2011, the same attorneys representing the class in the
Amador action filed a separate complaint in the San Francisco
County Superior Court entitled Abarca v. California Culinary
Academy, Inc., et al, on behalf of 115 individuals who are opt
outs in the Amador action and/or non-class members, and therefore
not subject to the Amador settlement.
On June 15, 2011, the same attorneys filed another action in the
San Francisco County Superior Court entitled Andrade, et al. v.
California Culinary Academy, Inc., et al. , on behalf of another
31 individuals who are opt outs in the Amador action and/or non-
class members, and therefore not subject to the Amador settlement.
On August 12, 2011, plaintiffs' counsel filed a third action on
behalf of five individuals who opted out of or were not parties to
the Amador settlement entitled Aprieto, et al. v. California
Culinary Academy.
New counsel has substituted in to represent 78 of the individuals
and the Court has entered orders allowing class counsel to
withdraw from representing the remaining individuals. On January
18, 2013, new counsel filed a complaint entitled Coleman, et al.
v. California Culinary Academy on behalf of two individuals who
appear to be persons who opted out of the class action settlement.
None of these four suits are being prosecuted as a class action.
They each allege the same claims as were previously alleged in the
Amador action, plus claims for breach of contract and violations
of the repealed California Education Code.
The plaintiffs in these cases seek damages, including
consequential damages, punitive damages and attorneys' fees. The
company has not responded to these four complaints, which have
been deemed related and transferred to the same judge who handled
the Amador case, because they have been stayed pending a final
determination as to which of the remaining individual plaintiffs
have viable claims that are not barred by the final judgment on
the Amador settlement.
There are 95 total plaintiffs who have not settled or dismissed
their claims. 80 of these plaintiffs are represented by counsel.
Based on the Company's records and the records of the class
settlement, the 15 plaintiffs not represented by counsel ("pro per
plaintiffs") received notice of the settlement and did not file
claims, and therefore their individual claims are expected to be
barred.
The Court ordered all parties, including 13 of the pro per
plaintiffs (the other two had only recently appeared in pro per),
to appear at a further case management conference on April 12,
2013. Only two of the 13 pro per plaintiffs appeared and the Court
indicated it will be issuing an order dismissing all other pro per
plaintiffs. Thus, the action currently involves 80 plaintiffs
represented by counsel and 4 pro per plaintiffs.
Discovery is proceeding as to the remaining plaintiffs and the
Company intends to file answers to the claims asserted by such
plaintiffs. The Court is expected to set a trial date on certain
test cases (8 to 10 plaintiffs) for some time in late 2013 or
early 2014. The test cases are expected to involve the equitable
claims asserted under the California Unfair Competition Law and
therefore are expected to be tried to the Court rather than a
jury.
CAREER EDUCATION: Students' Suit Returns to Ill. Circuit Court
--------------------------------------------------------------
A case against Career Education Corporation will now return to the
Circuit Court for further proceedings after the Illinois Supreme
Court denied plaintiffs' petition to appeal the decertification of
the case, according to the company's May 6, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
On February 11, 2008, a class action complaint Lilley, et al. v.
Career Education Corporation, et al. was filed in the Circuit
Court of Madison County, Illinois, naming the Company and Sanford-
Brown College, Inc. as defendants. Plaintiffs filed amended
complaints on September 5, 2008 and September 24, 2010.
The five plaintiffs named in the amended complaint are former
students who attended a medical assistant program at Sanford-Brown
College located in Collinsville, Illinois. The amended complaint
asserts claims for alleged violations of the Illinois Private
Business and Vocational Schools Act, for alleged unfair conduct
and deceptive conduct under the Illinois Consumer Fraud and
Deceptive Business Practices Act, as well as common law claims of
fraudulent misrepresentation and fraudulent omission.
In the amended complaint filed on September 24, 2010, the
plaintiffs allege that the school's enrollment agreements
contained false and misleading information regarding placement
statistics, job opportunities and salaries and that Admissions,
Financial Aid and Career Services personnel used standardized
materials that allegedly contained false and/or deceptive
information.
Plaintiffs also allege that the school misused a standardized
admissions test to determine program placement when the test was
not intended for that purpose; failed to provide allegedly
statutorily required loan repayment information; and
misrepresented the transferability of credits.
Plaintiffs seek compensatory, treble and punitive damages,
disgorgement and restitution of all tuition monies received from
medical assistant students, attorneys' fees, costs and injunctive
relief.
Defendants filed a motion to dismiss the amended complaint on
October 20, 2010. On October 27, 2010 the Court granted
defendants' motion with respect to plaintiffs' fraudulent omission
claims. The Court denied the motion with respect to the statutory
claims under the Private Schools Act and the Illinois Consumer
Fraud Act and the common law fraudulent misrepresentation claim.
By Order dated December 3, 2010, the Court certified a class
consisting of all persons who attended Sanford-Brown College in
Collinsville, Illinois and enrolled in the Medical Assisting
Program during the period from July 1, 2003 through November 29,
2010. This class consists of approximately 2,300 members.
On February 10, 2011, the Fifth District Appellate Court granted
defendants' petition for leave to appeal the trial court's class
certification order. By Order filed on October 25, 2012, the
Appellate Court reversed the class certification order. The
Appellate Court also ruled that the four named plaintiffs can
proceed with their individual causes of action and, if successful,
receive an award of actual damages, treble damages if fraud is
proven, injunctive relief and reasonable attorneys' fees and
costs.
Plaintiffs' Petition for Leave to Appeal with the Illinois Supreme
Court was denied and the case will now return to the Circuit Court
for further proceedings consistent with the Appellate Court's
October 25, 2012 Order.
CAREER EDUCATION: Proceedings in Suit Related to WCI Stayed
-----------------------------------------------------------
Trial court proceedings in the suit Surrett, et al. v. Western
Culinary Institute, Ltd. and Career Education Corporation have
been stayed pending the outcome of an appeal against a ruling
blocking an arbitration, according to the company's May 6, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
On March 5, 2008, a complaint was filed in Portland, Oregon, in
the Circuit Court of the State of Oregon in and for Multnomah
County naming Western Culinary Institute, Ltd. and the Company as
defendants. Plaintiffs filed the complaint individually and as a
putative class action and alleged two claims for equitable relief:
violation of Oregon's Unlawful Trade Practices Act ("UTPA") and
unjust enrichment.
Plaintiffs filed an amended complaint on April 10, 2008, which
added two claims for money damages: fraud and breach of contract.
Plaintiffs allege that Western Culinary Institute, Ltd. ("WCI")
made a variety of misrepresentations to them, relating generally
to WCI's placement statistics, students' employment prospects upon
graduation from WCI, the value and quality of an education at WCI,
and the amount of tuition students could expect to pay as compared
to salaries they could expect to earn after graduation.
WCI subsequently moved to dismiss certain of plaintiffs' claims
under Oregon's UTPA; that motion was granted on September 12,
2008. On February 5, 2010, the Court entered a formal Order
granting class certification on part of plaintiff's UTPA and fraud
claims purportedly based on omissions, denying certification of
the rest of those claims and denying certification of the breach
of contract and unjust enrichment claims. The class consists of
students who enrolled at WCI between March 5, 2006 and March 1,
2010, excluding those who dropped out or were dismissed from the
school for academic reasons.
Plaintiffs filed a Fifth Amended Complaint on December 7, 2010,
which included individual and class allegations by Nathan Surrett.
Class notice was sent on April 22, 2011, and the opt-out period
expired on June 20, 2011. The class consisted of approximately
2,600 members. They are seeking tuition refunds, interest and
certain fees paid in connection with their enrollment at WCI.
On May 23, 2012, WCI filed a motion to compel arbitration of
claims by 1,062 individual class members who signed enrollment
agreements containing express class action waivers. The Court
issued an Order denying the motion on July 27, 2012. WCI filed an
appeal from the Court's Order and on August 30, 2012, the Court of
Appeals issued an Order granting WCI's motion to compel the trial
court to cease exercising jurisdiction in the case. Thus, all
proceedings with the trial court have been stayed pending the
outcome of the appeal.
CAREER EDUCATION: Suit Over CSCA's Admission Process in Discovery
-----------------------------------------------------------------
There are currently approximately 1,052 active plaintiffs in the
consolidated action over the admission process in the California
School of Culinary Arts, Inc. ("CSCA") and parties are now engaged
in discovery, according to the company's May 6, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
On June 23, 2008, a putative class action lawsuit Vasquez, et al.
v. California School of Culinary Arts, Inc. and Career Education
Corporation was filed in the Los Angeles County Superior Court
entitled Daniel Vasquez and Cherish Herndon v. California School
of Culinary Arts, Inc. and Career Education Corporation.
The plaintiffs allege causes of action for fraud, constructive
fraud, violation of the California Unfair Competition Law and
violation of the California Consumer Legal Remedies Act. The
plaintiffs allege improper conduct in connection with the
admissions process during the alleged class period.
The alleged class is defined as including "all persons who
purchased educational services from California School of Culinary
Arts, Inc. ("CSCA"), or graduated from CSCA, within the
limitations periods applicable to the alleged causes of action
(including, without limitation, the period following the filing of
the action)."
Defendants successfully demurred to the constructive fraud claim
and the Court has dismissed it. Defendants also successfully
demurred to plaintiffs' claims based on alleged violations of
California's former Private Postsecondary and Vocational
Educational Reform Act of 1989 ("the Reform Act"). Plaintiffs'
motion for class certification was denied by the Court on March 6,
2012.
Plaintiffs' counsel have filed eight separate but related
"multiple plaintiff actions" originally involving a total of
approximately 1,000 former students entitled Banks, et al. v.
California School of Culinary Arts; Abrica v. California School of
Culinary Arts; Aguilar, et al. v. California School of Culinary
Arts; Alday v. California School of Culinary Arts; Ackerman, et
al. v. California School of Culinary Arts; Arechiga, et al. v.
California School of Culinary Arts; Anderson, et al., v.
California School of Culinary Arts; and Allen v. California School
of Culinary Arts. All eight cases are pending in the Los Angeles
County Superior Court and the allegations in these cases are
essentially the same as those asserted in the Vasquez class action
case.
The individual plaintiffs in these cases seek compensatory and
punitive damages, disgorgement and restitution of tuition monies
received, attorneys' fees, costs and injunctive relief. All of
these cases have been deemed related to the Vasquez class action
and therefore are pending before the same judge who is presiding
over the Vasquez case.
On June 15, 2012, pursuant to a stipulation by the parties, the
plaintiffs filed a consolidated amended complaint in the Vasquez
action consolidating all eight of the separate actions.
Defendants' response to the consolidated complaint was filed on
July 13, 2012. The Court has lifted the stay on actions that were
consolidated and the parties are now engaged in discovery.
On June 22, 2012, defendants filed motions to compel arbitration
of plaintiffs' claims. On August 10, 2012, the Court granted the
motions with respect to two later versions of the arbitration
agreement at issue, and denied the motions with respect to the
earliest version signed by certain of the plaintiffs.
Approximately 54 individuals signed the later two versions of the
arbitration agreement, and their claims are subject to
arbitration. Nine of those individuals have filed arbitration
demands before the American Arbitration Association to date. Those
arbitrations have been set for hearing on dates between May and
September 2013.
Among other causes of action, the consolidated complaint alleges a
claim under the repealed Reform Act. On September 25, 2012, the
Court sustained defendants' demurrers to the Reform Act claims
without leave to amend, and overruled defendants' demurrers to the
breach of contract claims which seek remedies under the Reform
Act.
Defendants issued offers to compromise pursuant to the California
Code of Civil Procedure to 1,478 individual plaintiffs, 345 of
which were accepted. The total amount that has been or will be
paid to eliminate these claims is approximately $2.1 million. This
aggregate amount was recorded in the third quarter of 2012 and the
majority of the payments were made by September 30, 2012. Due to
the recent addition of 385 new plaintiffs, there are currently
approximately 1,052 active plaintiffs in the consolidated action.
CAREER EDUCATION: Moves to Compel Arbitration in Suit Over IADT
---------------------------------------------------------------
Motions in relation to a possible arbitration are being filed to
settle complaints filed by students who are or have enrolled in
defendants' degree programs at International Academy of Design &
Technology's Tampa and Orlando, Florida campuses, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended
March 31, 2013.
Kishia Houck, et al. v. Career Education Corporation and
International Academy of Merchandising & Design, Inc., and Juan
Antonio Morales, et al. v. Career Education Corporation and
International Academy of Merchandising & Design, Inc.
On May 23, 2012, a putative class action was filed in the Circuit
Court of the Thirteenth Judicial Circuit for Hillsborough County,
Florida, captioned, Kishia Houck, et al. v. Career Education
Corporation and International Academy of Merchandising & Design,
Inc. The Houck plaintiffs alleged causes of action under Florida's
Deceptive and Unfair Trade Practices Act and for breach of the
implied covenant of good faith and fair dealing, unjust
enrichment, and breach of fiduciary duty.
They alleged that the defendants made a variety of
misrepresentations to them, relating generally to salary and
employment prospects, instructor qualifications, transferability
of credits, career placement services, the reputation of the
International Academy of Merchandising & Design, Inc., the value
and quality of the education, the overall cost to attend the
school, and relevant student loan information.
The putative class was defined as including all students who are
or have enrolled in defendants' degree programs at IADT's Tampa
and Orlando, Florida campuses during an undetermined time period.
The Houck plaintiffs sought to recover damages and also sought
declaratory and injunctive relief.
On July 5, 2012, the action was removed to the U.S. District Court
for the Middle District of Florida. On August 3, 2012, the Houck
plaintiffs filed a Third Amended Class Action Complaint. On
September 7, 2012, defendants moved to dismiss the Houck
plaintiffs' claims and to compel arbitration. On October 12, 2012,
the parties jointly moved the Court to postpone most case activity
until it decides whether to refer the case for arbitration.
On September 11, 2012, a second putative class action was filed in
the U.S. District Court for the Middle District of Florida,
captioned, Juan Antonio Morales, et al. v. Career Education
Corporation and International Academy of Merchandising & Design,
Inc. The Morales plaintiffs alleged essentially the same factual
bases and causes of action as in Houck, but added a request for
punitive damages. The definition of the putative class in Morales
was the same as in Houck.
On October 23, 2012, the Morales plaintiffs filed a First Amended
Complaint in which, among other things, they added several
additional plaintiffs, including a proposed class representative,
and a claim for civil conspiracy. Thus, Morales included causes of
action under Florida's Deceptive and Unfair Trade Practices Act,
and for breach of the implied covenant of good faith and fair
dealing, unjust enrichment, breach of fiduciary duty, and civil
conspiracy. On November 2, 2012, the Court ordered Morales closed,
incorporated it into Houck, and ordered that all further pleadings
shall be filed in Houck. Plaintiffs filed a Consolidated Amended
Class Action Complaint on November 11, 2012, which included all
plaintiffs from both Houck and Morales and added a cause of action
for violation of the Federal Racketeer Influenced and Corrupt
Organizations Act. Defendants subsequently, on November 30, 2012,
filed a motion to dismiss, a motion to compel arbitration, and a
motion to strike the plaintiffs' punitive damages claims.
On December 14, 2012, plaintiffs filed a motion for leave to
conduct discovery on the issue of whether the arbitration
provisions in the student enrollment agreements signed by each of
the plaintiffs is unconscionable. A hearing was held on the motion
on January 17, 2013, which concluded with the Court denying
plaintiffs' request for discovery. On February 11, 2013,
plaintiffs responded to the motion to compel arbitration, motion
to dismiss, and motion to strike plaintiffs' demand for punitive
damages. On March 12, 2013, defendants replied to plaintiffs'
response to defendants' motion to compel arbitration.
CAREER EDUCATION: Seeks Arbitration in "Cohen" Lawsuit
------------------------------------------------------
Defendants in the suit David Cohen, et al. v. Career Education
Corporation and International Academy of Merchandising & Design,
Inc. filed a motion to compel arbitration, a motion to dismiss,
and a motion to strike plaintiffs' demand for punitive damages,
which are still pending, according to the company's May 6, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
On January 14, 2013, a putative class action was filed in the U.S.
District Court for the Middle District of Florida, captioned,
David Cohen, et al. v. Career Education Corporation and
International Academy of Merchandising & Design, Inc.
The Cohen plaintiffs allege causes of action under Florida's
Deceptive and Unfair Trade Practices Act and for unjust
enrichment, breach of fiduciary duty, civil conspiracy, and
violation of the Federal Racketeer Influenced and Corrupt
Organizations Act.
They allege that defendants made a variety of misrepresentations
to them, relating generally to salary and employment prospects,
instructor qualifications, transferability of credits, career
placement services, the reputation of the International Academy of
Merchandising & Design, Inc., the value and quality of the
education, the overall cost to attend the school, and relevant
student loan information.
The putative class is defined as including all students who are or
have enrolled in defendants' degree programs at its Tampa and
Orlando, Florida campuses during an undetermined time period. The
Cohen plaintiffs seek to recover compensatory and punitive damages
and also seek declaratory and injunctive relief.
The complaint is essentially identical to the Consolidated Amended
Class Action Complaint previously filed in Kishia Houck, et al. v.
Career Education Corporation and International Academy of
Merchandising & Design, Inc., raising the same claims and
including the same class definition, with the exception that the
Cohen plaintiffs, unlike those in Houck, have not raised a claim
for breach of the implied covenant of good faith and fair dealing.
On February 11, 2013, defendants filed a motion to compel
arbitration, a motion to dismiss, and a motion to strike
plaintiffs' demand for punitive damages, which are still pending
as of April 30, 2013.
CAREER EDUCATION: "Brainard" Suit Stayed Pending Arbitration
------------------------------------------------------------
The Court granted defendants' motion in Danielle Brainard, et al.
v. Career Education Corporation and Sanford-Brown Limited, Inc. to
compel arbitration on March 11, 2013 and the case is stayed
pending arbitration, according to the company's May 6, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
On September 11, 2012, a putative class action was filed in the
U.S. District Court for the Middle District of Florida, captioned,
Danielle Brainard, et al. v. Career Education Corporation and
Sanford-Brown Limited, Inc. d/b/a Sanford-Brown College and d/b/a
Sanford-Brown Institute-Orlando.
In their complaint, plaintiffs alleged causes of action under
Florida's Deceptive and Unfair Trade Practices Act and the Federal
Racketeer Influenced and Corrupt Organizations Act ("RICO"), for
breach of the implied covenant of good faith and fair dealing,
unjust enrichment, and breach of fiduciary duty.
Plaintiffs allege that defendants made a variety of
misrepresentations to them, relating generally to salary and
employment prospects, instructor qualifications, transferability
of credits, the necessity for completing a medical assistant
program before enrolling in other technical programs, career
placement services, the reputation of Sanford-Brown College and
Sanford-Brown Institute, the value and quality of the education,
the overall cost to attend the school, and relevant student loan
information.
The putative classes are defined as including (1) all students who
are or have enrolled in defendants' degree programs at its Tampa
and Orlando, Florida campuses during an undetermined time period,
and (2) all students who are or have enrolled in defendants'
degree programs at any of their Sanford-Brown campuses throughout
the United States during an undetermined period who were told by
defendants that they had to complete a medical assistant program
prior to enrolling in other technical programs. Plaintiffs seek to
recover damages and also seek declaratory and injunctive relief.
On October 18, 2012, plaintiffs filed a First Amended Complaint.
In this amended pleading, plaintiffs added several additional
plaintiffs and a claim for civil conspiracy.
The Court granted defendants' motion to compel arbitration on
March 11, 2013 and the case is stayed pending arbitration.
CAREER EDUCATION: "Cernohorsky" Suit Goes to Judge Kovachevich
--------------------------------------------------------------
The Circuit Court of the Thirteenth Judicial Circuit for
Hillsborough County, Florida, transferred the case Ronald
Cernohorsky, et al. v. Career Education Corporation and
International Academy of Merchandising & Design, Inc. to the judge
presiding over the related Houck and Cohen actions, according to
the company's May 6, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
On January 14, 2013, a putative class action was filed in the
Circuit Court of the Thirteenth Judicial Circuit for Hillsborough
County, Florida, captioned, Ronald Cernohorsky, et al. v. Career
Education Corporation and International Academy of Merchandising &
Design, Inc, d/b/a IADT Online.
The Cernohorsky plaintiffs allege causes of action against CEC and
IADT Online under Florida's Deceptive and Unfair Trade Practices
Act and for unjust enrichment, breach of fiduciary duty, and
violation of the Federal Racketeer Influenced and Corrupt
Organizations Act.
They allege that defendants made a variety of misrepresentations
to them, relating generally to salary and employment prospects,
instructor qualifications, transferability of credits, career
placement services, the reputation of IADT Online, the value and
quality of the education, the overall cost to attend the school,
and relevant student loan information. The putative class is
defined as including all students who are or have enrolled in
defendants' online degree programs during an undetermined time
period.
The Cernohorsky plaintiffs seek to recover compensatory and
punitive damages and also seek declaratory and injunctive relief.
The complaint is similar to the Consolidated Amended Class Action
Complaint previously filed in Kishia Houck, et al. v. Career
Education Corporation and International Academy of Merchandising &
Design, Inc., but focuses on students enrolled in IADT's online
degree programs, rather than at its Tampa and Orlando, Florida
campuses.
On February 11, 2013, defendants filed a motion to compel
arbitration, a motion to dismiss, and a motion to strike
plaintiffs' demand for punitive damages, which are still pending
as of April 30, 2013.
On April 2, 2013, the Court transferred the case to Judge
Kovachevich, who is presiding over the related Houck and Cohen
actions.
CAREER EDUCATION: AIU Denies TCPA Violation in "Stafford" Suit
--------------------------------------------------------------
Career Education Corporation sent a letter to plaintiff's counsel
in the suit Keith Stafford v. American Intercontinental University
and Does 1-10, inclusive, demanding dismissal of the action after
an investigation that led it to conclude it did not violate the
Telephone Consumer Protection Act ("TCPA"),
according to the company's May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On September 4, 2012, plaintiff Keith Stafford, on behalf of
himself only, filed this action against American InterContinental
University in the United States District Court, Northern District
of Indiana. The complaint alleges two claims for negligent and
willful violations of the Telephone Consumer Protection Act
(TCPA). In his initial complaint, plaintiff alleged that he
received automated dialer calls using a robotic voice in violation
of the TCPA. He also alleges that he instructed AIU to cease
making the calls but AIU did not do so. The Company filed an
answer to plaintiff's complaint on November 13, 2012.
On February 18, 2013, plaintiff filed a first amended class action
complaint in which he makes essentially the same allegations on
behalf of a class defined as "[a]ll persons within the United
States who, at any time during the last four years, received one
or more non-emergency telephone calls from [AIU] to a residential
telephone through the use of an artificial or pre-recorded voice,
and who did not provide prior express consent for such calls."
Plaintiff seeks injunctive relief, statutory and treble damages of
$1500 per call for willful violations of the TCPA plus attorneys'
fees and costs. The Company filed an answer to the first amended
class action complaint on February 25, 2013.
The Company has conducted an investigation into the claims by the
named plaintiff Keith Stafford and believes that the calls placed
to the plaintiff did not violate the TCPA. Plaintiff served
preliminary written discovery on January 11, 2013. The Company
responded to the discovery and sent a letter to plaintiff's
counsel demanding dismissal of the action. Plaintiff's counsel is
considering the Company's demand.
CAREER EDUCATION: Plaintiffs Appeal Dismissal of "Wilson" Suit
--------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit is yet to rule
on an appeal by plaintiffs against a dismissal of the case Wilson,
et al. v. Career Education Corporation, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
On August 11, 2011, Riley Wilson, a former Admissions
Representative based in Minnesota, filed a complaint in the U.S.
District Court for the Northern District of Illinois. The two-
count complaint asserts claims of breach of contract and unjust
enrichment arising from the company's decision to terminate
Admissions Representative Supplemental Compensation Plan.
In addition to his individual claims, Wilson also seeks to
represent a nationwide class of similarly situated Admissions
Representatives who also were affected by termination of the plan.
On October 6, 2011, the company filed a motion to dismiss the
complaint.
On April 13, 2012, the Court granted the company's motion to
dismiss in its entirety and dismissed plaintiff's complaint for
failure to state a claim. The Court dismissed this action with
prejudice on May 14, 2012. On June 11, 2012, plaintiff filed a
Notice of Appeal with the U.S. Court of Appeals for the Seventh
Circuit appealing the final judgment of the trial court. Briefing
was completed on October 30, 2012, and oral argument was held on
December 3, 2012. The Seventh Circuit has not yet ruled on the
appeal.
CB TRANSPORT: Court Denies Summary Judgment Plea in "Sturm" Suit
----------------------------------------------------------------
District Judge Candy W. Dale issued on May 2, 2013, an amended
Memorandum Decision and Order in the case: DELBERT STURM, an
individual, RICHARD D. FERGUSON, an individual, DWAYNE VOLK, an
individual, STAN DALRYMPLE, an individual, OCTAVIO CRUZ, JR., an
individual, CANTOS REYES, an individual, JASON MILLER, an
individual, PAT STEPHEN GUNN, an individual, CHRIS HOLMAN, an
individual, and JOHN DOES 1-20, Plaintiffs, v. CB TRANSPORT, INC.,
a foreign corporation, Defendant, Case No. 1:12-cv-109-CWD, United
States District Court, D. Idaho.
Plaintiffs are the former and current employees of Defendant CB
Transport, Inc., a trucking company that hauls raw milk from Idaho
and Oregon dairy farms to Darigold processing plants, and then
takes the finished product to Darigold customers.
Plaintiffs claim that under the Fair Labor Standards Act ("FLSA"),
they are entitled to back pay for time worked over 40 hours per
week.
CB moved for summary judgment, arguing Plaintiffs are not entitled
to overtime pay because the entire pool of milk tanker drivers
falls under the Motor Carrier Act exemption to the FLSA. CB
argues also that Plaintiffs' state law claims are either preempted
by the FLSA, barred by the state law statute of limitations, or
fail as a matter of law. Finally, CB argues that summary judgment
must be granted as to the claims made by Plaintiffs who did not
respond to the motion for summary judgment, because Plaintiffs are
not a certified class.
Additionally, Plaintiffs filed a motion to amend their complaint
to add named plaintiffs in place of the John Does, and to add a
claim of willful violation under the FLSA.
The Court denied CB's Motion for Summary Judgment, and granted
Plaintiffs' Motion to Amend.
A copy of the May 2, 2013, Amended Memorandum Decision and Order
is available at http://is.gd/pcX7Wmfrom Leagle.com.
CELITE CORP: Calif. Court of Appeals Reverses Judgment
------------------------------------------------------
The Court of Appeals of California, Second District, Division Six,
issued an order on May 2, 2013, reversing and remanding a trial
court judgment in the case: HOWARD CHOATE et al., Plaintiffs and
Respondents, v. CELITE CORPORATION, Defendant and Appellant, 2d
Civil No. B239160.
"An employer in California must immediately pay a terminated
employee for all of his 'vested vacation time' unless the union
representing that employee has negotiated a collective bargaining
agreement that 'otherwise provide[s].' (Labor Code, Sections
227.3, 201.) We hold that a collective bargaining agreement
'otherwise provide[s]' and thereby abrogates an employee's
statutory right under section 227.3 to immediate payment for
vested vacation time only if the agreement clearly and
unmistakably waives that right. Because the agreement in this case
lacked this clarity, Celite Corporation (Celite) was required to
immediately pay terminated employees for all their vested vacation
time. We nevertheless reverse the trial court's judgment imposing
waiting time penalties because Celite's nonpayment was not
'willful.'"
The trial court is ordered to grant summary adjudication to Celite
on the waiting time penalties count. Costs on appeal are awarded
to Celite.
Sheppard, Mullin, Richter & Hampton LLP's Jeffrey A. Dinkin, Esq.,
and Karin Dougan Vogel, Esq., represented the Defendant and
Appellant. Gilbert & Sackman's Robert A. Cantore, Esq., and
Adrian Barnes, Esq., represented the Plaintiffs and Respondents.
A copy of the May 2, 2013, Order is available at
http://is.gd/BqxwCGfrom Leagle.com
COASTAL GULF: Court Conditionally Certifies "Wischnewsky" Suit
--------------------------------------------------------------
District Judge Nannette Jolivette Brown granted on May 2, 2013, a
Motion to Conditionally Certify FLSA Collective Action filed by
Plaintiffs in the case: Benjamin Wischnewsky and Solomon Guevara,
both individually and on behalf of all other similarly situated
persons, v. Coastal Gulf & International, Inc., and Michael
Caravella, Civil Action No. 12-2277, United States District Court,
E.D. Louisiana.
The Plaintiffs moved the Court to conditionally certify the action
as a Fair Labor Standards Act collective action on behalf of all
oil, gas and chemical surveyors and inspectors who worked for
Coastal Gulf & International, Inc. and Michael Caravella, at any
time after September 14, 2009, who were not paid time and one-half
for all hours worked over forty in a work week. At a hearing on
March 1, 2013, the Court heard oral argument from counsel on the
pending motion. Having considered those arguments, and having
reviewed the motion, the memorandum in support, the response, the
reply, and the applicable law, the Court granted the motion to
conditionally certify the collective action.
A copy of the May 2, 2013, Order and Reasons is available at
http://is.gd/JccfO7from Leagle.com.
COMMERCE BANCSHARES: Mo. Suit Against Overdraft Fees Stayed
-----------------------------------------------------------
A suit filed in Missouri state court against Commerce Bank is
stayed in deference to an earlier suit (now in settlement
proceedings) that similarly claims the Bank had improperly charged
overdraft fees on certain debit card transactions, according to
Commerce Bancshares, Inc.'s May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In December 2011, the Bank reached a class-wide settlement in a
class action lawsuit captioned Wolfgeher v. Commerce Bank, Case
No. 1:10-cv-22017 (MDL 2036, S.D. Fla.) which alleged that the
Bank had improperly charged overdraft fees on certain debit card
transactions and claimed refunds for the plaintiff individually
and on behalf of other customers as a class. A formal Settlement
Agreement and Release related to this lawsuit was signed by the
Bank on July 26, 2012.
The Bank, while admitting no wrongdoing, agreed to the settlement
in order to resolve the litigation and avoid further expense. The
settlement provided for a payment of $18.3 million into a class
settlement fund, the proceeds of which will be used to issue
refunds to class members and to pay attorneys' fees,
administrative and other costs, in exchange for a complete release
of all claims asserted against the Bank. The Bank also agreed to
post debit card transactions in chronological order, which was
implemented on February 21, 2013.
As a result of the change in the posting order of debit card
transactions, the Company currently estimates that overdraft
income will be reduced on an annual basis by $6 million to $8
million.
A second suit alleging the same facts and also seeking class-
action status was filed on June 4, 2010 in Missouri state court.
The second suit was stayed in deference to the earlier filed suit,
and it is expected that the plaintiff in the Missouri state court
suit will opt out of the class-action settlement and pursue his
claims as an individual plaintiff.
CRANE CO: Has $2MM Accord to Settle Suit Over Merrimac Buyout
-------------------------------------------------------------
Parties in a suit filed over Crane Co.'s acquisition of Merrimac
reached an agreement in principle to resolve the case pursuant to
which a $2 million settlement fund will be established, the
company revealed in a May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On January 8, 2010, a lawsuit related to the acquisition of
Merrimac was filed in the Superior Court of the State of New
Jersey. The action, brought by a purported stockholder of
Merrimac, names Merrimac, each of Merrimac's directors, and Crane
Co. as defendants, and alleges, among other things, breaches of
fiduciary duties by the Merrimac directors, aided and abetted by
Crane Co., that resulted in the payment to Merrimac stockholders
of an allegedly unfair price of $16.00 per share in the
acquisition and unjust enrichment of Merrimac's directors.
The complaint seeks certification as a class of all Merrimac
stockholders, except the defendants and their affiliates, and
unspecified damages. Simultaneously with the filing of the
complaint, the plaintiff filed a motion that sought to enjoin the
transaction from proceeding.
After a hearing on January 14, 2010, the court denied the
plaintiff's motion. All defendants thereafter filed motions
seeking dismissal of the complaint on various grounds. After a
hearing on March 19, 2010, the court denied the defendants'
motions to dismiss and ordered the case to proceed to pretrial
discovery. All defendants have filed their answers and deny any
liability. The Court certified the class, and the parties engaged
in pre-trial discovery.
Fact discovery closed in July 2012, and expert discovery,
including the exchange of expert reports and depositions of expert
witnesses, closed on November 30, 2012. Summary judgment motions
were due to be submitted on or before January 15, 2013.
However, on December 26, 2012, plaintiff's counsel proposed a
settlement figure that was substantially less than had previously
been proposed. This led to negotiations which culminated, on
January 11, 2013, in an agreement, in principle, to resolve the
case on the following terms, which are subject to Court approval.
In consideration of the establishment of a settlement fund in the
amount of $2 million, to be funded almost entirely from the
insurance policy covering the former officers and directors of
Merrimac, and with a single contribution of $150,000 by Crane Co.,
the plaintiffs agreed (1) to withdraw the single claim asserted in
the Complaint against Crane Co., (2) that all plaintiff's
attorney's fees and expenses associated with the case will come
from the settlement amount, and (3) that all costs of notification
of the settlement to the members of the class, costs related to
the distribution of pro rata amounts to class members, and any
other administrative costs, will also come from the settlement
amount.
In addition, all defendants, including Crane Co., will receive
full class-wide releases. On January 15, 2013, with the consent of
counsel for Crane Co. and the other defendants, plaintiff's
counsel notified the Court that the parties had reached a
provisional agreement to resolve the case, subject to court
approval, and asked that the case be stayed for all purposes
except for settlement-related proceedings.
CRANE CO: New Claim Added to Suit Related to Roseland Plant
-----------------------------------------------------------
A homeowner near Crane Co.'s former manufacturing facility in
Roseland, New Jersey, who earlier filed a suit against the
company, filed an amended complaint to include allegation that the
company failed to properly remediate the site, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended
March 31, 2013.
Pursuant to recently enacted environmental regulations in New
Jersey, the Company performed certain tests of the indoor air
quality of approximately 40 homes in a residential area
surrounding a former manufacturing facility in Roseland, New
Jersey, to determine if any contaminants (volatile organic
compound vapors from groundwater) from the facility were present
in those homes.
The Company installed vapor mitigation equipment in three homes
where contaminants were found. On April 15, 2011, those three
homeowners, and the tenants in one of those homes, filed separate
suits against the Company seeking unspecified compensatory and
punitive damages for their lost property value and nuisance. In
addition, a homeowner in the testing area, whose home tested
negative for the presence of contaminants, filed a class action
suit against the Company on behalf of himself and 141 other
homeowners in the surrounding area, claiming damages in the nature
of loss of value on their homes due to their proximity to the
facility.
The plaintiffs in these cases recently amended their complaints to
assert claims under New Jersey's Environmental Rights Act for the
Company's alleged failure to properly remediate the site.
FEDERAL SIGNAL: Firefighters' Suit Stayed Pending Appeal
--------------------------------------------------------
All trial court proceedings in a suit filed against Federal Signal
Corporation over the company's alleged defective sirens are stayed
pending a final decision from the Appellate Court on a motion
seeking reversal of a class certification order,
according to the company's May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
The Company has been sued by firefighters seeking damages claiming
that exposure to the Company's sirens has impaired their hearing
and that the sirens are therefore defective. There were 33 cases
filed during the period of 1999 through 2004, involving a total of
2,443 plaintiffs, in the Circuit Court of Cook County, Illinois.
These cases involved more than 1,800 firefighter plaintiffs from
locations outside of Chicago. Beginning in 2009, six additional
cases were filed in Cook County, involving 299 Pennsylvania
firefighter plaintiffs.
The trial of the first 27 of these plaintiffs' claims occurred in
2008, when a Cook County jury returned a unanimous verdict in
favor of the Company.
An additional 40 Chicago firefighter plaintiffs were selected for
trial in 2009. Plaintiffs' counsel later moved to reduce the
number of plaintiffs from 40 to nine. The trial for these nine
plaintiffs concluded with a verdict returned against the Company
and for the plaintiffs in varying amounts totaling $0.4 million.
The Company appealed this verdict. On September 13, 2012, the
Illinois Appellate Court rejected this appeal. Two justices voted
to uphold the verdict and one justice filed a lengthy and vigorous
dissent. The Company thereafter filed a petition for rehearing
with the Illinois Appellate Court, which was denied on February 7,
2013. The Company has sought further review by filing a petition
for leave to appeal with the Illinois Supreme Court on March 14,
2013.
A third consolidated trial involving eight Chicago firefighter
plaintiffs occurred during November 2011. The jury returned a
unanimous verdict in favor of the Company at the conclusion of
this trial.
Following this trial, the trial court on March 12, 2012 entered an
order certifying a class of the remaining Chicago Fire Department
firefighter plaintiffs for trial on the sole issue of whether the
Company's sirens were defective and unreasonably dangerous.
The Company petitioned the Illinois Appellate Court for
interlocutory appeal of this ruling. On May 17, 2012, the Illinois
Appellate Court accepted the Company's petition. On June 8, 2012,
plaintiffs moved to dismiss the appeal, agreeing with the Company
that the trial court had erred in certifying a class action trial
in this matter. Pursuant to plaintiffs' motion, the Illinois
Appellate Court reversed the trial court's certification order.
Thereafter, the trial court scheduled a fourth consolidated trial
involving three firefighter plaintiffs, which began in December
2012.
Prior to the start of this trial, the claims of two of the three
firefighter plaintiffs were dismissed. On December 17, 2012, the
jury entered a complete defense verdict for the Company in this
trial.
Following this defense verdict, plaintiffs again moved to certify
a class of Chicago Fire Department plaintiffs for trial on the
sole issue of whether the Company's sirens were defective and
unreasonably dangerous. Over the Company's objection, the trial
court granted plaintiffs' motion for class certification on March
11, 2013 and scheduled a class action trial to begin on June 10,
2013.
The Company filed a petition for review with the Illinois
Appellate Court on March 29, 2013 seeking reversal of the class
certification order. On April 23, 2013, the Appellate Court
granted the Company's petition for review. Pursuant to Illinois
law, all class proceedings in the trial court are stayed pending a
final decision from the Appellate Court on this issue.
FEMA TRAILER: Court Approves Allocation of Benefit Fees
-------------------------------------------------------
District Judge Kurt D. Engelhardt on May 2, 2013, granted a Motion
to Approve Allocation of Common Benefit Fees, filed by the
Plaintiffs' Steering Committee and associated common benefit
counsel in the case In Re: FEMA Trailer Formaldehyde Products
Liability Litigation, MDL No. 07-1873, United States District
Court, E.D. Louisiana.
No opposition to the motion was filed. The Court referred the
motion to Special Master F. A. Little, Jr., retired United States
District Judge, for a brief report and recommendation. The Special
Master has rendered his report and recommends that the Court
approve the proposed allocation.
A copy of the May 2, 2013 Order and Reasons is available at
http://is.gd/yHRQbefrom Leagle.com.
FISHER COMMUNICATIONS: Faces Suit Over Merger With Sinclair
-----------------------------------------------------------
In connection with the announcement of Fisher Communications, Inc.
of a Merger Agreement with Sinclair Broadcast Group, Inc., on
April 13, 2013, a purported class action lawsuit was filed against
the Company and its Board of Directors in King County Superior
Court in the State of Washington, docketed as Halberstam v. Fisher
Communications, Inc., et al., Case No. 13-2-17171-6 SEA.
The lawsuit alleges, among other things, that Fisher's Board of
Directors breached its fiduciary duties to shareholders by failing
to take steps to maximize shareholder value or to engage in a fair
sale process before approving the proposed acquisition of the
Company by Sinclair. The plaintiff seeks relief that includes,
among other things, an injunction prohibiting the consummation of
the proposed Merger, damages for the breaches of fiduciary duty,
and the payment of plaintiff's attorneys' fees and costs.
IMAX: Bennett Jones Discusses Securities Class Action Ruling
------------------------------------------------------------
Jonathan G. Bell, Esq., Eric R. Hoaken, Esq. and Jeffrey Leon,
Esq. at Bennett Jones LLP report that those who have been
following the progress of the securities class action saga of
Silver v. IMAX will be interested to note that another decision in
the long-running case has been released. On March 19, Justice van
Rensburg of the Ontario Superior Court held that members of a
class certified in Ontario can be bound by a settlement in a
related U.S. class action and therefore excluded from
participating in the Ontario class proceeding. This decision is a
welcome one for companies defending overlapping class actions in
two different jurisdictions as it provides a means of settling in
one jurisdiction and nonetheless achieving a final resolution of
all claims of class members, including those comprising part of a
certified class in another jurisdiction.
The class actions in this case were commenced in 2006. The
Ontario class plaintiffs brought a proceeding under Part XXIII.1
of the Securities Act (Ontario), alleging that the defendants made
misrepresentations in IMAX's financial reports. In 2009, the
class plaintiffs obtained leave to proceed with their claims (as
is required under Part XXIII.1 of the Securities Act) and the
action was certified as a class proceeding for a class of
investors that included persons who purchased their shares on both
the TSX and the NASDAQ. In the U.S. class proceeding, which only
affected NASDAQ purchasers, a settlement agreement was
conditionally approved in 2012, pending an order from the Ontario
court amending its class to exclude persons who purchased IMAX
securities on the NASDAQ. The defendants therefore brought a
motion before Justice van Rensburg to amend the Ontario class to
exclude persons who were part of the class in the parallel U.S.
proceeding. Justice van Rensburg granted the order, sending a
message to class counsel as to the practical realities of and the
risks inherent in a cross-border class action. The decision
further provides the prospect of potential relief to defendants
involved in cross-border class actions where settlements are being
negotiated separately.
While Her Honour rejected Ontario class counsel's assertion that
the order being sought was in substance a motion to approve a
settlement of an Ontario class proceeding, she equally rejected
defense counsel's assertion that once satisfied that the U.S.
Court had jurisdiction, the Ontario Court should in the interests
of comity, automatically grant the order requested.
Instead, in determining whether to recognize the conditional U.S.
settlement, Justice van Rensburg applied the test for recognition
of a foreign judgment approving a class action settlement,
previously set out by the Ontario Court of Appeal in Currie v.
McDonald's Restaurants of Canada Ltd. Specifically, Her Honour
found that there was a real and substantial connection between the
U.S. claims and the NASDAQ purchaser claims in the Ontario class,
that these class plaintiffs had been accorded procedural fairness
in the U.S. proceeding, and that these plaintiffs were adequately
represented in the U.S. proceeding. These findings were based in
part on the fact that Ontario class counsel had some participation
in settlement discussions in which U.S. lead counsel had also
participated, and that notice of the U.S. settlement was issued in
Canadian newspapers.
Having determined that it was appropriate to recognize the U.S.
settlement order, Justice van Rensburg turned to whether she ought
to amend the Ontario class to give effect to the recognized U.S.
judgment. Under the Class Proceedings Act, one of the
considerations for certification of a class proceeding is whether
a class action is the preferable procedure for the resolution of
the proposed common issues.
Justice van Rensburg accepted Ontario class counsel's proposition
that if the U.S. settlement was demonstrated to be improvident
when compared with the prospect of litigating the claims of the
overlapping class members in Ontario, it may be the "preferable
procedure" to refuse the order amending the Ontario class and to
continue to include the overlapping class members' claims in the
Ontario Action.
It was in this context that Her Honour considered Ontario class
counsel's arguments that the U.S. settlement was inadequate having
regard to (a) the alleged advantages of litigating the claims
under Ontario law; (b) the discovery evidence which supported the
plaintiffs' claims; and (c) Ontario class counsel's estimate of
the maximum value of the members' claims. In granting the order
to narrow the Ontario class, Justice van Rensburg determined that
the evidence did not establish that the U.S. settlement was
improvident when compared to what is available through litigation
in Ontario and that the preferable procedure was to remove the
NASDAQ purchasers from the Ontario proceeding. Her Honour found
that the settlement in the U.S. furthered the objectives of class
proceedings and in particular, that keeping the U.S. purchasers in
the Ontario class proceeding would not promote access to justice.
Ontario class counsel argued that narrowing the class would put a
large burden on TSX purchasers who would have to share litigation
costs with a smaller number of plaintiffs. However, Justice van
Rensburg noted that the Canadian purchasers had been offered a
proportional settlement to what was offered to the NASDAQ
purchasers. In addition, Justice van Rensburg noted that class
counsel always assume a risk that their costs will not be
recovered in a class proceeding; this risk is all the more
apparent, and real, in a cross-border class action.
Ontario class counsel also argued that granting the order would
set a dangerous precedent as it would encourage "reverse auctions"
and a "race to the bottom" in subsequent class actions. This
argument was based on the argument that defendants in cross-border
class proceedings should have incentives to settle both actions,
rather than to bargain with class counsel "to sell out the claims
for the lowest amount possible in order to earn counsel fees."
Essentially, class counsel was arguing that parallel class
proceedings would have to be settled globally or not at all. In
rejecting this argument, Justice van Rensburg noted that the
existing framework for class actions is that parallel proceedings
may occur in two separate courts and a decision can be made in one
court that may affect the rights and interests of persons with
claims in the second court. Justice van Rensburg concluded: "It
is not the function of this court to seek to jealously guard its
own jurisdiction over a class proceeding that has been certified
here. Such an approach is inconsistent with the principles of
comity." Justice van Rensburg also held that it is "not the
function of the court to favour or protect the interests of class
counsel within this jurisdiction, knowing that they have invested
time and resources into the litigation, and that their
compensation will depend on the size of the judgment or settlement
they are able to achieve."
This decision is a welcome one for defendants engaged in parallel
class proceedings, as it provides a framework for Ontario courts
to recognize foreign settlements as binding on members of the
Ontario class. Any other decision would have conferred on Ontario
class counsel an ability to effectively veto, by failing or
refusing to settle on the same terms, a settlement that had
already been found by the U.S. court to be fair and reasonable.
INTERLINE BRANDS: Still Faces Suit Over Alleged TCPA Violation
--------------------------------------------------------------
Interline Brands, Inc., continues to face a suit before the United
States District Court for the Northern District of Illinois for
sending alleged unsolicited fax advertisement, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2013.
On May 10, 2011, the Company was named as a defendant in the case
of Craftwood Lumber Company, an Illinois corporation, individually
and on behalf of all others similarly situated v. Interline
Brands, Inc., a Delaware corporation, and Interline Brands, Inc. a
New Jersey corporation, filed before the Nineteenth Judicial
Circuit Court of Lake County, Illinois, and subsequently removed
to the United States District Court for the Northern District of
Illinois. The complaint alleges that the Company sent thousands of
unsolicited fax advertisements to businesses nationwide in
violation of the Telephone Consumer Protection Act of 1991, as
amended by the Junk Fax Prevention Act of 2005 ("TCPA").
At the time of filing the initial complaint in state court, the
plaintiff also filed a motion asking the Court to certify a class
of plaintiffs comprised of businesses who allegedly received
unsolicited fax advertisements from the Company.
The plaintiff is seeking preliminary and permanent injunctive
relief enjoining the Company from violating the TCPA, as well as
statutory damages of $500 (or $1,500 if such violations are found
to have been willful) for each fax transmission found to be in
violation of the TCPA. Other reported TCPA claims have resulted in
a broad range of outcomes, with each case being dependent on its
own unique set of facts and circumstances.
ISTAR FINANCIAL: Wins Final Approval of "Citiline" Settlement
-------------------------------------------------------------
On June 4, 2012, iStar Financial Inc. reached an agreement in
principle with the plaintiffs' Court-appointed representatives in
the previously reported Citiline class action to settle the
litigation. Settlement payments will be primarily funded by the
Company's insurance carriers, with the Company contributing $2.0
million to the settlement, which was included in "Other expense"
on the Consolidated Statement of Operations for the year ended
December 31, 2012. On April 5, 2013, the Court approved the
settlement, entered a Final Judgment and Order of Dismissal With
Prejudice and the Citiline Action was concluded.
MCMORAN EXPLORATION: Faces Consolidated Suit Over FCX/MMR Merger
----------------------------------------------------------------
The Delaware Court of Chancery consolidated eight remaining
purported class actions against McMoran Exploration Co. over the
FCX/MMR merger into one single suit In re McMoRan Exploration Co.
Stockholder Litigation, No. 8132-VCN, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Between December 11, 2012 and December 26, 2012, ten putative
class actions challenging the FCX/MMR merger were filed on behalf
of all of McMoRan's stockholders by purported McMoRan
stockholders.
Nine were filed in the Court of Chancery of the State of Delaware
(the "Delaware Court of Chancery"). On January 9, 2013, one of
the actions was voluntarily dismissed by the plaintiff. On January
25, 2013, the Delaware Court of Chancery consolidated the
remaining eight actions into a single action, In re McMoRan
Exploration Co. Stockholder Litigation, No. 8132-VCN. One action
was also filed on December 19, 2012 in the Civil District Court
for the Parish of Orleans of the State of Louisiana: Langley v.
Moffett et al., No. 2012-11904.
The actions name some or all of the following as defendants:
McMoRan and its directors, FCX, the Gulf Coast Ultra Deep Royalty
Trust, INAVN Corp., a wholly-owned subsidiary of FCX (the "merger
sub"), another subsidiary of FCX, and PXP. The lawsuits allege,
among other things, that members of its board of directors
breached their fiduciary duties to McMoRan's stockholders because
they, among other things, pursued their own interests at the
expense of stockholders, failed to maximize stockholder value with
respect to the FCX/MMR merger, and failed to disclose material
facts regarding the FCX/MMR merger, and that FCX, the merger sub
and PXP aided and abetted that breach of fiduciary duties. The
consolidated Delaware action also asserts breach of contract
claims against FCX and PXP derivatively on behalf of McMoRan.
These lawsuits seek, among other things, an injunction barring or
rescinding the FCX/MMR merger, damages, and attorney's fees and
costs.
In addition, between December 14, 2012 and March 5, 2013, fourteen
derivative actions challenging the FCX/MMR merger and/or the
FCX/PXP merger were filed on behalf of FCX by purported FCX
stockholders. Eleven were filed in the Delaware Court of Chancery
and three were filed in the Superior Court of the State of
Arizona, County of Maricopa (the "Arizona Superior Court").
On January 25, 2013, the Delaware Court of Chancery consolidated
ten of the Delaware actions into a single action, In re Freeport-
McMoRan Copper & Gold Inc. Derivative Litigation, No. 8145-VCN. An
eleventh Delaware action, Stephen Blau MD Money Purchase Pension
Plan Trust v. Moffett et al., No. 8384-VCN, filed March 5, 2013
has not yet been consolidated. By orders dated January 17, 2013
and February 8, 2013, the Arizona Superior Court consolidated the
Arizona actions into In re Freeport-McMoRan Derivative Litigation,
No. CV2012-018351.
The parties to the consolidated Delaware action have agreed to
allow the Arizona plaintiffs to intervene in the consolidated
Delaware action, and the Arizona plaintiffs have agreed to seek a
permanent stay of the Arizona action.
The actions name some or all of the following as defendants: the
directors and certain officers of FCX, two FCX subsidiaries,
McMoRan and certain of its directors and officers, and PXP and
certain of PXP's directors. These lawsuits allege, among other
things, that the FCX directors breached their fiduciary duties to
FCX stockholders because they, among other things, pursued their
own interests at the expense of stockholders in approving the
FCX/MMR merger and the FCX/PXP merger.
These lawsuits further allege that the other defendants aided and
abetted that breach of fiduciary duties. These lawsuits seek,
among other things, an injunction barring or rescinding both the
FCX/MMR merger and the FCX/PXP merger and requiring submission of
both the FCX/MMR merger and the FCX/PXP merger to a vote of FCX
stockholders, damages, and attorneys' fees and costs.
The MMR plaintiffs have filed a motion for preliminary injunction.
The FCX plaintiffs have told the court that they do not intend to
file a motion for preliminary injunction. McMoRan believes the
lawsuits are without merit and intends to defend vigorously
against them.
MICHIGAN: Court Dismissed Suit v. Dept. of Corrections Officers
---------------------------------------------------------------
District Judge R. Allan Edgar dismissed the case: JAMES MICHAEL
DAYSON, Plaintiff, v. PATRICIA CARUSO et al., Defendants, Case No.
2:12-cv-455, United States District Court, W.D. Michigan, Northern
Division, for failure to state a claim.
The Plaintiff is incarcerated in the Kinross Correctional
Facility. In his pro se complaint, he sues Patricia Caruso, former
Director of the Michigan Department of Corrections (MDOC); Dan
Bolden, former Deputy Director of the MDOC; and Corizon Health.
Plaintiff's complaint contains ten counts or claims concerning the
conditions of his confinement. Additional facts will be provided
below as necessary to resolve Plaintiff's claims. Plaintiff seeks
injunctive relief and monetary damages with regard to each of his
ten claims. Plaintiff makes several requests for class
certification in his complaint. The Court pointed out that as
Plaintiff is an incarcerated, pro se litigant, he is not an
appropriate representative of a class. Consequently, the Court
denied Plaintiff's request for class certification.
A copy of the May 2, 2013, Opinion is available at
http://is.gd/lTH9Zpfrom Leagle.com.
MOHAWK INDUSTRIES: Still Faces Polyurethane Foam Antitrust Suit
---------------------------------------------------------------
Mohawk Industries, Inc. continues to face In re: Polyurethane Foam
Antitrust Litigation, Case No. 1:10-MDL-02196 filed in the U.S.
District Court for the Northern District of Ohio, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended
March 31, 2013.
Starting in August 2010, a series of civil lawsuits were initiated
in several U.S. federal courts alleging that certain manufacturers
of polyurethane foam products and competitors of the Company's
carpet underlay division had engaged in price fixing in violation
of U.S. antitrust laws.
Mohawk has been named as a defendant in a number of the individual
cases (the first filed on August 26, 2010), as well as in two
consolidated amended class action complaints, the first filed on
February 28, 2011, on behalf of a class of all direct purchasers
of polyurethane foam products, and the second filed on March 21,
2011, on behalf of a class of indirect purchasers.
All pending cases in which the Company has been named as a
defendant have been filed in or transferred to the U.S. District
Court for the Northern District of Ohio for consolidated pre-trial
proceedings under the name In re: Polyurethane Foam Antitrust
Litigation, Case No. 1:10-MDL-02196.
In these actions, the plaintiffs, on behalf of themselves and/or a
class of purchasers, seek three times the amount of unspecified
damages allegedly suffered as a result of alleged overcharges in
the price of polyurethane foam products from at least 1999 to the
present.
Each plaintiff also seeks attorney fees, pre-judgment and post-
judgment interest, court costs, and injunctive relief against
future violations. In April 2011, the Company filed a motion to
dismiss the class action claims brought by the direct purchasers,
and in May 2011, the Company moved to dismiss the claims brought
by the indirect purchasers.
On July 19, 2011, the Court issued a written opinion denying all
defendants' motions to dismiss.
In December 2011, the Company was named as a defendant in a
Canadian Class action, Hi ! Neighbor Floor Covering Co. Limited v.
Hickory Springs Manufacturing Company, et al., filed in the
Superior Court of Justice of Ontario, Canada and Options
Consommateures v. Vitafoam, Inc. et.al., filed in the Superior
Court of Justice of Quebec, Montreal, Canada, both of which allege
similar claims against the Company as raised in the U.S. actions
and seek unspecified damages and punitive damages. The Company
denies all of the allegations in these actions and will vigorously
defend itself.
MURPHY USA: Calif. Cases by Motor Fuel Retail Purchasers Remanded
-----------------------------------------------------------------
Three cases pending before California courts in relation to the
use of petroleum companies of non-temperature adjusted gallons,
were ordered to be remanded for trial, according to Murphy USA
Inc.'s May 6, 2013, Form 10-12B filing with the U.S. Securities
and Exchange Commission.
Since the beginning of fiscal 2007, over 45 class action lawsuits
have been filed in federal courts across the country against
numerous companies in the petroleum industry. Major petroleum
companies and significant retailers in the industry have been
named as defendants in these lawsuits. Murphy USA's subsidiary,
Murphy Oil USA, Inc., is a defendant in eight of these cases.
Pursuant to an Order entered by the Joint Panel on Multi-District
Litigation, all of the cases, including those in which Murphy Oil
USA, Inc. is named, have been transferred to the United States
District Court for the District of Kansas and consolidated for all
pre-trial proceedings.
The plaintiffs in the lawsuits generally allege that they are
retail purchasers who received less motor fuel than the defendants
agreed to deliver because the defendants measured the amount of
motor fuel they delivered in non-temperature adjusted gallons
which, at higher temperatures, contain less energy. These cases
seek, among other relief, an order requiring the defendants to
install temperature adjusting equipment on their retail motor fuel
dispensing devices.
In certain of the cases, including some of the cases in which
Murphy Oil USA, Inc. is named, plaintiffs also have alleged that
because defendants pay fuel taxes based on temperature adjusted 60
degree gallons, but allegedly collect taxes from consumers on non-
temperature adjusted gallons, defendants receive a greater amount
of tax from consumers than they paid on the same gallon of fuel.
The plaintiffs in these cases seek, among other relief, recovery
of excess taxes paid and punitive damages. Both types of cases
seek compensatory damages, injunctive relief, attorneys' fees and
costs, and prejudgment interest.
The defendants filed motions to dismiss all cases for failure to
state a claim, which were denied by the court on February 21,
2008. A number of the defendants, including Murphy Oil USA, Inc.,
subsequently moved to dismiss for lack of subject matter
jurisdiction or, in the alternative, for summary judgment on the
grounds that plaintiffs' claims constitute non-justiciable
"political questions."
The Court denied the defendants' motion to dismiss on political
question grounds on December 3, 2009, and defendants request to
appeal that decision to the United States Court of Appeals for the
Tenth Circuit was denied on August 31, 2010. In May 2010, in a
lawsuit in which Murphy Oil USA, Inc. was not a party, the Court
granted class certification to Kansas fuel purchasers seeking
implementation of automated temperature controls and/or certain
disclosures, but deferred ruling on any class for damages.
Defendants sought permission to appeal that decision to the Tenth
Circuit in June 2010, and that request was denied on August 31,
2010. On November 12, 2011, Defendants in the Kansas case filed a
motion to decertify the Kansas classes in light of a new favorable
United States Supreme Court decision.
On January 19, 2012, the Judge denied the Defendants' motion to
decertify and granted plaintiffs' motion to certify a class as to
liability and injunctive relief aspects of plaintiffs' claims. The
court has continued to deny certification of a damages class.
On September 24, 2012, the jury in the Kansas case returned a
unanimous verdict in favor of defendants finding that defendants
did not violate Kansas law by willfully failing to disclose
temperature and its effect on the energy content of motor fuel.
On October 3, 2012 the judge in the Kansas case also ruled that
defendants' practice of selling motor fuel without disclosing
temperature or disclosing the effect of temperature was not
unconscionable under Kansas law. On January 23, 2013, the judge
ordered that three cases venued in California be remanded for
trial.
NEW YORK: Court Adopts Recommendations in Priority Hiring Case
--------------------------------------------------------------
District Judge Nicholas G. Garaufis adopted certain Reports &
Recommendations in the case: UNITED STATES OF AMERICA, Plaintiff,
and THE VULCAN SOCIETY, INC., for itself and on behalf of its
members, JAMEL NICHOLSON, and RUSEBELL WILSON, individually and on
behalf of a subclass of all other victims similarly situated
seeking classwide injunctive relief; ROGER GREGG, MARCUS HAYWOOD,
and KEVIN WALKER, individually and on behalf of a subclass of all
other non-hire victims similarly situated; and CANDIDO NUNEZ and
KEVIN SIMPKINS, individually and on behalf of a subclass of all
other delayed-hire victims similarly situated, Plaintiff-
Intervenors, v. THE CITY OF NEW YORK, Defendant, No. 07-CV-2067
(NGG) (RLM), United States District Court, E.D. New York.
As part of the remedial phase of the litigation, the Special
Masters have issued a series of Reports & Recommendations ("R&Rs")
as to the eligibility of individual claimants for priority hiring
and monetary relief. Each claimant was given the opportunity to
object to the Special Masters' recommendations, and for each
objecting claimant the court has performed an independent review
of the claimant's eligibility.
A copy of the May 2, 2013, Memorandum & Order explaining the
Court's reasons for adopting the Reports & Recommendations is
available at http://is.gd/xJyDL0from Leagle.com
PNM RESOURCES: Navajo Nation Allottee Members Bring Appeal to DOI
-----------------------------------------------------------------
The U.S. Department of Interior Board of Appeals is yet to decide
on whether plaintiffs in a suit filed by allottee members of the
Navajo Nation may appeal the dismissal of their case against PNM
Resources, Inc. over rights-of-way, according to the company's May
6, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
A putative class action was filed against PNM and other utilities
in February 2009 in the United States District Court in
Albuquerque. Plaintiffs claim to be allottees, members of the
Navajo Nation, who pursuant to the Dawes Act of 1887, were
allotted ownership in land carved out of the Navajo Nation and
allege that defendants, including PNM, are rights-of-way grantees
with rights-of-way across the allotted lands and are either in
trespass or have paid insufficient fees for the grant of rights-
of-way or both.
In March 2010, the court ordered that the entirety of the
plaintiffs' case be dismissed. The court did not grant plaintiffs
leave to amend their complaint, finding that they instead must
pursue and exhaust their administrative remedies before seeking
redress in federal court.
In May 2010, plaintiffs filed a Notice of Appeal with the Bureau
of Indian Affairs ("BIA"), which was denied by the BIA Regional
Director. In May 2011, plaintiffs appealed the Regional Director's
decision to the DOI Board of Appeals. Briefings on the merits of
the appeal are complete and a decision is pending.
PNM is participating in order to preserve its interests regarding
any PNM-acquired rights-of-way implicated in the appeal. PNM
cannot predict the outcome of the proceeding or the range of
potential outcomes at this time.
POSITIVE SINGLES.COM: Judge Certifies Privacy Class Action
----------------------------------------------------------
Jack Greiner, writing for Cincinnati.com, reports that a
California court recently certified a class action proceeding
against a unique online dating service. The ruling means that
nearly 10,000 users might be able to assert claims arising from
alleged misuse of their personal information.
It also provides a good business lesson in the importance of being
careful about what you promise.
The service, Positive Singles.com, marketed to users with sexually
transmitted diseases.
The website used the slogan: "Don't let your condition ruin your
life!" Certainly good advice. But that's not what got it into
trouble. The problem was a promise it made about how it intended
to use the information it gathered.
Not surprisingly, Positive Singles' user base was concerned with
confidentiality.
The Web site acknowledged this concern by promising 100 percent
confidentiality. It specifically stated that that "(we) do not
disclose, sell, or rent any personally identifiable information to
any third party organizations."
Users of the service disagreed. According to their lawsuit,
SuccessfulMatch.com, which operated Positive Singles, gave
commissions to anyone who set up a domain name using its database.
And that meant that Positive Singles users found their profiles on
hundreds, if not thousands, of other dating websites.
In certifying the class, the California court found that the class
members raised common questions of fact and law -- among them the
issue of whether the representation about confidentiality was
misleading.
Given the number of users affected -- nearly 10,000 -- the court
had little trouble finding that class action treatment was the way
to go.
The lesson here is pretty simple. If you want to avoid a "date"
with a judge, better be careful about what you promise.
SKILLED HEALTHCARE: $3MM Added to Settlement Fund in Labor Suit
---------------------------------------------------------------
In connection with the September 2010 settlement of the class
action litigation against Skilled Healthcare Group, Inc. and
certain of its subsidiaries an additional $1.0 million went to the
Humboldt County District Attorney's Office and $3.0 million went
to the class settlement fund, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Under the September 2010 settlement of the class action litigation
against Skilled and certain of its subsidiaries related to, among
other matters, alleged understaffing at certain California skilled
nursing facilities operated by Skilled's subsidiaries (the
"Humboldt County Action"), Skilled and its defendant subsidiaries
(collectively, the "Defendants") entered into settlement
agreements with the plaintiffs and intervenor and agreed to an
injunction.
The settlement was approved by the Superior Court of California,
Humboldt County on November 30, 2010. Under the terms of the
settlement agreements, the defendant entities deposited a total of
$50.0 million into escrow accounts to cover settlement payments to
class members, notice and claims administration costs, reasonable
attorneys' fees and costs and certain other payments, including
$5.0 million to settle certain government agency claims and
potential government claims that may arise.
Of the $5.0 million provided for such government claims, $1.0
million was initially released by the court to the Humboldt County
Treasurer-Tax Collector on behalf of the People of the State of
California for their release of the Defendants. The remaining $4.0
million was available for the settlement and releases by the
California Attorney General and certain other District Attorneys.
However, in the event that any of these government authorities
were to instead file certain actions against the Defendants by the
second anniversary of the effective date of the settlement
agreement, which occurred in February 2013, the entire $4.0
million would have reverted to the Defendants upon their request
to the Settlement Administrator. No such actions were filed,
however, resulting in an additional $1.0 million distribution to
the Humboldt County District Attorney's Office and the remaining
$3.0 million will be distributed to the class settlement fund, as
required by the settlement agreement.
SPRINT NEXTEL: Discovery Proceeds in "Bennett" Securities Suit
--------------------------------------------------------------
Discovery is ongoing in a securities suit filed against Sprint
Nextel Corp., in the U.S. District Court for the District of
Kansas, according to the company's May 6, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
In March 2009, a shareholder brought suit, Bennett v. Sprint
Nextel Corp., in the U.S. District Court for the District of
Kansas, alleging that the Company and three of the company's
former officers violated Section 10(b) of the Securities Exchange
Act of 1934 and Rule 10b-5 by failing adequately to disclose
certain alleged operational difficulties subsequent to the Sprint-
Nextel merger, and by purportedly issuing false and misleading
statements regarding the write-down of goodwill.
The plaintiff seeks class action status for purchasers of the
company's common stock from October 26, 2006 to February 27, 2008.
On January 6, 2011, the Court denied the motion to dismiss.
Subsequently, the company's motion to certify the January 6, 2011
order for an interlocutory appeal was denied, and discovery is
continuing. The plaintiff moved to certify a class of bondholders
as well as owners of common stock, and the company opposed that
motion.
SPRINT NEXTEL: Opposes Certification Bid in SoftBank Merger Suit
----------------------------------------------------------------
Sprint Nextel Corp. opposed a motion by plaintiffs in a suit over
the SoftBank merger to certify consolidated cases as a class
action, according to the company's May 6, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
The Company has received several complaints purporting to assert
claims on behalf of Sprint shareholders, alleging that members of
the board of directors breached their fiduciary duties in agreeing
to the SoftBank Merger, and otherwise challenging that
transaction.
There are five cases pending in state court in Johnson County,
Kansas: UFCW Local 23 and Employers Pension Fund, et al. v.
Bennett, et al., filed on October 25, 2012; Iron Workers Mid-South
Pension Fund, et al. v. Hesse, et al., filed on October 25, 2012;
City of Dearborn Heights Act 345 Police and Fire Retirement System
v. Sprint Nextel Corp., et al., filed on October 12,
2012; Testani, et al. v. Sprint Nextel Corp., et al., filed on
November 1, 2012; and Patten, et al. v. Sprint Nextel Corp., et
al., filed on November 1, 2012.
The Plaintiffs in these cases filed an amended complaint and a
motion for preliminary injunction on March 22, 2013. Plaintiffs
filed a motion to certify the consolidated cases as a class action
on March 29, 2013, and the company have opposed that motion. There
is one case filed in federal court in the District of Kansas,
entitled Gerbino, et al. v. Sprint Nextel Corp., et al., filed on
November 15, 2012.
STATE STREET: Continues to Face Suit Over SSgA-Managed Funds
------------------------------------------------------------
State Street Corporation is currently defending two related
Employee Retirement Income Security Act class actions by investors
in unregistered SSgA-managed collective trust funds and common
trust funds which challenge the division of State Street's
securities lending-related revenue between those funds and State
Street in its role as lending agent, according to the company's
May 3, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
The first action alleges, among other things, that State Street
breached its fiduciary duty to investors in those funds. The
plaintiff contends that other State Street agency lending clients
received more favorable fee splits than did the SSgA lending
funds.
In August 2012, the Court certified a class consisting of ERISA
plans that invested in SSgA collective trust funds between April
2004 and the present. The company has not established a reserve
with respect to this matter.
The second action, filed in January 2013, challenges the division
of the company's securities lending-related revenue between common
trust funds and State Street in its role as lending agent. It
alleges, among other things, that State Street breached its
fiduciary duty under ERISA and state common law to investors in
those funds.
STATE STREET: Faces ERISA Lawsuits by Custodial Clients
-------------------------------------------------------
Putative class actions are currently pending in federal court in
Boston alleging various violations of the Employee Retirement
Income Security Act (ERISA) against State Street Corporation,
according to the company's May 3, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
State Street Corporation offers indirect foreign exchange services
such as those the company offers to the California pension plans
to a broad range of custody clients in the U.S. and
internationally. The company has responded and is responding to
information requests from a number of clients concerning its
indirect foreign exchange rates.
In February 2011, a putative class action was filed in federal
court in Boston seeking unspecified damages, including treble
damages, on behalf of all custodial clients that executed certain
foreign exchange transactions with State Street from 1998 to 2009.
The putative class action alleges, among other things, that the
rates at which State Street executed foreign currency trades
constituted an unfair and deceptive practice under Massachusetts
law and a breach of the duty of loyalty.
Two other putative class actions are currently pending in federal
court in Boston alleging various violations of ERISA on behalf of
all ERISA plans custodied with the company that executed indirect
foreign exchange transactions with State Street from 1998 onward.
The complaints allege that State Street caused class members to
pay unfair and unreasonable rates for indirect foreign exchange
transactions with State Street. The complaints seek unspecified
damages, disgorgement of profits, and other equitable relief.
STATE STREET: Faces Various Stockholder Suits in Federal Court
--------------------------------------------------------------
Four shareholder-related complaints are currently pending in
federal court in Boston against State Street Corporation,
according to the company's May 3, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
One complaint purports to be a class action on behalf of State
Street shareholders. A second complaint is a purported shareholder
derivative action on behalf of State Street. The two other
complaints purport to be class actions on behalf of participants
and beneficiaries in the State Street Salary Savings Program who
invested in the program's State Street common stock investment
option.
The complaints variously allege violations of the federal
securities laws, common law and ERISA in connection with foreign
exchange trading business, investment securities portfolio and
asset-backed commercial paper conduit program.
STATE STREET: Suit by Clients of TAG Virgin Islands Dismissed
-------------------------------------------------------------
State Street is named as a defendant in a series of related
complaints by investment management clients of TAG Virgin Islands,
Inc., or TAG, who hold custodial accounts with State Street. The
complaints, collectively, allege various claims in connection with
certain assets managed by TAG and custodied with State Street. The
complaints included a consolidated putative class action complaint
which was dismissed in March 2013 without prejudice to the
plaintiff's ability to file a new complaint,
according to the company's May 3, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
STERLING BANCORP: Faces Suit in N.Y. Over Provident Merger
----------------------------------------------------------
On April 9, 2013, the first of seven actions, captioned Altman v.
Sterling Bancorp, et al., Index No. 651263/2013 (Sup. Ct., N.Y.
Cnty.), was filed on behalf of a putative class of Sterling
stockholders against the Company, its current directors, and
Provident New York Bancorp ("Provident").
All seven putative class actions were filed in the Supreme Court
of the State of New York, New York County. The complaints are
substantially identical and each alleges that the Sterling
director defendants breached their fiduciary duties, including
duties of loyalty and good faith, by approving the merger with
Provident, and that Provident aided and abetted in such breaches
of duty. The complaints seek, among other things, an order
enjoining the defendants from proceeding with or consummating the
merger, as well as other equitable relief and/or money damages in
the event that the transaction is consummated. Sterling believes
that the claims are without merit.
SUPPORT.COM INC: Awaits Court OK of Accord in Suit Over Software
----------------------------------------------------------------
Support.com, Inc. is in the process of settling a lawsuit alleging
fraud in the design of one the Company's software products and the
method of promotion to consumers, according to the company's May
6, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended
March 31, 2013.
On February 7, 2012, a lawsuit seeking class-action certification
was filed against the Company in the United States District Court
for the Northern District of California, No. 12-CV-00609, alleging
that the design of one the Company's software products and the
method of promotion to consumers constitute fraudulent inducement,
breach of contract, breach of express and implied warranties, and
unjust enrichment.
On the same day, the same plaintiffs' law firm filed another
action in the United States District Court for the Southern
District of New York, No. 12-CV-0963, involving similar
allegations against a subsidiary of the Company and one of the
Company's channel partners who distributes the software products,
and that channel partner has requested indemnification under
contract terms with the Company.
The law firm representing the plaintiffs in both cases has filed
unrelated class actions in the past year against a number of major
software providers with similar allegations about those providers'
products.
On June 18, 2012, the Company entered into a settlement which
remains subject to final court approval. Under the terms of the
settlement, the Company would offer a one-time cash payment, which
is covered by the Company's insurance provider, to qualified
class-action members. In addition, the Company would offer a
limited free subscription to one of its software products. In
accordance with ASC 450, Contingencies, the company estimated and
recorded a charge against earnings in general and administrative
expense in the second quarter of 2012 of $57,000 associated with
the limited free software subscription. The Company denies any
wrongdoing or liability and entered into the settlement to
minimize the costs of defense.
TAKEDA: Australian Diabetes Patients to Join Actos Class Action
---------------------------------------------------------------
Amy Corderoy, writing for Sydney Morning Herald, reports that
Australian victims of a popular diabetes drug that has been linked
to bladder cancer will join a US class action suing the makers of
the drug.
Tens of thousands of Australians are thought to have taken the
diabetes drug Actos, which has been linked to a 40 per cent
increased risk of bladder cancer.
Law firm Maurice Blackburn said it would join a class action
against Takeda and Eli Lilly, the co-manufacturers and
distributors of the drug.
Maurice Blackburn Principal Damian Scattini said the companies had
behaved "terribly".
"They knew before they even released the drug that it had a
tendency to induce tumors in rats but they proceeded irrespective
of that," he said.
International studies have found the main ingredient of Actos,
pioglitazone, causes an increased risk of bladder cancer after
patients have been taking it for between one and two years.
He said the legal case about the drug, held in California, had
resulted in the jury awarding AUD6.5 million dollars in
compensation to victims, before the judge overturned the decision
on technical grounds.
"Initial signs look very good for this case," he said. "The
science is terrible for the defendant and what they did is
terrible".
The law firm is initially joining the action on behalf of one
patient, Brisbane man Peter Marshall, but has since been contacted
by other patients.
More than 1.7 million prescriptions for the drug have been filled
in Australia over the past four years, Medicare figures show.
Australia's drug regulator in 2011 issued a warning about
pioglitazone, stating: "use of . . . pioglitazone, for more than a
year may be associated with an increased risk of bladder cancer".
At that time it said it was undertaking a comprehensive review of
the data and would provide more information to consumers when this
was completed.
The warning caused prescriptions to drop from nearly 437,000 in
2011 to just over 378,800 in 2012.
Mr. Scattini said consumers in France and Germany were no longer
exposed to the drug as it had been taken off the market, and in
America a black-box warning said long-term use was linked to
bladder cancer.
But in Australia and New Zealand the drug was still available and
in-packet warnings were weaker.
"I don't know why Australians are not entitled to the same
protection as other first world countries," he said.
Actos is not the first diabetes drug to be linked to serious
health problems.
The manufacturer of the diabetes drug Avandia, GlaxoSmithKline,
has paid out more than AUD460 million to settle thousands of
personal-injury lawsuits after it was accused of not revealing
links between Avandia and heart attacks.
A spokeswoman for the TGA said it had published information on its
website and in the consumer product information for Actos
explaining the link with bladder cancer.
This information said "pioglitazone should not be used in patients
with bladder cancer or a history of bladder cancer [and] the risk
of bladder cancer should be considered in the care of all patients
treated," she said.
She added that the risks and benefits of using any drug should be
discussed by patients with their doctor.
Eli Lilly Australia has been contacted for comment.
TD AMERICAN: Motion to Dismiss "Ross" Securities Suit Pending
-------------------------------------------------------------
Motions to dismiss a securities suit filed against Reserve
Management Company, Inc. in the U.S. District Court for the
Southern District of New York is pending, according to TD
Ameritrade Holding Corporation's May 6, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
In November 2008, a purported class action lawsuit was filed with
respect to the Yield Plus Fund. The lawsuit is captioned Ross v.
Reserve Management Company, Inc. et al. and is pending in the U.S.
District Court for the Southern District of New York.
The Ross lawsuit is on behalf of persons who purchased shares of
Reserve Yield Plus Fund. On November 20, 2009, the plaintiffs
filed a first amended complaint naming as defendants the fund's
advisor, certain of its affiliates and the Company and certain of
its directors, officers and shareholders as alleged control
persons.
The complaint alleges claims of violations of the federal
securities laws and other claims based on allegations that false
and misleading statements and omissions were made in the Reserve
Yield Plus Fund prospectuses and in other statements regarding the
fund.
The complaint seeks an unspecified amount of compensatory damages
including interest, attorneys' fees, rescission, exemplary damages
and equitable relief. On January 19, 2010, the defendants
submitted motions to dismiss the complaint. The motions are
pending.
UNITED PARCEL: Fasken Martineau Discusses Class Action Ruling
-------------------------------------------------------------
Noah Boudreau, Esq. and Eleni Yiannakis, Esq. at Fasken Martineau
report that on March 6, 2013, the Honourable Justice William
Fraiberg of the Quebec Superior Court rendered a unique decision
limiting class actions in an important way. By their very nature,
class actions include groups of individuals (in this case
consumers). In the case of United Parcel Service du Canada Ltee
("UPS"), over thirty million transactions are affected by class
actions brought against it, and there are thus an unending supply
of Plaintiffs over time. If a first class action fails, a new
group of consumers for a different time period can easily be
found. However, Justice Fraiberg, has put an end to serial class
actions which raise the same issues but for differently
constituted groups of consumers. He did so by declaring a second
class action brought against UPS res judicata or chose jugee.
Plainly, this is an important decision for all those in the
business of serving consumers. What follows is a detailed
explanation of Justice Fraiberg's landmark decision.
Background
On January 8, 2013, the Petitioner Jean Gauthier brought a motion
for authorization to bring a class action against UPS seeking
compensatory and punitive damages on the ground that the latter
charged him and other members of the proposed class unsolicited
and abusive customs brokerage fees in connection with the
importation of goods to Canada (the "Gauthier Motion").
In a judgment rendered on March 6, 2013, Justice Fraiberg granted
UPS's motion seeking to dismiss the Gauthier Motion for
Authorization, concluding that it was chose jugee or res judicata
because it was identical to a motion for authorization brought by
Petitioner Dominic Leblanc (the "Leblanc Motion"), which was
dismissed only four months earlier. Indeed, Justice Fraiberg had
himself heard and dismissed the Leblanc Motion.
In the Leblanc Motion, M. Leblanc sought authorization to
undertake a class action on behalf of a class comprising of
individuals who were charged brokerage fees for the international
delivery of goods in Canada from the United States for supposedly
unsolicited brokerage services rendered by UPS.
On October 1, 2012, the Superior Court of Quebec dismissed the
Leblanc Motion, finding that the questions raised were not similar
and therefore unsuitable for class action treatment, that the
class action had no reasonable chance of success on the merits and
that Mr. Leblanc was not an appropriate representative of the
proposed class.
While an appeal as of right existed from this judgment dismissing
the Leblanc Motion for Authorization, the Petitioner Leblanc did
not exercise this right.
The Gauthier Motion
The Gauthier Motion sought to represent the same class, was based
on the same cause of action and sought the same damages as the
Leblanc Motion. Mr. Gauthier claimed however that he had suffered
his damages for the first time on November 27, 2012 -- less than
two months after the Leblanc Motion was dismissed. He therefore
argued that he could not possibly be included in the class
proposed in the Leblanc Motion, based on the differing time
periods that the proposed classes spanned. Justice Fraiberg
dismissed Mr. Gauthier's argument stating that the time period
alone was not sufficient to make the class "different" from the
one proposed in the Leblanc Motion:
"[9] That three months after the judgment dismissing
Mr. Leblanc's motion, Mr. Gauthier seeks authorization to bring a
class action on behalf of a group of alleged victims identical in
every respect to Mr. Leblanc's group except for being defined as
existing between January 2010 and January 2013 as opposed to
Mr. Leblanc's, existing from 2003 to 2006, does not fundamentally
change anything.
[10] Both Petitioners were acting in an identical capacity
against the same proposed defendant and seeking the same damages
for the same reasons.
[13] It is not credible that Mr. Gauthier suffered his damages
for the first time on November 27, 2012 and thus can claim that he
is a member of a different class from Mr. Leblanc's."
In granting UPS's motion to dismiss, Justice Fraiberg held that it
would serve no useful purpose nor would justice be served by
permitting still another motion for authorization to bring a class
action against UPS to proceed when a judgment had already disposed
of the earlier motion on grounds which go to the merits of the
authorization rather than derive from mere procedural
considerations. In effect, because the judgment dismissing the
Leblanc Motion is a final judgment, it must therefore constitute
res judicata or chose jugee vis-a-vis any subsequent motion which
proposes an identical class and seeks the same categories of
damages and for the same legal reasons.
In the Court's view, finding otherwise would lead to the unwanted
and unjust situation where there would never be any closure of
unsuccessful class action initiatives since "successive would-be
representatives of alleged victims could continue to pop up,
immunizing themselves against a defense of res judicata by
disingenuously claiming to be parties who are different from
earlier alleged victims simply because they suffered the damages
that they allege after the last dismissal judgment invoked against
them."
Interestingly, in refusing to hear the Gauthier Motion, the Court
pointed to the fact that Mr. Gauthier's attorneys, Merchant Law
Group, were also involved in the Leblanc case. Indeed, they
originally represented Michael Smythe, Mr. Leblanc's predecessor
as the proposed representative of the alleged victims of the
practice, before dropping out of the file for unexplained reasons.
It was the Court's opinion that because they were not content with
the outcome of Mr. Leblanc's effort on behalf of the alleged
victims, Mr. Gauthier's attorneys decided to try to have the
authorization case heard all over again, "cutting and pasting" the
essential allegations of Mr. Leblanc's motion and recruiting
Mr. Gauthier to be their plaintiff, claiming that he was acting
for a new class because the damages occurred after the dismissal
judgment of October 1, 2012.
In fact, the Court noted that that the entire initiative against
UPS in Quebec has been lawyer-driven, not victim-driven. And
while arguments were raised by UPS that the Gauthier Motion
therefore amounted to an abuse of process, the Court held that
since there were no reported Quebec judgments on point (this case
being the first), it was not an appropriate occasion to grant a
conclusion as to abuse of process.
Despite the fact that there have been no reported Quebec judgments
which have applied the rule of res judicata to judgments refusing
authorization to bring class actions, the Court held that an
"economic and credible system of class action judicature" required
that the rule of res judicata apply to judgments denying
authorization to bring class actions; much in the same way as it
does to those that grant it. The rule cannot just go one way.
The present judgment was not appealed by Mr. Gauthier.
Conclusion
This is an important decision not only because it is the first of
its kind, but because it sends a clear message to the legal
community and public at large that a judgment rendered on the
motion for authorization must dispose only once of all
substantially similar motions that can be instituted against a
defendant based on the same facts. In effect, the Superior Court
has confirmed that a defendant cannot be held hostage by
successive would-be representatives of alleged victims
disingenuously claiming to be parties who are different from
earlier alleged victims simply because they suffered the damages
after the last dismissal judgment invoked against them.
* UPS was represented by senior co-counsel John Campion (Toronto)
and Eleni Yiannakis (Montreal) and assisting co-counsels Noah
Boudreau (Montreal), Antonio Di Domenico (Toronto) and Robin P.
Roddey (Toronto).
UNITEDHEALTH GROUP: Continues to Face Suit Over Underpayments
-------------------------------------------------------------
UnitedHealth Group Incorporated is continuing to face Out-of-
Network Reimbursement Litigation arising out of its use of an
alleged flawed database previously maintained by Ingenix, Inc.
that resulted to underpayments to members, according to the
company's May 6, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
The Company is involved in a number of lawsuits challenging
reimbursement amounts for non-network health care services based
on the Company's use of a database previously maintained by
Ingenix, Inc. (now known as OptumInsight), including putative
class actions and multidistrict litigation brought on behalf of
members of Aetna and WellPoint.
These suits allege, among other things, that the database licensed
to these companies by Ingenix was flawed and that Ingenix
conspired with these companies to underpay their members' claims
and seek unspecified damages and treble damages, injunctive and
declaratory relief, interest, costs and attorneys' fees. The
Company is vigorously defending these suits.
In 2012, the Company was dismissed as a party from a similar
lawsuit involving Cigna and its members.
UNITEDHEALTH GROUP: Health Plan Meted $524MM Damages Ruling
-----------------------------------------------------------
A Las Vegas jury awarded $524 million damages against a
UnitedHealth Group Incorporated health plan and its parent
corporation in relation to an outbreak of hepatitis C,
according to the company's May 6, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In April 2013, a Las Vegas jury awarded $24 million in
compensatory damages and $500 million in punitive damages against
a Company health plan and its parent corporation on the theory
that they were negligent in their credentialing and monitoring of
an in-network endoscopy center owned and operated by independent
physicians who were subsequently linked by regulators to an
outbreak of hepatitis C. Company plans are party to 42 additional
individual lawsuits and 2 class actions relating to the outbreak.
The Company cannot reasonably estimate the range of loss, if any,
that may result from these matters given the likelihood of
reversal on appeal, the availability of statutory and other limits
on damages, the novel legal theories being advanced by the
plaintiffs, the various postures of the remaining cases, the
availability in many cases of federal defenses under Medicare law
and Employee Retirement Income Security Act, and the pendency of
certain relevant legal questions before the Nevada Supreme Court.
The Company is vigorously defending these lawsuits.
WESTERN UNION: Consumer Suit Accord Awaits Final Court Approval
---------------------------------------------------------------
The Western Union Company is awaiting a final court approval of
the settlement it entered into to settle complaints alleging
violations of consumer protection laws, according to the company's
May 6, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
The Company and one of its subsidiaries are defendants in two
purported class action lawsuits: James P. Tennille v. The Western
Union Company and Robert P. Smet v. The Western Union Company,
both of which are pending in the United States District Court for
the District of Colorado.
The original complaints asserted claims for violation of various
consumer protection laws, unjust enrichment, conversion and
declaratory relief, based on allegations that the Company waits
too long to inform consumers if their money transfers are not
redeemed by the recipients and that the Company uses the
unredeemed funds to generate income until the funds are escheated
to state governments.
The Tennille complaint was served on the Company on April 27,
2009. The Smet complaint was served on the Company on April 6,
2010. On September 21, 2009, the Court granted the Company's
motion to dismiss the Tennille complaint and gave the plaintiff
leave to file an amended complaint. On October 21, 2009, Tennille
filed an amended complaint. The Company moved to dismiss the
Tennille amended complaint and the Smet complaint.
On November 8, 2010, the Court denied the motion to dismiss as to
the plaintiffs' unjust enrichment and conversion claims. On
February 4, 2011, the Court dismissed plaintiffs' consumer
protection claims. On March 11, 2011, the plaintiffs filed an
amended complaint that adds a claim for breach of fiduciary duty,
various elements to its declaratory relief claim and Western Union
Financial Services, Inc. as a defendant.
On April 25, 2011, the Company and Western Union Financial
Services, Inc. filed a motion to dismiss the breach of fiduciary
duty and declaratory relief claims. Western Union Financial
Services, Inc. also moved to compel arbitration of the plaintiffs'
claims and to stay the action pending arbitration. On November 21,
2011, the Court denied the motion to compel arbitration and the
stay request. Both companies appealed the decision.
On January 24, 2012, the United States Court of Appeals for the
Tenth Circuit granted the companies' request to stay the District
Court proceedings pending their appeal. During the fourth quarter
of 2012, the parties executed a settlement agreement, which the
Court preliminarily approved on January 3, 2013.
The settlement agreement, which is subject to the Court's final
approval, would result in a substantial amount of the settlement
proceeds to be paid from the Company's existing related unclaimed
property liabilities. If a settlement agreement is not approved,
the Company and Western Union Financial Services, Inc. intend to
vigorously defend themselves against both lawsuits.
XCEL ENERGY: "Comer" Plaintiffs Argue Against Suit's Dismissal
--------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit heard oral
arguments on an appeal by plaintiffs in the suit Comer vs. Xcel
Energy Inc. et al. against the dismissal of the case, according to
the company's May 3, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2013.
In May 2011, less than a year after their initial lawsuit was
dismissed, plaintiffs in this purported class action lawsuit filed
a second lawsuit against more than 85 utility, oil, chemical and
coal companies in the U.S. District Court in Mississippi.
The complaint alleges defendants' CO2 emissions intensified the
strength of Hurricane Katrina and increased the damage plaintiffs
purportedly sustained to their property. Plaintiffs base their
claims on public and private nuisance, trespass and negligence.
Among the defendants named in the complaint are Xcel Energy Inc.,
SPS, PSCo, NSP-Wisconsin and NSP-Minnesota. The amount of damages
claimed by plaintiffs is unknown. The defendants believe this
lawsuit is without merit and filed a motion to dismiss the
lawsuit.
In March 2012, the U.S. District Court granted this motion for
dismissal. In April 2012, plaintiffs appealed this decision to
the U.S. Court of Appeals for the Fifth Circuit. Oral arguments
occurred in May 2013. It is uncertain when the Fifth Circuit will
issue its decision.
YOUTUBE: Copyright Owners' Class Action Can't Proceed
-----------------------------------------------------
Eriq Gardner, writing for The Hollywood Reporter, reports that in
a nearly six-year-old dispute, U.S. District Judge Louis Stanton
won't allow a large number of copyright owners to pursue YouTube
in a massive class action.
The lawsuit was brought by a group of plaintiffs including U.K.'s
professional soccer league, several music publishers and other
rightsholders. The complaint was filed around the same time that
Viacom filed its own billion dollar claims against YouTube, and
like the Viacom case, an appeals court revived it last year after
Judge Stanton's summary judgment dismissal in 2010.
But now, Judge Stanton has denied class certification. It's just
too much to manage, he says.
In his ruling on May 15, the judge opens by quoting a 45-year-old
remark about a "Frankenstein monster posing as a class action."
The judge continues by explaining that "copyright claims are poor
candidates for class action treatment" and "the suggestion that a
class action of these dimensions can be managed with judicial
resourcefulness is flattering, but unrealistic."
He notes some "superficial similarities" in the claims of various
plaintiffs, such as proof of ownership, an illicit posting on
YouTube and allegations of no fair use and the ISP's awareness of
the infringement, but says that this "merely identifies some of
the issues, each of which must be resolved upon facts which are
particular to that single claim of infringement, and separate from
all the other claims. Thus, accumulation of all the copyright
claims, and claimants, into one action will not simplify or unify
the process of their resolution, but multiply its difficulties
over the normal one-by-one adjudications of copyright cases."
He also rejects attempts by the plaintiffs to split the class
action into two "issues" subclasses comprising a "Repeat
Infringement Class" and a "Music Publisher Class."
Judge Stanton still sees too much work for one judge -- or as he
puts it, it represents an "unmanageable aggregation of individual
claims, better dealt with separately."
As has been Judge Stanton's style in the YouTube rulings --
including the one last month that rejected Viacom's claims for a
second time -- his opinion is rather short. This one clocks in at
just 13 pages.
A lawyer for the plaintiffs tells Reuters that they are "going to
think about their options," including an appeal.
ZIPREALTY INC: Court Grants Conditional FLSA Certification
----------------------------------------------------------
District Judge James A. Teilborg granted Plaintiffs' Motion for
Conditional FLSA Certification, Authorization of Notice to
Similarly Situated Persons Under 29 U.S.C. Section 216(b), and
Expedited Discovery in the case: Patricia Anderson and James
Kwasiborski, on behalf of themselves and all others similarly
situated, Plaintiffs, v. Ziprealty, Inc., Defendant, Case No. CV
12-0332-PHX-JAT, United States District Court, D. Arizona.
The Court reminds the Defendant that the deadline to file a motion
for decertification is the dispositive motion deadline of February
10, 2014, established by the Rule 16 Scheduling Order.
Named Plaintiffs were employed by Zip as real estate sales agents
until 2010. Zip's employment model was unique in the real estate
industry when Plaintiffs worked for Zip. Until January 31, 2011,
and unlike many employers in the real estate industry, Zip
classified most of its real estate sales agents as employees
rather than independent contractors. As employees, Zip paid all of
its real estate sales agents on a commissioned basis. Zip did not
pay a minimum wage or a premium for overtime.
A copy of the May 2, 2013, Order is available at
http://is.gd/Ryty5Efrom Leagle.com
* More Than 600 Dunedin Residents Join Bank Fee Class Action
------------------------------------------------------------
Jonathan Chilton-Towle, writing for The Star, reports that more
than 600 Dunedin residents have registered to participate in an
upcoming class action about bank default fees they believe are
unfair.
Nationwide, 24,000 Kiwis have registered for the "Fair Play on
Fees" law suit which is to be handled by Australian firm Slater
and Gordon. Registrations are still open.
The defendants are not yet known, but Slater and Gordon
representatives previously said ASB, ANZ, BNZ, Westpac and
Kiwibank would be targeted.
The case is backed by Litigation Lending Services (NZ), so there
is no upfront cost to participate and if the case fails then
clients will pay nothing.
One of the 644 Dunedin residents participating is solo mother Toni
Leighton.
An ANZ customer, Ms. Leighton struggled to cope financially after
a relationship break-up caused her bank account to go into an
unarranged overdraft -- an overdraft that attracted overdraft fees
on top of withdrawal fees.
Ms. Leighton said she found herself in a "cruel cycle" of
withdrawal fees contributing to overdraft fees. All up, she
estimated she might receive a couple of thousand dollars if the
case was successful.
Fair Play on Fees lawyer Andrew Hooker said Ms. Leighton's case
was one of thousands.
"Default fees cannot be a source of profit for the banks. They
must be in line with what the cost is to facilitate the
transaction," he said.
"The millions of dollars that the banks make every year from these
fees is wrong and it's not just us who says so -- the law does,
too."
New Zealand Banking Association chief executive Kirk Hope said
Fair Play on Fees had not been able to attract the numbers of
clients they thought they would achieve.
"I think the numbers, around a million, and the dollars, several
billion, that they promised were plucked out of thin air to be
quite frank," he said.
The fees represented the cost of banks' IT infrastructure which
Fair Play on Fees incorrectly assumed had no cost, he said.
The Commerce Commission had overseen bank fees for the last decade
and had not taken action. Mr. Hope believed this was a strong
indicator the fees were fair.
He advised concerned customers to speak to their banks as the fees
were avoidable.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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