/raid1/www/Hosts/bankrupt/CAR_Public/130624.mbx
C L A S S A C T I O N R E P O R T E R
Monday, June 24, 2013, Vol. 15, No. 123
Headlines
ALPHA NATURAL: Discovery Stay in UBB Suit v. Massey Extended
ALPHA NATURAL: Trial Begins Today in Massey Shareholder Suit
ALPHA NATURAL: Still Faces Suit Over Miners' Death Claims
ALPHA NATURAL: Del. Court Extends Stay in Massey Shareholder Suit
ALPHA NATURAL: Faces Lawsuit by Former Nicewonder Employee
APOLLO GLOBAL: Refutes Ruling in Suit Over Alleged Rigged Bidding
APOLLO GLOBAL: "Frank" Plaintiffs Move to Consolidate Suit
ATHENAHEALTH INC: MOU Reached in Suit Over Subsidiary's Merger
ATHENAHEALTH INC: Epocrates Faces Securities Action in California
AUSTRALIA AND NEW ZEALAND BANKING: Sued Over Customer Fees
AVEO PHARMACEUTICALS: Faces "Sanders" Suit in Massachusetts
AVIAT NETWORKS: Shareholder's Stay Motion Denied, Claims Junked
BABCOCK & WILCOX: Dismissal of Suit Over Nuclear Plant Now Final
BANK OF AMERICA: Settled Countrywide RMBS Suit for $500MM
BANK OF AMERICA: $2.4BB Securities Suit Accord Okayed in April
BANK OF AMERICA: Reaches Accord With NCUA to Settle MBS Suit
BANK OF AMERICA: Overthrows Claims in Pa. Securities Lawsuit
BEST BUY: Recalls 5,100 ATG Lithium-Ion Batteries for MacBook Pro
BODY CENTRAL: Files Motion to Dismiss Fla. Securities Lawsuit
CENCOSUD S.A.: CAT Subsidiary Ordered to Reimburse Cardholders
CENCOSUD S.A.: G Barbosa Affiliate Faces Suit by Employee Union
CHARLES SCHWAB: Dismissal of Claims in Northstar Suit on Appeal
CHRYSLER GROUP: Denies Assertions That Older Jeeps Are Unsafe
CIMAREX ENERGY: Final Ruling in "Hitch" Settlement Due July
DIAMOND RESORTS: Settling Hawaii Water Intrusion Assessment Suit
DIGITALGLOBE INC: No Hearing Date Yet on Securities Suit Accord
EASTON TECHNICAL: Recalls 22,500 Axis Arrows Over Injury Hazard
ENERNOC INC: Faces Shareholder Lawsuit in Delaware
FIRST SOLAR: Certification Discovery Ongoing in Ariz. Stock Suit
GARDEN-FRESH: Recalls Packages of Archer Farms Smoked Salmon Dip
GENERAL MOTORS: Recalls 1,496 W3500, W4500 and W5500 Trucks
GULF RESOURCES: Court Denies Prelim. OK of Snellink Suit Accord
HOVNANIAN ENTERPRISE: Class Cert. in HVAC Claims Suit Affirmed
HSBC FINANCE: Expects Up to $2.17BB Charge in "Jaffe" Action
HSBC FINANCE: Continues to Face Suit Over Lender-Placed Insurance
HSBC FINANCE: TCPA Suits in Discovery, Settlement Talks
HSBC FINANCE: Settlement for Card Interchange Fee Suit in Escrow
HSBC FINANCE: Continues to Deal With Debt Cancellation Litigation
IGNITE RESTAURANT: Still Faces Securities Lawsuit in Texas
KOLCRAFT ENTERPRISES: Recalls 96,510 Jeep Liberty Strollers
LAS VEGAS SANDS: Securities Class Suit Reassigned to New Judge
LIVE NATION: Reaches New Accord in Ticketing Fees Consumer Suit
LIVE NATION: Pays Out Canadian Consumer Suits Over TicketsNow
LOUISIANA-PACIFIC: Still Faces Suits Over Hardboard Trim
MCMORAN EXPLORATION: Has MOU to Settle Securities Suit in Del.
METLIFE INC: Plaintiffs Appeal Dismissal of N.Y. Securities Suit
METLIFE INC: Plaintiff Wants Stock Suit Returned to State Court
METLIFE INC: "Keife" & "Simon" Plaintiffs Appeal to 9th Cir.
METLIFE INC: $10.5MM Settlement in "Roberts" Suit Has Final OK
METLIFE INC: Retired GM Employees Appeal Dismissal of Lawsuit
METLIFE INC.: Parties Appeal Ruling in Sun Life Canada Suit
NASDAQ OMX: Reserves $10 Million for Facebook IPO Litigation
NEW ENGLAND COMPOUNDING: Some Tort Suits Moved to Mass. Dist. Ct.
NEW ENGLAND COMPOUNDING: Dist. Court Clarifies Preservation Order
NEWS CORP: Defends Antitrust Suits Over eBooks vs. HarperCollins
NEWS CORP: Hearing on Shareholder Suit Settlement Set for June 26
NEWS CORP: Plea to Dismiss "Wilder" Class Suit Remains Pending
NTS REALTY: Faces Merger-Related Suits in Kentucky and Delaware
PACIFIC BIOSCIENCES: Bid to Dismiss "Primo" Suit Granted in April
PACIFIC BIOSCIENCES: Has MOU to Settle Shareholder Suit
PLY GEM HOLDINGS: Faces "Memari" Class Suit in South Carolina
PLY GEM HOLDINGS: "Hartshorn" Suit in Discovery on Cert. Bid
PLY GEM HOLDINGS: Hearing in "Gulbankian" Suit Set for October
PLY GEM HOLDINGS: "Pagliaroni" Suit Currently in Discovery
POLARIS INDUSTRIES: Recalls 4,500 Ranger Recreational Vehicles
REGIS CORPORATION: Faces Consumer, Wage & Hour Violation Claims
RETAIL PROPERTIES: Moves to Dismiss Stockholders' Suit in Ill.
SENSIENT TECHNOLOGIES: Employee's Suit Removed to New Venue
SITEL WORLDWIDE: NA Settles Suit Over Debt Collection Calls
SS&C TECHNOLOGIES: Appeals Certification in "Anwar" Lawsuit
SS&C TECHNOLOGIES: GlobeOp Still Faces Suit Over Millennium Funds
ST. JUDE MEDICAL: Dismissal of Claims Over Silzone on Appeal
ST. JUDE MEDICAL: Wash. Residents Sue for Injuries Over Riata
ST. JUDE MEDICAL: Minn. Securities Suit in Discovery
ST. JUDE MEDICAL: Minn. Court Consolidates Securities Suit
SUNTRUST BANKS: No Rehearing En Banc for ATM Fee Antitrust Suit
SUNTRUST BANKS: Faces Overdraft Fee Cases in Georgia, Tennessee
SUNTRUST BANKS: STRH Faces Remaining Suits Over Lehman Offerings
SUNTRUST BANK: Awaits Order in Colonial BancGroup Securities Suit
SUNTRUST BANKS: 11th Cir. Remands Securities Suit to N.D. Ga.
SUNTRUST BANKS: Dismissal of Suit Over Mutual Funds on Appeal
SUNTRUST BANKS: Motion to Junk Mortgage Reinsurance Suit Pending
SUSQUEHANNA BANCSHARES: Awaits Approval of Overdraft Suit Accord
TESLA MOTORS: Recalls 260 Electric Sedans Due to Faulty Latch
TOWERS WATSON: Shareholder Suit v. Towers Perrin in Mediation
TRANSUNION HOLDING: One Party Dissents Privacy Suit Accord
TRANSUNION HOLDING: Final OK for $51MM Settlement Reversed
TRAVELCENTERS OF AMERICA: Class Named in Cal. "Hot Fuel" Cases
TRAVELCENTERS OF AMERICA: Aug. Trial in Suit Over Fuel Cards
US FOODS: Administrator Finalizing $3MM Accord in Labor Suit
US FOODS: Certified Class Suit Over Pricing in Discovery
VENAXIS INC: Dismissal of "Wolfe" Securities Suit on Appeal
W.R. GRACE: Faces 1,310 New ZONOLITE Property Damage Claims
WARNER CHILCOTT: Inks Deal to Settle 74 Claims in ACTONEL Suits
WARNER CHILCOTT: Motions to Dismiss DORYX-Related Suits Pending
WARNER CHILCOTT: Sued by Purchasers of LOESTRIN 24 FE Product
ZAGG INC: Defends Consolidated Shareholder Class Suit in Utah
ZHONGPIN INC: Continues to Face Suits Over Proposed Zhu Buyout
*********
ALPHA NATURAL: Discovery Stay in UBB Suit v. Massey Extended
------------------------------------------------------------
The United States District Court for the Southern District of West
Virginia extended until July 15, 2013, a discovery stay in a
purported securities class action filed against Massey Energy
Company, which was previously acquired by Alpha Natural Resources,
Inc., the parent company disclosed in its May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
On April 29, 2010 and May 28, 2010, two purported class actions
that were subsequently consolidated into one case were brought
against, among others, Massey, now the Company's subsidiary Alpha
Appalachia Holdings, Inc. ("Alpha Appalachia"), in the United
States District Court for the Southern District of West Virginia
in connection with alleged violations of the federal securities
laws.
The lead plaintiffs allege, purportedly on behalf of a class of
former Massey stockholders, that (i) Massey and certain former
Massey directors and officers violated Section 10(b) of the
Securities and Exchange Act of 1934, as amended, (the "Exchange
Act"), and Rule 10b-5 thereunder by intentionally misleading the
market about the safety of Massey's operations and that (ii)
Massey's former officers violated Section 20(a) of the Exchange
Act by virtue of their control over persons alleged to have
committed violations of Section 10(b) of the Exchange Act. The
lead plaintiffs seek a determination that this action is a proper
class action; certification as class representatives; an award of
compensatory damages in an amount to be proven at trial, including
interest thereon; and an award of reasonable costs and expenses,
including counsel fees and expert fees.
On February 16, 2011, the lead plaintiffs moved to partially lift
the statutory discovery stay imposed under the Private Securities
Litigation Reform Act of 1995. On March 3, 2011, the United
States moved to intervene and to stay discovery until the
completion of criminal proceedings allegedly arising from the same
facts that allegedly give rise to this action. On July 9, 2012,
the Court entered an order maintaining the stay of discovery until
the earlier of either the completion of the United States'
criminal investigation of the UBB explosion or January 15, 2013.
On January 17, 2013, the Court further extended the existing
discovery stay until the earlier of April 15, 2013 or the
conclusion of the United States' criminal investigation of the
Upper Big Branch (UBB) explosion. On April 25, 2013, the Court
further extended the existing discovery stay until July 15, 2013.
On April 25, 2011, the defendants moved to dismiss the operative
complaint. On March 27, 2012, the court denied the defendants'
motion to dismiss. On July 16, 2012, the Company filed its answer
to the consolidated amended class action complaint.
ALPHA NATURAL: Trial Begins Today in Massey Shareholder Suit
------------------------------------------------------------
A June 24, 2014 preliminary trial date is set for motions to
dismiss a stockholders' suit pending in Boone County, West
Virginia Circuit Court against Massey Energy Company, which was
previously acquired by Alpha Natural Resources, Inc.,
the parent company disclosed in its May 7, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
On July 13, 2012, a purported class action brought on behalf of a
putative class of former Massey stockholders was filed in Boone
County, West Virginia Circuit Court. The complaint asserts claims
under the Securities Act of 1933, as amended, against the Company
and certain of its officers and current and former directors, and
generally asserts that the defendants made false statements about
the Company's Emerald mine in its public filings associated with
the Massey Acquisition. The plaintiff seeks, among other relief,
an award of compensatory damages in an amount to be proven at
trial.
On August 16, 2012, the defendants removed the case to the United
States District Court for the Southern District of West Virginia.
On August 30, 2012, the plaintiff filed a motion to remand the
case back to the Circuit Court of Boone County, West Virginia. On
September 13, 2012, the defendants filed an opposition to the
plaintiff's motion to remand.
The defendants filed a motion to dismiss the action on October 19,
2012, and the plaintiff filed an opposition to that motion on
November 2, 2012. On November 5, 2012, the federal court remanded
the case back to the Boone County Circuit Court (without ruling on
the pending motion to dismiss). The plaintiff filed an amended
complaint in the Boone County Circuit Court on February 6, 2013.
The defendants filed motions to dismiss the amended complaint on
March 22, 2013 and March 29, 2013, which motions are currently
pending. The Boone County Circuit Court has set a preliminary
trial date of June 24, 2014.
ALPHA NATURAL: Still Faces Suit Over Miners' Death Claims
---------------------------------------------------------
Alpha Natural Resources, Inc. continues to face a purported class
action filed in 2012 on behalf of families that settled death
claims for miner relatives prior to a mediation, alleging fraud in
the contract, the company disclosed in its May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Twenty of the twenty-nine families of the deceased miners filed
wrongful death suits against Massey Energy Company, which was
previously acquired by Alpha Natural, and certain of its
subsidiaries in Boone County Circuit Court and Wyoming County
Circuit Court. In addition, as of February 21, 2013, two seriously
injured employees had filed personal injury claims against Massey
and certain of its subsidiaries in Boone County Circuit Court
seeking damages for physical injuries and/or alleged psychiatric
injuries, and thirty-nine employees had filed lawsuits against
Massey and certain of its subsidiaries in Boone County Circuit
Court and Wyoming County Circuit Court alleging emotional distress
or personal injuries due to their proximity to the explosion.
On April 19, 2012, the Company filed a motion to transfer the
Wyoming County lawsuits to Boone County.
On October 19, 2011, the Boone County Circuit Court ordered that
the cases pending before it be mediated by a panel of three
mediators. These mediations are, per order of the court, strictly
confidential. The Company reached agreements to settle with all
twenty-nine families of the deceased miners as well as the two
employees who were seriously injured. The settlements reached with
the families of the deceased miners have received court approval.
The settlements relating to the two serious injuries did not
require court approval.
On May 4, 2012, the Boone County Circuit Court ordered that the
remaining personal injury and emotional distress claims continue
to be mediated through July 6, 2012. Until that date, a stay was
in place for all remaining cases until further order from the
court. The stay was lifted on July 6, 2012 but mediation was
ordered to continue. On July 20, 2012, the stay was reinstated for
discovery-related activities at the request of the United States
Attorney and by agreement of the parties. This stay is expected to
remain in effect until the United States' criminal investigation
of the Upper Big Branch (UBB) explosion is completed. Mediation
efforts in August 2012 successfully resolved all but two of the
personal injury and emotional distress claims. A motion to dismiss
these two claims is pending before the Boone County Circuit Court.
The Wyoming County lawsuits were settled and dismissed prior to
the court ruling on the Company's motion to transfer.
On April 5, 2012, one of the families of the deceased miners filed
a class action suit in Boone County Circuit Court, purportedly on
behalf of the families that settled their claims prior to the
mediation, alleging fraudulent inducement into a contract, naming
as defendants Massey, the Company and certain of its subsidiaries,
the Company's CEO and the Company's Board of Directors.
ALPHA NATURAL: Del. Court Extends Stay in Massey Shareholder Suit
-----------------------------------------------------------------
The Delaware Chancery Court presiding over In re Massey Energy
Company Derivative and Class Action Litigation, further extended a
Stay Order until the earlier of July 15, 2013 or the conclusion of
the United States' criminal investigation of the Upper Big Branch
(UBB) explosion, Alpha Natural Resources, Inc. disclosed in its
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Alpha Natural previously acquired Massey Energy Company.
A number of purported former Massey stockholders have brought
lawsuits derivatively, purportedly on behalf of Massey, in West
Virginia and Delaware state courts, in connection with the April
5, 2010 explosion at the UBB mine and in connection with claims
allegedly arising out of the Massey Acquisition.
Certain of these former stockholders have also initiated contempt
proceedings in West Virginia state court in connection with
alleged violations of the settlement of a previous derivative
lawsuit. In addition, these and other purported former Massey
stockholders have asserted class action claims allegedly arising
out of the Massey Acquisition in Delaware and West Virginia state
courts and Virginia federal court. These cases are summarized
below.
Delaware Chancery Court Suit
In a case filed on April 23, 2010 in Delaware Chancery Court, In
re Massey Energy Company Derivative and Class Action Litigation
("In re Massey"), a number of purported former Massey stockholders
(the "Delaware Plaintiffs") allege, purportedly on behalf of
Massey, that certain former Massey directors and officers breached
their fiduciary duties by failing to monitor and oversee Massey's
employees, allegedly resulting in fines against Massey and the
explosion at Upper Big Branch (UBB), and by wasting corporate
assets by paying allegedly excessive and inflated amounts to
former Massey Chairman and Chief Executive Officer Don L.
Blankenship as part of his retirement package.
The Delaware Plaintiffs also allege, on behalf of a purported
class of former Massey stockholders, that certain former Massey
directors breached their fiduciary duties by agreeing to the
Massey Acquisition. The Delaware Plaintiffs allege that
defendants breached their fiduciary duties by failing to secure
the best price possible, by failing to secure any downside
protection for the acquisition consideration, and by purportedly
eliminating the possibility of a superior proposal by agreeing to
a "no shop" provision and a termination fee.
In addition, the Delaware Plaintiffs allege that defendants agreed
to the Massey Acquisition to eliminate the liability that
defendants faced on the Delaware Plaintiffs' derivative claims.
Finally, the Delaware Plaintiffs allege that defendants failed to
fully disclose all material information necessary for Massey
stockholders to cast an informed vote on the Massey Acquisition.
The Delaware Plaintiffs also name the Company and Mountain Merger
Sub, Inc. ("Merger Sub"), the Company's wholly-owned subsidiary
created for purposes of effecting the Massey Acquisition, which,
at the effective time of the Massey Acquisition, was merged with
and into Massey, as defendants.
The Delaware Plaintiffs allege that the Company and Merger Sub
aided and abetted the former Massey directors' alleged breaches of
fiduciary duty and agreed to orchestrate the Massey Acquisition
for the purpose of eliminating the former Massey directors'
potential liability on the derivative claims. Two additional
putative class actions were brought against Massey, certain former
Massey directors and officers, the Company and Merger Sub in the
Delaware Court of Chancery following the announcement of the
Massey Acquisition, which were consolidated for all purposes with
In re Massey on February 9, 2011 and February 24, 2011,
respectively.
The Delaware Plaintiffs seek an award against each defendant for
restitution and/or compensatory damages, plus pre-judgment
interest; an order establishing a litigation trust to preserve the
derivative claims asserted in the complaint; and an award of
costs, disbursements and reasonable allowances for fees incurred
in this action. The Delaware Plaintiffs also sought to enjoin
consummation of the Massey Acquisition. The court denied their
motion for a preliminary injunction on May 31, 2011.
On June 10, 2011, Massey moved to dismiss the Delaware Plaintiffs'
derivative claims on the ground that the Delaware Plaintiffs, as
former Massey stockholders, lacked the legal right to pursue those
claims, and the Company and Alpha Appalachia Merger Sub moved to
dismiss the purported class action claim against them for failure
to state a claim upon which relief may be granted. On June 10 and
13, 2011, certain former Massey director and officer defendants
moved to dismiss the derivative claims and filed answers to the
remaining direct claims.
On September 14, 2011, the parties submitted a Stipulation Staying
Proceedings, which stayed the matter until March 1, 2012, without
prejudice to the parties' right to seek an extension or a
termination of the stay by application to the court. The court
approved the stipulation and entered the stay that same day. On
January 31, 2012, the Company and Alpha Appalachia requested that
the Delaware Plaintiffs consent to a six-month extension of the
stay order (the "Stay Order"); the Delaware Plaintiffs refused to
do so.
On February 21, 2012, the Company and Alpha Appalachia filed a
motion to extend the Stay Order. On June 15, 2012, the Court held
a hearing on Defendants' motion to extend the Stay Order and
granted the motion, extending the stay of proceedings until the
earlier of either the completion of the United States' criminal
investigation of the UBB explosion or January 15, 2013.
On January 16, 2013, the Court further extended the Stay Order
until the earlier of July 15, 2013 or the conclusion of the United
States' criminal investigation of the UBB explosion.
ALPHA NATURAL: Faces Lawsuit by Former Nicewonder Employee
----------------------------------------------------------
Alpha Natural Resources, Inc. is facing a purported class action
filed by a former employee of Nicewonder Contracting, Inc. (the
"NCI Employee Litigation"), raising the same claims as in the
so-called ACTF Litigation, according to Alpha Natural's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
In December 2004, prior to the Company's acquisition of Nicewonder
in October 2005, the Affiliated Construction Trades Foundation
("ACTF"), a division of the West Virginia State Building and
Construction Trades Council, brought an action against the West
Virginia Department of Transportation, Division of Highways
("WVDOH") and Nicewonder Contracting, Inc. ("NCI"), which became
the Company's wholly-owned indirect subsidiary as a result of the
Nicewonder acquisition, in the United States District Court in the
Southern District of West Virginia.
The plaintiff sought a declaration that the contract between NCI
and the State of West Virginia related to NCI's road construction
project was illegal as a violation of applicable West Virginia and
federal competitive bidding and prevailing wage laws and sought to
enjoin performance of the contract, but did not seek monetary
damages.
On September 30, 2009, the District Court issued an order that
dismissed or denied for lack of standing all of the plaintiff's
claims under federal law and remanded the remaining state claims
to the Circuit Court of Kanawha County, West Virginia for
resolution.
On May 7, 2010, the Circuit Court of Kanawha County entered
summary judgment in favor of NCI. On June 22, 2011, the West
Virginia Supreme Court of Appeals reversed the Circuit Court order
granting summary judgment in favor of NCI, and remanded the case
back to the Circuit Court for further proceedings. Following
remand, ACTF filed a motion for summary judgment, which the
Circuit Court denied on November 9, 2011. ACTF challenged the
order denying its summary judgment motion to the West Virginia
Supreme Court of Appeals.
On June 21, 2012, the West Virginia Supreme Court of Appeals
issued an opinion finding that ACTF has standing to pursue its
claims and remanded the case back to the Circuit Court of Kanawha
County, West Virginia for further proceedings. NCI's portion of
the highway project under the contract is complete.
The case is now pending in the Circuit Court of Kanawha County,
West Virginia. A settlement between NCI and ACTF was agreed upon
in early January 2013, prior to the scheduled trial date, January
14, 2013. The Company does not expect to incur any out-of-pocket
expenditures in connection with the settlement. The trial
proceeded among the remaining parties.
On February 7, 2013, the Company received notice of a purported
class action lawsuit against NCI filed in the Circuit Court of
Mingo County, West Virginia by a former NCI employee (the "NCI
Employee Litigation"). The plaintiff in the NCI Employee
Litigation is represented by the same attorney who represents the
plaintiff in the ACTF litigation, and the complaint's allegations
raise issues similar to those in the ACTF litigation.
On February 26, 2013, the Circuit Court of Kanawha County ruled
that the contract in dispute in the ACTF litigation, as well as
the awarding and implementation, of the contract were in violation
of West Virginia law. The Company is reviewing the Court's ruling
and evaluating its implications in relation to the NCI Employee
Litigation. The Company believes that NCI has meritorious
defenses to the claims asserted in the NCI Employee Litigation.
NCI filed its answer to the complaint in the NCI Employee
Litigation on March 4, 2013. On April 23, 2013, the Circuit Court
of Kanawha County, West Virginia, granted NCI's motion to transfer
and entered an agreed order transferring the NCI Employee
Litigation from the Circuit Court of Mingo County to the Circuit
Court of Kanawha County.
APOLLO GLOBAL: Refutes Ruling in Suit Over Alleged Rigged Bidding
-----------------------------------------------------------------
Apollo Global Management, LLC filed a renewed motion for summary
judgment arguing that it did not participate in a narrower
conspiracy that the Massachusetts federal court, in a ruling for a
Fifth Amended Complaint, said could be inferred from evidences
presented, according to the company's May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
On July 16, 2008, Apollo was joined as a defendant in a pre-
existing purported class action pending in Massachusetts federal
court against, among other defendants, numerous private equity
firms.
The suit alleges that beginning in mid-2003, Apollo and the other
private equity firm defendants violated the U.S. antitrust laws by
forming "bidding clubs" or "consortia" that, among other things,
rigged the bidding for control of various public corporations,
restricted the supply of private equity financing, fixed the
prices for target companies at artificially low levels, and
allocated amongst themselves an alleged market for private equity
services in leveraged buyouts.
The suit seeks class action certification, declaratory and
injunctive relief, unspecified damages, and attorneys' fees. On
August 27, 2008, Apollo and its co-defendants moved to dismiss
plaintiffs' complaint and on November 20, 2008, the Court granted
the company's motion. The Court also dismissed two other
defendants, Permira and Merrill Lynch.
On September 17, 2010, the plaintiffs filed a motion to amend the
complaint by adding an additional eight transactions and adding
Apollo as a defendant. On October 6, 2010, the Court granted
plaintiffs' motion to file that amended complaint. Plaintiffs'
fourth amended complaint, filed on October 7, 2010, adds Apollo as
a defendant.
Apollo joined in the other defendants' October 21, 2010 motion to
dismiss the third claim for relief and all claims by the PanAmSat
Damages Sub-class in the Fourth Amended Complaint, which motion
was granted on January 13, 2011. On November 4, 2010, Apollo moved
to dismiss, arguing that the claims against Apollo are time-barred
and that the allegations against Apollo are insufficient to state
an antitrust conspiracy claim.
On February 17, 2011, the Court denied Apollo's motion to dismiss,
ruling that Apollo should raise the statute of limitations issues
on summary judgment after discovery is completed. Apollo filed its
answer to the Fourth Amended Complaint on March 21, 2011. On July
11, 2011, the plaintiffs filed a motion for leave to file a Fifth
Amended Complaint, adding ten additional transactions and
expanding the scope of the class seeking relief.
On September 7, 2011, the Court gave the plaintiffs permission to
take limited discovery on the ten additional transactions. By
Court order, the parties concluded discovery on May 21, 2012. The
plaintiffs then filed a Fifth Amended Complaint under seal on June
14, 2012. One week later, the defendants moved to dismiss portions
of the Fifth Amended Complaint. On July 18, 2012, the Court
granted the defendants' motion in part and denied it in part. On
July 21, 2012, all defendants filed motions for summary judgment.
While those motions were pending, the New York Times moved to
intervene and unseal the Fifth Amended Complaint.
Following briefing on the motion to intervene, the Court publicly
filed a version of the Fifth Amended Complaint containing four
redactions. The Court heard oral argument on the defendants'
motions for summary judgment in December 2012 and issued a ruling
on March 13, 2013.
In its ruling, the Court found that the plaintiffs failed to raise
a genuine dispute regarding the overarching conspiracy as defined
in the Fifth Amended Complaint. The Court did determine, however,
that the record contained some evidence from which a narrower
conspiracy could be inferred. The Court therefore denied the
defendants' motions for summary judgment without prejudice,
granting them permission to file renewed motions for summary
judgment on the narrower, Court-defined conspiracy.
Following the ruling, the Court ordered that any renewed summary
judgment motions be filed by April 16, 2013, with opposition due
on May 16, 2013, and reply briefing due on June 5, 2013. Apollo
filed its renewed summary judgment motion on April 16, 2013,
arguing that there is no evidence that Apollo agreed to or
participated in the narrower, Court-defined conspiracy.
APOLLO GLOBAL: "Frank" Plaintiffs Move to Consolidate Suit
----------------------------------------------------------
Plaintiffs in the putative class action, captioned Frank v.
Trilegiant Corp. (No. 12-cv-1721), moved to transfer and
consolidate Frank into the consolidated suit In re: Trilegiant
Corporation, Inc., according to Apollo Global Management, LLC's
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In March 2012, plaintiffs filed two putative class actions,
captioned Kelm v. Chase Bank (No. 12-cv-332) and Miller v. 1-800-
Flowers.com, Inc. (No. 12-cv-396), in the District of Connecticut
on behalf of a class of consumers alleging online fraud. The
defendants included, among others, Trilegiant Corporation, Inc.
("Trilegiant"), its parent company, Affinion Group, LLC
("Affinion"), and Apollo Global Management, LLC ("AGM"), which is
affiliated with funds that are the beneficial owners of 69% of
Affinion's common stock.
In both cases, plaintiffs allege that Trilegiant, aided by its
business partners, who include e-merchants and credit card
companies, developed a set of business practices intended to
create consumer confusion and ultimately defraud consumers into
unknowingly paying fees to clubs for unwanted services.
Plaintiffs allege that AGM is a proper defendant because of its
indirect stock ownership and ability to appoint the majority of
Affinion's board. The complaints assert claims under the Racketeer
Influenced Corrupt Organizations Act; the Electronic
Communications Privacy Act; the Connecticut Unfair Trade Practices
Act; and the California Business and Professional Code, and seek,
among other things, restitution or disgorgement, injunctive
relief, compensatory, treble and punitive damages, and attorneys'
fees.
The allegations in Kelm and Miller are substantially similar to
those in Schnabel v. Trilegiant Corp. (No. 3:10-cv-957), a
putative class action filed in the District of Connecticut in 2010
that names only Trilegiant and Affinion as defendants. The court
has consolidated the Kelm, Miller, and Schnabel cases under the
caption In re: Trilegiant Corporation, Inc. and ordered that they
proceed on the same schedule. On June 18, 2012, the court
appointed lead plaintiffs' counsel, and on September 7, 2012,
plaintiffs filed their consolidated amended complaint ("CAC"),
which alleges the same causes of action against AGM as did the
complaints in the Kelm and Miller cases.
Defendants filed motions to dismiss on December 7, 2012,
plaintiffs filed opposition papers on February 7, 2013, and
defendants filed replies on April 5, 2013. On December 5, 2012,
plaintiffs filed another putative class action, captioned Frank v.
Trilegiant Corp. (No. 12-cv-1721), in the District of Connecticut,
naming the same defendants and containing allegations
substantially similar to those in the CAC.
On January 23, 2013, plaintiffs moved to transfer and consolidate
Frank into In re: Trilegiant. On May 1, 2013, defendants moved to
extend until June 1, 2013 their deadline to respond to the Frank
complaint.
ATHENAHEALTH INC: MOU Reached in Suit Over Subsidiary's Merger
--------------------------------------------------------------
Epocrates, Inc., with which one of athenahealth, Inc.'s
subsidiaries agreed to merge, signed a memorandum of understanding
to settle a suit over the merger, according to the company's May
7, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On January 11, 2013, a complaint captioned Bushansky v. Epocrates,
Inc., et al., Case No. 519078, was filed in San Mateo County
Superior Court on behalf of a putative class of Epocrates'
shareholders against Epocrates and each member of the Epocrates
board.
This complaint challenged the proposed merger between Epocrates
and one of the Company's wholly owned subsidiaries. On January 25,
2013, a similar complaint was filed in San Mateo County Superior
Court captioned DeJoice v. Epocrates, et al., Case No. 519461.
This second complaint made similar allegations against Epocrates
and each member of the Epocrates board and included a claim
against the Company for aiding and abetting a breach of fiduciary
duty. On January 31, 2013, the Bushansky complaint was amended to
include additional allegations. Plaintiffs allege, among other
things, that the Epocrates directors breached their fiduciary
duties by allegedly agreeing to sell Epocrates at an unfair and
inadequate price, failing to take steps to maximize the sale
price of Epocrates, and making material omissions to the
preliminary proxy statement dated January 25, 2013.
The complaints sought to enjoin the merger, other equitable
relief, and money damages. On March 5, 2013, Epocrates and the
plaintiffs signed a memorandum of understanding in which the
parties agreed to enter into a stipulation of settlement whereby
the plaintiffs and all class members would release all claims
related to the merger in exchange for Epocrates filing a
supplement to its definitive proxy statement regarding the merger
with the Securities and Exchange Commission, which would include
additional disclosures regarding the merger agreement, and an
agreement to negotiate in good faith regarding the amount of
attorneys' fees and expenses for which plaintiffs may seek
approval from the Court.
The Company expects its maximum exposure for this matter will be
the Company's insurance deductible of $0.5 million.
ATHENAHEALTH INC: Epocrates Faces Securities Action in California
-----------------------------------------------------------------
On March 1, 2013, a complaint was filed in the United States
District Court for the Northern District of California captioned
Police and Fire Retirement System of the City of Detroit v.
Epocrates, Inc. et al., Case No. 5:13cv0945, on behalf of a
putative class of Epocrates' stockholders against Epocrates and
certain of its former officers and directors, according to
athenahealth, Inc.'s May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
The complaint asserts claims under sections 11, 12, and 15 of the
Securities Act of 1933 on behalf of all stockholders that
purchased Epocrates stock in its Initial Public Offering and
claims under sections 10(b) and 20 of the Securities Exchange Act
of 1934 on behalf of all stockholders that purchased shares
between the February 2, 2011, IPO and August 9, 2011.
The complaint alleges that Epocrates made false or misleading
statements with respect to the fact that Epocrates' pharmaceutical
clients were awaiting guidance from the Food and Drug
Administration on the use of advertising and social media, which
caused the clients to delay spending on marketing and negatively
impacted Epocrates' sales and revenue growth. The complaint seeks
certification as a class action, compensatory damages in an
unspecified amount, plaintiff's costs, attorneys' fees, and such
other and further relief as the Court may deem just and proper.
AUSTRALIA AND NEW ZEALAND BANKING: Sued Over Customer Fees
----------------------------------------------------------
Australia and New Zealand Banking Group Limited is facing
purported class actions claiming unlawful charges to customers,
the company disclosed in its May 7, 2013 filing of financial
statements to the U.S. Securities and Exchange Commission for the
half year ended March 31, 2013.
Litigation funder IMF (Australia) Ltd. commenced a class action
against Australia and New Zealand Banking Group Limited (ANZ) in
2010, followed by a second, similar class action in March 2013.
The separate actions are claimed to be on behalf of more than
40,000 ANZ customers for more than $50 million in fees claimed to
have been charged to those customers.
The case is at an early stage. ANZ is defending it. There is a
risk that further claims could emerge in Australia or elsewhere.
On 11 March 2013, litigation funder Litigation Lending Services
(NZ) announced plans for a class action against banks in New
Zealand for certain fees charged to New Zealand customers over the
past six years.
AVEO PHARMACEUTICALS: Faces "Sanders" Suit in Massachusetts
-----------------------------------------------------------
AVEO Pharmaceuticals, Inc., is facing a securities class action
lawsuit commenced by Paul Sanders in Massachusetts, according to
the Company's May 10, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
On May 9, 2013, a class action lawsuit was filed against the
Company and certain of its officers in the United States District
Court for the District of Massachusetts, captioned Paul Sanders v.
Aveo Pharmaceuticals, Inc., et al., No. 1:13-cv-11157-JLT. The
complaint purports to be brought on behalf of shareholders who
purchased the Company's common stock between January 3, 2012, and
May 1, 2013. The complaint generally alleges that the Company and
certain of its officers violated Sections 10(b) and/or 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by making allegedly false and/or misleading statements
concerning the phase 3 trial design and results for the TIVO-1
study in an effort to lead investors to believe that the drug
would receive approval from the U.S. Food and Drug Administration
("FDA"). The complaint seeks unspecified damages, interest,
attorneys' fees, and other costs. The Company denies any
allegations of wrongdoing and intends to vigorously defend against
this lawsuit. However, there is no assurance that the Company
will be successful in its defense or that insurance will be
available or adequate to fund any settlement or judgment or the
litigation costs of this action. Moreover, the Company is unable
to predict the outcome or reasonably estimate a range of possible
loss at this time.
AVEO Pharmaceuticals, Inc., which does business as AVEO
Oncology(TM), is a cancer therapeutics company committed to
discovering, developing and commercializing targeted cancer
therapies to impact patients' lives. The Company's product
candidates are directed against important mechanisms, or targets,
known or believed to be involved in cancer. AVEO was incorporated
in Delaware and is headquartered in Cambridge, Massachusetts.
AVIAT NETWORKS: Shareholder's Stay Motion Denied, Claims Junked
---------------------------------------------------------------
The United States District Court for the District of Delaware
denied a stay motion by the plaintiff in a securities lawsuit
against Aviat Networks, Inc. and, as a result, all claims have
been dismissed with prejudice, according to the company's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 29, 2013.
Certain of the company's former executive officers and directors
were named in a complaint filed on July 18, 2011 in the United
States District Court for the District of Delaware by plaintiff
Howard Taylor. Plaintiff purported to bring this action
derivatively on behalf of Aviat Networks, which was named as a
nominal defendant.
Plaintiff brought a claim for breach of fiduciary duty against the
officer and director defendants based on the allegations of
securities law violations alleged in another class action and also
alleges that the defendants caused the company to acquire the
Microwave Communications Division of Harris Corporation at an
inflated price.
Plaintiff sought to recover unspecified damages and other relief
on behalf of the Company, as well as payment of costs and
attorneys' fees. On September 27, 2012, the Court granted
defendants' motion to dismiss and granted plaintiff leave to amend
by October 18, 2012 only as to the allegations related to the
class action.
On October 18, 2012, plaintiff did not amend but filed a motion
for a stay of the action and sent a demand to the Company's Board
that it investigate and pursue the claims that were dismissed by
the Court. On December 14, 2012, the Court denied plaintiff's
motion to stay and, as a result, all claims have been dismissed
with prejudice. In response to plaintiff's demand, the Board
completed an investigation concluding that no further actions were
necessary and informed plaintiff's counsel of that conclusion.
BABCOCK & WILCOX: Dismissal of Suit Over Nuclear Plant Now Final
----------------------------------------------------------------
The plaintiffs in a suit filed against The Babcock & Wilcox
Company over alleged releases of radioactive and other hazardous
materials at its facility in Erwin, Tennessee did not appeal the
dismissal of the case and the judgment became final in January
2013, according to the company's May 7, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
In June 2011, approximately 18 plaintiffs filed a lawsuit styled
as a "class action" in the U.S. District Court for the Eastern
District of Tennessee against Nuclear Fuel Services, Inc. (NFS),
The Babcock & Wilcox Company (B&W), Babcock & Wilcox Power
Generation Group, Inc. ("B&W PGG"), Babcock & Wilcox Technical
Services Group, Inc. ("B&W TSG"), NOG-Erwin Holdings, Inc. and
others relating to the operation of the NFS facility in Erwin,
Tennessee.
In October 2011, the plaintiffs filed a motion to amend the
original complaint increasing the number of plaintiffs to
approximately 140, and the company filed a motion to dismiss.
In December 2012, the court issued an order denying the
plaintiffs' motion to amend the original complaint and granting
the company's motion to dismiss, with prejudice, all claims. The
plaintiffs did not appeal and the judgment became final in January
2013. The plaintiffs sought compensatory and punitive damages
alleging personal injuries and property damage resulting primarily
from alleged releases of radioactive and other hazardous materials
as a result of operations at the facility.
BANK OF AMERICA: Settled Countrywide RMBS Suit for $500MM
---------------------------------------------------------
On April 16, 2013, Bank of America Corporation reached an
agreement in principle to settle three class action lawsuits
involving certain Countrywide Financial Corporation (Countrywide)
entities and various institutional and individual plaintiffs
concerning Residential Mortgage-Backed Security issued by
subsidiaries of Countrywide (RMBS Settlement), according to the
company's May 7, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
The lawsuits are Maine State Retirement System v. Countrywide
Financial Corporation, David H. Luther v. Countrywide Financial
Corporation, and Western Conference of Teamsters Pension Trust
Fund v. Countrywide Financial Corporation.
The first of these class action lawsuits was filed in November
2007, and they collectively concern the disclosures that were made
in connection with 429 Countrywide RMBS offerings issued from 2005
through 2007. The original principal balance of the RMBS involved
in these cases exceeded $350 billion, and the unpaid principal
balance of these securities as of February 2013, excluding
securities that are the subject of filed or threatened individual
actions, was $95 billion.
Under the RMBS Settlement, the lawsuits will be dismissed in their
entirety and defendants will receive a global release in exchange
for a settlement payment of $500 million. The settlement will not
affect investors' rights to receive trust distributions upon final
court approval of the $8.5 billion settlement with Bank of New
York Mellon, as trustee. The RMBS Settlement is subject to final
court approval.
There can be no assurance that final court approval of the RMBS
Settlement will be obtained or that all conditions to such
settlement will be satisfied.
If approved, and all class members who have not already filed or
threatened individual suits participate, the settlement is
expected to resolve approximately 80 percent of the unpaid
principal balance of the Countrywide-issued RMBS as to which
securities disclosure claims have been filed or threatened, and
approximately 70 percent of the unpaid principal balance of all
RMBS as to which securities disclosure claims have been filed or
threatened as to all Bank of America-related entities.
The amounts to be paid in the RMBS Settlement are covered by a
combination of pre-existing litigation reserves and additional
litigation reserves recorded in the first quarter of 2013.
BANK OF AMERICA: $2.4BB Securities Suit Accord Okayed in April
--------------------------------------------------------------
On April 5, 2013, the U.S. District Court for the Southern
District of New York granted final approval to the settlement of
the Consolidated Securities Class Action of which Bank of America
is a defendant, according to the company's May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
According to the company's February 28, 2013 10-K filing for the
fiscal year ended December 31, 2012: Plaintiffs (Securities
Plaintiffs) in the securities class action in the Consolidated
Action (Consolidated Securities Class Action) asserted claims
under Sections 14(a), 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the Exchange Act), and Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 (the Securities Act) and asserted
damages based on the drop in the stock price upon subsequent
disclosures.
In February 2012, the court granted a motion for class
certification. On November 30, 2012, the parties entered into a
settlement agreement. The agreement, which is subject to court
approval, provides for a payment by the Corporation of $2.4
billion, an amount that was fully accrued as of September 30,
2012, and the institution and/or continuation of certain corporate
governance enhancements until the later of January 1, 2015 or 18
months following the court's final approval of the settlement. In
exchange, Securities Plaintiffs released their claims against all
defendants and certain other persons or entities affiliated with
defendants.
On December 4, 2012, the court issued an order granting
preliminary approval of the settlement and scheduling a final
settlement hearing for April 5, 2013.
BANK OF AMERICA: Reaches Accord With NCUA to Settle MBS Suit
------------------------------------------------------------
On March 29, 2013, Bank of America Corporation and the National
Credit Union Administration (NCUA) agreed to resolve claims
concerning certain Mortgage-backed Securities offerings that the
NCUA had threatened to bring to court, according to BofA's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
The Corporation and its affiliates, Countrywide entities and their
affiliates, and/or Merrill Lynch entities and their affiliates
have been named as defendants in a number of cases relating to
their various roles as issuer, originator, seller, depositor,
sponsor, underwriter and/or controlling entity in MBS offerings,
pursuant to which the MBS investors were entitled to a portion of
the cash flow from the underlying pools of mortgages.
These cases generally include purported class action suits and
actions by individual MBS purchasers. Although the allegations
vary by lawsuit, these cases generally allege that the
registration statements, prospectuses and prospectus supplements
for securities issued by securitization trusts contained material
misrepresentations and omissions, in violation of Sections 11, 12
and/or 15 of the Securities Act of 1933, Sections 10(b) and/or 20
of the Securities Exchange Act of 1934 and/or state securities
laws, and other state statutory and common laws.
These cases generally involve allegations of false and misleading
statements regarding: (i) the process by which the properties that
served as collateral for the mortgage loans underlying the MBS
were appraised; (ii) the percentage of equity that mortgage
borrowers had in their homes; (iii) the borrowers' ability to
repay their mortgage loans; (iv) the underwriting practices by
which those mortgage loans were originated; (v) the ratings given
to the different tranches of MBS by rating agencies; and (vi) the
validity of each issuing trust's title to the mortgage loans
comprising the pool for that securitization (collectively, MBS
Claims).
Plaintiffs in these cases generally seek unspecified compensatory
damages, unspecified costs and legal fees and, in some instances,
seek rescission. A number of other entities have threatened legal
actions against the Corporation and its affiliates, Countrywide
entities and their affiliates, and/or Merrill Lynch entities and
their affiliates concerning MBS offerings.
On March 29, 2013, the Corporation and the National Credit Union
Administration (NCUA) agreed to resolve claims concerning certain
MBS offerings that the NCUA had threatened to bring against the
Corporation, Merrill Lynch, Countrywide and certain of their
affiliates. The settlement amount will be covered by existing
reserves.
On August 15, 2011, the U.S. Judicial Panel on Multidistrict
Litigation ordered multiple federal court cases involving
Countrywide MBS consolidated for pretrial purposes in the U.S.
District Court for the Central District of California in a multi-
district litigation entitled In re Countrywide Financial Corp.
Mortgage-Backed Securities Litigation (the Countrywide RMBS MDL).
BANK OF AMERICA: Overthrows Claims in Pa. Securities Lawsuit
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted in part and denied in part a motion to dismiss the suit
entitled Pennsylvania Public School Employees' Retirement System
v. Bank of America, et al., according to the company's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
The Corporation and several current and former officers were named
as defendants in a putative class action filed in the U.S.
District Court for the Southern District of New York entitled
Pennsylvania Public School Employees' Retirement System v. Bank of
America, et al.
Following the filing of a complaint on February 2, 2011, plaintiff
subsequently filed an amended complaint on September 23, 2011 in
which plaintiff sought to sue on behalf of all persons who
acquired the Corporation's common stock between February 27, 2009
and October 19, 2010 and "Common Equivalent Securities" sold in a
December 2009 offering.
The amended complaint asserted claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (Exchange Act) and
Sections 11 and 15 of the Securities Act of 1933 (Securities Act),
and alleged that the Corporation's public statements: (i)
concealed problems in the Corporation's mortgage servicing
business resulting from the widespread use of the Mortgage
Electronic Recording System; (ii) failed to disclose the
Corporation's exposure to mortgage repurchase claims; (iii)
misrepresented the adequacy of internal controls; and (iv)
violated certain Generally Accepted Accounting Principles. The
amended complaint sought unspecified damages.
On July 11, 2012, the court granted in part and denied in part
defendants' motions to dismiss the amended complaint. All claims
under the Securities Act were dismissed against all defendants,
with prejudice. The motion to dismiss the claim against the
Corporation under Section 10(b) of the Exchange Act was denied.
All claims under the Exchange Act against the officers were
dismissed, with leave to replead. Defendants moved to dismiss a
second amended complaint in which plaintiff sought to re-plead
claims against certain current and former officers under Sections
10(b) and 20(a). On April 17, 2013, the court granted in part and
denied in part the motion to dismiss. Certain claims against the
current and former officers under Sections 10(b) and 20(a) were
sustained.
BEST BUY: Recalls 5,100 ATG Lithium-Ion Batteries for MacBook Pro
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Best Buy and BTI Corp., of Las Vegas, announced a voluntary recall
of about 5,100 ATG lithium-ion batteries. Consumers should stop
using this product unless otherwise instructed. It is illegal to
resell or attempt to resell a recalled consumer product.
The battery can catch fire while charging.
The firm has received 13 reports that the battery caught fire,
including one report of a serious burn to a consumer's leg.
This recall involves both black and white ATG lithium-ion
replacement batteries for MacBook Pro notebook computers. Model
number "MC-MBOOK13B" is on the label of the black battery and
model number "MC-BOOK13W" is on the label of the white battery.
The ATG logo is on both batteries. Pictures of the recalled
products are available at: http://is.gd/QQoeon
The recalled products were manufactured in China and sold at
Bestbuy.com and Partstore.com, or shipped to customers through the
Geek Squad Protection fulfillment at Best Buy from September 2008
through June 2012 for about $50.
Consumers should immediately stop using the recalled battery,
remove it from the computer and contact Best Buy for a replacement
Apple brand battery or a $50 Best Buy gift card as a full refund.
Best Buy is contacting its customers directly. Best Buy may be
reached toll-free at (888) 737-6954 from 7:00 a.m. to 9:00 p.m.
Central Time daily or e-mail bestbuypartexchange@decisionone.com,
or online at http://www.bestbuy.com/,and click on "Product
Recalls" at the bottom of the page for more information.
BODY CENTRAL: Files Motion to Dismiss Fla. Securities Lawsuit
-------------------------------------------------------------
Body Central Corp. moved to dismiss a securities lawsuit filed
against it in the United States District Court for the Middle
District of Florida, according to the company's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 30, 2013.
On August 27, 2012, a securities class action, Mogensen v. Body
Central Corp. et al., 3:12-cv-00954, was filed in the United
States District Court for the Middle District of Florida against
the Company and certain of the Company's current and former
officers and directors.
The amended complaint, filed on February 22, 2013, on behalf of
persons who acquired the Company's stock between November 10, 2011
and June 18, 2012, alleges that defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-
5 by making false or misleading statements about the business and
operations, thereby causing the stock price to be artificially
inflated during that period.
The complaint seeks monetary damages in an unspecified amount,
equitable relief, costs and attorney's fees. The Company believes
that the complaint lacks merit and intends to defend the position
rigorously. The Company does not believe the outcome of the class
action will have a material adverse effect on the business,
financial statements or disclosures. The defendants have moved to
dismiss the complaint.
CENCOSUD S.A.: CAT Subsidiary Ordered to Reimburse Cardholders
--------------------------------------------------------------
The Supreme Court of Chile ruled on the class action suit filed by
the Servicio Nacional del Consumidor (the National Consumer
Service, ordering Cencosud Administradora de Tarjetas S.A. (CAT),
a subsidiary of Cencosud S.A., to reimburse certain cardholders
for excess monthly maintenance fees charged since 2006, according
to Cencosud's May 7, 2013, Form 20-F filing with the U.S.
Securities and Exchange Commission for the For The Fiscal Year
Ended December 31, 2012.
On April 24, 2013, the Supreme Court of Chile ruled on the class
action suit filed by the Servicio Nacional del Consumidor (the
National Consumer Service, or "SERNAC"), a Chilean government
entity.
The court ruled for the plaintiff and at this junction no further
appeals are available. In the ruling, the court ordered Cencosud
Administradora de Tarjetas S.A. ("CAT") to reimburse certain
cardholders for excess monthly maintenance fees charged since 2006
plus adjustments for inflation and interests.
In its ruling, the court determined that CAT included certain
clauses in its 2006 contracts that were abusive to consumers. Said
clauses allowed CAT to charge an incremental maintenance fee of
Ch$530 per month to credit cardholders with a card usage under
Ch$50 thousand per month, without written consent from cardholders
as required by the Ley de Proteccion al Consumidor.
We have provisioned Ch$ 20,000 million for this ruling in the
company's 2012 financial statements, which represents 0.2% of the
company's 2012 consolidated net revenues and 3.1% of the company's
2012 adjusted EBITDA.
This provision is an estimated value that still needs to be
ratified by the Supreme Court of Chile after subsequent filings
for interpretation, rectification and amendment are addressed by
the court.
CENCOSUD S.A.: G Barbosa Affiliate Faces Suit by Employee Union
---------------------------------------------------------------
A class action was filed against the indirectly controlled
affiliate of Cencosud S.A., G Barbosa Comercial Ltda. (Brazil), by
the Retail and Service Establishment Employees Union, Paulo Afonso
and the Region, according to Cencosud's May 7, 2013, Form 20-F
filing with the U.S. Securities and Exchange Commission for the
For The Fiscal Year Ended December 31, 2012.
The suit is based on the alleged violation of the clause in the
Collective Bargaining Agreement that prohibits stores in this
region from operating on Sundays after 13:00 hours.
The request for payment of fines to the union has been confirmed
in the first and second instance rulings and is awaiting the
decision on an appeal.
According to Cencosud, "There is no evidence that could support a
reasonable estimate of the amount in question, given the extreme
difficulty of determining the number of employees allegedly
affected by the work schedule at that time."
CHARLES SCHWAB: Dismissal of Claims in Northstar Suit on Appeal
---------------------------------------------------------------
A suit by investors in the Schwab Total Bond Market Fund is
currently pending in the Ninth Circuit Court of Appeals after the
dismissal of claims against the defendants, according to The
Charles Schwab Corporation's May 7, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On August 28, 2008, a class action lawsuit was filed in the U.S.
District Court for the Northern District of California on behalf
of investors in the Schwab Total Bond Market Fund (Northstar
lawsuit).
The lawsuit, which alleges violations of state law and federal
securities law in connection with the fund's investment policy,
names Schwab Investments (registrant and issuer of the fund's
shares) and Charles Schwab Investment Management, Inc. (CSIM) as
defendants. Allegations include that the fund improperly deviated
from its stated investment objectives by investing in
collateralized mortgage obligations (CMOs) and investing more than
25% of fund assets in CMOs and mortgage-backed securities without
obtaining a shareholder vote.
Plaintiffs seek unspecified compensatory and rescission damages,
unspecified equitable and injunctive relief, costs and attorneys'
fees. Plaintiffs' federal securities law claim and certain of
plaintiffs' state law claims were dismissed in proceedings before
the court and following a successful petition by defendants to the
Ninth Circuit Court of Appeals.
On August 8, 2011, the court dismissed plaintiffs' remaining
claims with prejudice. Plaintiffs have again appealed to the Ninth
Circuit, where the case is currently pending.
CHRYSLER GROUP: Denies Assertions That Older Jeeps Are Unsafe
-------------------------------------------------------------
Christina Rogers of The Wall Street Journal reports that Chrysler
Group LLC continues to deny assertions by U.S. safety regulators
that some of its older Jeeps are unsafe in high-speed rear-end
collisions despite agreeing to a recall of 1.56 million vehicles,
according to documents released on Wednesday, June 19, 2013, by
the National Highway Traffic Safety Administration.
The Company on Tuesday, June 19, 2013, agreed to provide owners of
certain Jeep Liberty and Jeep Grand Cherokee vehicles a fix that
it said would "improve incrementally" their safety in low-speed
crashes, the documents show.
Company officials were influenced by "consumer concerns" raised by
NHTSA's request earlier this month to recall 2.7 million Jeeps.
The safety agency said there was risk of fatal fuel tank fires
from rear-end collisions.
The two sides agreed Chrysler would recall 1.56 million Jeeps,
about 1 million fewer than the agency had wanted, to install
trailer hitches, putting more metal around the fuel tank to better
protect them in rear-end collisions.
Those trailer hitches, however, "cannot, and will not, mitigate
the risk of high-energy collisions identified in your recall" the
Company said in a June 18 letter to NHTSA.
Chrysler had until Tuesday, June 19, 2013, to respond to the
agency's request two weeks ago that it recall 2.7 million Jeeps.
The recall action covers 1993-1998 Grand Cherokee and 2002-2007
Jeep Liberty sport-utility vehicles only. Initially, NHTSA had
wanted Chrysler to recall about 1.14 million 1999-2004 Grand
Cherokees, as well.
NHTSA has said that the fuel tank's placement behind the rear-axle
makes it more vulnerable to rupture and fuel leakage when struck
from behind. The agency has linked the Jeeps in question to 51
deaths in fiery rear-end crashes.
Chrysler, however, said in its letter that it was "declining" the
agency's request to determine the vehicles have a "safety-related
defect" and provide a fix that would make them safer in high-
energy rear-end collisions.
Chrysler argued that these kinds of crashes are particularly
severe, and in most cases, wouldn't have been prevented "by taking
any reasonable countermeasure," according to the letter. The
Company has said the vast majority of crashes cited by the NHTSA
in its recall request were high-energy crashes -- collisions
involving particularly large and heavy vehicles moving at high
speeds.
In making this compromise, Chrysler will avoid what could have
become a lengthy and highly-publicized battle with the auto
industry's top regulator and likely save millions of dollars by
recalling about 1 million fewer Jeeps than safety regulators had
requested.
The Company's refusal to label the vehicles as having a "safety-
related defect" could also strengthen its hand in a half-dozen
civil lawsuits now pending against the Company, involving Jeep
fuel tank fires.
Separately, Chrysler said it would begin notifying Jeep customers
in July of the recall, according to documents submitted to NHTSA.
It said the parts available for the recall aren't currently
available and Chrysler is trying to get them as quickly as
possible.
It is still unclear how much the recall will cost Chrysler, but
some dealers say such a trailer hitch mount can run about $200 or
less per vehicles.
Clarence Ditlow, executive director of the Washington, D.C.-based
nonprofit Center for Auto Safety, which had asked NHTSA to probe
the Jeep fuel tank design in August 2010, said regulators should
test the Company's recommended fix, as it did on the Ford Pinto in
1978, another vehicle recalled for fuel tank fires.
"If the modified Jeeps do not pass, we call on NHTSA to require
Chrysler to develop a more effective remedy," Mr. Ditlow said.
CIMAREX ENERGY: Final Ruling in "Hitch" Settlement Due July
-----------------------------------------------------------
The Federal District Court in Oklahoma City, Oklahoma is scheduled
to render a decision on the final approval of a $16.4 million
settlement of the suit Hitch Enterprises, Inc. et al. v. Cimarex
Energy Co. et al., according to Cimarex's May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
On December 11, 2012, Cimarex entered into a preliminary
resolution of the Hitch Enterprises, Inc., et al. v. Cimarex
Energy Co., et al. (Hitch) litigation matter for $16.4 million.
Hitch was filed as a statewide royalty putative class action in
the Federal District Court in Oklahoma City, Oklahoma. The
settlement was reached at a mediation, which occurred after the
parties began to exchange information, including damage analyses,
on November 16, 2012.
The Court has entered an order preliminarily approving the
parties' settlement. The deadline for putative class members to
opt out of the settlement class was February 15, 2013, and less
than 1/2% of the class members opted out. The Court will issue
final judgment after July 1, 2013. In the fourth quarter of 2012,
the company accrued $16.4 million for this matter.
DIAMOND RESORTS: Settling Hawaii Water Intrusion Assessment Suit
----------------------------------------------------------------
Diamond Resorts Corporation is working to settle the Hawaii Water
Intrusion Assessment Litigation filed against it. In November,
2012, the Company reached an agreement with the named plaintiffs
and their counsel to settle the litigation in full, according to
the company's May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
In October 2011, the Homeowners Association of one of the
Company's managed resorts in Hawaii levied a $65.8 million water
intrusion assessment to the owners of that resort, of which $9.7
million was assessed to the Company.
During the quarter ended December 31, 2011, the Company's portion
of the water intrusion assessment was recorded as Vacation
Interest carrying cost, net in the accompanying condensed
consolidated statements of operations and comprehensive income
(loss) with a corresponding increase to due to related parties,
net in the accompanying condensed consolidated balance sheet. The
proceeds of this assessment are being used to repair the water
intrusion damage at the resort.
In April 2012, the Company was named as a defendant in a putative
class action pending in the District Court for the District of
Hawaii. The action, brought by five deeded owners and members of
one of the Collections managed by the Company, alleges breaches of
fiduciary duty and unfair and deceptive trade practices against
the company and certain of the Company's officers and employees
and seeks, among other things, to invalidate the water intrusion
assessment and enjoin the water intrusion project.
In November, 2012, the Company reached an agreement with the named
plaintiffs and their counsel to settle the litigation in full. The
settlement is subject to court approval. The Company does not
expect the settlement to have a material impact on its financial
condition or results of operations.
DIGITALGLOBE INC: No Hearing Date Yet on Securities Suit Accord
---------------------------------------------------------------
Parties in a securities suit filed against Digitalglobe, Inc. over
its acquisition of GeoEye, Inc. submitted a final settlement for
Court approval and is awaiting for a hearing date to be set,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In July 2012, GeoEye and the GeoEye board of directors,
DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC were
named as defendants in three purported class action lawsuits filed
in the United States District Court for the Eastern District of
Virginia. The lawsuits were brought on behalf of proposed classes
consisting of all public holders of GeoEye common stock, excluding
the defendants and, among others, their affiliates. On September
7, 2012, the Court ordered the consolidation of the three actions
as In re GeoEye, Inc., Shareholder Litigation, Consol. No. 1:12-
cv-00826-CMH-TCB.
On September 24, 2012, plaintiffs filed an amended consolidated
complaint alleging the GeoEye board of directors breached their
fiduciary duties by allegedly, among other things, failing to
maximize stockholder value, agreeing to preclusive deal protection
measures and failing to disclose certain information necessary to
make an informed vote on whether to approve the proposed
acquisition.
DigitalGlobe is alleged to have aided and abetted these breaches
of fiduciary duty. In addition, the amended complaint contains
allegations that the GeoEye board of directors and DigitalGlobe
violated Section 20(a) and Section 14(a) of the Securities
Exchange Act of 1934, and Rule 14a-9 promulgated thereunder, by
the filing of a Registration Statement allegedly omitting material
facts and setting forth materially misleading information.
On October 9, 2012, following arm's-length negotiations, the
parties to the consolidated action entered into a memorandum of
understanding ("MOU") to settle all claims asserted therein on a
class-wide basis. GeoEye and the GeoEye board of directors,
DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC
entered into the MOU solely to avoid the costs, risks and
uncertainties inherent in litigation, and without admitting any
liability or wrongdoing.
In connection with the MOU, DigitalGlobe agreed to make additional
disclosures in Amendment No. 1 to the Registration Statement. The
settlement set forth in the MOU includes a release of all claims
against defendants alleged in the corrected amended complaint, and
is subject to, among other items, the completion of confirmatory
discovery, execution of a stipulation of settlement and court
approval, as well as the Acquisition becoming effective under
applicable law.
Any payments made in connection with the settlement, which are
subject to court approval, are not expected to be material to the
combined company. In January 2013, the parties completed
confirmatory discovery. On April 24, 2013, the parties submitted
the final settlement to the Court for approval. A hearing date has
not yet been set.
EASTON TECHNICAL: Recalls 22,500 Axis Arrows Over Injury Hazard
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in conjunction with
Health Canada and in cooperation with Easton Technical Products
Inc., of Salt Lake City, Utah, announced a voluntary recall of
about 20,700 Easton Axis arrows in the United States of America
and 1,800 in Canada. Consumers should stop using this product
unless otherwise instructed. It is illegal to resell or attempt
to resell a recalled consumer product.
The arrows can break when fired and hit unintended targets,
including the user and bystanders.
No incidents or injuries have been reported.
This recall involves Easton Axis arrows in four different sizes
and batch numbers, including size 300 with batch number 13169686,
size 340 with batch number 13170143, size 400 with batch number
13170142 and size 500 with batch number 13169487. The carbon
composite arrows are used for hunting and target archery. They
are black with green and gray-colored graphics. Axis, Focused
Energy, Easton, the size number and the batch number are printed
on the arrows. Pictures of the recalled products are available
at: http://is.gd/CdNB2O
The recalled products were manufactured in the United States of
America and sold at Archery specialty stores and Academy Sports,
Bass Pro, Cabela's, Gander Mountain and Scheels stores nationwide
from February 2013 through May 2013 for about $154 per dozen.
Consumers should stop using the recalled arrows immediately and
contact Easton to receive free replacement arrows. Easton
Technical Products may be reached toll-free at (888) 380-6234 from
8:00 a.m. to 8:00 p.m. Eastern Time Monday through Friday or
online at http://www.eastonarchery.com/and click on Axis Recall
for more information or go to http://www.axisrecall.com/.
ENERNOC INC: Faces Shareholder Lawsuit in Delaware
--------------------------------------------------
On May 3, 2013, a purported shareholder of Enernoc Inc. filed a
derivative and class action complaint in the United States
District Court for the District of Delaware against certain
officers and directors of the Company as well as the Company as a
nominal defendant, according to the company's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
The complaint asserts several derivative claims, purportedly
brought on behalf of the Company, including breach of fiduciary
duty, waste of corporate assets, and unjust enrichment in
connection with certain allegedly improper equity awards (in 2010,
2012, and 2013) made in excess of the annual limit in the
Company's Amended and Restated 2007 Employee, Director, and
Consultant Stock Plan.
The complaint also asserts a direct claim, brought on behalf of
the plaintiff and a proposed class of the Company's shareholders,
alleging the Company's recently-filed proxy statement is false and
misleading because it fails to disclose the allegedly improper
equity grants. The plaintiff seeks, among other relief,
rescission, unspecified damages, injunctive relief, disgorgement,
fees, and such other relief as the Court may deem proper.
FIRST SOLAR: Certification Discovery Ongoing in Ariz. Stock Suit
----------------------------------------------------------------
The United States District Court for the District of Arizona
directed parties in the suit Smilovits v. First Solar, Inc., et
al. to begin class certification discovery, according to the
company's May 7, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
On March 15, 2012, a purported class action lawsuit titled
Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555-
DGC, was filed in the United States District Court for the
District of Arizona (hereafter "Arizona District Court") against
the Company and certain current and former directors and officers.
The complaint was filed on behalf of purchasers of the Company's
securities between April 30, 2008, and February 28, 2012. The
complaint generally alleges that the defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by making
false and misleading statements regarding the Company's financial
performance and prospects. The action includes claims for damages,
and an award of costs and expenses to the putative class,
including attorneys' fees. The Company believes it has meritorious
defenses and will vigorously defend this action.
On July 23, 2012, the Arizona District Court issued an order
appointing as lead plaintiffs in the class action the Mineworkers'
Pension Scheme and British Coal Staff Superannuation Scheme
(collectively "Pension Schemes"). The Pension Schemes filed an
amended complaint on August 17, 2012, which contains similar
allegations and seeks similar relief as the original complaint.
Defendants filed a motion to dismiss on September 14, 2012. On
December 17, 2012, the court denied Defendants' motion to dismiss.
On February 26, 2013, the court directed the parties to begin
class certification discovery, and ordered a further scheduling
conference to set the merit discovery schedule after the issue of
class certification has been decided.
The action is still in the initial stages and there has been no
merits discovery.
GARDEN-FRESH: Recalls Packages of Archer Farms Smoked Salmon Dip
----------------------------------------------------------------
Garden-Fresh Foods Inc. is voluntarily recalling a limited number
of packages of Archer Farms Smoked Salmon Dip that may contain
undeclared allergens, fish and egg. Some of Archer Farms Smoked
Salmon Dip may have inadvertently been filled in a limited amount
of Bacon Parmesan Dip containers. The mis-packaged product was
shipped to distributors in IA, FL and TX.
People who have an allergy or severe sensitivity to fish or egg
run the risk of serious or life-threatening allergic reaction if
they consume this product. There have been no illnesses reported
in connection with this product.
The affected product, Archer Farms Smoked Salmon Dip, is packaged
in 11.0 ounce containers labeled as Archer Farms Bacon Parmesan
Dip on the tub, with a lid labeled as Archer Farms Smoked Salmon
Dip. This voluntary recall is limited to 126 cases (6 units per
case) shipped to IA, FL TX.
The following UPC code and Best if Used By date is included in the
recall:
Archer Farms Smoked Salmon Dip 11.0-ounce containers
(listed on the lid)
Packaged in Archer Farms Bacon Parmesan Dip tubs with
Unit UPC: 0 85239 99017 9
Lot Codes: 28/JUN/2013/01
Best By Date: 28/JUN/2013/01
Used By dates are printed on the side of each container. Only the
mis-packaged Archer Farms Smoked Salmon Dip is included in the
recall. Product correctly packaged in a tub and lid with both
labeled as Archer Farms Smoked Salmon Dip is not included in the
recall. No other Archer Farms products are affected.
Pictures of the recalled products are available at:
http://www.fda.gov/Safety/Recalls/ucm357916.htm
This product is a food safety concern for people who are allergic
to fish and eggs.
Consumers who have purchased the mis-packaged product with code
date 28/Jun/2013/01 should discard it or return to the place of
purchase for a refund. This item is sold in Target stores
nationwide.
Consumers with questions on the recall may contact Garden-Fresh
Foods at 1-800-645-3367.
GENERAL MOTORS: Recalls 1,496 W3500, W4500 and W5500 Trucks
-----------------------------------------------------------
Starting date: June 19, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Electrical
Units affected: 1,496
Source of recall: Transport Canada
Identification number: 2013213
TC ID number: 2013213
Manufacturer recall number: 13199
On certain vehicles equipped with an oil pan heater, over time,
dust, dirt and moisture may collect at the contact point between
the oil pan heater cord and the extension cord. As a result, the
extension cord could overheat, which may melt the oil pan heater
plug and/or block heater plug (if equipped). This could result in
a fire causing property damage and/or personal injury.
Correction: Dealers will inspect and clean the oil pan heater plug
and the engine block heater plug (if equipped). Heat damaged
plugs will be replaced. In addition, dealers will replace the
extension cord and advise owners to store the cord indoors when
not in use.
Affected products:
Makes and models affected
--------------------------------------------------
Make Model Model year(s) affected
---- ----- ----------------------------------
GMC W5500 2000, 2001, 2002, 2003, 2004, 2005,
2006, 2007, 2008, 2009, 2010
GMC W4500 2000, 2001, 2002, 2003, 2004, 2005,
2006, 2007, 2008, 2009, 2010
GMC W3500 2000, 2001, 2002, 2003, 2004, 2005,
2006, 2007, 2008, 2009, 2010
GULF RESOURCES: Court Denies Prelim. OK of Snellink Suit Accord
---------------------------------------------------------------
District Judge Otis D. Wright, II, denied a motion for preliminary
approval of a class action settlement in ALBERT SNELLINK, ZACHARY
LEWY, SAMPSON DARUVALLA, and WILLIAM SPIEGELBERG, on behalf of
themselves and all others similarly situated, Plaintiffs, v. GULF
RESOURCES, INC., XIAOBIN LIU, MIN LI, and MING YANG, Defendants,
CASE NO. CV 11-03722-ODW (MRWX), (C.D. Cal.).
Judge Wright said he finds several problems with the proposed
settlement including:
1. The payments to the class members should be self-executing.
That is, class members need not file anything if they desire to
receive payment. The burden on determining how much each class
member is entitled to rests solely on the class administrator. But
class members should still be allowed to opt out if they so
desire.
2. Because of the required self-executing provision, the payment
(presumably in the form of a check) must be clearly identified as
such and not as junk mail. Plaintiffs must submit an exemplar of
the payment mailing for approval. Also, the check should be valid
for at least one year from the date of issue.
3. The Court recognizes that it may be economically unfeasible to
send out settlement payments to owners who possessed a small
amount of stock. Thus, the Court will agree to a provision that
excludes payment to persons with an estimated settlement recovery
of less than $1.00.
4. Though the provisions above will increase the cost of
administering the settlement, the Court finds that the amount set
apart for the Notice and Administration Account is too high
($75,000). Plaintiffs must revisit this amount or submit
documentation to the Court to show why this amount is necessary.
5. The award to the three remaining lead Plaintiffs, Lewy,
Daruvalla, and Spiegelberg, should be reduced to $6,000 (not
$10,000) collectively, or $2,000 each.
6. The attorney's-fee award also appears too high. The Court notes
that while Plaintiffs' attorney has expended effort and taken
risks in this case, that alone does not suffice to support an
attorney's-fee award of $708,262.50 (33 1/3% of the settlement).
Plaintiffs must submit documentation, including their billings, to
the Court to justify this award.
7. Further, Plaintiffs are ordered to submit their litigation
expenses to the Court for approval, including those they expect to
incur between now and the dismissal of this lawsuit. The Court
finds that the provision setting aside $150,000 is excessive.
"Plaintiffs must address these issues . . . and make the necessary
changes to their motion papers and accompanying documents. They
must resubmit their motion for preliminary approval by July 8,
2013, setting a hearing on the matter for August 5, 2013. Where
necessary, Plaintiffs should complete their documentation based on
a Final Approval Hearing date of November 4, 2013. Plaintiffs
should fill out all dependent dates in their documents
accordingly," ruled Judge Wright.
The Court continues the trial on the case to September 17, 2013.
Plaintiffs Zachary Lewy, Ioannis Zoumas, Sampson Darulvalla, and
William Spiegelberg, are represented by Francis A Bottini, Jr.,
Esq., at Bottini and Bottini Inc. & Laurence M Rosen, Esq., at
Rosen Law Firm.
Movant Jeffrey P Moser is represented by Lionel Zevi Glancy, Esq.,
Michael M Goldberg, Esq., & Peter A Binkow, Esq., at Glancy Binkow
and Goldberg LLP.
Movants Marc Naddell, Jeremy Davis and Cathy Peng are represented
by Laurence M Rosen, Esq., at Rosen Law Firm, Lionel Zevi Glancy,
Esq., Michael M Goldberg, Esq., & Peter A Binkow, Esq., at Glancy
Binkow and Goldberg LLP.
Defendant Gulf Resources, Inc., is represented by Andrew J
Rodgers, Esq., Brian H Polovoy, Esq., Christopher R Fenton, Esq.
and Stephen D Hibbard, Esq., at Shearman and Sterling LLP.
A copy of the District Court's June 14, 2013 Order is available at
http://is.gd/nyfThyfrom Leagle.com.
HOVNANIAN ENTERPRISE: Class Cert. in HVAC Claims Suit Affirmed
--------------------------------------------------------------
The Superior Court of New Jersey, Appellate Division, affirmed
class certification of plaintiffs in D'ANDREA v. HOVNANIAN.
Defendants K. Hovnanian, Hovnanian Enterprise, Inc., and K.
Hovnanian Venture I, LLC, took an interlocutory appeal of the
December 29, 2011 class certification of plaintiffs, who assert
claims related to the heating, ventilation, and air conditioning
(HVAC) systems in their homes, which were built by the Defendants.
The class designation consists of: "[a]ll persons or entities who
from June 27, 2001 to the present purchased a home in New Jersey
from Defendants with a HVAC system installed such that the
cavities between studs or partitions to be used as return ducts
are not isolated from unused spaces with tight-fitting stops or
sheet metal or with wood not less than 2-inch nominal thickness
and/or where such cavities are part of a required fire-resistance-
rated assembly ("class")."
On June 18, 2013, the New Jersey Appellate Court concluded that
Judge Hoffman engaged in the appropriate analysis of the extensive
evidence presented to him enough to certify the class, treating
the information in a light favorable to plaintiffs, while not
deciding the ultimate issues in the case. There is also strong
commonality in the nature of the claimed defect -- fire safety
hazards in HVAC return systems -- such that this requirement for a
class action to be certified is readily satisfied.
The Appellate Court ruling stated that the trial court properly
exercised its discretion in finding that "there is obviously great
judicial economy to be realized through having these issues
decided in one proceeding rather than hundreds of proceedings."
Furthermore, the Appellate Court held that potential individual
class members are unlikely to discover and then file a potentially
expensive arbitration claim against defendants. Given the common
factual and legal issues, it promotes efficiency to have such
issues decided in one proceeding. In the interests of fairness to
class members, it is important to have the issues decided together
in one forum to ensure consistency. Such a method is not unfair to
defendants. . . . there can be little doubt that a class action is
a better method than individual arbitration for adjudicating class
members' claims in this case.
Gary A. Wilson, Esq. -- gwilson@postschell.com -- John W.
Dornberger, Esq. -- jdornberger@postschell.com -- and Lee H.
Eckell, Esq. -- leckell@postschell.com -- at Post & Schell, P.C.
represented the Appellant.
James C. Shah, Esq. -- jshah@classactioncounsel.com -- at Shepherd
Finkelman Miller & Shah, LLC and John W. Trimble, Jr., Esq., at
Trimble & Armano represented the Respondents.
Christopher R. Gibson, Esq. -- cgibson@archerlaw.com -- and
Benjamin D. Morgan, Esq. -- bmorgan@archerlaw.com -- at Archer &
Greiner PC, represented Weyerhaeuser Company.
The case is MIKE D'ANDREA and TRACY D'ANDREA, on behalf of
themselves and all other persons similarly situated, Plaintiffs-
Respondents, v. K. HOVNANIAN, HOVNANIAN ENTERPRISE, INC., K.
HOVNANIAN VENTURE I, LLC, Defendants-Appellants, NO. A-4404-11T4.
A copy of the Appellate Court's June 18, 2013 Decision is
available at http://is.gd/0ezgMcfrom Leagle.com.
HSBC FINANCE: Expects Up to $2.17BB Charge in "Jaffe" Action
------------------------------------------------------------
The current range of a possible final judgment in Jaffe v.
Household International, Inc., et al., prior to imposition of
prejudgment interest (if any), is between approximately $1.45
billion and $2.17 billion, according to HSBC Finance Corporation's
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
As a result of an August 2002 restatement of previously reported
consolidated financial statements and other corporate events,
including the 2002 settlement with 46 states and the District of
Columbia relating to real estate lending practices, Household
International and certain former officers were named as defendants
in a class action lawsuit, Jaffe v. Household International, Inc.,
et al. (N.D. Ill. No. 02 C5893), filed August 19, 2002.
The complaint asserted claims under Sec. 10 and Sec. 20 of the
Securities Exchange Act of 1934. Ultimately, a class was certified
on behalf of all persons who acquired and disposed of Household
International common stock between July 30, 1999 and October 11,
2002. The claims alleged that the defendants knowingly or
recklessly made false and misleading statements of material fact
relating to Household's Consumer Lending operations, including
collections, sales and lending practices, some of which ultimately
led to the 2002 state settlement agreement, and facts relating to
accounting practices evidenced by the restatement.
A jury trial concluded in April 2009, which was decided partly in
favor of the plaintiffs. Following post-trial briefing, the
District Court ruled that various legal challenges to the verdict,
including as to loss causation and other matters, would not be
considered until after a second phase of the proceedings
addressing issues of reliance and the submission of claims by
class members had been completed.
The District Court ruled in November 2010 that claim forms should
be mailed to class members, to ascertain which class members may
have claims for damages arising from reliance on the misleading
statements found by the jury. The District Court also set out a
method for calculating damages for class members who filed claims.
As previously reported, lead plaintiffs, in court filings in March
2010, estimated that damages could range 'somewhere between $2.4
billion to $3.2 billion to class members', before pre-judgment
interest.
In December 2011, the report of the Court-appointed claims
administrator to the District Court stated that the total number
of claims that generated an allowed loss was 45,921, and that the
aggregate amount of these claims was approximately $2.23 billion.
Defendants filed legal challenges asserting that the presumption
of reliance was defeated as to the class and raising various
objections with respect to compliance with the claims form
requirements as to certain claims.
In September 2012, the District Court rejected defendants'
arguments that the presumption of reliance generally had been
defeated either as to the class or as to particular institutional
claimants.
In addition, the District Court has made various rulings with
respect to the validity of specific categories of claims, and held
certain categories of claims valid, certain categories of claims
invalid, and directed further proceedings before a court-appointed
Special Master to address objections regarding certain other claim
submission issues.
In light of those rulings and through various agreements of the
parties, currently there is approximately $1.45 billion in claims
as to which there remain no unresolved objections relating to the
claims form submissions. In addition, approximately $720 million
in claims remain to be addressed before the Special Master with
respect to various claims form objections, with a small portion of
those potentially subject to further trial proceedings.
Therefore, based upon proceedings to date, the current range of a
possible final judgment, prior to imposition of prejudgment
interest (if any), is between approximately $1.45 billion and
$2.17 billion. The District Court may wait for a resolution of all
disputes as to all claims before entering final judgment, or the
District Court may enter a partial judgment on fewer than all
claims pending resolution of disputes as to the remaining claims.
Post-verdict legal challenges remain to be addressed by the
District Court.
HSBC FINANCE: Continues to Face Suit Over Lender-Placed Insurance
-----------------------------------------------------------------
HSBC U.S. entities are facing several putative class actions
related to lender-placed insurance according to HSBC Finance
Corporation's May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
Between June 2011 and April 2013, several putative class actions
related to lender-placed insurance were filed against various HSBC
U.S. entities, including actions against one or more of the
company's subsidiaries captioned Montanez et al v. HSBC Mortgage
Corporation (USA) et al. (E.D. Pa. No. 11-CV-4074); West et al. v.
HSBC Mortgage Corporation (USA) et al. (South Carolina Court of
Common Pleas, 14th Circuit No. 12-CP-00687); Weller et al. v. HSBC
Mortgage Services, Inc. et al. (D. Col. No. 13-CV-00185); Hoover
et al. v. HSBC Bank USA, N.A. et al. (N.D.N.Y. 13-CV-00149); and
Lopez v. HSBC Bank USA, N.A. et al. (S.D. Fla. 13-CV-21104).
These actions relate primarily to industry-wide practices, and
include allegations regarding the relationships and potential
conflicts of interest between the various entities that place the
insurance, the value and cost of the insurance that is placed,
back-dating policies to the date the borrower allowed it to lapse,
self-dealing and insufficient disclosure.
A recent routine state examination of the company's mortgage
servicing practices concluded that borrowers were overcharged for
lender-placed hazard insurance coverage based on the terms of the
underlying mortgages during the period from July 2008 through
April 2012, and required the company to refund excess premiums
charged to impacted borrowers in that state.
The company stated: "In the first quarter of 2012, we recorded an
accrual reflecting the company's estimate of premiums that will be
refunded to the impacted borrowers as well as borrowers in other
states who may have similar contractual claims. In December 2012,
we entered into an agreement with the NYDFS to refund premiums to
borrowers in the State of New York who may have contractual claims
and, in January 2013, we initiated a nationwide refund program to
borrowers who may have similar contractual claims."
HSBC FINANCE: TCPA Suits in Discovery, Settlement Talks
-------------------------------------------------------
Lawsuits alleging violations by HSBC entities of the Telephone
Consumer Protection Act are in various stages of discovery and/or
settlement discussions, according to HSBC Finance Corporation's
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Between May 2012 and January 2013, two substantially similar
putative class actions were filed against various HSBC U.S.
entities, including actions against the company or one or more of
the company's subsidiaries: Mills & Wilkes v. HSBC Bank Nevada,
N.A., HSBC Card Services, Inc., HSBC Mortgage Services, Inc. HSBC
Auto Finance, Inc. & HSBC Consumer Lending (USA), Inc., Case No.:
12-cv-04010-MEJ (N.D. Cal.); McDonald v. HSBC Bank USA, N.A., Case
No. 37-2012-00058369-CU-MC-NC; and Comstock v. HSBC Bank U.S.A,
N.A., Case No. 12-cv-0001-CAB-JMA (S.D. Cal.).
A number of individual actions also have been filed. The
plaintiffs in these actions allege that the HSBC defendants
contacted them, or the members of the class they seek to
represent, on their cellular telephones using an automatic
telephone dialing system and/or an artificial or prerecorded
voice, without their express consent, in violation of the
Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 et seq.
("TCPA").
Plaintiffs seek statutory damages for alleged negligent and
willful violations of the TCPA, attorneys' fees, costs and
injunctive relief. The TCPA provides for statutory damages of $500
for each violation ($1,500 for willful violations).
The parties currently are engaged in discovery in Mills. The
Comstock matter has been resolved with the plaintiff on an
individual basis for an immaterial amount. The other actions are
in various stages of discovery and/or settlement discussions.
HSBC FINANCE: Settlement for Card Interchange Fee Suit in Escrow
----------------------------------------------------------------
Pursuant to the class settlement agreement and the Sharing
Agreements in In re Payment Card Interchange Fee and Merchant
Discount Antitrust Litigation, MDL 1720, E.D.N.Y. ("MDL 1720"),
HSBC Finance Corporation deposited its portion of the class
settlement amount into an escrow account for payment in the event
the class settlement is finally approved, according to HSBC's May
7, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
Since June 2005, HSBC Bank USA, HSBC Finance Corporation, HSBC
North America and HSBC, as well as other banks and Visa Inc. and
MasterCard Incorporated, have been named as defendants in four
class actions filed in Connecticut and the Eastern District of New
York: Photos Etc. Corp. et al v. Visa U.S.A., Inc., et al.(D.
Conn. No. 3:05-CV-01007 (WWE)); National Association of
Convenience Stores, et al. v. Visa U.S.A., Inc., et al.(E.D.N.Y.
No. 05-CV 4520 (JG)); Jethro Holdings, Inc., et al. v. Visa
U.S.A., Inc. et al. (E.D.N.Y. No. 05-CV-4521(JG)); and American
Booksellers Asps' v. Visa U.S.A., Inc. et al. (E.D.N.Y. No. 05-CV-
5391 (JG)).
Numerous other complaints containing similar allegations (in which
no HSBC entity is named) were filed across the country against
Visa Inc., MasterCard Incorporated and other banks.
Various individual (non-class) actions were also brought by
merchants against Visa Inc., and MasterCard Incorporated. These
class and individual merchant actions principally allege that the
imposition of a no-surcharge rule by the associations and/or the
establishment of the interchange fee charged for credit card
transactions causes the merchant discount fee paid by retailers to
be set at supracompetitive levels in violation of the Federal
antitrust laws.
These suits were consolidated and transferred to the Eastern
District of New York. The consolidated case is: In re Payment Card
Interchange Fee and Merchant Discount Antitrust Litigation, MDL
1720, E.D.N.Y. ("MDL 1720"). On February 7, 2011, MasterCard
Incorporated, Visa Inc., the other defendants, including HSBC
Finance Corporation, and certain affiliates of the defendants
entered into settlement and judgment sharing agreements (the
"Sharing Agreements") that provide for the apportionment of
certain defined costs and liabilities that the defendants,
including HSBC Finance Corporation and the company's affiliates,
may incur, jointly and/or severally, in the event of an adverse
judgment or global settlement of one or all of these actions.
The parties engaged in a mediation process and the putative class
plaintiffs filed a class settlement agreement with the District
Court on October 19, 2012, and the District Court entered an order
preliminarily approving the class settlement on November 27, 2012.
The class settlement is subject to final approval by the District
Court. Pursuant to the class settlement agreement and the Sharing
Agreements, we have deposited the company's portion of the class
settlement amount into an escrow account for payment in the event
the class settlement is approved.
On October 22, 2012, a settlement agreement with the individual
merchant plaintiffs became effective, and pursuant to the Sharing
Agreements the company have deposited the company's portion of
that settlement amount into an escrow account.
HSBC FINANCE: Continues to Deal With Debt Cancellation Litigation
-----------------------------------------------------------------
HSBC Finance Corporation provides updates on lawsuits filed by
cardholders who enrolled in debt cancellation or suspension
products and are challenging various marketing or administrative
practices relating to those products, in its May 7, 2013, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Between July 2010 and May 2011, eight substantially similar
putative class actions were filed against the company's
subsidiaries, HSBC Bank Nevada, N.A. ("HSBC Bank Nevada") and HSBC
Card Services Inc.: Rizera et al v. HSBC Bank Nevada et al.
(D.N.J. No. 10-CV-03375); Esslinger et al v. HSBC Bank Nevada,
N.A. et al. (E.D. Pa. No. 10-CV-03213); McAlister et al. v. HSBC
Bank Nevada, N.A. et al. (W.D. Wash. No. 10-CV-05831); Mitchell v.
HSBC Bank Nevada, N.A. et al. (D. Md. No. 10-CV-03232); Samuels v.
HSBC Bank Nevada, N.A. et al. (N.D. III. No. 11-CV-00548);
McKinney v. HSBC Card Services et al. (S.D. III. No. 10-CV-00786);
Chastain v. HSBC Bank Nevada, N.A. (South Carolina Court of Common
Pleas, 13th Circuit) (filed as a counterclaim to a pending
collections action); Colton et al. v. HSBC Bank Nevada, N.A. et
al. (C.D. Ca. No. 11-CV-03742).
These actions principally allege that cardholders were enrolled in
debt cancellation or suspension products and challenge various
marketing or administrative practices relating to those products.
The plaintiffs' claims include breach of contract and the implied
covenant of good faith and fair dealing, unconscionability, unjust
enrichment, and violations of state consumer protection and
deceptive acts and practices statutes.
The Mitchell action was withdrawn by the plaintiff in March 2011.
In July 2011, the parties in Rizera, Esslinger, McAlister,
Samuels, McKinney and Colton executed a memorandum of settlement
and subsequently submitted the formal settlement on a consolidated
basis for approval by the United States District Court for the
Eastern District of Pennsylvania in the Esslinger matter.
In February 2012, the District Court granted preliminary approval
of the settlement. The plaintiff in Chastain appealed the District
Court's preliminary approval order. The appellate court dismissed
that appeal.
On October 1, 2012, the District Court held a hearing for final
approval of the settlement in the Esslinger matter. Several
objectors to the settlement appeared at the hearing, including
representatives for the Attorneys General in West Virginia, Hawaii
and Mississippi, where they asserted that claims brought in those
Attorneys General's lawsuits (discussed below) should not be
covered by the release in the Esslinger matter.
In November 2012, the District Court entered a final approval
order confirming the settlement. In its accompanying memorandum,
the District Court noted that claims belonging solely to the
states are not impacted by the settlement, but that claims brought
by the Attorneys General seeking recovery for class members are
precluded by the Esslinger settlement. Chastain and two other
class members filed notices of appeal of the final approval order.
Two of the three appeals were dismissed on motion including
Chastain. The third appeal remains pending.
In October 2011, the Attorney General for the State of West
Virginia filed a purported class action in the Circuit Court of
Mason County, West Virginia, captioned State of West Virginia ex
rel. Darrell V. McGraw, Jr. et al v. HSBC Bank Nevada, N.A. et al.
(No. 11-C-93-N), alleging similar claims in connection with the
marketing, selling and administering of ancillary services,
including debt cancellation and suspension products to consumers
in West Virginia.
In September 2012, the Attorney General filed an amended complaint
adding the company's affiliate, HSBC Bank USA, N.A, as a
defendant. In addition to damages, the Attorney General is seeking
civil money penalties and injunctive relief.
The action was initially removed to Federal court. The Attorney
General's motion to remand to State court was granted and the
company filed a motion to dismiss the complaint in March 2012. The
motion to dismiss was denied and discovery is ongoing. In late
2011, the company received an information request regarding the
same products from another state's Attorney General, although no
action has yet been filed in that state.
In April 2012, the Attorney General for the State of Hawaii filed
lawsuits against seven major credit card companies, including
certain of the company's subsidiaries, in the Circuit Court of the
First Circuit for the State of Hawaii, captioned State of Hawaii
ex rel David Louie, Attorney General v. HSBC Bank Nevada N.A. and
HSBC Card Services, Inc., et al. (No. 12-1-0983-04), alleging
claims that are substantially the same as those asserted in the
Esslinger and related matters discussed above, in connection with
the marketing, selling and administering of ancillary services,
including debt cancellation and suspension products to consumers
in Hawaii.
The relief sought includes an injunction against deceptive and
unfair practices, restitution and disgorgement of profits, and
civil monetary penalties. The action was removed to Federal court
in May 2012. In June 2012, the Attorney General filed a motion to
remand, which was subsequently denied. The Attorney General then
withdrew its pending motion to consolidate the actions and filed a
motion to certify the denial of its remand motion for
interlocutory appeal. The motion for permission to appeal has been
granted.
In June 2012, the Attorney General for the State of Mississippi
filed complaints against six credit card companies, including the
company's subsidiaries HSBC Bank Nevada and HSBC Card Services
Inc. and the company's affiliate HSBC Bank USA, N.A. In an action
captioned Jim Hood, Attorney General of the State of Mississippi,
ex. rel. The State of Mississippi v. HSBC Bank Nevada, N.A., HSBC
Card Services, Inc., and HSBC Bank USA, N.A., the Attorney General
alleges claims that are substantially the same as those asserted
in the Esslinger and related matters, in connection with the
marketing, selling and administering of ancillary services,
including debt cancellation and suspension products to consumers
in Mississippi.
The relief sought includes injunction against deceptive and unfair
practices, disgorgement of profits, and civil money penalties. In
August 2012, this action was removed to Federal court and the
Attorney General filed a motion to remand. Briefing on the
Attorney General's motion to remand has been completed and the
motion remains pending.
IGNITE RESTAURANT: Still Faces Securities Lawsuit in Texas
----------------------------------------------------------
Ignite Restaurant Group, Inc. continues to face a securities
lawsuit filed in the U.S. District Court for the Southern District
of Texas, according to the company's May 7, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
On July 18, 2012, the company announced its intention to restate
financial statements for the years ended December 28, 2009,
January 3, 2011 and January 2, 2012 and the related interim
periods.
On July 20, 2012, a putative class action complaint was filed in
the U.S. District Court for the Southern District of Texas against
us, certain of the company's current directors and officers and
the underwriters in the initial public offering ("IPO").
The plaintiffs allege that all the defendants violated Section 11
of the Securities Act of 1933 (the "Securities Act") and certain
of the company's directors and officers have control person
liability under Section 15 of the Securities Act, based on
allegations that in light of the July 18, 2012 restatement
announcement, the company's IPO registration statement and
prospectus contained untrue statements of material facts, omitted
to state other facts necessary to make the statements made therein
not misleading, and omitted to state material facts required to be
stated therein.
The plaintiffs seek unspecified compensatory damages and
attorneys' fees.
KOLCRAFT ENTERPRISES: Recalls 96,510 Jeep Liberty Strollers
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in conjunction with
Health Canada and in cooperation with Kolcraft Enterprises Inc.,
of Chicago, Illinois, announced a voluntary recall of about 96,000
Jeep Liberty Strollers in the United States of America and about
510 in Canada. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The inner tube of the tire on the stroller can rupture causing the
wheel rim to fracture and fly off as a projectile, posing a risk
of bodily injury and property damage.
Kolcraft and the CPSC have received 39 reports of inner tube
ruptures causing the wheel rim to fracture and fly off as a
projectile. Of these, 18 included reports of injury, with 14
occurring while filling the tire with air by adult caregivers.
Two children received lacerations to their chin or leg while
standing near the stroller and 16 adults received abrasions,
contusions and/or lacerations to their arms, legs, stomach or
head/face. Two of the reports included property damage.
The recall includes Jeep Liberty branded strollers with model
numbers starting with JL031, JL032, JL034, JL035 or JL036
manufactured between June 2010 and September 2011. The model
number and date of manufacture are printed on a white tag on the
rear upper center of each seatback pad. The three-wheeled
strollers were sold in different color fabric combinations with a
metal black and silver frame including: green seat and canopy;
gray seat and canopy with a teal blue stripe across the center of
the canopy; orange seat and canopy with a tan stripe; tan seat and
canopy with yellow stripe across the center top of the canopy; and
tan seat and canopy with an orange canopy rim. "Jeep" is printed
on the side of the stroller and on the front of the stroller tray.
There is a plastic red toy steering wheel, ignition key and orange
shift lever mounted on a yellow base attached to the stroller
tray. If your stroller wheels have a gray triangle located on the
rim at the valve stem then your stroller wheels are not included
in this recall. Pictures of the recalled products are available
at: http://is.gd/g4WW4v
The recalled products were manufactured in China and sold at
Burlington Coat Factory, Sears and Toys R Us nationwide, online
and at other mass market and independent juvenile specialty stores
from June 2010 through June 2013 for between $150 and $180.
Consumers should immediately stop using the product and contact
the company to receive free replacement wheels. Consumers should
use a manual bicycle pump to inflate stroller tires to a maximum
of 30 p.s.i. Do not use gas station air pumps to inflate stroller
tires. Kolcraft may be reached at (800) 453-7673 from 8:00 a.m.
to 5:00 p.m. Eastern Time Monday through Friday or online at
http://www.Kolcraft.com/then click Safety Notifications for more
information.
LAS VEGAS SANDS: Securities Class Suit Reassigned to New Judge
--------------------------------------------------------------
The consolidated securities class action lawsuit against Las Vegas
Sands Corp. was reassigned to a new judge in April 2013, according
to the Company's May 10, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
On May 24, 2010, Frank J. Fosbre, Jr. filed a purported class
action complaint in the United States District Court for the
District of Nevada (the "U.S. District Court"), against LVSC,
Sheldon G. Adelson, and William P. Weidner. The complaint alleged
that LVSC, through the individual defendants, disseminated or
approved materially false information, or failed to disclose
material facts, through press releases, investor conference calls
and other means from August 1, 2007, through November 6, 2008.
The complaint sought, among other relief, class certification,
compensatory damages and attorneys' fees and costs. On July 21,
2010, Wendell and Shirley Combs filed a purported class action
complaint in the U.S. District Court, against LVSC, Sheldon G.
Adelson, and William P. Weidner. The complaint alleged that LVSC,
through the individual defendants, disseminated or approved
materially false information, or failed to disclose material
facts, through press releases, investor conference calls and other
means from June 13, 2007, through November 11, 2008. The
complaint, which was substantially similar to the Fosbre
complaint, sought, among other relief, class certification,
compensatory damages and attorneys' fees and costs. On August 31,
2010, the U.S. District Court entered an order consolidating the
Fosbre and Combs cases, and appointed lead plaintiffs and lead
counsel. As such, the Fosbre and Combs cases are reported as one
consolidated matter.
On November 1, 2010, a purported class action amended complaint
was filed in the consolidated action against LVSC, Sheldon G.
Adelson and William P. Weidner. The amended complaint alleges
that LVSC, through the individual defendants, disseminated or
approved materially false and misleading information, or failed to
disclose material facts, through press releases, investor
conference calls and other means from August 2, 2007, through
November 6, 2008. The amended complaint seeks, among other
relief, class certification, compensatory damages and attorneys'
fees and costs. On January 10, 2011, the defendants filed a
motion to dismiss the amended complaint, which, on August 24,
2011, was granted in part, and denied in part, with the dismissal
of certain allegations.
On November 7, 2011, the defendants filed their answer to the
allegations remaining in the amended complaint. On July 11, 2012,
the U.S. District Court issued an order allowing the Defendants'
Motion for Partial Reconsideration of the Court's Order dated
August 24, 2011, striking additional portions of the plaintiff's
complaint and reducing the class period to a period of February 4,
to November 6, 2008. On August 7, 2012, the plaintiff filed a
purported class action second amended complaint (the "Second
Amended Complaint") seeking to expand their allegations back to a
time period of 2007 (having previously been cut back to 2008 by
the U.S. District Court) essentially alleging very similar matters
that had been previously stricken by the U.S. District Court. On
October 16, 2012, the defendants filed a new motion to dismiss the
Second Amended Complaint. The plaintiffs responded to the motion
to dismiss on November 1, 2012, and the defendants filed their
reply on November 12, 2012. On November 20, 2012, the U.S.
District Court granted a stay of discovery under the Private
Securities Litigation Reform Act pending a decision on the new
motion to dismiss and, therefore, the discovery process has been
suspended.
On April 16, 2013, the case was reassigned to a new judge. This
consolidated action is in a preliminary stage and management has
determined that based on proceedings to date, it is currently
unable to determine the probability of the outcome of this matter
or the range of reasonably possible loss, if any. The Company
intends to defend this matter vigorously.
Las Vegas Sands Corp. -- http://www.lasvegassands.com/-- was
incorporated as a Nevada corporation in August 2004 and is
headquartered in Las Vegas, Nevada. Las Vegas Sands is a Fortune
500 company and a global developer of destination properties
(integrated resorts) that feature premium accommodations, world-
class gaming, entertainment and retail, convention and exhibition
facilities, celebrity chef restaurants and other amenities. The
Company currently owns and operates integrated resorts in Asia and
the United States.
LIVE NATION: Reaches New Accord in Ticketing Fees Consumer Suit
---------------------------------------------------------------
Parties in a suit over shipping fees charged to online customers
by Ticketmaster, the ticketing platform of Live Nation
Entertainment, Inc., have agreed in principle on the terms of a
revised settlement, and the Company has accrued $35.4 million as
probable costs as of March 31, 2013, according to Live Nation's
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In October 2003, a putative representative action was filed in the
Superior Court of California challenging Ticketmaster's charges to
online customers for shipping fees and alleging that its failure
to disclose on its website that the charges contain a profit
component is unlawful.
The complaint asserted a claim for violation of California's
Unfair Competition Law ("UCL") and sought restitution or
disgorgement of the difference between (i) the total shipping fees
charged by Ticketmaster in connection with online ticket sales
during the applicable period, and (ii) the amount that
Ticketmaster actually paid to the shipper for delivery of those
tickets.
In August 2005, the plaintiffs filed a first amended complaint,
then pleading the case as a putative class action and adding the
claim that Ticketmaster's website disclosures in respect of its
ticket order processing fees constitute false advertising in
violation of California's False Advertising Law. On this new
claim, the amended complaint seeks restitution or disgorgement of
the entire amount of order processing fees charged by Ticketmaster
during the applicable period.
In April 2009, the Court granted the plaintiffs' motion for leave
to file a second amended complaint adding new claims that (a)
Ticketmaster's order processing fees are unconscionable under the
UCL, and (b) Ticketmaster's alleged business practices further
violate the California Consumer Legal Remedies Act. Plaintiffs
later filed a third amended complaint, to which Ticketmaster filed
a demurrer in July 2009. The Court overruled Ticketmaster's
demurrer in October 2009.
The plaintiffs filed a class certification motion in August 2009,
which Ticketmaster opposed. In February 2010, the Court granted
certification of a class on the first and second causes of action,
which allege that Ticketmaster misrepresents/omits the fact of a
profit component in Ticketmaster's shipping and order processing
fees. The class would consist of California consumers who
purchased tickets through Ticketmaster's website from 1999 to
present. The Court denied certification of a class on the third
and fourth causes of action, which allege that Ticketmaster's
shipping and order processing fees are unconscionably high.
In March 2010, Ticketmaster filed a Petition for Writ of Mandate
with the California Court of Appeal, and plaintiffs also filed a
motion for reconsideration of the Superior Court's class
certification order. In April 2010, the Superior Court denied
plaintiffs' Motion for Reconsideration of the Court's class
certification order, and the Court of Appeal denied Ticketmaster's
Petition for Writ of Mandate.
In June 2010, the Court of Appeal granted the plaintiffs' Petition
for Writ of Mandate and ordered the Superior Court to vacate its
February 2010 order denying plaintiffs' motion to certify a
national class and enter a new order granting plaintiffs' motion
to certify a nationwide class on the first and second claims. In
September 2010, Ticketmaster filed its Motion for Summary Judgment
on all causes of action in the Superior Court, and that same month
plaintiffs filed their Motion for Summary Adjudication of various
affirmative defenses asserted by Ticketmaster. In November 2010,
Ticketmaster filed its Motion to Decertify Class.
In December 2010, the parties entered into a binding agreement
providing for the settlement of the litigation and the resolution
of all claims therein. In September 2011, the Court declined to
approve the settlement in its then-current form. Litigation
continued, and in September 2011, the Court granted in part and
denied in part Ticketmaster's Motion for Summary Judgment. The
parties reached a new settlement in September 2011, which was
approved preliminarily, but in September 2012 the Court declined
to grant final approval.
The parties have agreed in principal on the terms of a revised
settlement and intend to present those terms to the court for
preliminary approval upon execution of a long-form settlement
agreement. Ticketmaster and its parent, Live Nation, have not
acknowledged any violations of law or liability in connection with
the matter.
As of March 31, 2013, the Company has accrued $35.4 million, its
best estimate of the probable costs associated with the
settlement. This liability includes an estimated redemption rate.
Any difference between the Company's estimated redemption rate and
the actual redemption rate it experiences will impact the final
settlement amount; however, the Company does not expect this
difference to be material.
LIVE NATION: Pays Out Canadian Consumer Suits Over TicketsNow
-------------------------------------------------------------
The settlement in the suits over an alleged unlawful practice of
diverting a large number of tickets for resale by ticketing
platforms of Live Nation Entertainment, Inc. in Canada was paid in
January 2013, the company disclosed in its May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
In February 2009, four putative consumer class action complaints
were filed in various provinces of Canada against TicketsNow,
Ticketmaster, Ticketmaster Canada Ltd. and Premium Inventory, Inc.
All of the cases allege essentially the same set of facts and
causes of action.
Each plaintiff purports to represent a class consisting of all
persons who purchased a ticket from Ticketmaster, Ticketmaster
Canada Ltd. or TicketsNow from February 2007 to present and
alleges that Ticketmaster conspired to divert a large number of
tickets for resale through the TicketsNow website at prices higher
than face value.
The plaintiffs characterize these actions as being in violation of
Ontario's Ticket Speculation Act, the Amusement Act of Manitoba,
the Amusement Act of Alberta or the Quebec Consumer Protection
Act. The Ontario case contains the additional allegation that
Ticketmaster's and TicketsNow's service fees violate anti-scalping
laws. Each lawsuit seeks compensatory and punitive damages on
behalf of the class.
In February 2012, the parties entered into a settlement agreement
that will resolve all of the resale market claims. The court
approval process for the settlement has been completed, with final
approvals given in all provinces. The settlement was paid in
January 2013, the full amount of which was funded by an escrow
established in connection with Ticketmaster's 2008 acquisition of
TicketsNow.
LOUISIANA-PACIFIC: Still Faces Suits Over Hardboard Trim
--------------------------------------------------------
Louisiana-Pacific Corporation continues to face various lawsuits
related to nontreated hardboard trim product in the United States
District Courts, according to the company's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
The company was named in four putative class action lawsuits filed
against the company in United States District Courts during the
first quarter of 2012 related to nontreated hardboard trim product
formerly manufactured at the company's Roaring River, North
Carolina hardboard plant: Brown v. Louisiana-Pacific Corporation.,
Case No. 4:12-CV-00102-RP-TJS (S.D. Iowa) (filed March 8, 2012, as
a state-wide putative class); Holbrook v. Louisiana-Pacific
Corporation, et al., Case No. 3:12-CV-00484-JGC (N.D. Ohio) (filed
February 28, 2012, as a state-wide putative class); Bristol
Village Inc. v. Louisiana-Pacific Corporation, et al., Case No.
1:12-CV-00263 (W.D.N.Y.) (filed March 30, 2012, as a state-wide
putative class or, alternatively, as a nation-wide putative class)
and Prevett v. Louisiana-Pacific, Case No. 6:12-CV-348-ORL-18-KRS
(M.D. Fla) (filed March 5, 2012, as a state-wide putative class).
The Prevett v. Louisiana Pacific lawsuit was voluntarily dismissed
by the plaintiffs on May 31, 2012. This lawsuit was replaced by
Riley v. Louisiana-Pacific, Case No. 6:12-CV-00837-18 (M.D. Fla)
(filed June 4, 2012 as a state-wide putative class). A fifth
lawsuit, Eugene Lipov v. Louisiana-Pacific, Case 1:12-CV-00439-
JTN (W.D. Mich) (filed May 3, 2012) was filed as a statewide
putative class action in the second quarter of 2012.
These lawsuits follow two state-wide putative class action
lawsuits previously filed against LP in United States District
Courts: Ellis, et al. v. Louisiana-Pacific Corp., Case No. 3:11-
CV-191 (W.D.N.C.); and Hart, et al. v. Louisiana-Pacific Corp.,
Case No. 2:08-CV-00047 (E.D.N.C.). The Ellis case was dismissed by
the District Court, which dismissal was affirmed by the United
States Court of Appeals for the Fourth Circuit on November 2,
2012, and the Hart case has been certified by the District Court
as a class action.
Plaintiffs moved to combine pretrial matters through a
Multidistrict Litigation (MDL) motion, filed as In Re: Louisiana-
Pacific Corporation Trimboard Siding Marketing, Sales Practice and
Products Liability Litigation MDL No. 2366 (U.S. Judicial Panel on
Multidistrict Litigation) seeking to transfer all cases to the
Eastern District of North Carolina.
Louisiana-Pacific objected to the MDL motion and on June 11, 2012,
the MDL Panel denied plaintiffs Motion to Transfer. Subsequently,
the Holbrook case was dismissed by the District Court on August
29, 2012, which dismissal has been appealed by the plaintiffs to
the United States Court of Appeals for the Sixth Circuit.
The plaintiffs in these lawsuits seek to certify classes
consisting of all persons that own structures within the
respective states in which the lawsuit were filed (or, in some
cases, within the United States) on which the hardboard trim in
question is installed. The plaintiffs seek unspecified damages and
injunctive and other relief under various state law theories,
including negligence, violations of consumer protection laws, and
breaches of implied and express warranties, fraud, and unjust
enrichment.
MCMORAN EXPLORATION: Has MOU to Settle Securities Suit in Del.
--------------------------------------------------------------
On May 7, 2013, McMoRan Exploration Co. filed a Form 8-K with the
U.S. Securities and Exchange Commission to disclose a Memorandum
of Understanding (MOU), dated May 6, 2013, setting forth an
agreement to settle a consolidated stockholder class action
lawsuit in the Delaware Court of Chancery.
The suit is captioned In re McMoRan Exploration Co. Stockholder
Litigation, No. 8132-VCN, and relates to the Agreement and Plan of
Merger, dated as of December 5, 2012, by and among McMoRan
Exploration Co., a Delaware corporation ("MMR"), Freeport-McMoRan
Copper & Gold Inc., a Delaware corporation ("FCX") and INAVN
Corp., a Delaware corporation and wholly owned subsidiary of FCX
("MMR Merger Sub"), pursuant to which MMR Merger Sub will merge
with and into MMR, with MMR surviving the merger as a wholly owned
subsidiary of FCX (the "MMR Merger").
On May 6, 2013, solely to avoid the burden, risk and expense of
further litigation and without admitting any liability or
wrongdoing, MMR and the other named defendants in the Consolidated
Action entered into the MOU with the plaintiffs in the
Consolidated Action, which sets forth an agreement to settle the
Consolidated Action. The settlement is subject to, among other
things, the execution of a stipulation of settlement by the
parties, and final approval by the Court.
There can be no assurance that the settlement will be finalized or
that the Court will approve the settlement. Pursuant to the MOU,
MMR and/or FCX have agreed, among other things: (i) to take
certain actions with respect to the listing of the royalty trust
units (as described below); (ii) to include certain provisions in
the Trust Agreement; (iii) to make certain changes to the proposed
amendment to Article X section (k) of the amended and restated
certificate of incorporation of MMR, as described on pages v, 11,
136 and 137 of the Proxy Statement/Prospectus; and (iv) to make
certain additional disclosures concerning the MMR Merger as set
forth below. Upon final Court approval of the settlement, the
Consolidated Action will be dismissed with prejudice and all
defendants will be released from any and all claims concerning the
MMR Merger as described in the MOU.
METLIFE INC: Plaintiffs Appeal Dismissal of N.Y. Securities Suit
----------------------------------------------------------------
Plaintiffs in City of Westland Police and Fire Retirement System
v. MetLife, Inc., et. al. (S.D.N.Y., filed January 12, 2012) are
appealing a dismissal of the case, according to the company's
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
Seeking to represent a class of persons who purchased MetLife,
Inc. common shares between February 2, 2010, and October 6, 2011,
the plaintiff filed an action alleging that MetLife, Inc. and
several current and former executive officers of MetLife, Inc.
violated the Securities Act of 1933, as well as the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
issuing, or causing MetLife, Inc. to issue, materially false and
misleading statements concerning MetLife, Inc.'s potential
liability for millions of dollars in insurance benefits that
should have been paid to beneficiaries or escheated to the states.
Plaintiff seeks unspecified compensatory damages and other relief.
On February 28, 2013, the Court issued an order granting
defendants' motion to dismiss plaintiff's claims under the
Securities Exchange Act of 1934 but denying defendants' motion to
dismiss plaintiff's claims under the Securities Act of 1933.
Plaintiff has moved for leave to file an amended complaint
that will include a revised claim for violation of the Securities
Exchange Act of 1934. The defendants intend to vigorously defend
this action.
METLIFE INC: Plaintiff Wants Stock Suit Returned to State Court
---------------------------------------------------------------
The plaintiff in City of Birmingham Retirement and Relief System
v. MetLife, Inc., et al. has moved to remand the action to state
court, according to the company's May 7, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
The suit in N.D. Alabama was filed in state court on July 5, 2012
and removed to federal court on August 3, 2012.
Seeking to represent a class of persons who purchased MetLife,
Inc. common equity units in or traceable to a public offering in
March 2011, the plaintiff filed an action alleging that MetLife,
Inc., certain current and former directors and executive officers
of MetLife, Inc., and various underwriters violated several
provisions of the Securities Act of 1933 related to the filing of
the registration statement by issuing, or causing MetLife, Inc. to
issue, materially false and misleading statements and/or omissions
concerning MetLife, Inc.'s potential liability for millions of
dollars in insurance benefits that should have been paid to
beneficiaries or escheated to the states.
Plaintiff seeks unspecified compensatory damages and other relief.
Defendants removed this action to federal court, and plaintiff has
moved to remand the action to state court. The defendants intend
to defend this action vigorously.
METLIFE INC: "Keife" & "Simon" Plaintiffs Appeal to 9th Cir.
------------------------------------------------------------
Plaintiffs in Keife, et al. v. Metropolitan Life Insurance Company
(D. Nev.) and Simon v. Metropolitan Life Insurance Company (D.
Nev.) are appealing a summary judgment to the United States Court
of Appeals for the Ninth Circuit, according to the company's May
7, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
Keife, et al. v. Metropolitan Life Insurance Company was filed in
state court on July 30, 2010 and removed to federal court on
September 7, 2010); and Simon v. Metropolitan Life Insurance
Company was filed November 3, 2011.
These putative class action lawsuits, which have been
consolidated, raise breach of contract claims arising from MLIC's
use of the Total Control Accounts (TCA) to pay life insurance
benefits under the Federal Employees' Group Life Insurance
program.
On March 8, 2013, the court granted MLIC's motion for summary
judgment. Plaintiffs have appealed that decision to the United
States Court of Appeals for the Ninth Circuit.
METLIFE INC: $10.5MM Settlement in "Roberts" Suit Has Final OK
--------------------------------------------------------------
A $10.5 million settlement of the suit Roberts, et al. v. Tishman
Speyer Properties, et al. (Sup. Ct., N.Y. County, filed January
22, 2007) got a final court approval, according to MetLife Inc.'s
May 7, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
This lawsuit was filed by a putative class of market rate tenants
at Stuyvesant Town and Peter Cooper Village against parties
including Metropolitan Tower Life Insurance Company ("MTL"). These
tenants claimed that MTL, as former owner, and the current owner
improperly deregulated apartments while receiving J-51 tax
abatements.
The lawsuit sought declaratory relief and damages for rent
overcharges. On November 26, 2012, the court preliminarily
approved a proposed settlement, to include payment by MTL of $10.5
million.
After notice to class members and a fairness hearing, on April 10,
2013, the Court issued an order approving the settlement and a
judgment dismissing the case. The Company believes adequate
provision has been made in its consolidated financial statements
for all probable and reasonably estimable losses for this lawsuit.
METLIFE INC: Retired GM Employees Appeal Dismissal of Lawsuit
-------------------------------------------------------------
Plaintiffs in Merrill Haviland, et al. v. Metropolitan Life
Insurance Company (E.D. Mich., removed to federal court on July
22, 2011) are appealing a dismissal of the case to the United
States Court of Appeals for the Sixth Circuit, according to
MetLife Inc.'s May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
This lawsuit was filed by 45 retired General Motors ("GM")
employees against MLIC and the amended complaint includes claims
for conversion, unjust enrichment, breach of contract, fraud,
intentional infliction of emotional distress, fraudulent insurance
acts, unfair trade practices, and Employee Retirement Income
Security Act of 1974 ("ERISA") claims based upon GM's 2009
reduction of the employees' life insurance coverage under GM's
ERISA-governed plan.
The complaint includes a count seeking class action status. MLIC
is the insurer of GM's group life insurance plan and administers
claims under the plan.
According to the complaint, MLIC had previously provided
plaintiffs with a "written guarantee" that their life insurance
benefits under the GM plan would not be reduced for the rest of
their lives. On June 26, 2012, the district court granted MLIC's
motion to dismiss the complaint. Plaintiffs have appealed that
decision to the United States Court of Appeals for the Sixth
Circuit.
METLIFE INC.: Parties Appeal Ruling in Sun Life Canada Suit
-----------------------------------------------------------
MetLife Inc. provided updates on Sun Life Assurance Company of
Canada v. Metropolitan Life Ins. Co. (Super. Ct., Ontario, October
2006) in its May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
In 2006, Sun Life Assurance Company of Canada ("Sun Life"), as
successor to the purchaser of MLIC's Canadian operations, filed
this lawsuit in Toronto, seeking a declaration that MLIC remains
liable for "market conduct claims" related to certain individual
life insurance policies sold by MLIC and that have been
transferred to Sun Life.
Sun Life had asked that the court require MLIC to indemnify Sun
Life for these claims pursuant to indemnity provisions in the sale
agreement for the sale of MLIC's Canadian operations entered into
in June of 1998.
In January 2010, the court found that Sun Life had given timely
notice of its claim for indemnification but, because it found that
Sun Life had not yet incurred an indemnifiable loss, granted
MLIC's motion for summary judgment. Both parties appealed.
In September 2010, Sun Life notified MLIC that a purported class
action lawsuit was filed against Sun Life in Toronto, Kang v. Sun
Life Assurance Co. (Super. Ct., Ontario, September 2010), alleging
sales practices claims regarding the same individual policies sold
by MLIC and transferred to Sun Life.
An amended class action complaint in that case was served on Sun
Life, again without naming MLIC as a party. On August 30, 2011,
Sun Life notified MLIC that a purported class action lawsuit was
filed against Sun Life in Vancouver, Alamwala v. Sun Life
Assurance Co. (Sup. Ct., British Columbia, August 2011), alleging
sales practices claims regarding certain of the same policies sold
by MLIC and transferred to Sun Life.
Sun Life contends that MLIC is obligated to indemnify Sun Life for
some or all of the claims in these lawsuits. The Company is unable
to estimate the reasonably possible loss or range of loss arising
from this litigation.
Sales Practices Claims
Over the past several years, the Company has faced numerous
claims, including class action lawsuits, alleging improper
marketing or sales of individual life insurance policies,
annuities, mutual funds or other products. Some of the current
cases seek substantial damages, including punitive and treble
damages and attorneys' fees. The Company continues to vigorously
defend against the claims in these matters. The Company believes
adequate provision has been made in its consolidated financial
statements for all probable and reasonably estimable losses for
sales practices matters.
NASDAQ OMX: Reserves $10 Million for Facebook IPO Litigation
------------------------------------------------------------
The NASDAQ OMX Group, Inc. said it may pay $10 million in
connection with the potential resolution of the litigation arising
out of the Facebook Initial Public Offering and has recorded a
reserve for this amount as of March 31, 2013,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In 2012, the company became a party to several legal and
regulatory proceedings relating to the Facebook IPO that occurred
on May 18, 2012. In the company's Annual Report on Form 10-K for
the year ended December 31, 2012, the company identified the
consolidated matter pending in the United States District Court
for the Southern District of New York, captioned In re Facebook,
Inc., IPO Securities and Derivative Litigation, MDL No. 2389, in
which the company is named as a defendant.
The company also identified a statewide class action, Zack v. The
NASDAQ OMX Group, Inc. and The NASDAQ Stock Market LLC, and four
other lawsuits brought by individual investors between June 18,
2012 and October 5, 2012. Like these actions, a fifth lawsuit
commenced on February 4, 2013 by an individual investor, captioned
Womac v. The NASDAQ OMX Group, Inc. and The NASDAQ Stock Market
LLC, Civil Action No. 13-1999, which alleges negligence in
connection with the Facebook IPO.
These actions are being coordinated with the consolidated case in
the United States District Court for the Southern District of New
York.
In addition, on March 15, 2013, the company received a demand for
arbitration from a member organization, seeking indemnification
for alleged losses associated with the Facebook IPO.
The company believes that these lawsuits and the arbitration
demand are without merit and intend to defend them vigorously.
The staff of the SEC's Division of Enforcement is conducting an
investigation relating to the systems issues experienced with the
Facebook IPO. Although the Commission has not reached a final
conclusion, NASDAQ OMX may pay $10 million in connection with the
potential resolution of this matter and has recorded a reserve for
this amount as of March 31, 2013.
NEW ENGLAND COMPOUNDING: Some Tort Suits Moved to Mass. Dist. Ct.
-----------------------------------------------------------------
District Judge F. Dennis Saylor, IV, issued a Corrected Memorandum
and Order dated May 31, 2013, on the motion of the Chapter 11
Trustee for New England Compounding Pharmacy, Inc., to transfer
certain personal injury tort and wrongful death lawsuits arising
out of the administration of an injectable steroid,
methylprednisolone acetate ("MPA"), manufactured by NECC.
The complaints allege, in substance, that NECC produced
contaminated MPA that led to serious fungal infections and, in
some instances, death. As of May 6, 2013, the Centers for Disease
Control and Prevention had reported 53 deaths and 733 incidents of
fungal infection across 20 states related to injections of
contaminated MPA manufactured by NECC since October 2012.
Lawsuits alleging death or injury based on contaminated MPA have
been filed in multiple federal and state jurisdictions around the
country, including the District of Massachusetts, beginning in
November 2012. In February 2013, the Judicial Panel on
Multidistrict Litigation ("JPML") issued an order under 28 U.S.C.
Sec. 1407 transferring various federal-court proceedings to
District of Massachusetts Court for coordinated and consolidated
pretrial proceedings. Subsequent orders of the JPML have
transferred other "tag-along" cases to the Mass. District Court.
The matters transferred to the District Court typically name
additional defendants other than NECC, including certain of its
officers and shareholders and certain affiliated corporations.
After NECC filed for bankruptcy protection in December 2012, Paul
D. Moore, the bankruptcy trustee, moved to transfer all personal
injury and wrongful death cases, wherever filed, to the
Massachusetts District Court, to facilitate that process and
achieve that desirable end. The trustee thus seeks the transfer
not only of all federal cases, but of all related state cases,
regardless of the identity of the defendants. In substance, the
trustee contends that the District Court can exercise "related-to"
jurisdiction over all such matters under 28 U.S.C. Sections 1334
and 157(b), and should transfer the matters to the District of
Massachusetts.
In the Corrected ruling, Judge Saylor said:
(1) The Chapter 11 Trustee's Motion is granted as to (1)
those cases against NECC or any affiliated entity or individual
pending in federal courts, (2) those cases against NECC or any
affiliated entity or individual in the process of being removed
from state court, and (3) those cases pending in state courts in
which any party has asserted a claim (including a claim for
contribution or indemnity) against NECC or any affiliated entity
or individual. The motion is denied as to those cases pending in
state courts in which no claim against NECC or an affiliated
entity or individual has been asserted, without prejudice to its
renewal with as to those cases;
(2) Roanoke Gentry Locke Plaintiffs' Motion for Mandatory
Abstention is denied;
(3) the Defendants' Motions to Withdraw the Reference in the
following cases are granted: Shaffer et al v. Cadden, 1:13-cv-
10226-FDS Schroder et al v. New England Compounding Pharmacy,
Inc., 1:13-cv-10227-FDS Cary v. New England Compounding Pharmacy,
Inc., 1:13-cv-10228-FDS Adams v. Cadden, 1:13-cv-10229-FDS
(4) Plaintiffs' Motions to Remand in these cases are denied:
Thompson v. New England Compounding Pharmacy, Inc., 1:12-cv-12074-
FDS
Armstrong v. New England Compounding Pharmacy, Inc., 1:12-cv-
12077-FDS
Guzman v. New England Compounding Pharmacy, Inc., 1:12-cv-12208-
FDS
Devilli, et al. v. Ameridose, LLC, et al., 1:13-cv-11167-FDS
Marko v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10404-FDS
Pennington v. New England Compounding Pharmacy, Inc., et al.,
1:13-cv-10406-FDS
Hannah v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10407-FDS
Leaverton v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10408-FDS
Jones v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10409-FDS
Ramos v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10410-FDS
Rios v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10411-FDS
Rivera v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10412-FDS
Tolotti v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10413-FDS
Tayvinsky v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10414-FDS
Zavacki v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10441-FDS
Letizia v. New England Compounding Pharmacy, Inc., 1:13-cv-10442-
FDS
Gould v. New England Compounding Pharmacy, Inc., 1:13-cv-10444-FDS
Tisa v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-
10446-FDS
Normand v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10447-FDS
Radford v. New England Compounding Pharmacy, Inc., et al., 1:13-
cv-10688-FDS
Rhodes v. New England Compounding Pharmacy, Inc., 1:13-cv-10504-
FDS
(5) The Court will issue separate orders in the dockets of
the specific cases just referenced as to the motions affected by
the order.
The individuals who have been named in cases before the
Massachusetts District Court due to their positions within NECC or
affiliated entities include Barry J. Cadden, Lisa Conigliaro
Cadden, Gregory Conigliaro, Douglas Conigliaro, Carla Conigliaro,
and Glenn A. Chin. As of the date of the Court's order, these
entities have been alleged to be affiliated with NECC in cases
before the District Court: Ameridose, LLC; Medical Sales
Management, Inc.; Alaunus Pharmaceutical, LLC; GDC Properties
Management, LLC; and GDC Holdings, Inc.
Other state-court plaintiffs dismissed their claims against NECC
after the bankruptcy filing.
A copy of the Corrected Memorandum and Order is available at
http://is.gd/r3sJJRfrom Leagle.com.
Consolidated Plaintiffs represented by:
Elliot L. Olsen, Esq., Ruohonen & Associates, P.A.,
J. Scott Sexton, Esq. -- Sexton@gentrylocke.com -- at
Gentry Locke Rakes & Moore,
S. James Boumil, Esq. -- SJBoumil@Boumil-Law.com -- at
Boumil Law Offices,
Alyson L. Oliver, Esq., at Oliver Law Group PC,
Anne Andrews, Esq., at Andrews & Thornton,
Elisha N. Hawk, Esq. -- EHawk@myadvocates.com -- at
Janet Jenner & Suggs LLP,
Fredric L. Ellis, Esq., at Ellis & Rapacki,
Michael Coren, Esq. -- mcoren@cprlaw.com -- at Cohen,
Placitella & Roth, P.C.
Thomas B. Martin, Esq. -- tmartin@feldmanshepherd.com --
Feldman, Shepherd, Wholgelernter, Tanner, Dodig &
Weinstock.
Plaintiffs' Steering Committee, Plaintiffs Liaison Counsel,
represented by:
Elizabeth J. Cabraser, Esq. -- ecabraser@lchb.com -- at
Lieff, Cabraser & Heimann,
J. Gerard Stranch, IV, Esq. -- gerards@branstetterlaw.com --
at Branstetter, Stranch & Jennings, PLLC,
Kimberly A. Dougherty, Esq. -- kdougherty@myadvocates.com --
at Janet Jenner & Suggs, LLC,
Kristen Johnson Parker, Esq. -- kristenjp@hbsslaw.com -- at
Hagens Berman Sobol Shapiro LLP,
Marc E. Lipton, Esq., at Lipton Law,
Mark P. Chalos, Esq. -- mchalos@lchb.com -- at Lieff,
Cabraser, Heimann & Bernstein, LLP,
O. Mark Zamora, Esq., and Patrick Thomas Fennell, Esq., at
Crandall & Katt
Thomas M. Sobol, Esq. -- tom@hbsslaw.com -- at Hagens Berman
Sobol Shapiro LLP.
Federal-State Liaison Counsel, Plaintiffs Liaison Counsel,
represented by:
Elizabeth J. Cabraser, Esq., and Mark P. Chalos, Esq.,
at Lieff, Cabraser, Heimann & Bernstein, LLP.
Lead Counsel, Plaintiffs Liaison Counsel, represented by:
Thomas M. Sobol, Esq., and Kristen Johnson Parker, Esq.,
at Hagens Berman Sobol Shapiro LLP.
Alaunus Pharmaceutical, LLC, Defendant, represented by:
Ryan A. Ciporkin, Esq. -- rciporkin@lawson-weitzen.com --
at Lawson & Weitzen.
New England Compounding Pharmacy, Inc., Defendant, represented by:
Frederick H. Fern, Esq. -- ffern@harrisbeach.com -- at
Harris Beach PLLC,
Alan M. Winchester, Esq. -- awinchester@harrisbeach.com --
at Harris Beach, PLLC,
Daniel E. Tranen, Esq. -- dtranen@hinshawlaw.com -- at
Hinshaw & Culbertson LLP,
Geoffrey M. Coan, Esq. -- gcoan@hinshawlaw.com -- at
Hinshaw & Culbertson LLP,
Jessica Saunders Eichel, Esq. -- jeichel@harrisbeach.com
-- at Harris Beach PLLC &
Judi Abbott Curry, Esq. -- jcurry@harrisbeach.com -- at
Harris Beach, PLLC.
Ameridose LLC, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC,
Matthew P. Moriarty, Esq. -- matthew.moriarty@tuckerellis.com
-- at Tucker Ellis, LLP,
Richard A. Dean, Esq. -- richard.dean@tuckerellis.com -- at
Tucker Ellis, LLP,
Thomas W. Coffey, Esq. -- thomas.coffey@tuckerellis.com -- at
Tucker Ellis LLP,
Matthew E. Mantalos, Esq. -- mantalos@tsd-lawfirm.com -- at
Tucker, Saltzman & Dyer, LLP,
Paul Saltzman, Esq. -- saltzman@tsd-lawfirm.com -- at Tucker,
Saltzman & Dyer, LLP,
Scott H. Kremer, Esq. -- kremer@tsd-lawfirm.com -- Tucker,
Heifetz & Saltzman &
Scott J. Tucker, Esq. -- tucker@tsd-lawfirm.com -- at Tucker,
Saltzman & Dyer, LLP.
[As of January 1, 2013, Tucker, Heifetz & Saltzman, LLP became two
firms, Heifetz Rose, LLP, and Tucker, Saltzman & Dyer, LLP.]
Medical Sales Management, SW, Inc., Defendant, represented by:
Daniel M. Rabinovitz, Esq., at Michaels & Ward, LLP,
Alan M. Winchester, Esq., at Harris Beach, PLLC,
Daniel E. Tranen, Esq., at Hinshaw & Culbertson LLP &
Geoffrey M. Coan, Esq., at Hinshaw & Culbertson LLP.
Barry J Cadden, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC &
Frederick H. Fern, Esq., at Harris Beach PLLC.
Greg Conigliaro, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC &
Frederick H. Fern, Esq., at Harris Beach PLLC.
Lisa Conigliaro Cadden, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC &
Frederick H. Fern, Esq., at Harris Beach PLLC.
GDC Properties Management, LLC, Defendant, represented by:
Joseph P. Thomas, Esq. -- jthomas@ulmer.com -- at Ulmer
& Berne LLP,
Joshua A. Klarfeld, Esq. -- jklarfeld@ulmer.com -- at Ulmer
& Berne LLP &
Robert A. Curley, Jr., Esq., at Curley & Curley P.C.
ARL Bio Pharma, Inc., Defendant, represented by:
Kenneth B. Walton, Esq. -- kwalton@donovanhatem.com -- at
Donovan & Hatem, LLP &
Kristen R. Ragosta, Esq. -- kragosta@donovanhatem.com --
at Donovan & Hatem, LLP.
Douglas Conigliaro, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC,
Frederick H. Fern, Esq., at Harris Beach PLLC,
Heidi A. Nadel, Esq. -- hnadel@toddweld.com -- at Todd & Weld
LLP
Melinda L. Thompson, Esq. -- mthompson@toddweld.com -- at
Todd & Weld.
Carla Conigliaro, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC,
Frederick H. Fern, Esq., at Harris Beach PLLC,
Heidi A. Nadel, Esq., at Todd & Weld LLP &
Melinda L. Thompson, Esq., at Todd & Weld.
Glenn Chin, Defendant, represented by:
Alan M. Winchester, Esq., at Harris Beach, PLLC &
Frederick H. Fern, Esq., at Harris Beach PLLC.
South Jersey Healthcare, Defendant, represented by:
Stephen A. Grossman, Esq. -- sgrossman@mmwr.com -- at
Montgomery McCracken Walker & Rhoads LLP.
South Jersey Regional Medical Center, Defendant, represented by:
Stephen A. Grossman, Esq., at Montgomery McCracken Walker
& Rhoads LLP.
Nitesh Bhagat, Defendant, represented by:
John M. Lovely, Esq., at Cashman & Lovely &
Joseph R. Lang, Esq. -- info@lenoxlaw.com -- at Lenox, Socey,
Formidoni, Giordano, Cooley, Lang & Casey, LLC.
Carilion Surgery Center New River Valley LLC, d/b/a New River
Valley Surgery Center, LLC, Defendant, represented by:
Michael Preston Gardner, Esq. --
michael.gardner@leclairryan.com -- at LeClair Ryan, PC
United States of America, Interested Party, represented by:
Zachary A. Cunha, United States Attorney's Office MA.
Official Committee of Unsecured Creditors in the Chapter 11 Case
of New England Compounding Pharmacy, Inc., Unknown, represented
by:
David J. Molton, Esq. -- dmolton@brownrudnick.com -- at
Brown Rudnick LLP &
Rebecca L. Fordon, Esq. -- rfordon@brownrudnick.com -- at
Brown Rudnick LLP.
Paul D. Moore, in his capacity as Chapter 11 Trustee of the
Defendant New England Compounding Pharmacy, Inc. d/b/a New England
Compounding Center, Trustee, represented by:
Jennifer Mikels, Esq. -- JLMikels@duanemorris.com -- at Duane
Morris LLP,
Michael R. Gottfried, Esq. -- MRGottfried@duanemorris.com --
at Duane Morris LLP,
Thomas B.K. Ringe, III, Esq. -- TBKRinge@duanemorris.com --
at Duane Morris LLP.
Frederick H. Fern, Esq., at Harris Beach PLLC,
Jessica Saunders Eichel, Esq., at Harris Beach PLLC
Roanoke Area LichtensteinFishwick Intervenors, Intervenor,
represented by:
Gregory Lee Lyons, Esq. -- gll@vatrials.com -- at
LichtensteinFishwick PLC
About New England Compounding
New England Compounding Pharmacy Inc., filed a Chapter 11 petition
(Bankr. D. Mass. Case No. 12-19882) in Boston on Dec. 21, 2012,
after a meningitis outbreak linked to an injectable steroid,
methylprednisolone acetate ("MPA"), manufactured by NECC, killed
39 people and sickened 656 in 19 states, though no illnesses have
been reported in Massachusetts. The Debtor owns and operates the
New England Compounding Center is located in Framingham, Mass. In
October 2012, the company recalled all its products, not just
those associated with the outbreak.
NEW ENGLAND COMPOUNDING: Dist. Court Clarifies Preservation Order
-----------------------------------------------------------------
At the behest of the Chapter 11 Trustee of New England Compounding
Pharmacy, Massachusetts District Judge Dennis Saylor, IV, modified
the so-called Preservation Order to clarify that nothing in the
order in anyway restricts, limits or impairs the Chapter 11
Trustee's ability to reject unexpired leases of NECC or applies to
any property not subject to the Preservation Order. Nothing in
the order will be deemed to impose upon the Chapter 11 Trustee any
obligation (including, without limitation, any payment obligation)
to any lessor of equipment or the lessor of the premises operated
by NECC, or to entitle the Lessor to any claim or administrative
expense in NECC's bankruptcy case or otherwise against NECC's
bankruptcy estate, including, without limitation, arising after
the effective date of any rejection of any unexpired lease of NECC
by the Chapter 11 Trustee under section 365 of the Bankruptcy
Code.
On June 12, 2013, in the case of In Re: New England Compounding
Pharmacy Products Liability Litigation, Court Case Number 13 md
02419 FDS (Lead Case), the Massachusetts District Court entered an
Order, directing any party to this case, or any interested third
party, to appear and show cause why partial relief from the terms
of a Preservation Order (docketed in Erkan v. New England
Compounding Pharmacy, Civil Action No. 12 12052 FDS) barring the
disposal or destruction of certain property that is or was in the
possession of NECC should not be granted.
A copy of Judge Saylor's Further Order Concerning Preservation of
NEC Property dated June 12 is available at http://is.gd/XyyBgq
from Leagle.com.
New England Compounding Pharmacy Inc., filed a Chapter 11 petition
(Bankr. D. Mass. Case No. 12-19882) in Boston on Dec. 21, 2012,
after a meningitis outbreak linked to an injectable steroid,
methylprednisolone acetate ("MPA"), manufactured by NECC, killed
39 people and sickened 656 in 19 states, though no illnesses have
been reported in Massachusetts. The Debtor owns and operates the
New England Compounding Center is located in Framingham, Mass. In
October 2012, the company recalled all its products, not just
those associated with the outbreak.
NEWS CORP: Defends Antitrust Suits Over eBooks vs. HarperCollins
----------------------------------------------------------------
News Corporation is defending a subsidiary from antitrust lawsuits
and investigations related to the sale of eBooks, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
Commencing on August 9, 2011, 29 purported consumer class actions
have been filed in the U.S. District Courts for the Southern
District of New York and for the Northern District of California,
which relate to the decisions by certain publishers, including
HarperCollins Publishers L.L.C. ("HarperCollins"), to begin
selling their eBooks pursuant to an agency relationship. The
cases all involve allegations that certain named defendants in the
book publishing and distribution industry, including
HarperCollins, violated the antitrust and unfair competition laws
by virtue of the switch to the agency model for eBooks. The
actions seek as relief treble damages, injunctive relief and
attorneys' fees. The Judicial Panel on Multidistrict Litigation
has transferred the various class actions to the Honorable Denise
L. Cote in the Southern District of New York. On January 20,
2012, the plaintiffs filed a consolidated amended complaint, again
alleging that certain named defendants, including HarperCollins,
violated the antitrust and unfair competition laws by virtue of
the switch to the agency model for eBooks. The Defendants filed a
motion to dismiss on March 2, 2012. On May 15, 2012, Judge Cote
denied defendants' motion to dismiss. On June 22, 2012, Judge
Cote held a status conference to address discovery and scheduling
issues. On June 25, 2012, Judge Cote issued a scheduling order
for the multi-district litigation going forward. Additional
information about In re MDL Electronic Books Antitrust Litigation,
Civil Action No. 11-md-02293 (DLC), can be found on Public Access
to Court Electronic Records (PACER). While it is not possible to
predict with any degree of certainty the ultimate outcome of these
class actions, HarperCollins believes it was compliant with
applicable antitrust and competition laws.
Following an investigation, on April 11, 2012, the Department of
Justice (the "DOJ") filed an action in the U.S. District Court for
the Southern District of New York against certain publishers,
including HarperCollins, and Apple, Inc. The DOJ's complaint
alleges antitrust violations relating to defendants' decisions to
begin selling eBooks pursuant to an agency relationship. This
case was assigned to Judge Cote. Simultaneously, the DOJ
announced that it had reached a proposed settlement with three
publishers, including HarperCollins, and filed a Proposed Final
Judgment and related materials detailing that agreement. Among
other things, the Proposed Final Judgment requires that
HarperCollins terminate its agreements with certain eBook
retailers and places certain restrictions on any agreements
subsequently entered into with such retailers. Pursuant to the
Antitrust Procedures and Penalties Act, the Proposed Final
Judgment could not be entered by Judge Cote for at least sixty
days while the DOJ received public comments. The public comment
period ended on June 25, 2012. Pursuant to Judge Cote's June 25,
2012 scheduling order, the DOJ's motion for entry of the Proposed
Final Judgment was fully briefed by August 22, 2012, and on
September 5, 2012, Judge Cote granted the DOJ's motion and entered
the Final Judgment. A third party has filed a motion to intervene
in the case for the purpose of appealing Judge Cote's decision
entering the Final Judgment to the United States Court of Appeals
for the Second Circuit. On March 26, 2013, the United States
Court of Appeals for the Second Circuit dismissed his appeal.
Additional information about the Final Judgment can be found on
the DOJ's Web site.
Following an investigation, on April 11, 2012, 16 state Attorneys
General led by Texas and Connecticut (the "AGs") filed a similar
action against certain publishers and Apple, Inc. in the Western
District of Texas. On April 26, 2012, the AGs' action was
transferred to Judge Cote. On May 17, 2012, 33 AGs filed a second
amended complaint. As a result of a memorandum of understanding
agreed upon with the AGs for Texas and Connecticut, HarperCollins
was not named as a defendant in this action. Pursuant to the
terms of the memorandum of understanding, HarperCollins entered
into a settlement agreement with the AGs for Texas, Connecticut
and Ohio on June 11, 2012. By August 28, 2012, forty-nine states
(all but Minnesota) and five U.S. territories had signed on to
that settlement agreement. On August 29, 2012, the AGs
simultaneously filed a complaint against HarperCollins and two
other publishers, a motion for preliminary approval of that
settlement agreement and a proposed distribution plan. On
September 14, 2012, Judge Cote granted the AGs' motion for
preliminary approval of the settlement agreement and approved the
AGs' proposed distribution plan. Notice was subsequently sent to
potential class members, and a fairness hearing was held on
February 8, 2013, where Judge Cote granted final approval of the
settlement. The settlement now is effective and the final
judgment will bar consumers from states and territories covered by
the settlement from participating in the class action.
On October 12, 2012, HarperCollins received a Civil Investigative
Demand from the Attorney General from the State of Minnesota.
HarperCollins complied with the Demand on November 16, 2012, and
is cooperating with that investigation. While it is not possible
to predict with any degree of certainty the ultimate outcome of
the inquiry, HarperCollins believes it was compliant with
applicable antitrust laws.
The European Commission conducted an investigation into whether
certain companies in the book publishing and distribution
industry, including HarperCollins, violated the antitrust laws by
virtue of the switch to the agency model for eBooks. Following
discussions with the European Commission, the Office of Fair
Trading closed its investigation in favor of the European
Commission's investigation on December 6, 2011. HarperCollins
settled the matter with the European Commission on terms
substantially similar to the settlement with the DOJ. On
December 13, 2012, the European Commission formally adopted the
settlement.
Commencing on February 24, 2012, five purported consumer class
actions were filed in the Canadian provinces of British Columbia,
Quebec and Ontario, which relate to the decisions by certain
publishers, including HarperCollins, to begin selling their eBooks
in Canada pursuant to an agency relationship. The actions seek as
relief special, general and punitive damages, injunctive relief
and the costs of the litigations. While it is not possible to
predict with any degree of certainty the ultimate outcome of these
class actions, especially given their early stages, HarperCollins
believes it was compliant with applicable antitrust and
competition laws and intends to defend itself vigorously.
In July 2012, HarperCollins Canada, a wholly-owned subsidiary of
HarperCollins, learned that the Canadian Competition Bureau
("CCB") had commenced an inquiry regarding the sale of eBooks in
Canada. HarperCollins currently is cooperating with the CCB with
respect to its inquiry. While it is not possible to predict with
any degree of certainty the ultimate outcome of the inquiry,
HarperCollins believes it was compliant with applicable antitrust
and competition laws.
News Corporation, a Delaware corporation, is a diversified global
media company with operations in the following six industry
segments: (i) Cable Network Programming; (ii) Filmed
Entertainment; (iii) Television; (iv) Direct Broadcast Satellite
Television; (v) Publishing; and (vi) Other. The Company's
activities are conducted principally in the United States, the
United Kingdom, Continental Europe, Australia, Asia and Latin
America. The Company is engaged in the publishing business,
primarily through its subsidiaries News International, News
Limited, Dow Jones, The New York Post, The Daily, HarperCollins
Publishers and News America Marketing Group.
NEWS CORP: Hearing on Shareholder Suit Settlement Set for June 26
-----------------------------------------------------------------
Hearing on News Corporation's settlement of a consolidated
shareholder lawsuit is scheduled for June 26, 2013, according to
the Company's May 10, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
On March 16, 2011, a complaint seeking to compel the inspection of
the Company's books and records pursuant to 8 Del. C. Section 220,
captioned Central Laborers Pension Fund v. News Corporation, was
filed in the Delaware Court of Chancery. The plaintiff requested
the Company's books and records to investigate alleged possible
breaches of fiduciary duty by the directors of the Company in
connection with the Company's purchase of Shine (the "Shine
Transaction"). The Company moved to dismiss the action. On
November 30, 2011, the court issued an order granting the
Company's motion and dismissing the complaint. The plaintiff
filed a notice of appeal on December 13, 2011. The Delaware
Supreme Court heard argument on the fully-briefed appeal on
April 18, 2012, and issued a decision on May 29, 2012, in which it
affirmed the Court of Chancery's dismissal of the complaint.
Also on March 16, 2011, two purported shareholders of the Company,
one of which was Central Laborers Pension Fund, filed a derivative
action in the Delaware Court of Chancery, captioned The
Amalgamated Bank v. Murdoch, et al. (the "Amalgamated Bank
Litigation"). The plaintiffs alleged that both the directors of
the Company and Rupert Murdoch as a "controlling shareholder"
breached their fiduciary duties in connection with the Shine
Transaction. The lawsuit named as defendants all directors of the
Company, and named the Company as a nominal defendant. Similar
claims against the same group of defendants were filed in the
Delaware Court of Chancery by a purported shareholder of the
Company, New Orleans Employees' Retirement System, on March 25,
2011 (the "New Orleans Employees' Retirement Litigation"). Both
the Amalgamated Bank Litigation and the New Orleans Employees'
Retirement Litigation were consolidated on April 6, 2011 (the
"Consolidated Action"), with The Amalgamated Bank's complaint
serving as the operative complaint. The Consolidated Action was
captioned In re News Corp. Shareholder Derivative Litigation. On
April 9, 2011, the court entered a scheduling order governing the
filing of an amended complaint and briefing on potential motions
to dismiss.
Thereafter, the plaintiffs in the Consolidated Action filed a
Verified Consolidated Shareholder Derivative and Class Action
Complaint (the "Consolidated Complaint") on May 13, 2011, seeking
declaratory relief and damages. The Consolidated Complaint
largely restated the claims in The Amalgamated Bank's initial
complaint and also raised a direct claim on behalf of a purported
class of Company shareholders relating to the possible addition of
Elisabeth Murdoch to the Company's Board. The defendants filed
opening briefs in support of motions to dismiss the Consolidated
Complaint on June 10, 2011, as contemplated by the court's
scheduling order. On July 8, 2011, the plaintiffs filed a
Verified Amended Consolidated Shareholder Derivative and Class
Action Complaint (the "Amended Complaint"). In addition to the
claims that were previously raised in the Consolidated Complaint,
the Amended Complaint brought claims relating to the alleged acts
of voicemail interception at The News of the World (the "NoW
Matter"). Specifically, the plaintiffs claimed in the Amended
Complaint that the directors of the Company failed in their duty
of oversight regarding the NoW Matter.
On July 15, 2011, another purported stockholder of the Company
filed a derivative action captioned Massachusetts Laborers'
Pension & Annuity Funds v. Murdoch, et al., in the Delaware Court
of Chancery (the "Mass. Laborers Litigation"). The complaint
names as defendants the directors of the Company and the Company
as a nominal defendant. The plaintiffs' claims are substantially
similar to those raised by the Amended Complaint in the
Consolidated Action. Specifically, the plaintiff alleged that the
directors of the Company have breached their fiduciary duties by,
among other things, approving the Shine Transaction and for
failing to exercise proper oversight in connection with the NoW
Matter. The plaintiff also brought a breach of fiduciary duty
claim against Rupert Murdoch as "controlling shareholder," and a
waste claim against the directors of the Company. The action
seeks as relief damages, injunctive relief, fees and costs. On
July 25, 2011, the plaintiffs in the Consolidated Action requested
that the court consolidate the Mass. Laborers Litigation into the
Consolidated Action. On August 24, 2011, the Mass. Laborers
Litigation was consolidated with the Consolidated Action.
On September 29, 2011, the plaintiffs filed a Verified Second
Amended Consolidated Shareholder Derivative and Class Action
Complaint ("Second Amended Complaint"). In the Second Amended
Complaint, the plaintiffs removed their claims involving the
possible addition of Elisabeth Murdoch to the Company's Board,
added some factual allegations to support their remaining claims
and added a claim seeking to enjoin a buyback of Common B shares
to the extent it would result in a change of control. The Second
Amended Complaint seeks declaratory relief, an injunction
preventing the buyback of Class B shares, damages, pre- and post-
judgment interest, fees and costs.
The defendants filed a motion to dismiss the Second Amended
Complaint. The hearing on the defendants' fully-briefed motion to
dismiss was postponed to allow further briefing by plaintiffs
after the Cohen Litigation was consolidated with the Consolidated
Action.
On March 2, 2012, another purported stockholder of the Company
filed a derivative action captioned Belle M. Cohen v. Murdoch, et
al., in the Delaware Court of Chancery (the "Cohen Litigation").
The complaint names as defendants the directors of the Company and
the Company as a nominal defendant. The complaint's claims and
allegations pertain to the NoW Matter and are substantially
similar to the NoW Matter allegations raised in the Second Amended
Complaint in the Consolidated Action. The complaint asserts
causes of action against the defendants for alleged breach of
fiduciary duty, gross mismanagement, contribution and
indemnification, abuse of control, and waste of corporate assets.
The action seeks as relief damages, fees and costs. On March 20,
2012, the Cohen Litigation was consolidated with the Consolidated
Action.
On June 18, 2012, the plaintiffs in the Consolidated Action filed
a Verified Third Amended Consolidated Shareholder Derivative
Complaint (the "Third Amended Complaint"). The Third Amended
Complaint alleges claims against director defendants for breach of
fiduciary duty arising from the Shine Transaction; against Rupert
Murdoch for breach of fiduciary duty as the purported controlling
shareholder of the Company in connection with the Shine
Transaction; against director defendants for breach of fiduciary
duty arising from their purported failure to investigate illegal
conduct in the NoW Matter and allegedly permitting the Company to
engage in a cover up; against certain defendants for breach of
fiduciary duty in their capacity as officers arising from a
purported failure to investigate illegal conduct in the NoW Matter
and allegedly permitting the Company to engage in a cover up; and
against James Murdoch for breach of fiduciary duty for allegedly
engaging in a cover up related to the NoW Matter. The class
action claim asserted in the Second Amended Complaint pertaining
to the buyback of Common B shares and the relief related to that
claim were removed. The Third Amended Complaint seeks a
declaration that the defendants violated their fiduciary duties,
damages, pre- and post-judgment interest, fees and costs.
On July 18, 2012, the defendants renewed their postponed motion to
dismiss in the Consolidated Action, and in support thereof, they
filed supplemental briefing directed towards the allegations of
the Third Amended Complaint. The Plaintiffs' response was filed
on August 8, 2012. A hearing on the fully briefed motion was held
in Chancery Court on September 19, 2012. The Court reserved
decision.
On April 17, 2013, the parties reached an agreement in principle
to settle the Consolidated Action. Pursuant to the terms of that
settlement, which is subject to the approval of the Delaware Court
of Chancery after notice to the stockholders and a hearing, the
parties agreed that the director defendants in the Consolidated
Action would cause to be paid on their behalf the amount of $139
million to the Company, minus any attorneys' fees and expenses
awarded by the Court to the plaintiffs' counsel. Such amount is
to be paid from an escrow account created for the benefit of the
director defendants pursuant to an agreement reached between the
defendants and their directors' and officers' liability insurers
for the payment of insurance proceeds, subject to a claims
release. In addition to the payment to the Company, the
settlement contemplates that the Company will build on corporate
governance and compliance enhancements which the Company has
implemented in the past year. These shall remain in effect at
least through December 31, 2016, and would be applicable to both
21st Century Fox and New News Corporation. The Memorandum of
Understanding related to the settlement has been filed with the
Court. On May 3, 2013, the Stipulation of Settlement was filed
with the Court. On May 6, 2013, the Court entered a Scheduling
Order, which, among other things, set the settlement hearing for
June 26, 2013, and approved the form of Notice of Pendency of
Derivative Action, Proposed Settlement of Derivative Action,
Settlement Hearing, and Right to Appear, which is being
distributed to holders of the Company's common stock in accordance
with the Scheduling Order. In addition to requiring the approval
of the Delaware Court of Chancery, the settlement will not become
effective unless the Shields Litigation, the Iron Workers
Litigation and the Stricklin Litigation are also dismissed.
News Corporation, a Delaware corporation, is a diversified global
media company with operations in the following six industry
segments: (i) Cable Network Programming; (ii) Filmed
Entertainment; (iii) Television; (iv) Direct Broadcast Satellite
Television; (v) Publishing; and (vi) Other. The Company's
activities are conducted principally in the United States, the
United Kingdom, Continental Europe, Australia, Asia and Latin
America. The Company is engaged in the publishing business,
primarily through its subsidiaries News International, News
Limited, Dow Jones, The New York Post, The Daily, HarperCollins
Publishers and News America Marketing Group.
NEWS CORP: Plea to Dismiss "Wilder" Class Suit Remains Pending
--------------------------------------------------------------
On July 18, 2011, a purported shareholder of News Corporation
filed a derivative action captioned Shields v. Murdoch, et al.
("Shields Litigation"), in the United States District Court for
the Southern District of New York. The plaintiff alleged
violations of Section 14(a) of the Securities Exchange Act, as
well as state law claims for breach of fiduciary duty, gross
mismanagement, waste, abuse of control and contribution/
indemnification arising from, and in connection with, claims
relating to the alleged acts of voicemail interception at The News
of the World (the "NoW Matter"). The complaint names the
directors of the Company as defendants and names the Company as a
nominal defendant, and seeks damages and costs. On August 4,
2011, the plaintiff filed an amended complaint. The plaintiff
seeks compensatory damages, an order declaring the October 15,
2010 shareholder vote on the election of the Company's directors
void; an order setting an emergency shareholder vote date for
election of new directors; an order requiring the Company to take
certain specified corporate governance actions; and an order (i)
putting forward a shareholder vote resolution for amendments to
the Company's Article of Incorporation and (ii) taking such other
action as may be necessary to place before shareholders for a vote
on corporate governance policies that: (a) appoint a non-executive
Chair of the Board who is not related to the Murdoch family or
extended family; (b) appoint an independent Chair of the Board's
Audit Committee; (c) appoint at least three independent directors
to the Governance and Nominating Committees; (d) strengthen the
Board's supervision of financial reporting processes and implement
procedures for greater shareholder input into the policies and
guidelines of the Board; and (e) appropriately test and strengthen
the internal and audit control functions.
On July 19, 2011, a purported class action lawsuit captioned
Wilder v. News Corp., et al. ("Wilder Litigation"), was filed on
behalf of all purchasers of the Company's common stock between
March 3, 2011, and July 11, 2011, in the United States District
Court for the Southern District of New York. The plaintiff
brought claims under Section 10(b) and Section 20(a) of the
Securities Exchange Act, alleging that false and misleading
statements were issued regarding the NoW Matter. The lawsuit
names as defendants the Company, Rupert Murdoch, James Murdoch and
Rebekah Brooks, and seeks compensatory damages, rescission for
damages sustained, and costs.
On July 22, 2011, a purported shareholder of the Company filed a
derivative action captioned Stricklin v. Murdoch, et al.
("Stricklin Litigation"), in the United States District Court for
the Southern District of New York. The plaintiff brought claims
for breach of fiduciary duty, gross mismanagement, and waste of
corporate assets in connection with, among other things, (i) the
NoW Matter; (ii) News America's purported payments to settle
allegations of anti-competitive behavior; and (iii) the Shine
Transaction. The action names as defendants the Company, Les
Hinton, Rebekah Brooks, Paul Carlucci and the directors of the
Company. On August 3, 2011, the plaintiff served a motion for
expedited discovery and to appoint a conservator over the Company,
which defendants objected to. The motion has not been formally
calendared and there is no briefing schedule yet. On August 16,
2011, the plaintiffs filed an amended complaint. The plaintiff
seeks various forms of relief including compensatory damages,
injunctive relief, disgorgement, the award of voting rights to
Class A shareholders, the appointment of a conservator over the
Company to oversee the Company's responses to investigations and
litigation related to the NoW Matter, fees and costs.
On August 10, 2011, a purported shareholder of the Company filed a
derivative action captioned Iron Workers Mid-South Pension Fund v.
Murdoch, et al. ("Iron Workers Litigation"), in the United States
District Court for the Southern District of New York. The
plaintiff brought claims for breach of fiduciary duty, waste of
corporate assets, unjust enrichment and alleged violations of
Section 14(a) of the Securities Exchange Act in connection with
the NoW Matter. The action names as defendants the Company, Les
Hinton, Rebekah Brooks and the directors of the Company. The
plaintiff seeks various forms of relief including compensatory
damages, voiding the election of the director defendants, an order
requiring the Company to take certain specified corporate
governance actions, injunctive relief, restitution, fees and
costs.
The Wilder Litigation, the Stricklin Litigation and the Iron
Workers Litigation are all now before the judge in the Shields
Litigation. On November 21, 2011, the court issued an order
setting a briefing schedule for the defendants' motion to stay the
Stricklin Litigation, the Iron Workers Litigation and the Shields
Litigation pending the outcome of the consolidated action pending
in the Delaware Court of Chancery. On September 18, 2012, the
Court denied the motion as to two of the cases and dismissed the
third with leave to replead, which plaintiff has done.
Specifically, on October 4, 2012, Stricklin filed a Second Amended
Complaint that added a claim under Section 14(a) of the Securities
Exchange Act challenging the disclosures in the Company's
definitive proxy statements issued during the years of 2005
through 2012. The plaintiff seeks, among other things, to void
the election of the director defendants at the Company's 2012
annual meeting. The plaintiffs in Shields, Stricklin and Iron
Workers have requested a pre-motion conference to address the
potential consolidation of these derivative actions and a briefing
schedule regarding the potential leadership structure for the
plaintiffs. The pre-motion conference has not yet been scheduled.
In the Wilder Litigation, on June 5, 2012, the court issued an
order appointing the Avon Pension Fund ("Avon") as lead plaintiff
and Robbins Geller Rudman & Dowd as lead counsel. Thereafter, on
July 3, 2012, the court issued an order providing that an amended
consolidated complaint shall be filed by July 31, 2012. Avon
filed an amended consolidated complaint on July 31, 2012, which
among other things, added as defendants NI Group Limited and Les
Hinton, and expanded the class period to include February 15,
2011, to July 18, 2011. The Defendants filed their motion to
dismiss on September 25, 2012, the plaintiffs' opposition was
filed November 6, 2012, and the defendants' reply was filed
November 30, 2012. The motion is pending.
No further updates were reported in the Company's May 10, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
The Company's management believes these shareholder claims are
entirely without merit, and intends to vigorously defend these
actions. The settlement of the Consolidated Action will not
become effective unless the Shields Litigation, the Iron Workers
Litigation and the Stricklin Litigation are also dismissed.
News Corporation, a Delaware corporation, is a diversified global
media company with operations in the following six industry
segments: (i) Cable Network Programming; (ii) Filmed
Entertainment; (iii) Television; (iv) Direct Broadcast Satellite
Television; (v) Publishing; and (vi) Other. The Company's
activities are conducted principally in the United States, the
United Kingdom, Continental Europe, Australia, Asia and Latin
America. The Company is engaged in the publishing business,
primarily through its subsidiaries News International, News
Limited, Dow Jones, The New York Post, The Daily, HarperCollins
Publishers and News America Marketing Group.
NTS REALTY: Faces Merger-Related Suits in Kentucky and Delaware
---------------------------------------------------------------
NTS Realty Holdings Limited Partnership is facing merger-related
class action lawsuits in Kentucky and Delaware, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
On December 27, 2012, NTS Realty Holdings Limited Partnership
("NTS Realty") and NTS Realty Capital, Inc., the Company's
managing general partner ("NTS Realty Capital"), entered into an
Agreement and Plan of Merger (the "Merger Agreement") with NTS
Merger Parent, LLC ("Parent"), an entity controlled by the
Company's founder and Chairman, J.D. Nichols, and the Company's
President and Chief Executive Officer, Brian F. Lavin, and NTS
Merger Sub, LLC ("Merger Sub", and together with Mr. Nichols, Mr.
Lavin, Parent and certain of their respective affiliates, the
"Purchasers"), a wholly-owned subsidiary of Parent. Upon
consummation of the transactions proposed in the Merger Agreement,
Merger Sub would merge with and into NTS Realty and NTS Realty
would continue as the surviving entity (the "Merger").
On January 27, 2013, the Company received notice that Dannis,
Stephen, et al. v. Nichols, J.D., et al., Case No. 13-CI-00452, a
putative unitholder class action lawsuit, was filed on January 25,
2013, in Jefferson County Circuit Court of the Commonwealth of
Kentucky against the Company, each of the members of the board of
directors of NTS Realty Capital, NTS Realty Capital, NTS Realty
Partners, LLC, NTS Merger Parent, LLC and NTS Merger Sub ("Merger
Sub") alleging, among other things, that the board of directors
breached their fiduciary duties to the Company's unitholders in
connection with the board's approval of the Merger between Merger
Sub and NTS Realty. On March 14, 2013, the plaintiffs filed an
amended complaint and added NTS Development Company and NTS
Management Company as additional defendants. The amended
complaint seeks, among other things, to enjoin the defendants from
completing the Merger as currently contemplated. The Company
believes these allegations are without merit and it intends to
vigorously defend against them.
On February 12, 2013, the Company received notice that R. Jay
Tejera v. NTS Realty Holdings LP et al., Civil Action No. 8302-
VCP, another putative unitholder class action lawsuit, was filed
on February 12, 2013, in the Court of Chancery in the State of
Delaware against the Company, each of the members of the board of
directors of NTS Realty Capital, NTS Merger Parent, LLC and NTS
Realty Capital, alleging, among other things, that the board of
directors breached their fiduciary duties to the Company's
unitholders in connection with the board's approval of the Merger
between Merger Sub and NTS Realty. The complaint seeks, among
other things, money damages. The Company believes these
allegations are without merit and it intends to vigorously defend
against them.
On February 15, 2013, the Company received notice that Gerald A.
Wells v. NTS Realty Holdings LP et al., Civil Action No. 8322-VCP,
a third putative unitholder class action lawsuit, was filed on
February 15, 2013, in the Court of Chancery of the State of
Delaware against the Company, each of the members of the board of
directors of NTS Realty Capital, NTS Merger Parent, LLC, Merger
Sub and NTS Realty Capital, alleging, among other things, that the
board of directors breached their fiduciary duties to the
Company's unitholders in connection with the board's approval of
the Merger between Merger Sub and NTS Realty. The complaint
seeks, among other things, to enjoin the defendants from
completing the Merger as currently contemplated. The Company
believes these allegations are without merit and it intends to
vigorously defend against them.
On March 19, 2013, the Delaware Court of Chancery consolidated the
Tejera and Wells complaints under the Tejera case number and the
consolidated case caption of In Re NTS Realty Holdings Limited
Partnership Unitholders Litigation. The Company expects the
plaintiffs in the consolidated Delaware action to file a
consolidated complaint.
NTS Realty Holdings Limited Partnership --
http://www.ntsdevelopment.com/-- develops, constructs, owns and
operates multifamily properties, commercial and retail real
estate. The Company is headquartered in Louisville, Kentucky.
PACIFIC BIOSCIENCES: Bid to Dismiss "Primo" Suit Granted in April
-----------------------------------------------------------------
Pacific Biosciences of California, Inc.'s motion to dismiss a
class action lawsuit in California was granted in April 2013,
according to the Company's May 10, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On December 21, 2011, the Company and certain of its officers and
directors were named in a putative class action lawsuit filed in
United States District Court for the Northern District of
California (Primo v. Pacific Biosciences of California, Inc., et
al., Case No. 4:11-CV-06599). On April 11, 2012, an amended
complaint was filed in the Primo action, which added another
plaintiff, Evan Powell. As amended, the complaint alleges
violations of several provisions of the federal securities laws in
connection with the Company's August 16, 2010 registration
statement (effective, as amended, on October 26, 2010), and by the
Company and/or its employees during the class period. The
complaint seeks, among other things, compensatory damages,
rescission, and attorneys' fees and costs on behalf of the
putative class. On April 6, 2012, Mr. Primo was appointed lead
plaintiff in the action. On July 31, 2012, the defendants moved
to dismiss the Primo action in its entirety. After an October 11,
2012 hearing, the District Court on April 15, 2013, granted the
defendants' motion to dismiss the amended complaint. The District
Court's order granted the plaintiffs leave to amend within sixty
days of the date of the order.
Pacific Biosciences of California, Inc., develops, manufactures
and markets an integrated platform for high resolution genetic
analysis. Combining advances in nanofabrication, biochemistry,
molecular biology, surface chemistry and optics, the Company
created a technology platform called single molecule, real-time,
or SMRT, technology.
PACIFIC BIOSCIENCES: Has MOU to Settle Shareholder Suit
-------------------------------------------------------
Pacific Biosciences of California, Inc., entered in January 2013
into a memorandum of understanding regarding the tentative
settlement of a consolidated shareholder class action lawsuit,
according to the Company's May 10, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Three putative class action lawsuits were filed against the
Company and certain of its officers and directors in the Superior
Court of the State of California, County of San Mateo. These
actions were brought on behalf of all persons or entities, who
purchased or otherwise acquired the Company's common stock
pursuant or traceable to its initial public offering ("IPO") of
common stock in October 2010. The claims were initiated between
October 2011 and April 2012 and have since been consolidated as In
re Pacific Biosciences of California Inc. S'holder Litig., Case
No. CIV509210 (the "State Court Action"). The plaintiffs in the
State Court Action allege violations of several provisions of the
federal securities laws in connection with the Company's
August 16, 2010 registration statement (effective, as amended, on
October 26, 2010) and seek, among other things, compensatory
damages, rescission, and attorneys' fees and costs on behalf of
the putative class. The defendants in the State Court Action
filed a motion to stay that lawsuit in deference to the Primo
action pending in federal district court. On May 25, 2012, the
Superior Court denied the defendants' motion to stay. The
defendants in the State Court Action also filed a demurrer to
certain of the plaintiffs' claims, which was sustained in part and
overruled in part on October 16, 2012. On October 26, 2012, the
plaintiffs in the State Court Action filed a First Amended
Consolidated Class Action Complaint, which the defendants answered
on November 13, 2012.
On or around December 12, 2012, the parties to the State Court
Action reached an agreement on certain terms of a tentative
settlement on behalf of the entire class of persons or entities
that purchased the Company's common stock between October 27,
2010, and September 20, 2011 (inclusive). On January 18, 2013,
the parties in the State Court Action entered into a memorandum of
understanding regarding the tentative settlement, which will not
become effective until final approval is granted by the Superior
Court.
As of March 31, 2013, the Company says it has accrued for its best
estimate to resolve this matter.
Pacific Biosciences of California, Inc., develops, manufactures
and markets an integrated platform for high resolution genetic
analysis. Combining advances in nanofabrication, biochemistry,
molecular biology, surface chemistry and optics, the Company
created a technology platform called single molecule, real-time,
or SMRT, technology.
PLY GEM HOLDINGS: Faces "Memari" Class Suit in South Carolina
-------------------------------------------------------------
Ply Gem Holdings, Inc. is facing a class action lawsuit commenced
by Karl Memari in South Carolina, according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 30, 2013.
In Karl Memari v. Ply Gem Prime Holdings, Inc. et al., a purported
class action filed in March 2013 in the United States District
Court for the District of South Carolina, Charleston Division,
plaintiff, on behalf of himself and all others similarly situated,
alleges damages as a result of the illegality and/or defects of
MW's vinyl clad windows. The plaintiff seeks a variety of relief,
including (i) actual and compensatory damages, (ii) punitive
damages, and (iii) attorneys' fees and costs of litigation. This
action is at a preliminary stage, and the Company believes it has
valid defenses to this claim and will vigorously defend this
claim.
Ply Gem Holdings, Inc., a Delaware corporation headquartered in
Cary, North Carolina, is a manufacturer of exterior building
products in North America, operating in two reportable segments:
(i) Siding, Fencing and Stone and (ii) Windows and Doors. These
two segments produce a comprehensive product line of vinyl siding,
designer accents, cellular PVC trim, vinyl fencing, vinyl and
composite railing, stone veneer and vinyl windows and doors used
in both new construction and home repair and remodeling in the
United States and Western Canada.
PLY GEM HOLDINGS: "Hartshorn" Suit in Discovery on Cert. Bid
------------------------------------------------------------
The class action lawsuit commenced by Eric Hartshorn and Bethany
Perry is currently in discovery regarding a motion for class
certification, according to Ply Gem Holdings, Inc.'s May 10, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 30, 2013.
In Eric Hartshorn and Bethany Perry v. MW Manufacturers, Inc., a
purported class action filed in July 2012 in the United States
District Court for the District of Massachusetts, the plaintiffs,
on behalf of themselves and all others similarly situated, allege
damages as a result of the defective design and manufacture of
MW's Freedom and Freedom 800 windows. The plaintiffs seek a
variety of relief, including (i) economic and compensatory
damages, (ii) treble damages, (iii) punitive damages, and (iv)
attorneys' fees and costs of litigation. The damages sought in
this action have not yet been quantified. This action is
currently in discovery regarding class certification, and a
hearing regarding class certification has not yet been scheduled.
The Company believes it has valid defenses to this claim, and it
will vigorously defend this claim.
Ply Gem Holdings, Inc., a Delaware corporation headquartered in
Cary, North Carolina, is a manufacturer of exterior building
products in North America, operating in two reportable segments:
(i) Siding, Fencing and Stone and (ii) Windows and Doors. These
two segments produce a comprehensive product line of vinyl siding,
designer accents, cellular PVC trim, vinyl fencing, vinyl and
composite railing, stone veneer and vinyl windows and doors used
in both new construction and home repair and remodeling in the
United States and Western Canada.
PLY GEM HOLDINGS: Hearing in "Gulbankian" Suit Set for October
--------------------------------------------------------------
A hearing on motion for class certification has been scheduled for
October 2013 in the class action lawsuit initiated by John
Gulbankian and Robert D. Callahan, according to Ply Gem Holdings,
Inc.'s May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 30, 2013.
In John Gulbankian and Robert D. Callahan v. MW Manufacturers,
Inc., a purported class action filed in March 2010 in the United
States District Court for the District of Massachusetts, the
plaintiffs, on behalf of themselves and all others similarly
situated, allege damages as a result of the defective design and
manufacture of MW's V-Wood windows. The plaintiffs seek a variety
of relief, including (i) economic and compensatory damages, (ii)
treble damages, (iii) punitive damages, and (iv) attorneys' fees
and costs of litigation. The damages sought in this action have
not yet been quantified. This action is currently in discovery
regarding class certification, and a hearing regarding class
certification has been scheduled for October 2013.
The Company believes it has valid defenses to this claim, and it
will vigorously defend this claim.
Ply Gem Holdings, Inc., a Delaware corporation headquartered in
Cary, North Carolina, is a manufacturer of exterior building
products in North America, operating in two reportable segments:
(i) Siding, Fencing and Stone and (ii) Windows and Doors. These
two segments produce a comprehensive product line of vinyl siding,
designer accents, cellular PVC trim, vinyl fencing, vinyl and
composite railing, stone veneer and vinyl windows and doors used
in both new construction and home repair and remodeling in the
United States and Western Canada.
PLY GEM HOLDINGS: "Pagliaroni" Suit Currently in Discovery
----------------------------------------------------------
The class action lawsuit filed by Anthony Pagliaroni is currently
in discovery, according to Ply Gem Holdings, Inc.'s May 10, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 30, 2013.
In Anthony Pagliaroni v. Mastic Home Exteriors, Inc. and
Deceuninck North America, LLC, a purported class action filed in
January 2012 in the United States District Court for the District
of Massachusetts, the plaintiff, on behalf of himself and all
others similarly situated, alleges damages as a result of the
defective design and manufacture of Oasis composite deck and
railing, which was manufactured by Deceuninck North America, LLC
("Deceuninck") and sold by MHE. The plaintiff seeks a variety of
relief, including (i) economic and compensatory damages, (ii)
treble damages, (iii) punitive damages, and (iv) attorneys' fees
and costs of litigation. This action is currently in discovery
regarding class certification, and a hearing regarding class
certification has not yet been scheduled. The damages sought in
this action have not yet been quantified. The Company believes it
has valid defenses to this claim, and it will vigorously defend
this claim.
Deceuninck, as the manufacturer of Oasis deck and railing, has
agreed to indemnify the Company for certain liabilities related to
this claim pursuant to the sales and distribution agreement, as
amended, between Deceuninck and MHE. The Company's ability to
seek indemnification from Deceuninck is, however, limited by the
terms of the indemnity as well as the strength of Deceuninck's
financial condition, which could change in the future.
Ply Gem Holdings, Inc., a Delaware corporation headquartered in
Cary, North Carolina, is a manufacturer of exterior building
products in North America, operating in two reportable segments:
(i) Siding, Fencing and Stone and (ii) Windows and Doors. These
two segments produce a comprehensive product line of vinyl siding,
designer accents, cellular PVC trim, vinyl fencing, vinyl and
composite railing, stone veneer and vinyl windows and doors used
in both new construction and home repair and remodeling in the
United States and Western Canada.
POLARIS INDUSTRIES: Recalls 4,500 Ranger Recreational Vehicles
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Polaris Industries Inc., of Medina, Minnesota, announced a
voluntary recall of about 4,500 2011 Polaris Ranger RZR XP 900
recreational off-highway vehicles. Consumers should stop using
this product unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The firewall behind the driver and passenger seats can overheat
and melt, posing a burn hazard to consumers.
The firm has received one report of an incident involving a
consumer who received burn injuries to a finger.
This recall involves 2011 model Polaris Ranger RZR XP 900
recreational off-highway vehicles. The machines are either white
or red and have a "RZR XP" decal on the right and left rear side
panels. The right and left of the hood have "Dual Overhead Cam"
decals. There are also "900 EFI" decals on the front right and
left of the machine. Pictures of the recalled products are
available at: http://is.gd/7ez2q4
The recalled products were manufactured in the United States of
America and sold at Polaris dealers nationwide from May 2012
through February 2013 for between $16,000 and $16,600.
Consumers should immediately stop using the vehicles and contact
Polaris to schedule a free repair. Polaris is contacting its
known customers directly. Polaris may be reached toll-free at
(888) 704-5290, from 8:00 a.m. to 5:00 p.m. Central Time Monday
through Friday, or online at http://www.polarisindustries.com/and
click on Help Center under the Services and Support tab, then
Common Rider Questions, then Service bulletins/recalls for more
information.
REGIS CORPORATION: Faces Consumer, Wage & Hour Violation Claims
---------------------------------------------------------------
Regis Corporation is a defendant in various lawsuits and claims
arising out of the normal course of business. Like certain other
large retail employers, the Company has been faced with
allegations of purported class-wide consumer and wage and hour
violations, according to the company's May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
In addition, the Company is a nominal defendant, and nine current
and former directors and officers of the Company are named
defendants, in a shareholder derivative action in Minnesota state
court. The derivative shareholder alleges that the individual
defendants breached their fiduciary duties to the Company in
connection with their approval of certain executive compensation
arrangements and certain related party transactions.
A Special Litigation Committee has been appointed by the Board to
investigate and act on the claims. The presiding judge has stayed
the action while the Special Litigation Committee is at work.
The Company is working with outside counsel and is cooperating
with the investigation. Litigation is inherently unpredictable and
the outcome of these matters cannot presently be determined.
Although the actions are being vigorously defended, the Company
could in the future incur judgments or enter into settlements of
claims that could have a material adverse effect on its results of
operations in any particular period.
RETAIL PROPERTIES: Moves to Dismiss Stockholders' Suit in Ill.
--------------------------------------------------------------
Defendants in a securities suit filed against Retail Properties Of
America, Inc. in the U.S. District Court in the Northern District
of Illinois filed motions to dismiss complaints, according to
Retail Properties' May 7, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
Certain shareholders of the Company filed putative class action
lawsuits against the Company and certain of its officers and
directors, which are currently pending in the U.S. District Court
in the Northern District of Illinois. The lawsuits allege, among
other things, that the Company's directors and officers breached
their fiduciary duties to the shareholders and, as a result,
unjustly enriched the Company and the individual defendants.
The lawsuits further allege that the breaches of fiduciary duty
led certain shareholders to acquire additional stock and caused
the shareholders to suffer a loss in share value, all measured in
some manner by reference to the Company's 2012 offering price when
it listed its shares on the NYSE. The lawsuits seek unspecified
damages and other relief. Based on its initial review of the
complaints, the Company believes the lawsuits to be without merit
and intends to defend the actions vigorously.
While the resolution of these matters cannot be predicted with
certainty, management believes, based on currently available
information, that the final outcomes of these matters will not
have a material effect on the financial statements of the Company.
On April 19, 2013, the defendants filed motions to dismiss the
shareholder complaints, which remain pending before the court.
SENSIENT TECHNOLOGIES: Employee's Suit Removed to New Venue
-----------------------------------------------------------
The San Francisco County Superior Court granted a request by
parties in the suit Vega v. Sensient Dehydrated Flavors LLC to
remove the case to Stanislaus County Superior Court,
according to Sensient Technologies Corporation's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
On January 3, 2013, Thomas Vega, a current employee, filed (but
did not serve) a Class Action Complaint in San Francisco County
Superior Court against Sensient Dehydrated Flavors LLC.
On February 11, 2013, Vega filed and served a First Amended
Complaint ("Complaint") against the Company and a Company
supervisor. Vega alleges that the Company failed to provide
alleged class members with meal periods, compensation for the
alleged absence of meal periods, and accurate wage statements, in
violation of the California labor code.
The alleged class includes all employees paid on an hourly basis
and all forklift operators. The Complaint seeks damages, back
wages, injunctive relief, penalties, interest, and attorneys' fees
for the members of the alleged class. The Complaint alleges that
the total damages and costs "do not exceed a[n] aggregate of
$4,999,999.99."
The Complaint alleges two causes of action. The first cause of
action is for "Unfair Competition." The plaintiff's theory is that
the Company, by allegedly not complying with state wage and hour
laws, had an unfair competitive advantage against other employers
who were complying with those laws. The main strategic reason that
plaintiffs plead this cause of action is that the statute of
limitations is four years. The second cause of action is for
alleged substantive violations of the California labor code
provisions governing wages, hours, and meal periods.
The Company believes that for the great majority of employees any
meal period violations that may have occurred are attributable to
inadequate documentation and do not involve a failure to provide
meal periods.
On March 13, 2013, the parties filed a joint stipulation and
proposed order to remove the case from San Francisco County
Superior Court to Stanislaus County Superior Court. On April 18,
2013, the Court granted the request and issued the proposed order.
SITEL WORLDWIDE: NA Settles Suit Over Debt Collection Calls
-----------------------------------------------------------
A case filed against a wholly owned subsidiary of Sitel Worldwide
Corporation over calls to collect debt was settled for $180,000,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
In April 2011, the company's wholly owned subsidiary, National
Action Financial Services, Inc. now known as NA Liquidating
Company, Inc. ("NA"), was served with a purported class action
filed in United States District Court for the Eastern District of
Michigan.
The complaint alleged violations of the federal Fair Debt
Collection Practices Act ("FDCPA") and the Telephone Consumer
Protection Act ("TCPA") for calls to plaintiff's cell phone in an
attempt to collect a debt not owed by the plaintiff. The complaint
also alleged pre-recorded message calls to debtors on their cell
phones by means of an automated dialing device, without having
received permission from the recipients of the calls in violation
of the TCPA.
A reserve of $160,000 was recorded related to this matter as of
December 31, 2012. On January 31, 2013, the case was settled for
$180,000 of which $27,000 was paid by the company's insurer.
SS&C TECHNOLOGIES: Appeals Certification in "Anwar" Lawsuit
-----------------------------------------------------------
The Court of Appeals is yet to rule on a petition of GlobeOp, a
subsidiary of SS&C Technologies Holdings, Inc., to permit an
interlocutory appeal of a class certification order in the
Fairfield Greenwich-Related Actions. Discovery is ongoing,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On April 29, 2009, GlobeOp was named as a defendant in a putative
class action (the "Anwar Action"), filed by Pasha S. Anwar in the
United States District Court for the Southern District of New York
against multiple defendants relating to Greenwich Sentry L.P. and
Greenwich Sentry Partners L.P., (the "FG Funds"), and the alleged
losses sustained by the FG Funds' investors as a result of Bernard
Madoff's Ponzi scheme.
The complaint alleges breach of fiduciary duties by GlobeOp and
negligence in the performance of its duties and seeks to recover
as damages the net losses sustained by investors in the putative
class, together with applicable interest, costs, and attorneys'
fees.
GlobeOp served as administrator for the Greenwich Sentry fund from
October 2003 through August 2006 and for the Greenwich Sentry
Partners fund from May 2006 through August 2006, during which time
the net asset value of the Greenwich Sentry Fund was $135 million
and the Greenwich Sentry Partners Fund was $6 million.
On February 25, 2013, the U.S. District Court for the Southern
District of New York granted the plaintiffs' motion for class
certification of a class consisting of all net loss investors in
the litigated funds (excluding investors from a number of
enumerated foreign countries).
GlobeOp has petitioned the Court of Appeals to permit an
interlocutory appeal of the class certification order. The Court
of Appeals has not yet ruled on GlobeOp's petition. Discovery is
ongoing.
SS&C TECHNOLOGIES: GlobeOp Still Faces Suit Over Millennium Funds
-----------------------------------------------------------------
GlobeOp, a subsidiary of SS&C Technologies Holdings, Inc.,
continues to face a putative class action pending in the Southern
District of New York over Millennium Funds, according to the
company's May 7, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
The Millennium Actions have been filed in various jurisdictions
against GlobeOp alleging claims and damages with respect to a
valuation agent services agreement performed by GlobeOp for the
Millennium Funds. These actions include
(i) a class action in the U.S. District Court for the Southern
District of New York on behalf of investors in the Millennium
Funds filed on May 14, 2012 asserting claims of $844 million (the
alleged aggregate value of assets under management by the
Millennium Funds at the funds' peak valuation);
(ii) an arbitration proceeding in the United Kingdom on behalf of
the Millennium Funds' investment manager, which commenced with a
request for arbitration on July 11, 2011, seeking an indemnity of
$26.5 million for sums paid by way of settlement to the Millennium
Funds in a separate arbitration to which GlobeOp was not a party,
as well as an indemnity for any losses that may be incurred by the
investment manager in the U.S. class action; and
(iii) a claim in the same arbitration proceeding by the Millennium
Global Emerging Credit Master Fund Ltd against GlobeOp for damages
alleged to be in excess of $160 million.
These actions allege that GlobeOp breached its contractual
obligations and/or negligently breached a duty of care in the
performance of services for the funds and that, inter alia,
GlobeOp should have discovered and reported a fraudulent scheme
perpetrated by the portfolio manager employed by the investment
manager.
The putative class action pending in the Southern District of New
York also asserts claims against SS&C identical to the claims
against GlobeOp in that action. In the arbitration, GlobeOp has
asserted counterclaims against both the investment managers and
the Millennium Emerging Credit Mast Fund Ltd. for indemnity,
including in respect of the U.S. class action. The Company cannot
predict the outcome of these matters. An arbitration hearing on
the merits of the claims is scheduled to begin in London on July
15, 2013.
GlobeOp has secured insurance coverage that provides reimbursement
of various litigation costs up to pre-determined limits. In 2012
and 2013, GlobeOp was reimbursed for litigation costs under the
applicable insurance policy.
ST. JUDE MEDICAL: Dismissal of Claims Over Silzone on Appeal
------------------------------------------------------------
St. Jude Medical, Inc. is scheduled in August 2013 to file its
responsive brief against a move appealing the dismissal of claims
in a suit over the company's heart valve product with Silzone
coating. The appeal will likely be heard in November 2013,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 30, 2013.
The Company has been sued in various jurisdictions beginning in
March 2000 by some patients who received a heart valve product
with Silzone coating, which the Company stopped selling in January
2000. The Company has vigorously defended against the claims that
have been asserted and will continue to do so with respect to any
remaining claims.
The Company's outstanding Silzone cases consist of one class
action in Ontario that has been appealed by the plaintiffs, one
individual case in Ontario and one individual case filed in the
U.S. District Court for the District of Arizona. In June 2012, the
Ontario Court ruled in the Company's favor on all nine common
class issues in a class action involving Silzone patients, and the
case was dismissed.
In September 2012, counsel for the class filed an appeal with the
Court of Appeal for the Province of Ontario and filed their
initial appellate brief on February 28, 2013. The Company is
scheduled to file its responsive brief in August 2013, and the
appeal will likely be heard in November 2013.
The individual case in Ontario requests damages in excess of
$1 million (claiming unspecified special damages, health care
costs and interest) and the individual case in Arizona requests
damages in excess of seventy-five thousand dollars. Based on the
Company's historical experience, the amount ultimately paid, if
any, often does not bear any relationship to the amount claimed.
ST. JUDE MEDICAL: Wash. Residents Sue for Injuries Over Riata
-------------------------------------------------------------
On April 18, 2013, a lawsuit seeking class action status was filed
against St. Jude Medical, Inc. in the U.S. District Court for the
Western District of Washington by plaintiffs alleging they
suffered injuries caused by Riata and Riata ST Silicone
Defibrillation Leads, according to the company's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 30, 2013.
The potential class of plaintiffs in this lawsuit is limited to
residents of the State of Washington.
The complaint seeks compensatory damages in unspecified amounts,
punitive damages and a declaratory judgment that the Company is
liable to the proposed class members for any past, present and
future evaluative monitoring, and corrective medical, surgical and
incidental expenses and losses.
As of May 6, 2013, the Company has also received 23 lawsuits from
individual plaintiffs alleging injuries caused by, and asserting
product liability claims concerning, Riata and Riata ST Silicone
Defibrillation Leads. Most of these individual lawsuits are
brought by a single plaintiff, but some of them name multiple
individuals as plaintiffs. The action in Washington is the only
case that seeks a class action.
One of the multi-plaintiff lawsuits, filed in the Superior Court
of California for the city and county of Los Angeles on April 4,
2013, joins 29 unrelated claimants, and two of the multi-plaintiff
lawsuits each join two unrelated claimants. Of these 23 lawsuits,
nine cases are pending in federal courts, including three in the
U.S. District Court for the District of Minnesota, four in the
U.S. District Court for the Central District of California, one in
the U.S. District Court for the Northern District of Georgia and
one in the U.S. District Court for the Eastern District of
Louisiana. The remaining 14 lawsuits are pending in state courts
across the country, including seven in Minnesota, five in
California, one in Indiana and one in South Carolina.
All but one of the claimants in the aforementioned suits allege
bodily injuries as a result of surgical removal and replacement of
Riata leads, or other complications, which they attribute to the
leads. The majority of the claimants who seek recovery for
implantation and/or surgical removal of Riata leads are seeking
compensatory damages in unspecified amounts, and declaratory
judgments that the Company is liable to the claimants for any
past, present and future evaluative monitoring, and corrective
medical, surgical and incidental expenses and losses. Several
claimants also seek punitive damages.
ST. JUDE MEDICAL: Minn. Securities Suit in Discovery
----------------------------------------------------
Discovery phase is ongoing in a securities lawsuit filed against
St. Jude Medical Inc. in federal district court in Minnesota,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 30, 2013.
In March 2010, a securities lawsuit seeking class action status
was filed in federal district court in Minnesota against the
Company and certain officers on behalf of purchasers of St. Jude
Medical common stock between April 22, 2009 and October 6, 2009.
The lawsuit relates to the Company's earnings announcements for
the first, second and third quarters of 2009, as well as a
preliminary earnings release dated October 6, 2009. The complaint,
which seeks unspecified damages and other relief as well as
attorneys' fees, alleges that the Company failed to disclose that
it was experiencing a slowdown in demand for its products and was
not receiving anticipated orders for cardiac rhythm management
devices.
Class members allege that the Company's failure to disclose the
above information resulted in the class purchasing St. Jude
Medical stock at an artificially inflated price. In December 2011,
the Court issued a decision denying a motion to dismiss filed by
the defendants in October 2010. On October 25, 2012, the Court
granted plaintiffs' motion to certify the case as a class action,
which defendants did not oppose.
The discovery phase of the case is ongoing, and the Company
intends to continue to vigorously defend against the claims
asserted in this lawsuit.
ST. JUDE MEDICAL: Minn. Court Consolidates Securities Suit
----------------------------------------------------------
The federal district court in Minnesota Court consolidated two
purported securities class actions against St. Jude Medical, Inc.,
and issued an order requiring that the plaintiffs file their
consolidated amended complaint by June 25, 2013, according to the
company's May 7, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 30, 2013.
On December 7, 2012, a securities class action lawsuit was filed
in federal district court in Minnesota against the Company and an
officer for alleged violations of the federal securities laws, on
behalf of all purchasers of the publicly traded securities of the
Company between October 17, 2012 and November 20, 2012.
The complaint, which seeks unspecified damages and other relief as
well as attorneys' fees, challenges the Company's disclosures
concerning its high voltage cardiac rhythm lead products during
the purported class period.
On December 10, 2012, a second securities class action lawsuit was
filed in federal district court in Minnesota against the Company
and certain officers for alleged violations of the federal
securities laws, on behalf of all purchasers of the publicly
traded securities of the Company between October 19, 2011 and
November 20, 2012. The second complaint pursues similar claims and
seeks unspecified damages and other relief as well as attorneys'
fees.
In March 2013, the Court consolidated the two cases, appointed
lead counsel and a lead plaintiff, and issued an order requiring
that the plaintiffs file their consolidated amended complaint by
June 25, 2013, and that the Company file its responsive pleading
by August 26, 2013. The Company intends to vigorously defend
against the claims asserted in this matter.
SUNTRUST BANKS: No Rehearing En Banc for ATM Fee Antitrust Suit
---------------------------------------------------------------
Plaintiffs in the ATM Fee Antitrust Litigation were denied a
rehearing en banc on its appeal against a decision by the Ninth
Circuit Court of Appeals to affirm a district court's grant of
summary judgment in favor of the defendants as to the remaining
claim in the suit, according to Suntrust Banks, Inc.'s May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
The Company is a defendant in a number of antitrust actions that
have been consolidated in federal court in San Francisco,
California under the name In re ATM Fee Antitrust Litigation,
Master File No. C04-2676 CR13. In these actions, Plaintiffs, on
behalf of a class, assert that Concord EFS and a number of
financial institutions have unlawfully fixed the interchange fee
for participants in the Star ATM Network. Plaintiffs claim that
Defendants' conduct is illegal under Section 1 of the Sherman Act.
Plaintiffs initially asserted the Defendants' conduct was illegal
per se.
In August 2007, Concord and the bank defendants filed motions for
summary judgment on Plaintiffs' per se claim. In March 2008, the
Court granted the motions on the ground that Defendants' conduct
in setting an interchange fee must be analyzed under the rule of
reason. The Court certified this question for interlocutory
appeal, and the Court of Appeals for the Ninth Circuit rejected
Plaintiffs' petition for permission to appeal on August 13, 2008.
Plaintiffs subsequently filed a Second Amended Complaint in which
they asserted a rule of reason claim. This complaint was dismissed
by the Court as well, but Plaintiffs were given leave to file
another amended complaint. Plaintiffs filed yet another complaint
and Defendants moved to dismiss the same. The Court granted this
motion in part by dismissing one of the Plaintiffs two claims but
denied the motion as to one claim.
On September 16, 2010, the Court granted the Defendants' motion
for summary judgment as to the remaining claim on the grounds that
Plaintiffs lack standing to assert that claim. Plaintiffs filed an
appeal of this decision with the Ninth Circuit Court of Appeals
and the Ninth Circuit affirmed the District Court's decision.
Plaintiffs filed a motion for rehearing en banc; however, this
motion has been denied.
SUNTRUST BANKS: Faces Overdraft Fee Cases in Georgia, Tennessee
---------------------------------------------------------------
Suntrust Banks, Inc. faces two remaining suits in Georgia and
Tennessee in connection with allegedly usurious overdraft fees
related to debit card and ATM transactions, according to the
company's May 7, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
The Company had been named as a defendant in three putative class
actions relating to the imposition of overdraft fees on customer
accounts. The first such case, Buffington et al. v. SunTrust
Banks, Inc. et al. was filed in Fulton County Superior Court on
May 6, 2009. This action was removed to the U.S. District Court
for the Northern District of Georgia, Atlanta Division on June 10,
2009, and was transferred to the U.S. District Court for the
Southern District of Florida for inclusion in Multi-District
Litigation Case No. 2036 on December 1, 2009.
Plaintiffs asserted claims for breach of contract, conversion,
unconscionability, and unjust enrichment for alleged injuries they
suffered as a result of the method of posting order used by the
Company, which allegedly resulted in overdraft fees being assessed
to their joint checking account, and purport to bring their action
on behalf of a putative class of "all SunTrust Bank account
holders who incurred an overdraft charge despite their account
having a sufficient balance of actual funds to cover all debits
that have been submitted to the bank for payment," as well as "all
SunTrust account holders who incurred one or more overdraft
charges based on SunTrust Bank's reordering of charges."
Plaintiffs sought restitution, damages, expenses of litigation,
attorneys' fees, and other relief deemed equitable by the Court.
The Company filed a Motion to Dismiss and Motion to Compel
Arbitration and both motions were denied. The denial of the motion
to compel arbitration was appealed to the Eleventh Circuit Court
of Appeals. The Eleventh Circuit remanded this matter back to the
District Court with instructions to the District Court to review
its prior ruling in light of the Supreme Court's decision in AT&T
Mobility LLC v. Concepcion.
The District Court then denied SunTrust's motion to compel
arbitration for different reasons. SunTrust appealed this decision
to the Eleventh Circuit and, on March 1, 2012, the Eleventh
Circuit reversed the District Court's decision and ordered that
SunTrust's Motion to Compel Arbitration be granted. Plaintiffs
filed a petition for rehearing or rehearing en banc, which was
denied. Plaintiffs have filed a petition for a writ of certiorari
to the U.S. Supreme Court, which also was denied. This matter is
now closed.
The second of these cases, Bickerstaff v. SunTrust Bank, was filed
in the Fulton County State Court on July 12, 2010, and an amended
complaint was filed on August 9, 2010. Plaintiff asserts that all
overdraft fees charged to his account which related to debit card
and ATM transactions are actually interest charges and therefore
subject to the usury laws of Georgia.
Plaintiff has brought claims for violations of civil and criminal
usury laws, conversion, and money had and received, and purports
to bring the action on behalf of all Georgia citizens who have
incurred such overdraft fees within the last four years where the
overdraft fee resulted in an interest rate being charged in excess
of the usury rate. SunTrust has filed a motion to compel
arbitration.
On March 16, 2012, the Court entered an order holding that
SunTrust's arbitration provision is enforceable but that the named
plaintiff in the case had opted out of that provision pursuant to
its terms. The court explicitly stated that it was not ruling at
that time on the question of whether the named plaintiff could
proceed with the case as a class rather than as an individual
action. SunTrust has filed an appeal of this decision, but this
appeal was dismissed based on a finding that leave to appeal was
improvidently granted. The parties now are conducting discovery in
anticipation of a motion for class certification.
The third of these cases, Byrd v. SunTrust Bank, was filed on
April 23, 2012, in the United States District Court for the
Western District of Tennessee. This case is substantially similar
to the Bickerstaff matter. SunTrust has filed a Motion to Compel
Arbitration.
SUNTRUST BANKS: STRH Faces Remaining Suits Over Lehman Offerings
----------------------------------------------------------------
A number of individual lawsuits and smaller putative class actions
remained pending against SunTrust Robinson Humphrey, Inc. (STRH)
following an approved class settlement in a larger case, In re
Lehman Brothers Equity/Debt Securities Litigation,
according to Suntrust Banks, Inc.'s May 7, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
Beginning in October 2008, STRH, along with other underwriters and
individuals, were named as defendants in several individual and
putative class action complaints filed in the U.S. District Court
for the Southern District of New York and state and federal courts
in Arkansas, California, Texas, and Washington.
Plaintiffs allege violations of Sections 11 and 12 of the
Securities Act of 1933 for allegedly false and misleading
disclosures in connection with various debt and preferred stock
offerings of Lehman Brothers Holdings, Inc. ("Lehman Brothers")
and seek unspecified damages. All cases have now been transferred
for coordination to the multi-district litigation captioned In re
Lehman Brothers Equity/Debt Securities Litigation pending in the
U.S. District Court for the Southern District of New York.
Defendants filed a motion to dismiss all claims asserted in the
class action. On July 27, 2011, the District Court granted in part
and denied in part the motion to dismiss the class claims against
STRH and the other underwriter defendants. A settlement with the
class plaintiffs was approved by the Court on December 15, 2011.
The class notice and opt-out process is complete and the class
settlement approval process has been completed.
A number of individual lawsuits and smaller putative class actions
remained pending following the class settlement. After motions to
dismiss in some of these cases, a few individual actions or claims
have survived and are in the discovery phase.
SUNTRUST BANK: Awaits Order in Colonial BancGroup Securities Suit
-----------------------------------------------------------------
An amended complaint in In re Colonial BancGroup, Inc. Securities
Litigation was submitted as defendants filed a motion to dismiss
the case, Suntrust Banks, Inc. disclosed in its May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
Beginning in July 2009, SunTrust Robinson Humphrey, Inc. (STRH),
certain other underwriters, The Colonial BancGroup, Inc.
("Colonial BancGroup") and certain officers and directors of
Colonial BancGroup were named as defendants in a putative class
action filed in the U.S. District Court for the Middle District of
Alabama, Northern District entitled In re Colonial BancGroup, Inc.
Securities Litigation.
The complaint was brought by purchasers of certain debt and equity
securities of Colonial BancGroup and seeks unspecified damages.
Plaintiffs allege violations of Sections 11 and 12 of the
Securities Act of 1933 due to allegedly false and misleading
disclosures in the relevant registration statement and prospectus
relating to Colonial BancGroup's goodwill impairment, mortgage
underwriting standards, and credit quality. On August 28, 2009,
The Colonial BancGroup filed for bankruptcy. The defendants'
motion to dismiss was denied in May 2010, but the Court
subsequently ordered Plaintiffs to file an amended complaint. This
amended complaint was filed and the defendants filed a motion to
dismiss.
SUNTRUST BANKS: 11th Cir. Remands Securities Suit to N.D. Ga.
-------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit issued an order
remanding a securities lawsuit against Suntrust Banks, Inc.
to the District Court for further proceedings in light of its
decision in The Home Depot case, which presents substantially
similar issues, according to Suntrust's May 7, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Beginning in July 2008, the Company and certain officers,
directors, and employees of the Company were named in a putative
class action alleging that they breached their fiduciary duties
under ERISA by offering the Company's common stock as an
investment option in the SunTrust Banks, Inc. 401(k) Plan (the
"Plan").
The plaintiffs purport to represent all current and former Plan
participants who held the Company stock in their Plan accounts
from May 2007 to the present and seek to recover alleged losses
these participants supposedly incurred as a result of their
investment in Company stock.
The Company Stock Class Action was originally filed in the U.S.
District Court for the Southern District of Florida but was
transferred to the U.S. District Court for the Northern District
of Georgia, Atlanta Division, (the "District Court") in November
2008.
On October 26, 2009, an amended complaint was filed. On December
9, 2009, defendants filed a motion to dismiss the amended
complaint. On October 25, 2010, the District Court granted in part
and denied in part defendants' motion to dismiss the amended
complaint. Defendants and plaintiffs filed separate motions for
the District Court to certify its October 25, 2010 order for
immediate interlocutory appeal. On January 3, 2011, the District
Court granted both motions.
On January 13, 2011, defendants and plaintiffs filed separate
petitions seeking permission to pursue interlocutory appeals with
the U.S. Court of Appeals for the Eleventh Circuit ("the Circuit
Court"). On April 14, 2011, the Circuit Court granted defendants
and plaintiffs permission to pursue interlocutory review in
separate appeals. The Circuit Court subsequently stayed these
appeals pending decision of a separate appeal involving The Home
Depot in which substantially similar issues are presented. On May
8, 2012, the Circuit Court decided this appeal in favor of The
Home Depot. On March 5, 2013, the Circuit Court issued an order
remanding the case to the District Court for further proceedings
in light of its decision in The Home Depot case.
SUNTRUST BANKS: Dismissal of Suit Over Mutual Funds on Appeal
-------------------------------------------------------------
The plaintiff who purportedly represents a class of current and
former Suntrust Banks, Inc. Plan participants who held STI Classic
Mutual Funds in their Plan accounts is appealing a dismissal of
the suit to the U.S. Court of Appeals for the Eleventh Circuit,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On March 11, 2011, the Company and certain officers, directors,
and employees of the Company were named in a putative class action
alleging that they breached their fiduciary duties under ERISA by
offering certain STI Classic Mutual Funds as investment options in
the Plan.
The plaintiff purports to represent all current and former Plan
participants who held the STI Classic Mutual Funds in their Plan
accounts from April 2002 through December 2010 and seeks to
recover alleged losses these Plan participants supposedly incurred
as a result of their investment in the STI Classic Mutual Funds.
This action was pending in the U.S. District Court for the
Northern District of Georgia, Atlanta Division (the "District
Court"). On June 6, 2011, plaintiff filed an amended complaint,
and, on June 20, 2011, defendants filed a motion to dismiss the
amended complaint. On March 12, 2012, the Court granted in part
and denied in part the motion to dismiss. The Company filed a
subsequent motion to dismiss the remainder of the case on the
ground that the Court lacked subject matter jurisdiction over the
remaining claims. On October 30, 2012, the Court dismissed all
claims in this action.
Immediately thereafter, plaintiffs' counsel initiated a
substantially similar lawsuit against the Company substituting two
new plaintiffs and also filed an appeal of the dismissal with the
U.S. Court of Appeals for the Eleventh Circuit. SunTrust has filed
a motion to dismiss in the new action and will defend itself in
the appeal filed with the Eleventh Circuit.
SUNTRUST BANKS: Motion to Junk Mortgage Reinsurance Suit Pending
----------------------------------------------------------------
A motion to dismiss is pending in the case Thurmond, Christopher,
et al. v. SunTrust Banks, Inc. et al., which alleges that the
company's "captive reinsurance" arrangements with private mortgage
insurers are illegal, according to the company's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
SunTrust Mortgage, Inc. (STM) and Twin Rivers Insurance Company
("Twin Rivers") have been named as defendants in two putative
class actions alleging that the companies entered into illegal
"captive reinsurance" arrangements with private mortgage insurers.
More specifically, plaintiffs allege that SunTrust's selection of
private mortgage insurers who agree to reinsure loans referred to
them by SunTrust with Twin Rivers results in illegal "kickbacks"
in the form of the insurance premiums paid to Twin Rivers.
Plaintiffs contend that this arrangement violates the Real Estate
Settlement Procedures Act ("RESPA") and results in unjust
enrichment to the detriment of borrowers.
The first of these cases, Thurmond, Christopher, et al. v.
SunTrust Banks, Inc. et al., was filed in February 2011 in the
U.S. District Court for the Eastern District of Pennsylvania. This
case was stayed by the Court pending the outcome of Edwards v.
First American Financial Corporation, a captive reinsurance case
that was pending before the U.S. Supreme Court at the time.
The second of these cases, Acosta, Lemuel & Maria Ventrella et al.
v. SunTrust Bank, SunTrust Mortgage, Inc., et al., was filed in
the U.S. District Court for the Central District of California in
December 2011. This case was stayed pending a decision in the
Edwards case also.
In June 2012, the U.S. Supreme Court withdrew its grant of
certiorari in Edwards and, as a result, the stays in these cases
were lifted. The plaintiffs in Acosta voluntarily dismissed this
case. A motion to dismiss is pending in the Thurmond case.
SUSQUEHANNA BANCSHARES: Awaits Approval of Overdraft Suit Accord
----------------------------------------------------------------
Susquehanna Bank is still awaiting the approval of the U.S.
District Court for the Southern District of Florida of the Summary
Agreement it entered into to settle an overdraft litigation for
$3,650,000, according to Susquehanna Bancshares, Inc.'s May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On July 29, 2011, Susquehanna Bank was named as a defendant in a
purported class action lawsuit filed by two New Jersey customers
of the bank in the United States District Court of Maryland. The
suit challenges the manner in which checking account overdraft
fees were charged and the policies related to the posting order of
debit card and other checking account transactions.
The suit makes claims under New Jersey's consumer fraud act and
under the common law for breach of contract, breach of the
covenant of good faith and fair dealing, unconscionability,
conversion and unjust enrichment. The case was transferred for
pretrial proceedings to pending multi-district litigation in the
U.S. District Court for the Southern District of Florida.
To avoid the costs, risks and uncertainties inherent in litigation
and without admitting any of the allegations in the complaint,
Susquehanna in good faith participated in mediation with
plaintiffs' counsel and as a result of negotiations following from
the mediation, on December 20, 2012, Susquehanna and counsel for
plaintiffs entered into a Summary Agreement agreeing to settle the
suit for $3,650,000, subject to preliminary and final approval of
the settlement and dismissal of the action with prejudice by the
Court.
TESLA MOTORS: Recalls 260 Electric Sedans Due to Faulty Latch
-------------------------------------------------------------
Joseph B. White of The Wall Street Journal reports that Tesla
Motors Inc. is recalling about 260 of its Model S electric sedans
to fix a rear-seat latch that could malfunction in a crash.
Tesla recalls some Model S electric sedans after company quality
tests reveal a faulty latch, and Chrysler bows to regulator
pressure to recall older-model Jeeps. Christina Rogers joins
Lunch Break with a look at what this means for drivers and the
companies.
The Silicon Valley car maker said Wednesday, June 19, 2013, that
it acted after discovering the potential problem in its own
quality tests, and hasn't received customer complaints. Federal
regulators weren't involved, the Company said.
A Company spokeswoman said the recall affects about 20% of the
1,300 electric luxury vehicles built between May 10 and June 8.
Tesla said it will pick up the cars involved, reinforce the seat-
latch assemblies, and return them to customers.
TOWERS WATSON: Shareholder Suit v. Towers Perrin in Mediation
-------------------------------------------------------------
A consolidated case filed by certain former shareholders of Towers
Perrin against the company was assigned for mediation pursuant to
the mediation program of the U.S. Court of Appeals for the Third
Circuit, and the mediation process is ongoing, according to Towers
Watson & Co.'s May 7, 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 was filed by certain former
shareholders of Towers Perrin (the "Dugan Action"). The complaint
was filed on November 5, 2009 against Towers Perrin, members of
its board of directors, and certain members of senior management
in the United States District Court for the Eastern District of
Pennsylvania.
Plaintiffs in this action are former members of Towers Perrin's
senior management, who left Towers Perrin at various times between
1995 and 2000. The Dugan plaintiffs seek to represent a class of
former Towers Perrin shareholders who separated from service on or
after January 1, 1971, and who also meet certain other specified
criteria. The complaint does not contain a quantification of the
damages sought.
On December 9, 2009, Watson Wyatt was informed by Towers Perrin of
a settlement demand from the plaintiffs in the Dugan Action.
Although the complaint in the Dugan Action does not contain a
quantification of the damages sought, plaintiffs' settlement
demand, which was orally communicated to Towers Perrin on December
8, 2009 and in writing on December 9, 2009, sought a payment of
$800 million to settle the action on behalf of the proposed class.
Plaintiffs requested that Towers Perrin communicate the settlement
demand to Watson Wyatt.
On December 17, 2009, four other former Towers Perrin
shareholders, all of whom voluntarily left Towers Perrin in May or
June 2005 and all of whom are excluded from the proposed class in
the Dugan Action, commenced a separate legal proceeding (the
"Allen Action") in the United States District Court for the
Eastern District of Pennsylvania alleging the same claims in
substantially the same form as those alleged in the Dugan Action.
A fifth plaintiff joined this action on August 29, 2011. These
plaintiffs are proceeding in their individual capacities and do
not seek to represent a proposed class.
On January 15, 2010, another former Towers Perrin shareholder who
separated from service with Towers Perrin in March 2005 when
Towers Perrin and EDS launched a joint venture that led to the
creation of a corporate entity known as ExcellerateHRO ("eHRO"),
commenced a separate legal proceeding (the "Pao Action") in the
United States District Court of the Eastern District of
Pennsylvania alleging the same claims in substantially the same
form as those alleged in the Dugan Action.
Towers Perrin contributed its Towers Perrin Administrative
Solutions ("TPAS") business to eHRO and formerly was a minority
shareholder (15%) of eHRO. Pao seeks to represent a class of
former Towers Perrin shareholders who separated from service in
connection with Towers Perrin's contribution to eHRO of its TPAS
business and who are excluded from the proposed class in the Dugan
Action. Towers Watson is also named as a defendant in the Pao
Action.
Pursuant to the Towers Perrin Bylaws in effect at the time of
their separations, the Towers Perrin shares held by all plaintiffs
were redeemed by Towers Perrin at book value when these
individuals separated from employment. The complaints allege
variously that there either was a promise that Towers Perrin would
remain privately owned in perpetuity (Dugan Action) or that in the
event of a change to public ownership plaintiffs would receive
compensation (Allen and Pao Actions).
Plaintiffs allege that by agreeing to sell their shares back to
Towers Perrin at book value upon separation, they and other
members of the putative classes relied upon these alleged
promises, which they claim were breached as a result of the
consummation of the Merger between Watson Wyatt and Towers Perrin.
The complaints assert claims for breach of contract, breach of
express trust, breach of fiduciary duty, promissory estoppel,
quasi-contract/unjust enrichment, and constructive trust, and seek
equitable relief including an accounting, disgorgement, rescission
and/or restitution, and the imposition of a constructive trust. On
January 20, 2010, the court consolidated the three actions for all
purposes.
On February 22, 2010, defendants filed a motion to dismiss the
complaints in their entireties. By order dated September 30, 2010,
the court granted the motion to dismiss plaintiffs' claim for a
constructive trust and denied the motion with respect to all other
claims alleged. Pursuant to the court's September 30, 2010 order,
defendants also filed answers to plaintiffs' complaints on October
22, 2010.
The parties have completed fact discovery. Neither the plaintiffs
in Dugan nor the plaintiff in Pao have moved for class
certification. Defendants filed a motion for summary judgment on
all claims in all actions on December 23, 2011. The court heard
argument on June 19, 2012, and on December 11, 2012 granted
defendants' motion, and entered judgment in favor of defendants on
all claims.
On January 10, 2013, plaintiffs filed a joint notice of their
intent to appeal the court's judgment to the U.S. Court of Appeals
for the Third Circuit. On February 13, 2013, the parties were
notified that the appeal had been assigned for mediation pursuant
to the Third Circuit's mediation program, and the mediation
process is ongoing. The appellate court will not issue a briefing
schedule for the appeal unless and until it has been informed the
mediation was unsuccessful.
TRANSUNION HOLDING: One Party Dissents Privacy Suit Accord
----------------------------------------------------------
A final order regarding the distributions from the Privacy
Litigation Settlement fund that was created by Transunion Holding
Company, Inc. was agreed to by all class counsel, except one,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
The company is a defendant in sixteen purported class actions that
arose from activities of the company's Performance Data Division
that was discontinued over 12 years ago. Fifteen of these
purported class actions alleging violations of federal law were
consolidated for pre-trial purposes in the United States District
Court for the Northern District of Illinois (Eastern Division) and
are known as In Re TransUnion Corp. Privacy Litigation, MDL Docket
No. 1350. The company refers to these matters as the "Privacy
Litigation." A companion class action alleging violation of
Louisiana state law was filed in 2002 (Andrews v. Trans Union LLC,
case No. 02-18553, Civil District, Parish of Orleans, Louisiana),
and we refer to this matter as the "Louisiana Action."
A settlement of the Privacy Litigation and the Louisiana Action
was approved by the Court on September 17, 2008 (the
"Settlement"). The Louisiana Action has been dismissed. After
numerous hearings on this matter, the Court, on February 22, 2013,
issued a final order regarding the distributions from the
Settlement fund that was created by the Company and terminated the
proceedings. This final order was agreed to by all class counsel,
except one. Objecting class counsel has sought a review of the
final order and certain interlocutory orders in the US Court of
Appeals.
TRANSUNION HOLDING: Final OK for $51MM Settlement Reversed
----------------------------------------------------------
The US Court of Appeals reversed the final approval of a $51.0
million settlement of the Bankruptcy Tradeline Litigation against
Transunion Holding Company, Inc. and remanded the case back for
further proceedings, according to Transunion's May 7, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
In a matter captioned White, et al v. Experian Information
Solutions, Inc. (No. 05-cv-01070-DOC/MLG, filed in 2005 in the
United States District Court for the Central District of
California), plaintiffs sought class action status against
Equifax, Experian and the company in connection with the reporting
of delinquent or charged-off consumer debt obligations on a
consumer report after the consumer was discharged in a bankruptcy
proceeding.
The claims allege that each national consumer reporting company
did not automatically update a consumer's file after their
discharge from bankruptcy and such non-action was a failure to
employ reasonable procedures to assure maximum file accuracy, a
requirement of the United States Fair Credit Reporting Act (FCRA).
Without admitting any wrongdoing, the company agreed to a
settlement of this matter. On August 19, 2008, the Court approved
an agreement whereby the company and the other industry defendants
voluntarily changed certain operational practices. These changes
require the company to update certain delinquent records when the
company learn, through the collection of public records, that the
consumer has received an order of discharge in a bankruptcy
proceeding. These business practice changes did not have a
material adverse impact on the company's operations or those of
the company's customers.
In 2009, the company also agreed with the other two defendants to
settle the monetary claims associated with this matter for $17.0
million each ($51.0 million in total), which amount will be
distributed from a settlement fund to pay the class counsel's
attorney fees, all administration and notice costs of the fund to
the purported class, and a variable damage amount to consumers
within the class based on the level of harm the consumer is able
to confirm. The company's share of this settlement was fully
covered by insurance. Final approval of this monetary settlement
by the Court occurred on July 15, 2011. The Court's final approval
of the monetary settlement was appealed by certain objecting
plaintiffs to the US Court of Appeals.
On April 22, 2013, the US Court of Appeals issued its opinion,
reversing the Court's final approval and remanded the case back to
that Court for further proceedings. The stated rationale of the US
Court of Appeals was that there was an improper conflict of
interest between the named class representatives and absent class
members, and that there were ethical concerns regarding the
plaintiffs' class counsel that were not properly addressed. Once
the matter is returned to the lower Court the company will learn
the next steps.
TRAVELCENTERS OF AMERICA: Class Named in Cal. "Hot Fuel" Cases
--------------------------------------------------------------
A recent court ruling granted plaintiffs' motion for class
certification in California cases brought by retail purchasers of
motor fuel at temperatures greater than 60 degrees Fahrenheit at
the time of sale. The class is limited to the "liability" and
injunctive aspects of the plaintiffs' claims, according to
Travelcenters of America LLC's May 7, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Beginning in December 2006, a series of class action lawsuits was
filed against numerous companies in the petroleum industry,
including the company's predecessor and the company's
subsidiaries, in U.S. district courts in over 20 states. Major
petroleum refiners and retailers were named as defendants in one
or more of these lawsuits.
The plaintiffs in the lawsuits generally allege that they are
retail purchasers who purchased motor fuel at temperatures greater
than 60 degrees Fahrenheit at the time of sale. One theory
alleges that the plaintiffs purchased smaller amounts of motor
fuel than the amount for which defendants charged them because the
defendants measured the amount of motor fuel they delivered by
volumes which, at higher temperatures, contain less energy.
A second theory alleges that fuel taxes are calculated in
temperature adjusted 60 degree gallons and are collected by
governmental agencies from suppliers and wholesalers, who are
reimbursed in the amount of the tax by the defendant retailers
before the fuel is sold to consumers.
These "tax" cases allege that, when the fuel is subsequently sold
to consumers at temperatures above 60 degrees, the retailers sell
a greater volume of fuel than the amount on which they paid tax,
and therefore reap unjust benefit because the customers pay more
tax than the retailer pays.
A third theory, advanced more recently in connection with
plaintiffs' request for class certification, alleges that all
purchasers of fuel at any temperature are harmed because the
defendants do not use equipment that adjusts for temperature or
disclose the temperature of fuel being sold, and thereby deprive
customers of information they allegedly require to make an
informed purchasing decision.
The company believes that there are substantial factual and legal
defenses to the theories alleged in these so called "hot fuel"
lawsuits. The "temperature" cases seek nonmonetary relief in the
form of an order requiring the defendants to install devices that
display the temperature of the fuel and/or temperature correcting
equipment on their retail fuel pumps and monetary relief in the
form of damages, but the plaintiffs have not quantified the
damages they seek.
The "tax" cases also seek monetary relief. Plaintiffs have
proposed a formula (which the company disputes) to measure these
damages as the difference between the amount of fuel excise taxes
paid by defendants and the amount collected by defendants on motor
fuel sales.
Plaintiffs have taken the position in filings with the Court that
under this approach, the company's damages for an eight-year
period for one state would be approximately $10,700. The company
denies liability and disagree with the plaintiffs' positions.
All of these cases have been consolidated in the U.S. District
Court for the District of Kansas pursuant to multi-district
litigation procedures. On May 28, 2010, that Court ruled that,
with respect to two cases originally filed in the U.S. District
Court for the District of Kansas, it would grant plaintiffs'
motion to certify a class of plaintiffs seeking injunctive relief
(implementation of fuel temperature equipment and/or posting of
notices regarding the effect of temperature on fuel).
On January 19, 2012, the Court amended its prior ruling, and
certified a class with respect to plaintiffs' claims for damages
as well. A TA entity was named in one of those two Kansas cases,
but the Court ruled that the named plaintiffs were not sufficient
to represent a class as to TA. TA was thereafter dismissed from
the Kansas case, and TA entities have been dismissed voluntarily
from several other cases as well.
Several defendants in the Kansas cases, including major petroleum
refiners, have entered into multi-state settlements. Following a
September 2012 trial against the remaining defendants in the
Kansas cases, the jury returned a unanimous verdict in favor of
those Kansas defendants, and the judge likewise ruled in the
Kansas defendants' favor on the sole non-jury claim.
In early 2013, the Court announced its intention to remand three
cases originally filed in federal district courts in California
back to their original courts. A TA entity is named in one of
these three California cases. Recently, the Court severed one
defendant from these California cases and announced that the cases
would proceed with respect to that defendant, and would be stayed
to all others, including TA.
On April 9, 2013, the Court granted plaintiffs' motion for class
certification in the California cases. The class is limited to
the "liability" and injunctive aspects of the plaintiffs' claims,
leaving the question of relief in the form of damages for a second
phase of the trial. The Court has not issued a decision on class
certification or motions for summary judgment with respect to the
remaining cases that have been consolidated in the multi-district
litigation.
TRAVELCENTERS OF AMERICA: Aug. Trial in Suit Over Fuel Cards
------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
has set a schedule for fact discovery in time for a trial by
August 18, 2014, in a suit filed against Travelcenters of America
LLC over fuel cards which are used for payments by trucking
companies at truck stops, according to the company's May 7, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
On April 6, 2009, five independent truck stop owners, who are
plaintiffs in a purported class action suit against Comdata
Network, Inc., or Comdata, in the U.S. District Court for the
Eastern District of Pennsylvania, filed a motion to amend their
complaint to add the company as a defendant, which was allowed on
March 25, 2010.
The amended complaint also added as defendants Ceridian
Corporation, Pilot Travel Centers LLC and Love's Travel Stops &
Country Stores, Inc. Comdata markets fuel cards which are used
for payments by trucking companies at truck stops. The amended
complaint alleged antitrust violations arising out of Comdata's
contractual relationships with truck stops in connection with its
fuel cards.
The plaintiffs have sought unspecified damages and injunctive
relief. On March 24, 2011, the Court dismissed the claims against
TA in the amended complaint, but granted plaintiffs leave to file
a new amended complaint. Four independent truck stop owners, as
plaintiffs, filed a new amended complaint against the company on
April 21, 2011, repleading their claims.
The company disclosed:
"On May 6, 2011, we renewed our motion to dismiss the complaint
with prejudice while discovery otherwise proceeded. The Court
denied our renewed motion to dismiss on March 29, 2012, and we
filed an answer to the complaint on April 30, 2012. The Court has
set a schedule that provides that fact discovery shall end on May
24, 2013, and trial shall begin on August 18, 2014."
US FOODS: Administrator Finalizing $3MM Accord in Labor Suit
------------------------------------------------------------
The Third Party Administrator is currently finalizing settlement
payment to the identified class members in a labor suit filed
against US Foods, Inc. in 2010, according to the company's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 30, 2013.
In April 2010, a putative class action complaint was filed against
the Company in California alleging the Company failed to meet its
obligations under the California Labor Code related to the
provision of meals and breaks for certain drivers. The case has
been removed to federal court.
In December 2011, the parties reached a tentative settlement of
all claims, subject to court approval, and the Company recorded a
liability of $3 million to reflect the settlement. In September
2012, the court entered final approval of the settlement which the
Company paid into the court's escrow account in October 2012.
The Third Party Administrator is currently finalizing payment to
the identified class members in accordance with the court approved
settlement.
US FOODS: Certified Class Suit Over Pricing in Discovery
--------------------------------------------------------
A consolidated case filed against US Foods, Inc. in the U.S.
District Court for the District of Connecticut over alleged
unlawful pricing practices continues through the discovery stage,
according to the company's May 7, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 30, 2013.
In October 2006, two customers filed a putative class action
against the Company and Koninklijke Ahold N.V. In December 2006,
an amended complaint was filed naming a third plaintiff. The
complaint focuses on certain pricing practices of the Company in
contracts with some of its customers.
In February 2007, the Company filed a motion to dismiss the
complaint. In August 2007, two additional customers of the Company
filed putative class action complaints. These two additional
lawsuits are based upon the pricing practices at issue in the case
described in the first two sentences of this paragraph.
In November 2007, the Judicial Panel on Multidistrict Litigation
ordered the transfer of the two subsequently filed lawsuits to the
jurisdiction in which the first lawsuit was filed, the U.S.
District Court for the District of Connecticut, for consolidated
or coordinated proceedings.
In June 2008, the Plaintiffs filed their consolidated and amended
class action complaint; the Company moved to dismiss this
complaint. In August 2009, the Plaintiffs filed a motion for class
certification. In December 2009, the court issued a ruling on the
Company's motion to dismiss, dismissing Ahold from the case and
also dismissing certain of the plaintiffs' claims.
On November 30, 2011, the court issued its ruling granting the
plaintiffs' motion to certify the class. On April 4, 2012, the
U.S. Court of Appeals for the Second Circuit granted the Company's
request to appeal the district court's decision which granted
class certification. Oral argument was scheduled for
May 29, 2013 before the appeals court. In the meantime, the case
continues through the discovery stage.
VENAXIS INC: Dismissal of "Wolfe" Securities Suit on Appeal
-----------------------------------------------------------
Parties in a securities lawsuit filed against Venaxis, Inc. have
filed briefs in relation to an appeal of plaintiffs against a
ruling dismissing the case, according to the company's May 7,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On October 1, 2010, the Company received a complaint, captioned
John Wolfe, individually and on behalf of all others similarly
situated v. AspenBio Pharma, Inc. (now Venaxis, Inc.) et al., Case
No. CV10 7365 ("Wolfe Suit").
This federal securities purported class action was filed in the
U.S. District Court in the Central District of California on
behalf of all persons, other than the defendants, who purchased
common stock of the Company during the period between February 22,
2007 and July 19, 2010, inclusive. The complaint named as
defendants certain officers and directors of the Company during
such period. The complaint included allegations of violations of
Section 10(b) of the Exchange Act and SEC Rule 10b-5 against all
defendants, and of Section 20(a) of the Exchange Act against the
individual defendants, all related to the Company's blood-based
acute appendicitis test in development.
On the Company's motion, this action was also transferred to the
U.S. District Court for the District of Colorado by order dated
January 21, 2011. The action was assigned a District of Colorado
Civil Case No. 11-cv-00165-REB-KMT. On July 11, 2011, the court
appointed a lead plaintiff and approved lead counsel. On August
23, 2011, the lead plaintiff filed an amended putative class
action complaint.
On October 7, 2011, the Company filed a motion to dismiss the
amended complaint. On September 13, 2012, the United States
District Court for Colorado granted the Company's motion to
dismiss, dismissing the plaintiffs' claims against all defendants
without prejudice. On September 14, 2012, the court entered Final
Judgment without prejudice on behalf of all defendants and against
all plaintiffs in the Wolfe Suit. The Order to dismiss the action
found in favor of the company and all of the individual
defendants.
On October 12, 2012, the plaintiffs filed a Notice of Appeal of
the Order granting the motion to dismiss and of the Final Judgment
in the Wolfe Suit. The plaintiffs filed their opening brief with
the Tenth Circuit Court of Appeals on March 1, 2013. The Company
filed its answering brief with the Tenth Circuit Court of Appeals
on April 8, 2013.
W.R. GRACE: Faces 1,310 New ZONOLITE Property Damage Claims
-----------------------------------------------------------
As of March 31, 2013, an additional 1,310 U.S. ZONOLITE Attic
Insulation (ZAI) Property Damage (PD) Claims were filed against
W.R. Grace & Co., 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.
During 2000 and the first quarter of 2001, Grace experienced
several adverse developments in its asbestos-related litigation,
including: a significant increase in personal injury claims,
higher than expected costs to resolve personal injury and certain
property damage claims, and class action lawsuits alleging damages
from ZONOLITE Attic Insulation (ZAI), a former Grace attic
insulation product.
After a thorough review of these developments, Grace's Board of
Directors concluded that a federal court-supervised bankruptcy
process provided the best forum available to achieve fairness in
resolving these claims and on April 2, 2001 (the "Filing Date"),
Grace and 61 of its United States subsidiaries and affiliates,
(collectively, the "Debtors"), filed voluntary petitions for
reorganization (the "Filing") under Chapter 11 of the United
States Bankruptcy Code in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"). The cases were
consolidated and are being jointly administered under case number
01-01139 (the "Chapter 11 Cases"). Grace's non-U.S. subsidiaries
and certain of its U.S. subsidiaries were not included in the
Filing.
Asbestos Property Damage Lawsuits
The plaintiffs in asbestos property damage lawsuits generally seek
to have the defendants pay for the cost of removing, containing or
repairing the asbestos-containing materials in the affected
buildings. Various factors can affect the merit and value of PD
Claims, including legal defenses, product identification, the
amount and type of product involved, the age, type, size and use
of the building, the legal status of the claimant, the
jurisdictional history of prior cases, the court in which the case
is pending, and the difficulty of asbestos abatement, if
necessary.
Out of 380 asbestos property damage cases (which involved
thousands of buildings) filed prior to the Filing Date, 16 remain
unresolved. Eight cases relate to ZAI and eight relate to a number
of former asbestos-containing products (two of which also are
alleged to involve ZAI).
Approximately 4,400 additional PD claims were filed prior to the
March 31, 2003, claims bar date established by the Bankruptcy
Court. (The March 31, 2003, claims bar date did not apply to ZAI
claims.) Grace objected to virtually all PD claims on a number of
legal and factual bases. As of March 31, 2013, approximately 430
PD Claims subject to the March 31, 2003, claims bar date remain
outstanding. The Bankruptcy Court has approved settlement
agreements covering approximately 410 of such claims for an
aggregate allowed amount of $151.7 million.
Eight of the ZAI cases were filed as purported class action
lawsuits in 2000 and 2001. In addition, 10 lawsuits were filed as
purported class actions in 2004 and 2005 with respect to persons
and homes in Canada. These cases seek damages and equitable
relief, including the removal, replacement and/or disposal of all
such insulation. The plaintiffs assert that this product is in
millions of homes and that the cost of removal could be several
thousand dollars per home. As a result of the Filing, all of these
cases have been stayed.
Based on Grace's investigation of the claims described in these
lawsuits, and testing and analysis of this product by Grace and
others, Grace believes that ZAI was and continues to be safe for
its intended purpose and poses little or no threat to human
health. The plaintiffs in the ZAI lawsuits dispute Grace's
position on the safety of ZAI. In December 2006, the Bankruptcy
Court issued an opinion and order holding that, although ZAI is
contaminated with asbestos and can release asbestos fibers when
disturbed, there is no unreasonable risk of harm from ZAI. In the
event the Joint Plan does not become effective, the ZAI claimants
have reserved their right to appeal such opinion and order if and
when it becomes a final order.
At the Debtors' request, in July 2008, the Bankruptcy Court
established a claims bar date for U.S. ZAI PD Claims and approved
a related notice program that required any person with a U.S. ZAI
PD Claim to submit an individual proof of claim no later than
October 31, 2008. Approximately 17,960 U.S. ZAI PD Claims were
filed prior to the October 31, 2008, claims bar date, and as of
March 31, 2013, an additional 1,310 U.S. ZAI PD Claims were filed.
Under the Canadian ZAI Settlement, all Canadian ZAI PD Claims
filed before December 31, 2009, would be eligible to seek
compensation from the Canadian ZAI property damage claims fund.
Approximately 13,100 Canadian ZAI PD Claims were filed by December
31, 2009.
In November 2008, the Debtors, the Putative Class Counsel to the
U.S. ZAI property damage claimants, the PD FCR, and the Equity
Committee reached an agreement designed to resolve all present and
future U.S. ZAI PD Claims. The terms of the U.S. and Canadian ZAI
agreements in principle have been incorporated into the terms of
the Joint Plan and related documents.
Upon the occurrence of the effective date under the Joint Plan,
all pending and future PD Claims would be channeled for resolution
to the PD Trust. PD Claims other than U.S. and Canadian ZAI PD
Claims would be litigated in the Bankruptcy Court or a U.S.
District Court, including all claims and defenses that would have
been available to the parties prior to the filing of the Chapter
11 Cases as well as any defenses based on the March 31, 2003,
claims bar date. Any claims determined to be allowed claims would
be paid in cash by the PD Trust. Grace would be obligated to fund
the PD Trust every six months in an amount sufficient to enable
the PD Trust to pay all such allowed claims and Trust-related
expenses.
All allowed U.S. ZAI PD Claims would be paid by the PD Trust from
the ZAI PD account and all allowed Canadian ZAI PD Claims would be
paid by the Canadian ZAI property damage claims fund. Grace would
have no liability or obligation for asbestos-related ZAI PD
claims, except for its obligations to fund the PD Trust's ZAI PD
account.
WARNER CHILCOTT: Inks Deal to Settle 74 Claims in ACTONEL Suits
---------------------------------------------------------------
Warner Chilcott Public Limited Company disclosed in its May 10,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013, that it entered
into a settlement agreement in respect of up to 74 osteonecrosis
of the jaw-related claims in May 2013.
The Company is a defendant in approximately 256 cases and a
potential defendant with respect to approximately 374 unfiled
claims involving a total of approximately 639 plaintiffs and
potential plaintiffs relating to the Company's bisphosphonate
prescription drug ACTONEL. The claimants allege, among other
things, that ACTONEL caused them to suffer osteonecrosis of the
jaw ("ONJ"), a rare but serious condition that involves severe
loss or destruction of the jawbone, and/or atypical fractures of
the femur ("AFF"). All of the cases have been filed in either
federal or state courts in the United States. The Company is in
the initial stages of discovery in these litigations. The 374
unfiled claims involve potential plaintiffs that have agreed,
pursuant to a tolling agreement, to postpone the filing of their
claims against the Company in exchange for the Company's agreement
to suspend the statutes of limitations relating to their potential
claims. In addition, the Company is aware of four purported
product liability class actions that were brought against the
Company in provincial courts in Canada alleging, among other
things, that ACTONEL caused the plaintiffs and the proposed class
members who ingested ACTONEL to suffer atypical fractures or other
side effects. It is expected that these plaintiffs will seek
class certification. Of the approximately 643 total ACTONEL-
related claims, approximately 157 include ONJ-related claims,
approximately 468 include AFF-related claims and approximately 4
include both ONJ and AFF-related claims. The Company is reviewing
these lawsuits and potential claims and intends to defend these
claims vigorously.
Sanofi, which co-promotes ACTONEL with the Company on a global
basis pursuant to a collaboration agreement, is a defendant in
many of the Company's ACTONEL product liability cases. In some of
the cases, manufacturers of other bisphosphonate products are also
named as defendants. The Plaintiffs have typically asked for
unspecified monetary and injunctive relief, as well as attorneys'
fees. Under the Collaboration Agreement, Sanofi has agreed to
indemnify the Company, subject to certain limitations, for 50% of
the losses from any product liability claims in Canada relating to
ACTONEL and for 50% of the losses from any product liability
claims in the United States and Puerto Rico relating to ACTONEL
brought prior to April 1, 2010, which would include approximately
90 claims relating to ONJ and other alleged injuries that were
pending as of March 31, 2010, and not subsequently dismissed.
Pursuant to the April 2010 amendment to the Collaboration
Agreement, the Company will be fully responsible for any product
liability claims in the United States and Puerto Rico relating to
ACTONEL brought on or after April 1, 2010. The Company may be
liable for product liability, warranty or similar claims in
relation to products acquired from The Procter & Gamble Company
("P&G") in October 2009 in connection with the Company's
acquisition (the "PGP Acquisition") of P&G's global branded
pharmaceutical's business ("PGP"), including ONJ-related claims
that were pending as of the closing of the PGP Acquisition. The
Company's agreement with P&G provides that P&G will indemnify the
Company, subject to certain limits, for 50% of the Company's
losses from any such claims, including approximately 88 claims
relating to ONJ and other alleged injuries, pending as of
October 30, 2009, and not subsequently dismissed.
The Company currently maintains product liability insurance
coverage for claims aggregating between $30 million and $170
million, subject to certain terms, conditions and exclusions, and
is otherwise responsible for any losses from such claims. The
terms of the Company's current and prior insurance programs vary
from year to year and the Company's insurance may not apply to,
among other things, damages or defense costs related to the HT or
ACTONEL-related claims, including any claim arising out of HT or
ACTONEL products with labeling that does not conform completely to
FDA approved labeling.
In May 2013, the Company entered into a settlement agreement in
respect of up to 74 ONJ-related claims, subject to the acceptance
thereof by the individual respective claimants. The Company
recorded a charge in the quarter ended March 31, 2013, in the
amount of $2 million in accordance with ASC Topic 450
"Contingencies" in connection with the Company's entry into the
settlement agreement. This charge represents the Company's
current estimate of the aggregate amount that is probable to be
paid by the Company in connection with the settlement agreement.
Assuming that all of the relevant claimants accept the settlement
agreement, approximately 569 ACTONEL-related claims would remain
outstanding, of which approximately 83 include ONJ-related claims,
approximately 468 include AFF-related claims and approximately 4
include both ONJ and AFF-related claims. However, it is
impossible to predict with certainty (i) the number of such
individual claimants that will accept the settlement agreement or
(ii) the outcome of any litigation with claimants rejecting the
settlement or other plaintiffs and potential plaintiffs with ONJ,
AFF or other ACTONEL-related claims, and the Company can offer no
assurance as to the likelihood of an unfavorable outcome in any of
these matters. An estimate of the potential loss, or range of
loss, if any, to the Company relating to proceedings with (i)
claimants rejecting the settlement or (ii) other plaintiffs and
potential plaintiffs with ONJ, AFF or other ACTONEL-related claims
is not possible at this time.
Warner Chilcott Public Limited Company -- http://www.wcrx.com/--
is a global specialty pharmaceutical company currently focused on
the gastroenterology, women's healthcare, dermatology and urology
segments of the North American and Western European
pharmaceuticals markets. Since being spun out of Warner-Lambert
in 1996, the Dublin, Ireland-based Company has evolved, through a
series of acquisitions and divestitures, from a small seller of
undifferentiated products to a fully integrated pharmaceutical
company with a broad portfolio of leading branded products.
WARNER CHILCOTT: Motions to Dismiss DORYX-Related Suits Pending
---------------------------------------------------------------
Warner Chilcott Public Limited Company's motions to dismiss DORYX-
related lawsuits remain pending, according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In July 2012, Mylan Pharmaceuticals Inc. filed a complaint against
the Company and Mayne Pharma International Pty. Ltd. in the U.S.
District Court for the Eastern District of Pennsylvania alleging
that the Company and Mayne prevented or delayed Mylan's generic
competition to the Company's DORYX products in violation of U.S.
federal antitrust laws and tortiously interfered with Mylan's
prospective economic relationships under Pennsylvania state law.
In the complaint, Mylan seeks unspecified treble and punitive
damages and attorneys' fees.
Following the filing of Mylan's complaint, three putative class
actions were filed against the Company and Mayne by purported
direct purchasers, and one putative class action was filed against
the Company and Mayne by purported indirect purchasers, each in
the same court. In each case the plaintiffs allege that they paid
higher prices for the Company's DORYX products as a result of the
Company's and Mayne's alleged actions preventing or delaying
generic competition in violation of U.S. federal antitrust laws
and/or state laws. The Plaintiffs seek unspecified injunctive
relief, treble damages and/or attorneys' fees. The court
consolidated the purported class actions and the action filed by
Mylan and ordered that all the pending cases proceed on the same
schedule. On October 1, 2012, the Company and Mayne moved to
dismiss in their entirety the claims of Mylan and the direct
purchasers. The Company and Mayne moved to dismiss the indirect
purchaser plaintiff's claims on October 31, 2012. On November 21,
2012, the Federal Trade Commission filed with the court an amicus
curiae brief supporting the plaintiffs' theory of relief.
On February 5, 2013, four retailers filed in the same court a
civil antitrust complaint in their individual capacities against
the Company and Mayne regarding DORYX. On March 28, 2013, another
retailer filed a similar complaint in the same court. Both
retailer complaints recite similar facts and assert similar legal
claims for relief to those asserted in the related cases. Both
retailer complaints have been consolidated with the other cases.
The Company and Mayne have moved to dismiss these retailer
complaints. Discovery is ongoing in all the consolidated cases
while the motions to dismiss are pending.
The Company says it intends to vigorously defend its rights in the
litigations. However, it is impossible to predict with certainty
the outcome of any litigation, and the Company can offer no
assurance as to when the lawsuits will be decided, whether the
Company will be successful in its defense and whether any
additional similar lawsuits will be filed. If these claims are
successful such claims could adversely affect the Company and
could have a material adverse effect on the Company's business,
financial condition, results of operation and cash flows. These
proceedings are in the early stages of litigation, and an estimate
of the potential loss, or range of loss, if any, to the Company
relating to these proceedings is not possible at this time.
Warner Chilcott Public Limited Company -- http://www.wcrx.com/--
is a global specialty pharmaceutical company currently focused on
the gastroenterology, women's healthcare, dermatology and urology
segments of the North American and Western European
pharmaceuticals markets. Since being spun out of Warner-Lambert
in 1996, the Dublin, Ireland-based Company has evolved, through a
series of acquisitions and divestitures, from a small seller of
undifferentiated products to a fully integrated pharmaceutical
company with a broad portfolio of leading branded products.
WARNER CHILCOTT: Sued by Purchasers of LOESTRIN 24 FE Product
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Warner Chilcott Public Limited Company is facing class action
lawsuits brought by purported indirect purchasers of its LOESTRIN
24 FE, according to the Company's May 10, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
In April and May 2013, three putative class actions were filed
against the Company, Actavis, Inc. (formerly Watson
Pharmaceuticals, Inc.) and Lupin Ltd. in the U.S. District Court
for the Eastern District of Pennsylvania, two putative class
actions were filed against the Company, Actavis and Lupin in the
U.S. District Court for the District of New Jersey and one
putative class action was filed against the Company, Actavis and
Lupin in the U.S. District Court for the District of Rhode Island,
in each case by purported indirect purchasers of the Company's
LOESTRIN 24 FE product.
In each complaint, the plaintiffs allege that they paid higher
prices for the Company's LOESTRIN 24 FE product as a result of the
Company's and Actavis's and/or Lupin's alleged actions preventing
or delaying generic competition in violation of U.S. federal
antitrust laws and/or state laws. The Plaintiffs seek, among
other things, unspecified treble, multiple and/or punitive
damages, injunctive relief and attorneys' fees.
The Company intends to vigorously defend itself in the litigation.
However, it is impossible to predict with certainty the outcome of
any litigation, and the Company can offer no assurance as to the
timing of any such litigation or whether the Company will be
successful in any such defense. In addition, repetitive class
action complaints asserting similar claims and allegations are
common in antitrust litigation, and the Company may be subject to
additional complaints from plaintiffs of the same or other
classes. If these claims are successful, such claims could
adversely affect the Company and could have a material adverse
effect on the Company's business, financial condition, results of
operation and cash flows. These proceedings are in the early
stages of litigation, and an estimate of the potential loss, or
range of loss, if any, to the Company relating to these
proceedings is not possible at this time.
Warner Chilcott Public Limited Company -- http://www.wcrx.com/--
is a global specialty pharmaceutical company currently focused on
the gastroenterology, women's healthcare, dermatology and urology
segments of the North American and Western European
pharmaceuticals markets. Since being spun out of Warner-Lambert
in 1996, the Dublin, Ireland-based Company has evolved, through a
series of acquisitions and divestitures, from a small seller of
undifferentiated products to a fully integrated pharmaceutical
company with a broad portfolio of leading branded products.
ZAGG INC: Defends Consolidated Shareholder Class Suit in Utah
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ZAGG Inc is defending itself against a consolidated shareholder
lawsuit pending in Utah, according to the Company's May 10, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
On September 6, and 10, 2012, two putative class action lawsuits
were filed by purported Company shareholders against the Company,
Randall Hales, Brandon O'Brien, Edward Ekstrom, and Cheryl
Larabee, as well as Robert G. Pedersen II, the Company's former
Chairman and CEO, and Shuichiro Ueyama, a former member of its
Board of Directors. These lawsuits, James H. Apple, et al. v.
ZAGG Inc, et al., U.S. District Court, District of Utah, 2:12-cv-
00852; and Ryan Draayer, et al. v. Zagg Inc, et al., U.S. District
Court, District of Utah, 2:12-cv-00859, were subsequently amended
by a complaint filed on May 6, 2013. The plaintiffs seek
certification of a class of purchasers of the Company's stock
between October 15, 2010, and August 17, 2012. The plaintiffs
claim that as a result of Mr. Pedersen's alleged December 2011
margin account sales, the defendants initiated a succession plan
to replace Mr. Pedersen as the Company's CEO with Mr. Hales, but
failed to disclose either the succession plan or Mr. Pedersen's
margin account sales, in violation of Sections 10(b), 14(a), and
20(a), and SEC Rules 10b-5 and 14a-9, under the Securities
Exchange Act of 1934 (the "Exchange Act"). On March 7, 2013, the
U.S. District Court for the District of Utah consolidated the
Apple and Draayer actions and assigned the caption In re Zagg,
Inc. Securities Litigation. The Company has not yet responded to
the complaints. The Company intends to vigorously defend against
them.
ZAGG Inc -- http://www.zagg.com/and http://www.ifrogz.com/--
headquartered in Salt Lake City, Utah, designs, produces and
distributes creative product solutions, such as protective
coverings, keyboards, keyboard cases, earbuds, mobile power
solutions, and device cleaning accessories for mobile devices
under the family of ZAGG brands. Within the family of ZAGG brand
are products sold under these brand names: invisibleSHIELD(R),
ZAGGskins(TM), ZAGGbuds(TM), ZAGGsparq(TM), ZAGGfolio(TM),
ZAGGmate(TM), ZAGGkeys(TM), ZAGGkeys PRO(TM), ZAGGkeys PRO
Plus(TM), ZAGGkeys PROfolio, ZAGGkeys PROfolio+, ZAGGkeys MINI 7,
and ZAGGkeys MINI 9.
ZHONGPIN INC: Continues to Face Suits Over Proposed Zhu Buyout
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Zhongpin Inc. continues to face class action lawsuits arising from
its proposed buyout by Xianfu Zhu, according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
On March 27, 2012, the Company announced that its Board of
Directors had received a preliminary, non-binding proposal from
the Company's Chairman and Chief Executive Officer, Xianfu Zhu,
stating that Mr. Zhu intended to seek to purchase the remaining
shares of the Company that he does not presently own (the
"Proposed Buyout"). Following this announcement, at least three
lawsuits have been filed in Delaware naming the members of the
Company's Board of Directors and/or the Company as defendants. On
November 26, 2012, the Company announced that it had entered into
a definitive merger agreement with Golden Bridge Holdings Limited,
a Cayman Islands exempted company ("Parent"), Golden Bridge Merger
Sub Limited, a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub") and Mr. Xianfu Zhu, which was subsequently
amended and restated on February 8, 2013 (the "Merger Agreement").
Pursuant to the Merger Agreement and subject to the satisfaction
or waiver of the conditions to the transactions contemplated
thereby, at the effective time of the merger, each share of the
Company common stock issued and outstanding immediately prior to
the effective time (other than shares owned by (i) Parent or
Merger Sub, (ii) Mr. Xianfu Zhu, Mr. Baoke Ben, Mr. Chaoyang Liu,
Mr. Qinghe Wang, Mr. Shuichi Si and Ms. Juanjuan Wang, (iii) the
Company or any direct or indirect wholly-owned subsidiary of the
Company or (iv) stockholders who have properly exercised and
perfected appraisal rights under Delaware law), will be converted
automatically into the right to receive $13.50 in cash, without
interest. On March 15, 2013, the Company filed with the SEC a
Schedule 13e-3 relating to the Proposed Buyout together with a
preliminary proxy statement relating to a special meeting of
stockholders to adopt the Merger Agreement (collectively, and
together with all filings with the SEC that are ancillary thereto,
and all amendments and supplements thereof, the "Transaction
Filings").
Following the November 2012 announcement of the Merger Agreement,
two additional lawsuits were filed in Delaware naming as
defendants the members of the Company's Board of Directors, the
Company, Parent, and Merger Sub. It is possible that more
lawsuits will occur.
On April 3, 2012, a verified shareholder class action lawsuit was
filed by Phillip Meeks in the Court of Chancery of the State of
Delaware against the Company and members of its Board of
Directors, alleging that, inter alia, the Company's Board of
Directors breached their fiduciary duties in connection with the
Proposed Buyout, and that the price per share proposed by Mr. Zhu
represented inadequate consideration in light of the Company's
intrinsic value and future prospects, and that the Company aided
and abetted the breach of fiduciary duties. The plaintiff seeks
damages, declaratory relief and injunctive relief, including an
order preventing the Company from proceeding with the Proposed
Buyout or any transaction with Mr. Zhu, as well as an award of
plaintiffs' attorneys' fees and costs. The Company believes that
none of the defendants has yet responded to the complaint.
On April 11, 2012, a verified shareholder class action lawsuit was
filed by Richard Bauschard in the Court of Chancery of the State
of Delaware against members of the Company's Board of Directors,
alleging that, inter alia, the Board of Directors breached their
fiduciary duties in connection with the Proposed Buyout, and that
the price per share proposed by Mr. Zhu represented inadequate
consideration in light of the Company's intrinsic value and future
prospects. The plaintiff seeks damages, declaratory relief and
injunctive relief, including an order preventing the defendants
from proceeding with the Proposed Buyout or any transaction with
Mr. Zhu, as well as an award of plaintiffs' attorneys' fees and
costs. On April 12, 2013, plaintiff Richard Bauschard filed an
amended complaint. The amended complaint names the same
defendants and includes the same cause of action alleging breach
of fiduciary duties, but the amended complaint includes additional
allegations relating to the terms of the Merger Agreement and the
disclosures contained in the preliminary proxy statement filed by
the Company on March 15, 2013, with the SEC. The Company believes
that none of the defendants has yet responded to the complaint.
On April 18, 2012, a verified shareholder class action lawsuit was
filed by Harry Vonderlieth in the Court of Chancery of the State
of Delaware against the Company and members of its Board of
Directors, alleging that, inter alia, the Company's Board of
Directors breached their fiduciary duties to the shareholders in
connection with the Proposed Buyout, and that the price per share
proposed by Mr. Zhu represented inadequate consideration in light
of the Company's intrinsic value and future prospects, and that
the Company aided and abetted the breach of fiduciary duties. The
plaintiff seeks damages, declaratory relief and injunctive relief,
including an order preventing the Company from proceeding with the
Proposed Buyout or any transaction with Mr. Zhu, as well as an
award of plaintiffs' attorneys' fees and costs. The Company
believes that none of the defendants has yet responded to the
complaint. On May 2, 2013, plaintiff Harry Vonderlieth
voluntarily dismissed this case and the Court of Chancery of the
State of Delaware granted the dismissal on May 3, 2013.
On December 4, 2012, after the announcement of the Company's
entering into the Merger Agreement, a verified shareholder class
action lawsuit was filed by Ernesto Rodriguez in the Court of
Chancery of the State of Delaware against the Company and members
of its Board of Directors, Parent and Merger Sub, alleging that,
inter alia, the Company's Board of Directors breached their
fiduciary duties to the Company's shareholders in connection with
the Proposed Buyout and the Merger Agreement, and that the price
per share and other terms provided for in the Merger Agreement are
inadequate and unfair in light of the Company's intrinsic value
and future prospects, and that the Company, Parent and Merger Sub
aided and abetted the breach of fiduciary duties. The plaintiff
seeks damages, declaratory relief and injunctive relief, including
an order preventing the Company from proceeding with the Proposed
Buyout or any transaction with Mr. Zhu, as well as an award of
plaintiffs' attorneys' fees and costs. On or about February 6,
2013, the plaintiff served document discovery on the individual
defendants. On April 12, 2013, plaintiff Ernesto Rodriguez filed
an amended complaint. The amended complaint names the same
defendants and includes the same cause of action alleging breach
of fiduciary duties, but the amended complaint includes additional
allegations relating to the disclosures contained in the
preliminary proxy statement filed by the Company on March 15,
2013, with the SEC. The Company believes that none of the
defendants has yet responded to the complaint or the discovery
served by the plaintiff.
On April 23, 2013, after the announcement of the Company's
entering into the Merger Agreement and certain of the Transaction
Filings were made, a verified shareholder class action lawsuit was
filed by Alan Hall in the Court of Chancery of the State of
Delaware against the Company and members of its Board of
Directors, Parent and Merger Sub, alleging that, inter alia, the
Company's Board of Directors breached their fiduciary duties to
the Company's shareholders in connection with the Proposed Buyout
and the Merger Agreement, and that the price per share and other
terms provided for in the Merger Agreement are inadequate and
unfair in light of the Company's intrinsic value and future
prospects, that the Transaction Filings contain materially
misleading misstatements and omissions, and that the Company,
Parent and Merger Sub aided and abetted the breach of fiduciary
duties. The plaintiff seeks damages, declaratory relief and
injunctive relief, including an order preventing the Company from
proceeding with the Proposed Buyout, or any transaction with Mr.
Zhu, as well as an award of plaintiffs' attorneys' fees and costs.
The Company believes that none of the defendants has yet responded
to the complaint.
On or about April 22, 2013, plaintiff Richard Bauschard filed a
motion to consolidate and appoint lead counsel with the Court of
Chancery of the State of Delaware, moving the Court for an order
providing for (i) the consolidation of the aforesaid lawsuits
filed by Phillip Meeks, Richard Bauschard, Harry Vonderlieth and
Ernesto Rodriguez, and (ii) the appointment of lead counsel and
Delaware liaison counsel in the consolidated matter. The Company
believes that none of the defendants has yet responded to the
motion.
The Company says it intends to defend against the pending class
action litigation vigorously.
In accordance with accounting standards regarding loss
contingencies, the Company accrues an undiscounted liability for
those contingencies where the incurrence of a loss is probable and
the amount can be reasonably estimated, and the Company discloses
the amount accrued and an estimate of any reasonably possible loss
in excess of the amount accrued, if such disclosure is necessary
for the Company's financial statements not to be misleading. The
Company does not accrue liabilities when the likelihood that the
liability has been incurred is probable but the amount cannot be
reasonably estimated, or when the liability is believed to be only
reasonably possible or remote.
Because litigation outcomes are inherently unpredictable, the
evaluation of legal proceedings often involves a series of complex
assessments by management about future events and can rely heavily
on estimates and assumptions. If the assessments indicate that
loss contingencies that could be material to any one of the
Company's financial statements are not probable, but are
reasonably possible, or are probable, but cannot be estimated,
then the Company discloses the nature of the loss contingencies,
together with an estimate of the possible loss or a statement that
such loss is not reasonably estimable.
With respect to the legal proceedings and claims, such litigation
is still in its preliminary stages and the final outcome,
including the Company's liability, if any, with respect to such
litigation, is uncertain. At present, the Company is unable to
estimate a reasonably possible range of loss, if any, that may
result from such litigation. If an unfavorable outcome were to
occur in the litigation, the impact could be material to the
Company's business, financial condition, or results of operations.
In addition, the Company says it is not possible to determine the
maximum potential amount under the indemnification provisions
under the terms and conditions of applicable bylaws, certificates
or articles of incorporation, agreements or applicable law due to
the limited history of prior indemnification claims and the
preliminary stages of the litigation.
Zhongpin Inc. -- http://www.zpfood.com/-- was incorporated in
Delaware and is headquartered in Changge City, in the Henan
province of The People's Republic of China. The Company is
principally engaged in the meat and food processing and
distribution business in China.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200.
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